text:
    Jack M. LINZAY, Sr. v. TANGIPAHOA PARISH FARM BUREAU et al.
    No. 13522.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      John W. DeGravelles, Baton Rouge, for plaintiff.
    Robert J. Vanda worker, Baton Rouge, for defendants, La. Farm Bureau Mutual Insurance Co., Southern Farm Bureau Life Insurance Co., and Southern Farm Bureau Casualty Insurance Co.
    John J. Hainkel, Jr., and Ralph R. Alexis, III, New Orleans, for defendant, Tangipa-hoa Parish Farm Bureau.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Jack M. Linzay against Tangipahoa Parish Farm Bureau (hereinafter called “Farm Bureau”), Louisiana Farm Bureau Mutual Insurance Co., Southern Farm Bureau Life Insurance Co., and Southern Farm Bureau Casualty Insurance Company (hereinafter collectively called “Insurance Companies”). From the sustaining of an exception of no cause of action filed by Farm Bureau and Insurance Companies, plaintiff appeals. We affirm.

The Insurance Companies entered into a contract with Farm Bureau under which Farm Bureau agreed to furnish secretarial help and various other services to the agent of Insurance Companies. The Insurance Companies hired Linzay as an agent under contracts of employment that specifically provided that they were terminable by either party upon giving ten days written notice. Linzay alleges that he was later discharged by Insurance Companies upon Farm Bureau’s urging.

The contract between the Insurance Companies and Farm Bureau contained the following pertinent provisions:

“7. The Companies shall employ no person as general agent or special agent of Companies without consent of Farm Bureau. Companies shall maintain the right, upon notice to Farm Bureau, to cancel its contract with any general agent or special agent.
“11. Farm Bureau shall in no wise change or attempt to change any obligation or right that may exist or be established as between Companies and their general agent or agents within the territory of Farm Bureau.
“15. Companies shall give consideration to any and all complaints that may be made by Farm Bureau in writing to Companies upon the activities of any general agent or other agent of Companies operating in territory of Farm Bureau and, it appears to Companies that the activity of such general agent or agents is not for the best interests of Companies and Farm Bureau in such territory shall cancel the contract of such general agent or agents as provided for in such agency contracts.”

Plaintiff’s petition contains the following pertinent paragraphs as found in his original and amended petitions, of which wé have formed a composite:

“2.
From September, 1961, until September 30,1977, plaintiff served both successfully and faithfully as agency manager for Tangipahoa Parish of Louisiana Mutual, Southern Life, and Southern Casualty.
“3.
On or about September 17, 1977, Tan-gi’s board of directors met and it was decided that Tangi would bring about the discharge or forced resignation of plaintiff from his employment as agency manager of Louisiana Mutual, Southern Life, and Southern Casualty.
“4.
As a result of Tangi’s actions, plaintiff was in fact discharged from his employment as agency manager of Louisiana Mutual, Southern Life, and Southern Casualty, resulting in the damages sued on herein.
“5.
Plaintiff shows that the actions taken by Tangi which resulted in his discharge as agency manager above referenced, constitute a tortious interference with contractual relationship of Louisiana Mutual, Southern Life, .and Southern Casualty with plaintiff.
“6.
Plaintiff also shows that Tangi’s actions constituted a breach of Tangi’s contracts with Louisiana Mutual, Southern Life, and Southern Casualty, which breach caused the damages sued for herein, and for which damages plaintiff is entitled to sue as a third party beneficiary under said contracts.
“7.
Plaintiff shows that his discharge from Louisiana Mutual, Southern Life, and Southern Casualty constituted a breach of the contracts existing between these companies aforementioned and Tangi, causing the damages sued for herein, which damages plaintiff is entitled to sue for as a result of his status as a third party beneficiary to said contracts.
“8.
Plaintiff shows that his discharge from Louisiana Mutual, Southern Life, and Southern Casualty constitutes a breach of his employment contracts with these three companies, which contracts, as modified by the contract between Tangi and insurers, plaintiff shows were terminable ‘only for cause’, and all contracts are attached hereto and made a part hereof; further, that plaintiff was discharged without cause, which breach of contracts and discharge have caused the damages sued for herein.”

It can thus be seen that plaintiff Linzay alleges three basic causes of action: (1) against Farm Bureau in contract for breach of a stipulation pour autrui in inducing his dismissal; (2) against Farm Bureau in tort for inducing a breach of an employment contract, and (3) against the Insurance Companies for breaching their employment contracts by dismissing him.

For purposes of deciding upon an exception of no cause of action, we must assume that plaintiff’s allegations are true, and we must overrule the exception if plaintiff states a cause of action cognizable in law. Rebman v. Reed, 286 So.2d 341 (La. 1973); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La. 1975).

With regard to his allegations concerning stipulations pour autrui, plaintiff cites Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969). This case does not support Linzay’s position.

The case contains the following quotation with introductory explanation from Mr. Smith’s article on stipulations pour autrui which appeared in 11 Tul.L.Rev. 18, at p. 58 (1936):

“Professor J. Denson Smith, in a study of the history, legislation and jurisprudence which have formed the doctrine of stipulations in favor of third persons in this State, has enumerated the factors to be considered in deciding whether an advantage for a third person has been provided by contract between others. They are:
“(1) The existence of a legal relationship between the promisee and the third person involving an obligation owed by the promisee to the beneficiary which performance of the promise will discharge; (2) the existence of a factual relationship between the prom-isee and the third person, where (a) there is a possibility of future liability either personal or real on the part of the promisee to the beneficiary against which performance of the promisee (sic) will protect the former; (b) securing an advantage for the third person may beneficially affect the promisee in a material way; (c) there are ties of kinship or other circumstances indicating that a benefit by way of gratuity was intended. See Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul.L.Rev. 18, 58 (1936).” (231 So.2d 347, 351)

Thus, we see that there must be a legal relationship on the part of the promisee (in this case, the Insurance Companies) to the third person (in this case Linzay) involving an obligation owed on the part of the prom-isee to the third person. We note that there was no obligation owed on the part of the Insurance Companies to Linzay, the employment contract having been terminable at will upon written notice. Hence, there appears to have been no stipulation pour autrui in the legal sense.

This view is supported by Mr. Smith’s analysis of the similarities between the Anglo-American law on third party beneficiaries and Louisiana’s civilian view on the stipulation pour autrui. Mr. Smith notes that the Restatement of Contracts distinguishes between three classes of third party beneficiaries, viz., beneficiaries who are creditors, beneficiaries who are donees, and incidental beneficiaries. He states that this distinction is not made in Louisiana, but states that in Louisiana incidental beneficiaries are not considered to enjoy the benefit of stipulations pour autrui. In the present case, Linzay is not a creditor; there is no obligation existing on the part of the Insurance Companies to continue to employ him, the contract of employment being terminable at will by either party upon notice. He is not a donee. Thus, he falls into the category of an incidental beneficiary, and cannot be considered to enjoy the benefits of a stipulation pour autrui.

Further supporting this view is the following quotation from First State Bank v. Burton, 225 La. 537, 73 So.2d 453 (1954):

“The legal result of such a stipulation is to give the party in whose favor it is created ‘another and additional debtor’. Gay & Co. v. Blanchard, 32 La.Ann. 497, on rehearing, 505.” (73 So.2d 453, 456)

In the present case a debtor-creditor relationship did not exist on the part of the Insurance Companies toward Linzay so far as his continued employment was concerned, as employment was terminable at will upon notice. Nor was Linzay a donee. Thus, no stipulation pour autrui can be said to have been made by Farm Bureau on behalf of Linzay, and Linzay has no rights against Farm Bureau in contract for violating a stipulation pour autrui.

On whether or not Farm Bureau is liable for tortious interference with Lin-zay’s contracts of employment, we note, first, that Kline v. Eubanks, 109 La. 241, 33 So. 211 (1902), and Wolf & Sons v. New Orleans Tailor-Made Pants Co., 113 La. 388, 37 So. 2 (1904), held that no action existed in the state for tortiously inducing one to breach a contract of employment. These cases were quite clearly influenced by the outlawing of slavery and the repeal of the Black Code, and were in keeping with the spirit of the times, under which it was considered that a man should be free to contract for his employment as he wished. They also reflected the view of most of the other states. As is properly noted in appellant’s brief, these cases no longer reflect the majority view. In most other states, a tort is now recognized for inducing a breach of an employment contract. The Louisiana Supreme Court was on the verge of so holding in National Safe Corp. v. Benedict & Myrick, Inc., 371 So.2d 792 (La. 1940). In that case, a defendant, a dealer, reconvened against a manufacturer for wrongfully hiring two of defendant’s employees, who had an existing contract of employment. The Court held plaintiff, National Safe, liable for breaching an implied agreement in its contract with its dealer, which the Court found prohibited plaintiff’s inducing defendant’s employees from leaving their employment with defendant. The Court found that that was not an appropriate occasion to determine whether or not National Safe was also liable in tort, as it was liable in contract.

We have considered carefully whether or not we should go a step further and find in the present case that there is liability in tort for inducing a breach in an employment contract. We have concluded that, even if Louisiana should adopt the view that such a tort exists in the state, the present case is not the proper one in which to find liability. Under paragraph 15. of the contract between the Farm Bureau and the Insurance Companies, Farm Bureau was given the right by Insurance Companies to make complaints in writing about Insurance Companies’ agents. Plaintiff fails to allege that anything more was done by Farm Bureau than that which it was specifically permitted to do by paragraph 15. of the contract with Insurance Companies. Furthermore, the employment contracts between Insurance Companies and Linzay were terminable at will by either party upon notice. To discharge Linzay was not a breach of contract, as there existed no provision in Linzay’s contracts of employment that prevented his discharge at any time. Indeed, the contracts were quite to the contrary. There having been no provision of the employment contracts providing that Linzay could not be discharged at will upon notice, there can have been no wrongful inducement to breach the employment contracts on the part of Farm Bureau. Thus, even if a tort for wrongful inducement to breach an employment contract may be found to exist in Louisiana, it was not present in the facts of this case.

With regard to the claim of Lin-zay against Insurance Companies for discharge from his employment as their agent, we note that in Louisiana an employment contract for an indefinite period is terminable at will. LSA-C.C. art. 2747; Baker v. Union Tank Car Co., 140 So.2d 397 (La.App. 1st Cir. 1962); Laque v. St. Charles Parish Policy Jury, 363 So.2d 1240 (La.App. 4th Cir. 1978). In the present case, the employment contracts themselves, which constitute the law between the parties (LSA-C.C. art. 1945), provide that they are terminable at will upon notice. Thus, the contracts were terminable at will. We know of no exception, that may be found, either in the clear language of the contracts, or in the codal law or jurisprudence of this state regulating contracts of employment, except possibly with respect to employees covered by collective bargaining agreements (see dicta in Baker, supra), which plaintiff does not allege to have existed in this case. We cannot agree with appellant’s contention that Linzay’s contracts of employment were somehow modified by the contract between Farm Bureau and Insurance Companies, as Linzay was not a party to that contract, and, as we have seen, there was no stipulation pour autrui. We, therefore, hold that Insurance Companies have no liability to Linzay.

We have seen that Farm Bureau is not liable to Linzay in tort for wrongful inducement to breach an employment contract, because, as we have held, Insurance Companies did not breach their employment contracts with Linzay in discharging him. We are unwilling, absent a clear manifestation of policy from this state’s Supreme Court, to find that a tort could be said to exist in a third person’s inducing a discharge of an employee whose contract of employment is terminable at will by either party. Such a holding would clearly go far beyond the change in attitude toward inducing a breach of an employment contract hinted at in National Safe.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Joseph M. ALFONSO et al. v. Reginald McINTYRE and Appalachian Insurance Co.
    No. 13527.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    James J. Zito, Baton Rouge, for plaintiffs.
    John Dale Powers, Baton Rouge, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is a suit for legal malpractice brought by plaintiffs, heirs of Frank Alfonso, against their original lawyer, and his malpractice insurer, Appalachian Insurance Co. The trial court rendered judgment for defendants. We affirm.

Plaintiffs-appellants claim their original lawyer negligently handled a suit brought by them against a daughter of Salvador (Sam) Alfonso, Frank Alfonso’s brother, by failing to file an appeal bond. The original suit was a petitory action. Judgment was rendered for defendant, and was signed on October 12, 1976. Plaintiffs filed a motion for appeal. However, the appeal bond was not filed. This Court in No. 11,379 dismissed plaintiffs’ appeal for lack of jurisdiction because of failure to file an appeal bond.

The present action for malpractice was then filed, alleging the failure properly to perfect an appeal.

In order to prevail in a legal malpractice suit involving alleged mishandling of a prior suit, plaintiffs must show that because the prior suit was mishandled, plaintiffs lost the original suit or had their position otherwise impaired. The following quotation from Vessel v. St. Paul Fire & Marine Insurance Co., 276 So.2d 874 (La.App. 1st Cir. 1973), which quoted in turn from Toomer v. Breaux, infra, is pertinent:

“The following in Toomer v. Breaux, 146 So.2d 723 (3rd La.App. 1962, writs denied, 1963), clearly announces the law applicable to the burden of proof in a legal malpractice suit:
‘(9) An attorney is liable to his client for the damages caused to the latter by the attorney’s negligence in the handling of the client’s business, providing that the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. King v. Fourchy, 47 La.Ann. 354, 16 So. 814; Dyer & Stevenson v. Drew, 14 La.Ann. 657; Spiller v. Davidson, 4 La.Ann. 171 (stating, for example, that it is necessary for the client “to show that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the attorney.” 4 La.Ann. 172); Thompson v. Lobdell, 7 Rob. 369;' Breedlove v. Turner, 9 Mart. (O.S.) 353 (pointing out that reasonable mis judgment, especially when the law is unclear, is not actionable negligence). See also: Annotation, “Attorney’s liability for negligence in preparing or conducting litigation”, 45 A.L.R.2d 5.’ ”

(276 So.2d 874, 877)

We have thoroughly reviewed the written reasons for judgment and the transcript in the original suit. We find that the trial court’s findings of fact and conclusions of law in that case are well stated and eminently correct. We find, therefore, that the plaintiffs-appellants would not have obtained reversal or amendment of judgment on appeal.

We quote the trial court’s written reasons for judgment in the original suit in full:

“This is a petitory action filed by the heirs of Frank and Rosa Alfonso against the defendant, Francis Alfonso Ragusa (a first cousin) who was the daughter of Salvador (Sam) Alfonso.
On May 23, 1910, Frank and Sam Alfonso acquired twenty (20) acres of land from R. J. Moore which included the area in dispute.
On January 8, 1934, Frank and Sam Alfonso executed an Act of Partition (Plaintiffs Exhibit # 2) with Frank Ra-gusa receiving, according the (sic) the Act of Partition, property including the .026 acres in the northeast corner of the NE 14 of the NW Vi of the NW lA of Section 23, T 6 S R 7 E, Tangipahoa Parish, Louisiana.
The status of the property remained unchanged until the year 1960, when a Judgment of Possession was signed in the succession of Frank Alfonso and Rosa Alfonso. The heirs of the aforesaid were recognized as the owners and placed in possession as co-owners of among other properties: ‘The NE VI of the NW 14 of the NW V* of Section 23, T 6 S R 7 E, Hammond, Tangipahoa Parish, Louisiana, bounded West by Nashville Street and North by Ward Line Road.’
At this point the Court notes two other interesting developments: first, that the East boundary owner was not mentioned even though the Western and Northern boundaries were noted, and second, that the only survey then in existence was the apparently erroneous survey of Mr. C. M. Moore dated December 9, 1959 (attached to Defendant Exhibit # 1).
On February 1, 1960, and specifically referring to the Moore map of December 9,1959, as well as specifically stating that they were co-owners in indivisión and were amicably partitioning the NE !4 of the NW 14 of the NW '4 of Section 23, T 6 S R 7 E, etc., which again unequivocally includes the disputed .026 acre tract although same does not appear because of the erroneous Moore map of December 9, 1959, attached to this Act of Partition. In this partition, Rose Alfonso Accardo received Lot # 4, which Mr. Moore had indicated to be the most Northeasterly portion of the NE 14 of the NW 14 of the NW 14 of Section 23; but a later examination by C. G. Webb, C. E. and surveyor, as well as Wallace Adams, C. E and surveyor, indicated that did not include the disputed .026 acre tract. Again, the conclusion is inescapable that Mr. Moore thought he was partitioning the entire NE Vi of the NW Vi of the NW Vi of Section 23 because of the precise language of the Act of Partition as well as the map attached, when in fact, he had the Eastern line of the NE Vi of the NW Vi of the NW Vi of Section 23, 54.87 feet further West than actually, and in fact, existed on the ground.
The next transaction occurred in February of 1963 when the heirs of Frank and Sam Alfonso executed an Act of Correction with Frank Alfonso again receiving ‘The NE Vi of the NW 14 of the NW 14 of Section 23 T 6 SR 7 E, containing ten acres’ and again containing the .026 acre tract that is the subject of this lawsuit.
Mrs. Rose Alfonso Accardo and her husband, Nat Accardo, subsequently conveyed Lot # 4 of the Moore partition to Robert A. Maurin, Jr., on September 28, 1967 (Defendant Exhibit # 2) and Mau-rin quitclaimed all of his interest in the disputed .026 acre tract to the defendant, Francis Ragusa, et al., by Deed dated May 1, 1975 (Defendant Exhibit # 3).
This now brings us to the question as to who is the owner of the .026 acre tract in the Northeast corner of the NE 14 of the NW Vi of the NW Vi of Section 23, T 6 S R 7 E, Parish of Tangipahoa, State of Louisiana.
It is not clear as to what Frank and Sam Alfonso intended in their partition of 1934 although Frank Alfonso clearly received title to the disputed .026 acre tract according to the property description. However, there was convincing testimony that these parties intended to partition along a canal or ditch which would have actually put the disputed tract on Sam Alfonso’s side of the canal or ditch. It appears then that the legal instrument indicated one situation and the intention of the parties and actual location of the properties was in a slightly different location.
From December 9,1959 (the date of the Moore map) until Mr. Moore’s error was discovered by Mr. Adams and Mr. Webb, it is clear to the Court that all parties considered the disputed area on the ground as belonging to the defendant, Francis Alfonso Ragusa.
The Court feels that the heirs of Frank . Alfonso did not claim this disputed tract, and clearly intended to execute a partition of all the property that they inherited even though the Moore map was in error as concerns the East line of this tract. Additionally, the possession in good faith and under color of title by defendant Ragusa in excess of ten years would defeat the claim of the plaintiff.
Having disposed of the matter on the basis of ten years acquisitive prescription, it is unnecessary to discuss another facet of the case. However, even if ten years acquisitive prescription were not applicable, the plaintiffs claim would be defeated because of the following: If you assume for purposes of argument that it was clearly the intention of Frank and Sam Alfonso for Frank Alfonso to receive the disputed area in the partition with Sam Alfonso, then you would also have to assume, and the inescapable conclusion is, that it was intended for Rose Alfonso Aecardo to receive the Northeastern portion of the NE Vi of the NW Vi of the NW Vi of Section 23, which would include the disputed .026 acre tract as her partitioned Lot # 4. It would then follow that Mrs. Aecardo intended to convey to Mr. Maurin the entire tract including the disputed area and Maurin subsequently conveyed to defendant, Francis Ragusa, et al., this tract.
For the above and foregoing reasons, the demands of the plaintiff are rejected and there be judgment is (sic) favor of defendant, dismissing the plaintiffs demands, all costs to be equally divided % to plaintiff and Vi to defendant.”

We are especially impressed with the trial court’s determination that ten years’ acquisitive prescription applied, and consider that determination incontrovertibly correct. See Scott v. Brown Paper Mill Co., 174 So. 212 (La.App.2d Cir. 1937), and the cases cited therein.

The judgment of the trial court in the present case is affirmed, at appellants’ cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Peggy J. NAPOLI v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 13349.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.

      Patrick Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellant Peggy J. Napoli.
    Horace C. Lane, Baton Rouge, for defendants-appellees, Nick and State Farm Mutual Automobile Insurance Company.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff, Peggy J. Napoli, filed suit against defendants, State Farm Mutual Automobile Insurance Company and Nick Cicero, seeking $250,000.00 for personal injuries allegedly suffered on November 1, 1977, when the automobile in which she was a passenger was struck from the rear by a vehicle driven by Nick Cicero. Plaintiff requested a jury trial. From a trial court decision adopting the jury’s verdict as its own judgment and finding the defendant, Nick Cicero, negligent but awarding damages of $0.00, plaintiff appeals. We affirm.

Plaintiff specifies that it was error for the trial court to:

1. grant judgment in plaintiff’s favor but in the amount of $0.00;
2. not find that the accident either caused or aggravated the injuries alleged by the plaintiff;
3. cast plaintiff for costs although the jury decided in her favor.

In a supplemental brief, plaintiff “also complains of jury instructions given or not given(.)” Furthermore, remand for a new trial is sought because “it will be difficult for the court to fully understand this case, assess the demeanor of the witnesses, and thereafter render some type of judgmentQ”

A meaningful jury trial includes proper instructions by the court. Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury’s application thereto. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App.3rd Cir. 1978). In this case, we cannot say that the jury instructions were such as would mislead the jury as to the law or to the application of the law to the facts. Far from it, the instructions given demonstrate the trial court’s great concern for all aspects of the case.

Because we find the jury instructions to have been proper, our review of this case is limited to an examination of whether the jury’s findings were manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Appellant’s contention notwithstanding, this court is fully capable of a fair and complete review of the record. No remand is necessary.

Plaintiff brought suit under LSA-C.C. Art. 2315 which provides in part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Under Art. 2315, the elements of a cause of action are fault, causation and damage. Weiland v. King, 281 So.2d 688 (La.1973). A plaintiff has the burden of proving causation by a preponderance of the evidence, whether direct or circumstantial. A preponderance means that the evidence must show that it is more probable than not that the harm complained of was caused by the defendant’s tortious conduct. Townsend v. State, through Department of Highways, 322 So.2d 139 (La.1975); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

In the present case, the jury found that plaintiff proved neither damages nor causation. We agree with that finding.

Plaintiff alleged

“severe and painful personal injuries including but not limited to three cervical disc (sic) requiring surgery ... is permanently disabled, alternatively, partially disabled . . . and has suffered great mental pain and anguish.”

At trial, plaintiff also drew attention to an alleged knee injury.

Dr. Robert Hanchey, a neurosurgeon, testified that he first saw plaintiff on December 6, 1977, a month after the accident; that his notes revealed no mention by the plaintiff of the accident; that plaintiff was treated (by fusion of three vertebrae) for a chronic degenerative condition going back several years; and that such a condition could be caused by either the natural progression of a disease or by an aggravation. Dr. Hanchey was unable to say what had caused plaintiff’s condition but consistently urged deference to the opinion of Dr. Kilroy.

Dr. James Thomas Kilroy, an orthopedic surgeon, testified that he first saw plaintiff on September 7, 1977, two months prior to the accident; that as of September 7, 1977, plaintiff had suffered from upper thoracic and neck pain for a long time; that on December 4,1977, plaintiff was hospitalized for severe pain; that on December 4, plaintiff informed him of her November 1 accident; that he called in Dr. Hanchey; that plaintiff had the same symptoms after as before the accident; that plaintiff’s surgery was caused by her chronic degenerative disc disease and not by any intervening trauma.

Dr. David Klein, a neurological surgeon, testified via videotape that he first saw the plaintiff on November 13, 1978; that plaintiff had endured “intermittent episodes of pain and stiffness in her neck” since 1968 or 1969; that plaintiff had suffered from headaches for some three and one-half weeks prior to November 13; that aggravated symptoms caused by trauma would usually appear shortly after an accident rather than remaining dormant; that while he could do no more than speculatively suggest the possibility of a connection between the accident and plaintiff’s symptoms, he believed plaintiff suffered from a degenerative disc disease of long-standing. Regarding causal likelihood he deferred to Drs. Kilroy and Hanchey.

These three expert witnesses, all called to testify on plaintiff’s behalf, apparently convinced the jury that plaintiff had not, in fact, been injured at all. On appeal, plaintiff urges that we reject the opinions of these experts and believe the testimony of 1) John Daniel Jarreau, plaintiff’s fiancé, 2) Gayle Elliott, plaintiff’s good friend, 3) Dr. John Tassin, a general practitioner and plaintiff’s brother-in-law, and 4) plaintiff herself. We find no reason to reverse the jury’s finding which is amply supported by the record.

Taylor v. Allstate Insurance Company, 205 So.2d 807 (La.App. 1st Cir. 1967) and Trahan v. Perkins, 197 So.2d 96 (La.App. 1st Cir. 1967) stand for the proposition that a tort causing mental anguish or emotional upset creates a claim for damages separate from physical pain and suffering. Plaintiff alleged mental pain and anguish but proved none.

Plaintiff urges that some award should be made in light of her knee injury and the fact that defendant was found at fault. In Mora v. American Motors Leasing Corp., 364 So.2d 1343 (La.App. 4th Cir. 1978), two plaintiffs were awarded $750 and $500 in general damages after they proved slight injuries from a rear-end collision. See also Moss v. Security National Insurance Co., 350 So.2d 247 (La.App. 3rd Cir. 1977), writ denied 352 So.2d 239 (La.1977). In the present case, plaintiff’s alleged knee injury was found insignificant by Dr. Tassin. No further evidence, as to either plaintiff’s knee or any other injury, was introduced. Clearly, plaintiff does not merit even a nominal award such as that made in Mora.

Numerous cases have held that damage awards of $0.00 are valid where the defendant has admitted or been found liable but the plaintiff fails to prove damages. Tenhaaf v. Wheels, Inc., 367 So.2d 1330 (La.App. 4th Cir. 1979), writ denied 369 So.2d 1379 (La.1979); Williams v. Allstate Insurance Company, 367 So.2d 1318 (La.App. 4th Cir. 1979); Johnson v. Gulf Insurance Company, 362 So.2d 1223 (La.App. 4th Cir. 1978); Simmons v. Pagel, 275 So.2d 847 (La.App. 4th Cir. 1973); Pierrotti v. St. Paul Fire & Marine Insurance Company, 273 So.2d 363 (La.App. 3rd Cir. 1973), application denied 275 So.2d 868 (La.1973).

A jury may not refuse general damages to a plaintiff with objective injuries. Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976). However,

“before recovery can be granted for the aggravation of a pre-existing condition, plaintiff must establish by a preponderance of the evidence a causative link between the accident and his current status.” Bates v. Garrett Marine Supply, Inc., 368 So.2d 1171 (La.App. 3rd Cir. 1979).

Plaintiff proved neither objective injuries nor aggravating trauma. The jury correctly awarded her nothing.

Plaintiff objects to being cast for all costs.

Where a plaintiff proves great damages but no fault on the part of the defendant, plaintiff’s suit is dismissed at his costs. It follows that where, as here, a plaintiff proves the defendant at fault but cannot establish damages, the suit must also fall because of plaintiff’s failure to prove an essential element of a tort claim. Weiland v. King, supra. Therefore we find no error in the trial court’s assessment of costs.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Peggy J. Napoli.

AFFIRMED.


text:
    J. Randolph OGDEN v. Walter R. BANKSTON and Alice Folkes Bankston.
    No. 13420.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.
    Rehearing Denied Sept. 4, 1980.
    Gerard Kiefer, Baton Rouge, counsel for plaintiff-appellee J. Randolph Ogden.
    Curtis K. Stafford, Baton Rouge, counsel for defendant-appellant Walter R. Bank-ston & Alice Folkes Bankston.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

J. Randolph Ogden brought suit against Walter R. Bankston and Alice Folkes Bank-ston seeking preliminary and permanent injunctions to prevent defendants from interfering with plaintiff’s servitude across defendants’ property. Ogden also sought damages. Defendants reconvened seeking a declaratory judgment that the servitude could be relocated in a manner suggested by defendants.

Following the granting of a preliminary injunction in plaintiff’s favor, hearings were conducted and the matter was taken under advisement. On October 15, 1979, judgment was signed by the trial court. A permanent injunction issued enjoining defendants from interfering with or relocating plaintiff’s servitude. Plaintiff’s claim for damages and defendants’ reconventional demand were dismissed. All costs were assessed against the defendants who have appealed. We affirm.

Appellants specify no errors. We presume that the “ISSUES” in their brief amount to specifications of error. Those issues are:

1. Is Ogden bound by the language contained in the acquisition of his estate from Homer Knost?
2. May the Bankstons relocate the servitude as provided by LSA-C.C. Art. 748?

Ogden owns about thirty-five acres of land bordered on the east by the Amite River and on the west by defendants’ property. Plaintiff has a servitude of passage thirty feet wide and one mile long which runs along the southernmost border of defendants’ property and opens onto Green-well Springs Road. The servitude forms plaintiff’s driveway.

Defendants wish to subdivide and develop their property. They seek to shorten plaintiff’s servitude by turning it north and connecting it with one of the public streets shown on their proposed plat.

Plaintiff urges that to relocate his servitude would destroy a beautiful gravel drive, lined by trees and terminating both ends at elegant gateways. He maintains that the servitude as presently constituted emphasizes the rural aspect of his property.

Defendants stress that because of flood problems with the Amite River and required building elevations, the servitude must relocate if defendants are to maximize the use of and consequent profit from their property.

When Ogden purchased his estate from Homer Knost in 1972, the act of sale described Knost’s property as having been purchased in two separate acts. One act described certain lands, now part of Ogden’s estate, as enjoying a perpetual servitude. The second act described certain other lands, also now part of Ogden’s estate, as enjoying a servitude subject to relocation by the owner of the servient estate or his transferees. Since the servitude mentioned in both acts is the same as the one at issue, it is clear that defendants may not relocate it on the basis of contract. Defendants may not superimpose relocation rights over property sold not subject to a right of relocation.

Thus, while Ogden is bound by the language contained in the act of sale from Homer Knost, such language clearly shows that certain of Ogden’s lands were purchased together with a perpetual servitude not subject to contractual relocation.

Without a contractual right to relocate, appellants must rely on LSA-C.C. Art. 748 which provides:

“The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.”

A careful review of the entire record does not support a finding that the continued existence of the servitude in its present location is burdensome.

Robert L. Breaux, a land surveyor and witness for the defendants, testified that the servitude as is decreases the depth of eight or nine proposed lots; that innumerable other plans for development were possible; and that defendants believed their proposed plan, which would result in greatly shortening and relocating plaintiff’s servitude, “was the most economical and advantageous way to use the land.”

Robert L. Bennett, a civil engineer called by the plaintiff, testified that he had laid out more than thirty subdivisions in his career; that alternative plans were feasible in this case (he presented one, P-30); and that in any case, the subdivision plans could easily be shifted thirty feet north of the proposed location, a shift which would minimize problems for the defendants and maintain the servitude in its present location.

We find that the only reason the defendants contend the present servitude location is burdensome is that the profit margin would be higher if the servitude were relocated and certain proposed lots, which would otherwise have suffered the servitude to pass across their rear, would enjoy a greater depth.

None of the relocations suggested by defendants would be equally convenient for Ogden. That plaintiff prefers driving one mile on a gravel road between trees and past rustic gates rather than through a modern subdivision is obvious and understandable. Plaintiff purchased his estate prior to defendants. When defendants bought their property, they were aware of Ogden’s servitude. Consequently they must live with it.

Defendants have not been prevented from making useful improvements. They may develop their property in almost any manner. They simply are not allowed to maximize their profits at the inconvenience of plaintiff.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Walter R. Bankston and Alice Folkes Bankston.

AFFIRMED.

      . Art. 748, effective January 1, 1978, is based on former Art. 777, which provided:
      “The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.
      Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
      Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it.”


text:
    DIXIE CARRIERS, INC. v. OTTO M. LIPSCOMB, INC., Ohio Barge Line, Inc., Warrier & Gulf Navigation Company, XYZ Barge Company, ABC Towing Company and DEF Insurance Companies. Randall L. ROMINE v. CAJUN MARINE SERVICE, INC. et al.
    Nos. 13530, 13531.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.
    Rehearing Denied Sept. 4, 1980.

      Edgar F. Barnett and J. L. Cox, Jr., Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, for plaintiff.
    Joseph P. Tynan and James O. M. Wom-ack, Burke & Ballard, New Orleans, Attys. for Ohio Barge Co. & Warrier & Gulf Navigation Co.
    Ronald A. Johnson and Richard A. Cozad, Johnson & McAlpine, New Orleans, for Otto M. Lipscomb, Inc.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

At 11:15 P.M. on January 29, 1978, Randall L. Romine was a crewman on board the tugboat, “Edith,” owned by Cajun Marine Service, Inc. The Edith was pushing barge DXE 1107, owned by Dixie Carriers, Inc., in a westerly direction in the Intracoastal Canal near Morgan City. Earlier that evening, four loaded barges, including OBL 22, owned by Ohio Barge Line, Inc., had been towed by the tugboat, “Olivette,” owned by Otto M. Lipscomb, Inc., to a point along the south bank of the canal where they were moored to another barge parallel to the canal bank. The Olivette had then left the scene for engine repairs. Shortly after 11:15 P.M., barge DXE 1107, being pushed by the Edith, collided with Barge OBL 22, eastern-most of the Olivette tow. As a result of the collision, Randall L. Romine suffered personal injuries and the barge DXE 1107 was damaged.

Romine brought suit for $1,081,000, interest and costs against Cajun Marine Service, Inc. (Cajun), Cajun’s insurer, Highlands Insurance Company (Highlands), Dixie Carriers, Inc. (Dixie), Ohio Barge Line, Inc. (Ohio), and Otto M. Lipscomb, Inc. (Otto).

Highlands intervened against Romine and all defendants seeking subrogation for any amounts paid to Romine.

Ohio, Cajun, Highlands and Dixie filed third party petitions against Otto.

In a separate suit for property damage to the barge DXE 1107, Dixie sought $20,280, interest and costs from Otto, Ohio and various other defendants. Ohio named Otto and Otto named Cajun as third party defendants.

Following consolidation of the two suits, trial by civil jury was had. On September 12, 1979, the jury unanimously rendered its verdict by special interrogatories. Cajun was found negligent, Otto was found not negligent, Romine was awarded $16,000 in damages, and Dixie was allowed nothing for the loss of use of barge DXE 1107. (Damages to DXE 1107 had already been stipulated to by the parties.)

Judgment was in accordance with the jury verdict. Cajun and Highlands were cast for $16,000, interest and costs. Ro-mine’s demands against the other defendants were denied as were the third party claims of Ohio, Cajun, Highlands and Dixie and the intervention of Highlands. The claims of all parties relating to DXE 1107’s property damage were denied. Highlands subsequently paid the judgment to Romine who assigned all his rights against the remaining defendants to Cajun and Highlands.

After a motion for new trial was denied, Cajun, Highlands and Dixie took this appeal.

Appellants’ basic contention is that the Olivette tow had become unmoored and drifted out into the path of the Edith’s tow. The OBL 22 was allegedly low in the water and not properly lighted. Appellees deny that the Olivette tow ever moved from its position parallel to the canal bank.

Appellants specify that the trial court erred in:

1) refusing to allow the jury to consider the log of the Olivette;
2) refusing to submit certain charges to the jury;
3) adopting a jury verdict which was contrary to the law and the evidence.

While Roy Bond Henson, an employee of Otto, was testifying, appellants sought to introduce as evidence certain portions of the Olivette’s log, in particular a diagram dated June 29, 1978, which purports to portray the accident scene. The trial court refused to allow the introduction which was then made a proffer.

We agree with the trial court’s exclusion of this proffered evidence. The diagram’s author, C. A. Legaspi, was not present in court to testify. Henson was the vehicle whereby introduction was sought. However, as noted by the trial court, the diagram was not even an accurate reflection of Henson’s perception of the accident scene. Accordingly, the diagram was properly rejected as being both inaccurate and hearsay. In passing, we note that the diagram sought to be introduced is not only uncorroborative of appellants’ version of the accident but also tends to refute same.

Appellants proposed two special charges which were rejected by the trial court. Both charges dealt with vessels “underway” and were rejected because no evidence at all was presented which showed the Olivette tow to be underway. Even appellants’ proffer, the diagram from the Olivette’s log shows the tow attached to the shore. Only the number of lines and angle to the bank were at issue.

A charge, even if it is a correct statement of the law, must be based on evidence adduced in the case in order for the jury to make the conclusion permitted in the charge. Jackson v. West Jefferson General Hospital, 245 So.2d 724 (La.App. 4th Cir. 1971). It was not, therefore, error for the trial court to refuse appellants’ charges.

Appellants contend that the jury verdict was contrary to the law and the evidence. We disagree.

Appellants’ claims of legal error to the contrary, we find that this ease essentially amounted to a struggle for credibility. The jury saw the witnesses and evidence, heard all the testimony and apparently did not believe defendants’ explanations for why the Edith’s tow struck barge OBL 22. There is no reason to disturb the jury’s findings.

A careful review of the entire record convinces us that there was sufficient evidence on which the jury could base a finding of negligence on the part of appellants. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

Por the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by Cajun Marine Service, Inc., Highlands Insurance Company and Dixie Carriers, Inc.

AFFIRMED.

      . Proposed Charge A
      “A vessel is ‘underway,’ within the meaning of these rules, when she is not at anchor, or made fast to the shore, or aground.”

        Proposed Charge B
      “A vessel ‘underway’ is required to carry a red light on its starborad bow, a green light light (sic) on its port bow, a bright white light on its fore part and an afterlight being carried at an elevation of at least 15 feet above the light at the head of the vessel.”


text:
    George H. JONES v. AMERICAN BANK AND TRUST COMPANY.
    No. 13538.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.
    Rehearing Denied Sept. 4, 1980.

      Arthur J. Cobb, Baton Rouge, for plaintiff-appellant George H. Jones.
    Richard Mary, Baton Rouge, for defendants-appellees Mr. and Mrs. Noel B. Baum.
    John R. Olds, Baton Rouge, for interve-nor-appellee Supreme Securities, Inc.
    C. Stokes McConnell, Jr., Baton Rouge, for defendant-appellee American Bank & Trust Co.
    Paul M. Hebert, Jr., Baton Rouge, for defendant-appellee Fid. Natl. Bk. of B. R.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Plaintiff, George H. Jones, appeals a trial court decision granting summary judgment to third party defendant, Noel B. “Butch” Baum, and dismissing all petitions in the suit at his costs. We affirm.

Jones sued American Bank for $10,000, interest and costs. He alleged that on June 26, 1975, Supreme Finance Company, Inc., d/b/a Supreme Securities, Inc. (Supreme), issued a check for $10,000, payable to plaintiff and drawn on American Bank. He further alleged that the proceeds were removed from Supreme’s account and paid to a forger.

Subsequent to the original petition, Supreme intervened and prayed for American Bank to either pay plaintiff the $10,000 or return the $10,000 to intervenor so it could pay Jones. Jones then cross-claimed against Supreme.

American Bank denied plaintiff’s claim and made Fidelity National Bank (Fidelity) a third party defendant. Fidelity made Noel B. “Butch” Baum yet another third party defendant. Supreme and Baum respectively named American Bank and Jones third party defendants.

Motions for summary judgment were filed by both Jones and Baum. Following a hearing, Jones’ motion was denied and Baum’s was granted.

On appeal, Jones specifies as errors the trial court rulings

1. denying plaintiff’s motion for summary judgment and
2. granting summary judgment to Baum whom Jones had never named as defendant.

Jones’ first specification of error is specious since no appeal lies from a court’s refusal to render either judgment on the pleadings or summary judgment. LSA-C. C.P. Art. 968. Savoy v. Doe, 315 So.2d 875 (La.App. 3rd Cir. 1975); Batson v. Time, Inc., 298 So.2d 100 (La.App. 1st Cir. 1974), writ denied 299 So.2d 803 (1974).

It was also not error to grant summary judgment to a party never joined by the plaintiff as a defendant. LSA-C.C.P. Art. 1115 permits a third party defendant to assert against the plaintiff in the principal action any defenses which the third party plaintiff has against the principal demand. See also Breaux v. Rimmer & Garrett, Inc., 320 So.2d 214 (La.App. 3rd Cir. 1975).

Baum’s defenses, which could have been used by Fidelity, were that Jones received the benefit of the funds from the forged check and that Jones ratified the forgery.

On appeal, Jones does not specify as error the trial court’s apparent determination that the “benefit of the funds” defense was meritorious. Rather, appellant formally objects only to the procedural aspect of the judgment. Clearly, however, appellant’s brief demonstrates that the gravamen for appeal is the court’s finding valid the “benefit” defense.

A careful examination of the entire record convinces us that Jones did, indeed, benefit from the funds and that he cannot recover from American Bank.

The record unequivocally shows that Jones, Baum and others were involved in the construction, management and/or sale of the Colonial Woods Apartments in Baton Rouge. Numerous problems arose which resulted in repeated efforts by those involved to provide additional financing. Baum was the member who orchestrated the project.

In 1975, the group was faced with a note, shortly to mature, in an amount of over $113,000 and payable to the Colonial Bank of New Orleans. Various members of the Colonial Woods enterprise, including the plaintiff, agreed to raise cash.

On June 26, 1975, Baum carried a note made out to Supreme to Jones’ office. The note was taken by a nurse or receptionist, was signed out of Baum’s presence, and was then returned to Baum who brought it to Supreme. Baum then carried a check for $10,000, the proceeds of the note, to Jones’ office where, again, a nurse or receptionist took it from him. The check was shortly returned to Baum, apparently signed by Jones.

Baum deposited the check at issue, together with other funds raised by members of the Colonial Woods group, into his personal account at Fidelity. From that account, Baum paid off the note Colonial Woods owed to the Colonial Bank of New Orleans.

A party seeking summary judgment has the burden of showing the complete absence of a genuine issue of material fact. All doubts as to the absence will be decided in favor of a trial on the merits ánd no summary judgment will be granted, even if the trial court has grave doubt regarding a party’s ability to establish disputed facts. City of Baton Rouge v. Cannon, 376 So.2d 994 (La.App. 1st Cir. 1979).

LSA-C.C.P. Art. 967 provides in part:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all genuine issues of material fact. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (1980).

Baum’s deposition and attachments resolved each genuine issue of material fact by fully explaining the business transactions involved. Jones’ deposition and attachments do not demonstrate that there is a material issue.

By deposition, Jones acknowledged his understanding that the proceeds from the Supreme loan were to be used to pay off debts of Colonial Woods. Jones did not deny that said funds were actually used for their intended purpose but merely stated that he did not know what had been done with the funds. Jones also concedes in brief that “(t)o the extent that the proceeds were used to liquidate just debts of Colonial Woods, Dr. Jones claims no damages.”

The entire thrust of Jones’ case is that he never got the $10,000. When viewed in the light of Baum’s full explanation and Jones’ admissions, it is clear that there is no real issue-whether or not Jones got the money, he got the benefit of it.

Summary judgment as a matter of law will be granted if the disputed issues of fact are so patently insubstantial as to present no genuine issues. Merely formal allegations without substance will not preclude summary judgment. Aydell v. Charles Carter & Company, Inc., 388 So.2d 404 (La.App. 1st Cir. 1980); City of Baton Rouge v. Cannon, supra; Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179 (La.App. 4th Cir. 1972), writ refused 261 La. 462, 259 So.2d 914 (1972).

It is evident that there are no genuine issues of material fact and that Noel B. “Butch” Baum is entitled to summary judgment as a matter of law.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings are to be paid by George H. Jones.

AFFIRMED.

      . The law allows a “benefit of the funds” defense. LSA-R.S. 10:3-404. Whitney Trust & Savings Bank v. Jurgens-Fowler Co., 180 La. 445, 156 So. 460 (1934). See also Nationwide Finance Co. of Gretna, Inc. v. Pitre, 243 So.2d 326 (La.App. 4th Cir. 1971).


text:
    SUCCESSION of Eugene J. MARCEL, Sr. TUTORSHIP OF Rose Marie MARCEL, Mel Joseph Marcel and Eugene Joseph Marcel, Jr. TUTORSHIP OF Mike Joseph MARCEL and Sheila Ann Marcel.
    Nos. 13643 to 13645.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.

      Eddie N. Pullaro, Houma, for minors and petitioners.
    Gordon Hackman, Boutte, for Lorine Marcel.
    John R. Walker, Houma, for minors, petitioners and Joseph Trahan.
    Huntington Downer, Jr., Houma, for Rose Marie Marcel, Mel Joseph Marcel, Eugene Joseph Marcel, Jr., Mike Joseph Marcel & Sheila Ann Marcel.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Eddie N. Pullaro and Huntington B. Downer, Jr., attorneys-at-laws, seek dismissal of an appeal by Lorine Scott and Gordon Hackman, her attorney, from a trial court judgment fixing attorney fees, recognizing employment contracts, awarding expenses and ordering invested the remaining funds of the minors involved in the above consolidated cases. Dismissal is sought on the ground that the trial court judgment was by consent.

LSA-C.C.P. Art. 2085 provides that

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily ' and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

Appeals are favored in law and forfeiture of a party’s right to an appeal through acquiescence should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956). Acquiescence in a judgment is never presumed. The party alleging same must establish by direct or circumstantial evidence that the party now appealing - intended to acquiesce. Koerner & Lambert, A Professional Law Corp. v. Allstate Insurance Company, 363 So.2d 546 (La.App. 4th Cir. 1978). A party favored by judgment may accept the full amount thereof from the party cast or may even cause execution on the judgment without forfeiting his right of appeal because of acquiescence. Glasper v. Wright Root Beer Co., 216 So.2d 586 (La.App. 1st Cir. 1968). An attorney seeking fees who, under LSA-C.C.P. Art. 1091, could have intervened in the trial court proceedings, has the requisite standing to appeal, even if no other appeal has been taken. LSA-C.C.P. Art. 2086. Succession of Buvens, 373 So.2d 750 (La.App. 3rd Cir. 1979).

In the present case, a rule to show cause was fixed for trial on January 7, 1980. The concluding portion of this often rambling hearing went as follows:

“THE COURT:
Objection overruled. All right, what are your wishes, gentlemen?
MR. HACKMAN:
I would like to move, Your Honor, as I have earlier that whatever portion of the settlement proceeds that would not be taken out by attorneys fees be disbursed immediately to the clients and I would stipulate that there would be only one attorneys fee and would offer that Mr. Pullaro and Mr. Downer stipulate to the same thing. In addition to the attorneys fees there would be whatever expenses that have been incurred and the rest of that money it would seem to me if there is a dispute as to attorney’s fees it is only as to one-third, and consequently, we should not hold out disbursement of the other funds to the client.
THE COURT:
We are going to get rid of this thing right now, gentlemen. This is it. We have held this young lady up. She needs her money. The children’s fund should be in a banking institution receiving interest. I am ready to rule on this thing immediately.
Here is what I find would be an equitable distribution. First of all, I am going to recognize Mr. Hackman’s entitlement to $1,000.00 paid out of the proceeds of the minors for that amount of work that he has done concerning tutorships and whatever else. Further, I will recognize Mr. Hackman’s contract only as it is applicable to the funds of Lorine Scott. Then, I will recognize Mr. Pullaro’s contract only insofar as it applies to the funds of the minors.
Prepare a judgment consistent with that, gentlemen. That is it.
MR. HACKMAN:
What is your practice here with disbursement of funds from the Registry of the Court? If I type up the judgment as I plan to do-
THE COURT:
They will pay it out this afternoon as far as I (sic) concerned. Don’t you agree?
MR. HACKMAN:
Is your typewriter available or do we have to use the typewriter in the Clerk’s Office?
THE COURT:
Why don’t you ask the Clerk because my secretary has five or six judgments being prepared. If you do that, Lorine can get her money this afternoon. I know she needs it. I know the attorney’s don’t need the money.
MR. HACKMAN:
What do we do about expenses, Judge?
THE COURT:
The costs are paid out of the estate.
MR. DOWNER:
We can do it that way.
THE COURT:
You mean cost of court.
MR. HACKMAN:
Hunt had $550, Mr. Pullaro had about $300.
MR. DOWNER:
The court costs were filed in the various suits. I don’t know.
THE COURT:
They will be paid out of the proceeds. For example, I should think it would be a portion.
MR. PULLARO:
Well, Judge, I would think this (sic) since you have limited Mr. Hackman’s fees strictly on Mrs. Scott, why wouldn’t she pay Mr. Hackman’s expenses and-
THE COURT:
You pay the expenses of the children.
MR. DOWNER:
The expense of the children be against the children, and the expenses of Mrs. Scott against Mrs. Scott.
THE COURT:
Let’s do that.
MR. HACKMAN:
If that is what you want the judgment to read, that is what I am going to do.
THE COURT:
That’s a fair way to do it.
(Hearing concluded.)”

At a later date, the trial judge stated his belief that “if this wasn’t a consent judgment, there isn’t a cow in Texas.” Nevertheless, we find no clear evidence that appellants acquiesced in the judgment. At the outset, Mr. Hackman noted a possible dispute over attorney fees. Then, when the trial judge stated what he was going to do, Mr. Hackman agreed to type the judgment. By any fair reading, such an ágreement cannot be construed as an intentional waiver of the right of appeal, especially since Mr. Hackman, despite his earlier agreement to, neither typed nor signed the final judgment. The Lorine Scott may have picked up all of the funds from Mr. Downer is also not a sure sign of acquiescence. Glasper v. Wright Root Beer Co., supra.

Movers have failed to prove that the judgment appealed from was a consent judgment. The motion to dismiss is denied. All costs of this motion are to be paid by Eddie N. Pullaro and Huntington B. Downer, Jr.

MOTION TO DISMISS DENIED.


author: GULOTTA, Judge. PER CURIAM.

text:
    STATE of Louisiana In the Interest of Kendra BROWN.
    No. 11509.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 22, 1980.
    Mary L. Beck, Asst. Dist. Atty., New Orleans, for State of Louisiana, appellee.
    Mark McTernan and Steven Scheckman, New Orleans, for appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

On February 10, 1979, three-month-old Kendra Brown was brought to the accident room of Charity Hospital by her parents. Examination and X-rays of the child revealed a subgalean hematoma and skull fracture, and a fractured right distal femur manifested by swelling in the baby’s right thigh. The parents explained that Kendra, while being fed by her father in the parents’ bedroom, had rolled off the edge of the bed, falling some two-and-one-half feet onto a carpeted floor. The physicians who examined and treated the infant became suspicious, concluding the critical head injuries could not have resulted from the accident described.

Upon discovery of the child’s fractured femur, which the doctors concluded was present at the time the head injury occurred, the child’s mother told them she had fallen in the street, with Kendra in her arms, about eight days previously. She stated she had not noticed anything wrong with the baby after. The doctors found this to be inconsistent with the extent of the baby’s leg injury.

As a result, the physicians contacted the district attorney’s office, which obtained an instanter order on February 10, 1979, providing shelter care for Kendra pending hearing on a neglect petition. Kendra was placed in the care of her maternal grandmother. On February 15, 1979 the child’s parents filed a motion to dismiss the hold order and to have the statutes under which it was issued declared unconstitutional. The juvenile court judge denied the motion on March 8, 1979, and the Browns subsequently applied to this court for supervisory writs. Writs were granted, and the juvenile court was directed to dismiss the hold order on the ground it had expired. State in Interest of Brown, 372 So.2d 1246 (La.App. 4th Cir. 1979).

Meanwhile the state had filed a petition to have Kendra declared a child in need of care. She was being maintained in her grandmother’s custody by issuance of another hold order on July 26,1979. No writs were ever applied for from this order.

After several continuances, trial on the merits of the neglect petition took place on November 7, 1979. The court adjudicated Kendra Brown to be a child in need of care, and the child was placed in custody of the Department of Health and Human Resources, Office of Human Development (although informally remaining under her grandmother’s care). The child’s mother has appealed this judgment.

In her brief on appeal, Mrs. Brown initially contended the original instanter order was unconstitutional, on the following grounds:

“(1) That appellant was denied due process of law when the Orleans Parish Family Court issued an instanter hold order authorizing the seizure of their minor child without a prior contradictory hearing.
(2) That appellant was denied due process of law when the Orleans Parish Family Court failed to hold a preliminary hearing within twenty-four hours of the child’s summary seizure, to decide whether said hold order was necessary to protect the child from immediate risk of physical injury.
(3) That appellant was denied due process of law when the Orleans Parish Family Court failed to hold an adversary adjudicatory hearing within ten days of the summary seizure of her child.
(4) That appellant was denied due process of law in that said hold order was issued pursuant the authority of La.R.S. 14:403, La.R.S. 13:1569, and C.J.P. Art. 14(13), said statutes being unconstitutionally vague, ambiguous and as such over-broad.”

In oral argument, however, appellant recognizes these issues have been settled by this court’s recent opinion in State In the Interest of Alexander, 384 So.2d 1003 (La.App.1980), upholding the constitutionality of the statutes involved. Consequently, appellant no longer urges the issues of constitutionality. We point out further that the question became moot by this court’s June 13,1979 judgment on appellant’s writ application, which ordered the instanter order dismissed.

Other arguments asserted by the mother of the juvenile in this case are that the trial judge erred when he denied the motion to suppress confessions and/or inculpatory statements of Cynthia Brown; that the court erred further by its failure to appoint counsel to represent the child, Kendra Brown; and finally, that the state failed to produce sufficient evidence to show by “clear and convincing” evidence that the child is in need of care.

Because we conclude LSA-C.J.P. Art. 95 mandates entitlement of a child to counsel, we find it unnecessary to consider the two evidentiary questions raised by the mother of the juvenile in this appeal.

Code of Juvenile Procedure Art. 95 adopted by the legislature in Act 172 of 1978, effective January 21, 1979, provides:

“Art. 95. Right to counsel.

A. A child shall be entitled to counsel in the following proceedings:
(1) A hearing to determine continued custody;
(2) An appearance to answer a petition which requests that the child be adjudicated to be a delinquent;
(3) A transfer hearing pursuant to R.S. 13:1571.1 et seq.;
(4) An adjudication hearing if the petition requests that the child be adjudicated to be a delinquent;
(5) A disposition hearing if the child has been adjudicated to be a delinquent;
(6) A hearing on a motion to modify the judgment of disposition in delinquency proceedings if the motion is filed by the district attorney or probation officer, unless the motion requests that the disposition be less restrictive;
(7) An appeal if the child has been adjudicated to be a delinquent.
B. The child shall be entitled to counsel in any other proceeding.
C. If the parents of the child are financially unable to afford counsel, the court shall appoint counsel in accordance with R.S. 15:141 et seq.
D. If the parents of the child are financially able to afford counsel but fail to employ counsel, the court may appoint counsel to represent the child at the expense of the parents in accordance with R.S. 15:148. (Emphasis added.)

It is clear from a reading of this provision that a child shall be entitled to counsel in a hearing to determine continued custody or in any other proceeding. We recognize the practical problems encountered by the dedicated juvenile court judge, when confronted with the requirements of Art. 95. Nevertheless, the legislature, in clear language, has mandated the requirement for the appointment of counsel to represent the child. We appreciate also that in the mind of the juvenile court judge the appointment of an attorney to represent the child may be a vain and useless act where the interest of the state is represented by the district attorney and the parents’ interest is represented by a court-appointed attorney or one selected by the parents. Still, the legislative mandate is clear. See In Interest of Genusa, 381 So.2d 504 (La.1980).

We find no merit to the state’s contention that LSA-R.S. 14:403 G(9) makes the appointment of an attorney for the child unnecessary because the district attorney represents the interest of the state, “which interest shall be the protection of the child.”

In juvenile proceedings, the responsibility of the state is the protection of the child. The responsibility of the court is to adjudicate in and for the interest and welfare of the child. The worker assigned to the case is interested in the child’s welfare, and the attorney representing the parents also represents the interest and welfare of his client. Although the juvenile court judge and the court officers have a specific responsibility for the protection of the child, each in his or her own way of thinking may sincerely believe that this interest may be best served by different dispositions and different custody placements for the child. At any rate, while perhaps in some instances it is difficult to carry out, the juvenile court judge is mandated by the code to provide counsel as set forth in Code of Juvenile Procedure Art. 95.

Because counsel was not appointed for the child in the instant case, the judgment of the juvenile court is reversed and set aside. The matter is remanded for further proceedings consistent herewith. Pending further proceedings in the juvenile court the July 26, 1979 order placing custody of the child, Kendra Brown, with the maternal grandmother will not be disturbed but will remain in effect.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In the application for rehearing, the State complains that this court erred in considering the failure of the trial judge to appoint an attorney to represent the child when this issue was not raised in the trial court. We find no merit to this contention.

Although this issue was not addressed below, consideration by this court is not proscribed where the interest of justice clearly requires consideration on review. See LSA-C.C.P. art. 2164, and Uniform Rules, Court of Appeal IX-A in its entirety.

APPLICATION DENIED.

      . LSA-R.S. 14:403 G(9), in pertinent part, reads:
      . The district attorney shall represent the interest of the state, which interest shall be the protection of the child. The court may also appoint an attorney to represent the sole interest of the child.”


author: GARRISON, Judge. SCHOTT, Judge,

text:
    CONSOLIDATED SEWERAGE DISTRICT OF the CITY OF KENNER v. Elaine Guenther, Wife/of and John Erwin SCHULIN, Jr.
    No. 10824.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Rehearing Denied Sept. 15, 1980.

      Vondenstein & Power, Michael J. Power, Kenner, for plaintiff.
    Lambert J. Hassinger, New Orleans, for defendants.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a district court judgment granting to the Consolidated Sewerage District of the City of Kenner the right to expropriate a 24 acre tract of land owned by Elaine Guenther, the wife of/and John Erwin Schulin, Jr., and condemning the Sewerage District to pay the Schulins the sum of fourteen thousand dollars as compensation, plus legal interest from the date of judicial demand, plus attorney’s fees in the amount of thirty-five hundred dollars and costs. From that judgment, the City appeals, seeking to reduce the compensation and attorney’s fees awarded, as well as arguing that interest is not recoverable. Mr. and Mrs. Schulin argue that the amount of compensation awarded should be increased to the fair market value used for assessments under the property tax system, that attorney’s fees should be increased to five thousand dollars, and that they are entitled to interest from the date of judicial demand.

At the trial level, defendants-appellees raised the plea of equitable estoppel to prevent the presentation of any evidence of value other than the assessed value of the property. The trial court properly overruled this exception, as they failed to show the three elements of equitable estoppel: (1) a representation by conduct or word, (2) justifiable reference and (3) a change in position to one’s detriment because of the reliance. State v. National Advertising Co., 356 So.2d 557 (La.App.3rd, 1978); Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

While the exception of equitable estoppel is not available to appellees, the argument upon which it is based is re-urged on appeal. Appellees contend that it is inequitable to permit the expropriating authority to use a higher market value for purposes of ad valorem tax assessment and a lower market value for purposes of expropriation. In order to determine the viability of this argument, it is necessary to review the statutory history involved.

Prior to the adoption of the Louisiana Constitution of 1974, ad valorem taxes were assessed against property on the basis of the cash value at the time of the sale. Article 7, § 18 of the Constitution of 1974 provided that:

“(A) Property subject to ad valorem taxation shall be listed on the assessment rolls at its assessed valuation, which . shall be a percentage of its fair market value. The percentage of fair market value shall be uniform throughout the state upon the same class of property.
(B) The classification of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purposes of determining assessed valuation are as follows:
Classifications: Percentages:
1. Land 10%
2. Improvements for residential purposes 10%
3. Other property 10%
(D) Each assessor shall determine the fair market value of all property subject to taxation within his respective parish or district except public service properties, which shall be valued at fair market value by the Louisiana Tax Commission or its successor. Each assessor shall determine the use value of property which is to be so assessed under the provisions of Paragraph (C). Fair market value and use value of property shall be determined in accordance with criteria which shall be established by law and which shall apply uniformly throughout the state.
(E) The correctness of assessments by the assessor shall be subject to review by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law.”

The constitutional provision above was enacted in response to Levy v. Parker, 346 F.Supp. 897 (E.D.La., 1972) and Bussie v. Long, 286 So.2d 689 (La.App.1st, 1973), cert. denied, 288 So.2d 354 (La.1974) which held that the administration of the ad valorem tax system under the Constitution of 1921 “violated the equal protection and due process clauses of the Fourteenth Amendment because there was no uniformity of assessments of property of the same class throughout the state nor within the parishes.” 37 La.L.R. 158. The purpose of Art. 7, § 18 of the 1974 Constitution was to provide for a uniform method of assessment for ad valorem tax purposes.

In the same Constitution of 1974, the proposals of the Constitutional Convention of 1973, as ratified by the will of the people, provided for expropriation for public purposes in Art. 1, § 4:

“Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivision except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.” (emphasis added)

Thus, the major issue on appeal is the question, “Does fair market value for purposes of property tax assessment equal just compensation for the full extent of loss for purposes of expropriation? We find that the terms are not equivalent.

In the instant appeal, we are presented with an unusual case in that the assessed fair market value was greater than the trial court’s determined compensation value for expropriation. The Schulins’ unimproved property was assessed at $21,-000.00 fair market value, but the trial court awarded $14,000.00. While at first glance, this may appear to be inconsistent, this court finds that in' fact no inconsistency exists. The market value is “what a willing purchaser would pay a willing seller under ordinary and usual circumstances.” La. Highway Comm. v. Paciera, 205 La. 784, 18 So.2d 193, 194 (1944); La. Highway Comm. v. Israel, 205 La. 699, 17 So.2d 914 (1944). There exists a strong line of jurisprudence in this State standing for the proposition that assessed value, like expert testimony and the use of comparable sales, is just one of many factors to be considered by the trier of fact in determining compensation. Board v. Levee Com’rs, Orleans Levee Dist. v. Jackson’s Estate, 113 La. 124, 36 So. 912 (1904); La. Highway Comm. v. Guidry, 176 La. 389, 146 So. 1 (1933); City of New Orleans v. Larroux, 203 La. 990, 14 So.2d 812 (1943); City of New Orleans v. Heffle, 203 La. 996, 14 So.2d 814 (1943); City of New Orleans v. Cass, 203 La. 997, 14 So.2d 814 (1943); City of New Orleans v. Cerevallo, 203 La. 998, 14 So.2d 814 (1943); State v. Barbe, 209 La. 185, 24 So.2d 372 (1945), as well as other cases, too numerous to mention. Thus, we conclude that the trial judge was not erroneous in his determination that the assessed value for purposes of ad valorem taxation is not the sole and controlling factor in determining compensation. Accordingly, a review of the evidence convinces this court that the trial judge was not manifestly erroneous in his determination that the property be valued at $14,-000.00.

Turning now to the issue of attorney’s fees, we initially note the following comment from the records of the Louisiana Constitutional Convention of 1973:

“We say in the next sentence that ‘the measure of just compensation shall be the full extent of the loss.’ In other words, when someone’s property is taken, he has a certain loss, and this section says that loss shall be the measure of just compensation. Sometimes, unfortunately, it has been much less. For example, suppose a highway comes across the corner of your property. You are offered five hundred dollars for it; it is worth a thousand. At present, there is no way you can get what it’s worth because if you go to court and challenge that offer and try to get your thousand dollars, and even if you win, you are going to lose, because of the cost of going to court, hiring an attorney, which you’ll have to pay. So this would attempt to take into account that fact .” (emphasis added)

It is clear to this court that the legislative intent relative to the phrase “to the full extent of his loss” was meant to include an award of attorney’s fees to the landowner in expropriation cases under Article I, § 4 of the Constitution of 1974. Additionally, we note that “in making awards for attorney’s fees, the trial court is vested with considerable discretion, the exercise of which will not be interfered with save in a case of clear abuse.” State Dept. of Highways v. Terrebonne, 349 So.2d 936 (La.App. 1st, 1977) at 940. We find that the award of attorney’s fees by the trial court was neither excessive nor a clear abuse of discretion.

Lastly, we address the issue of legal interest. On appeal, the Schulins contend that the language “to the full extent of his loss” includes a right to legal interest from the date of judicial demand. The Consolidated Sewerage District argues that interest is due only from the date of judgment.

Civil Code Article 1938 provides for legal interest as follows:

“All debts shall bear interest at the rate of seven per centum per annum from the time they.become due, unless otherwise stipulated.”

The critical issue, then, is when does the debt become due. We find that the debt becomes due as of the date of judgment, as prior to judgment, the debt is not ascertainable. An unliquidated claim is only due from the time that it is ascertainable. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Hicks v. Rucker Pharmacal Co., Inc., 367 So.2d 399 (La.App. 2nd, 1978), writ denied, 369 So. 1360 (La.). Accordingly, we find that the trial court erred in awarding interest from the date of judicial demand and should have provided for legal interest from the date of rendition of judgment.

For the above and foregoing reasons, the judgment appealed from is amended to award legal interest from the date of judgment and is affirmed in all other respects. Costs to be paid by the appellant.

AMENDED, AND AS AMENDED, AFFIRMED.

SCHOTT, J., concurs in the result.

SCHOTT, Judge,

concurring in result.

Plaintiff called an expert appraiser, Angus Eason, who testified that the value of this property was 40 cents per square foot based on nine comparable sales which he identified and discussed. He explained that the principal weakness of this property was its inaccessibility, and five of his compara-bles were sales of similar inaccessible property occurring between October, 1974, and March, 1977, for prices between 28 cents and 45 cents per square foot.

Defendants pleaded estoppel based on the fact that plaintiff and its governing body, the City of Kenner Council, had collected taxes based on an assessed value of $21,000. To establish the value of their property defendants relied on this assessed value and the testimony of a deputy assessor for Jefferson Parish.

In Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975) the court defined equitable estop-pel “as the effort of the voluntary conduct of a party whereby he is barred from asserting rights against another party justifiably relying on such conduct and who has changed his position to his detriment as a result of such reliance.” I agree with the majority opinion that the ingredients essential for the application of the doctrine are not present, and add that there was an absence of “voluntary conduct,” particularly, on the part of plaintiff.

The value of the property for taxation purposes is made by the assessor, an officer whose constitutional duties are performed independently of and separate from taxing bodies, such as plaintiff. Those taxing bodies simply accept the assessor’s value and compute the amount of taxes according to the prevailing millage. Their use of the assessed values is not voluntary but purely ministerial and cannot estop them from asserting another value in an expropriation proceeding.

On the other hand, the assessed value was admissible evidence, and, while not controlling, was properly considered by the trial court in determining the value of the property. City of New Orleans v. Larroux, 203 La. 990, 14 So.2d 812 (1943).

The trial judge’s award of $14,000 was equivalent to 83 cents per square foot, and is supported by the record as a whole. In arriving at his evaluation plaintiff’s appraiser made no adjustments in his compa-rables to allow for inflation even though one of the five principal comparables, which was a sale for 39 cents per square foot, occurred almost five years prior to the judgment, three for prices of 33 cents, 35 cents and 45 cents occurred about three years previously, and one for 28 cents occurred over two years previously. Undoubtedly the trial judge considered the age of these comparables and gave some weight to the $1.25 per square foot assessed value in reaching his judgment.

      . This court notes that the value of property determined by the respective Assessors’ Offices is not an absolute valuation. R.S. 47:1931 provides for boards of review, which rule upon complaints of questionable assessments and R.S. 47:1989 provides that the Louisiana Tax Commission hears appeals from the rulings of those boards. Additionally, R.S. 47:2110 provides for payment of ad valorem taxes under protest and institution of suit to recover those payments.

      . Records of Louisiana Constitutional Convention of 1973: Convention Transcripts, Vol. VI, p. 1031, Proceedings of the 39th Day-Thursday, August 30, 1973 (La. Constitutional Convention Records Commission, 1977).


author: GARRISON, Judge. BOUTALL, Judge

text:
    Lona ANDRY, Wife of and Melvin Andry v. CUMIS INSURANCE SOCIETY, INC. and Allstate Insurance Co. Sondra SILBERT, Wife of/and Leonard Silbert v. Susan Q. LEWIS et al.
    Nos. 11058, 11059.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    As Amended on Denial of Rehearings Sept. 24, 1980.

      Frank J. D’Amico, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, Henry Leon Sarpy, Hammett, Leake, Hammett, Hulse & Nelson, Frank H. Walk, Jr., New Orleans, for defendants-appellees.
    Drury & Lozes, Steven M. Lozes, New Orleans, for defendants-appellees, cross appellants.
    Before BOUTALL, GARRISON, and BARRY, JJ.
   GARRISON, Judge.

This is an unusual appeal from a judgment granted by the district court in accordance with a jury verdict with which the trial judge disagreed. The facts of this most unusual case are as follows:

On February 25, 1975 a chain reaction motor vehicle accident occurred on I — 10 near the Louisa Street Exit. Four vehicles were involved. The driver of the first vehicle, a South Central Bell truck, was Ronald Tweedel. The driver of the second vehicle, a pick-up truck owned by Southern Engine & Pump Co., was Lawrence Hanrahan. The third vehicle was driven by Sondra Silbert and the fourth vehicle, driven by Susan Lewis, contained a guest passenger, Lona Andry. Lona Andry and her husband filed suit against the insurer of Leonard and Sondra Silbert and the insurer of Susan Lewis, seeking damages in the amount of $51,504.01 on January 13, 1976 in civil action number 76-0459. On January 16, 1976, Sondra Silbert and Leonard Silbert filed suit number 76-0804 against Susan Lewis, Ronald Tweedel, South Central Bell, Lawrence Hanrahan, Southern Engine & Pump Co. and the insurers of all parties, seeking damages in the amount of $21,-750.00. On April 19, 1977 the two cases were consolidated.

After a trial by jury, the district court adopted the findings and verdict of the jury, rendering judgment on December 4, 1978 in favor of Lona and Melvin Andry, and against Cumis and Allstate Insurance Companies and granting damages in the amount of $20,000.00 to Lona Andry and $5,000.00 to Melvin Andry. All other suits and parties were dismissed.

In his written reasons for judgment, the district court judge communicated his shocked reaction to the award of damages granted by the jury:

“This Court is of the opinion that the jury award is grossly inadequate. Proven and even admitted special damages were in excess of $18,000.00, yet the jury gave $5,000.00. The general damages are likewise grossly inadequate and at the conclusion of the case, just before the jury left to go home, the Court informed them of the inadequacy of the award, and suggested that $100,000.00 would have been more adequate under the facts and circumstances of the case. This woman has had two major spinal surgeries and is permanently injured.”

From that shockingly inadequate award rendered by the jury, the trial court refused to grant a new trial, reasoning that any remedy would lie upon appeal:

“. . To burden a trial court with that added heavy expense and delay is not an adequate remedy. No matter what the “next” jury does, its finding of fact and law are still subject to review by the appellate courts. The plaintiff’s adequate remedy is on appeal now, just as it will be after another trial.”

From that judgment, which we now affirm and amend, Lona and Melvin Andry appeal.

On appeal, the Andrys raise three specifications of error:

1. That the jury was improperly constituted with the result that its verdict on damages is not to be given any weight by this court and that the improperly constituted jury was the result of the trial court’s failure to excuse certain or all of the jurors for cause.

2. That the jury erred in failing to award the uncontradicted amount of special damages incurred by the community.

3. That the verdict of the jury on damages was manifestly erroneous in that it failed to compensate plaintiff for all resulting harm, including but not limited to the damages from the second surgical procedure, loss of earning capacity and permanent disability.

The first issue to be addressed by this court is the question of the improperly constituted jury. Counsel for appellants argue that the jury was improperly constituted because of the bias of its members in their belief that should they award adequate damages to the plaintiff, their own insurance premiums would increase. Counsel for plaintiff preserved his objections for purpose of this appeal:

“The Court: Let the record reflect that during the course of voire dire questioning, counsel for plaintiff, Mr. D’Amico did timely in accordance with laws of rules of civil procedure make objections and the Court informed him that he would protect him on the record as to those objections being timely made, and so as not to prejudice him, it would be placed on the record outside the presence of the jury, and the jury has been removed from the courtroom at this particular time, and Mr. D’Amico is protected in this regard. He has challenged and would have challenged Mr. Langhoff for cause, and the Court denied that challenge, so he had to use a peremptory challenge to excuse Mr. Langhoff. He has also challenged specifically for cause Mrs. Joan Schnadelbach. Mr. D’Amico: And Mr. Peters.
The Court: And Mr. Peters, and challenges for cause were in response to questions that had been asked to these respective jurors with regard to the effect of a monetary award being made in this case on their own insurance rates or premiums that they may be faced with as a result thereof. Generally speaking, Mr. D’Ami-co has additionally challenged for cause because of their respective responses to the same question, all 13 jurors, and in each instance the specific request to each one of the 13 jurors and the general objection to the entire panel for cause has been by this Court denied.” (Tr. Vol. II, pp. 7-8)

Joan Schnadelbach testified that she owned four cars and that she believed her own insurance premiums would increase if plaintiffs were awarded adequate compensation. Schnadelbach was challenged for cause, which challenge was denied by the trial judge. As counsel had used all peremptory challenges, she was accepted over his objections.

John Peters was also accepted over counsel’s objection. Peters stated he believed that his own insurance rates would increase should adequate compensation be awarded. Peters is an insured of Cumis Insurance Society, the insurer of the defendant, Susan Lewis, so that Peters believed he had an indirect pecuniary interest in the outcome of the case.

Counsel for plaintiff was forced to use one of his peremptory challenges in order to have Charles H. Langhoff, Jr. dismissed from the panel. Mr. Langhoff admitted that he believed that his own premiums on his automobile insurance would rise if plaintiffs obtained a successful verdict. When counsel for plaintiff challenged him for cause, that challenge was denied by the trial judge.

Under the rule of law enunciated in DeSalvo v. Rizza, 272 So.2d 27 (La.App. 4th, 1972) by Redmann, J., as organ of the court, the above facts are properly within the scope of our judicial review:

“We conclude that in civil cases the improper overruling of a challenge for cause, requiring a party to exhaust his peremptory challenges before jury completion, also reviewable for purposes of determining whether the appellate court is obliged to treat the verdict with such deference as the manifest error rule affords.” At 29.

Finally, when Schnadelbach, Peters, and Langhoff stated that they believed that insurance premiums would rise if plaintiffs were successful, the entire panel of jurors acquiesced.

Our review of the pertinent case law and statutes reveals no controlling law on the specific question asked on voir dire which is presently at issue. A trial court’s ruling on the question “If the plaintiffs were adequately compensated or successful in this action, do you believe that insurance rates or your insurance rates and/or premiums would rise?” appears to be res nova to our law.

C.C.P. Art. 1765 provides that:

“A juror may be challenged for cause based upon any of the following:
* Hi * Sfc Sfc sk
(2) When the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial,

The jurors belief • that their own rates would rise if plaintiff were successful, indicates to this court that the jurors believed they possessed an indirect pecuniary interest in the outcome of the case, which would render them per se incapable of the impartiality required of a juror, as they believed themselves to be the indirect financial beneficiaries of a verdict against the plaintiff. While this viewpoint might not be prejudicial on the question of liability, it would clearly have a prejudicial effect on an award of damages. This inquiry at issue is of such a highly prejudicial nature that its effect would be to taint the entire rest of the proceedings. It is a credit to the strength of plaintiffs’ case that the jury rendered an award of $25,000.00 in their favor. We hold that the trial judge’s refusal of a challenge for cause, made against jurors who believe that if plaintiffs are adequately compensated or otherwise successful in their action, the jurors insurance rates and/or premiums would rise, is clearly reversible error.

Our review of the record of the instant appeal on the question of liability confirms the verdict of the jury as to that part. We cannot say that the jury was manifestly erroneous on its determination of facts and liability. On the question of quantum, however, we find that the jury clearly abused its discretion under Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979).

A consideration of the particular facts and circumstances of the injuries to this particular plaintiff coupled with a review of prior similar awards and their range leads this court to the inevitable conclusion that the jury clearly abused its discretion in damages awarded, which award must be increased by this court. Upon review we conclude that an award of $118,280.00 would be adequate compensation to the plaintiffs.

For the reason discussed above, we affirm the judgment of the trial court and amend it to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Lona Andry, wife of Melvin Andry, Jr., and against the defendant All State Insurance Co., to the extent of its policy limits, in the full sum of FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS, together with legal interest thereon from the date of judicial demand until paid, AS WELL AS against defendant Cumis Insurance Society, Inc. in the full sum of FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS, together with legal interest thereon from the date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Melvin Andry, Jr., and against defendant, Cu-mis Insurance Society, Inc. in the full sum of EIGHTEEN THOUSAND TWO HUNDRED EIGHTY AND NO/100 ($18,280.00) DOLLARS, together with legal interest thereon from the date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs be borne in equal amounts by defendants All State Insurance Co. and Cumis Insurance Society, Inc.

FURTHER AMENDED AND, AS AMENDED, AFFIRMED.

BOUTALL, J., concurs.

BOUTALL, Judge

concurring.

I agree with that portion of the decision which increases the amount awarded to the plaintiffs, but I do not agree that the jury was improperly constituted. Code of Civil Procedure, Article 1765 provides that a jur- or may be challenged for cause “(2) When the juror has formed an opinion in the ease or is not otherwise impartial, the cause of his bias being immaterial”. The record merely reflects that the questioned jurors believed that their insurance rates would increase if plaintiffs were awarded damages. That alone is insufficient to constitute the basis of a challenge of cause, it being necessary to show that this fact would cause him to be biased or not impartial. There is no showing that the jurors expressed an opinion that they could not render impartial justice despite this rise, and the trial judge, by his overruling of the challenge for cause, apparently believed that insufficient showing was made.

If a juror is excused for cause simply on the basis that he believes his insurance premiums would rise, it would become practically impossible to constitute a jury, and indeed no trial judge could try insurance cases.

In this case, the jury’s verdict could have perhaps been based upon a belief that the plaintiff was sufficiently cured by treatment of the first physician. I believe that such a conclusion is clearly wrong and manifestly erroneous because of the uncontra-dicted testimony of the later treating physicians that the continued complaints of pain and further treatment were all occasioned by the collision sued upon.

      . The amount of damages prayed for was later increased to $185,000.00 by supplemental and amended petition.

      . We note that it was plaintiffs counsel who asked the question that if plaintiffs recovered, did the jurors believe their own rates would rise, but we find that his actions were justified in light of the prior questions raised by the defense. The defense counsel opened the door by asking the jurors if they owned houses and/or cars, and were those assets insured or did they pay insurance premiums.

      . We are indebted to all counsel who submitted briefs on appeal for their excellent review of the case law on quantum, including but not limited to the following:

        Huval v. Sinitiere, 376 So.2d 548 (La.App.3rd, 1979), award of $100,000.00; Ferrero v. United States, 603 F.2d 510 (5th Cir., 1979) award of $375,000.00; Pisciotta v. Allstate Insurance Co., 385 So.2d 1176, La. 1979-award of $50,525.00; Spain v. Travelers Indemnity Co., 321 So.2d 10 (App.3rd, 1975)-award of $100,000.00; Moss v. Security National Insurance Co., 350 So.2d 247 (App.3rd, 1977)-award of $15,000.00; Derouen v. Southern Pacific Transport Co., 351 So.2d 300 (La.App.3rd, 1977)-award of $17,500.00; Polman v. Mohasco Corp., 371 So.2d 838 (La.App.4th, 1978)-award of $525,000.00.