text:
    Billy SMITH and Josephine Smith, Plaintiffs-Appellants, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY et al., Defendants-Appellees.
    No. 14133.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    Charles E. Joiner, A Professional Law Corp., West Monroe, for plaintiffs-appellants.
    Brown, Wicker, Lee & Barnes by Robert A. Lee, Monroe, for defendants-appellees.
    Before HALL, JONES and McCLEN-DON, JJ.
   McClendon, Judge.

This is a suit brought by the parents of a 16 year old boy who was killed by a bullet fired by a state trooper during a high speed chase. Defendants are the trooper and his employer, Louisiana Department of Public Safety. From an adverse ruling in the trial court, plaintiffs perfected this appeal. We affirm.

The trial court in its excellent written reasons for judgment clearly sets forth the facts, issues and applicable law, as well as the correct conclusions. We therefore adopt its opinion in its entirety:

“The following are the facts surrounding the death of the youth:

“Trooper Odom of the State Police was on routine patrol on 1-20 west of West Monroe at 1:15 A.M., when he detected on his radar a speeding vehicle and started pursuing it, notifying his headquarters.

“The car refused to stop and commenced evasive maneuvers. Despite its efforts, the trooper was able to get close enough to identify the license numbers which he relayed to his headquarters. He was informed that the vehicle was stolen.

“The maneuvers of that car were highly dangerous, including speeding at more than 100 mph, passing cars left and right, preventing Odom from pulling alongside, etc.

“Troop headquarters was kept informed by radio of this pursuit and other troopers began converging in order to assist in the arrest. One of these was Jerry Durham, the defendant.

“Finally, Odom was successful in getting the car stopped on the highway. The occupants refused to get out. As Odom approached the car, with his pistol drawn, the car started up and ran over Odom, throwing him up over the hood and top of the car. Odom, although injured, managed to get back to his car and radioed headquarters what had happened, that he was hurt and to send an ambulance; also that the car was headed east in the west bound lane of 1-20.

“Durham, who was headed west on 1-20, of course, heard all of this on the radio. He saw the car coming toward him and cut across the median to head back east in an effort to get ahead of the car.

“In the meantime Trooper Norris, who was east of this scene, attempted to block the highway, but was unsuccessful as the car went around him on the shoulder.

“Then ensued a high speed chase (100 mph) in an easterly direction in the west bound lane of 1-20 with cars and trucks being forced off the road to avoid collision.

“The car left the highway by cutting across the median to its right and taking the Thomas Road exit.

“By this time the State Police had notified other law enforcement agencies and both Sheriff’s deputies and West Monroe Police were converging on the scene from all directions.

“After leaving 1-20, the chase was entirely on two lane black-top and gravel roads in residential areas at high rates of speed.

“Shortly after they left 1-20, the voice of Odom came on the radio notifying his fellow troopers that the driver of the car should be regarded as highly dangerous.

“To describe the details of the ensuing chase is not necessary except to say that by this time at least six or eight police units were involved.

“During this chase, Durham was the lead police car. He drew his revolver and attempted to shoot the rear of the escaping car, firing all six rounds without any effect on the preceding car. Durham knew that there were other cars behind him, but he didn’t know how many because he was concentrating on his driving. Neither the Sheriff’s cars nor the West Monroe Police cars were on his radio frequency.

“When the car went through the intersection of Smith and Washington Streets, which is a major intersection with a flashing red light, without stopping, it was pursued by two troopers and a Sheriff’s car. The others broke off and proceeded north on Washington Street in an effort to head it off.

“The car turned right at the next intersection onto a gravel road and then right onto the Bethel Church road headed back to Washington Street.

“Durham pulled out his shotgun which was loaded with 00 buckshot and fired twice at the car. As the car turned left to go through the Bethel Church parking lot, Durham fired a third time. As later revealed, this last buckshot hit the car and one hit the driver.

“The car traversed the length of the parking lot — 300-400 ft. — jumped the ditch on the far side of the lot, and came to rest in the ditch on the opposite side of the street.

“The driver, the young son of plaintiffs, was shot in the head. His companion was not hurt.

“The legal question posed is whether under the circumstances Trooper Durham used an unreasonable or excessive amount of force in attempting to arrest young Smith, thereby making him and his employer liable in damages.

“Chief Justice Sanders, in Kyle v. City of New Orleans, 353 So.2d 969, 972 (1977) explained the law applicable:

“ ‘. . Louisiana Code of Criminal Procedure Article 220 provides:
“ ‘A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.’
“ ‘The use of force by law enforcement officers must be tested by the “reasonable force” standard established by this article. The test precludes “clearly inappropriate force.” LSA-C.Cr.P. Art. 220. Official Revision Comment (b).
“ ‘The use of force when necessary to make an arrest is a legitimate police function. But if the officers use unreasonable or excessive force, they and their employer are liable for any injuries which result. LSA-C.C. Art. 2320; Picou v. Terrebonne Parish Sheriff’s Office, La. App., 343 So.2d 306 (1977), writ refused La., 345 So.2d 506 (1977); Cheatham v. Lee, La.App., 277 So.2d 513 (1973); Bourque v. Lohr, La.App., 248 So.2d 901 (1971); Taylor v. City of Baton Rouge, La.App., 233 So.2d 325 (1970).
“ ‘Whether the force used is reasonable depends on the totality of the facts and circumstances in each case. A court must evaluate the officer’s actions against those of ordinary, prudent, and reasonable men placed in the same positions as the officers and with the same knowledge as the officers. Picou v. Terrebonne Sheriff's Office, supra; 6 A C.J.S. Assault and Battery § 97, p. 491. The degree of force employed is a factual issue. Picou v. Terrebonne Sheriff’s Office, supra; Castriotta v. Cronvich, La.App., 277 So.2d 744 (1973); Espenan v. Carona, La.App., 179 So. 119 (1938). As such, the trial court’s finding is entitled to great weight. Canter v. Koehring Co., La., 283 So.2d 716 (1973).
“ ‘Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment. See Picou v. Terrebonne Parish Sheriff’s Office, supra; Logan v. Swift, La.App., 327 So.2d 168 (1976); Crawford v. Maryland Casualty Co., La.App., 169 So.2d 612 (1964); Restatement (Second) of Torts, Volume 1, § 132, Comment C, p. 237 (1965); Comment, Tort Liability of Law Enforcement Officers; State Remedies, 29 La.L.Rev. 130.’ ”

“First of all, the Court concludes that the defendant, Trooper Durham, had reasonable cause to arrest the deceased. Reasonable cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify an average man of caution in the belief that a felony has been committed.

“Durham was not only witnessing a misdemeanor being committed in his presence, but was reliably informed that the arrestee was driving a stolen car and had attempted to kill, or at least severely injure, a fellow officer in resisting arrest. He could justifiably conclude, therefore, that he also faced the risk of personal injury.

“As further stated in the Kyle case:
“ ‘We recognize that police officers serve and protect the public at great risks to themselves. A felony arrest is often an emergency confrontation, requiring instantaneous, on the spot decisions. Hence, in these situations, police officers are not expected to act with the same clarity of judgment as others in the calm atmosphere of home or office.’ ”

“Under the circumstances herein, the Court feels that it was a reasonable act to try and stop the fleeing car by shooting at its rear.

“In the case of Sauls v. Hutto, 304 F.Supp. 124 (E.D.La.1969), relied upon by plaintiffs, Judge Rubin held that the officer therein had acted unlawfully in using deadly force in an attempt to apprehend the culprit. The facts of that case, while somewhat similar, in that the officer started out pursuing a car, are easily distinguishable. The driver abandoned the car and fled on foot and the pursuing officer fired directly at his person. At that time, there no longer was any danger to pedestrians or other drivers, as there had been while he was driving with the police in hot pursuit, and the death of the arrestee was not the result of bullets fired at the fleeing automobile.

“Likewise, the court found that the police had used unnecessary force in the Kyle case in shooting a shotgun blindly through an unlocked apartment door, knowing that someone was directly behind the door. The circumstances there were that the apartment exits were covered and there was little chance for the occupants to escape; they made no attack on the officers and the officers could have delayed the arrest without great risk.

“Plaintiff attempts to analogize the facts herein with those in the Kyle case arguing that the police had effectively blocked off the avenues of escape for young Smith and, therefore, there was no risk involved.

“Whether there was little chance for Smith to escape is not only a question of fact, but also a question of what the pursuing officers knew of the facts.

“Reference is made to the diagrams in evidence. Smith Street on which the deceased and all police units were traveling is an E-W street. All were travelling in a westerly direction.

“Washington Street is a N-S street.

“The boy crossed Washington at a high rate of speed followed by Durham in the lead car, another State Police car and a Deputy Sheriff.

“The West Monroe Police cars, 3 in number, turned North on Washington.

“The boy proceeded to the next intersection, West Heights Street, a gravel road, and turned right, or North, followed still by Durham and the other two cars.

“The chase then went to the next East-West street, Bethel Church Road, also gra-velled, and turned right, or back toward Washington Street. Durham and the LSP unit followed. The Sheriff’s car continued one block north to Riser School Road, an East-West Road, and turned right or back to Washington Street.

“The West Monroe units turned West onto the Riser School Road which paralleled the Bethel Church Road.

“The church faced Washington Street and occupied the block between the Bethel Church Road and the Riser School Road.

“The boy turned left into the church parking lot which was behind the church. At that time he was being pursued by two LSP units. On the Riser School Road at the North end of the parking lots was a Sheriff’s car approaching from the West and two West Monroe units approaching from the East. It was possible that he could get by those units, but not probable.

“The most probable escape route was for him to have continued to Washington Street.

“At this point arises a discrepancy in the testimony. The driver of one West Monroe unit testified that he placed his car across the Riser exit from the church parking lot. No other officer saw his car there. He also disagreed with the manner in which the shots were fired.

“The Court is convinced that the only shot which hit the boy was fired as he turned into the parking lot because the path of the other shot as they creased the top of the car was at a 40 degree angle. What is inexplicable is how the boy managed to drive his car across the parking lot at sufficient speed to jump the ditch at Riser Street and into the ditch on the north side of the street.

“Because of the speed at which he was driving, concentration on the car ahead of him and the dust flying from that car, Durham was unaware of the location of the other police units.

“Thus, the situation as presented to Durham was not nearly so clear-cut as was evident in the Kyle case. He did not know, or realize, that the escape route was blocked by other police units.

“Durham’s actions in this case can be compared to those of the officer in Graham v. Ogden, 157 So.2d 365 (La.App.3rd, 1963), who, in making an arrest under difficult circumstances, drew his pistol and fired into the floor in an attempt to overcome resistance to the arrest.

“The Court believes that Durham’s actions were clearly lawful and reasonable under the circumstances. The act of shooting at the rear of the car met the test of utility to a very strong degree. It was intended to enable Trooper Durham to perform his duty to make the arrest. The foreseeable risk of harm to the car’s occupants was relatively slight.”

The judgment is therefore affirmed. All costs are to be paid by appellants.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Richard D. PETERSON and Judy Lynn Peterson, Plaintiffs-Appellees, v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY, Defendant-Appellant.
    No. 14135.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.

      Emmons, Henry & Reeves by Douglas L. Stokes, Jr., Jonesboro, for defendant-appellant.
    Baker, Culpepper & Brunson by D. G. Brunson, Jonesboro, for plaintiffs-appellees.
    Before PRICE, JONES and McCLEN-DON, JJ.
   PRICE, Judge.

This action concerns a claim for benefits under a hospitalization and medical care policy issued by Louisiana Health Service and Indemnity Company, otherwise known as Blue Cross of Louisiana. The defendant-insurer refused payment contending the maternity and surgical benefits plaintiffs are claiming arose within an exclusionary period provided for in the policy. The trial court found for plaintiffs and awarded them judgment for $2,336.40 for medical expenses. We amend and affirm for the reasons assigned.

On this appeal defendant contends the trial court erred in finding ambiguity in the effective date of the contract and in failing to hold that the membership cards sent to plaintiffs which reflected an effective date of January 1, 1977, did not become part of the insurance contract. In any event defendant contends the amount awarded exceeds the schedule of benefits and the exclusion from coverage provided in the policy and the judgment should be reduced accordingly.

Plaintiffs, Mr. and Mrs. Richard Peterson, made application for the policy on December 15, 1976, and submitted their check in the amount of $179.73 for the first three months’ premium. The application was approved by defendant’s underwriter on December 16, 1976, and plaintiffs’ check was deposited in defendant’s account on December 20, 1976. Plaintiffs thereafter received a printed form policy describing the coverage afforded. They also received by mail two membership cards which show the insured’s name, the contract number, the “original effective date” and the “current effective date” of January 1, 1977.

The policy contains a provision excluding coverage for obstetrical charges arising within ten months of the “effective date” of the policy and for surgery performed on the reproductive organs within one year of the policy’s “effective date.” Mrs. Peterson gave birth to a child on October 23, 1977, and underwent a tubal ligation on the following day. Payment for the claims for medical expenses connected with these two events was denied by defendant on the basis that the obstetrical care was received within ten months of January 1, 1977, the alleged effective date of the policy and that the tubal ligation is surgery which took place within one year of the effective date.

The issue presented is what is the “effective date” of the plaintiffs’ policy — if it is January 1,1977, as shown only on the membership cards, then both the ten month obstetrical and the one year surgery exclusions would bar plaintiffs’ claim completely. If the effective date is prior to December 23, 1976, then plaintiffs are entitled to at least the benefits for obstetrical medical care provided by the policy.

The trial court found there was an ambiguity between the reference to “contract date” used in the application, and the term “current effective date” used in the membership cards sent to plaintiffs. The court also found the membership cards should not be considered as they were not shown to have been attached to the policy which was sent to plaintiffs. The court further found that there was no intent on the part of plaintiffs in this instance to perpetrate a fraud on the insurer as the evidence shows Mrs. Peterson did not become pregnant until some time after the effective date claimed by defendant. On these findings the court found the exclusionary clause should be construed against defendant and awarded plaintiffs’ judgment for the amount claimed.

We do not find it necessary to address all of the arguments advanced by defendant on this appeal. If the membership cards cannot be considered as part of the insurance contract then there is no question that the effective date of the policy is uncertain and must be construed in a light most favorable to the insured.

Defendant contends that the cards must be considered part of the policy or otherwise plaintiff has nothing but the printed form policy which contains no personalized information designating plaintiffs as a named insured. Therefore defendant contends plaintiffs have not proven the existence of a policy as a primary basis for their claim. This argument can be answered by the admissions of defendant’s pleading which do not deny plaintiffs were insured as alleged by them in their petition.

Defendant on the other hand relies on the information reflected on the membership cards as a matter of defense and it is therefore its burden to show the cards were attached to the policy at the time it was forwarded to plaintiffs in order for the cards to be considered a part thereof.

Although the cards were introduced into evidence by defendant, the record in this instance is void of any evidence on the part of defendant showing that the cards were attached to or even mailed along with the printed form policy which was sent to plaintiffs. There is no admission by plaintiffs in their testimony that they were received at the same time. Defendant has not under these circumstances satisfied the burden of showing the cards were an attachment to the policy and these documents should not be considered in determining the effective date of plaintiffs’ coverage. The general provisions of the insurance code, specifically La.R.S. 22:624, subd. B(4) requires the policy to state the time at which the insurance takes effect and the period during which the insurance is to continue.

We do not find the case of Daniel v. Blue Cross of La., 358 So.2d 345 (La.App. 4th Cir. 1978), relied on by defendant, applicable in view of our finding that the membership cards have not in this instance been proven to have been attached to the policy.

Policies of insurance take effect from the date of issuance unless the contract provides for some other express specified date or time. New Jersey Life Insur ance Co. v. Henri Petetin, Inc., 311 So.2d 454 (La.1975).

Because the policy mailed to the plaintiffs had no designated effective date, the policy became effective on either December 16, 1976, or December 20, 1976. Either date would entitle plaintiffs to maternity benefits provided for in the policy, but the tubal ligation surgery would clearly be excluded under the one year exclusionary period of the policy.

The trial court rendered judgment in favor of the plaintiffs and against the defendant in the amount of $2,336.40. The principal amount of that judgment was made up of $600 paid to the attending physician and a hospital bill in the amount of $1,736.40.

The doctor testified that his $600 fee was composed of a $350 charge for the delivery of the infant and a $250 charge for a tubal ligation. As already determined the tubal ligation procedure would be excluded under the policy. Therefore, the trial judge erred in awarding plaintiffs the surgical charge of $250. The schedule of benefits contained in the policy discloses that the maximum amount payable for “total obstetrical care” is $205, reducing the $600 award to $205.

With regard to the hospital bill, part of which is made up of a $62 a day room charge totaling $310, we find appellees’ policy rider No. 22XX9713, a part of the insurance contract, provides for a room allowance of only $30 a day. Therefore the maximum award for room costs is $150. This reduces the hospital benefits from $1,736.40 to $1,576.40.

The judgment is therefore amended to reduce the amount awarded plaintiffs to the sum of $1,781.40 and as amended is affirmed at appellant’s costs.

      . It is admitted by defendant that appellants were not furnished a copy of the application at the time it was submitted nor was a copy of the application attached to the printed form policy mailed to plaintiffs.


author: JONES, Judge.

text:
    SUCCESSION of Clarence L. BATTON, Mildred Taylor Batton et al., Plaintiffs in Rule and Appellees, v. Earline Batton PRINCE et al., Defendants in Rule and Appellants.
    No. 14140.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.

      Meadors & Meadors by George H. Mea-dors, Homer, for plaintiffs in rule and ap-pellees.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendants in rule and appellants.
    Before PRICE, JONES and McCLEN-DON, JJ.
   JONES, Judge.

Mildred Batton, wife and testamentary executrix of the decedent (Clarence Batton, Sr.), and Mildred Batton Wright, Barbara Sue Batton Murray, and Clarence Batton, Jr., three of decedent’s five children, filed a rule to show cause why Sherman Allen should not be appointed successor trustee to five testamentary trusts set up by decedent for his five children. Ruled into court were the remaining two children, Louise Batton Reeve and Earline Batton Prince, who opposed Allen’s appointment as trustee. The trial court appointed plaintiffs’ nominee, Sherman Allen, as successor trustee. Defendants appeal this decision, re-asserting their original objections to Allen and denominating Allen’s appointment an abuse of the trial court’s discretion.

The testator died leaving a valid testament in which he bequeathed a 120 acre tract of land and a xh interest in all his separate property to his wife, and confirmed her usufruct over the community property. The decedent then set up five testamentary trusts, one for each of his five children. All remaining property comprises the corpus of the trust. The corpus primarily consists of approximately 500 acres of land used for growing timber and raising cattle. It is a “family-type farm operation”. Decedent named as co-trustees Clarence Batton, Jr. and the Homer National Bank. When the Homer National Bank declined to serve as trustee, plaintiffs nominated Sherman Allen as successor trustee.

Appellants state their objections to Allen to be the following: (1) he is a non-resident of Louisiana, (2) he is 64 years old, (3) he does not have the educational or business background proper for a qualified trustee, and (4) the personal relationship between Clarence Jr. and Allen is such that Allen would not exercise an independent judgment in the performance of his duties as trustee. Opponents contend that since the decedent appointed a corporate trustee, the court should replace the Homer National Bank with a corporate trustee. They alternatively contend they should be appointed co-trustees of their respective trusts.

Since the Second Judicial District Court for Claiborne Parish has jurisdiction over decedent’s succession, it is the “proper court” under LRS 9:1725 and LRS 9:1785 to appoint a successor trustee. Neither the will nor the Trust Code provides for a method of appointing a successor trustee. Defendants object to plaintiffs’ use of a summary proceeding to determine whether Allen should be appointed trustee and contend that such use puts an unreasonable burden upon them. We find this contention without merit because the method here used was fair and equitable as it provided proponents and opponents of the proposed trustee an opportunity to assert their respective positions to the court.

The qualifications of a trustee are set forth in LRS 9:1783, which reads as follows:

“A trustee must be a natural person enjoying full capacity to contract who is a citizen of the United States, or a Louisiana bank or trust company organized under the laws of the United States domiciled in this state.”

Allen clearly meets these requirements because he is a U. S. citizen with full capacity to contract. Moreover, despite defendants’ objections, we find the trial court did not abuse its discretion in appointing Allen and agree that Allen is eminently qualified to serve as trustee.

The evidence reveals that Allen holds a highly responsible position as Terminal Superintendent with Texas Eastern Transmission Corp. He supervises twenty people and approximately $500 million worth of assets (petroleum products and equipment). He has been employed by Texas Eastern for 29 years and has held this particular position for 3 years. The cash deposits, savings bonds and shares of bank stock present in the trust corpus which are subject to a usufruct in favor of decedent’s widow do not present such business complexities that a man of Allen’s experience could not readily and intelligently administer these assets. Two-thirds of the 500 acres of land in the corpus of the trust is in timber and one-third of it is in pasture. There is certainly nothing in the management of this land that a man of Allen’s background cannot administer. Allen is extremely familiar with the land, since, as decedent’s brother-in-law, he walked over the property “hundreds of times”. He often discussed the raising of cattle and timber on the land with decedent. The evidence established that Allen has some business acumen as he has owned and sold several pieces of real property and the home he now owns is paid for. Although he lives in Arkansas, Allen’s home is only 10 miles from the Louisiana border and 35 miles from Homer, where the land is located. There is therefore no obstacle to Allen’s easily getting to the property and no great expense involved for the trusts. Allen is well acquainted with all the beneficiaries of the trust, one of whom is his co-trustee, and with the widow who owns an undivided interest in and has a usufruct over much of the property in the corpus of the trust. These are factors which will better equip Allen to administer the trust property and carry out the intentions of the settlor of the trust as reflected in the will. There is no evidence that Allen is in poor health or that his age otherwise incapacitates him in any way. The bare fact that his chronological age is 64 years in no way disqualifies him from serving as trustee. We note that one of the principal candidates for the Republican nomination for President of the United States is substantially older than Allen.

Allen meets the minimal qualifications of a trustee required by LRS 9:1783, and under the evidence, he is shown to be a much more than adequate trustee.

The appellants contend that because Allen is a nonresident, service of process upon him could not be had in the event suit against him should be necessary. Allen testified that if he were appointed trustee, he would appoint a Louisiana agent for service of process. We also note that the Long-Arm Statute would be available for the purpose of service of process in the event Allen did not appoint a Louisiana agent for service of process. Under these circumstances this objection of opponents is non-meritorious.

Defendants alternatively contend that if a corporate trustee is not appointed successor trustee to the Homer National Bank that there should be separate co-trustees appointed for their two trusts and that each of them should be appointed co-trustee for their respective trusts. If this contention of the opponents should prevail there would be four trustees, plus the decedent’s surviving widow, making decisions with regard to the administration of much of the acreage included in the corpus of the trust. We find (and the trial court apparently so believed) that having only two co-trustees will facilitate the better administration of the trust estate. The trial court did not abuse its discretion in appointing Allen as successor co-trustee.

Defendants also argue that Allen and Clarence, Jr. should be required to post bond under LRS 9:2172. In his will the decedent exempted Clarence, Jr. and the Homer National Bank, and all their successors in office, from posting bond. In light of this exemption and the total lack of evidence of irresponsibility on the part of either Allen or Clarence, Jr., we cannot say the trial court abused its great discretion in not requiring Clarence, Jr. or Allen to provide a bond.

Defendants argue they should not have been cast for costs. However, assessment of costs lies within the great discretion of the trial court (LSA-C.C.P. art. 1920) and unless there is an abuse of that discretion the assessment of costs is not subject to reversal. Appellants did lose the case, and the trial court did not abuse its discretion when it assessed appellants with the cost.

The judgment is AFFIRMED at appellants’ cost.

      . LRS 9:1725(5) — “Except when the context clearly indicates otherwise, as used in this Code:

        ‘Proper court’ in the case of a testamentary trust means the district court having jurisdiction of the settlor’s succession.”

      . LRS 9:1785 — “An original trustee, an alternate trustee, or a successor trustee may be designated in the trust instrument, but neither failure of the trust instrument to so provide nor disqualification or removal of the trustee for any reason, incompetence or unwillingness to act of the person so designated or chosen shall invalidate the trust. In such a case, the proper court shall appoint one or more trustees.”

      . LRS 9:2172—“On the application of any interested party, the proper court may compel a trustee to furnish security adequate to protect the interests of a beneficiary even if the trustee is not otherwise required to furnish security.”

      . LSA -C.C.P. art. 1920—“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”


author: McCLENDON, Judge.

text:
    Paul Henry KIDD, Plaintiff-Appellee, v. James L. FORTENBERRY et al., Defendants-Appellants.
    No. 14141.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.

      Davenport, Files, Kelly, Marsh & Graham by Thos. W. Davenport, Jr., Monroe, for defendants-appellants.
    Paul Henry Kidd, A Professional Corp., by Paul Henry Kidd, Monroe, for plaintiff-appellee.
    Before PRICE, JONES and McCLEN-DON, JJ.
   McCLENDON, Judge.

In this case the trial court granted a new trial as to a portion of a default judgment and denied it as to other parts. This appeal was taken from that denial. Denial of a motion for new trial is not a final judgment from which an appeal may be taken, consequently, this appeal must be dismissed.

Plaintiff sued defendant Fortenberry and his liability insurer for damages arising out of an automobile collision allegedly caused by the negligence of defendant Fortenber-ry. Upon failure of either defendant to answer, a default was entered and, in due course, confirmed. Based upon plaintiff’s testimony, certain auto repair bills, ambulance bills, and hospital bills filed in evidence, the trial court found defendant For-tenberry negligent and granted judgment against him and his insurer in the amount of $11,796.10, made up, as shown by the transcript of evidence, of $8,000.00 for total loss of plaintiff’s car, $3,500.00 for personal injuries, and $296.10 special damages.

Defendants filed a belated answer and at the same time a motion for new trial, alleging the judgment to be contrary to the law and the evidence.

After consideration of this motion and memoranda filed in connection therewith, the trial court concluded that defendant Southern Farm Bureau Casualty Insurance Company was entitled to a new trial because there was no competent evidence in the record to establish the contract of insurance. It further granted defendant Forten-berry a new trial on the issues of the damage to plaintiff’s automobile and the medical specials, but denied new trial on the questions of liability and the personal injury award.

Granting of a partial new trial is permitted by the Louisiana Code of Civil Procedure Article 1971, which provides as follows:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

We base our dismissal of this appeal on General Motors Acceptance Corporation v. Deep South Pest Control, Inc., 247 La. 625, 173 So.2d 190 (1965), wherein the Louisiana Supreme Court held that a judgment denying a motion for new trial is neither a final judgment nor an interlocutory judgment which causes irreparable harm, citing State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481.

We are aware of those cases wherein the Louisiana Supreme Court has held that, where the motion for appeal refers to a judgment by date and that judgment is one denying a motion for new trial, but the appellant exhibits the clear intention (from his brief and argument) to appeal instead from an adverse judgment on the merits, then the appeal should be considered. Fruehauf Trailer Co. v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Smith v. Hartford Accident & Indemnity Co., 254 La. 341, 223 So.2d 826 (1969).

However, in the present case it is quite clear from appellants’ brief that they have appealed specifically from that judgment denying (in part) their motion for new trial.

The fact that this was a partial denial only does not, in our opinion, in any way alter the situation. In this connection we note that the trial court did not order that portion of the default judgment left intact and not subject to new trial to be held in abeyance as permitted by the last sentence in La.C.C.P. Art. 1971, supra. However, this sentence has been construed to be mandatory without the necessity of a specific order in such cases. Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973).

For these reasons this appeal is dismissed at appellants’ cost.


text:
    Lynn CHOATE, Plaintiff-Appellant, v. LOUISIANA FARM BUREAU MUTUAL INSURANCE CO. et al., Defendants-Appellees.
    No. 14142.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.
    Charles W. Robinson, West Monroe, for plaintiff-appellant.
    Davenport, Files, Kelly, Marsh & Graham by Thos. W. Davenport, Jr., Monroe, for defendants-appellees.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   McCLENDON, Judge.

Plaintiff appealed a judgment rejecting his claim for damages arising out of an automobile accident. Defendant Louisiana Farm Bureau Mutual Insurance Company, insurer of the vehicle driven by defendant Mary F. Clement, answered the appeal seeking reversal of that portion of the trial court judgment rejecting its reconventional demand. We affirm.

This accident involved two vehicles, a 1968 Chevrolet van owned and driven by plaintiff and occupied by two other male passengers, and a 1976 Chrysler Cordoba owned by defendant John Crymes, driven by defendant Mary F. Clement with the owner’s consent, insured by defendant Louisiana Farm Bureau Mutual Insurance Company, and occupied by defendant Mary Clement’s two small children, ages six and three years, as passengers.

Both vehicles were northbound on Louisiana Highway No. 138, a two-lane blacktopped highway. The accident occurred at about 3:10 p. m. on October 17, 1977, a clear, dry day, as the Chrysler was overtaking the van to pass it and the van was commencing a left turn into a dirt road leading to a drilling rig where plaintiff worked as a roughneck.

Plaintiff’s demands against defendant John Crymes were dismissed with prejudice prior to trial.

Counsel stipulated as to the amount of damages to both vehicles. $1850.00 was stipulated as the property damage to the van and $1882.94 as the property damage to the Chrysler. Because of a $100 deductible, the reconventional demand by Louisiana Farm Bureau under its subrogation was $1782.94.

The testimony of plaintiff and his passengers is in conflict with that of defendant Mary Clement in many particulars, but it was established that the Chrysler had been following the van for a number of miles, possibly as many as twelve, and that the highway was generally winding with a limited number of safe passing areas.

Mrs. Clement testified that the van was being driven in a rather erratic manner, sometimes slowing without apparent reason, and that she had attempted to pass on two other occasions prior to the accident. The first time plaintiff moved across the center line and the second time he speeded up so that she gave up on each of these attempts.

Plaintiff and his passengers all testified they were aware of the Chrysler behind them, but all denied seeing any attempt to pass or any action on plaintiff’s part to prevent such attempts.

The testimony concerning the events immediately prior to the collision itself are similarly conflicting. Plaintiff and his companions relate how plaintiff looked into his outside rearview mirror and gave both a left turn blinker signal as well as an arm signal, at least 150 feet from the dirt road into which he intended to turn left. Defendant Clement, on the other hand, saw no turn signal, electric or manual, and no brake lights come on when the van suddenly began to slow down after she had begun to pass. She testified she had no idea what plaintiff was about to do, so she applied her brakes immediately when she saw the van begin to slow.

All of this took place just north of a curve on a straight stretch of road with 0.4 of a mile of passing area between double yellow markings. Plaintiff testified that he had to slow to about 30 miles per hour to negotiate this curve. His passenger Cupit testified that plaintiff was going about 45 mph when he came out of the curve and slowed to about 30 mph to make the left turn. Plaintiff testified that when he put on his blinker and gave his arm signal, he looked back and defendant Clement was “like coming out of the curve.” At that point he said he was 150 to 200 feet from the dirt road. Van passenger Cupit testified plaintiff was 150 feet from the turn-off at this time.

In any event, the evidence established that it was 436 feet from the north end of the double yellow no-passing zone coming out of the curve to the dirt turn-off road. If defendant Clement was coming out of the curve when plaintiff was 150 feet to 200 feet from this turn-off, this gave plaintiff a 236 to 286 foot lead on defendant and ample opportunity for defendant to start accelerating as she reached the end of the double yellow line to attain the speed of about 50 mph which she testified she had reached when she saw plaintiff’s van begin to slow down. She then forcibly applied her brakes, because she did not know what he was going to do next in view of his past performance that day.

The physical evidence of skid marks establishes that when defendant’s brakes locked the wheels, the left side of her vehicle was already in the southbound lane and continued to skid at an angle farther into that lane some 64 feet until impact, at which time her vehicle was wholly in the left or southbound lane.

Of particular importance here is plaintiff’s testimony that after he saw the Chrysler coming out of the curve (when he was 150 to 200 feet from his turn-off) he did not see it again until it hit him. (Tr. pg. 77, 1. 15 et seq.)

We agree with the trial court’s finding that plaintiff failed to observe what he should have observed and began his left turn before that turn could be made with reasonable certainty of its safety.

Louisiana Revised Statutes 32:104; Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Mullins v. Travelers Insurance Co., 324 So.2d 613 (La.App. 2d Cir. 1975); Bamburg v. Nelson, 313 So.2d 872 (La.App. 2d Cir. 1975); Johnston v. Boston, 293 So.2d 655 (La.App. 2d Cir. 1974).

Even assuming that plaintiff gave the left turn signals he claimed he did and that his blinker light was working, this did not give him the right of way to continue his left turn, but he was bound to continue to observe defendant Clement. (Johnston, supra).

Had plaintiff done so he certainly would have seen defendant increasing her speed and beginning to move across the center line to pass. His failure to continue to observe and to begin his left turn without doing so was negligence which was the proximate cause of this accident.

Counsel for appellant argued strenuously in brief that the physical evidence conclusively established sole negligence on defendant Clement’s part. In support of this he prepared a very elaborate scale drawing (Diagram A) of that section of the highway between the north end of the curve and the scene of the collision at the dirt turn-off road. On this section he sketched a series of vehicles, which apparently are intended to represent the Chrysler driven by defendant Clement at various time and distance intervals prior to the first visible skid marks found to have been made by that vehicle. All of this, as we understood it, was to show that rather than having begun her passing maneuver when she came out of the curve as defendant testified, she did not begin it until she was much closer to impact point.

We find that this diagram is based upon an unwarranted assumption, i. e., that defendant Clement came out of this curve, which plaintiff testified could not be negotiated at 50 mph and in which he had slowed to 30 mph, at a speed of 50 mph and maintained that constant speed to point of impact. It further ignores plaintiff’s own testimony that when he was 150 to 200 feet from his turn-off road, he saw defendant Clement “like coming out of the curve” behind him. It also assumes that the passing maneuver requires moving into the passing lane before acceleration is begun to attain passing speed. Defendant Clement’s estimates of her distance behind plaintiff’s van (V2 to 3 car lengths) at various times before this curve and in this curve were obviously very poor in the light of the other evidence on this subject. In each instance she was clearly confused as to what constituted a “car length”. For these reasons we are not persuaded by Diagram A that the physical facts establish defendant Clement’s exclusive negligence and certainly does not overcome our finding of negligence on plaintiff’s part as set out above herein.

The trial court made its ruling rejecting defendant Louisiana Farm Bureau’s reconventional demand in a supplemental opinion filed some two weeks after the first, noting therein its failure to rule on this aspect of the case. That opinion contains no factual basis for its conclusion of contributory negligence on the part of defendant Clement which would preclude recovery on its subrogation claim by defendant Louisiana Farm Bureau, however, we must assume that this supplemental opinion had a factual basis not inconsistent with the ruling on the main demand. We find that the trial court would have been justified in finding that plaintiff did in fact signal a left turn as plaintiff and his two companions testified, and that failure of defendant Clement to see that signal amounted to contributory negligence on her part.

We, therefore, affirm the trial court’s judgment on the main demand at appellant Lynn Choate’s cost; and on the reconven-tional demand at defendant Louisiana Farm Bureau Mutual Insurance Company’s cost.


author: McClendon, judge.

text:
    ALLENBERG COTTON COMPANY, INC., Plaintiff-Appellant, v. Ed STACY, Defendant-Appellee.
    No. 14143.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    Hamilton, Carroll & Miller by Joseph H. LeBeau, III, Oak Grove, for plaintiff-appellant.
    Glen W. Strong, Oak Grove, for defendant-appellee.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   McClendon, judge.

Plaintiff, a Tennessee corporation, appeals from a trial court judgment rejecting its demand to make executory in Louisiana a judgment obtained in Tennessee against a Louisiana domiciliary. We reverse.

In January, 1976, plaintiff filed suit in the Chancery Court of Shelby County, Tennessee, against the defendant, a resident of Oak .Grove, Louisiana, for breach of contract. Defendant was mailed a certified copy of the summons and complaint, apparently in compliance with the Tennessee “long-arm” statute, a copy of which is not in the record.

Defendant, in proper person, filed an exception to the jurisdiction of the Tennessee court in which he stated he had never transacted any business in the State of Tennessee, never entered into any contract, or any negotiable instruments in that state, and all negotiations concerning the contract sued upon were done in the State of Louisiana. The exception further cited a federal district court case allegedly holding that identical contracts fall solely under the jurisdiction of the State of Louisiana. Finally, defendant stated he was financially unable to hire an attorney in Tennessee, or to defend this suit in that state, and therefore prayed that his exception to the jurisdiction of the court be sustained.

Almost a year later the exception to jurisdiction was overruled. Defendant was ordered to file his answer within thirty days. Defendant failed to file his answer and default judgment was rendered against him. No appeal was taken from this judgment.

Plaintiff then filed the present suit in which it sought to have the Tennessee judgment recognized and made executory in Louisiana under Louisiana Code of Civil Procedure Article 2541. Defendant answered contending that the Tennessee judgment was not entitled to full faith and credit in Louisiana, because the Tennessee court lacked jurisdiction over him and he did not submit to the jurisdiction of that court.

At trial it was noted that, although the Tennessee court had found it had jurisdiction over the defendant, that issue was not actively litigated in that defendant did not make an appearance in Tennessee and actively defend his position. The court therefore allowed defendant to collaterally attack the Tennessee judgment.

The parties then stipulated that the only contacts plaintiff had with defendant were those contained in the contract, defendant had no contact with the State of Tennessee other than that contract, and that contract was signed in Louisiana and forwarded to Tennessee for acceptance.

The trial court dismissed plaintiff’s suit based on a finding that defendant did not have the “minimum contact” with Tennessee as would give that state in personam jurisdiction under the requirement that minimum contacts be such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

The issue before this court is whether the trial judge erred in failing to give full faith and credit to the Tennessee judgment and in permitting a collateral attack upon the jurisdiction of that Tennessee court in this case. We find that he did.

We find no quotation from or citation of Tennessee law in the trial court’s written reasons for judgment and we assume he was referred to no law of that state by counsel.

There is in the record a complete copy of the Tennessee proceedings from which it would appear that Defendant Stacy was served in that suit under the provisions of a Long-Arm Statute similar to our own in Louisiana. (Tr. pp. 22-27)

Thereafter, as mentioned above herein, he filed in proper person an exception to the jurisdiction of the Tennessee court, but did nothing further.

After that exception had been filed for nearly a year (February 13,1976 to January 25, 1977), the Tennessee court entered an order overruling it but granting leave of court “for the issues raised therein to be raised at the trial of the cause”, thus granting appellee a second opportunity to present opposition to that court’s jurisdiction. That same order directed Stacy to file his answer within 30 days. Instead, he did nothing even after being mailed a copy of a “Motion for Default Judgment” (Tr. p. 31), wherein the certificate of service shows that both he and Glen W. Strong, his “former attorney” of Oak Grove, Louisiana were notified that the motion would be brought on for hearing at 10:00 a. m., Friday, March 25, 1977.

Further in connection with the Tennessee hearing on the default judgment, there is in the record another affidavit by counsel for plaintiff Allenberg Cotton Company, Inc., by which it is shown that plaintiff’s attorney mailed defendant Ed Stacy, by certified mail on April 1,1977, a copy of a Motion for Default Judgment which contained notice of an even later hearing date of April 15, 1977. (Tr. p. 34)

The default judgment, which forms the basis for the present suit, was finally signed by the Tennessee Chancery Court on April 18, 1977 and contains the statement that defendant Stacy had notice by registered mail of plaintiff’s application for default judgment. (Tr. p. 35)

In its order overruling defendant Stacy’s exception the Tennessee court made the following statement:

“Defendant’s Exception to Jurisdiction of This Court was heard on January 21, 1977, and upon the hearing and the record in this cause, . . . .” (Tr. pg. 30)

Thus we find from the record that there was a hearing and based upon that hearing and the record the Tennessee court found that it did have jurisdiction over the nonresident Ed Stacy, but still gave him leave to pursue this issue further on the trial of the case.

From the leading U.S. Supreme Court cases on the subject, including Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), has evolved the general rule that a judgment of the court of one state is entitled to full faith and credit in the court of another state — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

In Durfee the court reviewed the development of this general rule and quoted from numerous of its decisions. Some of these cases involved title to property (as did Durfee), while others involved recognition of a foreign divorce decree, but the court found that the principles of res judicata apply to questions of jurisdiction over both subject matter and the parties. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85.

Of particular significance is a quotation by the court in Durfee from Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104:

“We see no reason why a court, in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation. . Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first.” (Emphasis ours)

Our own Louisiana Supreme Court in Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966), has held it is not required that the question of jurisdiction be actually litigated in the rendering state, but only that the opportunity be afforded to litigate the jurisdictional question to cut off collateral attack on that ground in Louisiana.

We reason from this that appellee herein, having raised the issue of the Tennessee court’s jurisdiction by his exception, was afforded every opportunity by that court to litigate that issue. The Tennessee court could not force him to present evidence or his views on the law, but on the other hand neither could it hold this matter in a state of suspension forever merely because of the pending exception. That suit was filed by appellant on January 28, 1976, and, as pointed out above, judgment by default was not signed until April 18, 1977.

For these reasons the judgment appealed from herein is reversed at appellee’s cost.

It is therefore ordered that that certain judgment in the matter styled “Allenberg Cotton Company, Inc. v. Ed Stacy”, dated April 18, 1977, Docket No. 82004-2, in the Chancery Court of the County of Shelby, State of Tennessee, rendered in favor of plaintiff and against defendant, in the principal sum of Five Thousand, Six Hundred Thirty-seven and 50/100 ($5,637.50) Dollars, plus court costs, be entitled to full faith and credit and made executory in West Carroll Parish, Louisiana.


author: MARVIN, Judge.

text:
    Juanita B. ELLIOTT, Plaintiff-Appellee, v. Annie B. LEWIS, Defendant-Appellant.
    No. 14144.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    Gordon E. Rountree, Shreveport, for defendant-appellant.
    James B. Wells & Associates by James B. Wells, Bossier City, for plaintiff-appellee.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   MARVIN, Judge.

Defendant devolutively appeals from a default judgment which was confirmed against her in a suit for property damage, personal injury, and related expenses arising out of a motor vehicle collision.

The record contains an automobile repairman’s paid invoice, a damage appraisal estimate, partly paid invoices and a medical report from an orthopedist, receipts marked paid by two other doctors, a hospital bill, a police report of the accident, and a paid invoice from a rental company for a wheelchair. The record does not contain a transcript or a note of the testimonial evidence which was adduced on the confirmation of default, but the judgment recites that evidence was adduced and that the law and evidence was in favor of the plaintiff.

When there is no transcript or narrative of the evidence of parole testimony adduced on a confirmation of a default and the judgment effectively recites that evidence has been adduced and is in favor of the plaintiff, the judgment is presumed to have been rendered on sufficient supporting evidence and to be correct. Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976). In these circumstances defendant cannot complain on appeal of the insufficiency or inadmissibility of one or more written items which are contained in the record.

At appellant’s cost, judgment is AFFIRMED.


author: HALL, Judge.

text:
    O. T. McCOY, Plaintiff-Appellee, v. Lloyd TOMS, Defendant-Appellant.
    No. 14147.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.

      Joel M. Sermons, Shreveport, for defendant-appellant.
    Goff, Caskey, Davis & Fallin by H. Russell Davis, Arcadia, for plaintiff-appellee.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   HALL, Judge.

Plaintiff, O. T. McCoy, claiming to be the record owner of an approximately 2lA acre tract of land on Lake Bistineau in Bienville Parish, Louisiana, brought this petitory action against defendant, Lloyd Toms, who was in possession of the property. Defendant answered denying plaintiff’s ownership and alleging defendant’s possession of the property. Defendant also filed a reconven-tional demand claiming ownership of the property by virtue of 30-years acquisitive prescription, alleging that he and a previous possessor from whom he had purchased the property had been in possession of the property for more than 30 years. Alternatively, defendant prayed that plaintiff be ordered to pay him the value of the improvements made on the property by defendant, should the court declare the property to be owned by the plaintiff.

After trial the district court, in a well-considered, written opinion, held that plaintiff had established record title to the property, that defendant and his predecessors had been in possession of the property for more than 30 years, that the defendant and his predecessors did not possess under deeds translative of title to any portion of the subject property, that the possession of defendant and his predecessors was not “as owner” and that defendant, who had been in possession for approximately 24 years, was not entitled to tack the possession of his predecessors in possession in order to acquire by 30 years acquisitive prescription. The district court further held that the defendant’s possession was in legal bad faith and that plaintiff was entitled to elect whether to keep the improvements situated on the property and pay the owner their value and price of workmanship or to require their removal. Judgment was rendered recognizing plaintiff as the owner of the property. The judgment contained no provisions relative to the improvements. Defendant appealed. For reasons expressed in the district court’s opinion and in the opinion of this court, the judgment is modified relative to the improvements issue, and as modified, is affirmed.

On appeal defendant concedes that plaintiff is the record owner of the property but contends that the trial court erred in not finding that defendant is the owner of the property by virtue of 30-years acquisitive prescription and, specifically, that the trial court erred in finding that the defendant’s possession was precarious rather than as owner, that defendant was not entitled to tack the possession of his predecessors, and that defendant was a possessor in legal bad faith and not entitled to payment for the improvements on the property.

The property in dispute adjoins Lake Bis-tineau and all persons concerned with the property believed it to be owned by the State of Louisiana until a survey was made about two years before this suit was filed. The survey, revealed that the property is a part of Government Lot 7 which was owned by the Allums family from whom plaintiff acquired title.

In the 1940’s Joe Lewis built a camp on the property. In January 1950, on a cash sale deed form, Lewis conveyed to Paul J. McGowen and E. E. McGowen “That Certain Camp Site, situated on the State Owned Land”, acquired by him in 1944, and certain improvements situated thereon consisting of a boathouse and walk, fishing skiff, duck blind, three-room cinder block two-story house, furnishings, and a frame storeroom. The conveyance described the location of the property and stated that it is the intention of this sale to convey the house and furnishings, etc., “and it is understood that they are situated on Leased State Land.” In June 1954 Paul J. McGowen conveyed his interest to E. E. McGowen by an almost identical conveyance which recited that the campsite was situated on state owned land. In July 1954 E. E. McGowen executed an almost identical conveyance to the defendant, Lloyd Toms, the instrument reciting that the campsite was situated on state owned land.

The evidence established that the property was continuously and exclusively possessed by Lewis, the McGowens, and Toms from 1944 to the time of filing suit in 1978, a period of more than 30 years, being used first as a private fishing camp and then for many years as a commercial fishing camp and as Toms’ residence. The property was fenced, at least from the early 1950’s.

At trial it was conceded that the deeds did not purport to convey title to the land on which the campsite and improvements were situated. The improvements on the property were assessed to Toms on the tax rolls. Toms testified that until the property was surveyed and he was contacted by plaintiff’s lawyer, he believed that the land was owned by the state, and that he did not own the land. Toms further testified that he had told people this was state property and he acknowledged that the state could have moved him off the property but he did not think the state would bother him because most of the camps around Lake Bisti-neau were on state property.

The record also establishes that neither plaintiff nor his predecessors in title ever exercised any possession of or made any overt claim to the property prior to the time the survey was made about two years before the suit was filed.

The primary and determinative issue in this case is whether the defendant, and his predecessors if he is allowed to tack the possession of his predecessors to his own, possessed the property as owner or under the title of owner, a prerequisite established by the Civil Code for acquisition of immova-bles by acquisitive prescription of 30 years. Particularly pertinent to this issue are the following Civil Code articles on possession and acquisitive prescription:

LSA-C.C. Art. 3436:
“Art. 3436. To be able to acquire possession of property, two distinct things are requisite:
“1. The intention of possessing as owner.
“2. The corporeal possession of the thing.”
LSA-C.C. Art. 3441:
“Art. 3441. Those who possess, not for themselves, but in the name of another, as farmers, depositaries and others who acknowledge an owner, can not acquire the legal possession, because, at the commencement of their possession, they had not the intention of possession for themselves but for another.”
LSA-C.C. Art. 3475:
“Art. 3475. Immovables are prescribed for by thirty years without any title on the part of the possessor, or whether he be in good faith or not.”
LSA-C.C. Art. 3488:
“Art. 3488. As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.”
LSA-C.C. Art. 3489:
“Art. 3489. When a person’s possession commenced for another, it is supposed to continue always under the same title, unless there be proof to the contrary.”
LSA-C.C. Art. 3490:
“Art. 3490. The circumstances of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.
“Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him.”
LSA-C.C. Art. 3499:
“Art. 3499. The ownership of immova-bles is prescribed for by thirty years without any need of title or possession in good faith.”
LSA-C.C. Art. 3500:
“Art, 3500. The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”
LSA-C.C. Art. 3510:
“Art. 3510. Those who possess for others and not in their own name, can not prescribe, whatever may be the time of their possession.
“Thus, farmers, tenants, depositaries, usufructuaries and all those generally who hold by a precarious tenure and in the name of the owner, can not prescribe on the thing thus held.”
LSA-C.C. Art. 3556-25:
“25. Precarious. — That possession is called precarious, which one enjoys by the leave of another, and during his pleasure.”

In order to acquire ownership of immovable property by 30-years acquisitive prescription, a possessor must establish not only that there has been corporeal possession of the property for the required period of time, but also that there was a positive intent to take and commence possession of the property as owner. Humble v. Dewey, 215 So.2d 378 (La.App. 3d Cir. 1968); Buckley v. Dumond, 156 So. 784 (La.App. 1st Cir. 1934); Harry Bourg Corporation v. Parfait, 199 So.2d 405 (La.App. 1st Cir. 1967); Harper v. Willis, 383 So.2d 1299 (La.App. 3d Cir. 1980); Matthews v. Carter, 138 So.2d 205 (La.App. 2d Cir. 1962); Woodell v. Roberts, 329 So.2d 858 (La.App. 2d Cir. 1976), writ refused 333 So.2d 248 (1976). See: 49 Tul.L.Rev. 1173 (1974-1975).

In this case the evidence consisting of the written documents and defendant’s own testimony establishes that the defendant and his predecessors in possession did not take and commence possession as owners, but to the contrary acknowledged from the outset ownership of the property in another party. The conveyance from Lewis to the McGowens refers to the property as state owned land and as leased state land. The conveyance to the defendant refers to the property as state owned land. The conveyances do not purport to convey ownership of the land but only purport to convey ownership of the improvements situated on the land. Defendant testified he never considered himself as owner of the land but considered the land as being owned by the state. There was no positive intent on the part of defendant or his predecessors to possess the land as owner. It matters not that the land was actually owned by another private owner instead of the state. The important fact is that the defendant and his predecessors never intended to claim ownership or possess as owners.

The presumption of Civil Code Article 3488 that a person is presumed to have possessed as owner does not apply because in this case it appears that the possession of the defendant began in the name of another, even though the other party was not, in fact, the owner of the land. Under Civil Code Article 3441 possessors who acknowledge an owner cannot acquire the legal possession because at the commencement of their possession they did not have the intention of possessing for themselves.

Since the defendant has failed to establish possession as owner or under title of owner his claim to ownership of the property by virtue of 30-years acquisitive prescription must fail. This issue being determinative of the case, it is unnecessary for this court to consider the tacking issue.

The next issue to be considered is whether defendant is entitled to be paid for the constructions and improvements made on the property. The defendant’s right to be paid is dependent upon the nature of his possession, that is, good faith or bad faith, and proof by him of what reimbursement is due. The applicable Civil Code Articles in this area are as follows:

LSA-C.C. Art. 508:
“Art. 508. When plantations, constructions and works have been made by a third person, and with such person’s own materials, the owner of the soil has a right to keep them or to compel this person to take away or demolish the same.
“If the owner requires the demolition of such works, they shall be demolished at the expense of the person who erected them, without any compensation; such person may even be sentenced to pay damages, if the case require it, for the prejudice which the owner of the soil may have sustained.
“If the owner keeps the works, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship, without any regard to the greater or less value which the soil may have acquired thereby.
“Nevertheless, if the plantations, edifices or works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall not have a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil.”
LSA-C.C. Art. 3450:
“Art. 3450. Although possession results frequently from a fact, and not from right, it nevertheless confers on the possessor certain rights with regard to the thing possessed, some of which are peculiar to the possessor in good faith, and the others are common to all possessors.”
LSA-C.C. Art. 3451:
“Art. 3451. The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact; as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.”
LSA-C.C. Art. 3452:
“Art. 3452. The possessor in bad faith is he who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that his title is vicious and defective.”

The defendant in this case was not a possessor in good faith under Civil Code Article 3451 because he did not have just reason to believe himself the master of the thing which he possessed. He not only did not have just reason to so believe, but did not, in fact, so believe. He is a possessor in bad faith under Article 3452 because he well knew that he had no title to the property. See Levy v. Clemons, 3 So.2d 440 (La.App. 2d Cir. 1941); Guinea Realty Co. v. Battle, 1 So.2d 153 (La.App. 2d Cir. 1941); Vance v. Sentell, 178 La. 749, 152 So. 513 (1933).

Under Civil Code Article 508 the plaintiff-owner is entitled to keep the improvements or to compel their demolition at the expense of the defendant. If plaintiff does not require demolition he is bound to pay the value of the materials and of the workmanship of the improvements he has kept. In its written opinion the trial court gave plaintiff 30 days to make the election and reserved to the parties the right to offer additional evidence on the issue of value if the plaintiff elected to keep the improvements. This ruling was not, but should have been, incorporated into the judgment and we will amend the judgment accordingly.

The judgment appealed from is amended to provide that the plaintiff, O. T. McCoy, shall have thirty (30) days from the date this judgment becomes definitive to exercise the election and option provided by Civil Code Article 508. In the event any issues as to damages or value are not resolved between the parties, either party may institute further proceedings and offer additional evidence relative to this unresolved issue. As amended the judgment of the district court is affirmed and this action is remanded to the district court for any further proceedings as may become necessary or appropriate under the amended portion of the judgment as set forth above. Costs of the appeal are assessed to the defendant-appellant.

Amended, and as amended affirmed.

      . The Civil Code articles on ownership were revised by Act 180 of 1979, effective January 1, 1980, after the events giving rise to the instant suit took place and after judgment was rendered in the district court. Improvements by a possessor are now governed by Articles 496 and 497.


text:
    Jon Parker LINGENFELTER, Plaintiff-Appellant, v. Janet Jana Davenport LINGENFELTER, Defendant-Appellee.
    No. 14148.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.

      James L. Fortson, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   HALL, Judge.

Plaintiff filed suit seeking custody of his five-year-old son. The trial court rejected his demands, leaving the child in the custody of the mother. Plaintiff appeals and we affirm.

Mr. and Mrs. Lingenfelter were separated in 1977 and she was awarded pendente lite custody and child support. In February 1979 a final divorce was granted and although the judgment was silent as to custody, Mrs. Lingenfelter was granted $150 per month child support. The child has lived with the mother in New Orleans since the couple’s separation except during Mr. Lin-genfelter’s exercise of visitation privileges.

In June 1979 the child came to Shreveport for a two-month summer visitation with his father. At the end of this visit Mr. Lingenfelter refused to return the child to his mother and filed this suit seeking custody. In response, Mrs. Lingenfelter filed suit to regain physical custody of the child and to have the divorce judgment amended to expressly grant her permanent custody.

The trial court found it would be in the best interest of the child for him to remain in the custody of his mother and the judgment of divorce was amended accordingly. Mr. Lingenfelter appeals contending the court erred in the following respects by refusing to grant him custody: (1) failing to find that he could provide a better environment for the child; (2) failing to find Mrs. Lingenfelter morally unfit; and (3) applying the “maternal preference” and “double burden” rules.

Mr. Lingenfelter has remarried and resides in the home his family occupied before the separation. He is employed in his own business and is apparently well able to provide the child a good home.

Mrs. Lingenfelter is single and she and her son reside in an apartment in New Orleans. Although she has moved four times while in the New Orleans area and changed her employment, her parents assist her in caring for the child and she is presently providing him a good home environment.

In resolving this issue in favor of Mrs. Lingenfelter, the trial court stated:

“Obviously, the Court favors a home environment which consists of both a mother and a father over one in which a child is living with a single parent in an apartment. However, this is not the only consideration the Court must weigh. The minor child has lived with his mother since birth and there is no evidence before the Court that this environment has been detrimental to the child. On the other hand, to place the child with the father would be to place the child in a new environment, which in the instant case involves a new marriage.”

We find no error in this conclusion.

Regarding Mrs. Lingenfelter’s fitness, she admitted having an affair with her former employer during the latter months of 1978. However, the trial court found that since she had terminated the affair and there was no evidence that any immoral acts occurred in the presence of the child, these actions did not render her morally unfit. We agree.

The trial court’s written opinion clearly demonstrates it carefully weighed all the factors involved in determining what it considered to be the best interest of the child. Although some of these factors may have at one time been the basis for the “maternal preference” or the “double burden” rule, which rules were not mentioned or applied by the trial court, consideration of those factors by the court is still necessary in order to fully evaluate what is best for the child.

For the foregoing reasons, the judgment is affirmed at appellant’s costs.

Affirmed.


text:
    Malroy O. MAYER and Mattie Lou Mayer, Plaintiffs-Appellees, v. McNAIR TRANSPORT, INC., Benjamin R. Martin, and Excalibur Insurance Company, Defendants-Appellants.
    No. 14149.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.

      Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendants-appellants.
    Hudson, Potts & Bernstein by B. G. Iver-son, Monroe, for plaintiffs-appellees.
    Before PRICE, HALL, MARVIN, JJ.
   PRICE, Judge.

Plaintiffs filed suit for damages resulting from the destruction of their home by fire when a large transport vehicle owned and operated by defendant, McNair, overturned and spilled its flammable gas contents. Although liability was admitted, defendants appeal the lower court’s award of damages. We affirm.

At the time of the accident plaintiffs, Mr. and Mrs. Mayer, were 68 and 70 years old respectively. They had purchased their two story home in 1949 when the neighborhood in which it was located was primarily a residential area not far from the Monroe business district. During the time the couple owned the home, the character of the neighborhood changed from substantially residential to substantially commercial. This change in the character of the neighborhood was accentuated in the mid 1960’s with the construction of 1-20 near the Mayer home, with an exit ramp from this elevated highway emptying onto Jackson Street just north of and across the street from the residence.

Despite the gradual decline of the neighborhood, Mr. Mayer, who was a carpenter by profession, spent considerable time and money maintaining and improving the property. Between 1971 and 1975, he spent approximately $25,000 and substantial labor remodeling and at the time of the accident had begun another major remodeling project to convert the home to a fourplex apartment building in order to supplement their income.

When the accident occurred Mr. and Mrs. Mayer were in the kitchen preparing breakfast. Immediately after the initial impact, the home was engulfed in flames. After seeing the flames Mrs. Mayer experienced a severe state of shock and had to be taken to a neighbor’s home by her husband and was unable to assist him in efforts to save some of their belongings.

Defendants conceded liability and damages for the lost contents of the home were stipulated. A trial before a jury was held regarding damages for the destruction of the home and the mental anguish suffered by Mrs. Mayer. The jury awarded the couple $93,000 for the loss of their home and $18,500 to Mrs. Mayer for her mental anguish. Defendants appeal contending both awards are excessive.

The expert witness called by plaintiffs estimated the market value of the home at the time of the accident to be $57,000. He also testified that another proper method of valuation would be replacement costs less depreciation. Using this method, he estimated a replacement cost of $45 per square foot and reached a total replacement cost of approximately $240,000 which he depreciated by 50% to reach a value of approximately $120,000.

Defendants’ expert estimated the market value of the home to be approximately $28,-000. Using the replacement cost less depreciation method, he estimated a replacement cost of $35 per square foot, reaching a total replacement cost of $187,000 which he depreciated by 84% to reach a value of approximately $30,000.

Regarding this question of damages, the court gave the jury the following instructions:

In arriving at the amount of damages to property, our courts have in the past followed three approaches: (1) the cost of restoration, if the thing damaged can be adequately repaired; (2) the difference in value prior to the damage and the value following the damage; (3) if the value before and after the damage cannot be reasonably determined, or if the cost of repairs exceed the value of the thing damaged, the measure of damages to the owner has been the cost of replacement new, less reasonable depreciation.

Although defendants do not question the correctness of these instructions, they contend the jury exceeded its authority in apparently awarding replacement cost less depreciation rather than market value. They contend replacement cost is not a legally permissible method of computing damages where the value of the thing destroyed can be determined.

We do not agree. In Coleman v. Victor, 326 So.2d 344 (La.1976) the court stated that no mechanical rule should be applied in assessment of property damage and that each case must rest on its own peculiar facts and circumstances. In our present case, plaintiffs’ home was a large older home that was well kept and improved and were it not for the general decline in the neighborhood its market value would no doubt have been much greater. Furthermore, a strict adherence to the instructions given by the court would still allow the use of replacement cost less depreciation since the cost of repairs would clearly exceed the value of the thing damaged. At any rate, we find no error in the jury’s conclusion that an award of damages higher than market value, but less than replacement value would be necessary to compensate plaintiffs for this loss.

Regarding the mental anguish award to Mrs. Mayer, the evidence is clear that she suffered a serious mental trauma as a result of this accident. In addition to the initial shock she experienced when the accident occurred, Mrs. Mayer also suffered severe attacks of hyperventilation for approximately nine months after the accident. The first of these attacks was so frightening to her and her family that she had to be hospitalized, fearing that she had suffered a heart attack. Although her condition gradually improved, these attacks, together with her general state of depression over the loss of her home, greatly restricted her normal activity and required frequent return trips to her physician.

Defendants rely primarily on Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir. 1977) for their contention that the award to Mrs. Mayer was excessive. In that case the court affirmed an award of $5,000 to a 78-year-old woman who suffered a severe depressive psychosis resulting from an accident that totally destroyed her home.

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Supreme Court stated the following regarding the use of prior cases in determining the propriety of a particular damage award:

In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, (citations omitted)

Although the facts of the Hymel case are very similar to the present case, the nature of the mental injuries received are somewhat dissimilar. However, even if the similarity were exact, this case, standing alone, does not provide a sufficient basis for the reduction of the present award. There are few cases in our jurisprudence which have allowed mental anguish damages for injury to property; and while the present award is considerably higher than most, the dissimilarities in the bulk of the prior cases make it impossible for us to determine that the award for the particular injuries sustained by Mrs. Mayer is clearly excessive.

For the foregoing reasons, the judgment is affirmed.


text:
    SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellant, v. Mrs. Billie Jean Cummings POLAND et al., Defendants-Appellees.
    Nos. 14219 to 14227.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 1980.
    En Banc. Rehearing Denied June 12, 1980.
    Writ Refused July 23, 1980.
    Liskow & Lewis by John M. Wilson and Frederick W. Bradley, New Orleans, for plaintiff-appellant.
    James M. Fowler, Jonesboro, Shaw & Shaw by W. M. Shaw, Homer, John Michael Ruddick, Haynesville, Jenifer Ward Clason, Homer, Goff, Caskey, Davis & Fallin by H. Russell Davis, Arcadia, Burnett, Sutton, Walker & Callaway by Glenn E. Walker, Shreveport, Sanders & Castete, Ltd., a Professional Law Corp. by Herman A. Castete, Winnfield, Stewart & Stewart by Jonathan M. Stewart, Arcadia, for defendants-appel-lees.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   MARVIN, Judge.

The plaintiff foreign corporation, an interstate pipeline operator, appeals a judgment in each of these nine cases, dismissing on peremptory exceptions, its demands under state law to expropriate above- and under-ground rights in a tract of land in each case for the purpose of storing interstate natural gas. The storage facility is designed to use an essentially depleted underground reservoir in the Bear Creek Field in Bienville Parish. We reverse.

Plaintiff brought separate suits in 1979 against the owners of the land and mineral interests in 75 tracts atop the reservoir. Plaintiff used this tract method (which plaintiff calls the lowest common denominator) in an attempt to avoid a larger number of suits.

In several of the 75 cases, some of the defendants who answered and raised other exceptions within the 15-day delay, later filed amended peremptory exceptions which alleged two grounds questioning plaintiff’s right to expropriate. Plaintiff contends that these amended and allegedly belated exceptions present preliminary procedural issues of what defenses can be raised, how, by whom, and when, to expropriation.

The amended exceptions arose out of plaintiff’s disclosure of its plan to construct and operate the storage facility. Because of cost and other factors, plaintiff and another interstate pipeline-foreign corporation, Tennessee Storage Company, entered into a partnership or joint venture called Bear Creek Storage Company. Plaintiff would transfer to Bear Creek all rights which it expropriated. Bear Creek would construct and own the facility. Plaintiff, however, would, operate the facility for Bear Creek.

Details of the project were disclosed in the trial court and in an application to FERC. The requisite certificate of public convenience and necessity was issued by FERC under federal law to Bear Creek Storage Company to construct and operate the proposed interstate facility. 15 U.S.C. § 717.

The trial court held that Bear Creek Storage Company, and not the plaintiff, was the “proper party” in these nine cases, and sustained an “[Amended] Exception of No Cause or No Right of Action as to Improper Party.” The trial court also sustained an amended exception of no cause or no right of action because plaintiff had not been issued the FERC certificate of public convenience and necessity.

The Natural Gas Act of the Congress does not require a certificate of public convenience and necessity for state law expropriation of property. 15 U.S.C.A. § 717f(c, h). Robinson v. Transcontinental Gas Pipeline Corp., 306 F.Supp. 201 (N.D.Ga.1969), affmd., 421 F.2d 1397 (5th Cir. 1970), cert. denied.

Louisiana authorizes expropriation for the piping and marketing of [interstate] natural gas for the purpose of supplying the public but only by a domestic or foreign corporation created for such a purpose. LRS 19:2(5). Such a corporation must show the public and necessary purpose for the expropriation. Art. 1, § 4, La. Constitution. See Dakin and Klein, Eminent Domain in Louisiana, (1970), p. 366; Hargrave, “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La.L.R. 1, pp. 16-17. Other requirements are that plaintiff negotiate in good faith for conventional acquisition of the property rights before petitioning to expropriate. LRS 19:2; Louisiana Power & Light Co. v. Lasseigne, 256 La. 919, 240 So.2d 707 (1970), and that plaintiff have the permission of the Louisiana Commissioner of Conservation to utilize the underground reservoir, LRS 30:22(B).

The trial court found that plaintiff had fulfilled the “negotiation” requirement. The record establishes that plaintiff did have permission of the Louisiana Commissioner of Conservation to utilize the reservoir, and that the project is necessary and for a public purpose. The issue of whether the proposed project is public and necessary is a judicial question, Art. 1, § 5, La. Constitution, and is to be determined by state and not federal law in these cases. The Natural Gas Act, of course, is applicable to the interstate transportation and sale of natural gas, but that Act, we reiterate, does not require a certificate of public convenience and necessity for expropriation under state law.

Expropriation statutes are in derogation of the common right to own property and are to be construed strictly against the expropriator and liberally for the property owner. Hargrave, supra, p. 17; Texas Gas Transmission Corporation v. Soileau, 251 So.2d 104 (La.App.3d Cir. 1971). The mandate of strict construction, however, does not permit a court to add further restrictive conditions to those which are imposed constitutionally or legislatively. We do not find that it is clearly within the design of the law and certainly it is not expressly stated in any statute that restrictions other than those of legislative creation are to be placed upon the grant of the power to expropriate. See Gamburg v. City of Alexandria, 85 So.2d 276 (La.App.2d Cir. 1956); Gold & Suckle, Inc. v. Suckle, 335 So.2d 713 (La.App.2d Cir. 1976).

Where the law authorizes expropriation under specified conditions, courts should not add to those conditions. We find no Louisiana statute requiring that an expropriator have an FERC certificate of public convenience and necessity for expropriation and we shall not impose such a requirement. The FERC certificate relating to operation of an interstate facility is some evidence that the public and necessary requirement of state law has been fulfilled, but it is not the sole and exclusive evidence. Robinson, supra; Soileau, supra.

The law requires an expropriator such as plaintiff to show that the public and necessary requirement of the expropriation as a condition of exercise of the power. The spirit and obvious design of these provisions of the law contemplate a full disclosure of details how, when, and in what ways the expropriation will serve a public necessity. Where these details are disclosed and do not suggest any deception or illegal motives, we see no reason to prohibit expropriation of property because the eventual facility which will serve the public will not be solely owned by the expropriator. Where the law itself does not impose such a restriction on the power, we shall not impose the restriction. Circumstances may arise where intricate dealings and conveyances between corporations which have the power to expropriate will defeat the ostensible public and necessary purpose, but these circumstances are not present here. The question of the right of a particular plaintiff to expropriate under particular circumstances, can be resolved in the light of the public and necessary requirement and of the other conditions, and on a case by case basis.

We hold then that this plaintiff may not be denied the power of expropriation simply because it does not have an FERC certificate of public convenience and necessity or because in the implementation of the public and necessary purpose for the expropriation, plaintiff will eventually convey a part of the expropriated rights to another interstate pipeline company to facilitate the cost of construction and the fulfillment of the public purpose.

Since we have ruled on the substantive issue of plaintiff’s right to expropriate we need not consider whether all appellees in these nine cases have timely and properly raised this issue in the trial court.

The judgment appealed from dismissing plaintiff’s demand in each case is reversed at the cost of appellees and each case is remanded to the trial court for further proceeding.

REVERSED and REMANDED.

      . These included exceptions of prematurity, improper cumulation, misjoinder or non-joinder, as well as no cause exceptions which were directed at plaintiffs failure to formally expropriate the oil and gas in place.

      . LRS 19:6 and 7 require that a defendant in expropriation who fails to file an answer within 15 days after service shall be considered as waiving all defenses except for compensation as to the property and for damages.

      . CCP requires that a plaintiff have a real and actual interest in the action which he asserts. The non-joinder of indispensable party or the failure of plaintiff to state a cause of action or a right or interest to institute the suit, may be noticed by either the trial court or by the appellate court of its own motion. CCP 927. See also CCP 928.
      It has been said that the capacity of a plaintiff to expropriate may be challenged at any stage of the proceeding. City of Gretna v. Mitchell, 64 So.2d 873 (La.App.Orl.1953).
      Plaintiff has more than some actual interest in seeking the expropriation. See Scott v. Ware, 160 So.2d 237 (La.App.2d Cir. 1964). As discussed infra in this opinion, we view the issue of plaintiffs interest or capacity as an adjunct of plaintiffs showing the constitutionally required public and necessary purpose of the expropriation by the plaintiff. Art. 1, § 4, La. Constitution.


author: SAMUEL, Judge.

text:
    Jacqueline Mae GOLDBERG v. STAUFFER ESHLEMAN COMPANY, LTD., d/b/a Stauffer Eshleman and Company, Ltd. Hardware.
    No. 10348.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Jacqueline Mae Goldberg, in pro. per., plaintiff-appellee.
    Schafer & Schafer, John J. Messina, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Stauffer Eshleman Company, Ltd., for property damages and personal injuries sustained by her in a collision which occurred on June 15, 1976 between her car and a panel truck owned by the defendant company and driven by one of its employees. Defendant answered denying liability. After a trial on the merits, judgment was rendered in favor of plaintiff. Defendant has appealed.

The collision occurred in New Orleans on a one-way Broad Street extension as it passes under the down ramp of an overpass onto Poydras Street. Broad runs parallel with Poydras and merges with it approximately one-fourth of a mile from the site where plaintiff contends the collision occurred. At this point Broad consists of two lanes which are not divided by markers.

Both vehicles were on the Broad Street extension, plaintiff’s in the right lane and defendant’s in the left lane. There were no signs to indicate the merger of Broad with Poydras. Photographs introduced show the left lane of Broad merges with the right lane of Poydras at the foot of the down ramp and the right lane of Broad continues past the point of the left lane merger for a substantial distance before it, in turn, merges with Poydras.

The collision took place when one of the two vehicles improperly changed lanes and struck the side of the other vehicle. Defendant contends the plaintiff car did not properly observe the merging situation at Broad and Poydras, and that plaintiff negligently drove her vehicle into the right side of the panel truck. On the other hand, plaintiff contends the collision occurred approximately one-fourth of a mile before reaching the merging situation when the truck improperly attempted to change lanes and struck the left side of her car. Since the other evidence produced by the parties does not conclusively determine where the collision occurred, the trial judge obviously was faced with a question of credibility.

The trial judge’s reasons make it clear he accepted plaintiff’s version of the accident. Moreover, he appears to have been impressed with the unavailability of the defendant driver until less than a week before trial in spite of plaintiff’s attempts to have him deposed. He also appears to have given weight to the fact that the defendant’s employee was driving with a temporary license (a traffic ticket) instead of the usual driver’s license, and the driver lost his job partly because of the accident in question.

We conclude that the record shows the trial judge did not commit manifest error and was not clearly wrong in accepting plaintiff’s version of how the accident occurred.

Defendant alternatively contests the award made by the trial judge for plaintiff’s pain and suffering. The trial judge awarded $6,500 for pain and suffering together with medical expenses of $100, $800 for property damages, $2,800 for lost income and $150 for medical expert testimony-

Plaintiff had sustained a back injury several years before the accident, and her suit sought damages for aggravation of the alleged preexisting condition. She saw her physician, Dr. Thomas Whitecloud, on the day of the accident and on June 28, 1976, approximately thirteen days later. Dr. Whitecloud testified he treated plaintiff with medication and advised her to take time from her employment. On her second visit, the doctor advised her not to work for a period of between four to six weeks. Plaintiff followed her physician’s advice and stayed away from her work until August 15, 1976. The trial judge concluded the aggravation of plaintiff’s preexisting injury lasted until December of 1976, at which time she returned to her pre-accident physical state. Defendant argues the trial judge was incorrect, primarily on the basis that plaintiff did not renew a prescription of 50 Percodan Demi tablets, a pain killer, after she took them all. Defendant argues the prescription must have run out before August 15, 1976, when plaintiff returned to her work. From this, defendant concludes plaintiff no longer needed the relief afforded by the medicine after August 15, and her condition had reached its pre-accident status as of that date. However, while plaintiff’s physician did prescribe one tablet every four hours for pain, plaintiff testified she took one tablet every eight hours for about two weeks, and then decreased the dosage to one a day for a period of time and then one every other day until all of the tablets were used.

In addition, defendant argues that only two visits to her physician within a two week period and her return to work on August 15, 1976, shows plaintiff’s preexisting condition was aggravated for only two months.

Our review of the record satisfied us that the trial judge did not abuse his discretion by awarding $6,500 for plaintiff’s pain and suffering. Plaintiff already had a preexisting back injury, and obviously had reached an accommodation with the pain resulting from it. Plaintiff likewise did not see fit to overtreat or overmedicate herself in order to build up the award she would receive from the defendant. The trial judge referred to cases indicating the amount of treatment by a physician does not necessarily reflect upon the seriousness of the injury incurred. Such a decision was reached in Wilson v. Dixie Auto Insurance Company.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See Canter v. Koehring Company, La., 283 So.2d 716, and Arceneaux v. Domingue, La., 365 So.2d 1330.

      . La.App., 345 So.2d 994.