author: ELLIS, Judge:

text:
    Mary Ann GUILLORY v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, et al.
    No. 14525.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      E. C. Hunt, Jr., Thomas L. Lorenzi, James A. Watson, Lake Charles, for plaintiff-appellant Mary Ann Guillory.
    David Frohn, Lake Charles, for defendant-appellee Etehicon, Inc.
    Walter Horrell, Baton Rouge, for defendant-appellee State of La., Dept, of Health and Human Resources.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

On July 23, 1973, plaintiff Mary Ann Guillory underwent an anterior colporrha-phy, a surgical procedure for the repair of the anterior wall of the vagina. The procedure was performed at W. 0. Moss Regional Hospital, a state charity hospital, in Lake Charles, Louisiana, by Dr. Pierre J. Bouis, Jr., a third-year resident, assisted and supervised by Dr. Lee J. Monlezun. Also present in the operating room was Felicia Leday Esprit, a scrub nurse, who assisted the surgeon by handing him surgical implements during the course of the operation.

While Dr. Bouis was placing sutures, using a semi-circular suture needle manufactured by Ethicon, Inc., the needle broke, and about two-thirds of the needle remained lodged in some connective tissue at the site of the operation. Dr. Bouis was unable to find the broken part of the needle at the time it broke, or in a subsequent surgical procedure performed later on the day of the operation. The needle remains in plaintiff to this day, despite Dr. Bouis’s efforts and three subsequent surgical procedures performed by other physicians who attempted to locate and remove it.

This suit was filed by Mrs. Guillory for damages arising out of the above incident. Made defendants herein originally were Drs. Bouis and Monlezun, Mrs. Esprit, the State of Louisiana, Ethicon, Inc., and others. Because of settlements and dismissals, the case was tried before a jury, only as to Ethicon, the State and Mrs. Esprit. Plaintiff’s demands were dismissed, and she has appealed. Dismissal of the appeal as to the State and Mrs. Esprit was stipulated to by plaintiff, so that only Ethicon remains a party defendant in this appeal.

Plaintiff’s evidence in support of the claim against Ethicon was to the effect that Dr. Bouis did nothing wrong in performing the surgical procedure, and that when the needle broke, he was attempting to place the suture in the same manner as he did all the others during the operation. All of the doctors who testified during the trial stated that needle breakage during surgery was not an unusual occurrence, and was considered as one of the risks of surgery.

Plaintiff’s expert metallurgists could not inspect the needle which broke since part of it remains in plaintiff’s body and the other part was thrown away after the operation. However, they tested a number of similar needles and testified that they found cracks in two of them, as a result of swaging the suture material into the needle. Pressure tests performed on 36 needles showed that 25 of them had sufficient ductility to bend into a circle, but that 11 of them broke under the same pressure. One of the experts testified that microscopic examination of one of the broken needles revealed that it was significantly more brittle than those which bent, but did not break.

Ethicon’s expert metallurgist examined the same needles that were tested by plaintiff’s experts. He found no significant differences in ductility or brittleness among them, and could not find the swaging cracks which were testified to by one of plaintiff’s experts. Ethicon’s medical expert, Dr. Robert L. DiBenedetto testified that needle breakage was not unusual, and could result from using a needle too light for the job, from faulty technique on the part of the surgeon or from defects in the needle. He testified that he used a somewhat heavier needle than that used by Dr. Bouis when performing an anterior repair, because of the toughness of the tissue in which the sutures were being placed.

In this court, plaintiff claims that the judge failed to instruct the jury properly in two particulars; that he erroneously refused to admit certain documents into evidence; and that the jury’s verdict was manifestly erroneous.

Plaintiff’s first assignment of error is that the trial judge erred in refusing to charge the jury on the applicability of the doctrine of res ipsa loquitur. In McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973) the court said:

“Res ipsa loquitur is a rule of circumstantial evidence. Its applicability is normally determined at the conclusion of the trial. The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury.”

The evidence in the record makes it clear that plaintiff’s injuries could have resulted from causes other than a defective needle, i.e., the use of an unsuitable needle, or improper use of the needle by the operating physician. There is conflicting evidence as to both of the latter points. There is no direct evidence that the needle used was defective, and the evidence as to the possibility that the needle might have been defective is in conflict. Under the circumstances, Ethicon’s negligence in the manufacture of the needle could not be considered the “most plausible explanation of the injury”, and the trial judge properly refused to charge that the doctrine of res ipsa loquitur was applicable.

Plaintiff’s second assignment of error is that the trial judge improperly charged the jury relative to the duty-risk analysis of the liability questions presented herein. We have examined the charge and find no error. Plaintiff’s contention that the judge should have charged the jury that the manufacturer was responsible for misuse or misapplication of the needle by the doctor is without merit, absent a showing that the needle was unreasonably dangerous in normal use. There is no such showing. See Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971).

Plaintiff’s third assignment of error relates to the refusal of the trial judge to admit into evidence a number of petitions in cases filed in other jurisdictions, which contained allegations relative to the breaking of needles manufactured by Ethicon. These petitions were obtained by discovery from Ethicon, and were properly certified. Plaintiff alleges that by the petitions he intended to show that Ethicon had knowledge that suture needles tend to break more often in the throat and in the vagina, and was therefore under a duty to warn of unreasonable danger involved in the normal use of its needles in those areas.

We find the petitions were properly excluded. The allegations contained therein are hearsay and are proof of nothing. They contain no judicial admissions by Ethicon, or other relevant admissible evidence.

Finally, plaintiff claims that the finding of the jury is manifestly erroneous. We have carefully examined the record and the transcript of the testimony of the case, and find there is ample evidence to support the finding of the jury.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Karl B. UNBEHAGEN v. BOLLINGER WORKOVER, INC., et al.
    No. 14527.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Joseph L. Waitz, Laurence Best, Huntington B. Downer, Jr., Houma, for plaintiff-appellee Karl B. Unbehagen.
    Stephen R. Wilson, Baton Rouge, for defendants-appellants Bollinger Workover, Inc., Admiral Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendants, Bollinger Workover, Inc., and Admiral Insurance Company, appealed from the judgment awarding plaintiff, Karl B. Unbehagen, $195,000.00 damages for injuries received in an oilfield accident, complaining only of the $150,000.00 awarded for loss of future earnings. Plaintiff answered the appeal, asserting that the amount should be increased to $521,733.72.

The sole issue, therefore, is the amount awarded for loss of earning capacity. We affirm.

The trial court in transcribed oral reasons carefully analyzed this issue. We adopt and quote this analysis.

“ * * * Basically, the most contested issue in this case is a determination of what is an appropriate level of compensation for the loss of earning capacity suffered by Karl Unbehagen. The Louisiana Supreme Court and the appellate courts of the State of Louisiana recognize that loss of future earnings cannot be calculated with absolute certainty and that damages for loss of future earnings are somewhat speculative in character. Robinson v. Graves, 343 So.2d 147 ([La] 1977). On occasion the Louisiana Supreme Court has disapproved the use of formulas in arriving at an award for loss of future earnings. However, a review of the decisions of the Courts of Appeal, and in particular in the First Circuit, it appears that formulas are strongly relied upon to assist the Court in determining what is fair and equitable in each case. Falcon v. Bigelow-Liptak Corporation, 356 So.2d 507 ([La. App.] 1st Cir., 1977); Edwards v. Sims, 294 So.2d 611 ([La.App.] 4th Cir., 1974). Essentially what a Court must do in a case of this type is to exercise sound judicial discretion and award an amount that, considering all of the facts and circumstances, seems just and fair to both litigants and is not unduly oppressive to either. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). The following factors are primarily relied upon by the Courts in determining what is fair and equitable in each case: age, life expectancy, work life expectancy, appropriate discount rate (also known as the investment income factor), the annual wage rate increase or productivity increase, prospects for rehabilitation, probable future earning capacity, loss of future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Rivers v. Sehlumberger Well Surveying Corp., 389 So.2d 807 ([La.App.] 3rd Cir., 1980); Polman v. Mohasco Corporation, 371 So.2d 838 ([La.App.] 4th Cir., 1978); Hebert v. Diamond M Company, 385 So.2d 410 ([La.App.] 1st Cir., 1980); Greene v. Wright, 365 So.2d 551 ([La.App.] 1st Cir., 1978); Johnson v. International Insurance Company, 347 So.2d 1279 ([La.App.] 1st Cir., 1977); Edwards v. Sims, supra.

“The evidence adduced at the trial shows that Mr. Unbehagen is 26 years of age, has a life expectancy of 46.1 years and a work life expectancy of 35.7 years.

“In most cases studied the Court applied a discount rate or what is also called an investment income factor to project the present value of loss of future wages. The most often used discount rate is six percent, as set forth in R.S. 47:2405. See Falcon v. Bigelow-Liptak Corporation, supra, and Johnson v. International Insurance Company, supra.

“In this case Dr. Seymour Goodman used a discount rate of eight percent and Dr. Ken Boudreaux used a discount rate of eleven percent. A review of the jurisprudence shows that various Courts have used discount rates ranging from four percent on up to that which is suggested in this case.

“In the instant case Dr. Goodman suggested an annual wage rate increase or productivity level rate of 8.59 percent. Dr. Boudreaux was of the opinion that such a figure was not appropriate in this type of case.

“It appears that the factors of probable future earning capacity and prospects for rehabilitation should be considered in one discussion. The testimony of Erbie ‘Tiny’ Wilson indicates that Karl Unbehagen is presently serving Dowell as a dispatcher being paid 1,780 dollars per month. Since he has been with the Dowell Corporation he has achieved on numerous occasions a superior in the performance of his duties, which ranks him within the top fifteen percent of those employees in his job classification. The testimony of Mr. Wilson indicates to this Court that due to Mr. Unbehagen’s work ethic, the esteem within which he is held by his superiors and fellow employees and potential customers for Dowell Corporation that he has excellent chances for advancement with that corporation. I would particularly commend Mr. Unbeha-gen on the efforts that he has taken to minimize his losses in this case. Even though it was not suggested by his doctor that he return to work, he preferred to do that rather than sit idly by. Even though he was not released to full duty, he attempted to go back to full duty and do the best he could under the circumstances to make money for his family and also to minimize his losses. It is well settled in Louisiana law that there is a duty on the part of a person injured to take reasonable steps to minimize their loss. Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823, (1968) Pisciotta v. Allstate Insurance Company, 385 So.2d 1176 ([La.] 1979); Lawyers Title Insurance Company v. Carey Hodges and Associates, Inc., 358 So.2d 964 ([La.App.] 1st Cir., 1978). It is the opinion of this Court that Mr. Unbehagen went above and beyond that which is required by the law to attempt to minimize his losses in this ease by doing everything he could to try and achieve his prior work status. Unfortunately, because of the nature of his injuries he is not able to accomplish that which he wished to do. However, the fact that Mr. Unbehagen made the extraordinary effort that he did in this case points up the fact that he is undoubtedly a very valuable person to the Dowell Corporation and is someone that I feel confident will advance with that firm. The testimony of Gene Bohlkin, a rehabilitation specialist, indicates that Mr. Unbehagen has the potential to be a sales representative or a stock control supervisor with his present skills. Mr. Unbehagen is a high school graduate and is married with a child and a child is on the way. The medical testimony shows clearly that he has lost his capacity to do heavy manual labor, and loss of capacity is compensable, just as loss of earnings. Coco v. Winston Industries, 341 So.2d 332 ([La.] 1977); Folse v. Fakouri, 371 So.2d 1120 ([La.] 1979).

“In determining mathematically by a formula the possible loss of future earning capacity of Karl Unbehagen it is the opinion of this Court that the method most often utilized by the Court has been to determine annual loss of income and multiply this by the work life expectancy and discount this figure by whatever is determined to be appropriate discount rate or rates. The evidence shows that at the time of the accident here in question Mr. Unbe-hagen was earning . . . 1,720 dollars per month and was given the use of a company car for his business and personal purposes, with a company credit card for gasoline, and an expense account for his meals and the meals of his crew and potential customers. At the present time Mr. Unbehagen is earning the sum of $1,780 as a disptacher and does not have the use of a company card, a company credit card, or an expense account. The testimony at the trial indicates that if Mr. Unbehagen had continued to serve as a service supervisor that his present wage level would be 2500 dollars, plus an additional salary bonus per month of 200 dollars, plus the use of the company car and credit card, plus an expense account. Under the holdings of Coco v. Winston Industries and Folse v. Fakouri the proper level of determining monthly or annual loss of wages is to subtract present wages from the wages which the injured person would have been earning had that person continued in his employment at the time of trial. This means that that figure should be calculated by subtracting the 1,780 dollar figure from the 2,700 dollars in salary which Mr. Unbehagen would presently make if he were still in his same job, including the value of his company car, company credit card and expense account. Applying the formulas of the two economists, Dr. Goodman came up with a figure of $521,733.72 and Dr. Boudreaux came up with a figure of $112,344.14. I agree with the jurisprudence that in cases of this type the measure of an appropriate award is not simply determined by a mathematical computation or mechanical formula. It is my opinion that all of the factors that have been previously alluded to must be considered in determining an award that under all facts and circumstances is just and fair to both litigants and not unduly oppressive to either. I consider a significant factor the established fact that Mr. Unbehagen has been permanently deprived of his capacity to perform heavy manual labor. However, this factor must be balanced with the other factor that Mr. Unbehagen is obviously a very valuable employee to the Dowell Corporation who has a great potential for advancement with that corporation. In view of this it is the opinion of this Court that it is probable that with Mr. Unbeha-gen’s abilities that he will further proceed to minimize his losses in the future by advancement within the Dowell Corporation. After analyzing the jurisprudence and all of the facts and circumstances of this case, I wholeheartedly concur with my brothers on the bench that indeed the calculation of what is a fair figure for future loss of earnings is at best speculative in character. After considering all of the factors in this case and the injuries in question, reviewing the jurisprudence, it is my opinion that a fair and reasonable sum for all parties in this litigation is the sum of 150,000 dollars for loss of future wages.”

For these reasons, the judgment is affirmed at appellants’ costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Franklin L. WHITE v. C F INDUSTRIES, INC., et al.
    No. 14533.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Denied April 21,1982.

      Walton J. Barnes, S. Dwayne Broussard, Baton Rouge, for plaintiff & appellant.
    Gerald L. Walter, Jr., Vincent P. Fornias, Baton Rouge, for defendants & appellees.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is an “executive officer” suit brought by Franklin L. White against four officers of White’s statutory employer, C F Industries, Inc. The plaintiff was injured when some part of a brick “tunnel” within a furnace collapsed beneath him, causing his fall. The “tunnel” was used by plaintiff and his co-employees as a scaffold for cleaning tall furnace pipes. The defendants herein, Miller Dial, H. M. Epps, D. J. Es-nault and David Miller were respectively the general manager, maintenance manager, and maintenance engineers at the C F Industries plant near Donaldsonville, Louisiana, at the time of the accident. The suit against these defendants alleged that the defendants were delegated by C F Industries the duty of providing plaintiff with a safe place to work, and that this duty was breached by the defendants’ condoning the use of plywood-overlaid brick “tunnels” as scaffolding for cleaning the furnace. From adverse judgment in favor of the four defendants, plaintiff has appealed.

THE FACTS

The plaintiff was injured oh February 7, 1974 at the C F Industries’ plant near Don-aldsonville, Louisiana. He was 37 years old at the time of the accident and was employed by Petro Corporation, a division of Barnard & Burk. Petro contracted with C F to clean a furnace during a “turnaround,” i.e., a period when the plant was shut down for maintenance. C F was responsible for supplying Petro employees with whatever scaffolding was necessary to complete the job.

The plaintiff was cleaning furnace pipes with a circular brush at the time of the accident. This task entailed standing atop brick “tunnels” which ran through the furnace in parallel rows. Each “tunnel” had two side walls composed of bricks and held together with mortar. The bricks in the side walls were of a special type used in furnaces but were an ordinary size. Riding atop the two side walls and spanning the gap between were larger blocks of a similar but distinguishable material. These blocks composed the roof of the “tunnels.” Over the roof blocks were placed sheets of three-fourths inch plywood. All Petro employees on the job were warned repeatedly to walk only on the plywood sheets and not to walk directly on the concrete blocks. This warning was given because the blocks tended to become brittle due to the high heat of the furnace during operations. The plywood sheets were used to help evenly distribute the weight of the workers over the “tunnel” and prevent a block from collapsing. For the same reason, Petro employees were instructed to avoid walking in the center of the plywood sheets and to stay near the sides whenever possible.

At the time of the accident, plaintiff was standing atop a brick “tunnel” and attaching a circular brush to a nearby furnace pipe when he fell suddenly, landing on the furnace floor some five or six feet below. Conflicting testimony was adduced at trial as to whether plaintiff stood on the plywood as instructed or stood directly on the concrete roof blocks at the time of his fall. As a result of the fall, plaintiff injured his back, necessitating hospitalization. He was later diagnosed as having a herniated lumbar disc and eventually underwent a lami-nectomy.

To plaintiff’s suit, defendants answered with a general denial, and specifically pleaded the affirmative defenses of contributory negligence and assumption of risk. By the time of trial, the only defendants remaining were the managers and engineers of C F Industries. After trial on the merits, judgment was rendered in favor of the four remaining defendants, and plaintiffs suit was dismissed. No written reasons were assigned by the trial judge. The plaintiff timely perfected a devolutive appeal to this court.

SPECIFICATIONS OF ERROR

Plaintiff-appellant contends the trial judge erred in:

1. finding that C F Industries, Inc., owed no duty to the plaintiff, the breach of which caused his damages;
2. finding that the duty owed by C F Industries, Inc., to the plaintiff was not delegated to the individual defendants;
3. finding that the individual defendants did not breach their duty to the plaintiff through their personal fault;
4. failing to apply the doctrine of res ipsa loquitur under the exceptional facts of this case; and
5. failing to award damages to the plaintiff in accordance with the evidence adduced at trial.

The criteria for imposing individual tort liability on a co-employee, agent, or officer of a plaintiff’s employer or principal were set forth in Canter v. Koehring Company, 283 So.2d 716 at 721 (La.1973):

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. -With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.”

Where the trial judge does not assign oral or written reasons for judgment, the reviewing court is required to review the record in its entirety to determine whether or not the result reached by the trier of fact was in itself manifestly erroneous. Aetna Casualty and Surety Company v. Continental Insurance Company, 308 So.2d 489, 491 (La.App. 1st Cir. 1975).

I

Plaintiff-appellant argues that the first criterion of Canter “executive officer” liability was met in that C F Industries owed plaintiff a statutory duty to furnish him a safe working place, under La.R.S. 23:13.

The defendants contend that no duty was owed by C F to White under La.R.S. 23:13, inasmuch as the statute refers only to employers and White was an employee of Petro Corporation, not C F Industries. However, in Canter, supra, liability vested with the executive officers of the decedent’s principal. Canter clearly illustrates that the duty to provide a safe place to work applies to principals as well as employers. Indeed, the fact that C F was dismissed from the tort action on the grounds that a worker’s exclusive remedy against a principal (or statutory employer) is in compensation indicates that the principal is tantamount to an actual employer vis-a-vis the injured workman. Thus, C F Industries owed plaintiff a duty to provide him a safe working place, although C F was not plaintiff’s direct employer.

II

White argues that the duty to provide a safe working place was delegated by C F Industries to the four defendants, Miller Dial, H. M. Epps, D. J. Esnault, and David Miller. Trial testimony indicated that the defendants did not directly supervise the work of White and other Petro employees. This job was left solely to Pe-tro supervisors. Thus, the defendants argue, C F contractually delegated to Petro the duty to provide a safe working place. However, this argument overlooks the fact that the contract between C F and Petro stated that C F would provide all equipment necessary for the work except for certain enumerated items which would be provided by Petro. Scaffolding was not among the enumerated items. Additionally, C F Industries apparently was the party who adopted the practice of using brick “tunnels,” overlaid with plywood sheets, as a means of access to tall furnace pipes. If this practice created an unreasonable risk of harm to White, then the fact that Petro supervised its own employees is wholly irrelevant. Simply because Petro supervisors were on the job did not negate C F’s duty to provide a safe working place. Thus, we must examine the job functions and responsibilities of the four defendants to determine whether each was delegated C F’s duty to provide a safe place to work to contractors’ employees.

Defendant Miller Dial was the general plant manager in Donaldsonville at the time of the accident. His duties included the overall management of the plant, including the manufacture of anhydrous ammonia as well as the sales and shipping of same. Dial was not personally responsible for overseeing maintenance performed at C F, although he admitted that he was certainly empowered to halt any unsafe maintenance practice that might be brought to his attention. Dial testified that the direction of maintenance work and the adoption of maintenance procedures at C F was delegated to maintenance personnel. Although as general plant manager Dial was delegated C F’s duty to provide a safe working place, we find that this duty was in turn delegated to subordinates. Under Canter, Dial cannot be held liable unless he personally knew or should have known of the non-performance or mal-performance of the subordinates in carrying out the delegated duty, and nonetheless failed to cure the risk of harm.

Defendants H. M. Epps, David Miller, and D. J. Esnault were the maintenance manager and maintenance engineers at the time of the accident. Epps as maintenance manager had overall administrative responsibility for all maintenance work conducted at the Donaldsonville facility. Epps was responsible to Miller Dial, the general manager, for the maintenance and operation of the plant. His job was primarily desk work, but Epps occasionally made tours of the plant to determine how work was progressing. Epps testified that he was familiar with the practice of using brick “tun-neis” and plywood sheets as an access to furnace pipes. We find that Epps was delegated C F’s duty to provide contractor’s employees such as White a safe place to work.

David Miller and D. J. Esnault were the C F employees who were closest to the work being done. Their job as maintenance engineers entailed daily tours and inspections of the plant to make sure that maintenance work was proceeding safely and on schedule. Miller testified that he and Es-nault had the authority to correct any work practice which they deemed unsafe, and that such corrections had actually been made in the past. Miller attended daily meetings between C F and Petro supervisors. These meetings dealt with work planning and work review. Esnault missed these afternoon meetings because his was the night shift. Esnault was on duty when White was injured, although he was not in the furnace at the time. We find that Miller and Esnault were delegated C F’s duty to provide White a safe place to work.

Ill

The most important inquiry in this case, which is dispositive of the result, is whether the duty to provide a safe place to work was breached through the personal negligence of the four defendants.

The plaintiff sought to prove that using the “tunnels” overlayed with plywood as scaffolding was inherently dangerous, creating an unreasonable risk of harm. Plaintiff further asserted that the defendants negligently failed to adopt a safer alternative, even though the defendants had authority to make such a change.

The defendants testified that an accident such as plaintiff’s had never occurred during the eight years that the furnace was operated, even though the same method of cleaning the furnace was used each “turnaround.” During each turnaround, C F contracted with a refractory specialist to inspect the brickwork in the furnace. The refractory contractor replaced loose bricks, checked for cracked top blocks, and replaced whatever mortar was necessary. This inspection occurred simultaneously with the cleanup of the furnace during some turnarounds. During other turnarounds, the inspection was made before Petro employees cleaned the furnace.

Dr. Jerry Householder, a structural engineer, testified as an expert witness on behalf of the plaintiff. Dr. Householder opined that the practice of using “tunnels” overlaid with plywood as scaffold was inherently unsafe, in that three-fourths inch plywood would be required to bend greatly to distribute a worker’s weight. The amount of bend required was so great that the plywood would do little or nothing to prevent a block from collapsing. Dr. Householder testified that an accident such as plaintiff’s was inevitable, given the method used. He suggested that an alternative method was to build a normal scaffold which would straddle the entire “tunnel” without resting its weight upon the “tunnel.”

However, Dr. Householder testified that his conclusions were based on one inspection of the furnace (occurring four years after the accident) and his own theoretical computations. Dr. Householder testified that it was commonplace for engineering methods to be established on a trial-and-error basis. He noted that C F used the plywood sheets for years without a single accident, and testified that it was common engineering practice to adhere to a method which appeared reasonable until the same was shown to be unsafe, and only then to reassess.

As stated above, conflicting testimony was introduced as to whether plaintiff was standing on the plywood or on the bare blocks when he fell. Even assuming arguendo that plaintiff stood exactly where he was instructed to stand, the fact that he fell does not of itself vest liability with the defendants. In Eschmann v. Moyer, 253 La. 818, 220 So.2d 86 (1969) cert. den. 396 U.S. 845, 90 S.Ct. 97, 24 L.Ed.2d 95, the Supreme Court absolved a corporate officer from liability upon finding that he had properly discharged his own corporate duties and had no personal, actual or constructive, knowledge of an alleged premise defect at the time of the accident. In the instant case, the defendants did not devise but condoned the method of using the plywood and “tunnels” as scaffolding. Because no accident had occurred in the past, the defendants had no actual knowledge of danger to those standing on the plywood as instructed. Constructive knowledge cannot be imputed to the defendants, since Dr. Householder testified that only an expert would have enough knowledge of the structural properties of the plywood and refractory bricks to recognize a potential hazard. Reasonable maintenance of the furnace was carried on during each and every turnaround by a refractory specialist. There was no suggestion at trial that any of the defendants was derelict in carrying out the corporate and industrial duties assigned to him. Thus, even assuming that the plaintiff was not contributorily negligent, the plaintiff did not meet his burden of showing that his fall was caused by the personal fault of any of the defendants.

The plaintiff urges that the doctrine of res ipsa loquitur should have been applied to the factual circumstances presented. The application of res ipsa lo-quitur creates a presumption of negligence, which the defendants are required to rebut. However, for res ipsa loquitur to apply, the accident must be one that ordinarily would not occur in the absence of negligence of the defendant. The accident in question clearly could have occurred without the defendants’ negligence, in that a premise defect might have caused the accident even though none of the defendants had actual or constructive knowledge of the defect. Additionally, the negligence of the refractory contractor might have caused the accident by failing to observe and replace a cracked roof block. Finally, the evidence suggests that the plaintiff might have caused his own accident by walking directly over the bare blocks, contrary to instructions. Res ipsa loquitur cannot apply to the case at bar because the negligence of the defendants was not shown to be the likely cause of the accident. Even were we to apply res ipsa loquitur, the defendants have rebutted the presumption by adducing evidence showing that they were free from personal fault.

IV

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error, or that the trial court finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, supra. After a thorough and total review of the record, we are unable to say that the decision handed down by the trier of fact was either manifestly erroneous or clearly wrong.

In light of our holding that the four “executive officer” defendants did not breach a duty owed plaintiff through their personal fault, we pretermit any discussion of the plaintiff’s alleged contributory negligence and/or assumption of the risk and also pretermit any discussion of the amount of damages plaintiff suffered.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant, Franklin L. White.

AFFIRMED.

      . The accident which caused plaintiffs injuries occurred prior to the 1976 Amendments to La. R.S. 23:1032, the exclusive remedy provision. Thus, the plaintiff in the instant case may recover for damages caused by negligence of an “executive officer.”

      . C F Industries was originally made a party defendant, but was granted summary judgment on the grounds that it was a “principal” or “statutory employer” under La.R.S. 23:1061, and that plaintiffs exclusive remedy against C F was in workman’s compensation, La.R.S. 23:1032. Several officers and supervisors of Petro Corporation, plaintiffs immediate employer, were originally made defendants, but were released in an out-of-court settlement pri- or to trial.

      . See footnote 2, supra.

      . La.R.S. 23:13 states:
      “Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.”

      . Dr. Householder further opined that OSHA regulations had been violated, inasmuch as he doubted that the scaffolding used could support four times the weight intended to be placed upon it. However, as we stated in Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir. 1978), MESA regulations may be cogent in establishing a standard of care but violation thereof is not of itself determinative of negligence.

      . Dr. Householder gave a specific example of this methodology. He cited the American Institute of Steel Construction, which had to recall newly-promulgated codes after a stress collapse with ensuing fatalities which occurred because of phenomena never before observed.

      . See generally, Malone, “Res Ipsa Loquitur and Proof by Inference — A Discussion of the Louisiana Cases,” 4 La.Law Rev. 70 (1941).


text:
    STATE of Louisiana in the Interest of Chris Anthony WILLIAMS.
    No. 14535.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Robert Marve, III, Steve Mayer, Houma, for defendant.
    William Yates, Asst. Dist. Atty., Houma, for plaintiff.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a finding of delinquency in a juvenile proceeding for the violation of La.R.S. 14:35 and the terms of his probation and the commitment to the custody of the Louisiana Department of Corrections for two six month consecutive terms. Although defendant made no assignment of error, we have examined the record and we affirm in part and reverse in part.

The defendant, a fifteen year old junior high student, did not stand for the Pledge of Allegiance in his homeroom, and refused to accept a disciplinary slip for this conduct. There was conflicting evidence as to whether the teacher tendering the slip pulled the defendant’s desk out from under him causing him to fall to the floor or merely tugged at defendant’s desk to get his attention. When the defendant stood up, a fight between the two ensued. The majority of the testimony indicated that the teacher did not strike the defendant. The trial judge found the defendant guilty of simple battery and violation of his probation.

After making a motion for appeal, defendant’s counsel was relieved of duty and present counsel was appointed.

Juvenile proceedings are not classified as criminal proceedings. In the Interest of Aaron, 405 So.2d 1194 (La.App. 1st Cir. 1981). In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir. 1981). Where procedures are not provided in the Code of Juvenile Procedure, the courts must follow the Code of Civil Procedure. C.J.P. Art. 24(2). However, a juvenile is entitled to the protections of due process and all related safeguards guaranteed to one accused of a crime. In Interest of Day, 378 So.2d 511 (La.App. 4th Cir. 1979).

An assignment of error in unnecessary. C.C.P. Art. 2129.

We do not find any error that would warrant reversal of the finding of delinquency and the commitment on the battery. Although there was much conflicting testimony, there was sufficient evidence to prove beyond a reasonable doubt that the defendant committed simple battery. Even assuming that the teacher acted improperly, the evidence shows the defendant used unreasonable and excessive force. La.R.S. 14:19.

Even if the charge of violation of probation be sufficient, there is no proof of what the terms of the probation are and how they were violated. We therefore reverse on the charge of violation of probation and the commitment of six months thereon.

For these reasons, the decision of the trial judge on the offense of battery is affirmed. The adjudication and disposition on the charge of violation of probation are reversed.

AFFIRMED IN PART AND REVERSED IN PART.

      . It has been suggested that the case is moot because the time of the commitments has already expired. However, since the findings of delinquency are a matter of record we elect to decide the case on the merits.

      . C.J.P. Art. 24(2):
      “The provisions of this Code, except as otherwise specially provided in the law being applied, shall govern and regulate the proceedings of courts exercising juvenile jurisdiction.

        Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with:
      ******
      (2) The Code of Civil Procedure in all other matters.”

      . C.C.P. Art. 2129:
      “An assignment of errors is not necessary in any appeal. Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.”

      . La.R.S. 14:19:
      “The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”


author: COVINGTON, Judge.

text:
    Merlyn T. CHANEY and Virginia S. Chaney v. Frankie CUNNINGHAM and South Central Bell Telephone Company.
    No. 14539.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Dennis A. Pennington, Baton Rouge, for plaintiffs-appellants Merlyn T. Chaney and Virginia S. Chaney.
    Pamela A. Prestridge, Baton Rouge, for defendants-appellees Frankie Cunningham and South Central Bell Tel. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiffs, Merlyn T. Chaney and Virginia S. Chaney, from a judgment in favor of the defendants, Frankie Cunningham and South Central Bell Telephone Company, dismissing the plaintiffs’ suit at their costs. The basis of the dismissal was that the contributory negligence of Virginia Chaney barred recovery.

The evidence presented at the trial established that the accident in question happened on March 19,1976, at about 4:00 p. m. on the Gulf States Road in front of the Ethyl Plant in Baton Rouge, Louisiana. Frankie Cunningham, an employee of South Central Bell Telephone Company, was driving a phone company truck in qn easterly direction on Gulf States Road at a slow rate of speed. Following the Bell vehicle was a car occupied by a Mr. and Mrs. Dunlap. Mrs. Chaney’s vehicle was proceeding behind these two vehicles after she pulled out of the Ethyl parking lot onto Gulf States Road. At this point Gulf States Road is a two lane roadway with dashed white lines indicating a legal passing lane. Since the preceding vehicles ahead of her were moving at a slow rate of speed, Mrs. Chaney ascertained that there was no oncoming or westerly traffic and that the way was clear to pass, so Mrs. Chaney pulled into the left lane and passed the Dunlap car, the car following the Bell truck.

Mrs. Chaney testified that just as the front wheels of her vehicle were past the Bell truck, the defendant driver attempted to turn left into a driveway leading to the Ethyl parking lot. In attempting to execute this left turn, Cunningham’s vehicle collided with the Chaney car which was passing the truck at the time. The left fender, bumper, grill, and dust shield of the truck hit the right side of the Chaney car, just in front of the door. Cunningham did not see the Chaney car until the impact. Although Cunningham said he signalled for a left turn, neither Mrs. Chaney nor Mrs. Dunlap saw such a signal. The trial judge accepted the testimony of Mrs. Chaney and Mrs. Dunlap and found as a fact that Cunningham did not signal. The trial judge found that the “negligence of Mr. Cunningham consists of failing to keep a proper lookout, attempting a left turn before ascertaining that he could do so safely without endangering overtaking or oncoming traffic, failing to observe plaintiff’s passing vehicle so as to avoid collision, and neglecting to indicate his intention to make a left turn.” The trial judge also found that Cunningham failed to see what he should have seen. The negligence of Cunningham is not seriously disputed by the defendants, and the evidence in the record clearly establishes the negligence of the driver of the Bell truck in attempting to negotiate a left turn when it was not safe to do so.

Despite this finding of negligence on the part of Cunningham, the trial court found that the plaintiff was contributorily negligent so as to bar her recovery. The court below considered that by “passing two vehicles without returning to the right side of the road,” Mrs. Chaney was executing a “dangerous maneuver” at the time of the accident. The trial judge expressed the opinion that “Mrs. Chaney was negligent in that she failed to keep a proper lookout while executing her passing maneuver; failed to notice that the Bell truck’s speed had slackened in preparation to make a left turn; and neglected to make certain that no change of course of the Bell truck was indicated before attempting to pass it.” The court went on to find that “Mrs. Chaney was under a duty to notice his slowed rate of speed, indicating a change of course. Mrs. Chaney should have seen that Mr. Cunningham was attempting to make a left turn.”

In finding that Mrs. Chaney was contributorily negligent, the trial court indicated that her passing of two vehicles without returning to the right side of this two-lane road was a dangerous maneuver under the circumstances of this ease. Based upon the record, we find that Mrs. Chaney did not use the requisite care in her passing maneuver, considering the conditions of the roadway and the fact that Cunningham was slowing his vehicle preparatory to changing the course of his vehicle. Her negligence was a contributing cause in the collision of the two vehicles. As this Court pointed out in American Road Insurance Company v. Brown, 269 So.2d 539 (La.App. 1 Cir. 1972), the question of contributory negligence is one of fact and each case must be determined from its own facts. Further, as a reviewing court, we should not disturb the trial court’s factual determination of contributory negligence in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In reaching its conclusion that Mrs. Chaney was guilty of contributory negligence, the trial court cited the ease of Palmieri v. Frierson, 288 So.2d 620 (La.1974), in which the Louisiana Supreme Court found contributory negligence on the part of the passing motorist, stating that before attempting to pass, the driver of an overtaking or passing vehicle has the duty to ascertain “from all of the circumstances of traffic, lay of the land, and conditions of the roadway, the passing can be completed with safety.” See also Bodin v. Dauphine, 351 So.2d 1275 (La.App. 1 Cir. 1977), writ denied, 353 So.2d 1340 (La.1978); Husser v. Bogalusa Coca Cola Bottling Company, 215 So.2d 921 (La.App. 1 Cir. 1968).

In Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7, 11 (La.App. 1 Cir. 1975), the Court found negligence on the part of both the passing and turning motorists, stating as follows:

“As a general rule, the driver of an overtaking vehicle, upon approaching another one from the rear is under a duty to exercise a great deal of care in keeping a lookout and to make certain that no change of course of the preceding vehicle is indicated. Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165 (1945); Jones v. Lungaro, 231 So.2d 60 (La.App. 1st Cir. 1970); Evans v. Thorpe, 175 So.2d 418 (La.App. 2nd Cir. 1965).
“It is not clear from the evidence whether or not Morgan gave a left turn signal, either timely or at all. It is clear though, that Adams did not observe and recognize any such signal. Adams stated in his testimony — he would not have passed had he noticed a left turn blinker.
“Whether or not Morgan gave a left turn signal, Adams was negligent in that he knew, or should have known, that the truck in front of him was decelerating and had reached a relatively slow speed of 15-25 miles per hour. This should have put Adams on notice that the preceding vehicle was no longer merely continuing on its course down the highway, but was preparing either to stop or turn. To continue his rapid overtaking and the subsequent passing maneuver under these conditions was negligent and a proximate cause of the accident. Evans v. Thorpe, supra; Johnson v. Wilson, 97 So.2d 674 (La.App. 1st Cir. 1957). On writs, the Supreme Court affirmed the negligence of the overtaking driver, but also found the left turning driver contributorily negligent. 239 La. 390, 118 So.2d 450 (1960).”

We find from the evidence in the record that the trial court did not commit manifest error in finding contributory negligence on the part of Virginia Chaney; she was negligent in executing her passing maneuver under the circumstances of this case and this negligence bars her recovery.

The appellant contends that even if she was negligent in contributing to the cause of the accident, she should be permitted recovery under the doctrine of last clear chance.

In Ricea v. Sagona, 392 So.2d 127 (La.App. 1 Cir. 1980), we listed the following requisites for the application of the doctrine: (1) that the plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that the defendant discovered, or was in a position to discover, plaintiff’s peril; and (3) that, at the time, the defendant could have, with the exercise of reasonable care, avoided the accident.

Obviously, in the opinion of the trial court, the plaintiff did not prove all of these elements. It is easy to see that he could have found element (3) lacking, since there was no way Cunningham could have reasonably avoided the accident in the brief moment that the Chaney car suddenly came alongside when he had commenced his left turn.

As stated in Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972), where a left-turning motorist and a passing motorist were involved in a collision:

“We also find, as did the Court of Appeal, 'that, after the drivers were committed to turning and passing, neither had a last clear chance to avoid the collision. To the contrary, their maneuvers were almost simultaneous, placed both drivers in peril, and left neither in a superior position to prevent the accident. The doctrine of last-clear-chance does not apply under these circumstances.”

(citations omitted)

After consideration of the record, we cannot say the trial judge was clearly wrong. Therefore, we will not disturb his findings.

Arceneaux v. Domingue, supra.

For these reasons, the judgment of the trial court is affirmed. The appellant is cast with costs.

AFFIRMED.


author: COLE, Judge.

text:
    Jasper PIRELLO v. TRIANGLE ENTERPRISES, INC.
    No. 14541.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Denied May 21,1982.

      Ashton L. Stewart, Baton Rouge, for plaintiff and appellee.
    Guy Holdridge, Gonzales, for defendant and appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff-appellee, Jasper J. Pirello, filed this action to annul a tax sale of certain immovable property to defendant-appellant, Triangle Enterprises, Inc. In lieu of trial, the parties entered into a stipulation of facts with attendant exhibits. The case having been submitted thusly, the trial court, for written reasons assigned, rendered judgment in favor of appellee, annulling and setting aside the tax sale on the ground that a partial payment of the taxes due on the property had been made prior to the sale. The court further decreed the return of all taxes, interest and costs paid by appellant on the property, together with legal interest thereon. From this judgment, the instant appeal was taken.

The following facts have been stipulated by the parties. Prior to July 1,1976, appel-lee, Jasper Pirello, was the owner of Lots 57, 58, 59, 60, 61, 62, 63, 64, 65, 76, 77, 78, 79, 80, 81, and 82 in Cambre Place Subdivision in Ascension Parish. Despite the fact that Lot 76 was purchased by a Mr. Henry Joiner on July 1, 1975, taxes for 1975 were assessed on all sixteen (16) of these lots, including Lot 76, under a single assessment (No. 10017) in appellee’s name. The amount of these taxes was $37.80. After appellee failed to timely pay these assessed taxes, all sixteen (16) lots were advertised for tax sale. Thereafter, Henry Joiner paid the Sheriff of Ascension Parish $7.09 for the sums purportedly due on Lot 76. Of this amount $2.36 (one-sixteenth of $37.80) was allocated for taxes with the balance representing interest and costs. Joiner was given receipt numbered 10017-A, issued by the Sheriff in the name of Jasper J. Pirello, “C/O Henry Joiner.”

In 1975, ten of the lots included in the single assessment were unimproved properties. The remaining six lots were improved in that each had constructed thereon an unfinished house. The unimproved lots, including Lot 76, had a market value of $1,000 each and the improved lots had a market value of $3,500 each. The 1975 assessment roll for the Parish of Ascension ascribed a single value of $800 for all 16 lots. In describing the property, this document does not indicate that any of the 16 lots were improved. In other instances the assessment roll noted the value of the land and the value of the improvements separately. The combined valuation was then carried over under a column designated “Actual value of all lands, lots or parcels of land and all improvements thereon.... ”

Appellant was the successful bidder at the tax sale held on April 7, 1976. The six improved lots and nine of the unimproved lots were conveyed to appellant by virtue of a properly executed tax deed. Appellant paid $35.44, plus interest and costs, for the conveyance. This represented fifteen-sixteenths of the advertised amount of taxes due on all 16 lots. Lot 76 was not included in the tax sale.

The principal issue presented, under the above established facts, is whether or not the payment by Henry Joiner of the taxes purportedly due on one of sixteen (16) lots assessed under appellee’s name, without first obtaining an assessment certificate as required by La.R.S. 47:2179, constituted a partial payment of the total amount of taxes due on all the property included in the assessment.

There is a long line of jurisprudence, acknowledged by both parties, and relied upon by the trial judge in his opinion, that a tax sale for taxes which were partially paid prior to the sale is null. Mecom v. Graves, 148 La. 369, 86 So. 917 (1921); Thompson v. Sanders-Lenahan Lumber Co., 147 La. 860, 86 So. 310 (1920); Doullut v. Smith, 117 La. 491, 41 So. 913 (1906); Harris v. Deblieux, 115 La. 147, 38 So. 946 (1905); Verret v. Norwood, 311 So.2d 86 (La.App. 3d Cir. 1975), writ refused 1975; LaCaze v. Boycher, 80 So.2d 583 (La.App. 1st Cir. 1955); Prampin v. Southern Chemical Works, 53 So.2d 210 (La.App.Orl.1951). It is for this reason that a determination as to whether or not such a partial payment occurred in the instant case is necessary. This determination hinges upon consideration of La.R.S. 47:2179.

La.R.S. 47:2179 provides:

“In all cases where two or more lots or parcels of ground shall have been assessed in any year or years to one person or firm at a certain valuation for the whole together without distinguishing the valuation of each lot or parcel separately, the tax collector is authorized to receive the proportion of taxes under assessment fairly due upon any one or more of such lots or parcels separately, such proportions to be ascertained and fixed by a certificate signed by the assessor and approved by the tax collector. Such lots or parcels upon which their proportions shall be so paid shall be free from the proportion of taxes pertaining to the other lots or parcels of such assessment.” (Emphasis added.)

It is stipulated the certificate required by La.R.S. 47:2179 was not provided when Henry Joiner sought to pay “the proportion of taxes under assessment fairly due” upon Lot 76 which he had purchased from appel-lee. It is obvious the tax collector (Sheriff) took it upon himself to prorate the taxes by simply dividing the total assessment by the number of lots.

Where the statutory provisions are followed, a pro rata payment of the taxes due on a specific lot or parcel of property cannot be considered a partial payment on the total amount of taxes due under the assessment. Since it is undisputed La.R.S. 47:2179 was not followed in the present case, in that the assessment certificate was not obtained, it is necessary to consider the effect, if any, this non-compliance with the statute had on the subsequent tax sale of the 15 lots to appellant. The statute itself provides no express sanction for non-compliance.

The position taken by appellee, as well as by the trial court, is that any payment of taxes not made in compliance with La.R.S. 47:2179 is to be considered a partial payment of the total amount of taxes due under the assessment, rather than a pro rata payment of taxes for a specific lot only. The basis of this argument is that, since La.R.S. 47:2179 provides the only authorization for pro rata payment of taxes on lots assessed together, there can be no such payments except in compliance therewith. Any other payment, regardless of the intent of the party making it, must therefore be regarded as a partial payment of the total amount of tax due on all of the property assessed together. Accordingly, the payment of taxes on Lot 76 by Henry Joiner was construed by the trial court to be a partial payment of the taxes due on all 16 lots assessed to appellee.

We quote with approval the following portions of the excellent reasons given by the trial judge.

“[T]he court finds that since the requirements of La.R.S. 47:2179 were not complied with, the tax sale must be set aside. As previously indicated, the law is clear that a tax sale made for taxes a part of which have been previously paid is an absolute nullity. Even though it is evident that Henry Joiner intended to pay only the taxes due on Lot 76 when Joiner appeared at the Sheriff’s office to pay the taxes he paid, the written law was not followed. The tax Collector (Sheriff) had no authority to determine that the taxes due on Lot 76 were $2.36. He only had authority to collect the taxes due as determined by the Assessor and the Louisiana Tax Commission. Actually if La.R.S. 47:2179 would not be in existance, the court knows of no procedure Joiner could have followed to pay the taxes due on Lot 76 without paying the entire amount due on all sixteen lots. La.R.S. 47:2179 clearly set forth the procedure to be followed in cases such as the case at bar when an individual wants to pay the taxes due on one specific piece of property which has been assessed jointly with other property. Since the procedure is clearly set forth in the law, it must be precisely followed. Otherwise, La.R.S. 47:2179 would have no purpose or meaning. In this case, the Sheriff accepted payment of $2.36 in taxes from Joiner. Since the certificate required by La.R.S. 47:2179 was not obtained by the Sheriff prior to his accepting the payment from Joiner, the payment by Joiner can only be considered a partial payment on the entire amount due on all sixteen lots. Hence, part of the taxes due on the property sold to defendant was paid prior to the tax sale. The sale must therefore be set aside and annulled. The plaintiff has met the burden of proof imposed upon him in this case.”
“[T]o determine that $2.36 in taxes was due on Lot 76, the Sheriff simply divided the total taxes ($37.80) due on all sixteen lots by sixteen. The evidence, as stipulated by the parties, was undisputed that there were partially constructed houses on six of the lots, whereas Lot 76 was vacant at the time the 1975 taxes were assessed. Under the law, the Assessor is required to consider the value of the land and improvements thereon when assessing property for tax purposes (See La. R.S. 47:1978) [sic ]. The Court assumes that the Assessor did in fact make these considerations in arriving at the total assessed value of the sixteen lots assessed jointly. There therefore seems to be a serious question whether the taxes due on Lot 76 is actually one-sixteenth of the total amount due and whether the proration made by the Sheriff was ‘fairly’ done. The taxes due on Lot 76 could have been more or, more likely, less than the amount actually determined by the Sheriff. Nevertheless, that decision was for the Assessor and the Louisiana Tax Commission to make rather than for the Sheriff and unless and until the certificate required by La.R.S. 47:2179 is obtained from the Assessor and approved by the Sheriff, any payments made and accepted by the Sheriff can only be considered a partial payment of the entire taxes due, rendering; any subsequent tax sale that takes place null and void.”

In line with the reasoning of the trial court, we observe the stipulated market value of all sixteen lots in 1975, including the improvements on six of them, was $31,000. Lot 76, having a market value of $1,000, represented 3.23% of the total value. This means a fair share of the taxes (3.23% of $37.80) for Lot 76 would have been $1.22. Henry Joiner actually paid $2.36. Based upon the stipulated values, this resulted in an overpayment of $1.14 which may logically be considered a partial payment of the taxes due on the remaining property.

There is a general presumption that public officials properly carry out their duties. While it may be presumed a tax sale would not be made had taxes been paid, it may also be presumed, as was here done by the trial judge, that the assessor in this instance considered the value of both the land and the improvements in arriving at the single assessed value of all the properties. See, Verret v. Norwood, supra; Staring v. Grace, 97 So.2d 669 (La.App. 1st Cir. 1957); Wright v. Cyprian, 96 So.2d 882 (La.App. 1st Cir. 1957). La.R.S. 47:1958 provides the assessor shall take into consideration the enhanced value of lots arising from the buildings and improvements thereon. This mandated duty gives rise to the aforesaid presumption and further validates the need to have the assessor sign the certificate required by La.R.S. 47:2179. This certification of the proportion “fairly due” upon any one lot when several are assessed as a whole protects both the taxpayer and the public. Further protection of the public fisc is afforded by requiring the tax collector (Sheriff) to approve the certificate. Hence we believe compliance with the requirements of La.R.S. 47:2179 is essential to avoid the equation of a tax payment intended for a single piece of property with the partial payment of taxes upon the remaining properties, all collectively assessed. Non-compliance would, therefore, result in the nullity of a tax sale such as is now before the court.

In support of the opposing position, appellant, while admitting the legal question presented is res nova in Louisiana jurisprudence, cites the cases of Thompson v. Sanders-Lenahan Lumber Co., supra, and Mansfield Hardwood Lumber Company v. Butler, 234 La. 322, 99 So.2d 129 (1958). Mansfield involved neither a “partial payment” of taxes nor the effect of non-compliance with La.R.S. 47:2179. The court, in Mansfield, did place emphasis upon the intention of the party making a tax payment but the absence of factual correlation precludes it as authority upon which appellant might rely.

Thompson, at first blush, does present support for appellant’s position. However, after a careful scrutiny of this 1920 opinion of our Supreme Court, we are unable to tell from the facts whether or not there was additional evidence before the court upon which it based its conclusion that none of the payment made related to taxes for which the property was thereafter sold. The stated facts strongly suggest such additional evidence was considered. To further complicate an understanding of Thompson, the court in that case was faced with the constitutional prescriptive period for bringing such an action. The holding that the action was barred by prescription left as uncertain the effect of non-compliance with the predecessor statute of R.S. 47:2179.

Thompson’s language, in construing similar facts, does negate partial payment of taxes in the instant matter. However, in Thompson, there is no explanation of how the various tracts of land were described or of the reasons why the tax amount allocated to the property sold was grossly disproportionate to the amount paid upon the property not sold. The property in contest consisted of several tracts of land supposed to contain 1,180 acres. The total acreage assessed under a single assessment was 6,680 acres, including the 1,180 acres in contest. An unknown person paid $372.90 of the $533.94 due upon the entire 6,680 acres. The $372.90, therefore, represented a payment allocated to 5,500 acres which were not sold. This left, though unstated in the opinion, the sum of $161.04 which had to be due upon the 1,180 acres. The acreage sold represented 17.66% of the total acreage. The taxes allocated to the acreage sold represented 30.16% of the total taxes due. The converse is that the acreage unsold represented 82.34% of the total; and, the taxes paid on that land represented only 69.84% of the total taxes due. From these facts it is easy to see how the court could conclude there was no previous payment of any part of the taxes for which the 1,180 acres were thereafter sold. Unlike the present case, the facts in Thompson strongly suggest an underpayment of taxes on the part deleted from the tax sale. In any event, in Thompson, the question of whether or not there was a partial payment of the taxes for which the property was later sold was treated as a factual one. In the instant matter it can be demonstrated that such a partial payment was made, whereas in Thompson the facts demonstrate an opposite result. We do not believe the court in Thompson intended to reach the question of whether or not non-compliance with the statutory requirement of having the certificate issued did, as a matter of law, convert the payment intended for certain acreage into a partial payment on all the property included in the single assessment. Here, we do answer the question in the affirmative but even if we treat the subject matter in a purely factual sense, we still find a “partial payment” was made.

Appellant further relies upon Section 25(C) of Article 7 of the 1974 Louisiana Constitution which, in part, provides:

“The fact that taxes were paid on a part of the property sold prior to the sale thereof .. . shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid.”

This provision of our constitution does not address the situation where part of the taxes were paid on all of the property sold. As we have seen, such is the factual situation now before us. Because all of the sixteen lots were under one assessment, the payment received by the sheriff cannot be said to be due for taxes “on a part of the property.” There was no separate assessment or taxes fixed for any one of the lots. This could only have been accomplished by invoking the provisions of La.R.S. 47:2179. Appellant argues from the erroneous premise that there was a payment of taxes only on Lot 76, which was not a part payment of taxes on all of the lots. As pointed out by appellee, there is a world of difference between a payment of the taxes on a part of the property, that is, one lot, and a part payment of the taxes on all sixteen lots. We find the purpose of the quoted constitutional provision is to validate the sale of property upon which all of the applicable taxes were clearly unpaid. It contemplates an assessment posture which permits a distinction to be made among respective properties and also among the tax sums which are individually applicable to the various property entities. The provision is clearly inapplicable to the factual context now before us.

Appellee challenges alternatively the advertisement of his property for tax sale as being defective thereby justifying annulment of the sale on this additional basis. The advertisement listed all sixteen of the lots even though Lot 76 was not to be sold because the taxes thereon were considered paid. This resulted in an advertised amount of $37.80 for the single assessment. However, based upon Henry Joiner’s payment, the lesser amount of $35.44 was considered due. We do not find it necessary to rule on the validity of this contention, having already determined the tax sale must be set aside on the basis of partial payment of the taxes. We do note that any difference in the amount advertised and the amount actually due must be substantial before the sale can be rendered a nullity. See, Lee v. Wood, 44 So.2d 349 (La.App. 1st Cir. 1950).

For the foregoing reasons, we affirm the judgment of the trial court. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . La.R.S. 47:1978 is incorrectly cited. The trial court undoubtedly meant La.R.S. 47:1958.


text:
    STATE of Louisiana in the Interest of the Minor, Blaine J. MICHEL.
    No. 14542.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Alan J. Robert, Gonzales, for juvenile & appellant.
    Ralph Tureau, Asst. Dist. Atty., Tureau & Mire, Gonzales, for state of La. & appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

The State of Louisiana filed this delinquency proceeding against Blaine J. Michel, charging him by petition with possession of marijuana on August 24,1980. At the close of the hearing, the Parish Court adjudicated him delinquent based upon a finding that he was guilty of possession of marijuana. Michel, who was 16 years of age at the time of the offense, was committed to the custody of the Louisiana Department of Corrections for a period of time not beyond his seventeenth birthday. He has appealed to this Court.

On appeal, Michel contends that the trial court’s determination should be reversed on the ground that the State failed to prove beyond a reasonable doubt an essential element of the charge, i.e., possession of the marijuana.

This Court has recently affirmed use of the reasonable doubt standard of review enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in reviewing the sufficiency of evidence in a juvenile proceeding. In the Interest of Franklin, 399 So.2d 671 (La.App. 1 Cir. 1981). The Jackson standard is to review the sufficiency of the evidence by determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

The record reflects that on August 24, 1980, at about 9:30 p. m., defendant was riding around Gonzales in the Parish of Ascension in an automobile owned and driven by Melvin Fontenot. Michel was seated in the right front seat and Daniel Melancon was occupying the rear seat. Because the vehicle had an excessively noisy muffler, two Gonzales police officers stopped it. As the officers approached the Fontenot car, they observed the passenger in the rear seat (Melancon) act suspiciously by ducking quickly out of sight as though he was hiding something beneath the front seat. Both officers approached the Fontenot vehicle and ordered the occupants to get out of the car. When Melancon did so, one of the officers saw a green vegetable substance that appeared to be marijuana on Melan-con’s pants. The officer also saw the same substance scattered on the back seat of the car. Melancon admitted that the substance was marijuana. In due course, the owner of the car, Fontenot, consented to a search of the vehicle by the officers. Thereupon, the officers found two packages of a green vegetable matter that, upon testing, proved to be marijuana. At the scene, the officers placed all three subjects under arrest. Testimony at the trial disclosed that Fontenot, Melancon and Michel were returning from purchasing the marijuana and cigarette papers to roll joints.

From this evidence, appellant argues that the State did not prove beyond a reasonable doubt that Michel “possessed” the marijuana in question. It is established that a person need not physically possess the marijuana (controlled dangerous substance) to violate the prohibition against possession; constructive possession is sufficient. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). If a controlled dangerous substance is subject to a person’s dominion and control, regardless of whether it is in his physical possession, he is held to have “possession” (constructive possession) within the meaning of the law. State v. Edwards, supra. Moreover, a person may be in joint possession of a drug which is in the physical possession or custody of a companion where he wilfully and knowingly shares with the other the right to control of the drug. State v. Marks, supra; State v. Smith, 257 La. 1109, 245 So.2d 327 (1971).

The record reveals that Michel participated in the purchase of the marijuana and the entire activity. Defendant made no attempt to withdraw from the vehicle as Melancon prepared to “roll a joint” and smoke it. At the time the officers stopped the vehicle, Michel was as much a party to the possession of the marijuana as his two companions. Only the stopping of the car by the police at that moment prevented Michel and his companions from engaging in the smoking of the marijuana.

After carefully considering the entire record, we conclude that the Parish Court was not manifestly erroneous or clearly wrong in its finding that Michel was guilty as charged beyond a reasonable doubt. See State in Interest of Giangrosso, 385 So.2d 471 (La.App. 1 Cir. 1980).

For the foregoing reasons, we affirm the judgment of the Parish Court.

AFFIRMED.


text:
    Glyndol A. TALLEY and Susan G. Talley v. CAPITAL BANK AND TRUST COMPANY, Gerard Enterprises, Ltd., and Bill Day Home Builder, Inc.
    No. 14550.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Robert Talley, Baton Rouge, for plaintiffs-appellants Glyndol A. Talley and Susan G. Talley.
    Leon Gary, Baton Rouge, for defendant-appellee Capital Bank and Trust Co.
    Bobby L. Forrest, Baton Rouge, for defendants-appellees Gerard Enterprises, Ltd., and Bill Day Home Builder, Inc.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

Plaintiffs Glyndol A. Talley and Susan G. Talley brought this suit against Capital Bank & Trust Company, Gerard Enterprises, Inc. and Bill Day Home Builder, Inc., alleging the following circumstances:

Plaintiff entered into a contract dated October 28, 1977, to purchase a lot and improvements thereon from Bill Day, which was to construct the improvements. Bill Day then made a construction loan with Capital Bank, secured by a mortgage on the subject property dated November 21, 1977. Plaintiffs recorded their purchase agreement on June 5, 1978. On August 16, 1978, Bill Day filed suit against plaintiffs, the litigation arising out of construction delays.

On September 23, 1980, the property was conveyed by Bill Day to Gerard Enterprises. On November 17, 1980, Capital foreclosed via executive on Gerard, and a writ of seizure and sale issued, which further ordered the cancellation of the inscription of plaintiffs’ purchase agreement. The property was purchased by Capital Bank at sheriff’s sale on January 21, 1981, for $544.32.

Plaintiffs asked for a temporary restraining order and preliminary injunction to prevent Capital Bank from disposing of the property; that the cancellation of their purchase agreement be annulled; that the sale from Bill Day to Gerard be annulled and its inscription cancelled; and that the sheriff’s sale to Capital Bank be annulled.

The temporary restraining order was issued on March 16, 1981, at 2:55 p. m., and expired by its own terms on March 26,1981, at 2:55 p. m. On April 2, 1981, after the rule for the preliminary injunction had been tried, Capital Bank filed a rule to dissolve the temporary restraining order, asking for damages and attorney’s fees for the wrongful issuance thereof.

On March 27, 1981, the matter came on for hearing on the rule for a preliminary injunction, at which hearing no evidence was offered by plaintiffs, other than the record in the executory proceeding. The only ground argued to the district court for granting the preliminary injunction was that there were errors in the executory proceeding filed by Capital Bank against Gerard.

Defendants offered in evidence the purchase agreement between Bill Day and plaintiffs and testimony as to the circumstances of the transfer from Bill Day to Gerard.

After the hearing, the matter was taken under advisement. On April 2, 1981, written reasons for judgment were handed down in which the court dissolved the temporary restraining order and denied the preliminary injunction. Both Capital Bank and Bill Day were awarded $500.00 as attorney’s fees in connection with the dissolution of the temporary restraining order. Judgment was signed accordingly, and plaintiffs have appealed. In this court, plaintiffs complain of the failure of the trial judge to issue the preliminary injunction, and the assessment of attorney’s fees for the dissolution of the temporary restraining order.

Plaintiffs argue that the trial judge improperly applied the law relative to preliminary injunctions in that he required a greater burden of proof of plaintiffs than is required by Articles 3601 of the Code of Civil Procedure.

Article 3601 provides:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law;
“During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
“Except as otherwise provided by law, an application for injunctive relief shall be by petition.”

Our courts have consistently held that to obtain a preliminary injunction under the above article, plaintiff “must show that the injury, loss or damage he will suffer may be irreparable if the injunction does not issue. He must of course show that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits of the case.” General Motors Acceptance Corp. v. Daniels, 377 So.2d 346, 348 (La.1979).

Plaintiffs in this case have proved nothing, and are clearly not entitled to in-junctive relief. The only evidence offered by them was the executory proceeding filed by Capital Bank against Gerard, and they point to no errors or deficiencies therein. There is no showing of irreparable injury.

However, the trial court erred in awarding attorney’s fees for services rendered in connection with the dissolution of the temporary restraining order. The order had expired by its own terms, as well as by law, before the hearing on the preliminary injunction was held; no motion to dissolve was filed on behalf of Bill Day Home Builder; and the motion filed on behalf of Capital Bank was filed several days after the order had expired. See Davis v. Raymond Petroleum, Inc., 396 So.2d 600 (La.App.3rd Cir. 1981).

The judgment appealed from is therefore affirmed insofar as it denies the preliminary injunction; the judgment is reversed insofar as it awards attorney’s fees to defendants, and their prayer in this respect is denied. Costs of this appeal shall be equally shared by plaintiffs and defendants. All costs in the trial court shall be borne by plaintiffs.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


author: EDWARDS, Judge.

text:
    Robert D. WEST, Individually and as Administrator of the Estate of his Minor Son, William Mark West v. Louis W. JONES, Individually and as Administrator of the Estate of his Minor Son, Louis Jones.
    No. 14552.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Joel B. Dickinson, Baton Rouge, for plaintiffs-appellants Robert D. West, et al.
    A. E. Easterly, III, W. Arthur Abercrom-bie, Jr., Baton Rouge, for defendants-appel-lees Louis W. Jones, et al.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This personal injury action arises out of an altercation between two minor boys who were involved in a basketball game in the Baker High School Gymnasium. Plaintiff’s son, William Mark West, and defendant’s son, Louis Jones, were playing in a pickup basketball game when they became involved in an argument. The argument escalated into a shoving match which culminated with West being hit in the mouth by Jones and losing three teeth.

Plaintiff, Robert West, brought this suit on behalf of his minor son, seeking damages for the injuries. The trial court rendered judgment for the defendant, dismissing plaintiff’s claim. Plaintiff has appealed. We affirm.

The trial judge gave oral reasons for judgment. He accepted Jones’ version of the altercation. Jones testified that West acted first, pushing him in the chest, and that he, Jones, reacted by hitting West. West had testified that he was walking away from Jones when Jones pushed him, and when he turned around, Jones struck him in the mouth.

Counsel for plaintiff makes three assignments of error. In his first assignment, he asserts that the trial court erred in dismissing plaintiff’s suit in light of La.C.C. art. 2318. Plaintiff’s other two assignments of error are phrased in generalities and it is difficult to understand the contentions raised thereby. Apparently, counsel for plaintiff argues that the trial court erred in finding that plaintiff was the aggressor in the confrontation and that defendant did not use excessive force in defending himself. We will treat all three assignments together.

LSA-C.C. art. 2318 provides as follows:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
“The same responsibility attaches to the tutors of minors.”

Under the provisions of this article, the father is only liable for damages caused by the fault of the child. See Turner v. Bucher, 308 So.2d 270 (La.1975); Deshotel v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (1971).

A plaintiff may not recover damages for battery if the evidence establishes that he is at fault in provoking the incident in which he was injured. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Rahm v. Exxon Corp., 399 So.2d 676 (La.App. 1st Cir. 1981). An exception to this rule, however, allows plaintiff to recover under such circumstances if the defendant used excessive force in repelling the attack. Tripoli v. Gurry, supra; Graves v. Irwin, 396 So.2d 384 (La.App. 1st Cir. 1981); Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977).

The issues of West’s role as an aggressor and excessive force used by Jones were factual issues to be resolved by the trial court. As such, they should not be reversed unless a review of the entire record reveals them to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rahm v. Exxon, supra; Andrepont v. Naquin, supra.

The trial court’s reasons for judgment indicate that its decision was based on a finding that plaintiff’s son was the aggressor and defendant’s son used reasonable force in defending himself. Both conclusions are amply supported by the evidence in the record. West and Jones both testified as to their respective versions of the incident. Two other boys who were involved in the basketball game testified that West had provoked the incident by shoving Jones, and that the initial shove by West was very forceful. Under those circumstances, Jones response of striking West with his fist seems justified. The trial court was not clearly wrong in reaching that conclusion. Arceneaux v. Domingue, supra.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. John H. BURNETT.
    No. 14563.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Bryan Miller, Robert Ledoux, Baton Rouge, for plaintiff & appellant.
    Vincent J. Sotile, Talbot, Sotile, Car-mouch, Marchand & Waguespack, Donald-sonville, for defendant & appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This is an expropriation case involving the Gonzales-Sorrento section of Interstate 10. Defendant owns a 1.874 acre tract of land fronting approximately 205 feet on La. Hwy. 44 with a depth of 410 feet. The part expropriated fronted on La. 44 and was a 1,639 square foot triangular portion in the northeast corner of the tract. The purpose of the taking was to widen La. 44 to provide for the merging lane from the “down ramp” of Interstate 10.

The petition of expropriation was filed February 25, 1972. The State of Louisiana, through the Department of Highways (hereinafter referred to as the State), deposited the sum of $489 as just compensation for the land taken. Defendant Burnett did not answer the petition until February of 1979. In his answer he asserted the land was worth $12,000 and asked for $50,000 in severance damages.

At trial various experts testified as to the value of the land taken. The State produced two expert real estate appraisers, Oren Russell and Daniel Carlock. Mr. Russell testified the best use of the property was residential with commercial potential. He valued the part taken at $489. This estimate was based on a value of $171 for the land and $318 for the driveway located on the expropriated part. Mr. Carlock stated the best use of the land was residential and estimated its worth at $150 for the land and $477 for the driveway, a total of $627. Both experts based their estimate on various residential sales in the area and neither found evidence of any severance damages.

The defendant’s real estate expert, Kermit Williams, testified the best use for the land was commercial. Using various comparable commercial sales in the area he estimated the part taken to be worth $3,277.80 and found severance damages of $33,459.00, equalling a total of $36,736.80.

In reasons for judgment, the trial court agreed with defendant’s expert that the best use of the land was commercial and therefore accepted Mr. Williams’ valuation of the land. He further agreed with Mr. Williams that severance damages were due and therefore awarded the amount mentioned above. From this judgment the State has appealed.

The first issue to be determined is whether or not severance damages were due the landowner. After carefully reviewing the record we conclude the trial court was clearly wrong in awarding such damages and therefore we reverse on this issue.

The gist of the severance damage issue is whether or not the land taken was a part of the “controlled access facility.” The defendant contends any lands expropriated in connection with the Interstate 10 project are a part of the controlled access facility. (“Controlled access” means that persons may enter and exit the highway only from certain predesignated points or with special permission from the state.) Therefore he claims the value of his remaining land is greatly reduced because he is virtually “blocked off” from La. 44 except for the portion of his land that was not expropriated. He admits he presently has free access along the expropriated area but contends the State could deny him this access at any time. The State argues the remainder of defendant’s land abutting the part taken is presently not part of the controlled access area, nor is there any intention on the State’s part to make it so in the future.

The trial judge was influenced by the language in the petition and in the order of expropriation, which could admittedly be interpreted as including this land as a part of the controlled access facility. The language found in the petition reads as follows:

“Petitioner desires and proposes to construct in the Parish of Ascension a certain project designated as State Project No. 450-11-08, Federal Aid Project No. 1-10-4(21)180, Dutchtown-Sorrento Interstate Highway (Gonzales-Sorrento Section) State Route La. 1-10, which project provides for the construction of a controlled-access facility in Ascension Parish along proposed State Route I — 10, including flare areas, interchanges, drainage structure and access and service roads and other appurtenances, beginning at the southerly end of State Project No. 450-11-02... . ” (Emphasis added.)

Defendant contends the land in dispute, not fitting any other category, fits under the heading of “appurtenances.” He argues the phrase “controlled-access facility . .. including ... appurtenances” means that the appurtenances are a part of the controlled access facility. We find this language ambiguous and subject to at least two interpretations. One could interpret it as defendant argues, that the term “controlled access facility” refers to the items enumerated, including the “appurtenances.” Under this interpretation the land expropriated would definitely be a limited access area and defendant would be entitled to any proven severance damages.

However, an equally logical interpretation is that the word “project” is derivative of all the enumerated items, therefore meaning that the “appurtenance” is merely included as a part of the project. This interpretation seems, quite reasonable when one notes that at least two of the specified items, the service and access roads, are definitely not controlled access areas, although they may be considered part of the project. The very purpose of a service road is to allow the abutting land owners ingress and egress since they are denied free access to and from the interstate highway.

The language found in the order of expropriation is equally ambiguous.

“AND IT IS HEREBY FURTHER ORDERED that the full ownership of the tract or parcel of land described hereinafter as Parcel No. 4-5 ... is expropriated and taken for highway purposes as of the time of such deposit, according to law, for the Dutchtown-Sorrento Interstate Highway (Gonzales-Sorrento Section), and its appurtenances, on State Route La. 1-10, being State Project No. 450-11-08, Federal Aid Project No. I — 10— 4(21)180, a controlled-access facility with no right of access to, from or across said facility to or from abutting lands except at the designated points at which access is permitted upon the terms and conditions specified from time to time and upon the service, frontage or access roads .. .. ” (Emphasis added.)

Again, defendant insists this language means the appurtenances are a part of the controlled access facility. We note it is specifically stated here that there is free access to the service roads.

If we had to decide the State’s intention on the basis of the language in these written documents alone, we would be hard pressed to determine whether or not this piece of land is part of the controlled access facility. But fortunately we are aided by a plat attached to the petition. The petition described the property and then refers to an outline of the property as shown on an attached plat of survey, marked “exhibit P-3.” The petition states the plat is “made a part hereof.” The order of expropriation also describes the property and then refers to the plat which is “annexed to the above numbered suit.”

Under La.Code Civ.P. art. 853, “A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Therefore we examined the plat and concluded there is no doubt the subject tract is not a part of the controlled access property. At trial Mr. Russell was asked to point out on the plat where the control of access ended. He did so and circled the words “End C. of A.” which appear at a point about 1,428 feet away from the subject property. The defendant’s property is clearly not included within the controlled access area, therefore he is not entitled to severance damages on this basis.

We note it is well settled that when there is a discrepancy between information contained in a pleading and information contained in an attached exhibit, the exhibit will control. State v. Ward, 314 So.2d 383 (La.App. 3d Cir. 1975), writ refused 1975. Jennings v. Prejean, 216 La. 645, 44 So.2d 325 (1950). Therefore we do not hesitate to state that when the language in the petition is ambiguous, and the information provided by the attached plat is perfectly clear, the plat will control.

The trial court noted that although there had been no attempt by the State to limit defendant’s access to his remaining property, the problem might arise sometime in the future. We note simply our declaration that the remaining property is free of any access control by the State protects the landowner. One of the things demanded by defendant is severance damages based upon loss of access. When the judgment, as amended, becomes final, this matter is res judicata and can not be relitigated. La.Civ. Code art. 2286 and art. 3556(31). La.Code Civ.P. art. 927 and art. 934. If the State ever desires to limit the access to defendant’s remaining property it will have to initiate another expropriation proceeding and compensate the landowner for the right taken.

The remaining issue is whether or not the trial court abused its discretion in accepting the estimated land value provided by Mr. Williams. The evidence revealed La. 44 is the “main drag” from Gonzales to the industrial complex located on the Mississippi River. This is a growing area and one that supports many commercial enterprises. We find no error in the court’s conclusion that the best use of the land was commercial, rather than residential. Mr. Williams offered as comparables nine sales of commercial properties in the vicinity of La. 44. We note the two experts for the State did not offer any comparable sales of commercial properties, (because they stated the best use for the property was residential) therefore the trial court had only Mr. Williams’ comparables to consider. We find no manifest error in the trial court’s acceptance of Mr. Williams’ estimate in determining the value of the land taken.

For the foregoing reasons we amend the judgment of the trial court by reducing the total award from the sum of $36,736.80 to the sum of $3,277.80, the reduced amount being subject to a credit of $489.00 previously deposited into the registry of the court. The net award is to bear statutory interest from the date of the taking until paid. In all other respects the judgment of the trial court is affirmed.

Costs of this appeal are- to be paid by the plaintiff, subject to the exemptions of law.

AMENDED AND AS AMENDED, AFFIRMED.


text:
    STATE of Louisiana in the Interest of Leroy WHITE.
    No. 14564.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Kay Howell, Asst. Dist. Atty., for the State.
    Kathleen Richey, court-appointed, Baton Rouge, for defendant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

Leroy White appeals a finding of delinquency made by the trial court.

The State’s witnesses identified Leroy White as one of three men who robbed the proprietor and patrons of Jenny’s Lounge. The witnesses testified that Mr. White was masked with a tan bandanna and armed with a pistol. He was identified as the person who went behind the bar, took a cigar box with money in it, robbed the cash register, took the money off of a money tree, and took wallets and purses from the people in the bar.

Leroy White admitted his participation in the robbery. However, he testified that he was unarmed, unmasked and participated in the robbery because one of the other participants had threatened to shoot him if he did not. Mr. White testified that he met the other two men, whom he knew only slightly, and that they invited him to a party. When they were passing the lounge, the men suggested they get a drink, but, Mr. White testified, he refused because he was under age. One of the men then produced a gun and told him that if he did not help them rob the lounge, he would be shot. Mr. White testified that he participated in the robbery without further demur because he was afraid not to.

The trial judge found that the State had proved its case beyond a reasonable doubt, and that the defense of compulsion had failed. In this court, Mr. White contends that the court erred in not accepting his unrebutted testimony relative to compulsion.

R.S. 14:18 reads, in part, as follows: “The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
“(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or .. . . ”

This defense must be proved by the defendant by a preponderance of the evidence. State v. Landry, 381 So.2d 462 (La.1980). In this ease, Leroy White offers only his own unsupported and self-serving testimony to prove his defense that he was compelled or coerced into participating in the armed robbery. His testimony as to the particulars of the robbery differs materially from that of the victims who testified. There was, therefore, a substantial basis for rejecting Mr. White’s testimony as to the circumstances leading up to the crime. We agree with the finding of the trial judge that Mr. White did not prove his defense by a preponderance of the evidence, and find no merit in the assignment of error.

The finding of delinquency and the disposition are therefore affirmed.

AFFIRMED.