text:
    Drucilla Ann THERIOT, Plaintiff & Appellant, v. Russell HUVAL, Defendant & Appellee.
    No. 8752.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Shelton & Legendre, Thomas F. Porter, IV, Lafayette, for plaintiff & appellant.
    Hawley & Schexnayder, W. Paul Hawley, Lafayette, for defendant & appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

This appeal involves a rule by the father, Russell Huval, against the mother, Drucilla Theriot, to change custody and terminate child support of their three minor children. The trial judge changed custody to the father. The mother appeals. We affirm.

GENERAL FACTS

The parties separated on October 15, 1978, at which time the three minor children of the marriage remained with their mother in the family home in Breaux Bridge. A judgment of separation was rendered in favor of the wife on December 15, 1978, granting her custody of the three children.

In September, 1979, Mrs. Huval began dating Mr. Leo Quibodeaux, a divorced man who lives in Eunice. During the course of this relationship, Mr. Quibodeaux became a frequent visitor at Mrs. Huval’s home and often stayed overnight with her children present.

On February 13, 1981, the parties were divorced by a judgment which also awarded the mother custody of the children and child support.

In May of 1981, the oldest child, Karla, left her mother’s home and moved in with her father, because difficulties between Karla and her mother had precipitated two incidents in which Mr. Quibodeaux used physical force on Karla. Mrs. Huval agreed to the child’s living with Mr. Huval, at least until she and Karla could resolve the conflicts between them.

On May 28, 1981, Mr. Huval filed a rule for legal custody of Karla and a proportionate reduction in child support. On June 11, 1981, he married again, this time to Theresa Huval, a distant cousin of the former Mrs. Huval. On July 29,1981, Mrs. Huval countered by filing a rule to increase child support. Mr. Huval then filed an additional rule, seeking custody of all three children and termination of child support.

At the time of the trial, the children, Karla, Kayla and Kurry (the only boy), were 15, 11 and 6 years old respectively.

The three rules were consolidated for trial and heard on August 5-6, 1981. Pursuant to written reasons, final judgment awarding custody of all three children to the father and terminating child support was rendered August 20, 1981.

APPLICABLE LAW

LSA-C.C. Article 157 provides in pertinent part:

“Art. 157. Custody and tutorship of children; visitation rights of grandparents
A. In all eases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children;”

A well settled jurisprudential rule in cases involving child custody is that the trial court’s determination of what is in the best interest of the children must be accorded great weight by the reviewing court and may be overturned only upon a clear showing that the trial judge abused his discretion. Stephenson v. Stephenson, 404 So.2d 963 (La.1981); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Cleeton v. Cleeton, on rehearing 383 So.2d 1231 (La.1980). A determination of the best interest of the children involves a consideration of the totality of the facts and circumstances of the children and the parents in each individual case. Ferguson v. Ferguson, 398 So.2d 1238 (La.App. 4th Cir. 1981).

SITUATION OF THE MOTHER

The mother and the two younger children were residing in Breaux Bridge at the time of the trial. Mr. Quibodeaux was living and working in Eunice, about 55 miles from Breaux Bridge, on a job which entailed his being on duty 12 hours a day for seven days, and then off duty seven days. On his seven days off duty, he began staying overnight at Mrs. Huval’s home, at first only one or two nights a week, but later as much as five nights a week, up until two weeks before the trial of this matter. Some weeks he went alone. Other weeks he brought with him his two sons of his previous marriage, aged 11 and 12.

Mrs. Huval and Mr. Quibodeaux testified that most of the time he slept in her living room or in the beauty shop connected to the house. Both stated they had never slept together in the house with the children present, but they admitted they did have sexual relations at various times, including three or four occasions at Mrs. Huval’s residence and 15 or 20 times at his home in Eunice.

Both Karla and Kayla testified that they were aware that their mother and Mr. Qui-bodeaux had slept together in Mrs. Huval’s bedroom at various times. 15-year-old Karla stated she knew this from discussions of the matter with her mother. Kayla, age 11, testified that she had actually seen the two of them in bed together, and she was aware of the sexual activity occurring between them.

Little attempt was made to be discreet about Quibodeaux’s overnight visits in Mrs. Huval’s home. Various friends, relatives and neighbors were aware of the fact that Mr. Quibodeaux frequently slept at the house. He would park his quite distinctive truck at Mrs. Huval’s house or in the vicinity, where it was noticed. The two girls stated that the relationship between their mother and Mr. Quibodeaux was embarrassing to them.

When the couple first began dating, the Huval children got along with Mr. Quibo-deaux fairly well. However, as noted by the trial court, over a period of time, his continued frequent presence and the presence of his two sons began to take their toll, especially on the two Huval girls.

Karla, now in her mid-teens, has developed problems in getting along with her mother. Mr. Quibodeaux’s presence exacerbated the arguments which flowed from the discipline problems. On two separate occasions he became involved in these mother-daughter disputes. On the first of these occasions, because Mrs. Huval was unable to hold Karla in order to spank her, he held her down so that her mother could hit her with a belt. During the second incident, when Karla was very upset, crying and shouting, Mr. Quibodeaux hit and slapped her several times and then pushed her against a brick wall. As a result of this confrontation, Karla moved from her mother’s household to live with her father, and a criminal charge was brought against Mr. Quibodeaux. He pleaded guilty to simple battery and paid a fine. After that, Karla visited her mother very little, since Mr. Quibodeaux continued to spend quite a lot of time at the house.

The trial judge stated in his written reasons that it is to Karla’s best interest to continue to live with her father^ as she is unquestionably much more settled there, and the situation at her mother’s house was obviously intolerable for her.

The younger daughter, Kayla, has her own difficulty with the situation as it existed at the time of trial, not so much with Leo Quibodeaux as with his sons. She stated she never had any trouble with Mr. Quibodeaux, but since the second incident between him and Karla, she has been afraid of him. She does not, however, get along with his two sons, who are about her own age, because they harass her and will not allow her privacy or time for her own friends when they are there. Apparently, Mrs. Huval wants Kayla to entertain the two boys during their frequent visits, and Kayla feels that her mother always takes their side against hers in any disagreement.

Both Mrs. Huval and Mr. Quibodeaux testified that they plan to get married in the future, but no date has been set. Mrs. Huval recently lost her job in Breaux Bridge and has been seeking employment in Eunice. She plans to move to Eunice to be near Quibodeaux, whether they are married or not, and wants to move the children with her.

There was no attempt to show that the physical needs of the children have not been provided by Mrs. Huval, or that the children have been physically neglected.

SITUATION OF THE FATHER

Mr. Huval also resides in Breaux Bridge, in a three bedroom home. In June of 1981 he married Theresa Huval, who is distantly related to his former wife, and has known the children for six or seven years. She used to babysit for them frequently. According to all the testimony, the children get along with her very well. The evidence indicates that Mr. Huval has a very close relationship with all of his children, and concerns himself with their education, discipline and religious training. He spends as much time as possible with them.

The mother admits Mr. Huval has always been hard working and sober, and is well able to provide his children’s needs. He has always contributed to their support. He is settled in his employment, which allows him time with the children, and is also settled in his home life.

His wife will be available to care for the children while he is working. Plaintiff-appellant has raised a question as to whether Theresa Huval is a suitable person for the responsibility, since she had not seen her own 13-year-old son of her prior marriage in two years at the time of this trial. However, the trial judge was able to view her demeanor while on the stand and accepted her explanation that the child had been alienated from her by his father, and had expressed a desire not to see her. The judge found that this fact did not render her unfit to provide guidance and day-today care for the children with whom we are concerned here.

Plaintiff-appellant argues the evidence that Mr. Quibodeaux did not regularly sleep in her bedroom shows they do not live in concubinage. She cites Cleeton v. Cleeton, supra, where the mother was guilty of weekly adultery, but not concubinage. Our Supreme Court stated there that a custody award is not a tool to be used to regulate human behavior, and may not be used to punish a mother for past behavior when there is no proof of detrimental effect on the children. Plaintiff contends that the instant case and Cleeton, wherein the Supreme Court returned custody to the mother, are very similar factually. We nevertheless note that Cleeton also stands for the proposition that the determination of the trial court shall not be disturbed upon appeal unless clear abuse of discretion is shown. In Cleeton the trial court initially left custody of the children with the mother, favoring stability of environment and noting that the children had prospered under her care. This judgment was reversed by the Court of Appeal, but the Supreme Court held that the trial court determination was entitled to greater weight than it had received. It was held that the lower court had not abused its discretion, and that its judgment should be reinstated.

In the recent case of Stephenson v. Stephenson, supra, the facts were that at the time of the hearing on the preliminary custody rule the mother was living in concubinage, but at the time of the subsequent hearing for permanent custody her paramour had moved out of her trailer home. Both testified they planned to marry as soon as the paramour’s divorce became final. Before rendering his final decision, the trial judge satisfied himself outside the record that the mother had actually married her paramour, and then the judge granted the mother permanent custody of a four-year-old girl. The Court of Appeal reversed on the basis of Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979). The Supreme Court granted writs and reversed the Court of Appeal and reinstated the trial court judgment. It held Schexnayder is distinguishable since there the mother’s sexual relations were so indiscreet that it would have had a detrimental effect on the children, and, moreover, that the evidence showed the mother neglected the physical needs of her children. The court stated the trial judge erred in going beyond the record for confirmation of the marriage, but the record showed they intended to marry as soon as the paramour’s divorce became final. In Stephenson, the Supreme Court also emphasized the rule that in child custody cases the determination of the trial judge is entitled to great weight and will not be disturbed unless a clear showing of abuse of discretion is made. The present case is readily distinguished from Stephenson for the reasons that the trial judge here found in his discretion that the best interest of the children will be served by awarding their custody to the father, and the totality of the evidence here supports this conclusion.

We feel that in the case before us the trial court properly considered not only the moral aspect of the mother’s relationship, but the effect of the relationship as a whole on the children. The two girls testified they were not only embarrassed by their mother’s sexual relations with Mr. Quibo-deaux, but also they were afraid of him and were resentful of their mother’s favoring him and his children over her own children. The trial judge summarized his findings as follows:

“Unfortunately, it is clear to the Court that Drucilla Huval is putting her affection for her paramour ahead of the best interest of her children. The almost public display of Quibodeaux spending the night very frequently at Drucilla Huval’s home indicates a lack of concern for the welfare of the children and the feelings about the public in general. The further statement that she will follow her paramour to Eunice, uproot the children from their home, friends, family and school in Breaux Bridge, clearly indicates that she is just not thinking clearly of the welfare or the best interest of her children.”

The father, on the other hand, is settled in Breaux Bridge and plans to remain there. All the children have always lived in Breaux Bridge, and all their friends and family are there. Mr. Huval has shown that he can provide more than adequately for his children’s needs and furnish them with a good home life. Stability of environment is certainly relevant to a determination of the best interest of the child, and is to be weighed with all the other factors relevant to such a determination. Bordelon v. Bordelon, supra. While it might not generally be in the best interest of the child to be moved from one parent to another, and these children have long been in their mother’s care, inasmuch as she plans to move elsewhere in order to continue seeing her paramour, a change in custody in this case will promote rather than defeat stability, since the father plans to remain in Breaux Bridge.

Both of the girls testified they preferred to live with their father, and especially wished to remain in Breaux Bridge rather than move to Eunice. As this Court held in Vidrine v. Demourelle, 363 So.2d 943 (La.App. 3rd Cir. 1978), it is proper to give more than casual consideration to the wishes of the children in light of their feelings of insecurity which would be experienced if placed with a certain parent. That case also involved two daughters who were much the same age as the Huval girls.

The trial court found that clearly the best interest of Karla and Kayla would be served by their remaining in Breaux Bridge with their father. He stated in written reasons that it would be intolerable for Karla to stay with her mother “certainly not in Eunice, and not even in Breaux Bridge, with Quibodeaux around.” Kurry, age 6, apparently has no problem with the situation as it exists at present, inasmuch as he is not yet of the age of discernment. However, leaving the custody of this child with his mother would ultimately result in his being uprooted from a familiar environment, and separated from his sisters and father, as well as his other relatives and friends. The rule on split custody was stated by our Supreme Court in Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969):

“[1] The separation of children of a family, though sometimes necessary, is a custodial disposition that courts seek to avoid. Normally, the welfare of these children is best served by leaving them together, so they can have the full benefit of companionship and affection. When feasible, a court should shape its orders to maintain family solidarity.”

See also Schramm v. Simpson, 343 So.2d 423 (La.App. 3rd Cir. 1977); Arnold v. Arnold, 376 So.2d 528 (La.App. 3rd Cir. 1979). The trial court found that here such a separation of the children would be both unnecessary and undesirable.

We conclude there is no clear abuse of the trial judge’s discretion.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Lenis HEBERT, Plaintiff, v. Gordon VICE, et al., Defendants, Arrowglass Boat and Manufacturing Company, Inc. and Admiral Insurance Company, Defendants-Third Party Plaintiffs-Appellants, Norris Marine, Inc., Defendant-Third Party Defendant-Appellee.
    No. 8753.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Graham N. Smith and Timothy J. McNamara, Lafayette, for defendant-appellant.
    Cooper & Cooper, Terry B. Loup, Baton Rouge, for plaintiff-appellee.
    Voorhies & Labbe, E. Gregory Voorhies, Lafayette, Roy, Forrest & Lopresto, Alex Lopresto, III, New Iberia, Broussard, Broussard & Moresi, Paul G. Moresi, Abbe-ville, Davidson, Meaux, Sonnier & Roy, V. Farley Sonnier, Lafayette, Guglielmo & Lopez, James T. Guglielmo, Opelousas, for defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This case comes to us on appeal from a judgment of the trial court dismissing, by summary judgment, the third party demand of third party plaintiffs-appellants, Arrow-glass Boat and Manufacturing Company, Inc. (Arrowglass), and Admiral Insurance Company (Admiral), against third party defendant-appellee, Norris Marine, Inc. (Norris). We reverse and remand to the district court for proceedings consistent with this opinion.

The plaintiff in this matter, Lenis Hebert, originally filed suit for damages resulting from injuries he sustained in a boating accident which allegedly occurred on April 17,1977. Plaintiff claims that he was riding in a boat manufactured by Arrow-glass when the driver of the boat lost control and ran it into a riverbank. Plaintiff contends, among other things, that while crossing an oncoming vessel’s wake the driver of the boat he occupied lost control when the seat in which said driver was sitting came loose from the boat’s deck and pulled away from the steering wheel.

Plaintiff initially named as defendants the boats’ owners, their operators, and the liability insurer of the boat in which he was riding, but later amended his petition to include Arrowglass, its insurer, Admiral, and a local boat retailer, Norris. Norris then filed a motion for summary judgment. A hearing was held on February 17, 1981, and by minute entry dated March 25, 1981, Norris obtained summary judgment dismissing it from the lawsuit.

After the hearing, but before the judgment of dismissal was entered, Arrowglass and Admiral filed a third party demand against Norris alleging that Norris was guilty of the following specific acts of negligence:

(a) Relocating the driver’s seat in the boat without using a sufficient number of screws to insure that the seat was safely remounted and would not come loose from the decking;

(b) Tampering with and/or modifying the fastening of the driver’s seat to the boat deck as it came from the factory;

(c) Moving the driver’s seat in the boat and remounting it without observing proper safety standards to insure the seaworthiness of the means by which the seat was mounted on the deck;

(d) Removing the factory supplied screws which fastened the driver’s seat to the deck, and substituting screws of a different quality which were unseaworthy and likely to deteriorate because of rust;

(e) Other acts of negligence.

Further, in paragraph (10) of their third party demand, Arrowglass and Admiral allege:

“Additionally, and in the alternative, third party petitioners aver that after the boat was sold by Norris Marine, Inc., to defendant, Gordon W. Vice, it was returned to Norris Marine, Inc. for service and remounting of the seat, and that Norris Marine, Inc. was negligent in its execution of that remounting, in the same particulars as set forth in paragraph (9) above.”

At that point, Norris filed another motion for summary judgment on the claim of Ar-rowglass and Admiral against it. The hearing was held on that motion on June 15, 1981, and judgment of dismissal was entered on June 13,1981, dismissing the third party demand. This appeal is taken from that judgment.

Appellants contend on appeal that the trial court erred in granting Norris’ motion for summary judgment in two respects:

(1) In finding that there was no genuine issue of material fact as to whether or not Norris remounted the boat seat which allegedly came loose; and

(2) In finding that the alleged defects in this particular watercraft could not be easily detectable by Norris in a simple routine inspection.

Louisiana Code of Civil Procedure Article 966 provides that a mover is entitled to summary judgment if the proceedings, depositions, admissions on file, affidavits, and answers to interrogatories show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

It is well settled in our jurisprudence that a motion for summary judgment is not a substitute for a trial. Further, all doubt concerning a dispute as to a material issue of fact must be resolved against granting a motion for summary judgment and in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973).

In Masbburn v. Collin, 355 So.2d 879 (La.1977), the Louisiana Supreme Court stated at page 890:

“A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. And where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion.” (Footnote references deleted).

Appellants’ first contention is that there is a genuine issue of material fact namely: who improperly reinstalled the boat’s driver’s seat with only four screws instead of six?

In support of its motion for summary judgment, Norris offered the affidavits of its owner, Wilton Norris, Jr., and the owner of Thomas Gulf Marine, Inc., Alfred Thomas. In response to Norris’ motion, Arrow-glass and Admiral offered the depositions of Bobby Franks, who was in charge of final assembly for Arrowglass at the time this boat was produced, Harry Schmeisser, Jr., who was President of Arrowglass at that time, and Gordon Vice, the boat’s owner. Appellants also offered an affidavit from James Waynne, who inspected the boat and the remains of the seat mountings on February 9, 1981.

Both Messrs. Norris and Thomas testified that neither Thomas Gulf Marine, Inc. nor Norris Marine, Inc. modified or repaired the seats while the boat was in their respective possessions. They further stated that the boat had been sold to each of them with the seats completely installed. Mr. Franks, on the other hand, testified in his deposition that he oversees the final assembly of the boats of this type manufactured by Arrow-glass. Part of his duties as department head for final assembly is to oversee the inspectors who make the final inspections on these boats. Whereas it is true that Mr. Franks does not inspect every boat himself, he supervises those who do. Mr. Franks further testified that he has never seen seats improperly installed in this type of craft. Finally, Mr. Franks stated that no seats left the plant without first meeting his standards, i.e., fastened down with six screws.

In essence, Norris contends that neither he nor his predecessor, Thomas Gulf Marine, Inc. reinstalled the boat’s seat with only four screws. Contrarily, Arrowglass submits that it installs all seats of this type with six screws, and that no boat is allowed to leave its plant until completion of a final inspection. This inspection includes, according to Mr. Franks, the checking of the seat’s pedestal base to confirm that all six screws are properly installed.

Inferences to be drawn from the underlying facts contained in materials before this Court must be viewed in a light most favorable to Arrowglass and Admiral who oppose Norris’ motion for summary judgment. Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981). When we closely scrutinize Norris’ position and more indulgently treat the opposing deposition, we conclude that Norris has failed to satisfy its burden of proving the absence of a genuine issue of material fact relating to its position of non-tampering with the boat seat. It seems obvious to us that a genuine issue of material fact exists as to whether or not the seat in question was improperly reinstalled with only four screws, and, if so, by whom. Therefore, Norris’ motion for summary judgment on this issue should have been denied by the district court.

Appellant’s second contention is that the trial court erred in determining that defective installation could not have been detected upon simple routine inspection of the watercraft.

In a minute entry dated July 1,1981, the trial judge adopted the reasons given in his March 25, 1981 minute entry for granting Norris’ motion for summary judgment. The pertinent part of the March 25, 1981 minute entry reads as follows:

“It is well established in Louisiana law that a non-manufacturer seller is not responsible for damages in tort absent a showing that he knew or should have known of the defect in the product. Spillers v. Montgomery Ward, 294 So.2d 803, 1977. There is no duty imposed upon the seller to make minute inspection or to disassemble the product to search for defects. Spillers, supra. The most recent affirmation of this principle occurred in Harris v. Bardwell, 373 So.2d 777, 2d Cir., 1979, in a factual situation similar to the one presented here. The Court found that ‘the fact that none of the six screws in the pedestal base went into the keel-board was not detectable by simple inspection with the naked eye’ and therefore the seller was not presumed to know the defects of the thing.
Arrowglass maintains that there were ten (10) screw holes in the decking beneath the carpet and the seat, and that the seller should have lifted the carpet to inspect the way in which the seat was mounted and then warned the defendant that six (6) screws were insufficient to secure the seat. The Court finds no merit in this argument. Norris Marine submitted affidavits stating that they received the boat from Thomas Marine, Inc. with the seats completely installed and that no modifications or repairs of any kind were made to the seats subsequent to receipt. The Court finds that the defect existing in the boat could not be detected by reasonable inspection and, therefore, the seller was not presumed to know the existence of the defect and has no liability in tort.”

The district court correctly points out that there is no duty imposed upon the seller, who is not the manufacturer, to make minute inspections or to disassemble the product to search for defects. There was imposed upon the seller, however, the duty to perform routine, normal inspections in the business, upon receipt of the product, cheeking and discovering those defects which are patent and obvious. See Peltier v. Seabird Industries, Inc., 304 So.2d 695 (La.App. 3rd Cir. 1974) and the cases cited therein.

The present case is unlike the Harris case, supra, relied on by the trial judge. In Harris, as the trial judge notes, the issue was whether or not two of the six screws in the pedestal base of the seat penetrated the boat’s keelboard which is located beneath the boat’s flooring. In that case it was determined that a simple routine inspection would not reveal a defect resulting from the failure of two screws to penetrate the keelboard, since the keelboard is not visible to the naked eye. The same is not true in the case before us. Neither Mr. Thomas nor Mr. Norris addresses in their affidavits whether or not they could have detected that two screws were missing from the seat support had they made a simple routine inspection. Their affidavits merely stated that they did not initially install the seat or subsequently remount it. Both the affidavits of Mr. Waynne and the deposition of Mr. Schmeisser, on the other hand, clearly point out that had two screws been missing from the seat space this could have easily been discovered by merely lifting the boat’s seat and viewing same. Removal of the carpet, as the trial judge indicates, was not necessary. Accordingly, we find that there is a genuine issue of material fact as to whether or not the alleged defect in the seat installation was obvious and could have been discovered upon routine inspection by Norris.

For the above and foregoing reasons the judgment of the trial court is reversed and the case is remanded to the district court for proceedings consistent with this opinion.

Costs of this appeal are to be assessed against third party defendant-appellee, Norris Marine, Inc. Assessment of all other costs to await final disposition of the case.

REVERSED AND REMANDED.

      . Plaintiff also contends that the accident partially resulted from the large wake created by the passing vessel and negligent operation by the driver of the boat in which he was a passenger.

      . Thomas Gulf Marine, Inc. had sold the boat to Norris prior to Norris’ sale to its present owner.


author: SWIFT, Judge.

text:
    TRUNKLINE GAS COMPANY, Plaintiff-Appellee, v. Edwin A BELL, et al., Defendant-Appellant.
    No. 8755.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    R. William Collings, Lake Charles, for defendant-appellant.
    Charles D. Viccellio and William B. Monk of Stockwell and Associates, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

This is an expropriation suit instituted by Trunkline Gas Company against Edwin Bell. From a judgment awarding compensation and special damages in the total amount of $19,793.74 and an additional sum of $2500 for an attorney’s fee, the defendant has appealed.

The suit was filed on June 6, 1979, to obtain a servitude across Bell’s property for the construction and maintenance of a petroleum pipeline. The petition alleged that the plaintiff had offered the defendant a price in excess of the true value of the right of way and damages which was refused. The defendant answered, alleging that the plaintiff’s offer did not reflect the true value of the servitude and severance damages all of which the defendant estimated to be in excess of $100,000. Bell also sought a reasonable attorney’s fee and special damages necessitated by the relocation of his mobile home.

A stipulation was entered into between the parties in which they acknowledged Trunkline’s rights to lay, construct and maintain the pipeline on the property, to the use of temporary work spaces and to a permanent right of way 30 feet in width, 15 feet thereof on each side of the pipeline, upon completion of construction. The parties also stipulated that the issues to be presented at the trial were “the compensation of the defendant and the amount therefor, both in the value of the right of way taken and the severance damages, if any, of the remainder of the property.”

When the case was tried each party presented evidence as to the value of the property taken, the value of the temporary working spaces and the severance damages to the remainder of the property. The defendant also introduced evidence as to special damages incurred in the relocation of this mobile home in the amount of $6,957.80. This included $2811.74 for rewiring the unit. Both in a letter dated October 29, 1979, and during the trial the plaintiff acknowledged that the defendant was due $4,146.06 for these special damages, but it denied any indebtedness for rewiring the mobile home as not being required by the move.

The trial court awarded judgment in favor of the defendant for $4,345 as compensation for the permanent right of way taken, $2,930 as the value of the temporary working space, $9,707 for severance damages and $2500 as an attorney’s fee. It also awarded $2811.74 in special damages for rewiring the mobile home. However, neither the judge’s written reasons nor the judgment mentioned the balance of the cost of relocating the home ($4,146.06) which the plaintiff admitted it owed the defendant.

During the trial the defendant attempted to offer into evidence a contract between these parties dated August 29, 1979, which granted Trunkline a right of entry to the property and specified that the latter would utilize a method known as “double ditching” in laying pipeline. Also offered was the testimony of a botanist that the plaintiff had physically damaged the topsoil in the right of way by failing to double ditch and also had damaged a number of trees. The plaintiff timely objected to the introduction of such evidence, as well as the defendant’s testimony that it would take approximately 3000 cubic yards of topsoil costing $11 or $12 per cubic yard, to repair the damage. The objections were sustained and the defendant then proffered such evidence under LSA-C.C.P. Art. 1636.

The issues presented by this appeal are whether the trial court erred in failing to award the additional sum of $4,141.06 in special damages for relocating the mobile home and in sustaining the objection to the evidence as to the other special damages to the top soil and trees. Neither party has questioned the court’s other determinations which we find are amply supported by the record.

It is clear that the trial court inadvertently omitted the additional $4,141.06 relocation cost from the award for special damages in the judgment. As stated above, the plaintiff acknowledged both in a letter dated October 29,1979, and during the proceedings that these expenses were due to the defendant as necessary expenses in moving his trailer because of the expropriation. Consequently, the judgment of the trial court must be amended to add this amount.

Addressing the other issue, this court was confronted with a similar situation in State, Department of Transportation & Development v. Van Willet, 389 So.2d 1346 (La.App. 3 Cir. 1980). In that case the state sued to expropriate certain property of the defendant for the construction of a highway. During the trial the defendants attempted to introduce evidence to show that the plaintiff effectively prohibited the use of the defendants’ property for nearly six years through an unwarranted delay in expropriation. The defendants contended that such action resulted in a loss for which they should be compensated. This issue was never raised in the pleadings and the trial court sustained the plaintiff’s objection to the introduction of expert evidence relating to the out-of-commerce claim. We held that the trial court had not abused its discretion in sustaining the objection and also refusing to permit the landowner to amend the pleadings during the trial in order to admit such evidence.

In the present case the only allegation in regard to special damages in the pleadings is the claim of $9,904.47 for relocating the mobile home in paragraph 10 of the defendant’s amending answer. No mention is made therein of the contract of August 29, 1979, or damages to top soil or trees. In the stipulation mentioned above the parties specified that the issues to be presented at the trial were the amount of compensation for the right of way taken and the severance damages to the remainder of the property.

Since the claims for the other special damages to topsoil and trees were never raised in the pleadings, the trial court properly held that the evidence in regard thereto was inadmissible and it is not before this court.

The defendant also seeks an increase in the award of attorney’s fees for expenses in perfecting and presenting this appeal. Considering the fact that the majority of this work concerned the second issue mentioned above which has been decided adversely to the appellant and also that the inadvertent omission, by the trial court in the award of special damages most probably would have been corrected through a motion for a new trial had one been filed, this court feels an increase of $250 for the attorney’s service on this appeal is sufficient.

For the reasons assigned, the judgment of the trial court is amended to increase the awards for special damages by $4,146.06 and for the attorney’s fee by $250. In all other respects, the judgment is affirmed. The costs of this appeal are assessed to the parties in equal proportions.

AMENDED AND AFFIRMED.

      . Mr. Bell’s tenant was also joined as a defendant, but he was dismissed from the suit following a compromise settlement.


author: FORET, Judge.

text:
    CITY OF LAFAYETTE, Louisiana, Plaintiff-Appellee, v. DELHOMME FUNERAL HOME, INC., Defendant-Appellant.
    No. 8759.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Davidson, Meaux, Sonnier & Roy, J. J. Davidson, III, Lafayette, for defendant-appellant.
    J. M. Wooderson, Lafayette, for plaintiff - appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

The City of Lafayette (Plaintiff) brought this action to expropriate certain property owned by defendant, Delhomme Funeral Home, Inc., after defendant refused to sell the property to it. The trial court rendered judgment in favor of plaintiff, and we affirm.

Defendant appeals and raises the following issues:

(1) Whether plaintiff has carried its burden of proving that the expropriation was necessary for the public interest, and
(2) Whether plaintiff had acted reasonably in deciding to expropriate defendant’s property.

FACTS

There is no serious dispute regarding the facts of this case. Plaintiff sought to acquire a portion of defendant’s property, located on the east side of Moss Street, to widen and improve the intersection of that street with the Willow Street-East Pine Street connection. The improvement consists of the addition of a left-turn lane on Moss Street to the north and south of the intersection and will require the taking of approximately twelve feet of defendant’s property fronting on Moss Street. The project is designated as Arterial Street Paving Project A-10-73, and plaintiff has declared it to be a public necessity.

Plaintiff instituted this action on July 14, 1980, alleging: that defendant is the owner of two parcels of land, the acquisition of which is necessary to provide sufficient right-of-way to carry out the above mentioned project; that it has conducted good faith bona fide negotiations with defendant in an attempt to acquire these parcels; that despite these good faith negotiations and the tender of the true value of the parcels to defendant, it has been unable to effect an amicable purchase of the property; and, that because of defendant’s actions, it is now necessary and proper that the property be expropriated by judgment of the trial court. Plaintiff filed a notice of lis pendens covering the parcels to be expropriated in the public records of Lafayette Parish.

By stipulation of the parties, the only issue before the trial court and on appeal is whether plaintiff had a right to expropriate the property in question.

NECESSITY OF EXPROPRIATION FOR THE PUBLIC INTEREST

Defendant contends that the trial court committed manifest error in finding that plaintiff had proved that the expropriation of its property was necessary for the public interest. Defendant argues that there was no evidence presented to the trial court to support such a finding.

Plaintiff, a municipal corporation, relies on the power given it by the state legislature in LSA-R.S. 19:102 in attempting to expropriate defendant’s property. LSA-R.S. 19:102 provides, in pertinent part:

“§ 102. Expropriation by municipal corporations
Where a price cannot be agreed upon with the owner, any municipal corporation of Louisiana may expropriate property whenever such a course is determined to be necessary for the public interest by the governing authority of the municipality, provided, however, in case of the acquisition of any electric light, gas or waterworks property or plant, or of any railroad property, such determination shall not be conclusive as to whether the purpose of the taking is necessary, which, if contested, is a judicial question to be decided independently by the trial judge.” (emphasis provided.)

It is our opinion that LSA-R.S. 19:102 precludes judicial review of the issue of whether an expropriation of property by a municipal corporation is necessary for the public interest, whenever that determination has been made by the governing authority of the municipality, subject to the exceptions, made in LSA-R.S. 19:102, to the effect that when a municipal corporation seeks to expropriate certain types of property, then its determination as to the necessity of the expropriation for the public interest shall not be conclusive, and, if contested, is subject to judicial review.

In the present action, plaintiff’s governing authority has made a determination that the expropriation of defendant’s property is necessary for the public interest. Inasmuch as the purpose for expropriation does not fall within its exceptions, LSA-R.S. 19:102 precludes us from reviewing that determination in the absence of unreasonableness, arbitrariness, etc.

PLAINTIFF’S SELECTION OF DEFENDANT’S PROPERTY FOR EXPROPRIATION

Defendant contends that the trial court committed manifest error in finding that plaintiff’s selection of its property for expropriation was not arbitrary, capricious, or made in bad faith, or that the decision constituted an abuse of plaintiff’s discretion. Essentially, defendant argues that plaintiff made its decision on the basis of inadequate economic and feasibility studies, and/or that plaintiff did not consider an alternate route or location, i.e., across the street from defendant’s property.

Generally, in expropriation proceedings, the selection of the route or location of the property to be expropriated made by the expropriating authority, whether such authority is a public or private entity, will not be disturbed unless such authority has abused its discretion, acted in bad faith, or acted arbitrarily or unreasonably. Louisiana Power & Light Company v. Caldwell, 353 So.2d 1343 (La.App. 1 Cir. 1977), writ denied, 354 So.2d 1045 (La.1978); City of New Orleans v. Kreher, 327 So.2d 551 (La. App. 4 Cir. 1975); Parish of Jefferson v. Marsh Investment Corp., 398 So.2d 27 (La. App. 4 Cir. 1981), writ denied, 401 So.2d 994 (La.1981); Evangeline Parish Police Jury v. Deville, 247 So.2d 258 (La.App. 3 Cir. 1971).

Charles T. Mader (Mader) testified that he was a civil engineer associated with the engineering consulting firm of Sellers, Dubroc, and Associates (Sellers). Sellers was the firm which designed the left-turn lane for plaintiff, and Mader was the chief engineer who supervised the design. Mader stated that Sellers recommended to plaintiff that all of the property needed for the construction of the left-turn lane be taken from the east side of Moss Street, where defendant’s property is located. This recommendation was made because a taking of property on the west side of Moss Street would have necessitated the complete relocation of a service station and would have been more costly. Mader was asked if any consideration had been given to taking six feet from each side of Moss Street to make up the total of twelve feet needed for the lane. He replied that no consideration was given to that alternative because it would have necessitated the involvement of more property owners, which would have caused a corresponding increase in the cost of the project. Mader also noted that most of the utilities are located on the west side of Moss Street and that these might have to be relocated, if property were taken from that side and that no relocation of any business would be necessitated by a taking of property on the east side.

Also testifying on behalf of plaintiff was Tony Tramel, the city traffic engineer for the City of Lafayette. He testified that the intersection had become problematical, and that he had field observations of the intersection in question conducted more than twelve times in the last three or four years; that he had personally spent twenty to thirty hours working on the problems at that intersection; that his staff had spent approximately forty-five man hours studying this one intersection. He further testified that the lack of a left-turn lane increases delays, increases accidents, increases gas consumption for the motoring public, and generally makes the intersection more inconvenient for the motoring public.

Defendant relies greatly on the testimony of an expert witness in traffic engineering, one Duaine T. Evans, who was tendered as an expert by the City and was accepted as such by defendant. It is interesting to note, however, that although the City called Evans to testify, that he was actually employed by the defendant, and further that defendant repeatedly objected to the City’s questioning Evans on direct examination. Be that as it may, it is obvious that the trial court placed more reliance on the testimony of Mader and Tramel, over the testimony of Evans, in its finding that the City has not acted unreasonably, arbitrarily, or capriciously in proceeding to expropriate defendant’s property.

Our review of the record establishes that the trial court’s finding is not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . See Resolution R-2024 of the City of Lafayette recorded at Act No. 79-031102 of the Public Records of Lafayette Parish.

      . The principle of appellate review to the effect that an appellate court should not alter a trial court’s finding of fact in the absence of manifest or clear error is applicable in expropriation matters. State, Dept. of Transp. & Development v. Boyce Gin Cooperative, Inc., 397 So.2d 1087 (La.App. 3 Cir. 1981); City of Lafayette v. Cason, 393 So.2d 424 (La.App. 3 Cir. 1980); State, Dept. of Transp. & Development v. Van Willett, 386 So.2d 1023 (La.App. 3 Cir. 1980), writ denied, 392 So.2d 692 (La.1980).

      . Of course, LSA-R.S. 19:102 does not preclude judicial review of the issue of whether an expropriation is being made for public purposes as required by LSA-Const. Article 1, § 4.


author: LABORDE, Judge.

text:
    Esther GREENHOUSE, Plaintiff-Appellant, v. GREAT SOUTHWEST FIRE INSURANCE COMPANY, Defendant-Appellee.
    No. 8760.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Rodney Rabalais, Marksville, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Esther Greenhouse seeks damages for personal injuries sustained when she slipped and fell on a sidewalk in the custody of the Town of Marksville. The Town was insured by the defendant, Great Southwest Fire Insurance Company. The trial judge rendered judgment in favor of the defendant. Plaintiff appeals. We affirm. We conclude that plaintiff failed to prove the sidewalk was defective, that is that it created an unreasonable risk of harm to her.

Esther Greenhouse, on the date of the accident, September 2,1980, was walking in a northerly direction on the sidewalk on the east side of North Washington Street in the Town of Marksville. She carried a bag of groceries and was accompanied by her two (2) minor daughters. She slipped and fell at a point between Steve’s Auto Parts and “The Weekly News” office. At the location of her fall, the sidewalk slants downward toward the street due to a driveway that crosses the sidewalk. As a result of her fall plaintiff sustained a fracture of the fifth (5th) left metatarsal head of her left foot.

Plaintiff’s testimony relative to the condition of the sidewalk, given in response to her attorney’s questions, follows:

“Q. O.K. so you were walking along North Washington Street in the direction from The Weekly News to Steve’s Auto Part, is that correct?
A. Yes, sir.
Q. What kind of day was it, Mrs. Greenhouse? Was it wet, rainy, — was it dry, sunny?
A. No, it was dry; it was sunny.
Q. There was no water on the sidewalk?
A. No.
Q. Did you travel that sidewalk very often?
A. Not too often.
Q. O.K. Mrs. Greenhouse, could you tell me what happen on that day, what kind of accident you had?
A. Well, I was walking, and I just fell and slipped.
Q. Do you know what caused your fall?
A. Not exactly.
Q. You lost your footing on the sidewalk?
A. Yes, sir. I slipped and fell.
Q. Was the sidewalk level? Was its surface slanted?
BY MR. VIZZIER: (Defense Counsel)
Your honor, I’m going to object; he’s leading the witness.
Q. Could you describe the part of the sidewalk that you slipped on?
A. Yes, I can. The walk is not even; it’s not — it has a slide; it’s not even; it do have a slide there.
Q. Did you hurt yourself as a result of this fall?
A. Yes, sir, I did.
Q. What kind of damages did you sustain?
A. Well, I fractured my foot.”

Plaintiff also testified that the accident occurred in the afternoon, between 4:00 and 4:30 P.M.; that it was still daylight; that her vision was not impaired; and that she was not distracted in any manner. The testimony of plaintiff’s minor daughters was only that their mother slipped and fell.

Photographs of the area show that the site of the fall was simply a driveway crossing the sidewalk. The incline across the sidewalk is from the street level to the level of the drive a total of approximately 8 inches. The photographs do not reveal any imperfections in the construction of the sidewalk or of the driveway nor do they reveal any imperfections in or deterioration of the concrete surface.

The trial judge found that the plaintiff failed to prove the existence of a defect stating:

“... I don’t see that there’s been any proof here today that there is an unreasonable risk of injury to another by virtue of this sidewalk construction or existence.”

On appeal, plaintiff contends that this suit is governed by LSA-C.C. art. 2317 (strict liability). We agree. Recently our Supreme Court in Shipp v. City of Alexandria, 395 So.2d 727 (La.1981) described the legal foundation for imposing liability under article 2317 in the following terms:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.
Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1978), citing Loescher v. Parr, supra [324 So.2d 441] at 446. An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Jones v. City of Baton Rouge, supra; Loescher v. Parr, supra.

In the case under consideration, the record fully supports the trial judge’s conclusion that the sidewalk and driveway across the sidewalk presented no unreasonable risk of harm to plaintiff.

The driveway slanting across the sidewalk is easily discernable to anyone traversing the area. Plaintiff had used the sidewalk before. The weather was sunny, the sidewalk was dry and it was broad daylight. The fact that plaintiff fell does not elevate the condition of the sidewalk to an unreasonably dangerous vice or defect. Shipp v. City of Alexandria, supra. We conclude that plaintiff has failed to prove the necessary elements required for recovery under article 2317. See Walker v. James W. Salley, Inc., 412 So.2d 159 (La.App. 3rd Cir. 1982).

For the above and foregoing reasons the judgment of the trial court is affirmed at plaintiff-appellant’s cost.

AFFIRMED.


text:
    Bobby LEWIS, et ux., Plaintiffs-Appellants, v. Leslie Michael TILL, et al., Defendant-Appellee.
    No. 8765.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Trimble Randow, Percy, Smith, Wilson & Foote, Lon P. Wilson, Alexandria, for plaintiffs-appellants.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

Scott A. Lewis, the minor son of Bobby and Jennifer Lewis, died after he was struck by a pickup truck in a neighbor’s driveway on Madeline Street in Alexandria, Louisiana, at about 4:30 p. m. on July 7, 1979. The parents filed suit, averring negligence on the part of the minor driver of the pickup, Michael Till. Also made defendants were Till’s parents (Mr. and Mrs. Eubanks) and their alleged insurers. The various defendants answered, alleging contributory negligence on the part of the deceased child’s mother. The father, Bobby Lewis, made an alternative demand against his own homeowner’s insurer, Fireman’s Fund Insurance Company, asserting that if his wife was negligent he is entitled. to recover against Fireman’s Fund. A summary judgment was rendered in favor of Fireman’s Fund as to all claims except funeral expenses. This court affirmed the summary judgment as to the denial of general damages and remanded the case for trial on the merits as to the claims for medical and funeral expenses. Lewis v. Till, 387 So.2d 706 (La.App. 3 Cir. 1980). A writ was granted to review the partial summary judgment in favor of Fireman’s Fund. 393 So.2d 740 (La.1980). The supreme court held that the father’s rights to recover in the survival action and also for the wrongful death of his son were unaffected by the mother’s negligence, thereby reversing Fireman Fund’s summary judgment and remanding the matter for a trial on the merits. Lewis v. Till, 395 So.2d 737 (La.1981).

Thereafter the plaintiff settled with all defendants except Fireman’s Fund. After trial the court concluded that Jennifer Lewis was not guilty of negligence which caused the death of her son and dismissed the suit. The father appealed.

At trial the uncontradicted testimony of Jennifer Lewis revealed that Scott Lewis was 18 months old at the time of his death. He was an active child who liked to explore. Mrs. Lewis allowed him to play outside, but always kept him in his own yard and never allowed him to play in the front yard by himself. It was not unusual for other children to play in the front yards of the neighborhood. Madeline Street, on which the Lewis’s house faced, was not a through street. It either came to a dead end or ended at a cross street approximately two blocks from the Lewis home.

On the day of the accident Scott Lewis and his mother were sitting on the front porch of their house. Mrs. Lewis saw young Till drive into the driveway of the Powers family who lived two houses down from the Lewis home on the same side of Madeline. Afterwards Scott left the porch and began wandering around the yard. On one occasion he ventured toward the street and his mother called him back into the yard. Subsequently Mrs. Lewis got down into the flower bed beside her front steps and while facing the house she began to pull some weeds. She said that in doing so she could hear Scott and she looked from time to time to see where he was. During all of this time the child had not gone out of the yard. In some five minutes after Mrs. Lewis last saw Scott he evidently wandered across the Lewis’s next door neighbor’s yard and into the Powers’ driveway where he was struck by the Till truck as it was backing towards the street. Mrs. Lewis testified she could hear Scott for part of these five minutes talking and playing with his dogs. The accident took place about 50 to 75 feet from where the mother was pulling weeds.

The sole issue presented by this appeal is whether the trial court committed manifest error in failing to find Jennifer Lewis guilty of negligence which caused the death of her son.

As our supreme court stated in Smolinski v. Taulli, 276 So.2d 286 (La.1973):

“Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence.... A mother of small children is not required to chain them up or to act as their constant jailer in order to absolutely secure them from exposure to hazards negligently created or maintained by a tortfeasor. She is required only to use reasonable precautions, and her conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.” [Citations omitted.]

In Smith v. Trahan, 398 So.2d 572 (La. App. 1 Cir. 1980) the court was confronted with a similar factual situation as the present case. The father brought suit on behalf of his five year old son who was struck by a pickup truck driven by Mrs. Trahan. The defendants contended that recovery was barred by contributory negligence on the part of the parents. The evidence revealed that both parents were outside near their son when the accident occurred. The father was painting a ladder in a neighbor’s yard and the mother was across the street. Neither of them were immediately supervising the child’s activities, but both knew that he was riding his tricycle on the same side of the street as his home. The child pedaled his tricycle into the street where he was struck by the defendant’s pickup truck. The trial court found that the parents were contributorily negligent in permitting their child to play unsupervised near a heavily traveled street. Applying the jurisprudential principles established in Smolinski, the Court of Appeal, First Circuit, reversed the finding on contributory negligence on the part of the parents and awarded judgment in favor of the plaintiff.

In the instant case Mrs. Lewis was in the yard with Scott. She kept him well within seeing or hearing range. When she was working in the flower bed she would occasionally look up to see where Scott was located.

We believe there is ample support in the record for the trier of fact to have found that Mrs. Lewis acted as a reasonably prudent person while supervising Scott in the front yard and therefore she was not negligent in failing to guard against the child being struck by the Till truck. We cannot say that under the circumstances the factual determination of the trial court in this respect was clearly wrong.

For the above reasons, the judgment of the district court is affirmed. The cost of this appeal is assessed to the plaintiff-appellant.

AFFIRMED.


text:
    Darlene DELRIE, Plaintiff-Appellee, v. TRANSPORT INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8773.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendants-appellants.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This damage suit arose out of a head-on collision between an eighteen wheeler and an automobile which occurred on Louisiana Highway 3110 (commonly referred to as the Natchitoches By-Pass) in Natchitoches Parish, Louisiana. Plaintiff-appellee, Darlene Delrie (the automobile driver), seeks damages from defendants-appellants, Jackie Wayne Hicks (the truck driver), and Transport Insurance Company (the liability insurer of the truck), resulting from injuries she sustained in said accident. The trial court rendered judgment against defendants and in favor of plaintiff for $1,454.85, together with legal interest and costs. We affirm.

The accident occurred on April 5,1981, at approximately 3 o’clock A. M. on Louisiana Highway 3110, a two-lane paved highway running north and south just outside the City of Natchitoches. Immediately before the accident occurred, plaintiff was traveling north on the highway and defendant Hicks was approaching her heading in a southerly direction. The vehicles collided one and one-half feet from the highway center line in the northbound lane. We recount the testimony regarding the incidences leading up to impact in order to reveal the total circumstances under which the accident at issue on appeal occurred.

Plaintiff and her guest passenger, Donna Wimmer, both testified that around 9 P.M. the previous evening, they left Miss Wim-mer’s home to go out dancing and drinking. At around 3 A.M. they decided to call it a night and departed the Home Plate Bar to plaintiff’s vehicle. According to plaintiff and Miss Wimmer, as they left the parking lot onto Louisiana Highway 3110 they turned right into the nearside lane heading north. Plaintiff testified that as she left the Home Plate parking lot she noticed an eighteen wheeler further up the road heading south. After traveling a short distance, plaintiff realized that the oncoming eighteen wheeler had crossed partially into her lane, but before she could do anything they collided. Both plaintiff and Miss Wimmer stated that upon leaving the parking lot they turned into; the northbound lane, and at no time did plaintiff’s vehicle cross the center line of the highway into defendant’s lane of traffic.

Defendant Hicks, on the other hand, testified that as he approached this particular strip of highway, he noticed the presence of several all night business establishments, and accordingly, he reduced his speed to about 45 miles per hour. As he proceeded, he noticed plaintiff’s vehicle at a distance leaving the Home Plate parking lot turning north. He testified that as plaintiff entered the highway, she crossed the northbound lane and entered the southbound lane and veered slightly to the shoulder of the road. According to Mr. Hicks, it appeared that plaintiff was going to his right and headed in the direction of the Cotton Patch Restaurant or the Amoco Service Station, both of which are located on the western side of the highway. Mr. Hicks claims he continued to slow his vehicle, but did not stop since plaintiff had moved to the west shoulder of the road on his right side. Mr. Hicks further claims that as he approached the plaintiff’s vehicle, which was on the west shoulder, he veered to the left in order to clear plaintiffs vehicle when, suddenly and without warning, plaintiff cut back across his lane directly into his path. Consequently, he was forced to slam on his brakes and subsequently collided with plaintiff’s vehicle one and one-half feet to the left of the centerline of the highway.

Officer John Pueblo of the Natchitoches Police Department investigated the accident. His findings verify that the accident occurred one and one-half feet inside plaintiff’s lane of traffic. He testified that upon investigating the scene of the accident he could not find any evidence which would indicate that plaintiff’s vehicle ever entered the southbound lane of traffic. Officer Pueblo further stated that he smelled alcohol on plaintiff’s breath.

A blood alcohol test was performed on plaintiff at approximately 5 A.M. Doctor George McCormick, II, an expert in forensic pathology testified concerning the results and significance of this test. He estimated that according to the results, plaintiff’s blood alcohol level was approximately .190 to .195 at the time of the accident. According to Doctor McCormick, plaintiff’s intoxication significantly impaired her ability to drive her vehicle.

The trial judge held that the negligence of Mr. Hicks was the sole legal and proximate cause of the accident. He concluded that all the evidence clearly showed that the point of impact was in the northbound lane properly occupied by plaintiff. The trial judge went on to hold that this finding shifts the burden of proof to defendants to explain Mr. Hicks’s invasion of the northbound lane. The trial court found the defendants failed to discharge their burden satisfactorily since plaintiff’s evidence in regard to how the accident occurred was at least as convincing as defendants’. Plaintiff’s alcohol consumption was rejected by the trial court as a causative factor. The trial court opined that even assuming plaintiff was intoxicated, such intoxication was clearly not a proximate or legal cause of the collision.

Defendants specified that the trial court committed manifest error in holding Mr. Hicks guilty of negligence, and in failing to find plaintiff guilty of contributory negligence, by reason of her intoxication or other activities, which negligence would act as a bar or reduction in her damages. We disagree.

It is well settled in Louisiana that when a collision occurs between two vehicles, one of which is in the wrong lane of travel, there is a presumption that the driver in the wrong lane was negligent, and that the burden is on him to exculpate himself of any fault, however slight, contributing to the accident. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973).

After analyzing all of the evidence, the trial court found that defendant Hicks failed to exculpate himself of any fault. Our review of the evidence indicates that the testimony was conflicting. The trial court’s factual determination will not be disturbed on appeal unless a review of the record reveals that the decision is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). When there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring Company, supra. We find no manifest error on the part of the trial judge in concluding that defendant Hicks failed to absolve himself from fault.

We pretermit a determination of whether the plaintiff was actually intoxicated at the time of the accident, and, if so, the extent of her intoxication. Our law is well settled that the defendant, who bears the burden of proving contributory negligence, must prove by a preponderance of evidence that the driver’s intoxication was a substantial factor contributing to the accident. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971). The trial judge in his reasons for judgment addressed the issue of plaintiff’s contributory negligence as follows:

“Defendant sought to make much of plaintiff’s alleged intoxication. The Court is not required to make any determination as to whether or not plaintiff was under the influence of intoxicants, because even if it be assumed that she was, in fact, intoxicated, the Court finds that such intoxication was clearly not a proximate or legal cause of the collision.”

Although if faced with the same set of circumstances we may have come to a different conclusion concerning plaintiff’s contributory negligence, upon close review of the record, we cannot say that the able trial judge was clearly wrong in failing to find any actionable negligence on the part of the plaintiff. Obviously, the trial judge was more impressed with the testimony of plaintiff and her guest passenger concerning the events which led up to the accident. Such a determination is well within his discretion and will not be disturbed on appeal. See Canter and Arceneaux, supra.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    George BARTMESS, Plaintiff-Appellee, v. ELTON BERNARD ENTERPRISES, INC., et al., Defendants-Appellants.
    No. 8783.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    William J. Yarno, Jr., Marksville, for defendants-appellants.
    Smith, Taliaferro, Seibert, & Boothe, Leo Boothe, Jonesville, for plaintiff-appellee.

      Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

George L. Bartmess (Plaintiff) brought this action to recover rent allegedly owed him by defendants, Bernard Enterprises, Inc. and Elton J. Bernard, Sr., for the use and possession of a particular tract of land. Plaintiff, to aid in enforcing his claim, caused a writ of sequestration to issue ordering the Sheriff of Avoyelles Parish to seize a crop of soybeans, grown by defendants on the tract of land, which was stored in a facility owned by Midstate Grain Elevator, Inc. The soybeans were seized pursuant to that writ. Defendants reconvened against plaintiff, seeking damages and attorney’s fees, alleging that the writ of sequestration had been wrongfully issued.

Trial of plaintiff’s main demand, and defendant’s reconventional demand, resulted in a judgment ordering defendants to pay plaintiff $144,884.20 as rent for the tract of land. The trial court also found that a portion of defendants’ property had been wrongfully seized and awarded defendants $10,585.70 for damages and attorney’s fees against plaintiff.

Defendants appeal suspensively from the trial court’s judgment and raise the following issues:

(1) Whether the trial court committed manifest error in finding that only a portion of defendants’ property had been wrongfully seized;
(2) Whether the trial court committed manifest error in awarding defendants $10,585.70 in damages and attorney’s fees for wrongful seizure.

Plaintiff has answered the appeal seeking a reduction in the trial court’s award to defendants.

FACTS

Plaintiff and defendants entered into an “agreement of sale” on February 4,1980, by which defendants agreed to purchase a certain tract of land from plaintiff, provided that plaintiff could obtain the ownership of that land, on which he had an option and had been given possession of by a third party. In the event that plaintiff was unable to obtain the ownership of the land, the agreement provided that defendants would have possession of it through December 31, 1980, for $86.00 per acre. The tract of land, situated in Avoyelles Parish, was later determined to contain 1,684.7 acres. Defendants cultivated the land during the time they possessed it, raising a crop of soybeans thereon.

Plaintiff instituted this action on January 6, 1981, alleging: that he had entered into an agreement with defendants giving them possession of the above mentioned tract of land; that defendants had agreed to pay him $86.00 per acre for the possession and use of the tract of land from the date of the agreement until December 31, 1980; that defendants had failed to pay him anything as required by the agreement; that defendants had farmed the land and raised a crop of soybeans that was now stored with Mid-state Grain Elevator, Inc. at Mansura; that he had a lessor’s privilege on defendants’ crop to secure payment of the money due him as rent for the tract of land; and, that he was entitled to the issuance of a writ of sequestration to enforce his lessor’s privilege without furnishing security therefor. The trial court ordered the issuance of a writ of sequestration as requested by plaintiff and the soybeans were seized on January 13, 1981.

Defendants filed an answer and recon-ventional demand in which they admitted most of the pertinent facts contained in plaintiff’s original petition, except that they owed plaintiff $86.00 per acre for only 924.1 acres of land. Defendants then assumed the position of plaintiffs-in-reconvention alleging: that they had 48,000 bushels of soybeans stored at the Midstate Grain Elevator, some of which had been produced on lands other than those leased from plaintiff; that because of plaintiff’s seizure of the soybeans, they had been unable to sell them; that their inability to sell their soybeans had necessitated the making of certain loans to enable them to continue their operations and had caused them to become delinquent on certain debts, causing them to incur additional interest on those debts; that during the time that their soybeans were under seizure, the price of soybeans fell, causing them to derive less income from the sale of their soybeans than they otherwise would have; that plaintiff’s seizure of their soybeans was wrongful and illegal; and, that plaintiff was liable to them in the amount of $250,000 in damages, together with attorney’s fees, for the wrongful and illegal seizure.

Defendants filed a rule to show cause on March 24, 1981, alleging that by order of the trial court dated January 7, 1981, plaintiff had obtained a writ of sequestration and had seized “the proceeds of the crop from the property described in item 2” of plaintiff’s petition. Defendants further alleged that the writ had been wrongfully and illegally issued for the following reasons:

(a) — the “proceeds of the crop from the property” were not movable effects of the lessee which are or were found upon the property leased and, therefore, are not subject to the right of pledge defined in LSA-C.C. Articles 2705, et seq;
(b) — the soybeans seized cannot be identified as property of the lessee removed from the leased premises, those soybeans having been comingled with other soybeans also stored in the Midstate Grain Elevator; and
(c) — the soybeans were removed from the leased premises, with the consent of the lessor, more than 15 days prior to the seizure.

For those reasons, defendants averred that plaintiff had no lessor’s privilege on their crop and, thus, was not entitled to a writ of sequestration ordering the seizure of that crop. In the alternative, defendants alleged that the seizure was grossly excessive and should be reduced.

A hearing on defendants’ rule to show cause was held on April 8, 1981, and resulted in a judgment ordering a reduction in the amount of soybeans to be held under seizure to 24,000 bushels, and that all amounts of defendants’ soybeans held in excess of that be released to them. Apparently the issue of damages and attorney’s fees to be awarded defendants because of the excessive seizure was referred to the trial on the merits. After the trial on the merits, defendants were awarded $9,085.70 in damages and attorney’s fees of $1,500.00 for wrongful seizure. However, the trial court refused to dissolve the seizure of the 24,000 bushels of soybeans stored at Mid-state Grain Elevator and rendered judgment perpetuating the writ of sequestration. Defendants were finally forced to furnish a bond in the sum of $165,000 before those soybeans were released to them on September 4, 1981.

ALLEGED WRONGFUL SEIZURE

The sole ground set forth in plaintiff’s petition for the issuance of the writ of sequestration was that plaintiff had a lessor’s privilege on defendants’ soybeans. Defendants contend that the trial court committed manifest error in finding that plaintiff’s seizure of their soybeans was only excessive, rather than entirely wrongful and illegal. They noted that the soybeans had been removed from the leased property some 64 days prior to the date on which plaintiff obtained the writ of sequestration. Thus, they argue that plaintiff had lost his lessor’s privilege by allowing so much time to elapse between the time the soybeans were removed from the leased property and the time at which plaintiff had them seized.

LSA-C.C. Article 2705 provides, in pertinent part:

“Art. 2705. Lessor’s privilege and pledge on movables of lessee, exemptions
Art. 2705. The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased.
In the case of predial estates, this right embraces everything that serves for the labors of the farm, the furniture of the lessee’s house, and the fruits produced during the lease of the land; and in the case of houses and other edifices, it includes the furniture of the lessee, and the merchandise contained in the house or apartment, if it be a store or shop.

LSA-C.C. Article 2709 provides:

‘Art. 2709. Enforcement of privilege against lessee’s effects after removal
Art. 2709. In the exercise of this right, the lessor may seize the objects subject to his privilege before the lessee removes them from the leased premises, or within fifteen days after they have been removed by the lessee without the consent of the lessor, if they continue to be the property of the lessee, and can be identified.
The lessor may enforce his privilege against movables which have been removed from the leased premises by the sheriff or other officer of the court, without the necessity of a further seizure thereof, and as long as these movables remain in custodia legis. (As amended Acts 1960, No. 30, § 1.)”

Gastel Corporation v. Rand Laboratories, Inc., 289 So.2d 880 (La.App. 4 Cir. 1974), had occasion to interpret the provisions of LSA-C.C. Articles 2705 and 2709. Gastel involved an action by a former lessor of an immovable to have a writ of sequestration issued ordering the seizure of its former lessee’s movables found on the immovable property which had been sold by the lessor. Gastel explained the nature of, and the enforcement of, the lessor’s privilege granted by LSA-C.C. Article 2705 on pages 880 and 881:

“The lessor’s right on movables in the leased premises has its origin in Civil Code Article 2705, which in pertinent part reads:
“The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased.” LSA-C.C. Art. 2705.
Pledge is a contract by which one debt- or gives something to his creditor as a security for his debt.1 There are two kinds of pledge, one of which, pawn, occurs when a movable thing is given as security.2 With respect to the pawn of corporeal things, the creditor must be put in possession of the thing given in pledge by actual delivery thereof unless he has possession of it already by some other right.3 As we understand the codal articles, the above quoted Article 2705 permits the substitution of the lessor’s possession as lessor for the actual creditor possession required by C.C. Art. 3152.
We note that Article 2705 gives the right of pledge only to the lessor and then only on the movable effects which are found on the leased property.
“However, because of the possession requirement we have mentioned above, the lessor’s right of pledge applies only to movable effects actually on the leased premises. Article 2709 is an exception to that requirement. Placed in the code for the benefit of the lessor, it gives him the lessor’s privilege on the lessee’s movables for the stated time following their removal from the leased premises if, and only if, they have been removed by the lessee without the consent of the lessor.” (Emphasis ours.)

The evidence shows that all of the soybeans produced on the property leased by defendants from plaintiff had been removed from that property by November 10, 1980. Plaintiff’s petition, containing his request for the issuance of the writ of sequestration, was filed on January 6, 1981, approximately two months after the soybeans had been removed. Thus, plaintiff had lost his lessor’s privilege on the soybeans at the time he had them seized.

It is our opinion that the trial court committed manifest error in finding that plaintiff’s seizure of defendants’ soybeans was merely excessive. Instead, we find that seizure to be wrongful in its entirety.

DAMAGES AND ATTORNEY’S FEES

We have found that plaintiff wrongfully seized defendants’ soybeans and that the trial court committed manifest error in merely reducing the amount seized, rather than granting defendants’ motion to dissolve the writ of sequestration. Trial on the merits of this matter was held on July 29, 1981, at which time the trial court rendered judgment perpetuating the writ. Thus, the record contains no evidence as to any damages and/or attorney’s fees to which defendants may be entitled for the wrongful seizure that continued subsequent to the trial date. Under these facts and circumstances, we have no choice but to remand this case to the trial court for the introduction of additional evidence concerning the issue of the proper amount of damages to which the defendants may be entitled for the wrongful seizure, and for a redetermination of this issue by that court.

For the above and foregoing reasons, the judgment of the trial court perpetuating the writ of sequestration and awarding defendants damages for excessive seizure is reversed and set aside. The case is remanded to the trial court with instructions to allow the introduction of additional evidence pertaining to the issue of damages, including attorney’s fees, to which defendants may be entitled for wrongful seizure and for it to make a redetermination of this issue based on our decision herein.

The trial court is further instructed to order the dissolution of the writ of sequestration.

That portion of the trial court judgment which awarded plaintiff $144,884.20 as rent for the tract of land involved is affirmed.

Costs of this appeal are assessed equally between plaintiff and defendants.

The assessment of costs in the trial court will be made upon the rendition of a final judgment in this matter.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . Defendants have raised no issue on appeal concerning that portion of the trial court’s judgment condemning them to pay plaintiff $144,884.20 as rent for the tract of land. Thus, that portion of the trial court’s judgment is final.

      .LSA-C.C.P. Article 3506 provides:
      “Art. 3506. Dissolution of writ; damages The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
      The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.”

      . Paragraph 2 of plaintiffs original petition describes that tract of land leased by defendants from plaintiff as containing 1,684.7 acres.

      . LSA-C.C.P. Article 3571 provides:
      “Art. 3571. Grounds for sequestration

        When one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.”

      . The trial court’s oral reasons for judgment, contained in the note of evidence, indicate that defendants are to be awarded $9,085.70 in damages for wrongful seizure. They also indicate that: “There will be no legal fees awarded to either parties”. However, an entry in the minutes of court dated July 29, 1981, states that judgment was rendered that day on the recon-ventional demand, in favor of defendants and against plaintiff, "... in the sum of $9,085.70, plus an attorney’s fee of $1500.00." (Emphasis ours). The written judgment signed by the trial court on August 14, 1981, simply states that defendants are awarded $10,585.70 on their reconventional demand. The record contains no explanation for the apparent inconsistency between the trial court’s oral reasons for judgment and the minute entry and written judgment signed by the trial court.