text:
    Succession of Ronald Bruce GOODE.
    No. 14424.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.
    Booth, Lockard, Politz & LeSage by Bennett L. Politz, Shreveport, for defendants-appellants Pauline Egbert Parker, Edmond E. Parker, Laura Hope Walton Lawrence, Kenneth Goode Walton and Linda Cosby Paine.
    Smitherman, Lunn, Hussey & Chastain by John B. Hussey, Shreveport, for plaintiff-appellee, James Philip Goode, Sr.
    William L. Goode, in pro. per. appellee.
    Susan Strong Goode, in pro. per. appellee.
    Robert B. Goode, in pro. per. appellee.
    Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for J. Philip Goode, Jr., Testamentary Executor.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

On this appeal the proponents of an olo-graphic will appeal a judgment invalidating a portion of the testament on the ground that it contained a substitution prohibited by La.C.C. Art. 1520. For the reasons hereinafter set forth, this judgment is affirmed.

Ronald Bruce Goode died testate on April 30, 1978. At the time of his death he was domiciled in Caddo Parish, Louisiana. Decedent was survived by his half-brother, James Philip Goode, Sr., and six nieces and nephews (the children of his brother and a predeceased half-sister). He left no ascendants or descendants.

The decedent left an olographic will naming James Philip Goode, Sr., and a nephew, James Philip Goode, Jr., as coexecutors of his estate. After qualifying as coexecutor, Goode, Sr., withdrew from that position and filed a petition seeking to annul the probated testament.

The will, valid in form, contains the following bequest which is the subject of this litigation:

Fifth: All oil & gas royalty interest payments owned by me shall be paid to Pauline Egbert Parker for as long as she might live. After her death, the amount of any payments shall be equally divided between my nieces and nephews and Linda Cosby Paine.

The trial court held the foregoing bequest constituted a prohibited substitution and therefore declared it a nullity. From this judgment Pauline Egbert Parker, Edmond E. Parker, Laura Hope Walton Lawrence, Kenneth Walton, and Linda Cosby Paine have appealed. The appellants are all named beneficiaries in the challenged testament. Plaintiff has answered the appeal seeking to have the judgment amended to declare the entire will null and void.

In arriving at the correct interpretation of the challenged bequest this court is faced with two issues:

(1) Does the fifth bequest of decedent’s will constitute a prohibited substitution?
(2) If so, is the entire testament to be annulled or only the tainted bequest?

The Civil Code in Article 1520 makes the following pronouncement relative to substitutions:

Substitutions are and remain prohibited, except as permitted by the laws relating to trusts.
Every disposition not in trust by which the donee, the heir, or legatee is charged to preserve for and to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee.

A recent analysis of Art. 1520 led our Supreme Court to state that before a legacy is declared a prohibited substitution it must:

... (1) constitute a double disposition, in full ownership, of the same thing to persons called to receive it one after another; (2) impose upon the first beneficiary a charge to preserve and transmit the succession property; and (3) establish a successive order that causes the property to leave the inheritance of the burdened beneficiary and enter into the patrimony of the substituted beneficiary. A prohibited substitution, as defined by Civil Code Article 1520, must have all of these characteristics. Baten v. Taylor, 386 So.2d 333 (La.1979).

The appellants take the position that the bequest at issue cannot be a prohibited substitution since it contains neither a double disposition in full ownership nor a charge imposed on the first beneficiary to preserve and transmit the object of the legacy to a substitute legatee.

Appellants contend that a distinction should be drawn between the royalty interest owned by the decedent and the payments attributable to such interest. Their contention is that the testator actually bequeathed a usufruct to the first named beneficiary consisting of the use of the monies generated from the royalty interest. Appellants next contend that at the death of the first named beneficiary, the next named beneficiaries would be entitled to the same use of the monies. Establishment of such successive usufructs is authorized by La. C.C. Art. 546, and C.C. Art. 1522 states that the separate disposition of usufruct and naked ownership is an exception to the Civil Code ban on substitutions.

Since the attributes of full ownership are separated according to this interpretation of the challenged bequest, appellants conclude that this is not a double disposition in full ownership and consequently not a prohibited substitution.

The argument that a bequest is not a prohibited substitution but rather a disposition of usufruct and naked ownership is not a new one and has been the subject of much litigation and critical review. See e. g. Nabors, An Analysis of the Substitution-Usufruct Problem Under Articles 1520 and 1522 of the Louisiana Civil Code, 4 Tul.L. Rev. 603, 607 (1930); Comment, The Fertel Case and Articles 1520 and 1522 of the Louisiana Civil Code, 3 Loyola L.Rev. 185 (1946).

Although our review of the jurisprudence reveals no cases in which it was argued that the bequest was a granting of successive usufructs with the naked ownership passing intestate (the normal contention being that the first named beneficiary is the usufruc-tuary and the second named beneficiary the naked owner), the cases are on point as to the substitution-usufruct distinction.

Our Supreme Court stated over fifty years ago that:

It is well settled that a testamentary disposition containing the stipulation that at the death of the legatee the property shall go to another legatee named in the will is not the same thing as the giving of the usufruct to the one and the ownership of the property to the other legatee. . . . In order that a testament may convey the usufruct of property to one legatee and the ownership of it to another, the title to the property itself to the one legatee, as well as the usufruct to the other legatee, must be transmitted directly from the testator and invest the title in the one legatee and the usufruct in the other immediately at the death of the testator, (citations omitted) Succession of Heft, 163 La. 467, 112 So. 301 (1927).

Applying these rules to the case at hand we must ascertain whether the testator expressed in his testament the intention to give the property itself or only the usufruct to the first legatee. The task of interpretation becomes more difficult and the resulting opinions less reconcilable when the testator fails to use express words such as “usufruct” or “naked ownership” in the disposition to clearly signify his intention. See citations and examples of apparently conflicting decisions collected at 3 Loyola L.Rev. 185, 188, supra.

In examining the language used by the decedent in the case at bar, we note the absence of customary words (e. g. “use” or “use and benefit”) which would suggest that a usufruct had been bequeathed. Instead the language of the bequest tends to indicate that the testator was bequeathing a royalty interest and not merely the payments derived from it when he provides that “oil, gas and royalty interest payments owned by me shall be paid to . . .,” followed by a list of donees. The quoted language clearly indicates an intent on the part of the testator to bequeath in full ownership royalty interests owned by him rather than payments from royalty interests owned by him. Consequently, the bequest contemplates a vesting of the property in full ownership in Pauline Egbert Parker for as long as she might live. At her death the bequest would vest the same property in other persons (the substitute beneficiaries) who take the property directly from the testator by a title which “springs into existence only on the death of the first donee.” See Succession of Thilborger, 234 La. 810, 101 So.2d 678 (1958). This second vesting of title has been referred to as the “hallmark of the prohibited substitution.” Succession of Simms, 250 La. 177, 195 So.2d 114 (1966).

Although we are mindful of the rule of interpretation that would require a court to place a savings construction on ambiguous dispositions, courts are not at liberty to disregard the words used in a testament. Justice O’Niell once remarked in the famous case of Succession of McDuffie, 139 La. 910, 72 So. 450 (1916), dissenting opinion:

... If we were at liberty to disregard the terms used in a testament, to carry out the presumed intention of the testator, every disposition that has been declared null as a prohibited substitution should have been maintained as a donation of the usufruct of the property to one person and the ownership to another. I have not yet observed, and cannot imagine, a case in which a prohibited substitution should be decreed null, if we apply the doctrine “that a bequest of property for life is a donation of the usufruct.”

Appellant next contends that the bequest is not a prohibited substitution because it lacks the necessary charge imposed on the first named beneficiary to preserve and transmit the succession property to a substitute. See Baten v. Taylor, supra. This contention is based on the argument that the first named beneficiary has only the use of the monies derived from the royalty interests. Appellants contend that a construction of this bequest “cannot be made placing Pauline E. Parker under an obligation or charge to preserve, keep, or invest, the royalty interest payments bequeathed and transmit same to the substituted beneficiaries.”

However, appellants concede that it is not necessary for the creation of a prohibited substitution that the testator track the exact language of C.C. Art. 1520. “It suffices that the charge to preserve and to deliver necessarily results from the tenor of the disposition, or, what amounts to the same thing, that it is impossible to execute the disposition without preserving and making restitution of the property given or bequeathed.” Baten v. Taylor, supra.

Having concluded that the bequest at issue amounts to a double disposition in full ownership, it necessarily follows that the instituted beneficiary is obligated to preserve the succession property.

Such a double disposition “destroys the power of alienation of the property by the first donee, because he is bound to hold it until his death in order that the person then called to the title may take it. At the same time no power of alienation exists in the second donee during the life of the first, because his title comes into being only at the death of the latter.” Succession of Thilborger, supra, citing Succession of Blossom, 194 La. 635, 194 So. 572 (1940).

Since the challenged bequest specifies the substituted beneficiaries who would take the property at the death of instituted heir, it establishes a successive order that results in the property entering the patrimony of the substitutes upon the death of the burdened beneficiary. This is the third characteristic of a prohibited substitution enumerated by the Supreme Court in Ba-ten.

Since this court is of the opinion that the bequest at issue constitutes a double disposition in full ownership in which the donee is charged to preserve and transmit the succession property to named substitutes, we are constrained to hold that the bequest constitutes a substitution prohibited by C.C. Art. 1520.

Plaintiff in answering the appeal seeks to have the judgment amended to declare the entire will null and void. His contention that the effect of a prohibited substitution is to invalidate the entire will is without merit.

La.C.C. Art. 1519 provides that:

In all dispositions inter vivos and mor-tis causa impossible conditions, those which are contrary to the laws or to morals, are reputed not written.

This article provides the basis for the rule that the invalidity of a portion of a will does not ordinarily invalidate the will in its entirety. Accordingly, La.C.C. Art. 1520 merely declares that every disposition containing a prohibited substitution is null, not the entire testament. The interpretation of the second paragraph of C.C. Art. 1520 sanctioned by the jurisprudence is “to the effect that the nullity of a bequest, as containing a prohibited substitution, does not offset the enforceability of the other valid provisions of the will, which are regular as to form.” Succession of Walters, 261 La. 59, 259 So.2d 12 (1972).

For the foregoing reasons, the judgment appealed is affirmed. Costs of this appeal are assessed to appellants.

      . La.C.C. Art. 1712 provides:
      In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.

      . La.C.C. Art. 1713 provides:
      A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.
      See also Succession of Dinwiddie, 263 So.2d 739 (La.App. 4th Cir. 1972).


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Rhonda R. MORGAN, Plaintiff-Appellant, v. Thomas M. LOCKWOOD, Administrator of the Department of Employment Security, State of Louisiana and Western Electric Company, Inc., Defendants-Appellees.
    No. 14436.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.
    James A. McGraw and Willie D. Maynor, Baton Rouge, for defendant-appellee, Dept, of Employment Sec.
    Tucker, Martin, Holder, Jeter & Jackson by Jeffrey P. Victory, Shreveport, for defendant-appellee, Western Elec. Co., Inc.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Claimant, Rhonda Morgan, appeals a district court judgment affirming a denial of unemployment compensation benefits on the basis of R.S. 23:1601(2), i. e., misconduct connected with her employment by Western Electric. We reverse and remand.

After breaking her right index finger while playing softball on the night of May 14, claimant went to work the next morning, but was sent to a doctor for treatment of her injury. She returned to work that afternoon with her finger in a splint. After doing light duties that afternoon, she reported to work on the morning of May 16 and was assigned to her full duties on the assembly line. Claimant’s pain medication made her ill and she went to the employer’s medical section. She was sent home that morning by medical section personnel. On May 17 the night nurse telephoned claimant and told her to check in once a week.

On May 21 a representative from the benefits section of Western Electric visited Ms. Morgan and gave her some insurance forms. She explained to this representative that her doctor had instructed her to stay off the job until he released her. That same evening, claimant reported to the night nurse as she had been instructed. Claimant also reported to the medical section on May 22. It was also shown that claimant informed her supervisor of the reason for her absence from work.

On Wednesday evening, May 23, Nurse Renter of the medical section telephoned claimant’s home to inform her that a physical examination had been scheduled for her at 8:30 a. m. on May 24. Claimant denies ever receiving such a telephone call. Nurse Renter testified that she called claimant’s home and asked for claimant by her first name, Rhonda, and that she asked the person who answered if she was Rhonda and was told “yes”. When this person was informed of the scheduled examination she stated to Nurse Renter that she could not come and would call the head nurse the next morning. Claimant did not show up for the May 24 examination and was notified by telegram on May 25 that her employment had been terminated. Claimant immediately telephoned her supervisor on May 25 for an explanation. She was informed that when she did not show up for the physical examination it was assumed that she abandoned her job. Her supervisor explained that it was “too late” to do anything about the termination.

Claimant appealed the agency’s determination that she was disqualified for benefits, but the referee found Nurse Renter’s testimony to be more credible and held that claimant was guilty of violating company rules. Claimant testified that she knew she could be terminated if she failed to show up for a scheduled physical examination. The appeals referee found this to be a reasonable rule of employment and held that claimant’s violation of such rule was disqualifying misconduct. We disagree.

This court stated in the case of Heard v. Doyal, 259 So.2d 412 (La. App. 2d Cir. 1972):

“Misconduct under LSA-R.S. 23:1601(2) has been defined on numerous occasions by the courts to mean an act of willful or wanton disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoine’s Restaurant, 217 So.2d 514 (La. App. 4th Cir. 1969).

See also Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981).

While a single rule violation may constitute misconduct, the cases require that we look to the nature of the violation with due consideration of the factors which enter into proper conduct of employer’s work or business. See Dorsey v. Administrator, Louisiana Dept., etc., 353 So.2d 363 (La. App. 1st Cir. 1977) and Jackson v. Doyal, 198 So.2d 469 (La. App. 2d Cir. 1967).

We must accept the referee’s factual finding that claimant received the phone call made by Nurse Renter. LRS 23:1634. Accepting this as true, and given the fact that claimant knew that her failure to show up was grounds for termination, claimant’s behavior, nonetheless, did not constitute actionable misconduct. Heard, supra. Claimant informed medical and her work supervisor on more than one occasion of the reason for her absence. Claimant’s cooperation is shown to have been exemplary throughout her brief absence. This is not a case where an employee failed to inform his employer of the reason for his absence and then refused to show up for a physical examination. This claimant’s omission, taken in context with her total behavior, does not manifest culpability, wrongful interest, or evil design, and does not show an intentional and substantial disregard of the employer’s interest or of the employee’s obligations to the employer.

We accept as true, and as the referee found, that Nurse Renter telephoned claimant on the night of May 23 to report for a physical examination the next morning and that claimant told Nurse Renter that she could not come for a physical the next morning. This does not lead to the conclusion, however, that claimant would not report for a physical at any other time, especially in view of such short verbal notice. Claimant’s absence began May 17 and claimant was instructed to check in once a week. Claimant checked in on Monday, May 17, on May 22, and again on May 23 (Nurse Renter’s telephone call). She apparently did not check in on May 24 but did check in and sought an explanation of her discharge on May 25. These total circumstances do not establish disqualifying conduct. See Smith v. Brown, 162 So.2d 179 (La. App. 3d Cir. 1964) and Barber v. Lake Charles Pipe and Supply Company, 148 So.2d 326 (La. App. 3d Cir. 1963). These cases indicate that lack of notification by the employee to the employer does not disqualify a claimant, where it is shown that the employer otherwise knew the circumstances that caused claimant’s absence from work.

Judgment below is reversed and this matter is remanded to the Board of Review for entry of an order declaring claimant to be eligible for such benefits as the law otherwise directs in accord with this opinion.

REVERSED AND REMANDED.


author: JASPER E. JONES, Judge.

text:
    Marvin COLVIN, Plaintiff-Appellee, v. Felix BENNETT, Defendant-Appellant.
    No. 14437.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Coenen, Berry & Bruyninckx by Felix J. Bruyninckx, III, Rayville, for plaintiff-ap-pellee.
    Paul Henry Kidd, Monroe, for defendant-appellant.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Felix Bennett, appeals a judgment granting a permanent injunction prohibiting him from fencing a certain right-of-way on the property of Marvin Col-vin, plaintiff herein. The injunction further ordered him to remove a fence earlier constructed by him on the right-of-way. We affirm.

Plaintiff is the owner of a farm in Rich-land Parish, and about one month before this action was instituted he had granted defendant a 30-foot servitude of passage across his property. Plaintiff had granted defendant the right-of-way following a suit instituted by defendant wherein defendant sought the right-of-way in order to get access from his property to a public road. Defendant later built a four-strand barbed wire fence along the north side of the right-of-way. This fence prevented plaintiff from getting his farm implements to and from one of his cotton fields. Defendant contended he built the fence to prevent plaintiff from damaging with a disc, backhoe, and other farm equipment the surface of the road which he had constructed on the right-of-way. The evidence does not establish that plaintiff did any substantial damage to the roadway with his equipment following plaintiff’s grant of the servitude to defendant.

Plaintiff sued for a temporary restraining order, a preliminary injunction and a permanent injunction. The trial court issued the TRO restraining defendant from using the right-of-way other than as a servitude of passage and prohibited defendant from fencing the right-of-way. Included within the TRO was a provision authorizing plaintiff to take down the existing fence “only as necessary to allow petitioner passage through said fence with his agricultural equipment.”

Defendant filed exceptions of no cause and no right of action and answered plaintiff’s petition denying that plaintiff was entitled to the preliminary injunction and the permanent injunction. The defendant filed a motion to dissolve the TRO and claimed damages based upon a contention that the TRO had been wrongfully issued.

The TRO had initially been signed May 2, 1980 and the hearing on the preliminary injunction was set for May 12, 1980. On May 9, 1980 appellant filed a motion to continue the hearing on the preliminary injunction from May 12 because of a previous scheduled trial which conflicted with that date. An order was signed extending the TRO to May 30 and setting the hearing for the preliminary injunction on that date. There is a minute entry contained in the record which reflects that at the time the hearing on the preliminary injunction came to be had on May 30 the attorneys representing plaintiff and defendant “stipulated that trial be had on the permanent injunction and the merits.” The preamble of the formal judgment rendered herein on May 30, which was signed June 5,1980, set forth the following reference to the stipulation:

“It was stipulated that a trial on the plaintiff’s application for a permanent injunction be held at the same time and consolidated with the hearing on this application for preliminary injunction. That the judgment rendered herein on plaintiff's application for a preliminary injunction be made the final judgment herein on the application for permanent injunction.” (our emphasis)

The trial judge overruled defendant’s exception of no cause and no right of action. The judgment contained a permanent injunction restraining defendant from fencing said right-of-way or doing any other acts restricting the use of the right-of-way, but the judgment specifically provided that defendant was unrestricted in the use of the right-of-way as a servitude of passage. The judgment ordered defendant to remove the fence earlier constructed on the right-of-way.

Defendant on appeal assigns the following errors:

1. The trial court erred in granting a mandatory temporary injunction without a hearing.
2. The trial court erred in denying appellant’s motion to dissolve the temporary mandatory injunction and denying appellant damages for its wrongful issuance.
3. The trial court erred in misconstruing the stipulation between counsel as to the mode of trial to be had.
4. The trial court erred in holding that appellee did not have to prove irreparable injury.
5. The trial court erred in granting ap-pellee preliminary and permanent injunction.

Assignment of Errors 1, 2, and S

There is no appeal from an order granting a TRO. LSA-C.C.P. art. 3612. The appeal here taken is from the judgment granting the permanent injunction. For these reasons we shall not consider appellant’s assignment of error # 1 concerning the error of the trial court in granting the TRO. In the second assignment of error defendant complains of the failure of the trial court to dissolve the TRO and award him damages for its wrongful issuance. There was no hearing held on the motion to dissolve the TRO. The TRO was extended from May 12 to May 30 because defendant required a continuance on the hearing on the preliminary injunction from the May 12 date. Defendant made no effort to get the motion to dissolve tried in the interim between May 12 and May 30. The TRO expired by its own terms on May 30, the date the hearing was held on the permanent injunction. Appellant stipulated that the trial was to be held on the permanent injunction. This is reflected in the quote from the stipulation in the minutes as set forth above and as further reflected in the preamble of the formal judgment quoted above.

Appellant quotes with approval the last three lines of the stipulation contained in the judgment in his brief and does not therein assert any contention that the stipulation between the parties was other than set forth in the preamble of the judgment. He contends that the stipulation contemplates a trial of his motion to dissolve the TRO and a trial of the right of plaintiff to the preliminary injunction. He contends the stipulation provides that plaintiff shall be entitled to the permanent injunction only if he first establishes he is entitled to the preliminary injunction. Defendant erroneously believes that plaintiff must first establish irreparable harm to obtain the preliminary injunction protecting his real right but acknowledges in brief that the irreparable harm is not a prerequisite to obtaining the permanent injunction. Because of this erroneous notion defendant seeks to have the stipulation construed to require plaintiff to establish a right to the preliminary injunction before he is entitled to the permanent injunction. There is no evidence in the record of irreparable harm.

A review of the stipulation establishes that the parties at the time the stipulation was entered into did not contemplate that the trial was to involve the motion to dissolve the TRO nor the damages which defendant sought in connection with the motion. The stipulation is clear and unambiguous and limited the issue to be tried to plaintiff’s right to the permanent injunction. The TRO expired by its own terms on the date of the hearing. The motion to dissolve was not tried and the trial court did not rule upon it. Appellant cannot now be heard to complain that the trial court erred in denying his motion to dissolve the TRO or award him damages for its wrongful issuance.

Assignment of Errors ‡‡ 4 and 5

Appellant vigorously contends that he should have been permitted to introduce evidence during the trial to establish that the fence placed upon the right-of-way caused plaintiff no irreparable harm and for this reason plaintiff was not entitled to the TRO nor to the preliminary injunction nor the permanent injunction. While evidence of absence of irreparable harm would have been relevant on the motion to dissolve, see LSA-C.C.P. art. 3603, because the stipulation excluded this issue from the case the trial judge was correct in refusing to hear evidence on the absence of irreparable harm as it may have related to the TRO.

Plaintiff owned the property upon which appellant was granted the servitude of passage. He is here seeking to protect his real right of use of the area subject to the right-of-way and for this reason his cause of action is governed by LSA-C.C.P. art. 3663(2), which provides:

Injunctive relief, under the applicable provisions of Chapter 2 of Title 1 of Book VII, to protect or restore possession of immovable property or of a real right, is available to:
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

Plaintiff is not required to establish irreparable injury in order to obtain the in-junctive relief provided for in LSA-C.C.P. art. 3663(2). See Patin v. Richard, 357 So.2d 1285 (La.App.3d Cir. 1978); Elliott v. Louisiana Intrastate Gas Corporation, 336 So.2d 925 (La.App.3d Cir. 1976); Moorhead v. State, Department of Highways, 322 So.2d 330 (La.App.2d Cir. 1975); Ryan v. Pekinto, 387 So.2d 1325 (La.App.1st Cir. 1980); and Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979).

Plaintiff was seeking the injunction to protect a real right and for this reason the trial judge was correct in holding that evidence of an absence of irreparable harm was irrelevant and inadmissible.

The evidence established that defendant’s action in constructing the fence was interfering with plaintiff’s use of the area within the right-of-way as access to his cotton field and he was entitled to have the disturbance of the use of his land enjoined.

Judgment is AFFIRMED at appellant’s cost.

      . Plaintiff would not have been required to establish irreparable injury to obtain a preliminary injunction to protect his real right. See discussion under assignment of errors # 4 and 5 and code article and cases therein cited.


author: HALL, Judge.

text:
    Jack WALLACE and Florence Wallace, Plaintiffs-Appellants, v. FORD MOTOR COMPANY and Courtesy Ford Company, Inc., Defendants-Appellees.
    No. 14438.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Travis M. Holley, Bastrop, for plaintiffs-appellants.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendants-appellees.
    Before HALL, MARVIN, and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiffs brought this redhibitory action under LSA-C.C. Arts. 2520, et seq. against Courtesy Ford Company, Inc. and Ford Motor Company, seeking to rescind the sale of a new 1977 Thunderbird because it contained an alleged redhibitory defect which caused excessive vibration and noise while the automobile was in operation. The defendants denied the existence of the defect and alternatively pleaded that the defect, if it existed, was an apparent defect discoverable by simple inspection and, therefore, did not constitute a redhibitory vice under LSA-C.C. Art. 2521. After trial the district court “with some misgivings” held that if plaintiffs evidence as to the vibration and noise was accepted as true then the defect was apparent from the time plaintiff first started the automobile and drove it away from the dealer’s place of business and cannot serve as the basis for rescinding the sale. From a judgment rejecting their demands plaintiffs appealed.

On appeal the plaintiffs — appellants pose the issues involved as follows:

(1) Does the vehicle have a vice or defect which renders it either absolutely useless or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice, thereby giving rise to the redhibitory action?;
(2) Are the alleged defects “apparent defects” thereby precluding the purchaser from rescinding the sale?; and
(8) Does the special ordering of a vehicle with specific options chosen by the purchaser give rise to damages for mental anguish and emotional distress when the vehicle fails to meet the expectations of the purchaser?

Plaintiff, Jack Wallace, ordered the automobile in June 1977 as a present for his wife who accompanied him to the defendant dealership to make the choice of color and extras for the vehicle. In August the dealer called Mr. Wallace and advised him the vehicle had been received. Mr. Wallace went to the dealership, wrote a check for the vehicle, got into it and started toward his home. As he left the dealer’s place of business he observed excessive noise which varied at different speeds and circumstances of operation. Mrs. Wallace noticed the noise when she rode in the car.

Plaintiff attempted to return the vehicle to the dealer the following day, which was Saturday, but the service department was closed. Plaintiff was advised to bring it back when the salesman from whom he had purchased the car returned from vacation. Plaintiffs continued to observe the vibration and noise and took the car back in to the dealership when the salesman returned to work a couple of weeks later. At that time the car had about 200 miles on it. The salesman provided plaintiffs with a comparable automobile to drive free of charge while their new car was being repaired.

The dealer kept the car for six or seven months and made various attempts to eliminate the problem. The assistant district sales manager of Ford Motor Company was contacted and he in turn contacted Ford’s district service manager. They advised the service department of several steps to be taken in order to attempt to eliminate the vibration and noise.

Finally, in March 1978 the dealer wrote plaintiffs and told them their car was ready and asked them to return the car they had been furnished. Mr. Wallace picked up the automobile and found that the noise situation was the same. He placed the car in storage and it was not driven after that except for test drives by various persons who inspected it. This suit was filed in July 1978.

The case was tried in May 1980 at which time the automobile registered 1,600 miles on the odometer.

In addition to their own testimony, plaintiffs offered the testimony of several experts, all of whom found abnormal and excessive noise. Defendants offered the testimony of several expert witnesses, all of whom testified there was no excessive noise, based on their previous examinations and tests of the automobile.

During trial, the trial judge rode in the automobile at the request of all parties to the suit. His reasons for judgment reflect that “a droning, roaring noise of significant and disturbing volume and intensity was apparent. It was noted immediately upon the start of the motor with the transmission in ‘park’, when accelerating to street or highway speed, when going uphill — in short, when the motor was in a ‘strain’.”

The Ford expert, who had previously testified he could not hear any unusual noise in the car, testified after riding in the car with the trial judge that this was the first time he had heard the noise. He conceded the noise was “annoying.” He described the noise as a “roar”, as “abnormal” and testified it “bothered” him.

Mr. Wallace described the noise as an “awful roaring racket” and a “high tension vibrating roar.” Mrs. Wallace said it sounded “like a log truck.” One of plaintiffs’ experts called it an “obnoxious vibration.” Another expert noticed “vibration and roaring noise.” Another expert found “a drumming vibration” and “a drumming noise that drummed through the body of the car.” He termed it abnormal and excessive.

It stands to reason that defendants would not have made the repair efforts they made over such a long period of time if a problem had not existed to start with.

The evidence establishes to a legal certainty that the automobile makes an excessive, vibrating noise at various speeds and that the noise is abnormal, unusual, annoying, and irritating.

Comfort and quietness are features of an expensive new automobile which the manufacturer and dealer advertise and the purchaser expects to receive. An unusual, abnormal, annoying, roaring, vibrating noise of the type described as made by the car involved here is a vice or defect which makes the use of the automobile so inconvenient or imperfect that the purchaser would not have bought it if he had known it existed and could not be remedied. The vice is redhibitory in nature, entitling plaintiffs to rescind the sale, unless the defect was an apparent defect within the meaning of LSA-C.C. Art. 2521.

The defect was not an apparent one, discoverable by simple inspection. The noise is a manifestation or result of the defect, not the defect itself. The defect in the manufacture of the automobile that causes the abnormal vibration and noise has not been discovered to this day, in spite of examination and testing by numerous expert mechanics, and obviously is not apparent.

When Mr. Wallace first started the automobile and drove it away from the dealership, he had no way to know and no reason to believe the noise would continue and could not be remedied. He tried to take the car back the next day, and when the dealership finally took the car back for repairs a couple of weeks later, it was with expectations that the problem could be remedied. The permanent, redhibitory nature of the defect was not apparent to anyone concerned at the time the sale was made.

Plaintiffs established they paid $7,852 for the automobile. They paid $204.50 for sales tax, license, title and recording fees, and $674.02 as interest on a bank loan obtained to finance the purchase. They are entitled to recover the purchase price and costs totaling $8,730.52. Defendant is entitled to a credit for plaintiffs’ use of the dealer’s automobile furnished to them, which was driven 5,747 miles over a period of 209 days. We fix the amount of the credit at $1,500.

Under LSA-C.C. Art. 2545, plaintiffs are also entitled to recover a reasonable attorneys fee from the manufacturer, Ford Motor Company, which we fix at $2,000.

Plaintiffs are not entitled to recover for mental anguish and emotional distress. The selection of special option equipment does not change the principal object of purchasing an automobile from physical gratification to intellectual enjoyment. Meador v. Toyota of Jefferson, 332 So.2d 433 (La. 1976).

For the reasons assigned, the judgment of the district court is reversed and set aside. Judgment is rendered in favor of plaintiffs, Jack Wallace and Florence Wallace against Courtesy Ford Company, Inc. and Ford Motor Company, in solido, for the sum of $7,230.52, with legal interest thereon from date of judicial demand until paid, and for all costs of this proceeding, including the costs of appeal, payable upon return of the 1977 Thunderbird automobile to Courtesy Ford Company, Inc. Judgment is further rendered in favor of plaintiffs against Ford Motor Company for the sum of $2,000 as attorneys fees.

Reversed and rendered.

      . “Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

      . “Art. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhi-bitory vices.”


text:
    Milton L. SMITH and Ann Janette Palmer Smith, Individually and d/b/a Smith's Furniture & Appliance, Plaintiffs-Appellees, v. The TOWN OF LOGANSPORT and Maryland Casualty Company, Defendants-Appellants.
    No. 14439.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.

      Gamble & Sledge by Claude R. Sledge, Mansfield, for plaintiffs-appellees.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Shreveport, for defendant-appellant Maryland Casualty.
    Wilson & Veatch by Barry G. Feazel, Shreveport, for defendant-appellant Town of Logansport.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendants, the Town of Logansport and its insurer, Maryland Casualty Co., appeal a judgment against them awarding plaintiffs, Milton L. and Janette P. Smith, a judgment for damages allegedly caused by defendant’s negligence and/or strict liability in maintenance of a town water line. We reduce the general damage awards for mental anguish and as amended affirm.

Plaintiffs are the owners and operators of a retail furniture and appliance store located in downtown Logansport. Plaintiffs own the building in which the store is located. At approximately 10:30 a. m. on June 2, 1977, plaintiffs noticed water leaking through the floor of their store. After turning off his water supply, which did not curtail the flooding, Milton Smith went to Town Hall and requested the town utility office to summon D. W. Boyd, Maintenance Superintendent for the town. Whey Boyd arrived at Smith’s furniture store, and after he confirmed that Smith’s service line was not involved, he then ordered the master valve cut off at the town’s water tank in order to stop the flow of water into Smith’s store. Before Boyd got the water cut off, however, water began coming out of a newly appeared 25 to 30 ft. crack in the floor of the store, and according to Smith began spewing “just like a small sprinkler system,” up to 2 feet high. Smith, his wife, employees, and neighbors had to carry all the furniture and appliances out of the store to minimize water damage. A great deal of confusion ensued and furniture was stored haphazardly in a nearby building. Smith testified the water flow continued for 2V2 to 3 hours. Boyd testified he had the water cut off quicker than that. Smith stated the entire warehouse and the west side of the showroom were covered with water at a level above one’s ankles. Smith had 5 steel support beams, called trusses, in the warehouse portion of the building. About to 1 hour after the water flow began, Smith placed two 2 X 4’s under the center truss because he believed the ceiling was falling due to a weight-bearing center wall rising 10 to 12 inches. The wall was allegedly being raised by the concrete floor being pushed up by the water which was accumulating under it. After one 2X4 broke plaintiff placed 4 X 4’s under all the trusses. Plaintiffs then attempted to pump the water out by means of an electric sump pump dropped into a hole broken through the floor.

Boyd found a 2 in. cast iron pipe which was a main water line of the town running under plaintiffs’ building. The pipe was rusted and deteriorated. Boyd admitted the town was responsible for repairing main water lines.

The trial judge found defendants liable in solido for the damage caused by the flooding. He found that the burst water line was part of town’s water system which ran under the concrete slab that formed the floor of plaintiffs’ store, and the evidence clearly supports these findings. The trial court apparently based its finding of liability upon the strict liability of LSA-C.C. art. 667.

The trial judge awarded plaintiffs $1,002.62 as miscellaneous expenses; $1,082.75 for items destroyed or rendered unusable; $775 as rental expense; $15,000 for repairs to the damaged building; $25,-000 to Milton Smith for anxiety, worry, depression and injuries; and $5,000 to Janette Smith for emotional mental strain. He awarded Milton Smith $913.50 for medical expenses.

Defendant assign as error (1) the trial court’s finding of liability, (2) the trial court’s award to Milton Smith of $25,000 and to Janette Smith of $5,000 for mental anguish, (3) the trial court’s award of $15,-000 for repairs, and (4) the trial court’s award of $1,082.75 for items destroyed or made unusable by the water.

LSA-C.C. art. 667 has frequently been the basis for holding municipalities liable for damages caused by improper functioning sewer systems. See Romero v. Town of Welsh, 370 So.2d 1286 (La.App. 3d Cir. 1979). Municipalities have been held to strict liability, in the absence of any proof of negligence, under LSA-C.C. art. 667 for damage sustained by a property owner due to the overflow of city sewer lines. Carr v. City of Baton Rouge, 314 So.2d 527 (La. App. 1st Cir. 1975); Falgout v. St. Charles Sewerage District No. 3, 351 So.2d 206 (La. App. 4th Cir. 1977). Recovery has been allowed under LSA-C.C. art. 667 against the state and/or its agencies when flooding caused by public works damages private property. See our recent decision in Semon v. City of Shreveport, 389 So.2d 438 (La. App. 2d Cir. 1980), in which we affirmed a judgment holding the state and the City of Shreveport strictly liable under LSA-C.C. art. 667 for the flooding of plaintiff’s residence which was caused by the construction of an 1-220 ramp nearby. We held that the state and its agencies are within the purview of the term proprietor used in LSA-C.C. art. 667 and are strictly liable under this Article when damages to private property are caused by the carrying out of public works, regardless of the lack of negligence on the part of the state or its agency. See also J. B. LaHaye Farms, Inc. v. La. Dept. of Hwys., 377 So.2d 1286 (La.App. 3d Cir. 1979), which allowed recovery under LSA-C.C. arts. 660 and 667 for flooding caused by the defendant-Department’s improvement of a nearby highway.

In Lombard v. Sewerage & Water Board of N. O., 284 So.2d 905 (La.1973), the rationale of LSA-C.C. art. 667 liability was elaborated upon as follows:

“In Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971), we recognized the rule to be applied to these cases as follows:
‘Article 667 is therefore a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. This being ascertained, it remains only to calculate the damage which ensued.’ ” Id. at 912.

Here, the main water line was owned, operated, and controlled by the town. When it burst, it caused damage to plaintiff’s property, damage for which the town and its insurer are strictly liable under LSA-C.C. art. 667, regardless of their prudence in maintaining the line. The town’s function in providing water was a work which caused damage to a neighboring property owner.

In the recent supreme court case of Jones v. City of Baton Rouge, 388 So.2d 737 (La. 1980), strict liability has been imposed under LSA-C.C. art. 2317 upon the state and other public bodies for defective things in the custody of the state or other public body which cause damage. Stablier v. City of Baton Rouge, 393 So.2d 148 (La.App. 1st Cir. 1980), has applied Jones, supra, and LSA-C.C. art. 2317 to hold the City-Parish of East Baton Rouge liable for damages caused by a leaky storm drain pipe. In Stablier, supra, plaintiff-wife was injured when a leaky storm drain pipe allowed the dirt in between the public sidewalk and the street to be eroded and absorbed into the pipe. An underground chasm was formed, and the ground suddenly collapsed under plaintiff-wife as she was riding a lawnmower over this area. The First Circuit agreed with the trial court that the pipe was in the custody of defendant, was defective, and caused plaintiff’s damages.

The appellants are liable under LSA-C.C. arts. 667 and 2317. The water line was in the custody of appellant, Lo-gansport (as part of the town’s water system), it was defective (because it broke and flooded plaintiffs’ building), and it caused plaintiffs’ damage. There is no evidence to show that plaintiffs' damages were caused by their own fault, the fault of a third person or an irresistible force, and thus they have no defense. Therefore, defendants are also strictly liable for the damage caused to plaintiffs under LSA-C.C. art. 2317.

Defendants complain the $25,000 awarded Milton Smith for mental anguish and the $5,000 awarded Janette Smith for mental anguish are grossly excessive and that the trial court abused its discretion in making these awards.

The guidelines laid down in Reck v. Stevens, 373 So.2d 498 (La.1979), require us to examine the facts of this particular case to decide whether they reveal a clear abuse of the trial court’s discretion.

“It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered .. . excessive ...” Id. at 501.

Mr. Smith did not seek any medical attention until August of 1978, some 14 months after the flood. His wife testified that he was nervous and could not sleep after the flood and was experiencing stomach pains, but these symptoms were obviously not of great urgency, for Mr. Smith did not visit a doctor until over a year later. Mr. Smith went to see Dr. Jerome Snyder, who, after an upper gastro-intestinal series, diagnosed an ulcer. Dr. Snyder believed the ulcer was causally related to the store’s flood. It is important to note that although Smith felt he was going bankrupt and the store was losing business, in reality his store did better the year of the flood than in all its previous years of operation with higher sales, higher gross profit, higher net profit, and higher net profit percentages, and with a decidedly lower bad debt percentage. Smith’s business was open for business the entire time and never closed except on the day of the flood. The medicine prescribed by Dr. Snyder gave Smith relief, according to Smith, his wife, and Dr. Snyder, making it clear that if Smith had gone to a doctor earlier he would have obtained relief sooner. Dr. Snyder also testified that Smith had no symptoms of depression and no problems with impotency when he saw him in August of 1978.

Dr. George Seiden, a psychiatrist, opined that Smith was suffering from a depressive neurosis which was causally related to the flood. Dr. Seiden, however, only saw Smith one time for 1 hour in September, 1979, a few months before the trial. Smith was not referred to Dr. Seiden by Dr. Snyder but by his lawyer. Dr. Seiden importantly noted that the actual damage or loss that plaintiff suffered was not nearly as important as what plaintiff felt he lost or suffered.

Though there are 118 pages of Mr. Smith’s testimony in the record his following statements reflect the only portion of his testimony that relates to his mental anguish claim:

“The day I called Mr. Boyd’s boss and he told me that the insurance company wasn’t going to pay nothing, and I had an old sick headache and I began to hurt from exhaustion before then, but I still felt like that right is right and wrong is wrong, and you don’t have to fear about it, and I was hurting and my wife and Mrs. Bennett and Mr. Boyd told me they would take—
Q. The fact that you had to borrow money, did that bother you?
A. Yes, it did.
Q. What else was bothering you, what else was on your mind?
A. Well, it got on my mind that I was going bankrupt.
And then I got scared because I was switching money, which is the worst practice a business can do.. .
... the ninety days was up, I would pay for that that was sold, and which was wrong, and it was driving me nuts, because if it had all caught me I was bankrupt.
Q. This worry over your business did it have an effect on your personal life with your wife and family?
A. We had a perfect marriage, and we liked to have got a divorce; we had been married 25 years.” Id. Tr. 533-535.

Based on the above articulated circumstances we find that the trial court abused its discretion in awarding Smith $25,000.

Mental anguish damages are recoverable in cases in which the defendant is strictly liable for the damage caused to plaintiff’s property. See Carr v. City of Baton Rouge, supra; Falgout v. St. Charles, supra; Romero v. Town of Welsh, supra.

In Romero, supra, damages for mental anguish due to the backup of sewerage into plaintiff’s home were awarded in the amount of $2,500.

In Carr v. City of Baton Rouge, supra, plaintiff-wife was awarded $500, for mental anguish suffered as a result of a backup of sewerage into her home.

Falgout v. St Charles, supra, affirmed an award of $7,500 for mental pain for the backup of sewerage into the home and lawn.

In Barbay v. Parish of East Baton Rouge, 343 So.2d 235 (La.App. 1st Cir. 1977), awards of $2,500 to each of the two plaintiffs were affirmed for mental anguish and embarrassment they suffered when raw sewage backed into their home.

Awards for mental anguish of $1,500 to each of the two plaintiffs were denominated high but within the trial judge’s discretion in Moreland v. Acadian Mobile Homes Park, Inc., 313 So.2d 877 (La.App. 2d Cir. 1975). Sewage in this case had flowed onto plaintiffs’ property.

More recently in Semon, supra, we affirmed a $2,500 mental anguish award to a plaintiff whose home had been flooded. The court here stressed the fact that plaintiff had a serious heart condition. He was present in his home and watched the water enter when it flooded.

In LaHaye Farms, supra, the Court of Appeal granted a $3,000 award for mental anguish suffered by plaintiff whose fields were flooded and crops damaged by defendant’s acts.

A $5,000 award in Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir. 1977), was called high but was affirmed for a 78-year old woman who was present in her home when it was hit by a truck and who thereafter suffered depressive psychosis.

In Elston v. Valley Electric Membership Corp., 381 So.2d 554 (La.App. 2d Cir. 1980), we affirmed an award of $5,000 to plaintiff-wife who had recurrent nightmares after her home and appliances were damaged by electricity due to a malfunctioning transformer.

The 70-year old plaintiff in Mayer v. McNair Transport, Inc., 384 So.2d 525 (La. App. 2d Cir. 1980), who suffered extreme mental trauma when her home was destroyed in her presence by fire caused by the overturning of a truck, received $18,500 for her mental anguish. The case is distinguishable in that plaintiff suffered severe attacks of hyperventilation resembling heart attacks and made frequent trips to the doctor.

Considering the mass of the above similar cases, we find that the highest award that the trial court could have within its much discretion awarded Milton Smith is the sum of $7,500 and we reduce his mental anguish award to this amount. Mrs. Smith received $5,000 for her mental anguish. However, the record fails to clearly reflect any mental anguish suffered by her on account of the store’s flood. The only mental anguish she testified to was worry over her husband’s mental anguish. She never saw a doctor for any problem. On the day of the flood, which according to Mrs. Smith was “very, very hot”, she was moving mattresses and passed out. For this physical injury and whatever mental anguish she may have suffered due to the flooding of the store, she is entitled to a maximum of $1,500 and we therefore reduce the $5,000 award to $1,500.

Defendants also complain of the award of $15,000 for the repair of the building. Defendants complain that the $15,000 awarded plaintiffs for repair to the building is an abuse of discretion and should be lowered to $5,928.78. This case presents a clear application of Canter v. Koehring Co., 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), because there was a complete conflict between plaintiffs’ expert witnesses and defendants’ expert witnesses. As stated in Canter, supra, at 724:

“... where 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. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Plaintiffs also point out Sahuque Realty Co. v. Employers Commercial Union Ins. Co. of America, 327 So.2d 563 (La.App. 4th Cir. 1976), affirmed 330 So.2d 617 (La.1976), in which it was stated at p. 566 as follows:

“Where there is a legal right to recovery but damages cannot be exactly estimated the trial court has reasonable discretion to assess such damages based on the facts and circumstances of the case. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). Where damages cannot be precisely and mathematically determined the trial judge is vested with reasonable discretion in making awards for damage. Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir. 1973), writ refused 290 So.2d 901 and So.2d 899 (La.1974). Where there is considerable variance in estimated damages which render calculation thereof difficult, much discretion is accorded to the trial judge to determine the amount of the award. American Ins. Co. v. Richard, 212 So.2d 481 (La.App. 3d Cir. 1968), writ refused 252 La. 949, 215 So.2d 125. See also Nickens v. McGehee, 184 So.2d 271 (La.App. 1st Cir. 1966), writ refused 249 La. 199, 186 So.2d 159.”

Plaintiffs’ expert, John E. Cagle, Jr., a civil engineer, testified that the water caused the floor to raise up, which pushed up the trusses, which in turn pushed up the roof. Cagle also testified to a crack in the east wall caused by the flood as well as a 3 inch movement from the edge of the wall to the top layer of the concrete blocks at the roof level caused by the flood. Cagle felt that the best way to repair would be to remove the slab and pour a new one.

In direct contrast to this testimony was the testimony of Clifton A. Frey, Sr., defendants’ expert who is a civil, mechanical, and electrical engineer. He testified that the crack in the east wall was not causally related to the flood and that the cracks in the west wall were typical shrinkage cracks. He found no structural damage to the floor and asserted the slab could support 500 lbs. per sq. ft. He found no movement of the floor slab sufficient to move the roof.

Maloff Ivey, plaintiffs’ expert general contractor, gave an estimate of $38,000 to tear out and replace a concrete area in the back of the store, to remove and rebuild several interior walls, to replace a 12 ft. X 14 ft. area carpet, to replace the roof in a 60 ft. X 60 ft. area, and to repair cracks in the wall.

J. Harris Durham was defendants’ expert contractor. He estimated the cost of tearing out the concrete floor and reinstalling a concrete slab to be $4,294.60. He estimated the cost to repair a 60 ft. X 60 ft. area on the roof to be $1,634.37.

As can be seen by the above review of the experts’ testimony, it is in hopeless conflict. The trial judge was in the best position to determine which witness to believe. It is peculiarly his province to decide the credibility of the witnesses. Additionally, much discretion is afforded the trial judge to determine the amount of the award when there is a large difference in estimated damages, rendering calculation difficult. We cannot say in light of the conflict of testimony among the witnesses, that the trial judge erred in awarding $15,-000 for repairs to the building.

Defendants also complain of the award of $1,082.75 for unusable or destroyed merchandise, claiming that an addition of the value of these items does not add up to $1,082.75. However, we have examined the exhibit in question (P-28), and the sum of $1,082.75 is indeed correct.

For the reasons assigned we reduce the mental anguish award of Milton Smith to $7,500 and the mental anguish award to Mrs. Smith to $1,500 and to reflect these reductions we recast the second and third paragraphs of the judgment to read as follows:

ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Milton L. Smith and against the Town of Logansport and Maryland Casualty Company, in solido, in the full sum of TWENTY-SIX THOUSAND TWO HUNDRED SEVENTY-THREE AND 67/100 ($26,273.67) DOLLARS, with legal interest from judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Ann Janette Palmer Smith and against the Town of Logansport and Maryland Casualty Company, in solido, in the full sum of ONE-THOUSAND FIVE-HUNDRED AND NO/1Q0 ($1,500.00) DOLLARS, with legal interest from judicial demand until paid.

As AMENDED the judgment is AFFIRMED. We cast appellees with all costs of appeal.

      . LSA-C.C. art. 667 — “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.’’

      . LSA-C.C. art. 2317 — “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications."


text:
    TRI-STATE CONCRETE CO., INC., Plaintiff-Appellee, v. Ethel Reed STEPHENS, Defendant-Appellant.
    No. 14440.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.

      Samuel T. Singer, Winnsboro, for defendant-appellant.
    Kitchens, Benton, Kitchens & Pearce by John B. Benton, Jr., Minden, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

Tri-State Concrete Company, Inc., as the owner of undivided interests in two tracts of land, filed suit against Ethel Reed Stephens, the owner of the remaining undivided interests in the two tracts, seeking a partition by licitation. One tract located in Webster Parish contains 360 acres and is owned Ve by plaintiff and Vs by defendant. The other tract located in Bienville Parish contains 40 acres and is owned % by plaintiff and Vs by defendant. Defendant answered, contending the property should be divided in kind. After trial the district court ruled that the properties could not be divided in kind without diminution in value or loss or inconvenience to the owners and ordered the properties sold at public sales to effect the partition. Defendant appealed.

On appeal defendant contends primarily that plaintiff did not bear its burden of proving that the properties could not be conveniently divided or that a partition in kind would result in loss or inconvenience to the owners, that the evidence supported a partition in kind of both tracts, and that the trial court failed to give appropriate consideration to the unequal bidding power of the respective parties.

Applicable Law

No one can be compelled to hold property with another; any owner of an undivided interest has a right to demand the division of the property held in common by the action of partition. LSA-C.C. Arts. 1289 and 1308. The court shall order the partition to be made in kind unless it is proved that the property is indivisible by its nature or that a diminution of its value or loss or inconvenience of one of the owners would be the consequence of dividing it in kind. LSA-C.C. Arts. 1337,1339, and 1340; LSA-C.C.P. Art. 4606. The burden of proof is on the party seeking partition by judicial sale to prove that the property cannot be divided in kind. National American Bank of New Orleans v. Cleveland, 273 So.2d 848 (La.App. 4th Cir. 1973), writ refused 276 So.2d 701 (La.1978).

To effect a partition in kind the property must be divided into lots, which lots are afterward drawn for by the parties. LSA-C.C. Arts. 1364 and 1367. A certain part or parts of the property cannot be set apart or allocated to any one of the co-owners. The lots are set apart to the different co-owners by chance, by drawing for them. There must be as many lots as there are shares or roots involved. Raceland Bank & Trust Co. v. Toups, 173 La. 742, 138 So. 652 (1931); Pryor v. Desha, 204 La. 575, 15 So.2d 891 (1943); Taylor v. Bell, 155 So.2d 68 (La.App. 2d Cir. 1963).

To effect a partition in kind of the properties involved in this case, the Webster Parish property would be divided into six lots or tracts, five to be drawn by plaintiff and one to be drawn by defendant. Similarly, the Bienville Parish property would be divided into five tracts, four to be drawn by plaintiff and one by defendant.

The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the owners, in conformity, nevertheless, with the other provisions of the Civil Code. LSA-C.C. Art. 1336. Except as provided in LSA-C.C.P. Art. 4606 which requires the court to order a partition in kind unless the property is indivisible in nature or cannot be conveniently divided, the court has discretion to direct the manner and conditions of effecting the partition so that it will be most advantageous and convenient to the parties. LSA-C.C.P. Art. 4605. According to the official revision comments under LSA-C.C.P. Art. 4605, this article of the Code of Civil Procedure, unlike Article 1336 of the Civil Code which subjects the discretion of the court in the mode of effecting a partition to other provisions of the Code, gives the court full and unrestricted discretion in directing the manner in which the partition is to be made. t

The 360-Acre Tract

The 360-acre tract is irregularly shaped, has creeks or streams crossing it, has several producing oil or gas wells on it, has numerous rights-of-way crossing it, and has road frontage only along part of the east boundary. It is partly hardwood bottom land, partly cut-over pineland and partly abandoned agricultural land. As testified to by plaintiff’s well-qualified expert, it is difficult to imagine how the property could possibly be divided into six tracts of equal value. Although defendant’s equally-qualified expert testified he thought it could be so divided and offered a sample plan, he conceded that extensive survey work taking into account the physical characteristics of the property would have to be done before any plan could be drawn. The sample plan submitted by the expert shows six irregular and unusual tracts, long and narrow, L-shaped, and of doubtful desirability, utility or value.

Plaintiff’s expert testified the highest and best use of the property is for mining sand and gravel. Sand and gravel operations have been conducted on three sides of the property, to the edge of the property on the north and east. Plaintiff paid a substantial price for the 5A interest in the property for the purpose of mining sand and gravel on it. Defendant’s appraisers included the potential for mining sand and gravel as an element of value in their appraisal of the property.

The evidence establishes that to divide this tract into smaller tracts would make sand and gravel operations on the smaller tracts less feasible, particularly in view of the physical characteristics of the property described above, thereby reducing the value of the property for this purpose.

Because of the difficulty and perhaps impossibility of dividing the property into six tracts of equal value, and the fact that a division in kind of the property would reduce its value, the trial court was correct in ordering a partition by licitation.

One of the primary objectives of ordering the property sold at public sale to effect the partition rather than dividing it in kind is to allow each of the owners to realize the full present value of the property, which value would be diminished if the property were divided in kind. For this objective to be fulfilled, the property will have to bring a price at the public sale close to its market value as established by the appraisers.

Plaintiff is a substantial corporation engaged in concrete and sand and gravel businesses and is fully able to bid at the public sale to protect its interest. The plaintiff company paid $250,000 for this property and the much less valuable 40-acre tract when it bought its 6/6 interest from defendant’s relatives a few weeks prior to the time this suit was filed. Defendant is an elderly widow of very limited means, with a relatively small fractional interest in the property. She does not have the resources to bid at the sale to protect her interest. Although there is some evidence in the record that her son-in-law made a substantial offer to buy the property at the time the % interest was sold to plaintiff, there is nothing in this record to show that he or anyone else connected with defendant is prepared to bid at the public sale to protect her interest.

Property will sometimes bring maximum price at public auction, but it is also true that property is sometimes sold at far below market value at public sale. Selling property at a public sale to the highest bidder with no minimum price is highly risky and speculative. In this case, the tract is large and a fair price amounts to a large sum of money which must be paid in cash, and there are probably a limited number of potential bidders who would be interested in the property for its most valuable use, sand and gravel operations.

If the property were sold at public sale for substantially less than the appraised value, which in this case is a real possibility which the defendant has no way of protecting against, the purpose of realizing full present value for each of the owners would be entirely frustrated.

The unequal bidding power of the owners is a factor to be considered in determining the manner of partition. Ballard v. Ballard, 367 So.2d 1223 (La.App. 2d Cir. 1979); New Orleans American Bank v. Cleveland, supra. In the two cited cases, this factor was considered in determining whether the partition should be in kind or by licitation and bore on whether a partition in kind would result in a diminution in value. In the instant case, where physical and geographical characteristics of the property in relation to its prime use virtually compels partition by licitation, the factor bears more on the manner and conditions under which the partition by public sale will be accomplished.

As previously discussed, LSA-C.C. Art. 1336 and LSA-C.C.P. Art. 4605 allow the court to regulate the manner and conditions of effecting the partition so that it will be most advantageous and convenient to the parties. To give some assurance that the property is not sold at less than present value, it is advisable in this case, under its particular facts and circumstances, to set a minimum price that the property must bring at the public sale. Based on the testimony of the experts as to the present value (the price plaintiff paid for its interest, over $650 per acre, according to plaintiff’s appraiser and $775 per acre according to defendant’s appraisers) we conclude the lowest price for which the property should be sold in order to realize close to its present value is $675 per acre, or $243,000 for the entire tract. If the property does not sell for at least that price at the public sale, there must be an alternative because plaintiff is entitled to have the partition completed. A reasonable alternative is to provide for a subsequent sale with no minimum price, as in the case of a second sale under execution of judgments as provided in LSA-C.C.P. Art. 2336.

Accordingly, the judgment will be amended to provide that the property must sell for at least $243,000 at the public sale. If the property does not sell for the minimum price, then it shall be offered again at public sale without a minimum price.

The 40-Acre Tract

The present and the highest and best use of the 40-acre tract is growing timber. The property has no road frontage. A railroad track crosses one corner. Plaintiff’s expert testified with reason and logic that one 40-acre tract is a more valuable economic unit for growing timber than smaller and perhaps noncontiguous tracts such as would result from dividing this property into five tracts and drawing in the manner prescribed for partitions in kind. Considering proximity or lack of proximity to a public road, it would be difficult to divide the tract into five tracts of equal value and utility. The trial court correctly found that a division in kind would result in a diminution in value and would cause loss or inconvenience to the owners. It follows that the trial court was correct in ordering a partition by licitation.

The appraisers estimated the value of the 40-acre tract at between $300 and $400 per acre. A fair price for this property would not involve nearly as large a sum of money as for the 360-acre tract, nor does the maximum present value of this tract depend on a special limited use of the property as is the case with the 360-acre tract. Considering the demand for tracts of timberland and the greater number of potential buyers for this property, it would seem likely that there will be sufficient competitive bidding to protect each of the owners. Respective bidding power does not loom as so great an obstacle in the case of the 40-acre tract as compared to the 360-acre tract. Accordingly, the same compelling reasons to set a minimum price do not exist.

Conclusion and Decree

For the reasons assigned, the judgment of the district court is amended to provide that the 360-acre tract must bring a minimum price of $243,000 at the public sale to be held to effect the partition; provided, however, that if the property does not bring the minimum price at the first public sale then it shall again be offered at public sale without a minimum price. As amended, the judgment of the district court is affirmed, and the action is remanded to the district court for further proceedings. The cost of appeal shall be paid out of the proceeds of the sales as provided in the district court judgment for other court costs.

Amended, affirmed as amended, and remanded.


author: PRICE, Judge. FRED W. JONES, Jr., Judge,

text:
    Carol L. SHELTON, Plaintiff-Appellee, v. Jack Merrill SHELTON, Defendant-Appellant.
    No. 14442.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    Burnett, Sutton, Walker, Callaway & Smith by Bobby D. Sutton, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Jack Shelton has appealed from that portion of the judgment of divorce which awarded his wife, Carol Henri Lipka Shelton, permanent alimony in the amount of $300 per month. We find no abuse of the trial court’s discretion and affirm.

Appellant’s principal complaint on appeal is that the trial court did not make a separate determination of alimony at the time of rendition of final divorce on June 26, 1980, but merely continued the same amount previously fixed for pendente lite alimony on May 21, 1980. He contends this was error as the multiple factors to be considered for permanent alimony under La.C.C. Art. 160 are much different from the standard set forth by Art. 148 providing for pendente lite alimony.

Appellant is correct in his argument as to the law in this regard. However, there is no showing that the trial court did not properly apply the standards of Art. 160, as amended in 1979, in continuing the sum of $300 per month. The evidence clearly shows appellee’s needs exceeded the appellant’s ability to pay in both instances. The trial court apparently determined the $300 amount was an equitable means of balancing the interests of both parties.

There is no merit to appellant’s contention that appellee has not shown she is in need because her mother has been and may continue to provide for her food, shelter, and clothing. The record shows this was by necessity. The financial assistance provided by a parent under such circumstances certainly does not relieve a spouse of the obligation of support to the other spouse after divorce. See McCole v. McCole, 383 So.2d 55 (La.App. 2d Cir. 1980).

Appellant also contends the trial court did not give any consideration to ap-pellee’s capability of obtaining employment. The record shows appellee is preparing herself to take the real estate license examination to provide her suitable employment so that she can continue to care for her invalid mother who has an incurable cancer of the spine. Whether appellee will be successful in passing the exam or when she will begin to receive any meaningful income from such a pursuit is highly speculative. It is apparent the trial court viewed this evidence in this light and gave it little weight. Appellant is not prejudiced in this regard as should appellee later become employed, the judgment can be modified or terminated as the need may be.

The most serious question raised by appellant is whether the court gave proper consideration to his ability to pay. His average monthly earnings in 1979 were shown to have been slightly in excess of $1,100. His net income is shown to be about $800 per month. He has submitted lists of expenses and fixed obligations which if accepted at face value would show an inability to pay almost any sum whatsoever. However, the record shows some of the items on the list of fixed monthly obligations are not being paid by appellant, and that he is referring these items to appellee for payment.

Furthermore, the jurisprudence has followed the theory that “the husband’s alimentary obligations toward the wife come before his obligations to his creditors.” Galbraith v. Galbraith, 382 So.2d 1042 (La. App. 2d Cir. 1980); Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959); Tablada v. Tablada, 356 So.2d 1031 (La.App. 1st Cir. 1977); Moore v. Moore, 380 So.2d 180 (La. App. 2d Cir. 1979).

Likewise it is not error for the trial court to use gross income in applying the one-third rule of Art. 160. Ballard v. Ballard, 367 So.2d 1220 (La.App. 2d Cir. 1979).

In view of the above jurisprudence and the circumstances shown, we find no abuse of the discretion of the trial court in fixing the alimony at $300 per month.

For the foregoing reasons the judgment is affirmed. Costs of this appeal are assessed to appellant.

FRED W. JONES, Jr., J., dissents and assigns written reasons.

FRED W. JONES, Jr., Judge,

dissenting.

The record in this case establishes that at the time of the trial appellee had no income and needed in excess of $300 per month for her maintenance. However, once this determination is made, Louisiana Civil Code Article 160 expressly requires that in fixing the amount of permanent alimony the trial judge must consider the claimant spouse’s earning capacity together with the income, assets and financial obligations of the other spouse.

Appellant’s itemized list of monthly expenses includes the following:

$ 290.07 taxes withheld
100.00 housing
125.00 food
125.00 child support payment
47.00 utilities
50.00 automobile expenses
300.66 fixed monthly obligations, to banks, etc.
$1037.73 total

Deducting this from the monthly salary of $1083.33 leaves a balance of $45.60. Adding the bonus received by appellant for the prior year would give him a total of less than $100 per month.

The record also shows that appellee, who has no children, was employed as a salesperson in a Shreveport department store earning a monthly salary of $750 until that employment was terminated in January 1979. She had not been gainfully employed since that time but had promise of employment with a real estate firm contingent upon passing a State Board test. If this job did not materialize she planned to seek employment elsewhere. Appellee was in good health, had two years of college and had also attended a marketing institute.

It is recognized that the trial judge has broad discretion in fixing an award for permanent alimony. However, that discretion must be exercised with due regard for and appropriate weight assigned to those factors specifically set forth in Article 160 as criteria to be followed in fixing the award. Loyacano v. Loyacano, 358 So.2d 304 (1978); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948); Jones v. Jones, 200 La. 911, 9 So.2d 227 (1942).

After examining the record, I have concluded that neither the trial judge nor the majority has placed proper emphasis upon the magnitude of the appellant’s financial obligations and their effect upon his ability to pay permanent alimony. The cases cited by the majority in support of the proposition that “the husband’s alimentary obligations toward the wife come before his obligations to his creditors” are inapposite. The obligations considered in Laiche and Tablada were incurred subsequent to the alimony award. Here the bulk of appellant’s debts were incurred during his marriage to appellee. Galbraith dealt with alimony pendente lite rather than permanent alimony. In the Moore case the husband’s obligations were a consequence of his neglect and mismanagement. That is not the situation here.

Furthermore, in view of the appellee’s educational background, work experience and good health, I do not believe that the trial judge and the majority gave the required weight to her earning capacity.

It appears to me that, upon the basis of this record, an alimony award of $150 would have been in accordance with the balancing requirements of Article 160, and I would have amended the judgment of the trial court to effect this change.

For these reasons, I respectfully dissent.

      . Article 160 was amended in 1979 to specifically mandate consideration of these factors by the courts in awarding permanent alimony.