text:
    MAINLINER MOTOR EXPRESS, INC., Plaintiff-Appellee, v. WINN STATE BANK & TRUST COMPANY, Defendant-Appellant.
    No. 14293.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Writ Refused Dec. 15, 1980.
    Sanders & Castete, Ltd., by Martin S. Sanders, Jr., Winnfield, for defendant-appellant.
    Gold, Little, Simon, Weems & Bruser by Linda G. Ashe, Alexandria, for plaintiff-ap-pellee.
    Before HALL, MARVIN and Fred W. JONES, Jr., JJ.
   MARVIN, Judge.

The drawee bank appeals a summary judgment rendered in 1980 in this suit on a check written in 1973. We affirm the trial court’s determination that there was no genuine issue of the material fact that the bank, as drawee and contrary to LRS 7:136, 137, failed to return the dishonored check in 24 hours.

Evidence in support of the motion for summary judgment establishes that the check was deposited in plaintiff’s bank in Omaha, Nebraska, on February 2, 1973, and, in the course of routine bank clearing procedures, was forwarded to the defendant drawee bank on February 8, 1973, as a regular “cash” item. The check was eventually returned unpaid by the defendant bank to the forwarding bank on March 6, 1973. This suit was filed eight months later.

The bank contends that there is a genuine issue of the material fact when the defendant bank actually received and returned the check. The bank further contends that the trial court erred in disregarding the affidavit of its president which was filed the day of the hearing on the motion for summary judgment. The affidavit was not timely filed and need not have been considered. C.C.P. 966. Bonnette v. Century Ready-Mix Corp., 369 So.2d 1201 (La.App.2d Cir. 1979). The earlier deposition of the bank president denies any specific knowledge about this particular check and there is no evidence to controvert the fact that the check was forwarded as a “cash” item.

The evidence of the exact date and time that the bank actually received and returned the check rests with the defendant bank. Plaintiff established when the check was forwarded and when it was returned, February 8-March 6, 1973. Defendant bank asserts that it has no records from which the time involved and the nature of the item, cash or collection, can be determined.

If evidence exists to controvert plaintiff’s evidence, that evidence is in the hands of the defendant bank. The evidence supports the conclusion that there is no genuine issue of the material fact that the defendant bank held the check for more than 24 hours. For reasons assigned below and summarized here, and at appellant’s cost, judgment is

AFFIRMED.

HALL, J., dissents without assigning written reasons.

      . LRS 7:136
      “The drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill; but the acceptance if given dates as of the date of presentation.”
      LRS 7:137
      “Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted to the holder, he will be deemed to have accepted the same.”
      These sections were later repealed. See Act 92 of 1974.


source: Caselaw Access Project

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

license: Public Domain

text:
    AMERICAN BANK & TRUST COMPANY OF SHREVEPORT, Plaintiff-Appellee, v. C. Eugene FARR, Defendant-Appellant, Diane L. Farr, Intervenor-Appellant.
    No. 14297.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    En Banc. Rehearing Denied Dec. 8, 1980.
    M. F. “Rick” Fayard, Jr., Bossier City, for defendant-appellant and intervenor-appel-lant.

      Burnett, Sutton, Walker & Callaway, a Professional Law Corp., by Gleen E. Walker and Stephen V. Callaway, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

On June 8, 1979 the American Bank and Trust Company of Shreveport filed suit against C. Eugene Farr to recover balances allegedly due on unsecured promissory notes dated January 25,1977; February 17, 1977; July 21, 1977; and August 10, 1977. Farr filed an answer of denial. Alleging that the defendant had left the state permanently, the Bank amended its petition to secure a writ of non-resident attachment, resulting in the seizure by the sheriff of a lot with improvements thereupon in Bossier Parish. The defendant’s wife, Diane Farr, then intervened to dissolve the writ of attachment on the ground that her husband could not alienate nor encumber the family home without the intervenor’s consent, under the provisions of La.Civil Code Art. 2334 and La.R.S. 9:2801. In the alternative, and in the event the court ruled that the cited codal and statutory provisions permitted the contested act, intervenor attacked the laws as unconstitutional under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.

From a judgment in favor of the plaintiff Bank against Farr for the unpaid balance due on the promissory notes, with the customary clause recognizing and maintaining the attachment, both Farr and his wife appealed, contending that the trial judge erred in: (1) not finding that the writ of attachment was an “encumbrance”; (2) in not finding that Farr had alienated or encumbered the family home contrary to the provisions of La.C.C. Art. 2334 and La.R.S. 9:2801 by failing to secure his wife’s consent; (3) in finding that the code article and statute applied only to “consensual” encumbrances.

We affirm.

The record shows that title to the property involved in this litigation was in the name of both Farr and his wife. However, their deed did not designate the property as the family home.

The primary question posed by this lawsuit is whether a wife can defeat a writ of attachment against the family home on the ground that the community debt out of which the writ arose was incurred in 1977 by the husband alone.

Appellants argue first that the writ of attachment amounted to an “alienation or encumbrance” to which the wife had to consent as mandated by La.C.C. Art. 2334 and La.R.S. 9:2801, the matrimonial regimes laws allegedly applicable to transactions of this nature in 1977.

Since Farr did not sell or mortgage the family home, Article 2334 is obviously inapplicable.

As clearly stated in its text, La.R.S. 9:2801 becomes operative only when the husband designates “the property as a family home.” This was not done by Farr. Even if the cited statute is relevant, Farr’s act of executing the unsecured promissory notes did not constitute an “encumbrance” of the family home. To encumber property “is to make it subject to a charge or liability.” Black’s Law Dictionary, 4th Ed. (1951), West Publishing Company. The incurring of a community obligation may ultimately, by operation of law, result in a lien being placed against their property. This, however, was obviously not the “encumbrance” contemplated by the statute upon which appellants rely.

A writ of attachment is simply a procedural remedy available to the creditor either as a means of securing jurisdiction over a nonresident or as a device to protect his potential claim against the debtor’s property. To the extent that it operates as an encumbrance against property this lien arises by operation of law and is not one directly granted by the debtor.

In summary, Farr’s act of executing unsecured promissory notes which constituted community obligations in 1977 was not the equivalent of a “sale, mortgage, alienation or encumbrance” of the family home which required the wife’s consent before a writ of attachment could validly issue.

Appellants argue, in the alternative, that Article 2334 and La.R.S. 9:2801 are unconstitutional if construed as permitting the issuance of the attacked writ of attachment, citing the case of Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979).

In view of our conclusion that the mere incurring of community obligations by Farr, which later resulted in the issuance of a writ of attachment, did not constitute an alienation or encumbrance of the family home, the attacked laws do not govern the disposition of this litigation. Therefore, we do not reach the question of their constitutionality.

For these reasons, we affirm the judgment of the trial court, at appellants’ cost.

      . The pertinent portion of this article provides that “where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife’s written authority or consent.”

      . § 2801.
      Whenever there has been recorded in the conveyance or mortgage records of the parish in which it is located, a description sufficiently definite to identify any parcel of land, together with the authentic declaration of the owner that he is a married man and that he desires to and does designate the property as a family home, it may not thereafter be validly alienated, encumbered or leased during the marriage by the husband alone except when the wife has previously made and recorded a declaration by authentic act that her authority or consent are not required as provided in Article 2334 of the Civil Code.

      .Our codal provisions relating to matrimonial regimes have been completely revised, with most of the new provisions becoming effective January 1, 1980. See Act 709 of 1979.

      . This case held La.C.C. Art. 2404 unconstitutional because it permitted a husband to mortgage the family home without his wife’s consent. Even if the case was applicable and we were bound by it, the decision specifically provided that it was to operate prospectively only.

      . The majority in Corpus Christi Parish Credit Union v. Martin, 358 So.2d 295 (La.1978) declined to rule on the constitutionality of our then managerial system for community property, finding that a wife who attacked the right of her husband to mortgage community property without her consent had adequate remedies for her protection. A vigorous dissent would have ruled Article 2334 violative of the equal protection clause of the 14th Améndment to the U.S. Constitution because the article authorized the husband to perform the contested act. However, that ruling also contemplated prospective application only.


author: HALL, Judge.

text:
    Robert Leslie SCHUSTER, Plaintiff-Appellant, v. Virginia Ellen Farrar SCHUSTER, Defendant-Appellee.
    No. 14299.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.

      Glen H. Smith, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel, by Samuel P. Love, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff sued his former wife to set aside a community property partition and settlement on the grounds of lesion beyond one-fourth under LSA-C.C. Arts. 1398 and 1861. After trial, the district court rejected plaintiff’s demands and he appealed. We affirm.

On the same day that a judgment of divorce was rendered dissolving the parties’ marriage, they entered into a community property settlement. Both parties were represented by competent counsel. Under the agreement, plaintiff received certain property and agreed to assume certain community debts. Defendant received property of greater value and assumed a greater portion of the community debts. Additionally, the agreement provided that plaintiff was released from any further liability or indebtedness to the mother of defendant for “monies loaned” to either or both parties during the marriage and defendant agreed to hold plaintiff harmless from payment of the indebtedness. The agreement also contained an acknowledgement by each party that the value received by each was equal.

The determination of whether or not the settlement agreement was lesionary depends on whether or not $57,000 advanced by the defendant’s mother to defendant and her husband during their marriage for the purpose of acquiring various homes were loans or gifts. If the amounts advanced which remained unpaid at the time of the divorce were loans, then the value received by the plaintiff by reason of the defendant’s assumption of that indebtedness makes the value received by each party in the settlement approximately equal. If the amounts advanced were gifts and the release of the indebtedness and the hold harmless clause were meaningless, then the value received by defendant exceeded that received by the plaintiff by more than one-fourth.

The evidence establishes that the amounts advanced were loans which defendant’s mother expected to be repaid. As plaintiff and defendant moved from city to city during their marriage, defendant’s mother and father, and the mother after the father’s death, advanced sums of money to be used as down payments on homes purchased by the parties. One advance of $4,000 was evidenced by a note and was repaid in full or substantially in full. Another advance of $12,000 was repaid. The last advance of $30,000 made to assist in the purchase of a home in Shreveport at a time when the parties had physically separated was evidenced by a note signed by the defendant. Both the defendant and her mother testified that the money was to be repaid. The plaintiff, although testifying that he never made any firm agreement to repay the money, never testified that the defendant’s mother characterized the advances as gifts or said that the money would not have to be repaid.

Probably the most convincing evidence supporting the trial court’s finding that the advances were loans is the community property settlement agreement itself. The clause in the agreement pertaining to these advances states:

“VIRGINIA ELLEN FARRAR SCHUSTER does hereby agree that ROBERT LESLIE SCHUSTER shall be released from any further liability or indebtedness to the mother of VIRGINIA ELLEN FARRAR SCHUSTER for monies loaned to either or both parties during the marriage and shall hold him harmless from payment of same.”

The inclusion of the quoted clause in the agreement (obviously for the benefit and protection of plaintiff who was represented by counsel at the time), the reference to “monies loaned”, and the acknowledgement that the parties received property of equivalent value strongly indicate that the parties considered themselves indebted to defendant’s mother and that the amount of that indebtedness was considered in effecting a substantially equal partition of the community property.

Mobley v. Namie, 337 So.2d 306 (La.App.2d Cir. 1976), writ refused 339 So.2d 850 (La.1976), relied on by plaintiff, is distinguishable on its facts. There, the father of the wife sued his former son-in-law to recover monies advanced to the couple during their marriage. The trial court found that the sums advanced were loans and allowed recovery. This court reversed that decision largely on the basis of a letter written by the father-in-law to his son-in-law in which he stated that the son-in-law did not owe him one penny because the monies were advanced as an investment in his family future. It was held that the letter constituted a voluntary remission of the debt, assuming a debt existed. In the instant case, there is no such indication that the sums advanced by defendant’s mother did not give rise to an enforceable debt.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    Kathryn Dunaway DeDON, Plaintiff-Appellant, v. Clifford DeDON, Defendant-Appellee.
    No. 14300.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Donald R. Miller, Shreveport, for plaintiff-appellant Kathryn DeDon.
    Glen H. Smith, Shreveport, for defendant-appellee Clifford DeDon.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Kathryn DeDon, filed this action against her former husband, Clifford DeDon, seeking her alleged community interest in defendant’s Air Force retirement benefits which have accrued to defendant since the prior dissolution of the community. The trial court sustained an exception of no cause of action based on defendant’s contention that the Federal Supremacy Clause prohibits the application of the Louisiana community property law to military retirement pay. Plaintiff has appealed the judgment dismissing her demands. We affirm.

The issue before us is whether the Federal Supremacy Clause, Article VI, Clause 2 of the United States Constitution bars application of state community property principles to military retirement pay.

The facts of this case are not in dispute. The parties were married in 1952, obtained a legal separation in 1973, and subsequently were divorced in 1974. A voluntary partition of the community effects was perfected by the parties in 1973, however, no mention was made in the agreement concerning defendant’s Air Force retirement benefits. Appellant now takes the position that she is the rightful owner of one-half the benefits under La.C.C. Article 2405 as defendant became fully vested in and entitled to them during the existence of the community regime. She relies upon an earlier line of jurisprudence which held that military retirement pay is subject to Louisiana community property laws. See Swope v. Mitchell, 324 So.2d 461 (La.App.3d Cir. 1975) and Moon v. Moon, 345 So.2d 168 (La.App.3d Cir. 1977).

The trial judge in comprehensive written reasons for judgment discussed and analyzed Swope and Moon in light of the recent case of Hisquierdo v. Hisquierdo decided by the U. S. Supreme Court in January 1979, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1, and the Alaskan Supreme Court case of Cose v. Cose, 592 P.2d 1230 (1979).

Because our views are the same as those of the trial judge and we could not improve upon the scholarly discussion of this issue by the court, we reproduce and adopt as our reasons for judgment the following pertinent excerpts from the trial court’s opinion:

In Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir., 1975), the Third Circuit Court of Appeal held that a wife was entitled to her community half of the husband’s retirement pay from the Marine Corps, when the husband’s right to military retirement pay was acquired during marriage, based on LSA-C.C. Art. 2405. The Court looked to other community property states for guidance, and apparently relied upon the California case entitled In Re Marriage of Fithian [10 Cal.3d 592, 111 Cal.Rptr. 369], 517 P.2d 449 (1974), which held that military retirement pay is properly the subject of state community property laws. 324 So.2d at 463.

Swope was followed by Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977), a case factually similar to the instant one. In Moon, the community property settlement agreement did not mention the husband’s Air Force retirement benefits, and Mrs. Moon later sought her share of the benefits. The Court granted her request, and supplemented the community property agreement by awarding the wife one-half of the community portion of the pension. The Court specifically rejected the husband’s constitutional argument, stating that:

“... the supremacy clause of the U. S. Constitution does not prevent a state from classifying military retirement benefits as community property.” 345 So.2d at 176

The Court again cited the California case of Fithian, supra, for this proposition.

The Court in Hisquierdo, by a seven-man majority, held that a husband’s retirement benefits under the Railroad Retirement Act of 1974, 45 USCA 231, et seq., were not subject to a community property claim by the ex-wife. The Court held that California community property law impermissibly conflicted with the interest of Congress in drafting the Railroad Retirement Act, and the state court was precluded from awarding the wife an interest in the husband’s expectation of ultimately receiving benefits under the Act. The holding was based on the supremacy clause of the U. S. Constitution.

Specifically, the Supreme Court analyzed the language of the statutes and legislative intent in drafting portions of the Railroad Retirement Act and Social Security Act. The Court found that to order the husband to pay the wife part of his benefits, or any offsetting award recognizing her interest in the benefits, would be contrary to the purpose of the anti-attachment provision of the Railroad Retirement Act, 10 USCA 231 (m), which exempts such benefit funds from legal process and is meant to insure that they actually reach the intended beneficiary. Nor could the wife receive an offsetting award out of present community property, because such award would wrongfully “anticipate” payment of benefits in violation of Section 231 (m), before Congress itself has set a date to pay them. Finally, the Court based its decision on the policy of protecting the employee who has earned the benefits, and held that federal interests and the Supremacy Clause of the U. S. Constitution forbid application of state community property laws to such benefits.

The Court first looked to the portion of the Railroad Retirement Act that protected retirement benefits. 45 USCA 231 (m) states, in part:

“§ 231m. Assignability; exemption from levy
Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated

Congress later made an exception to this and similar provisions of federal benefit plans, by adding 42 USCA 659 of the Social Security Act. This section provides:

“Enforcement of individual’s legal obligations to provide child support or make alimony payments-United States and District of Columbia to be subject to legal process:
(a) Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.”

This section removed sovereign immunity of the federal benefits in order to satisfy a legal obligation of child support or alimony. Congress then added 42 USCA 662 to define “alimony” in the traditional meaning of spousal support. That statute states specifically that “alimony”

“. .. does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.”

The Supreme Court therefore concluded that Congress did not intend such retirement benefits to be subject to a community property claim because Congress had allowed legal process against the benefits only for child support or alimony, and not a claim for community property upon divorce. Section 231 (m) of the Railroad Retirement Act was still therefore controlling, and by its language prevented the application of California state law to those benefits. Otherwise, a spouse’s community property interest would automatically deprive the husband of a portion of a benefit Congress intended for him alone.

We note that the wife in Hisquierdo based her community interest claim on the California case In Re Fithian, supra. This is the same case cited by our Courts in Swope and Moon. The Court in Moon held that the supremacy clause did not affect state community property law with regard to military retirement benefits, as did the California court in Fithian. Yet this is the very basis for the U. S. Supreme Court’s decision in Hisquierdo with regard to railroad retirement benefits: the federal supremacy clause does override application of a state’s community property law to those retirement benefits. We believe that the same reasoning follows for military retirement benefits.

The impact of Hisquierdo on military retirement pay was specifically ruled upon by the Supreme Court of Alaska in Cose v. Cose, 592 P.2d 1230 (1979). There, the ex-wife was claiming a share of her former husband’s Army retirement pay. The Court held that armed forces retired pay is not property which is divisible upon divorce, and that the federal supremacy clause prohibited the application of state divorce property settlement law to military retired pay.

The Alaska Court looked to the legislative intent of the military retirement statutes, as the U. S. Supreme Court did for the Railroad Retirement Act. 10 USCA 1447-1455 is a subchapter of the military retirement provision, entitled “Survivor Benefit Plan.” It provides a means by which a serviceman can use a portion of his retired pay to purchase an annuity for his widow. An ex-wife is not eligible for benefits. If there is a divorce, the wife can no longer be a beneficiary and deductions from retired pay cease. The Court noted:

“... In the passage of the law setting up this plan, provisions which would have protected ex-wives were stricken from the law before its passage. 118 Cong. Rec.S. 29810-12 (1972). In this respect Congress purposefully excluded ex-wives from benefitting under the plan. One searches the statutes in vain for any indication that Congress has ever treated retired pay as property or has intended retired pay to be divisible upon divorce.” 592 P.2d at 1232.

The Court therefore concluded that the wife did not have a claim to the husband’s retirement pay, based on Hisquierdo.

It is significant that § 1450 of the military Survivor Benefit Plan contains an anti-attachment or anti-assignment provision similar to Section 231 (m) of the Railroad Retirement Act, supra. § 1450 (i) provides:

“(i) An annuity under this section is not assignable or subject to execution, levy, attachment, garnishment, or other legal process.” 10 USCA 1450

While this annuity would only be for the widow, the language of the statute is similar to that of the Railroad Retirement Act, which the U. S. Supreme Court found to be so important in ruling that railroad benefits are immune from community property claims.

A concurring opinion in Cose stresses that but for Hisquierdo there would be no federal pre-emption in this area, in accord with the case In Re Fithian. But because His-quierdo is now the controlling law on the subject, the Court held that the supremacy clause prohibits application of state property settlement concepts relating to divorce proceedings to military benefits.

This Court again notes that the constitutional supremacy clause argument rejected in Moon was used by the U. S. Supreme Court as the basis for Hisquierdo. Likewise, the premise of the California case of Fithian relied upon by seemingly every court that has considered the matter has now been refuted by the U. S. Supreme Court in Hisquierdo. The Supreme Court of Alaska, in Cose found the legislative intent of the military retirement provisions to be similar to the Congressional intent of the railroad statutes. Finally, although Hisquierdo only dealt with the Railroad Retirement benefits, we are convinced that military retirement benefits are in the same category and cannot be considered a part of the community.

In our opinion the same rationalization used in Hisquierdo regarding railroad retirement benefits is applicable to the defendant’s Air Force retirement benefits involved in the instant case. We find it very persuasive, as did the courts in Hisquierdo and Cose, that Congress enacted legislation waiving federal immunity in cases seeking alimony and child support and subsequently defined that waiver to preclude cases involving community property claims.

For the foregoing reasons, and for those given by the trial court as set forth above, we affirm the judgment. Costs are taxed to plaintiff-appellant.

      . Art. 2405. At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess, are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.


author: JASPER E. JONES, Judge.

text:
    CITY OF SHREVEPORT, Plaintiff-Appellee, v. Benedetto PUPILLO, Defendant-Appellant.
    No. 14302.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.

      Francis M. Gowen, Shreveport, for plaintiff-appellee.
    Freyer & Fox by Sam A. Freyer, Shreveport, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Benedetto Pupillo, appeals a trial jury’s award of $49,800 as the value of a grocery store and several apartments taken by plaintiff, the City of Shreveport (City), through expropriation proceedings. Defendant also complains of the failure of the trial judge to award attorney fees.

Defendant and his wife are the sole operators of a grocery store located in the area of Shreveport known as Allendale. Behind the store are twelve apartments which defendant rents for $45 per month. Pursuant to a federal block grant, the City sought to acquire defendant’s property in order to use the land for a proposed park and recreational facility. The City tendered checks to defendant in the amounts of $37,600 and $10,000, respectively. The $37,600 was based on two appraisals of the value of the grocery store and its accompanying twelve apartments. The $10,000 was a payment designated as in lieu of relocation cost and was the maximum amount payable under a Housing and Urban Development regulation.

The case was tried by the jury solely on the issue of the amount of compensation due defendant for the property expropriated. The jury returned an award of $49,800 and did not itemize which, if any, of the award was for business loss (value of the business exclusive of the property), and which was for the value of the property.

Defendant complains that the methods used by the City’s appraisers were improper and resulted in too small an award. Defendant contends the amount at which the property was appraised for state, parish and local tax purposes should be used as the true value of the property.

John W. Landon and Marshall Graham, expert appraisers, prepared appraisals of defendant’s property for the City and each testified at trial. To appraise the property, Landon used the cost approach, the income approach, and the market data approach. Under the cost approach Landon found the replacement cost for a new grocery store building to be $14.77 per square foot times 1,158 square feet (the size of the store) equals $22,428. He found the replacement cost for the apartments to be $13.45 per square foot times 6,315 square feet (size of the apartments) equals $84,914. He found the replacement cost for the porches and awnings to be $2.50 per square foot times 1,417 square feet for a total of $3,542. This total cost of all improvements taken of $110,884 (there is in this figure a slight error of multiplication) was depreciated by 70% ($77,619) resulting in the value of the improvements taken being $33,265, to which he added the depreciated value of a fence and the value of the land (determined by comparable sales) resulting in a total appraisal of $38,275. Under the income approach Landon found net potential rental income from the grocery store building and apartments to be $5,616. Landon capitalized this income at 15% and found the market value to be $37,500. Under the market data approach Landon used a gross rent multiplier of 4.61 and multiplied this by the gross annual rent obtainable from the store and apartments in the amount of $8,160, and found a value of $37,600. Landon considered this approach the most reliable and therefore used it.

Graham used the same three methods of appraising the property as were used by Landon. Under the market data approach he arrived at a figure of $36,700. He, too, believed the market data method was best. Using the cost approach he evaluated the property at $34,000, and using the income approach he appraised the property at $36,-300. Because of his feeling that the market approach was best, he used the $36,700 figure.

O. W. Dean was employed by the City to review these two appraisals. He found Landon and Graham had made thorough investigations, and recommended the higher figure of $37,600 to be offered to defendant. Dean’s impartial review showed these appraisals to be competently and expertly handled.

Graham evaluated the value of defendant’s business by using two methods, the first involved arriving at a net income figure for defendant’s operations which he derived from defendant’s income tax returns. The net income ranged from $18,490 in 1974 to $18,400 in 1976. Graham then calculated what it would cost to operate the store with two employees working a 6 day, 96 hour work week. Using wage rates paid by 7-11 stores to pay employees performing similar work as was required in defendant’s operation, Graham calculated the salary expenses to be $39,000. Since the labor costs were greater than the income, Graham concluded defendant's business had no value.

Defendant and his wife were the only persons working in the store. They had no employees. Unless the net income is adjusted for labor expenses, what appears to be a net profit is not really a net profit but in reality a labor cost. Graham’s business evaluation was based on the idea that if a third party had bought the business he could make no profit from it if he had to hire labor to operate the store. If the purchaser did the work himself he would be simply receiving money earned from the work performed, not from any value attributable to the business.

Graham’s second approach involved using comparable sales of grocery stores and comparable situations where the store was rented to a new proprietor. In the comparables used by him there was never an amount paid for any business over and above the value of the real estate, fixtures, and grocery inventory. He therefore again concluded the business had no value.

Defendant used the testimony of Stead-man, his accountant, to attempt to establish that his business had a value above the value of the land and improvements taken. Steadman averaged defendant’s net income for 1974, 1975 and 1976, and obtained an average figure of $15,851. He then multiplied this figure by six, an unexplained business technique, to arrive at a business evaluation of $95,106. Steadman’s approach was actually similar to Graham’s for obtaining net income, but Steadman failed to take into account the salaries of two employees needed to replace defendant and his wife. He stated he never included the value of the proprietor’s labor to the business when evaluating a business. Because there were no salaries paid, Steadman refused to make an adjustment to his net income figure. If Steadman had made a reduction from his average net income figure for labor, then used his formula, he would have obtained the same result as Graham-a zero business value.

Defendant did not have an expert appraiser testify on his behalf. He called as a witness an employee of the Caddo Tax Assessor’s office who testified that the records of that office reflect a 1974 appraisal of defendant’s property for tax purposes to be $54,380. This witness did not know the name of the appraiser who made this appraisal, and this person was not called as a witness by defendant.

As stated in City of N.O. v. Giraud, 346 So.2d 1113 (La.App. 4th Cir. 1977), at p. 1118:

“In ascertaining the market value, much discretion is given to the trial judge in weighing the testimony of experts, and his finding of value based on such expert testimony will not be disturbed unless clearly erroneous. State, Department of Highways v. Browning, 315 So.2d 784 (La.App. 1st Cir. 1975); City of Baton Rouge v. Allied Chemical Corporation, 308 So.2d 295 (La.App. 1st Cir. 1975).”

In expropriation cases the trier of fact’s decision of the amount for which a landowner should be compensated is a factual decision and as such should not be disturbed by us on appeal in the absence of manifest error. See Parish of East Baton Rouge v. Thomas, 346 So.2d 364 (La.App. 1st Cir. 1977); State, Etc. v. C. F. Breaux Inv. Co., Inc., 351 So.2d 1321 (La.App. 1st Cir. 1977); Greater Baton Rouge Airport Dist. v. Hays, 339 So.2d 431 (La.App. 1st Cir. 1976); State, Through Dept. of Highways v. Romano, 343 So.2d 222 (La.App. 1st Cir. 1977). Our function in an expropriation case is only to review the evidence in the trial court record to decide whether the trier of fact’s factual conclusion is reasonably supported by the evidence. See State, Department of Highways v. Haydel, 306 So.2d 836 (La.App. 4th Cir. 1975).

The market data comparable approach of appraising defendant’s property used by and prepared by Landon and Graham has been approved by our jurisprudence. See State, Dept. of Highways v. Bjorkgren, 147 So.2d 905 (La.App. 1st Cir. 1962) and State v. Romano, supra. The trier of fact, the jury here, is not required to accept or reject the testimony of any particular witness but may give whatever weight they consider appropriate to the testimony of any and all witnesses in making their factual determination of the value of the property taken. See State v. Romano, supra.

Defendant argues the 1974 appraisal by the Caddo Parish Tax Assessor’s office in the amount of $54,330 should be used as the value of the real property. The jury was entitled to give the testimony of defendant’s witness from the Assessor’s Office the weight they felt it should be given. Again, the jury is entitled to accept or reject the testimony of any and all witnesses, and its conclusion as to value need not coincide with the testimony of any particular witness. State v. Romano, supra; State, Department of Highways v. Thurston, 338 So.2d 154 (La.App.2d Cir. 1976); State, Dept. of Highways v. Salassi, 244 So.2d 871 (La.App. 1st Cir. 1971). We do not agree with defendant that the jury was required to accept the Assessor’s office worker’s testimony as the controlling factor in determining the value of the property.

Defendant also complains that $4,200 should have been awarded him as the value of his fixtures and furnishings. We agree with the City that the City never expropriated these items. Since these items were never expropriated, defendant is not entitled to an award for a loss which never occurred.

Defendant complains that he should be compensated for his loss of business and he quotes Louisiana Constitution 1974, Art. 1, § 4. Under this constitutional article and under the supreme court case of State, Through Department of Hwys. v. Constant, 369 So.2d 699 (La.1979), a landowner whose property is expropriated shall be compensated to the full extent of his loss, including business loss.

Defendant introduced testimony of his accountant who valued the business at $95,-106. This accountant, Steadman, used a different method to evaluate the business loss from that utilized by Graham, plaintiff’s witness. Steadman averaged the gross sales for three years and then took 65% off this figure for a total of $105,000. He also averaged the net income for three years and multiplied this figure by six and came out with $95,106, which is the amount at which he valued the business. Steadman offered no thorough or informative explanations as to why these particular methods were used, unlike Graham who exhaustively explained his techniques.

The jury had before it the business loss evaluation of Graham, who valued the business as zero, and Steadman, who valued the business at $95,160. It is peculiarly the province of the jury to evaluate the testimony of the witnesses and to determine what weight should be given it. Romano, Thurston, Salassi, supra. We note that the jury awarded defendant $49,800, some $12,200 over and above the property evaluation given by Graham and Landon and confirmed by Dean, but less than the $54,300 appraised value of the property for tax assessment purposes. Since the jury did not itemize its award-, we do not know if the award included any business loss but the $12,200 in the award above the City’s appraisals could well have been intended as an award for business loss. Considering the jury’s function of deciding which witness to believe or of combining the testimony of all witnesses, we find no manifest error in their award and conclude that defendant has been adequately compensated for any business loss suffered by him.

Before this case went to trial defendant was offered, in addition to the $37,-600, the sum of $10,000 in lieu of relocation payment. This payment is authorized by HUD regulations and is in lieu of actual relocation costs. $10,000 is the maximum amount authorized under the plan. Three tests must be met (1) the business cannot be relocated without a substantial loss of patronage, (2) the owners cannot be owners of other business not being acquired, and (3) a certain gross income must be derived from the business. The City, on reviewing defendant’s tax returns, believed defendant qualified for this payment and offered him the maximum $10,000.

Defendant complains that the jury was misled into believing he would receive this $10,000 in lieu of payment in addition to any amount awarded by the jury. (City has now indicated that it may not now authorize this $10,000 payment). Defendant points to a statement by Carl Conley, former director of Urban Development in Shreveport, in the trial of the rule to show cause why the judgment should not be made executory to the effect that he told the jury the owner would receive relocation funds regardless of their expropriation award. We have thoroughly reviewed Mr. Conley’s testimony before the jury, and have in no instance found any such declaration by him, or indeed by any other witness.

Defendant also claims that when the trial court denied him the right to present evidence of relocation awards received by his tenants, the trial court in its statement of denial led the jury to believe defendant would receive the in lieu of payment sum offered by the City in addition to any expropriation award. We have reviewed this statement by the court and find it cannot be so construed.

The City’s decision that it may now withhold the relocation award from defendant is an administrative one. No testimony was adduced at trial which would have led the jury to believe that defendant would receive this payment in addition to the expropriation award.

Defendant finally complains that he •should have been awarded attorney fees under LSA-R.S. 19:8, which permits attorney fees to be awarded to landowner if the highest amount offered by the expropriation authority is less than the compensation awarded. The City offered defendant $37,-600 for his property and $10,000 as a relocation payment:

“. .. Well then, we would offer and introduce that in evidence, Your Honor, the resolution allowing the expropriation of the parcel. Last but not least, for the record, we’re prepared to make an offer or tender to Mr. Freyer on behalf of his client of the sum of $47,600 total, $37,600 being value of the appraisal on this property, and the $10,000.00 being what we call a relocation or a payment in lieu of. There is no stipulation, no strings attached. For the record, we have two checks drawn on the City of Shreveport, check number 91481 in the amount of $37,600.00, check number 91482 in the amount of $10,000.00 which we would offer to Mr. Freyer at this time as first settlement for all compensation due Mr. Pupillo.” Transcript, p. 101, lines 5-20.

This statement of the City’s attorney was not made in the presence of the jury. The difference between the amount awarded by the jury as compensation for the loss of his property ($49,800) and the amount offered by the City as compensation for the loss of his property ($37,600) is $12,200. LSA-R.S. 19:8 provides that the trial court may award attorney fees if the amount awarded the landowner exceeds the amount offered by the expropriating authority. Although the trial court is vested with discretion in deciding whether or not to award attorney fees, this discretion is not limitless. If we find the trial court has abused its discretion, we should reverse its decision not to award attorney fees. Cf. Claiborne Electric Coop., Inc. v. Garrett, 357 So.2d 1251 (La.App.2d Cir. 1978); La. Intrastate Gas Corp. v. Guidry, 357 So.2d 830 (La.App.3d Cir. 1978). A difference of $12,-200 between the jury award and the amount offered for defendant’s property is certainly large enough to justify the defendant’s action of questioning in a court of law the award offered him by the City and, therefore, to warrant an award of attorney fees.

Although the record reflects the City may no longer offer the previously tendered relocation payment, defendant can still apply for this relocation payment as long as he submits his claim within 18 months after his displacement. See the following HUD regulation Title 24-Housing & Urban Development, Subtitle A-Ofc. of the Secretary, Dept, of HUD, Part 42-Reloca-tion Payments and Assistance and Real Property Acquisition Policies Act of 1970, Subpart B-Relocation Payments, § 42.60(b). We have found no indication in the Act (42 U.S.C.A. 4601 et seq.) or HUD regulations adopted pursuant thereto that defendant’s assertion of his legal rights by contesting the amount offered him for the value of his property in any way impedes his right to apply for a relocation payment and in fact to obtain that payment (if, of course, he meets the requirements of Title 24, § 42.-85(b) (1, 2, 3) of HUD’s regulation). If defendant applies for the relocation payment (of which application we have found no evidence) and is turned down or is dissatisfied with the amount awarded him, the HUD regulations provide a grievance procedure in which he can seek relief from an unfavorable determination. See HUD’s regulation, Title 24, § 42.220 to § 42.290. Upon exhaustion of administrative remedies, defendant can seek judicial review. § 42.290.

Since defendant can still file for and claim the relocation payment, the City’s total offer of $47,600 cannot be seen as an unconditional offer for his property. The so-called settlement offer which the City made to defendant (of $37,600 and $10,000) clearly contemplated that defendant would have no further claim to the relocation award.

Under the HUD regulations defendant, as property owner, does not forfeit the right to the relocation payment by litigating the amount to which he is entitled for the property taken. We therefore consider the City’s offer for the value of the expropriated property to be only $37,600. Since the difference between the amount awarded and the amount offered is so large, we find the trial court abused its discretion in not awarding defendant attorney fees.

We therefore amend the judgment to award defendant twenty-five percent (25%) of $12,200 (the difference), or $3,050.00 as attorney fees, and as AMENDED affirm.

      . This term is defined by Landon as:

        “THE MARKET APPROACH TO VALUE In the application of the Market Approach to value, the sale of three properties similar to the subject were analyzed, resulting in the development of a Gross Rent Multiplier.
      The Gross Rent Multiplier is a factor which represents the relationship (a ratio) between the gross annual rent and the sale price of a sold income producing property. The procedure is simple and is often used as a measure of value by investors in their negotiations to buy and sell income producing properties.”

      . These requirements are summarized in HUD’s Relocation Handbook which is in the record as follows:
      “SECTION 3. PAYMENT IN LIEU OF ACTUAL MOVING AND RELATED EXPENSES 6-31. AUTHORITY. Section 202(c) of the Uniform Act authorizes payments in lieu of actual moving and related expenses for business concerns, nonprofit organizations, and farm operations that elect to receive such a payment and that meet certain requirements. HUD regulations in connection with payments in lieu of actual moving and related expenses for this category of displaced persons are set forth in Section 42.85.
      6-32. GENERAL. A payment in lieu of moving and related expenses may be made to a business (except the owner of an outdoor advertising display) that elects to receive such a payment and that meets the eligibility requirements for a payment for moving and related expenses and the additional requirements set forth in this Section. To qualify for a payment, the business must meet the definition set forth in Section 42.20(a) of the regulations.
      6-33. AMOUNT OF PAYMENT. A payment in lieu of moving and related expenses shall be equal to the average annual net earnings of the business concém or farm operation, but not less than $2,500 nor more than $10,-000. (See paragraph 6-37 for definition of average annual net earnings.) Payment to a nonprofit organization shall be $2,500.
      6-34. ELIGIBILITY REQUIREMENTS-BUSINESS CONCERN.

      a. A displaced business concern may be eligible for a payment in lieu of moving and related expenses if the local agency determines that the business meets the three tests described below. Any business that meets these three tests is eligible irrespective of whether it continues or discontinues its operations.

        (1)Test 1. The business cannot be relocated without a substantial loss of its existing patronage. Loss of existing patronage is presumed unless the type of operation is such that patronage is not dependent upon location in the neighborhood from which displacement takes place. Examples of this type of operation might be the general practice of law, medicine, or dentistry. If in the opinion of the local agency the business does not meet Test 1, it is the responsibility of the agency to demonstrate that the business will not suffer a substantial loss of existing patronage.
      (2) Test 2.

      (a) General Rule. The business is not part of a commercial enterprise having another establishment which is not being acquired for the project, and which is engaged in the same or similar business.
      (b) Exception. The sole remaining facility of a business that has been displaced from its principal location shall not be considered as ‘another establishment’ for purposes of Test 2 if, during the two taxable years prior to displacement of the major component of the business, the remaining facility had:

        1 Average gross receipts of less than $2,000; or

        2 Average annual net earnings of less than $1,000.
      (3) Test 3. During the two taxable years prior to displacement, the business:
      (a) Had average annual gross receipts of at least $2,000; or
      (b) Had average annual net earnings of at least $1,000; or
      (c) Contributed at least 33‘/3 percent of the average annual gross income of the owners or operators of the business.”


text:
    Larry HALL, Plaintiff-Appellant, v. GEORGIA-PACIFIC CORPORATION, Defendant-Appellee.
    No. 14308.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Plummer, Mansfield, for defendant-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff appeals from a lower court judgment rejecting his claim for workmen’s compensation benefits allegedly due because of the aggravation of a pre-existing shoulder injury while working for defendant. He contends that the trial judge erred in concluding that the claimant had failed to prove by a preponderance of the evidence that an accident occurred on the job.

We affirm.

Examination of the record reveals that plaintiff, a 27 year old male, was employed on July 2, 1979 to work as a utility man at defendant’s plant near Logansport, Louisiana. Some two years prior thereto plaintiff had been involved in an automobile accident, sustaining a severe injury to his left shoulder which required surgery and continuing medical care at the L.S.U. Medical Center until a short time before plaintiff’s employment by defendant. The fact of the prior injury was not revealed to defendant when plaintiff completed his pre-employment application form.

Plaintiff’s job duties with defendant entailed the use of both hands to pull green veneer plywood strips, usually weighing less than two pounds each, off a conveyor belt and stacking them on pallets. There were five other employees working on this particular conveyor belt. On the second day of his employment plaintiff informed his foreman of his previous injury and requested that he be permitted to change his position to the other side of the conveyor belt because “he wasn’t very fast with his left hand.”

It was plaintiff’s testimony that he had been working for about an hour on July 13, 1979 when he experienced a sudden “popping” sensation in his left arm, followed immediately by the onset of pain in that area. He promptly went to the foreman, Rushing Lambert, and requested medical forms. Plaintiff asserted that upon being queried about the reason for this request he explained that his shoulder was “popping and hurting.” Lambert conceded that plaintiff asked him for the medical forms but categorically denied that he made any complaint about an injury. According to Lambert, plaintiff stated that he just desired a medical check-up. Since defendant did not furnish its employees this benefit, Lambert sent plaintiff home. Lambert testified positively that he asked plaintiff if he had been hurt and the answer was an unequivocal “no.”

Plaintiff visited with Jack Dean, defendant’s personnel manager at the Logansport plant, on July 16, 1979 for the avowed purpose of securing medical forms. According to plaintiff this request was refused. Dean denied that plaintiff asked for medical forms, testifying that plaintiff simply stated his impression that he had been hired for light duty only. Dean also denied that plaintiff informed him that he was injured on the job on July 13.

Upon examining plaintiff’s personnel file and concluding that he had falsified the information supplied therein by failing to reveal the occurrence of the prior injury, Dean terminated plaintiff’s employment with defendant on July 16, 1979. Dean averred that his first notice of the claimed accident and injury came in a demand letter dated September 6, 1979 from plaintiff’s attorney. Upon rejection of the claim this suit was filed on October 4, 1979.

Plaintiff consulted Dr. Harold R. Bicknell on July 18, 1979, giving a history of having been hurt while working for defendant on July 13, 1979 and complaining primarily of pain in the left shoulder. Upon the basis of the history and subjective complaints of pain, Dr. Bicknell concluded that plaintiff had sustained an aggravation of his previous injury.

Dr. Bicknell again examined plaintiff on September 10, 1979 and found some tenderness on the left side of the collarbone. It was his opinion that plaintiff had probably sprained his left shoulder and that the pain associated with this shoulder would subside within six to eight weeks. Summarizing his findings, Dr. Bicknell stated:

“I think he had strained himself with his work, and I think this caused him some pain in this area. But as far as any real severe injury, I did not see any evidence of this. I felt that he was back essentially as he had been . .. before he had his injury to this area, but he was probably going to have some pain and some discomfort in this thing even no matter what we did for him or what anyone else did for him in that area ... I’m sure he had some pain ... initially from his injury. I think he had a problem in that area that probably caused his some pain or some discomfort . .. even prior to the injury.”

La.R.S. 23:1031 provides that workmen’s compensation benefits are due employees who receive “personal injury by accident arising out of and in the course of his employment.” (emphasis added)

“Accident” is defined as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” La.R.S. 23:1021(1).

Our jurisprudence has given an extremely broad interpretation to the definítion of “accident”, holding that strain or exertion can supply the necessary violence. Dortch v. La. Central Lumber Co., 30 So.2d 792 (La.App. 2d Cir. 1947). Furthermore, “when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present.” Ferguson v. HDE, Inc., La., 270 So.2d 867 (1972).

The principle that the employer takes the employee as he finds him is firmly established in our jurisprudence. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589 (1918); Price v. Houston Fire & Casualty Ins. Co., 155 So.2d 213 (La.App. 3rd Cir. 1963); Williams v. Liberty Mutual Ins. Co., 327 So.2d 462 (La.App. 3rd Cir. 1976); Cadiere v. West-Gibson Products Co., Inc., 364 So.2d 998 (La. 1978).

The employee’s pre-existing deficiency may result either from disease or from a previous injury. Compensation has been awarded to an employee for disability produced by an employment-related accidental injury which combined with an old back injury, Duncan v. R. J. Reynolds, Inc., 305 So.2d 707 (La.App. 4th Cir. 1974), and for the aggravation of a prior knee injury, Hayes v. Tac Amusement Co., Inc., 349 So.2d 340 (La.App. 4th Cir. 1977).

Discussing the employee’s burden of proof in workmen’s compensation cases, the Louisiana Supreme Court in Prim v. City of Shreveport, 297 So.2d 421 (La.1974), stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture . ... ”

In determining whether the claimant has discharged his burden of proof, the Louisiana Supreme Court in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), held:

“.. . the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony.”

The court further explained:

“It is true that, ‘The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable.’ Cadiere v. West Gibson Products Company, 364 So.2d 998, 999 (La.1978) (Italics ours). However, the appellate court is not required by this principle to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony (Johnson, cited below), or greatly preponderate objectively-corroborated testimony (Ar-ceneaux, cited below) where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principle. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).” p. 1150.

In Hand v. Reeves, 378 So.2d 1064 (La.App. 2d Cir. 1979), we affirmed a trial court’s rejection of appellant’s claim for workmen’s compensation because of factors [past life-style and numerous claims for workmen’s compensation for back injuries] which “detracted from plaintiff's credibility to the extent that his testimony alone . .. was insufficient to establish a compensable accident.”

Contradictions of and discrepancies in the testimony of the claimant in Charleston v. Nabors Trailers, Inc., 381 So.2d 894 (La.App. 2d Cir. 1980), were deemed to be “circumstances casting suspicion on the reliability of this testimony.”

In this case the trial judge, in a well-reasoned opinion, recognized that plaintiff’s testimony alone might have been sufficient to establish the occurrence of an accident, but concluded that this testimony was discredited by the failure of plaintiff: (1) to report his accident to defendant; (2) to call any co-employee as a witness; (3) to explicitly tell Dr. Bicknell of his arm “popping”; and (4) lack of strenuous nature of plaintiff’s job duties.

Our examination of the record indicates that the trial judge had sound reasons for rejecting plaintiff’s testimony relating to the occurrence of the accident and properly applied correct legal principles in holding that plaintiff had failed to discharge his burden of proving by a preponderance of the evidence that he had been involved in an accident while working for defendant. Along with the suspicious circumstances listed by the trial judge, we also note plaintiff’s false statement in his employment application to the effect that he had no previous injury; the direct contradiction by Lambert and Dean of plaintiff’s assertion that he reported his accident to the defendant; plaintiff’s failure to call any family member or friend to testify concerning his condition when he went home from work on July 13, 1979, the date of the alleged accident; and plaintiff’s lack of a work history for two years prior to the alleged accident and for the time thereafter.

For these reasons, we affirm the judgment of the trial court at appellant’s cost.


author: FRED W. JONES, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Ann Rife MOSELEY, Defendant-Appellee (two cases). STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Josie Rife DROUET et al., Defendants-Appellees (two cases). STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Josie Rife DROUET, Defendant-Appellee (two cases).
    Nos. 14309 to 14314.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    En Banc. Rehearing Denied Dec. 8, 1980.

      William W. Irwin, Jr., Bernard L. Malone, Jr. by Johnie E. Branch, Jr., Executive Asst. Gen. Counsel, Bryan Miller, Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant.
    E. Rudolph McIntyre, Winnsboro, for defendants-appellees.
    Before PRICE, HALL and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

In December, 1974 the State of Louisiana through the Department of Highways (“State”) filed three suits under La. R.S. 48:441 et seq. (“quick taking” statute) to expropriate certain property belonging to the defendants, either individually or jointly, for the purpose of widening Louisiana Highway 4 in Franklin Parish from a two-lane to a four-lane thoroughfare. In October, 1975 the State filed another three suits against the same defendants to expropriate additional property lying adjacent to that first taken in order to relocate utilities. These six suits were consolidated for the purpose of trial, which was had in 1978.

From a judgment in each of the suits in favor of the landowners, the State appealed. However, on appeal the State has conceded the correctness of the judgments in No. 14,309, No. 14,311, No. 14,312 and No. 14,313. Consequently, this appeal is concerned only with the lower court’s judgments in No. 14,310 and No. 14,314. The state argues that the awards to the defendants in those actions were excessive because the trial judge erred in:

(1) Employing erroneous square footages as to remainder areas for computation of severance damages.
(2) Failing to offset severance damages with amount of special benefits accruing to remainders after taking.
(3) Fixing value of land expropriated in second taking without deducting for diminution of value occasioned by first taking.

The trial court judgments contested in this appeal involve the property described on the pertinent state map as parcel 3-1 (for sake of clarity see sketch appended to this opinion). The original tracts from which this parcel was expropriated contained some 105 acres, with the parts taken comprising about 3 acres. Parcel 3-1 is described generally as beginning at the eastern corporate limits of Winnsboro, Louisiana and running east along the north side of La. Hwy. 4 for a distance of approximately 3000 feet, with varying depths.

Although each side presented the testimony of two expert witnesses, the trial judge apparently found most persuasive the testimony of Darrel V. Willet, one of defendants’ expert appraisers. For appraisal purposes this witness divided parcel 3-1 into three segments (as shown on the appended sketch). For segments 1 and 2, with which this appeal is concerned, Willet adopted a “front-use” approach to his land analysis, assuming a depth of 200 feet for the property fronting on the highway.

It was generally agreed that the highest and best use of the expropriated property was for commercial development and rural homesites.

After considering the testimony reláting to land values, and without wholly accepting any one set of appraisals, the trial judge fixed the value of the 22,238 square feet taken from segment 1 at 25$ per square foot and the value of the 39,200 square feet taken from segment 2 at 21<t per square foot.

Because the construction project entailed the creation of a much larger drainage ditch than had previously existed between defendants’ properties and the highway, the trial judge found that in segment IB a lot with 420 feet frontage and 200 feet deep had been diminished in value by 5<t per square foot, and in segment 2 that a lot with 980 feet frontage and 200 feet deep had been diminished in value by the same amount per square foot.

The significant issues presented by this appeal will be discussed separately.

Computation of Damaged Remainder Area

The State argues that all of segment IB, measuring 420 feet frontage by 200 feet deep, contained 84,000 square feet. When the part taken (18,680 square feet) is subtracted, the balance is 65,320, which should have been the remainder on which the severance damage of 5<t per square foot was computed. Instead, the trial judge calculated severance damages in this segment on the basis of the entire 84,000 square feet.

The same argument is directed at the severance damage award made with reference to segment 2, which measured 980 feet frontage by 200 feet deep and contained 196,000 square feet, for which the trial judge allowed 5$ per square foot as severance damages. The State asserts that he should have deducted the part taken (39,200 square feet) and computed severance damages upon the remainder of 156,800 square feet.

It is well settled in our jurisprudence that the severance damage allowable as a result of an expropriation is the difference between the market value of the landowner’s remaining property immediately before and its diminished value immediately after the taking. State, Dept. of Highways v. Anderson, 356 So.2d 1086 (La.App. 2d Cir. 1978); State, Dept. of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir. 1979); State v. Martin, 196 So.2d 63 (La. App. 3rd Cir. 1967).

However, where the evidence shows the landowner actually sustained damages to a particularly valuable portion of his tract, the award will be computed with reference to the before and after value of only the portion of the remainder suffering a loss in market value by reason of the taking. Dakin & Klein, Eminent Domain in Louisiana, p. 76 (1970).

In State v. Martin, supra, the State contended that the trial judge erred in permitting defendant’s experts to base their estimate of severance damages on the highest and best use of a typical lot measuring 100 feet by 200 feet. Rejecting this argument, the court explained that it interpreted the testimony of these experts to be “that the only severance damages sustained to the entire tract were those which related to this typical lot.”

Southwest Louisiana Electric Membership Corp. v. Beck, 299 So.2d 411 (La.App. 3rd Cir. 1974) was an expropriation suit for the construction of an electricity transmission line through the defendant’s property, taking about one acre out of a 15 acre tract. The court found severance damages “only in regard to the 200 foot swath of some 3.34 acres situated to the east of the right of way.”

In State, Dept. of Highways v. Westport Development Co., Inc., 332 So.2d 918 (La. App. 2d Cir. 1976), this court found no error in the method used by defendant’s appraisers to calculate severance damages because “the entire remainder was damaged only to the extent that the parcel between the two drainage servitudes was damaged.”

Implicit in Willet’s testimony in this case is that his calculation of severance damages was based upon a “front-use” tract, 200 feet deep, remaining after the first taking. The trial judge obviously accepted this testimony, concluding that the entire remainder containing in excess of 100 acres was damaged only to the extent that there was a diminution in value of the “front-use” lots measuring 200 feet deep after the first taking. Contrary to the State’s contention, he did not include the portions first taken in his severance damage computations, but simply brought this square footage from the rear and made it a part of the “front-use” lots. He committed no error by proceeding in this manner, since the cited jurisprudence fully supports that method of calculating severance damages.

Offset of Severance Damages by Special Benefits

Willet testified that the new drainage ditch separating the remaining property from the highway would be 49.5 feet wide and 6.5 feet deep and that driveways leading to improvements which might be constructed on the property would require 60-inch culverts, at a total calculated cost of $17,280. It was his further testimony that the remaining “front-use” property would diminish in value by $13,425 because of the existence of the large ditch. He added these two figures for his computation of severance damages. However, he then proceeded to deduct from this the sum of $12,-939 as the “special benefit” accruing to the remainder by the bringing of rear land (beyond the original 200 foot depth) into the “front-use” tract.

The trial judge rejected the “cost-to-cure” approach and disregarded the testimony relating to special benefits. The State contends that he erred in not offsetting the severance damage award by the amount of special benefits as described by Willet.

La. R.S. 48:456.1 provides that “the plaintiff may not introduce evidence as to any special benefits unless specially pleaded.” Since the State did not plead special benefits, it offered no evidence on this issue but simply relied upon Willet’s testimony on this point.

The landowner claiming severance damages has the burden of proving them. City of New Orleans v. Giraud, 238 La. 278, 115 So.2d 349 (1959); Texas Gas Transmission Corp. v. Broussard, 234 La. 751, 101 So.2d 657 (1958); Harrison v. Louisiana Highway Comm., 191 La. 839, 186 So. 354 (1939).

Louisiana jurisprudence has established the general principle that recovery for severance damages to a remainder caused by a taking may be offset by any special benefits the remainder receives as a consequence of the new improvements for which the property is taken. State v. Central Realty Inv. Co., 238 La. 965, 117 So.2d 261 (1960); Thomas & Warner v. City of New Orleans, 230 La. 1024, 89 So.2d 885 (1956); State v. Cooper, 213 La. 1016, 36 So.2d 22 (1948). On the other hand, general benefits received by all property in the neighborhood may not be used to offset severance damages. City of New Orleans v. Giraud, supra; Louisiana Highway Comm. v. Hoell, 174 La. 302, 140 So. 485 (1932). Application of this distinction between general and special benefits “has been recognized as one of the most complex and difficult problems of expropriation law.” Dakin & Klein, supra, 86-87.

In Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654 (1941), general benefits were defined as “those which are shared alike by all property owners in the neighborhood or community” and special benefits as “those affecting a particular estate by reasons of its direct relationship with the improvement.” Applying this ruling, the court in State, Dept. of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3rd Cir. 1969), held:

"... if as a result of the widening or improving the street, the remainder of the tract left fronting on it is more valuable because of this frontage, the increased value due to such particular location is a special benefit.and may be offset against severance damages otherwise allowable to the landowner, (citation omitted) It is a special benefit ,|ven if the property of all other property owners with frontage along the route is similarly increased in value, (citation omitted)
“On the other hand, where the improvement for which the taking is made produces a general appreciation in the value of the property in the area irrespective of its peculiar location adjacent to the improvement in question, this is a general benefit attributable to all land in the vicinity.”

However, the Grey ruling seems to have been considerably narrowed by State, Dept. of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972) and State, Dept. of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973). In McPherson the court held that a special benefit is an enhancement in property value that is peculiar to the defendant alone. On the other hand, in the Trippeer case the court found that proof of special benefits depended upon a showing that the project benefits experienced by frontage owners were not shared by the community at large which might have generally benefited from the improvements.

Be that as it may, once severance damages have been proved the burden shifts to the taker to prove both the existence and the quantum of any special benefit received by the property which may be available as an offset against severance damages. State, Dept. of Highways v. Marks, 188 So.2d 653 (La.App. 4th Cir. 1966). In this case the testimony of Willet on this issue simply stated that rear land brought into “front-use” lots would increase in value by a specified amount. He did not purport to testify as to what proportion of that increase would not be shared by the property in the general vicinity of the widened highway (under Grey); that the enhancement of value was peculiar to these defendants alone (under McPherson); or that all of the project benefits experienced by frontage owners were not shared by the community (under Trippeer).

Since the State did not prove that special benefits (as opposed to general benefits) accrued to defendants’ properties, we find that the trial judge correctly rejected this contention.

Value of Land Expropriated in Second Taking

In the first taking the trial judge valued the land taken from segment 1 at 25$ per square foot and that taken from segment 2 at 21$ per square foot. As previously noted, severance damage to the remainder was calculated on the basis of 5$ per square foot in the “front-use” tracts. In the second taking, which came ten months after the first, the trial judge placed the same values on the property taken from segments 1 and 2 as he did in the first taking. The State argues that he should have deducted the 5$ per square foot computed as severance damages in the first taking, leaving 20$ per square foot for the property in segment 1 and 16$ per square foot for property in segment 2 for the second taking values.

In State v. Martin, supra, the State filed suit to expropriate a servitude of drainage some eleven months after the defendant had sold plaintiff a strip of property upon which to construct a blacktop service road, which admittedly greatly enhanced the value of the remainder of defendant’s property. One of the questions presented on appeal was whether the market value of the expropriated property should include its enhancement resulting from the construction of the new road. The court held that resolution of this question depended upon a factual determination-was the servitude considered as part of the original undertaking or was it a subsequent enlargement or extension of that original project? If the latter, the enhanced value was to be included.

In this appeal there is no evidence in the record to show that the second taking, coming about ten months after the first, for the purpose of relocating utilities, was a part of the original highway widening project. Indications are that this second taking was required because of developments which were not anticipated at the time of the undertaking of the original project. Since under Martin the defendants could benefit from any enhancement in value to their property because of the highway widening, the trial judge properly acted within his discretion in the implied finding that ten months after the first taking the expropriated property had the same value as at the time of that first taking but prior to its “damage” by the taking.

In expropriating proceedings the trial court’s factual determinations as to value of property should not be disturbed on review in the absence of manifest error. State v. Burton, supra.

Conclusion

For the reasons explicated, we affirm the judgments of the trial court in these consolidated suits, casting the appellant for those costs that are legally assessable against it.


text:
    Danny LeGRAND, Plaintiff-Appellant, v. The STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS and its successor, the Department of Transportation and Development, Defendant-Appellee.
    No. 14319.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Writ Refused Jan. 9,1981.

      J. Patrick Hennessy, Shreveport, plaintiff-appellant.
    John W. King, Baton Rouge, Louis H. Padgett, Jr., Bossier City, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Plaintiff, Danny LeGrand, appeals a judgment rejecting his demands for damages against defendant, State of Louisiana through the Department of Highways, and its successor, the Department of Transportation and Development. We affirm.

Plaintiff was injured about 9:00 p. m. on June 12, 1977 while riding on the back of a Kawasaki 1000 motorcycle operated by Louis H. Padgett, III. They were returning from a day of skiing and swimming on Ninock Lake. They were traveling north on U. S. Highway 71 when Padgett lost control of the motorcycle, ran onto the east shoulder, and down a ditch located on the east side of the highway, and finally stopped after colliding with broken pieces of concrete resting against a culvert located in the ditch. Plaintiff contends that Pad-gett lost control of the motorcycle when he struck a bump or buckle located in the northbound lane of the highway. Both young men were seriously injured in the accident. Plaintiff alleges that the state was negligent in failing to repair the bump located in the highway which was dangerous to the traveling public.

The trial court found there was a bump in the general area where the motorcycle left the paved surface of the road. The trial court found Padgett did not strike the bump because he left the highway south of the place where the bump was located. The trial court further found that the bump in the road was not a dangerous defect. The court held that plaintiff did not prove by a preponderance of the evidence that his injuries were the result of any negligence on the part of defendant.

Appellant assigns as error the following (1) the trial court erred in applying an unreasonably onerous burden of proof, (2) the trial court placed weight upon opinion testimony of one not qualified to render opinion, (3) the trial court erred in failing to applying strict liability to the facts presented.

The defendant is required to maintain the highways in a reasonably safe condition so that careful and ordinarily prudent travelers may not be exposed to danger. Defendant is not required to maintain the highways in a perfect condition and is not responsible for defects which are not in the nature of traps or from which danger cannot be reasonably anticipated. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); U. S. F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976).

There is a long line of jurisprudence that holds that a public body is only responsible for a defect of which it had actual or constructive knowledge and had sufficient opportunity to remedy or at least to alert and warn motorists of its presence and failed to do so. Constructive knowledge was imputed where actual knowledge could have been obtained by regular inspection. See Barr v. St. through La. Dept. of Highways, 355 So.2d 52 (La.App. 2d Cir. 1978); Pickens; U. S. F. & G. Co., supra. However, in the U. S. F. & G. Co. supra, case the court alluded to the possible application of “strict liability” in cases of this kind:

“Our finding of negligence and liability under Civil Code article 2315 makes it unnecessary for us to consider the applicability of Louisiana Civil Code article 2317 as applied in our decision in Loescher v. Parr, 324 So.2d 441 (La.1975).” Id. at 786.

The very recent supreme court decision of Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (1980), has eliminated the requirement of knowledge of the defect in the highway as a condition precedent to liability. This decision is based upon the provision of LSA-C.C. art. 2317. The court there said at page 740:

“Proof of notice of the defect is indeed required when a plaintiff contends that a public body was negligent, either by virtue of specific conduct of its employees which created the dangerous situation (which is itself construed as notice), or by virtue of its failure to correct a dangerous condition caused by others. But, as we have demonstrated, negligence is only one of the footings on which the codal structure of tort liability rests. Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.”

The public body was here held liable for a defect in a catch basin cover though it was not established that its employees created the defect or had any knowledge of its existence nor any opportunity to correct it. While this case recognized liability without negligence it still requires a vice or defect which creates an unreasonable risk of injury and requires that the injury be the result of the defect. The court stated:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove 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. Loescher v. Parr, supra, [324 So.2d 441] at 446-447; Verlander, Article 2317 Liability; An Analysis of Louisiana Jurisprudence Since Loescher v. Parr, 25 Loyola L.Rev. 263 (1979).” Id. at p. 739.

The evidence established there was a bump across U. S. Hwy. 71 approximately 300 ft. south of the point where the motorcycle came to rest in the ditch on the east side of the highway. State Trooper Piere-lee who had the primary responsibility for investigating the accident arrived shortly after it occurred. He testified that he followed the track of the motorcycle along the bottom of the ditch and up the shoulder of the road to a point within 1 foot of the lane provided for northbound traffic and that he stepped off the distance from the place where the motorcycle left the road to where it came to rest to be 390 ft. He testified that the bump or raised place in the highway was located a distance which he later estimated to be 90 ft. north of the place where the motorcycle left the paved portion of the road. He did not measure the distance between the place where the motorcycle left the northbound lane to the location of the bump because the bump had no relevance to the facts surrounding the accident. Sgt. Don Smith, who was Pierelee’s supervisor, assisted him in “working the wreck.” Smith at trial remembered seeing the track of the motorcycle up the ditch and participated in following it to the point where the track was within about 1 ft. of the paved surface of the road. While Smith did not see the bump and remembered very few other facts surrounding the investigation, he clearly corroborated Officer Pierelee on the existence of the track of the motorcycle in the ditch and up to and across the shoulder of the road, and corroborated Pierelee’s location of where the motorcycle left the road.

Plaintiff contends the testimony of these two officers establishing the point where the motorcycle left the paved portion of the road was inadmissible because it was opinion evidence not given by an expert. The contention of plaintiff in this regard is without merit because it does not take an expert to follow a track from the location of the vehicle that made the track to its terminus near the edge of the paved surface of the road and to conclude based upon this factual observation that the vehicle left the road at this location.

This court stated in State v. Clark, 340 So.2d 1302 (La.1976), at p. 1305:

“While it is well settled that a lay witness may not give opinion testimony, it is equally well settled that on subjects which any person of experience may make a natural inference from facts observed, a lay witness may testify as to such inferences, provided he also states the facts observed.”

The only evidence in the record by which plaintiff attempts to establish that the existence of the buckle in the road caused Padgett to lose control of the motorcycle is his own testimony and that of Padgett that they struck something. Neither of them saw what they struck. On the night of the accident they were unable to give any circumstances to Officer Pierelee. On the day following the accident the officer interrogated them both in their hospital rooms and neither of them at that time related to the officer that they had struck a bump in the road, nor could they remember any circumstances surrounding the accident. They both testified at trial that Padgett lost control of the motorcycle when he struck a bump. Though the bump had been removed, probably in July following the accident in June, the evidence of its location was clearly present and the distance from the bump to the site of the culvert where Padgett’s motorcycle came to rest was established as 300 ft. by testimony of several witnesses who testified at trial. Officer Pierelee’s testimony that he stepped the distance off from the location of the motorcycle to the place where it left the pavement to be 390 ft. and that the bump was some distance north of this point is corroborated by the fact that the location of the bump was only 300 ft. south of the location of the motorcycle in the ditch. This circumstance fully supports the testimony of Officer Pierelee that the bump was so far north of the place where the motorcycle left the highway that he found the existence of the bump in the road totally irrelevant to the circumstances surrounding the accident.

Plaintiffs contention that the trial judge placed upon it an unreasonable burden of proof was related to the following statement contained in the trial judge’s reasons for judgment:

“He could just as well have left the road in the curve and ‘hit’ the bottom of the shallow ditch, or a driveway across the shallow ditch, or an animal or turtle. The evidence simply does not prove that they struck a bump in the road.”

Plaintiff contends that the trial judge was requiring him to negate all other possible causes of Padgett’s losing control of the motorcycle other than striking the bump and that this was an unreasonable burden of proof. Our view of the trial judge’s comment was that he was making it abundantly clear that plaintiff did not establish by a preponderance of evidence that Pad-gett lost control of the motorcycle when he struck a bump in the road. The court at two places in its reasons for judgment makes it clear that it was requiring plaintiff to establish his case by a preponderance of the evidence:

“... the court remains of the opinion that the plaintiffs have not shown by a preponderance of the evidence that their injuries were a result of any negligence on the part of the State of Louisiana.
!f« SjC !{e Sfc * ifc
In the opinion of the Court, plaintiffs have not proved by a preponderance of the evidence that the State is guilty of any negligence contributing to the injuries suffered by these young men, . . .”

The testimony of Officer Pierelee and Sgt. Smith is substantial evidence to support the trial judge’s finding of fact that plaintiff failed to establish by a preponderance of the evidence that Padgett lost control and left the road when he struck a bump in the highway. When the trial judge made this finding which was supported by the evidence and which we do not find to be clearly wrong, he was required to have gone no further to conclude that plaintiff failed to establish that defendant was responsible for his damages. However, the trial judge made the additional finding of fact that plaintiff failed to establish that the bump in the road was a dangerous defect.

Plaintiff’s witness, Elston, who lived in the vicinity where the bump in the road was located testified that the bump was 8 or 9 inches wide and several inches high. Officer Pierelee testified that the bump was 18 inches wide and 6 inches high with a gradual ramp-like effect. Two state employees, one of whom was the Assistant Maintenance Engineer, and the other who was in direct charge of maintenance of Bossier Parish highways, testified they traversed the area where the accident occurred weekly and sometimes more often. They stated that there were no bumps in the area that were dangerous to vehicular traffic. They acknowledged the existence of “nuisance bumps.” They defined “nuisance bumps” as one that was 1 to 2 inches high, but which created no hazard to traffic. Neither of them, nor their Supervisor, the District Maintenance Engineer, had every received any complaint of the existence of any dangerous bumps in the area. Officer Pierelee made no report to them of any dangerous bumps following his investigation of the accident. Though plaintiff’s witness, Elston, testified that the bump was of such size that it bounced his cattle truck and that it had been there for some six or seven years, we find no manifest error in the trial judge’s factual finding that the bump was not dangerous. The trial judge’s factual determination was based upon positive testimony of the two State Highway supervisory maintenance employees who had responsibility for the area of the highway where the accident occurred. The trial judge had an opportunity to see and hear the witnesses testify, and his evaluation of their credibility and his factual finding based thereon is accepted by us as is mandated by Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Plaintiff contends that the trial judge should have applied the rule of strict liability as established by Loescher v. Parr, supra, and which was found in Jones, supra, to be applicable to the liability of the defendant for damages sustained in accidents caused due to vices or defects in the highway. An application of the doctrine of strict liability to this case does not change its result because that doctrine requires that the dangerous defect be established and that the damages be caused from the defect. Here the plaintiff failed to prove that the accident and his damages resulting therefrom flowed from, a dangerous defect in the highway, and under these circumstances, the judgment of the trial court remains correct.

Judgment is AFFIRMED at plaintiff’s cost.

      . 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.