author: SAVOIE, Judge.

text:
    Margaret Daniel MIXON v. Carl DANIEL.
    No. 83 CA 0293.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Feb. 14, 1984.
    John N. Gallaspy, Bogalusa, for plaintiff.
    Clayton S. Knight, Franklinton, for defendant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This suit is an action to fix the boundary between the parties’ properties.

On November 23, 1977, plaintiff, appearing as Testamentary Executrix of the Succession of Stella Gill Daniel and as Provisional Administratrix of the Succession of Louis Tebo Daniel, filed suit to have a court-appointed survey made of the disputed property to establish a boundary between them. Subsequently, Ned Wilson was appointed by the court to inspect the premises described, survey the same, and report to the court according to law. Mr. Wilson requested that both parties be present at the site on January 4, 1978 to present to him all title papers in their possession concerning the property. Based upon these titles and according to the law, Mr. Wilson completed a survey.

Subsequently, plaintiff filed a petition for a rule nisi directing Mr. Wilson to show cause why the commission issued to him should not be revoked, vacated, and set aside for his failure to report to the court timely. Thereafter, Mr. Wilson made a report to the court concerning his findings. He determined that the boundary between the two properties should be set as follows:

“... to commence at the Northwest corner of the Northeast Quarter of the Northwest Quarter of Section 10, Township 3 South, Range 10 East, St. Helena Meridian, Louisiana, and the point of beginning, thence South 28 degrees 46 minutes East, 1029.0 feet to the Right of Way Marker on the North margin of La. 16.”

Thereafter, defendant, upon motion to the court, asked that the process verbal of Mr. Wilson be homologated and admitted into evidence according to law. Such motion was opposed by plaintiff. Defendant then answered plaintiff’s petition alleging that he had possessed the property in dispute for a period in excess of 10 years under color of title.

On March 3, 1980, trial was had on the merits. In its oral reasons for judgment, the court ordered Mr. Wilson to amend his survey to comply with the court's order. Thereafter, Mr. Wilson submitted to the court the following boundary description which was signed by the court. It provided that the boundary line should be set as follows:

“Commence at the Southwest corner of the Northeast Quarter of the Northwest Quarter of Section 10, Township 3 South, Range 10 East, St. Helena Meridian, Louisiana, and measure: North 00 degrees 35 minutes East, 356.4 feet (5.4 chains) along the West line of the Northwest Quarter of the Northwest Quarter of Section 10 to a point; thence North 78 degrees 10 minutes East, 609.7 feet to an iron stake set on the West right-of-way of the Franklinton-Amite Highway, which iron stake is a corner common to the aforementioned estates. This corner being South 36 degrees 11 minutes East, 994.8 feet along the boundary separating the estates, from the Northwest corner of the Northeast Quarter of the Northwest Quarter of Section 10, as per plat of survey by Ned R. Wilson, dated March 28, 1978, revised September 1, 1980.”

Defendant appeals, asserting that the trial court erred in: (1) not finding defendant was the possessor of all the disputed property, (2) not finding defendant was the owner of the disputed property by title, (3) not finding any questions insofar as defendant’s title which was cured by 10-year acquisitive prescription, (4) not using the monument of the highway right-of-way marker, described in the deed from L. Tebo Daniel to the Louisiana State Department of Highways as the corner of the Western boundary of defendant, (5) concluding plaintiff proved a good title rested in L. Tebo Daniel and Stella Gill Daniel to any part of the disputed property, and (6) not accepting the survey, process verbal or opinion of Mr. Wilson.

Appellee urges that the survey made by Mr. Richard R. Porter accurately reflects the proper boundary line between the parties. She further asks the court to amend the trial court’s decision to reflect such boundary. Mr. Richard R. Porter, plaintiff’s surveyor, found that the boundary line should be set as follows: Commence at the Northwest corner of the Northeast Quarter of the Northwest Quarter of Section 10, Township 3 South, Range 10 East, and proceed South 47 degrees 36 minutes East for a distance of 980.3 feet.

Subsequently, defendant answered plaintiff’s brief, asking the trial court to amend its judgment to reflect the boundary line between the parties to be in accordance with the survey accomplished by Mr. Porter. Further, defendant asks that Mr. Porter’s survey be read in conjunction with the survey plat of Mr. Wilson, the court-appointed surveyor, to read as follows:

“Commence at the Northwest corner of the Northeast Quarter of the Northwest Quarter of Section 10, Township 3 South, Range 10 East, and proceed South 46 degrees 54 minutes East for a distance of 980.3feet, more or less, to the edge of the Franklinton-Amite Highway (presently known as Louisiana Highway 16).” (Emphasis added).

We remand this case back to the trial court for a proper determination of the boundary line in accordance with its previous order for the following reasons. First, the court required that Mr. Wilson mark out a 10-chain distance from the 5.4 chain call-out point to the highway. Such distance measures 660 feet. As the distance indicated on Mr. Wilson’s amended survey measures 609.7 feet (See Appendix I), we find Mr. Wilson’s survey fails to meet the court’s order. Secondly, although the parties now agree that the survey of Mr. Porter accurately reflects the boundary between the parties, they disagree as to its exact direction (i.e., South 47 degrees 36 minutes East or South 46 degrees 54 minutes East).

We find that in this instance, only a remand back to the trial court for a proper survey will serve justice. Therefore, for the above and foregoing reasons, we remand this case back to the trial court to have a survey accomplished and the boundary set in accordance with its previous order. All costs of this litigation are to be fixed by the trial court after remand.

REMANDED.

APPENDIX I

      . "I instructed the Court appointed expert to commence at the southwest corner of the northwest quarter of the northeast — of the northeast quarter of the northwest quarter of this section, proceed then northly along the quarter section lines five point four chains as called for by the deeds involved, and from that point to strike an arc such that that arc would intersect the old highway right-of-line — highway right-of-way line within that northeast quarter of the northwest quarter of the section, and to make a point such that ten chains would intersect a point fifteen feet west of the old right-of-way line.
      "Having established this point, I want the Court appointed expert to then draw a straight line to the northwest corner of the northeast quarter of the northwest quarter, and this would be the judgment of the Court."

      . One chain measures 66 feet. Black’s Law Dictionary 208 (5th ed. 1979).


source: Caselaw Access Project

author: GARRISON, Judge. GULOTTA, Judge.

license: Public Domain

text:
    Alvin L. EUGENE v. Clara M. Johnson Eugene, Wife of Alvin L. EUGENE.
    No. CA 1171.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied April 25, 1984.
    Charles M. Stevenson, Chalmette, for plaintiff-appellant.
    Clara M. Johnson Eugene, in pro. per. A. Gerald Pelayo, New Orleans, for Guy Wootan, Notary Public.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   GARRISON, Judge.

This case involves appeals from two separate judgments, one dated December 30, 1982 and the other dated November 5, 1982.

I. Judgment of December SO, 1982

Appellant, Mr. Alvin Eugene, appeals from a judgment granting an increase in child support to his ex-wife, Clara Eugene. The judgment of December 30, 1982 increased the child support owed by Mr. Eugene from $450 per month to $500 per month plus hospitalization insurance for the two minor children. On appeal, Alvin Eugene argues that the granting of the increase constituted an abuse of the trial judge’s discretion alleging that there was no showing of a change in circumstances to justify a modification of the child support judgment of November 18, 1981, which awarded $450 per month to Mrs. Eugene.

The case of Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980) succinctly states the law applicable to this situation:

“The Louisiana jurisprudence establishes that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. This rule applies to child support awards as well as alimony awards. The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. The party requesting a modification of a support award bears the burden of proving a change in the financial condition of one of the parties. Finally, the jurisprudence clearly establishes the rule that an award of alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion.” Howell, p. 1306.

A review of the record indicates that, after hearing the testimony of Mr. and Mrs. Eugene as to their income and expenses, the trial judge believed Mr. Eugene's income to be greater than was indicated by his testimony and, accordingly, ruled that an increase in child support was warranted. In the area of domestic relations, much discretion must be vested in the trial judge, and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of the witnesses. Graff v. Graff 407 So.2d 70 (La.App. 4th Cir.1981). Bettencourt v. Bettencourt, 381 So.2d 538 (La.App. 4th Cir.1980).

In the instant case, the trial judge’s decision was not an abuse of his discretion. Therefore, we affirm the decision of the trial court which awarded an increase in child support to Mrs. Eugene in the amount of $500 per month plus hospitalization insurance for the two minor children.

II. Judgment of November 5, 1982

This is an appeal from a November 5, 1982 judgment ordering the homologation of a community property partition.

On appeal, the appellant, Mr. Eugene alleges that:

1. The trial judge erred in dismissing his opposition to the Notary’s rule to homologate the judicial partition for want of proper procedure;
2. The trial judge erred in homologating the Notary's proces verbal of the judicial partition because plaintiff did not receive three-fourths of the value of his share of property. (This argument is based on the allegedly erroneous inclusion by the Notary of certain equipment and inventory which Mr. Eugene claims to be his separate property);
3.The trial judge erred in not referring to the merits of his petition to address the cause of action of nullity of the judgment stated in his petition.

This case also involves a cross appeal by the appellee, Mrs. Eugene, who is prosecuting this appeal in proper person. Mrs. Eugene appeals the homologation of the community property partition ordered on November 5, 1982. She claims that the partition was unbalanced in her ex-husband's favor due to her claim that one of the pieces of property she received is heavily encumbered while the same is not true of her ex-husband’s share of property. Mrs. Eugene also contends that the appraisal made of one of the items of community property given to Mr. Eugene was unfairly low. The appointed Notary in this case, Mr. Guy Wootan, filed an opposition to this appeal urging that the partitioning of the community, as homologated, remain intact.

We find no merit in any of the specifications of error alleged by Mr. Eugene. However, the errors alleged by Mrs. Eugene in her cross appeal deserve further consideration.

A review of the record indicates that there was evidence offered by Mrs. Eugene at the trial level which did not receive adequate consideration. Mrs. Eugene attempted to introduce evidence of another appraisal of the St. Charles Parish property which was given to Mr. Eugene in the community property partition. In this appraisal, the same property was assigned a much greater value than that assigned by the court-appointed Notary. The trial judge refused to admit this second appraiser's report into evidence due to the fact that the appraiser was not present in court. This report was valuable evidence to Mrs. Eugene’s case and steps should have been taken by the trial judge to secure all evidence which was important to this case. Because Mrs. Eugene is a layperson, we cannot hold her to the same standards of skill and judgment which must be attributed to an attorney. Connolly v. Connolly, 316 So.2d 167 (La.App. 4th Cir.1975).

Additionally, Mrs. Eugene discovered, subsequent to the homologation of the partition, that the property located in Kenner, Louisiana was encumbered. This property was allotted to Mrs. Eugene in the partition and this encumbrance was not taken into consideration at the time. None of the property allotted to Mr. Eugene was encumbered at the time of the partition. It has been held that evidence newly discovered while the matter is on appeal will justify remand without prior motion in the trial court. Lenard v. Lenard, 386 So.2d 1043 (La.App. 4th Cir.1980). Furthermore, the Louisiana Code of Civil Procedure states that:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal ...” La.C. C.P. Art. 2164.

The nature of the evidence offered by Mrs. Eugene concerning the appraisal of the St. Charles Parish property and the potential effect of the newly discovered evidence claimed by Mrs. Eugene concerning the encumbrance on the Kenner, Louisiana property requires remand so that all of the facts may be developed by the presentation of all testimonial and real evidence available to each side. Lenard, supra, p. 1046.

The record indicates a total lack of cooperation on Mr. Eugene’s part throughout the attempts by the notaries to ascertain the property owned by the community in order to effectuate a partition. As it stands now, the partition gives the uncooperative party a bonanza due to inadequate consideration of the evidence offered by the cooperative party. Therefore, this matter must be remanded for introduction of further evidence because injustice may result from the failure to do so. Emery v. Cabral, 400 So.2d 340 (La.App. 4th Cir.1981).

For the reasons assigned, the judgment appealed from is reversed and set aside and this matter is remanded to the trial court for further proceedings consistent with law and the views expressed herein.

REVERSED AND REMANDED.

GULOTTA, J., concurs.

GULOTTA, Judge.

I concur in the result.


author: KLEES, Judge.

text:
    W. Harold TINNEY, Sr. v. W.J. TESSIER REALTORS, INC.
    No. CA-1063.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 1984.
    Rehearing Denied April 25, 1984.

    Writ Denied June 15, 1984.

      John G. Lankford, New Orleans, for plaintiff-appellant, W. Harold Tinney, Sr.
    Lawrence K. Benson, Jr., Prank A. Tessier, New Orleans, for defendant-appellee, W.J. Tessier Realtors, Inc.
    Before SCHOTT, KLEES and CIACCIO, JJ.

       Schott, J. was of the opinion the rehearing should be granted.

   KLEES, Judge.

This appeal is from a suit brought by the plaintiff/appellant, W. Harold Tinney, against W.J. Tessier Realtors, Inc. (Tessier) for lease commissions which accrued after Tinney’s termination from Tessier. Tessier answered and reconvened seeking an accounting of any sums paid to Tinney by Mantón Land Company while he was associated with Tessier. Tessier also made a demand against Joseph Mancuso, E. Carl Clayton, and Mantón Land Company for any sums due by reason of transactions conducted for them by Mr. Tinney while he was associated with Tessier. This demand was subsequently dismissed. The trial court gave judgment for Tessier, dismissing plaintiff’s demands and rendered judgment in favor of Tessier on their reconven-tional demand, ordering Tinney to account for a portion of the funds he received from Mantón Land Co. and referring the trial of the accounting to a Commissioner of the Civil District Court. It is from this judgment that the plaintiff appeals. The issues presented on appeal are 1) whether a real estate commission salesman whose employment is terminated is entitled to payment of commissions on leases he procured before his termination and 2) whether a real estate brokerage may collect a portion of a salary and cost reimbursements received by a salesman from another party for work not specified in the definition of “real estate salesman” under LSA-R.S. 37:1431 and/or for work done which produced no commission to anyone. For the following reasons we reverse the judgment of the trial court with regard to the first issue and affirm but amend the judgment of the trial court with regard to the second issue.

W. Harold Tinney became associated with the predecessor firm of W.J. Tessier Realtors, .Inc. in 1945 as an independent realtor associate. No contract of employment was ever executed between Tinney and Tessier or any of its successors. Tin-ney was considered self-employed by the Tessier firm and worked on a straight commission basis while associated with them. Tinney received 60% of any money he brought in to the Tessier firm. From May of 1973 until December of 1975, Tinney was a salaried employee of Mantón Land Company in addition to his association with Tessier. During that time he received $600.00 per month to act as a custodial officer for Mantón Land Company. Tin-ney’s main duties were the overseeing of one of Manton’s properties which was marked for demolition. In his correspondence, Tinney held himself out as Manton’s representative and did such things as rent collection, notifying tenants of taxes due, authorized subleasing of certain property and certain other managerial types of activities. Tinney also negotiated the extensions of at least two existing leases on Mantón properties. This was done while the plaintiff was receiving a salary from Mantón. After 1975, when Tinney was no longer on the payroll of Mantón, he engaged in certain lease negotiations on Man-ton properties for which no compensation was received by either himself or Tessier. On April 25, 1978, Tessier terminated Tin-ney for various reasons among which was the questionable nature of the activities he conducted on behalf of Mantón Land Company. Tinney then brought this suit to recover the commissions he alleged were due him. Tessier agreed that he was owed certain sales commissions, but refused to pay any lease commissions which they said were forfeited by Tinney to the brokerage as a result of his termination. Tessier contends that this was the practice of the firm as well as accepted practice in the business. They argue that absent any written or oral agreement proved by Tinney, he cannot recover any lease commissions which would accrue after his termination. Tinney did not show that any agreement to that effect did exist, but argues that recovery should not be denied on that basis.

In three recent cases, plaintiffs were allowed recovery in the absence of any written or oral contract on the basis of quantum meruit. See Pizzeck v. Executone Systems Co., 411 So.2d 1202 (La.App. 4th Cir.1982), and Le Blanc v. Opt, Inc., 421 So.2d 984 (La.App. 3rd Cir.1982). In Perry v. Al George, Inc., 428 So.2d 1309 (La.App. 3rd Cir.1983), a salesman brought suit to recover commissions and reimbursements of expenses for sales made prior to his termination of employment. The employer, Al George, Inc., credited each sale to its salesmen when the product sold was placed in the manufacturing schedule, but only actually paid commissions and reimbursed expenses as installment payments were received from the customers. The court held that the salesman was entitled to recover on a quantum meruit basis on sales made prior to his termination, even though salesman’s duties did not end with the sale, in the absence of any agreement apportioning compensation to various duties and in light of finding that the salesman had fulfilled his primary job of selling. The appellate court cited the findings of the trial court, and agreed with it in both its findings of fact and conclusions of law:

“The Court finds that the supervisory duties attendant to the sales were a part of the plaintiff’s obligation as a salesperson and were not completely fulfilled by the plaintiff. The Court does not feel that this fact should prevent the plaintiff from recovering. The Court finds that selling was the primary and most important aspect of the plaintiff’s job as salesperson, and that the duty to oversee production was of a secondary nature. The Court feels that since the defendant profited from the plaintiff’s sales, the plaintiff should be compensated for his efforts.” 428 So.2d 1309, 1311

We find this ease to be very similar to the lease commissions in question here, so much so that some formula for recovery should be arrived at in order to compensate the plaintiff for leases on which he would have received commissions had he continued his association with Tessier. Any percentage of commissions due should be calculated and set by the trial court as incidental to any additional issues in this case.

As to the second issue, we agree that Tinney received a salary from Mantón Land Company to perform work very similar to that which he performed for Tessier, but not all of Tinney’s activities from 1973 to 1978 were in violation of LSA R.S. 37:1431 and 1451 (now 1446). The trial court awarded judgment in favor of Tessier granting it a portion of the $19,384.98 received by Tinney from Mantón Land Company while he was associated with Tessier. It designated that the amount was to be determined by the Commissioner. Since not all of the work performed by Tinney for Mantón was work for which he could only be compensated by his broker, we conclude that only those activities which would have generated a commission for Tessier should he taken into consideration in determining that amount. Those activities are more specifically, the leases and extensions of existing leases negotiated by Tinney for Mantón, for some of which he received compensation and for others he received nothing. The record reflects that Tessier had permitted this practice in the past to maintain its working relationship with Mancuso and cannot now complain of Tinney’s actions in negotiating some leases without compensation. Thus, the trial court should calculate the commissions earned on the leases negotiated by Tinney, for which he received compensation, and Tessier should receive a portion of that amount, not a portion of the $19,384.98.

Accordingly, for the reasons stated above, the judgment of the trial court dismissing the plaintiffs demands is reversed and judgment rendered herein awarding the plaintiff a portion of the lease commissions which would have accrued to him had he remained associated with the defendant, the amount to be determined by the trial court; that portion of the judgment awarding W.J. Tessier Realtors, Inc. a portion of any money received by W. Harold Tinney from Mantón Land Co. prior to April 25, 1978 is amended to entitle them to a portion of any money that might have been earned on any leases negotiated by Tinney between 1973 and 1978 for Mantón Land Co., for which Tinney received compensation. Each party is to bear their own costs in these proceedings.

REVERSED IN PART, AMENDED IN PART AND AFFIRMED AS AMENDED.

      . § 1431. Definitions

      As used in this Chapter the following words have the meaning ascribed them in this Section unless the context clearly indicates otherwise:
      (1) "Commission" means the Louisiana Real Estate Commission.
      (2) "Business change broker” means any person who, for a compensation or valuable consideration, sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of a business, business opportunity, or the good will of an existing business for others as a vocation.
      (3) "Real estate broker" means any person who, for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, or rents or offers for rent, any real estate or the improvements thereon for others, as a vocation.
      (4)"Real estate salesman” means any person who for a compensation or valuable consideration is employed either directly or indirectly by a licensed real estate broker to sell or offer to sell, or buy or offer to buy, or to negotiate the purchase or sale or exchange of real estate, or to lease or offer to lease, rent or offer for rent any real estate for others as a whole or partial vocation.

        § 1451. Commission of salesman may be received only from licensed broker employer.

      No real estate salesman shall accept a commission or valuable consideration for the performance of any act herein specified from any person, except his employer who is a licensed real estate broker.


author: WILLIAMS, Judge.

text:
    John V. REED v. GULF INSURANCE COMPANY and House of Decor, Inc.
    No. CA-0350.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1984.
    Rehearing Denied April 25, 1984.

      Michael A. Fenasci, New Orleans, for plaintiff-appellee.
    Robert N. Ryan, William L. Brockman, New Orleans, for defendant-appellant.
    Before AUGUSTINE, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff John Reed was injured when he was attempting to help a friend, Charles Williams, maneuver a refrigerator down a flight of stairs. Plaintiff sued House of DeCor and its insurer on the ground that as Williams’s employer it was vicariously liable for his tortious conduct. After a trial by jury, Williams was found to be an employee of House of DeCor, and plaintiff was awarded $200,000.00 in damages. On appeal to this court, we found that the jury was not in error in its finding that Williams was an employee. We also found that the trial court improperly failed to instruct the jury on the issue of whether Williams was acting within the course and scope of his employment. For this reason, we remanded the case to the trial court. 436 So.2d 580 (La.App. 4th Cir.1983). Writs were granted by the Louisiana Supreme Court, 441 So.2d 752, however, and the case has been remanded to us for a determination of the issue.

The building in which House of DeCor was located was leased by William Cusack and Steven Tomoletz personally. Cusack and Tomoletz were officers and shareholders in House of DeCor and leased the store site to House of DeCor. The building was in the French Quarter and consisted of apartments in the rear, in addition to the store, which was on the first floor. The lease on the entire premises was terminated and defendant, as well as Cusack and Tomoletz personally, were in the process of closing business at that location.

Chuck Williams was the lessee of the slave quarters in the back of House of DeCor. He leased the premises from To-moletz and Cusack personally, not the House of DeCor. Cusack and Tomoletz bought a new building, and Williams was to live in the back of it.

On Saturday, October 31, Williams asked plaintiff on behalf of Cusack and Tomoletz to help him move the refrigerator and in the course of their attempt to do so, plaintiff was injured.

The only question presented to us is whether the plaintiff proved that it was more likely than not that Chuck Williams was acting within the course and scope of his employment by House of DeCor when he attempted to move the refrigerator. We have reviewed the evidence and find that it is insufficient to prove that Williams’s actions were in the course and scope of his employment by House of DeCor.

An employer can only be liable for an act of an employee when the employee is acting within the course and scope of his employment. La. Civ. C. Art. 2320; Security Ins. Co. v. St. Paul Fire & Marine Ins. Co., 375 So.2d 687 (La.App. 4th Cir.1979). Whether an employee is acting within the course and scope of his employment is a determination made upon the facts of each individual case. St. Paul Fire & Marine Ins. Co. v. Roberts, 331 So.2d 529 (La.App. 1st Cir.1976). In St. Paul Fire & Marine Ins. Co. v. Roberts, supra, the court set forth some guidelines to be considered in this determination:

... The factors considered in making such a determination include the time the act was committed, meaning whether at a time the employee was obligated to perform a duty for his employer. Also to be considered are the place, circumstances and purpose of the act insofar as it may reasonably relate to or foster the employer’s business. Additionally, the motive of the employee in performing the act is of paramount importance, as also are the questions of whether the act is one usually performed by employees engaged in similar capacities and whether the employer had reason to expect such an act would be performed by the employee.

Id. at 537 (citation omitted).

In the instant case, the plaintiff failed to prove that the refrigerator that was being moved belonged to House of DeCor and that its [refrigerator’s] being moved in any way furthered defendant’s business interests. Furthermore, there was no evidence that Williams had ever performed a similar task for House of DeCor. Testimony at trial indicated that Williams’s duties were mainly looking out for the store when no one was there and keeping strangers out of the rear of the building.

The evidence suggests that Williams was not moving the refrigerator as an employee of House of DeCor, but rather as either a favor or compensated “odd job” to the owners personally. Williams’s employment by House of DeCor and the presence of the shop in the front of the building are insufficient to establish that moving of the refrigerator was within Williams’s course and scope of employment with House of DeCor.

For the foregoing reasons, the decision of the trial court finding defendants’ liable for plaintiff's injuries is REVERSED.

REVERSED.

      . The standard for determination of "course and scope” is stricter in tort actions than in Workers’ Compensation actions. E.g., Harris v. Hymel Store Co., 200 So.2d 84 (La.App. 1st Cir.1967).


author: ALFORD, Judge.

text:
    POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION v. Emma Eloise Glynn MOUNGER. POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION v. Thomas C. MOUNGER and Faye Glynn Mounger Lacour.
    Nos. 83 CA 0300, 83 CA 0301.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Athena B. Piedrahita, Baton Rouge, for plaintiff-appellant.
    David M. Ellison, Jr., Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff-appellant, Pointe Coupee Electric Membership Corporation, filed two expropriation suits seeking 80 foot wide servi-tudes for the erection of an electric transmission line over the lands owned by defendants-appellees. In the first suit, appellant sought to expropriate approximately 14.62 acres from the land owned by Emma Eloise Glynn Mounger. In the second suit, appellant sought to expropriate approximately 5.62 acres from the land owned in indivisión by Thomas C. Mounger and Faye Glynn Mounger Lacour. The two cases were consolidated for trial and appellant has appealed from the judgments rendered in both cases. Appellees have answered the respective appeals seeking an increase in the severance damage awards.

Appellees did not contest the taking of the property, and thus, the only matters under consideration at trial were the value of the land taken and damages. The trial court found the highest and best use of each of the two tracts taken was for rural residential or industrial development in their entirety. The fair market value of the land taken was determined to be $4,500.00 per acre with a servitude value of 90% of the fair market value. This resulted in awards of $59,211.00 for the land taken from the Emma Mounger tract and $22,761.00 for the land taken from the Thomas Mounger and Faye Lacour tract.

After the trial court’s written reasons for judgment were read in open court, argument was heard on the issue of severance damages. The trial court found that appellees sustained severance damages to a 175 foot strip west of and parallel to the servitudes to the extent of 10% of the servitude value. This resulted in awards of $13,081.00 to Emma Mounger and $4,987.45 to Thomas Mounger and Faye Lacour.

The trial court’s written reasons for judgment were read in open court on October 27, 1982. Judgments were signed on November 10, 1982, reflecting the awards for the value of the servitudes and severance damages. On November 16, 1982, appellees filed motions to withdraw the funds deposited in the registry of the court, to fix attorney’s fees, to fix expert witness fees and for new trials. On November 22, 1982, appellant filed exceptions to appel-lees’ motions to withdraw, to fix attorney’s fees and to fix expert’s fees. Additionally, appellant filed a motion to dismiss appel-lees’ motions and to vacate the order granting the appraisal fees. All of these matters came to be heard on December 15, 1982, with the result that the appellees’ motion for new trials were denied, attorney’s fees in the amount of $6,098.24 were awarded and appraisal fees were increased to $2,100.00.

Although appellant alleges some seventeen assignments of error, there are in reality only three issues presented in this appeal. These issues are whether the trial court erred in its findings as to: 1) highest and best use, 2) severance damages and 3) attorney’s and expert’s fees.

Appellant called two expert witnesses in the field of real estate appraisal to testify on its behalf. The first, Oren W. Russell, was of the opinion that both tracts were of such a nature as to each have two highest and best uses. First, he felt that those portions of each tract fronting on La. 416 could be utilized as rural residential home-sites with the remaining land in each tract suitable for agricultural uses. In relation to the property being taken, it was Mr. Russell’s opinion that the Emma Mounger tract contained 1.47 acres suitable for rural residential development and 13.08 acres suitable for agricultural uses. Regarding the Thomas Mounger and Faye Lacour tract, it was Mr. Russell’s opinion that 1.47 acres was suitable for rural residential development with 4.15 acres best suited for agricultural uses.

Using the comparable sales approach, Mr. Russell determined that the lands suitable for rural residential development had a fair market value of $5,100.00 per acre with the remaining agricultural lands worth $1,390.00 per acre. Mr. Russell valued the servitude at 80% of the market value of the property and found no severance damage to defendants’ remaining property.

Appellant’s next expert, Mr. George Platt, also reached the conclusion that the two tracts involved in this litigation each had the two highest and best uses testified to by Mr. Russell. Mr. Platt’s testimony did slightly differ in the amounts of each tract attributable to the two uses. It was his opinion that of the property taken from the Emma Mounger tract, 1.837 acres were suitable for rural residential development with the remaining 12.783 acres usable for agriculture. As to the property taken from the Thomas Mounger and Faye Lacour tract, Mr. Platt felt 1.837 acres were suitable for rural residential development with the remaining 3.783 acres suitable for agricultural uses.

Mr. Platt’s testimony differed significantly from the testimony of Mr. Russell and appellees’ expert regarding the fair market value of the two pieces of property. Based upon comparable sales, Mr. Platt determined that those portions of the tracts suitable for rural residential development had a fair market value of $3,300.00 per acre, with the agricultural lands valued at $1,500.00 per acre. Mr. Platt also valued the servitude at 80% of the market value of the land and found no severance damages.

Appellees called Mr. John Lejeune as their expert in the field of real estate appraisal. In contrast to the other experts, Mr. Lejeune testified that in his opinion, the highest and best use for each of the two tracts was rural residential development in their entirety. Using the comparable sales approach, Mr. Lejeune determined that the fair market value of the land was $5,000.00 per acre and he valued the servitude at 95% of the fair market value of the land. Also in marked contrast to appellant’s experts, Mr. Lejeune determined that appellees would suffer substantial severance damages to the remainder of their property. It was his opinion that an area 175 feet west of and parallel to the proposed transmission line servitudes would be adversely affected. Mr. Lejeune proposed that in relation to the properties, the first 87.5 feet parallel to the servitudes would be damaged by 60% and the next 87.5 foot strip would be damaged in the amount of 40%.

Both of the tracts involved in this litigation are located in Sections 50 and 51, Township 5 South, Range 11 East, in Pointe Coupee Parish near the town of Glynn. In addition, both tracts share the following characteristics: 1) they are separated from each other by La. Hwy. 416; 2) they both have substantial frontage on La. Hwy. 416, with the Emma Mounger tract having additional frontage on La. Hwy. 982; 3) both tracts are burdened with a 245 foot wide Gulf States Utilities servitude upon which a transmission line has been erected; 4) both tracts are burdened with a 100 foot wide Texas and Pacific Railroad right-of-way; and 5) at the time of trial the majority of the land comprising both tracts was being used for sugarcane production, however, two acres were being leased as an industrial site. The land owned by Emma Mounger totals in excess of 200 acres and the Thomas Mounger and Faye Lacour contains approximately 116 acres.

HIGHEST AND BEST USE

The basis issue in this appeal concerns the trial court’s determination that the highest and best use of both tracts taken was for rural residential or industrial development in their entirety. As noted in Town of Rayville v. Thomason, 404 So.2d 1290, 1293 (La.App. 2nd Cir.1981):

Market value means the worth of the land considered in light of its best and highest use, this being the most favorable employment to which the property is adaptable and may reasonably be put in the not too distant future. State, Department of Highways v. Rapier, 246 La. 150, 164 So.2d 280 (1964). If unimproved property is to be valued on the basis of residential development, there must be some reasonable expectation that the property will be used for that purpose in the not too distant future. State, Department of Highways v. Talbot, 200 So.2d 97 (La.App. 1st Cir.1967), writ refused 251 La. 49, 202 So.2d 658 (1967). Some factors to be considered in determining highest and best use are: proximity to areas already developed in a manner compatible with the intended use; action already taken to develop land for that use; scarcity of land available for that use; use permitted by zoning ordinances; use to which the property is being put at the time of taking; existence of offers to buy property by those wanting to develop residential property or by those wanting to buy residences; and residential market in the vicinity. City of New Orleans v. Cloutet, 296 So.2d 357 (La.App. 4th Cir.1974).

Appellant maintains that the trial court’s finding as to highest and best use was in error because appellees have no intention to so utilize the properties in the not too distant future. It is interesting to note, however, that appellant at the same time maintains that a portion of each of the tracts should be found to have a residential highest and best use. Additionally, appellant’s argument fails to take into consideration that the property owner is entitled to the market value of the land expropriated based upon the prospective highest and best use, where that use is removed from the realm of speculation or guesswork, even though he may have no plan to sell the property or so utilize it at the time of the expropriation. Cypress-Black Bayou Rec. & W. Con. Dist. v. Conger, 234 So.2d 212, 213 (La.App. 2nd Cir.1970); State, Department of Highways v. Jenkins, 207 So.2d 380, 388 (La.App. 3rd Cir.1968).

On review, therefore, we are called upon to determine if the prospective residential or industrial use of the property is too speculative to serve as the highest and best use of the tracts. Applying the factors denoted in City of New Orleans v. Cloutet, supra, we are of the opinion that the trial court committed no manifest error.

First, there is evidence in the record of other residential and industrial developments in the area. Second, appellees introduced a subdivision plat they developed in 1975 and 1976, and filed in 1977 showing how they intended to develop the tracts. Third, there can be no question that available land is scarce in the vicinity. Fourth, there was no evidence introduced at trial to show any adverse zoning restrictions which would preclude such an intended use. Fifth, although the majority of the land is being utilized for agriculture, there is already one industrial site on the property. Sixth, the fact that there is no present demand on the property does not change our opinion in that the property has not been placed for sale on the market. Finally, we are convinced from the testimony that the residential market in the vicinity is sufficient to make the project economically feasible in the forseeable future.

Appellant further maintains that the trial court erred in its failure to consider appellant’s comparable sales as indi-cia of market value, erred in its failure to give weight to values of other servitudes and erred in considering sales from fully subdivided lots as indicia of highest and best use and market value. We disagree. The trial judge in an expropriation case is granted much discretion in weighing the testimony of experts, and his finding of value based upon such evidence will not be disturbed unless clearly erroneous. State, Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1st Cir.1976).

We are of the opinion that the findings of the trial court as to highest and best use and market value are substantiated by the evidence. Additionally, we note that in the realm of local property conditions, a trial judge’s superior knowledge should and must be given great deference by an appellate court. State v. Ransome, 392 So.2d 490 (La.App. 1st Cir.1980). Ap-pellees have met their burden in proving highest and best use and market value.

Appellant additionally maintains that the trial court’s finding of servitude value at 90% of market value is excessive. Mr. Russell and Mr. Platt, appellant’s experts, assigned 80% of market value as the servitude value while Mr. Lejeune, appel-lees’ expert, assigned 95% of market value as the proper amount. Given our finding that the trial court was correct in determining highest and best use as residential or industrial, we are of the opinion that 90% of market value is not so high as to amount to an abuse of the trial court’s discretion.

SEVERANCE DAMAGES

Appellant maintains that the trial court erred in awarding severance damages. Both of appellant’s experts, Mr. Russell and Mr. Platt, testified that since the lands had highest and best uses for agriculture, and since this was a second severance they were of the opinion that no severance damages would result to appellees’ remaining lands. “In expropriation proceedings, the trial court’s factual findings as to severance damages and the evaluation of, and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error.” State Through Dept. of Highways v. Ruckstuhl, 348 So.2d 701, 704 (La.App. 1st Cir.1977). We find no such manifest error in the trial court’s determination.

First, we have already determined that the trial court did not err in deciding that the properties had highest and best uses for residential or industrial development. Second, the mere fact that this is a second severance does not preclude the finding of severance damages. Michigan Wisconsin Pipe Line Co. v. Bonin, 217 So.2d 741 (La.App. 3rd Cir.1969), writ denied 253 La. 735, 219 So.2d 513 (La.1969). It is apparent that the trial court agreed with Mr. Lejeune’s opinion that the addition of this transmission line created a utility corridor which would decrease the value of the land surrounding the servitude. We find nothing clearly erroneous in this determination. Finally, Mr. Lejeune’s report clearly sets forth his opinion as to the value of the property both before and after the taking.

In answering these appeals, appel-lees maintain that the trial court should have awarded severance damages in accordance with Mr. Lejeune’s testimony. Alternatively, appellees' argue that the trial judge erred in only awarding 10% of the servitude value of the land rather than 10% of the fair market value of the land. It is apparent to this court that the trial court took into consideration that this was a second severance in awarding a percentage of the servitude value as severance damages. We find nothing erroneous in this method of determining severance damage. Michigan Wisconsin Pipe Line Co. v. Bonin, supra.

ATTORNEY’S FEES AND EXPERT’S FEES

Appellant’s basic argument with respect to the awards for attorney’s fees and expert’s fees is that they were not proper under the procedural posture of this case. Alternatively, appellant maintains that the awards were excessive.

Appellant first maintains that appellees are not entitled to costs, attorney’s fees or expert’s fees due to their failure to file responsive pleadings. It is apparent from the record that there was confusion regarding appellees’ answers to the expropriation petitions. Appellees’ counsel stated that the answers were filed on the morning of trial but somehow got back into his file. He further stated that appellant’s counsel was handed a copy of the answers that morning which was denied by appellant’s counsel. This problem came to light on the hearing of the exceptions and motions. The trial court allowed appellees’ attorney to file the answers in open court.

We note that the records in both of these cases reveal that answers, although unsigned by counsel, were filed on the morning of the trial. The notation on the top of each of these answers indicate that they were received by I.G. Olinde, Clerk of Court for Pointe Coupee Parish, on October 13, 1982. While the failure of appellees’ counsel to sign the pleadings is admittedly a technical violation, it does not in our opinion equate to a failure to file. The purpose for requiring pleadings to be signed by counsel of record is to place responsibility for the truthfulness of the assertions contained therein on the attorney so as to subject him to disciplinary action for willful violation. Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4th Cir. 1976), writ denied, 341 So.2d 420 (La.1977).

Additionally, failure to file an answer to an expropriation suit within 15 days of service of the notice of the time fixed for trial merely constitutes a waiver by defendant of all defenses to the expropriation suit except claims for money as compensation for the property sought to be expropriated and claims for money as damages to other property. LSA R.S. 19:6, LSA R.S. 19:7. Article 1 Section 4 of the Louisiana Constitution of 1974 provides that in every expropriation the owner shall be compensated to the full extent of his loss. In Consolidated Sewerage Dist., Etc. v. Schulin, 387 So.2d 1369, 1373 (La.App. 4th Cir.1980), it was determined, “... that the legislative intent relative to the phrase ‘to the full extent of his loss’ was meant to include an award of attorney’s fees to the landowner in expropriation cases under Article 1, § 4 of the Constitution of 1974.” We further note that it has been held that in any case where the highest amount offered is less than the amount obtained by the landowner in the judicial assertion of his rights, the landowner is entitled to reasonable attorney’s fees pursuant to LSA R.S. 19:8. Claiborne Elec. Cooperative, Inc. v. Garrett, 357 So.2d 1251, 1258 (La.App. 2nd Cir.1978), writ refused, 359 So.2d 1306 (La.1978).

There can be no doubt that legal costs of an expropriation proceeding come within the constitutional guarantee of just and adequate compensation to the landowner. S. Cent. Bell Tel. Co. v. Marsh Inv. Corp., 344 So.2d 6 (La.App. 4th Cir.1977). Also, expert witness fees are taxable as costs rather than as damages. State v. Circle Center Corporation, 148 So.2d 411 (La.App. 1st Cir.1962), writ refused, 243 La. 1011, 149 So.2d 765 (1963).

Appellant next maintains that the trial court erred in awarding attorney’s fees and expert’s fees after the judgments had been signed. It is appellant’s position that once the judgments were signed appel-lees’ only available procedure for obtaining such fees was by appeal. This argument is without merit as to expert’s fees. The judgments rendered in these cases cast appellant with costs. As noted above, expert’s fees are taxed as costs. State v. Circle Center Corporation, supra. There is both statutory and jurisprudential authority for fixing costs by a rule to show cause after judgment. LSA R.S. 13:3666 B(2), Bentley v. Industrial Fire Protection, Inc., 350 So.2d 982 (La.App. 2nd Cir.1977).

In regard to the awards of attorney’s fees, R.S. 19:8 provides in part: “Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation award, the court may award attorney’s fees.” As noted in the trial court’s written reasons for judgment, evidence as to the highest amount offered appellees before trial was presented at trial. Appellees were therefore under these facts not required to make the motion referred to in LSA R.S. 19:8. Additionally, appellees were awarded $24,-392.95 more than appellant had offered them prior to trial. The fact that attorney’s fees were not awarded. until after judgment was signed does not, in our opinion, require reversal. Trial courts are not divested of jurisdiction over the merits of the case until the order of appeal is granted. LSA C.C.P. art. 2088. The orders of appeal in these cases were not signed until January 3, 1983, and therefore, the trial court still had jurisdiction over these cases. Given the above facts, it was solely within the trial court’s discretion as to whether attorney’s fees would be granted. LSA R.S. 19:8.

Finally, appellant maintains that the trial court erred in granting excessive awards for attorney’s fees and expert’s fees. Appellees were awarded 25% of the difference between the amount offered by appellant and the amount they were adjudged to be entitled to as reasonable attorney’s fees. We see no abuse in this award. City of Shreveport v. Bernstein, 391 So.2d 1331 (La.App. 2nd Cir.1981) City of Shreveport v. Pupillo, 390 So.2d 941 (La.App. 2nd Cir.1980), writ denied, 396 So.2d 921 (La.1981). Additionally we are of the opinion that Mr. Lejeune’s testimony as to the amount of time spent on these two cases justifies the $2,100.00 award for expert’s fees awarded appellees. In State Department of Highways v. Kornman, supra at 225, this court noted that while an agreement between an expert and his client as to the amount of expert’s service is not the sole criterion to set court costs for his services, in order to change the amount awarded, the court must find the trial court abused its much discretion. We find no such abuse.

In conclusion, we are not called upon, as maintained by appellant, to decide if new trials are allowed in expropriation proceedings. Appellees’ motions for new trials were based on the issue of the amounts of the severance damage awards. Separate motions for attorney’s fees, cost and expert’s fees were filed and the mere fact that all of these matters were heard at the same time, does not change their separate character. Additionally, appellee’s motions for new trials were denied by the trial judge.

Therefore, for the foregoing reasons, the judgments in Appeal No. 83 CA 0300 (District Court Suit No. 18,293) and in Appeal No. 83 CA 0301 (District Court No. 18,294) are affirmed and appellant is cast with costs in both appeals.

AFFIRMED.


author: CRAIN, Judge. SHORTESS, Judge,

text:
    John D. LANG v. Rodney PRINCE. Blanche ARELLANES v. Alfred PRINCE.
    Nos. 83 CA 0362, 83 CA 0363.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 25, 1984.

      R. Bruce Macmurdo, Baton Rouge, for Blanche Arellanes.
    Philip Deal, Monroe, for John Lang.
    Paul Marks and Joseph G. Simmons, Baton Rouge, for Dairyland Insurance Company, Alfred Prince, and Rodney Prince.
    W. Luther Wilson and A. Shelby Easterly, III, Baton Rouge, for Gulf States Utilities Company.
    Dorothy Dubroc Thomas, Baton Rouge, for South Central Bell Telephone Company.
    R. Randall Roche, Baton Rouge, for Department of Transportation.
    Horace C. Lane, Baton Rouge, for State Farm Mutual Automobile Insurance Company.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

These consolidated eases arose out of an automobile accident which occurred when a car struck a utility pole located in the shoulder of Louisiana Highway 190 in Den-ham Springs, Louisiana. Defendants, Gulf States Utility Company (GSU), South Central Bell Telephone Company (South Central Bell) and the State of Louisiana, Department of Transportation and Development (DOTD), appeal the judgment of the trial court finding them solidarily liable.

FACTS

The trial judge made the following findings of facts, which we adopt as our own:

William D. Lang, the fourteen year old son of plaintiff John D. Lang, and Michael J. Benton, the eighteen year old son of plaintiff Blanche R. Arellanes, were killed on July 22, 1978 while riding as passengers in the automobile owned by Alfred O. Prince and being driven by his minor son, Rodney W. Prince. The Prince vehicle moved partly onto the shoulder of Highway 190 and struck a utility pole located in the middle of the improved shoulder killing the two passengers. The pole was owned by defendant South Central Bell and jointly used by defendant Gulf States Utility Company.
The accident occurred at night in the town of Denham Springs along a stretch of Highway 190, a major four-lane thoroughfare. The Prince vehicle was traveling west at forty-five (45) to fifty (50) miles per hour in an area where the posted speed limit was forty-five (45) miles per hour.
There was differing testimony as to why the Prince vehicle moved onto the shoulder. Rodney Prince testified that he had intentionally pulled onto the shoulder to check a flat tire.
Tim Benton, a passenger in a car moving alongside the Prince vehicle in the inner lane also heading west, testified that the Prince boy was trying to communicate with the occupants of the other car, all of whom had been together shortly before that evening.

Additionally, we note that Rodney Prince admitted at trial that he had consumed three or four “pony” beers (7 oz.) that night between five or six o’clock and midnight — the time of the accident.

ACTION OF THE TRIAL COURT

Plaintiff, John D. Lang, brought suit for wrongful death against Rodney Prince and his liability insurer, Dairyland Insurance Company (Dairyland), South Central Bell, GSU, and the State of Louisiana, through the DOTD, among others. Plaintiff, Blanche Arellanes, brought suit for wrongful death against Alfred 0. Prince, the owner of the car, Dairyland, GSU, South Central Bell and the DOTD. Dairyland stipulated to judgment in each case for its policy limits of $10,000.

The two cases were consolidated for trial. After trial on the merits, the trial judge rendered judgment against defendants GSU, South Central Bell, the DOTD, and Dairyland (subject to its policy limits of $10,000), in solido, in the amount of $113,-175.80 to be paid to plaintiff, John D. Lang, and $200,737.67 to plaintiff, Blanche Arel-lanes, in addition to expert witness fees and court costs. The trial judge also found Rodney Prince solidarily obligated to plaintiff, John D. Lang, in the amount of $113,-175.80. From that judgment, only defendants GSU, South Central Bell and the DOTD appeal.

ASSIGNMENTS OF ERROR

The DOTD urges on appeal that it should not have been held liable because, according to its contentions, the highway met construction and safety standards at the time it was built, the utility pole located in the improved shoulder was not a hazard, and the fault of Rodney Prince relieved it of liability. South Central Bell and GSU contend on appeal that the pole was not the legal cause of the accident. GSU contends that it should bear no responsibility for the pole’s location since it was owned by South Central Bell and only used by GSU for the placement of its electrical wires. Finally, South Central Bell claims the damage award was excessive and that the sums awarded for Mrs. Arellanes’ hospitalization, lost wages and future medical treatment are not recoverable under Louisiana law.

LIABILITY OF THE DOTD

The trial judge concluded that the DOTD was negligent in allowing the utility pole to remain in the middle Of the shoulder, finding that:

The pole was only fifty-two (52) inches off the main traveled portion of a major road. For at least one and one-half miles back up the road in a [sic] easterly direction from the accident site, there was an unobstructed eight foot improved shoulder on the north side of Highway 190. Then suddenly to a driver heading west, a pole was located squarely in the center of the shoulder giving the driver who moved onto the shoulder no cushion of safety or chance to return to the main portion of the road. This hazardous condition was a contributing cause to this fatal accident. In this particular situation, the two left wheels of the Prince vehicle were still on the traveled portion of the highway when the fatal impact occurred on the [sic] occupants of the Prince vehicle might have escaped serious injury had the shoulder been unobstructed.
The net effect of the unobstructed improved shoulder followed by a pole in the middle of the shoulder was to create a trap.
The Court concludes that by permitting the location of the pole the Department of Transportation and Development was in contravention of Louisiana R.S. 48:35 which requires adherence to the standards set by the American Association of State Highway Officials of which Louisiana is a member. The standards in effect at the time of the accident (and as far back as 1954) required an unobstructed shoulder of eight to ten feet for a highway in the class of Highway 190.

The DOTD has a duty to maintain the shoulders of all highways in the state system. Willis v. State ex rel. Louisiana Department of Highways, 321 So.2d 819 (La.App.lst Cir.1975), writ denied, 325 So.2d 280 (La.1976); LeBlanc v. State, 419 So.2d 853 (La.1982). The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may drive onto the shoulder inadvertently having no knowledge or reason to have knowledge of a defective condition of the shoulder that would make such action hazardous. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). This duty includes passengers in vehicles that stray from the road. Siniti-ere, 391 So.2d at 825. The decision whether a condition of a highway actually is a dangerous and hazardous one is factual. Dagnall v. Louisiana Department of Highways, 426 So.2d 276 (La.App.4th Cir.1983), writ denied, 433 So.2d 160 (La.1983).

Plaintiffs expert witness, Duaine Evans, testified that for “Aoths of a mile east of the point where this pole was located there was a continuous unobstructed shoulder 7-9 feet wide, giving the driver an expectation of a shoulder. Both Evans and James Fister, plaintiffs other expert witness, testified that the position of the pole was a hazard. Fister stated that the situation was made even more hazardous by the fact that it was located in an area where the road turns left, where a driver would be more likely to continue straight if he lost control or inadvertently strayed.

As the trial judge pointed out in his reasons for judgment, a picture is worth a thousand words in this case. The pictures which were introduced into evidence alone are compelling proof of the hazard created. They show the improved shoulder with poles located completely off the north margin for some distance. Then suddenly, as a driver proceeds west, the road curves left so that a driver entering the curve is pointed exactly at the spot where the pole is located. This pole is squarely in the improved shoulder. Additionally, there is no grade differentiation between the shoulder and the roadway itself. Consequently, nothing warns the motorist that the vehicle is leaving the highway as would be the case with a roll-over curb.

Finally, even the DOTD’s expert witness, William Hickey, testified that he would not design a road with a pole within the improved shoulder as it is hazardous to the public. The DOTD stipulated to knowledge of the pole’s location for 19 years prior to the accident yet failed to take corrective action; consequently, we have no difficulty with the trial court’s conclusion that the DOTD was negligent. Sinitiere, 391 So.2d at 825.

We are not persuaded by the argument of DOTD that since only two accidents have occurred at this pole in the last eight years this should be proof that the location of the pole is not hazardous. As we pointed out in' Ketcker v. Illinois Central Gulf Railroad Company, 440 So.2d 805 (La.App. 1st Cir.1983), writ denied 444 So.2d 1220 (La.1984), evidence of absence of other accidents has been considered relevant for the limited purpose of showing whether the thing or premises at issue were hazardous, but that evidence is not conclusive. The other evidence in this case far outweighs the evidence of absence of other accidents.

Finally, the DOTD argues that the third party fault of Rodney Prince should relieve the DOTD of any liability for the death of his passengers. We find that contention likewise without merit.

There was never any question in this case that Rodney Prince was negligent. A motorist’s duty of reasonable care includes the duty to keep his vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir.1975), writ denied, 325 So.2d 608 (La.1976). The trial judge found Prince to be solidarily obligated to the plaintiff, Lang, along with the other defendants. Prince failed to appeal and therefore that judgment is final as to him. However, we do not find his negligence to have been an intervening cause that would relieve the other defendants from liability.

“When the actionable negligence of two tort feasors contributes in causing harm to a third party, each of them is responsible for the damage. They are soli-darily liable.” Dixie Drive It Yourself System New Orleans Company v. American Beverage Company, 242 La. 471, 137 So.2d 298, 301 (1962). Since we have determined that both Rodney Prince and the DOTD were negligent in their actions and each was a substantial cause of the accident in this case, it follows that they are debtors in solido and neither is relieved by the other’s fault. See Sinitiere, 391 So.2d at 827. Third party fault under La.C.C. art. 2317 which contributes to the accident along with fault of the owner-custodian, results in the same solidary liability where that third party fault is not considered to be the sole legal cause of the accident. Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978); Hessifer v. Southern Equipment, Inc., 416 So.2d 368 (La.App. 1st Cir.1982), writ denied, 420 So.2d 982 (La.1982); Godwin v. Government Employees Insurance Company, 394 So.2d 751 (La.App. 3rd Cir.1981).

LIABILITY OF SOUTH CENTRAL BELL AND GSU

The trial court found that both GSU and South Central Bell were negligent for not moving the pole satisfactorily when requested to do so by the DOTD in 1959 and further for allowing the pole to remain in its hazardous position for 19 years.

We have already concluded in our discussion of the DOTD’s arguments on appeal that the location of the pole posed an unreasonable hazard and was a legal cause of the accident. The same reasoning is relevant to the liability of South Central Bell and GSU under La.C.C. art. 2315.

SOUTH CENTRAL BELL

As previously noted, the basic difference between strict liability under La. C.C. art. 2317 and negligence under La.C.C. art. 2315 is knowledge of the condition which creates the unreasonable risk of injury. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982). The record in this case is replete with evidence that South Central Bell knew of the location of the pole in the improved shoulder of the highway. In fact, South Central Bell placed the pole in its present location in the improved shoulder. The evidence does not indicate whether the pole was relocated after the shoulder was built or before. However, this makes no difference as South Central Bell had the plans and knew the pole would be in the improved shoulder after its completion. Additionally, it had 19 years to observe its location. Therefore, the bottom line question in this case, as in Kent, is: having knowledge of the unreasonable risk of injury created by the pole, could South Central Bell take “reasonable steps under the circumstances to protect against the risk” that a driver who inadvertently left the roadway and even partially entered the shoulder would come into contact with the pole? If South Central Bell could take such steps, did it? We conclude that South Central Bell could have taken steps to eliminate the risk and did not. Consequently, South Central Bell’s knowledge of the hazard and its failure to remedy the situation renders it liable along with the DOTD.

GSU

The evidence shows that when Highway 190 was widened to four-lanes in 1959, the DOTD sent correspondence to both GSU and South Central Bell requiring that certain poles be moved, including the pole involved in this accident. The pole was then moved by South Central Bell to the location it was in when Rodney Prince struck it on July 22, 1979. South Central Bell was the sole owner of the pole. GSU merely was allowed to use the pole to string its lines pursuant to a joint-use agreement with South Central Bell. There is no evidence in the record that GSU participated in the relocation of the pole by South Central Bell or even had knowledge of its movement. Under those particular facts, we cannot agree with the trial judge’s conclusion that GSU was equally responsible along with South Central Bell and the DOTD for the hazardous position of the pole. Accordingly, we reverse that part of the trial court’s judgment finding GSU liable in damages to the plaintiffs.

DAMAGES

Appellant, South Central Bell, alone complains of the amount and type of damages awarded to Mrs. Arellanes. Based on an examination of other wrongful death awards in Louisiana, South Central Bell claims that the award of $150,000 in general damages to Mrs. Arellanes is excessive. South Central Bell cites the case of Bullard v. State, Department of Transportation and Development, Office of Highways, 413 So.2d 606 (La.App. 1st Cir.1982) as support for its contention that the highest award that can be granted to a parent for the loss of a child is the sum of $100,-000.

Before a trial court damage award may be questioned as excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Reck v. Stevens, 373 So.2d 498 (La.1979). It is only after an articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered excessive. Carollo v. Wilson, 353 So.2d 249 (La.1977). Prior awards may serve as an aid in determining exees-siveness only where the present award is shown to be greatly disproportionate to past awards for truly similar injuries. Reck, 373 So.2d at 501.

In the Bullard case, the trial court awarded the sum of $150,000 to each parent for the wrongful death of their son. After noting that previously the highest award to a parent was $75,000, this court on appeal concluded that the award in Bul-lard was excessive under the circumstances of the case and reduced the award to $100,000 per parent. Since Bullard was decided, this court has upheld an award of $145,000 in Johnson v. Folse, 438 So.2d 1137 (La.App. 1st Cir.1983) to a mother for the loss of her daughter. Also, in Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983), appl. not considered, 437 So.2d 1135 (La.1983), the Fourth Circuit upheld an award of $150,000 to a mother for the loss of her son.

In view of the - extraordinary circumstances of the case before us — Mrs. Arel-lanes’ extreme mental and physical illness resulting from her son’s death — we do not find the trial judge’s award of $150,000 in general damages excessive. As the trial court found:

Mrs. Arellanes’ damages are unique to this Court’s experience. The unrebutted evidence showed that Mrs. Arellanes developed a diagnosed, chronic mental disorder with serious physical side-effects as a direct result of the loss of her son. She was partially disabled from working as a result thereof and has sustained substantial and continuing medical expenses.
Mrs. Arellanes at first appeared to accept her son Michael Benton’s death in a stoical fashion. At the funeral home after the burial, however, she suddenly became very nervous, shaken and distracted. She began denying her son had died. In the months that followed, according to the testimony of her husband James Ar-ellanes, her son Glen Benton and her treating psychiatrist, Dr. Louis Cenac, she made numerous trips to the emergency rooms of various hospitals in the Baton Rouge area and asked to see her son Michael Benton.
Eventually, emergency room personnel came to realize that her son did not exist and that Mrs. Arellanes was suffering from delusions.
On August 30, 1978, Mrs. Arellanes was put into the psychiatric wing of Doctor’s Hospital where she spent ten days. During this period she denied that her son had been killed.
Since her son’s death Mrs. Arellanes has obviously been a sick woman. The undisputed testimony was that she was taking seven different drugs at the time of the trial more than three and one-half years after the accident, including the anti-depressant Elavil. She suffers from migraine headaches, anxiety, vomiting and fainting spells which increase when she is reminded of her son’s death. During the month long split between the two days of trial, she was compelled to make several .visits to hospital emergency rooms for anxiety attacks and severe migraine headaches.

Proof that Mrs. Arellanes’ condition was caused by the death of her son was clear from the evidence. Michael Benton was her favorite child and had always lived at home with his mother. Under the particular circumstances of this case, we find that the award of $150,000 was within the trial judge’s discretion.

In addition to the general award of $150,000, Mrs. Arellanes was awarded $2,368.10 for her own medical bills, $20,000 for future medical expenses and $25,000 for lost wages. South Central Bell claims that these are not recognized elements of damages recoverable in a wrongful death action under Louisiana law and should be stricken.

La.C.C. art. 2315 states that “survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased”. (Our Emphasis) Plaintiff argues that this language in the article contemplates the special damages awarded in this case, although no such damages have previously been awarded in a wrongful death action. While there is certainly no abundance of jurisprudence or commentary on this issue, we do find one case in which these damages were disallowed.

In LaPlace v. Minks, 174 So.2d 895 (La.App. 1st Cir.1965), writ refused, 248 La. 123, 176 So.2d 452 (1965), the plaintiff brought suit for his own physical disability, loss of earning capacity, and pain and suffering sustained by him when "he learned of his daughter’s death in a car accident. In a separate suit plaintiff brought suit for the wrongful death of his daughter. This court found in LaPlace, after citing Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir.1961), that:

The jurisprudence reviewed by this Court in the Holland case established clearly that in the situation before this Court in the instant case, the law has not permitted recovery to one for his own physical disability, loss of earning capacity, or pain and suffering sustained by him as a result of either seeing the personal injuries of another, or learning of the death of another, against tortfeasors, who are responsible for the personal injury or death of the other. (Our emphasis) LaPlace, 174 So.2d at 897.

Other than the LaPlace case, there have been no cases mentioning recovery of these type of damages under La.C.C. art. 2315. It was obvious from the trial judge’s reasoning that he took into consideration Mrs. Arellanes’ extraordinary suffering in his award of $150,000 in general damages. Therefore, for the reasons contained in Holland and LaPlace, we decline to extend recovery of these damages under La.C.C. art. 2315 at this time and reverse that part of the trial judge’s judgment awarding Mrs. Arellanes damages for her own medical expenses and lost wages.

For the foregoing reasons, we affirm the judgment of the trial court finding defendants, South Central Bell and the DOTD, solidarily liable to plaintiffs John Lang and Blanche Arellanes. We reduce the amount awarded to Blanche Arellanes to $153,-369.57, reflecting the deduction of that amount awarded for special damages which we find nonrecoverable in this case. We reverse that part finding GSU liable to the plaintiffs. All costs are to be paid equally by defendants South Central Bell and DOTD.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

SHORTESS, J., dissents in part and assigns reasons, but concurs in that part of the opinion which reverses as to GSU.

SHORTESS, Judge,

dissenting in part, concurring in part.

I respectfully dissent from that part of the opinion which casts DOTD and South Central Bell. I concur in the result which absolved GSU from liability.

I feel that the majority has ignored the facts surrounding this accident which clearly support a finding that it was not caused by any negligence on the part of DOTD. The majority holds that DOTD is liable regardless of any causal connection between the activity of the State and the accident.

A motorist is under a duty to drive prudently which includes the duty to control his vehicle and to keep a proper lookout. Hebert v. Lefty's Moving Service, 389 So.2d 855 (La.App. 4th Cir.1980); Courtney v. Lambert Construction Company, Inc., 355 So.2d 72 (La.App. 1st Cir.1978), writ denied, 356 So.2d 430 (La.1978). There was no evidence presented that this major four-lane, east-west U.S. Highway was defective in any way. The road was in good condition, and a driver exercising ordinary care and reasonable prudence should have easily negotiated the curve. The evidence does indicate that 13 million vehicles have passed the utility pole from 1973 to the date of this accident, and it has been hit but twice. Furthermore, we are talking about a large utility pole with overhanging lights and with signs appended to it some four and one-half feet off the traveled portion of the roadway.

Additionally, the record reveals the following facts. Rodney Prince had been drinking beer for at least six hours prior to the accident. He left Aaron Brent’s house in Denham Springs around midnight to go to Baton Rouge and was chasing a vehicle driven by Cindy Hayes. Hayes was in the left lane and Prince was in the right lane as they proceeded west on U.S. 190. The accident occurred in a heavily developed commercial area about six blocks west of U.S. 190 and Range Avenue, the main intersection in Denham Springs. As the two vehicles headed west, Prince attempted to overtake Hayes on the right. The telling testimony came from Tim Benton, the brother of decedent Mike Benton. He testified, “I — all I know is he was waving and he hit — went right into the pole.” “But for” Prince’s failure to maintain a proper lookout and failure to maintain control of his vehicle, this accident would not have happened. The pole played no substantial causal role in the accident.

The duty owed by DOTD in these highway shoulder cases is to the motorist guilty of only “inadvertent deviation.” This is the common thread which runs through the duty-risk analysis beginning in Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979), to the recent LeBlanc v. State, 419 So.2d 853 (La.1982). The facts of this case are inapposite to the facts presented in LeBlanc, which dealt with a four- to six-inch drop-off between the roadway and the shoulder. All the eases dealing with DOTD’s duty to the straying motorist are factually similar in that a depression or drop-off between the roadway and shoulder is involved.

As articulated by the Supreme Court in LeBlanc, DOTD’s duty is to the motorist who is guilty only of inadvertent deviation from the highway onto the shoulder. The deviation here was a negligent one caused by failure to maintain proper control and failure to see what should have been seen.

Finally, I note that Prince violated the express provisions of La.R.S. 32:79 which provide that a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not move from such lane until the driver has first ascertained that such movement can be made in safety.

ACCORDINGLY, I DISSENT IN PART AND CONCUR IN PART.

      . Mrs. Arellanes did not sue Rodney Price individually. At the time suit was filed Prince was a minor, but by the time judgment was rendered had reached the age of majority.

      . Insofar as the DOTD is concerned this case might be analyzed as a strict liability case under La.C.C. art. 2317 since the location of the pole could make the shoulder defective. However, since the negligence analysis and the strict liability analysis are basically the same except for the imputation of knowledge to the owner or custodian in strict liability cases, the nomenclature here is not important since the DOTD had knowledge of the pole on the shoulder. Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983).
      The question in either case is whether the pole at its location on the shoulder created an unreasonable risk of injury.

      . We find the unusual location of the pole in this case was hazardous given the physical surroundings whether or not the shoulder was required, was of proper construction according to American Association of State Highway Officials (AASHO) standards, or was properly or improperly built to comply with urban or rural standards. Consequently, we do not find a violation of AASHO standards necessary for a determination of negligence. The location of the pole was so peculiar to other poles in the area and to the shoulder that was actually in place and maintained, that no general construction requirements can be drawn from our holding under the particular facts of this case.


author: COLE, Judge.

text:
    Bertha Dedon ANDROWSKI, et al. v. OLE McDONALD’S FARMS, INC.
    No. 83 CA 0410.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Charles S. McCowan, Jr., Baton Rouge, for plaintiffs-appellants Bertha Dedon An-drowski, David Michael Androwski, Patricia Elaine Androwski, John Stanley An-drowski, Daniel William Androwski.
    Bobby L. Forrest, Baton Rouge, for defendant-appellee Ole McDonald’s Farms, Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not the owners of property contiguous to an estate on which oxidation ponds were constructed have proven their property thereby suffered a reduction in fair market value or that the ponds constitute a nuisance for which an award should be made.

The facts giving rise to this litigation are as follows. Bertha Dedon Androwski, David Michael Androwski, Patricia Elaine Androwski, John Stanley Androwski, and Daniel William Androwski brought suit against Ole McDonald’s Farms, Inc., alleging the sewage oxidation ponds constructed on defendant’s property constituted an inverse servitude of usage on plaintiffs’ adjacent property because regulations prohibit the construction of oxidation ponds within 200 feet of any residence. In the alternative, they avered the oxidation ponds constituted a work on defendant’s property which deprived them of using 7.45 acres of their property and they were entitled to damages under Civil Code article 667. They further alleged they suffered damages because the oxidation ponds were a nuisance.

Defendant filed the peremptory exception raising the objection of no cause of action which was sustained by the trial court. This court reversed that decision and held the construction of an oxidation pond adjacent to and within five to ten feet of the property line separating contiguous estates gives rise to a claim for damages for diminution in value of the neighboring property even though no negligence, physical intrusion, or ultrahazardous activities are involved. Androwski v. Ole McDonald’s Farms, Inc., 407 So.2d 455 (La.App. 1st Cir.1981), writ denied 409 So.2d 666 (La.1982). The court then remanded the case for a factual determination of whether or not there had been “a compen-sable abuse of the rights of ownership by a proprietor toward his neighbors.”

Before the case was heard plaintiffs voluntarily partitioned the property. After the partition only David Michael Androwski and Patricia Androwski McKnight owned property adjacent to defendant’s oxidation ponds. Patricia then sold her property to a third person leaving only David Michael Androwski as owner of property adjoining the oxidation ponds. After a trial on the merits judgment was rendered in favor of defendant and against plaintiffs. The court held Bertha Dedon, John Stanley and David William Androwski had not proven damages because they no longer owned property adjoining the oxidation ponds. The court ruled Patricia Androwski McKnight did not incur any damages because she sold her tract for its fair market value. The essence of the court’s reasoning regarding David Michael Androwski was that he had not proven damages. All of the plaintiffs have appealed alleging two specifications of error. First, the trial court erred in failing to find the construction of the oxidation ponds by defendant created an inverse servitude and nuisance which resulted in damages to plaintiffs’ property. Second, the trial court erred in failing to find plaintiffs had proved their damages with sufficient certainty to allow an award.

The appellants allege the fair market value of their property has been reduced and they are entitled to $90,000 in damages. They claim the location of the oxidation ponds within five to ten feet of the boundary between their property and appellee’s property creates an inverse servitude because certain regulations and governmental policies prohibit the building of residences within 200 feet of an oxidation pond. The essence of their argument is they are prevented from developing their property because of these regulations and policies and therefore they are entitled to an award for diminution of the fair market value of their property.

The following regulations and policies govern the location of oxidation ponds. The State Sanitary Code provides in Chapter X, para. 10.20 that approval for the location of sewage ponds will be made in accordance with the latest Standards for Sewage Works promulgated by the Great Lakes and Upper Mississippi Board of Sanitary Engineers. The 1975 Recommended Standards for Sewage Works, incorporated by the Sanitary Code, provide in pertinent part:

“93.1 Distance From Habitation
“A pond site should be as far as practicable from habitation or any area which may be built up within a reasonable future period.”

The 1978 Recommended Standards for Sewage Works provide:

“102.1 Distance From Habitation
“A pond site should be located as far as practicable, with a minumum of ¼ mile (0.4km), from habitation or any area which may be built up within a reasonable future period....”

An internal policy memorandum of the Department of Health and Human Resources provides:

“2. Location
“a. Ponds should be located as far as practicable from habitation. Generally they should not be located closer than 200 feet from residences.”

The policy memorandum is the crux of appellants’ argument. They contend the policy precludes the development of their property within 200 feet of the oxidation pond. The trial court found this 200 foot policy was not a hard and fast rule and the appellants have not lost the right to build on their land. We agree. Although there is some evidence this policy is regularly applied, the preponderance of the evidence establishes the 200 foot rule is not mandatory. It is only a departmental policy and not a law promulgated by our legislature. Furthermore, the 200 foot recommended distance is measured from the water surface of the oxidation pond to an actual residence, not from the boundary line of the tract containing the pond to the closest residential lot line. The appellants presented no evidence, other than an application in 1975 to expand a trailer park, that they planned to develop their property into a residential area. As there is no evidence appellants intend to build residential structures within 200 feet of appellee's oxidation pond “within a reasonable future period” the trial court was correct in finding the oxidation ponds did not create an inverse servitude.

This argument is closely related to the question of whether or not appellants sustained their burden of proving damages. They rely primarily on the testimony of Mr. Oren W. Russell, an expert in real estate, who assessed the reduction in fair market value of appellants’ property at $87,040. Mr. Russell’s appraisal is based upon his opinion that the highest and best use of appellants’ property is residential. The trial court did not believe the highest and best use of the property is residential and therefore placed little probative weight on Mr. Russell’s assessment of damages. This had a substantial impact on the trial court’s concluding the appellants had not proven damages. We agree the highest and best use of appellants’ property is not residential. The record is replete with evidence that the property is in the flood plain and subject to inundation. For the property to be developed as a residential area, dirt fill would be required to elevate the property two feet at a cost which as a practical matter would not be economically feasible.

Even if the highest and best use of the property were residential, recovery for diminution in value would still be denied because the evidence does not establish the appellants have been precluded from developing their property because of appellee’s ponds. No plans to develop the property into a residential subdivision were introduced. David Michael Androwski testified no preliminary study or subdivision plat had been made other than the preliminary plat for an extension of a trailer park in 1975. He admitted no attempt has been made to develop the property by him or any other person. He even admits any development at this time as to configuration, depth of lots, or type of development is purely conjectural.

The appellants who no longer own property within 200 feet of defendant’s oxidation ponds have also failed to establish their property has been damaged. The expert opinion of Mr. Russell, relied upon by appellants, was formulated before the tract was partitioned, thus based upon the proposition that appellants’ property was one large tract owned in indivisión by members of a family. Although Russell states the assessment of damages before and after the partition would be “pretty close” if prorated for each tract resulting from the partition, there is other expert testimony that after the division of ownership it would be speculative to assess damages to each tract without an additional appraisal. The appellants did not offer an expert appraisal of the damages to each tract subsequent to the partition.

Patricia Androwski McKnight, who sold her tract adjoining the ponds, has also failed to prove the value of her tract was diminished. The evidence does not establish she received less than the fair market value of the tract sold.

There is conflicting testimony as to whether or not the oxidation ponds created a nuisance. The appellants’ major complaint is that the ponds emit offensive odors. The testimony of several disinterested parties was that the oxidation ponds do not emit objectionable odors and will not in the future if maintained properly. Whether or not an activity creates a nuisance is a question of fact to be determined by the circumstances in each particular case. Thornburg v. McMillin, 392 So.2d 1119 (La.App.3d Cir.1980), writ denied 399 So.2d 599 (La.1981). As a reviewing court, we must give great weight to factual conclusions of the trier of fact, and where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact are not to be disturbed. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find no manifest error in the trial court’s findings of fact and therefore affirm its denial of an award for the alleged nuisance.

In conclusion, this whole case has rested upon the factual question of whether or not the appellants’ property was damaged. The burden of proof was upon appellants and the trial court found there was insufficient evidence to prove the element of damages. In essence, the trial court found the evidence established defendant’s oxidation ponds were at most an inconvenience rather than a cause of damage to appellants’ property. Compare La. Civil Code arts. 667 and 668. We are not at liberty to disturb that determination absent manifest error. Finding no manifest error, we affirm the trial court’s judgment against appellants and in favor of the ap-pellee.

Costs are to be paid by appellants.

AFFIRMED.

      . At the outset we note the evidence does not preponderate to establish the converse, i.e., a rule, regulation or policy prohibiting the construction of a residence within 200 feet of an existing oxidation pond.

      . As a result of the voluntary partition on April 20, 1979, Bertha Dedon, John Stanley and David William Androwski received property not adjacent to the oxidation ponds. In oral argument before this court counsel for appellants admitted these parties are now without a claim and procedurally, should have been eliminated from this litigation.

      . There were complaints about other oxidation ponds and oxidation ponds in general but as we are concerned with the factual issue of whether or not the oxidation pond adjoining appellants’ property is a nuisance we do not address these complaints. There was a complaint about the appellee's pond flooding the Androwskis’ property but there was also evidence that the flooding resulted from intentional tampering.