text:
    The CITY OF LAFAYETTE, Plaintiff-Appellee, v. Solange Sue DORE, Defendant-Appellant.
    No. 84-2.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Ronald J. Judice of Mouton, Roy, Lafayette, for defendant-appellant.
    Voorhies & Labbe, E. Gregory Voorhies and H. Edwin McGlasson, Jr., Lafayette, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Plaintiff, City of Lafayette, instituted this expropriation suit against defendant, Solange Sue Dore, to obtain a necessary portion of defendant’s front yard for the construction of a four-lane highway. The trial court granted plaintiff’s expropriation and awarded defendant compensation for the land and improvements, and severance damages. Defendant appeals, contending that the trial court erred in failing to consider the loss of several trees and shrubbery in arriving at severance damages to the remainder of the property. We hold that the diminution of value caused to defendant’s remaining property by the loss of the trees and shrubbery should have been accounted for in the award of severance damages, and we amend the judgment accordingly.

FACTS

In this case, the City of Lafayette seeks to expropriate a large segment of defendant’s front yard comprising .066 of an acre for the purpose of constructing a four-lane highway. Defendant’s residence and lot is situated on Teurlings Drive, a two-lane road. There are trees which line Teurlings Drive in either direction from defendant’s residence.

Defendant’s existing lot is approximately one (1) acre, with a frontage of 103 feet. At present, the residence is shielded from the existing two-lane road by shrubbery and is “framed” by a large pecan tree and a smaller pecan tree on either side of, and in front of the residential lot.

The expropriated right-of-way takes in approximately thirty-five (35) feet in depth on one side line and twenty-four (24) feet in depth on the other side line, leaving the new right of way approximately fifty (50) feet from defendant’s house. The taking also includes the large and small pecan trees, a smaller live oak tree, and the border shrubbery across the front. The front yard is substantially reduced in size by this taking.

The trial judge granted the expropriation in favor of plaintiff and awarded defendant the following compensation and severance damages:

1) Compensation For Taking:
a) Concrete drive .$1,003.20
b) Shell drive . 99.00
c) Landscaping . 500.00
d) Value of land taken . 4,660.00
TOTAL .$6,262.20
2) Severance Damages .$8,000.00
3) Attorney Fees .$2,000.00

Defendant was also awarded legal interest from the date of the filing of the suit.

The trial court award for compensation for the taking of defendant’s land and improvements thereon and trees and. shrubs is undisputed on appeal. Defendant appeals, contending that the award of severance damages is inadequate because the trial judge failed to consider the loss of value to the remainder of defendant’s property caused by the removal of the trees and border shrubbery. The trial court’s award of $8,000 for severance damages was based solely upon the decline in the market value of the defendant’s remaining property caused by the effect of the new highway.

ISSUE

The issue presented on appeal is whether the trial court erred in failing to consider the effect of the loss of the treés and shrubbery on the value of defendant’s remaining property in assessing severance damages.

SEVERANCE DAMAGES: LOSS OF TREES AND SHRUBBERY

In addition to compensation for property taken, see Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541 (1954); Louisiana Power & Light Company v. Dixon, 201 So.2d 346 (La.App. 2nd Cir.1967), the land owner is also entitled to compensation for damages to the remaining property caused by the taking. This element of recovery is commonly referred to in our law as severance damages. Severance damages include the decline in value of the remaining property caused by the use to which the taken property is put. Texas Pipeline Company v. Barbe, 229 La. 191, 85 So.2d 260 (1955). In this case, the $8,000 award for severance damages represents the diminution in value of defendant’s remaining property caused by the four-lane highway, which is the use for which the land has been expropriated.

The determination of severance damages must be made on the basis of the entire difference between the fair market value of the remainder of the property before the taking and the fair market value of the property subsequent to the taking. Southwest Louisiana Electric Mem. Corp. v. Beck, 299 So.2d 411 (La.App. 3rd Cir.), writ denied, 302 So.2d 30 (La.1974). Where the loss of aesthetic considerations serves to reduce the market value of the remainder of the property,' they certainly may be considered in determining the amount of severance damages to be awarded. Central Louisiana Electric Company, Inc. v. Davis, 291 So.2d 489 (La.App. 3rd Cir. 1974).

In State, Department of Highways v. Moresi, 189 So.2d 292 (La.App. 3rd Cir. 1966), we held that an award of $5,000 in severance damages was proper for the loss of four shade trees insofar as their loss and removal occasioned a reduction in the market value of the landowner’s remaining tract. That decision establishes that trees, on expropriated property, which added to the market value of the landowner’s remaining tract, should be included in the trial judge’s assessment of severance damages.

Defendant’s property, before the taking, had an estimated value of $160,000. In determining severance damages, the trial judge based the award of $8,000 on defendant’s appraisers’ percentages of diminishment in the market value of the property because of the road project and its detrimental effect on the market value of the property. Edward Mouton and J. Alfred Mouton, Jr., assessed severance damages at fifteen percent (15%) of the market value of the home. This resulted in a net decrease of the property value of $23,200. Plaintiff’s appraisers, following the appraisal guidelines set for them by the city, refused to consider severance damages and therefore did not offer an estimate of the decline in market value of defendant's remaining property. The trial court then asked both of defendant’s appraisers if they could apportion their 15% severance damage figure by specifying what portion of the 15% would be attributable to the “effect” of the new highway on the property, and what portion would be attributable to the loss of the trees. J. Alfred Mouton, Jr. assigned 10% of the remaining property’s diminished value to the loss of trees and shrubbery and 5% to the roadway and its detrimental effect on the property. The trial judge awarded only 5% of the market value of the home and property to defendant as severance damages attributable solely to the effect of. the new highway. This award was rounded off by the court to $8,000. It did not include severance damages enuring from the loss of the trees and shrubbery. The trial court awarded $500 to defendant for the taking of landscaping. This apportionment was designated by the trial court as a compensatory sum for the actual taking of the trees and shrubbery. We shall now review the record to determine whether the trial judge abused his discretion by failing to consider the loss of the trees and shrubs in his assessment of severance damages.

The record reveals that plaintiff’s appraisers, Gene Cope and Maurice Chappuis, both opined that severance damages were not due in this case. Conversely, as stated above, defendant’s experts concluded that the remaining property’s value would decrease by 15%, one of which attributed only 5% of this amount solely to this effect of the new highway.

The trial judge stated:

“For severance, the Court feels that there will no doubt be a loss because of the loss of the trees and shrubs, but this loss is accounted for in the landscaping award of $500.00. While that award may be low, I have no evidence before me as to what would be a proper award for landscaping, so I’m bound by that figure, and accordingly, I’ll award it. I award no severance damages for the loss of the trees and the shrubs. Mr. J. Alfred Mouton, Jr. testifies that of the severance damages to which he testified, five (5%) of the fifteen percent (15%) is attributable to the street, approximately one-third (Vs). I, therefore, award one-third (⅛) of the amount he testified to. He testified to $23,200.00. I award slightly better than one-third (⅛) by rounding the figures off to $8,000.00 for severance.”

(emphasis added).

First, it should be noted that the trial judge clearly found that there would be a diminution in the value of defendant’s remaining property because of the loss of the trees and shrubbery. The trial judge then states that the $500 compensation for the taking of the trees and shrubbery also, in effect, covers the severance damage caused to the remainder of defendant's property by the removal of the trees and shrubbery. However, the trial judge next just as clearly states that he “awards no severance damages for the loss of the trees and the shrubs." The trial judge later explained: “I did not award you any severance for the loss of the trees. Instead, I give you the $500.00 figure. Now, if you want to appeal that, maybe the Court will give you something on that.”

This portion of the judgment is, at best, confused. If the trial judge meant to enter no award for the damage caused to the remainder of plaintiff’s property by the loss of the trees and shrubbery, then the trial judge erred, because he should have entered some award for damages after finding, in fact, that the remaining property would be damaged by the loss of the trees and shrubbery. On the other hand, if the trial judge meant to substitute the $500 compensation award for the taking of the trees and shrubbery as the appropriate award for severance damages caused by the loss of the trees and shrubbery, then the trial judge erred by not awarding damages for the taking of the shrubs and trees, inasmuch as these plants represented landscaping expenses on the part of defendant or added to the value of the expropriated portion of defendant’s property. In either event, defendant was inadequately recompensed for her loss. Even if we assume that the $500 covers both severance and taking damages, we must find that the award is manifestly inadequate, in light of the evidence presented at trial. The city’s experts, following city policy, refused to offer any estimate of severance damage of any manner, including severance damage caused by the loss of the trees and shrubs. Defendant’s experts apparently offered credible estimates as to all elements of severance damages. We note that the trial judge fully accepted defendant’s expert’s estimate of damages caused by the use to which the land would be put.

We conclude that, based on a fair reading of the record as a whole, the trial judge simply failed to award any severance damages for the loss of the trees and shrubs. This was error, because after the trial judge found that the remainder of defendant’s property would be damaged by the loss of the trees and shrubs, some award should have been made. The removal of the trees and shrubs results in the taker’s obligation to compensate both for the taking thereof, and for the damage caused to the remainder of the property, under the above-discussed law of this state. See also State of Louisiana, Dept. of Transp. and Dev. v. Taylor, 461 So.2d 1282 (La.App.3d Cir.1984). Five hundred dollars is a fair and just award for the taking. For severance damages, defendant offered credible evidence that both the removal of the trees and shrubs and the use to which the land will be put will result in a total diminution of the value of defendant’s remaining property by $23,200. There is no evidence that disputes the amount of this estimate.

DECREE

Based on the above reasons, we amend the judgment of the trial court as follows: It is ordered, adjudged, and decreed that the amount of the judgment below representing severance damages be increased to a total of $23,200, which includes severance damages for the loss of trees and shrubs. Defendant’s prayer for additional attorney fees for handling this appeal is denied. In all other respects, the judgment below shall remain unchanged. All costs of this appeal are assessed to plaintiff-appellee City of Lafayette.

AMENDED AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Dale CREDEUR, Plaintiff-Appellant, v. MOSS MOTORS, Volvo of America Corporation, Defendant-Appellee.
    No. 84-3.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Soileau, Coreil & Dupre, Anthony C. Dupre, Ville Platte, for plaintiff-appellant.
    Peter C. Piccione, Jr., Lafayette, for defendant-appellee.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       Judge William A. Culpepper, ad hoc.

   CUTRER, Judge.

This is a suit in redhibition arising out of the purchase of a used 1979 Volvo automobile from defendant, Moss Motors, Inc. The plaintiff, Dale Credeur, also sued Volvo Corporation of America (Volvo), however, plaintiff’s claim against Volvo was dismissed pursuant to a compromise settlement. After plaintiff presented its evidence in the trial of the matter, the defendant moved for a dismissal. The trial judge took the case under advisement and later rendered written reasons for granting the defendant’s motion. The plaintiff appeals. We affirm.

The issue in this case is whether the plaintiff met his burden of proving that the Volvo contained a defect at the time of the sale.

FACTS

The plaintiff purchased the Volvo from defendant on December 21, 1981, for $6,995.00. The car had traveled 32,611 miles by the time of the sale. Three weeks later, the rear window shattered minutes after the plaintiff turned on the rear window defogger while driving on a cold night. The plaintiff’s insurer paid for this repair other than the $50.00 deductible. In March 1982, the plaintiff had to replace the timing belt at a cost of $145.00. A couple of days later the muffler had to be replaced at a cost of $75.55. Finally, sometime in May 1982, the plaintiff allowed his friend, Gary Ortego, to drive the car back to Lafayette from a trip they had taken to Baton Rouge. Just before the Butte Larose exit, the car started losing acceleration and stalled on the exit. The two were unable to start the car and “caught a ride home.” The next day, the plaintiff was able to start the car but, due to an engine noise, he slowly drove the car 15 miles to his home. He then called defendant but the defendant’s employee told him that they did not fix Vol-vos.

Next, the plaintiff brought the car to Apple’s Foreign Car Repair (Apple’s) to ascertain the source of the engine noise. An employee of Apple’s concluded that the rod bearings around the crank shaft were badly worn and needed replacing. Due to the difficulty in acquiring specific repair parts, they were forced to rebuild the engine using both new parts and some of the existing parts. The costs of the repair was $2,769.80.

After the engine trouble developed, the plaintiff purchased an extended warranty insurance policy through Merrick Hebert at Moss Motors. Hebert acted as the agent for the insurance company that offered the policy. The policy covered the repair cost of the engine. The plaintiff did not have to pay for the repair of the engine. Five months after plaintiff authorized Apple’s to make the repairs, they returned the ear to him in good running condition. On December 16, 1982, plaintiff filed suit for rescission of the sale and return of the purchase price. In June 1983, the plaintiff purchased a new car, trading in the Volvo for $5,500.00. After the sale of the Volvo, the plaintiff pursued his claim on the basis of quantum minoris for the value of the repairs and other damages.

PLAINTIFF’S BURDEN OF PROOF

The plaintiff argues that the trial judge erroneously held that he failed to meet his burden of proof. In an action for a reduction in price, the purchaser must prove that the alleged defect diminished the value of the object of the sale and that the defect existed prior to the sale. Commercial Union Insurance Co. v. Ryland Dodge & Chrysler, Inc., 457 So.2d 255 (La. App. 3rd Cir.1984), our docket number 83-881; Broussard v. Breaux, 412 So.2d 176 (La.App. 3rd Cir.1982), writ den., 416 So.2d 115 (La.1982); LSA-C.C. articles 2544, 2530. It is not necessary for the plaintiff to “prove the particular and underlying cause of the defects ... when the thing is a complicated piece of machinery.” Commercial Union Insurance Co. v. Ryland Dodge & Chrysler, Inc., supra, quoting Crawford v. Abbott Automobile Company, Ltd., 157 La. 59, 101 So. 871 (La.1924). However, he still must prove the defect existed at the time of the sale. This proof must consist of direct or circumstantial evidence which gives rise to a reasonable inference that the defect existed at the time of the sale. Gamble v. Bill Lowrey Chevrolet, Inc., 410 So.2d 1155 (La.App. 3rd Cir.1981). The plaintiff’s failure to establish a prima facie case defeats his cause of action because the burden of proof does not shift to the defendant until a prima facie case has been shown. Commercial Union Insurance Co. v. Ryland Dodge & Chrysler, Inc., supra; Jordan v. Security Co., 425 So.2d 333 (La.App. 3rd Cir.1982).

The plaintiff proved the engine was defective after 6,000 miles of use, as the bearings in the crankshaft were badly worn. However, he failed to prove that the bearings were worn at the time of the sale. The testimony relied upon by the plaintiff concerning the time the defect arose was the testimony of Randy Apple, owner of Apple’s. He did no work on the engine. This was done by his mechanic, Allen Che. He testified that it was unusual for Volvos to have this problem with only 39,000 miles on them. He also testified that the rod bearings had worn out over a period of time as opposed to going out suddenly as a result of an insufficient oil flow to the crankshaft. The trial court apparently did not accept this testimony.

The mechanic who disassembled the engine and made the repairs was Allen Che, a man of 15 years of experience with foreign cars. He stated that the rod bearings were burned and this was due to the lack of proper lubrication. Improper lubrication could be caused by the failure to properly maintain the oil level or oil change, faulty oil pump or oil filter, or clogged oil hose. Che, however, did not examine these parts to ascertain if these were the sources of lack of lubrication of the bearings. His testimony in regard to the cause of. the problem was as follows:

“Q. Well, in your experience, actually, isn’t lubrication trouble the main cause of excessive wear in these bearings?
“A. Right, the lubrication.
“Q. And that’s commonly known with the experienced mechanics, isn’t it?
“A. Excuse me?
“Q. I say, it’s common knowledge, mechanics generally understand that
“A. Right, I understand that.
“Q. ... when you get worn bearings, something went wrong with the lubrication somewhere ...
“A. The lubrication.
“Q. ... in the past?
“A. That’s common knowledge.
“Q. And I believe you said when you took the pan off here, though there was oil on it, it was black and used, it was not good oil?
“A. It was — it was black, you know.
“Q. It should have been changed some time earlier?
“A. Right.
“Q. And I believe you said there are all sorts of things can cause lubrication trouble, your breather thing can stop up,
“A. Yeah, right.
“Q. ... the pump might not work good ...
“A. The hose clogs up ... (Both speak together here)
“Q. ... the little hose that carries the oil in there can get partially stopped up?
“A. That’s right. '
“Q. Somebody may let the oil get too low?
“A. Un huh, that’s right.
“Q. Or run the car too hard and fast when the oil is low?
“A. Right.”

The testimony of Che reflects that the lack of proper lubrication was the source of the problem but he was unable to give an opinion as to when such lack of lubrication had occurred. Thus, the plaintiff has not shown that a defective condition existed when the car was purchased. It cannot be said that the trial court was manifestly erroneous in concluding that the plaintiff had failed to carry his burden of proof.

Plaintiff argues in brief that Tuttle v. Lowrey Chevrolet, Inc., 424 So.2d 1258 (La.App. 3rd Cir.1982) is on “all fours” with this case and its holding should be applied here. This court reversed the trial court’s dismissal of Tuttle’s demand for rescission of the sale of a used truck with 39,577 miles on it. The truck’s engine needed a complete overhaul just one and one-half months after he purchased it. Four months later, the engine required another complete overhaul. The seller completed this repair and within a short period after this, the crankshaft broke. The court held that the plaintiff proved a redhibitory defect existed at the time of sale. However, in the present case, the plaintiff failed to carry the burden of proof.

Plaintiff owned the car for six months and had driven approximately 6,000 miles without engine trouble. Once Apple’s repaired the engine, the car was in good running condition. The evidence fails to show that it is more probable than not that the bearing problem existed at the time of the sale. The plaintiff also proved that he previously replaced the back window, the timing belt and the muffler, but he introduced no evidence whatsoever that could lead one to reasonably infer that these problems existed prior to the sale.

For the above reasons, the trial court’s dismissal of plaintiff’s case is affirmed. Costs of this appeal are to be paid by plaintiff-appellant, Dale Credeur.

AFFIRMED.


author: CULPEPPER, Judge Pro Tem.

text:
    Jim WATKINS, d/b/a S/B Silver Fox, Plaintiff-Appellee, v. KERR-McGEE OIL INDUSTRIES, INC. and Texas Gulf, Inc., Defendants-Appellants.
    No. 84-5.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied Feb. 8,1985.
    Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for defendants-appellants.
    Russell T. Tritico, Lake Charles, for plaintiff-appellee.
    Before FORET, CUTRER, JJ., and CUL-PEPPER, J. Pro Tem.
   CULPEPPER, Judge Pro Tem.

This is a suit for damages incurred when the 40-foot trawl net of “Shrimp Boat Silver Fox” became entangled in debris on the floor of the Gulf of Mexico. Judgment was rendered against defendant, Texas Gulf, Inc., in the amount of $15,451.60 for damage to the vessel’s trawls, expenses incurred in disentangling the boat, and a loss of profits. Texas Gulf appeals. We reverse.

The issues are: (1) Can res ipsa loquitur be applied to create a presumption that it was Texas Gulf’s debris? (2) Did plaintiff prove it was Texas Gulf’s debris?

GENERAL FACTS

The accident occurred on August 17, 1979 in an area of the Gulf of Mexico identified as East Cameron Block 129. The trawls being used by the “Silver Fox” snagged on an underwater object at a depth of about 76 feet. The captain’s efforts to disentangle the net were unsuccessful. Divers hired by plaintiff cut the boat loose, and a portion of the object on which the nets were hung was raised to the surface. One of the divers described the object as a pipe structure made of about 42-inch pipe. He indicated that a piece of stairway approximately 30 feet long and four feet wide was still caught in the net.

The captain of the “Silver Fox” testified that a portion of the snag which was pulled almost to the surface appeared to be a helicopter landing pad from an oil rig. Pieces of iron remained in the net after it was cut loose on the afternoon of August 22. A piece of this debris, described as metal grating, was at one time in the possession of Jim Watkins who managed the operation of the “Silver Fox.” Mr. Watkins testified at trial that the piece of metal grating had been misplaced and could not be located.

Operations to cut the “Silver Fox” loose from the snag were delayed due to the weather which was described by the captain as “squally.” The captain also attributed to weather conditions the fact that his boat drifted more than 500 feet while still hung up.

The evidence shows that two companies, Kerr-McGee and Texas Gulf, had conducted drilling operations in East Cameron Block 129. The location of these drilling operations and the snag which caused the damage were determined with considerable accuracy by the use of the Lorán C system of navigation. The well drilled by Kerr-McGee, which was plugged and abandoned in 1972, is located approximately 5,990 feet east of the point where the snag occurred. The Texas Gulf wells No. 1 and No. 4 were shown to be 4,311 feet and 671 feet, respectively, east of the snag. These wells were plugged and abandoned in the summer of 1978.

Suit was initially filed by Jim Watkins, d/b/a S/B Silver Fox against Kerr-McGee and Texas Gulf. Because Jim Watkins only manages the operations of the boat, the owner, Hat III, Inc., was substituted as the proper party plaintiff. Both defendants filed third party demands against the companies with whom they had contracted to salvage and dispose of their drilling platforms and equipment.

Kerr-McGee and its third party defendant were dismissed on a motion for summary judgment which was unopposed by the plaintiff. The third party demand filed by Texas Gulf was severed from the main demand and is not at issue before us.

APPLICATION OF RES IPSA LOQUITUR

There is no question that someone was negligent in leaving this debris in the Gulf. The issue is who left it there. The trial court applied the doctrine of res ipsa loqui-tur to infer a presumption that Texas Gulf left the debris there when it drilled its wells in 1978. We conclude res ipsa loqui-tur cannot be applied for this purpose.

Generally, the doctrine of res ipsa loquitur (the thing speaks for itself) is a rule of evidence, which creates a presumption of negligence by the defendant where it has been proved by a preponderance of the evidence, either direct or circumstantial, that the instrumentality which caused the injury was in the defendant’s exclusive possession, and that the accident was one which ordinarily does not occur in the absence of negligence. Res ipsa loquitur is not applied to create a presumption that it was defendant’s instrumentality which caused the injury. This must be proved by a preponderance of the evidence, either direct or circumstantial. Prosser, Law of Torts, 4th Ed., Ch. 6, sec. 39, at pg. 218, explains:

“It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not proved his case. The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed .... ”

One of the leading cases from our Supreme Court on res ipsa loquitur is Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La.1972), in which a fire of unknown cause started in the kitchen of defendant’s restaurant and spread to an adjoining apartment building where plaintiffs father was found suffocated by the smoke. The facts showed clearly that the decedent was killed as a result of the fire which originated in defendant’s kitchen, but the cause of the fire was not proved by direct evidence. The trial court and the intermediate court of appeal held the plaintiff had not proved by a preponderance of the circumstantial evidence that defendant’s negligence caused the fire, other reasonable causes being vandalism, combustion, electrical malfunction, etc. In reversing, our Supreme Court applied the doctrine of res ipsa loquitur to infer negligence of the defendant as the most plausible explanation for the fire, rather than some other possible cause. In Boudreaux, there was no question that the instrumentality which caused the injury, i.e., the kitchen and its employees and equipment, was under the exclusive control of the defendant, and, of course, a fire does not ordinarily start in a kitchen, in the absence of negligence on the part of someone. Thus, the court applied res ipsa loquitur to infer negligence by the defendant.

Another example of the type of case in which our Supreme Court has applied res ipsa loquitur, is McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973) in which plaintiff alleged that his son was taken into the operating room of the hospital for surgery on his injured elbow, and that when he came out of surgery he had received new injuries to his leg and his reproductive organs. Plaintiff did not know the cause of the new injuries. Even though there were multiple defendants, our Supreme Court applied the doctrine of res ipsa loquitur in overruling an exception of no cause of action. From these facts the court inferred negligence on the part of defendants. As in Boudreaux, supra, there was no question in McCann that the instrumentalities which caused the injury, i.e., the surgeons, nurses, equipment, etc., were under the control of the defendants, and that the injury was one which ordinarily would not have occurred in the absence of negligence. In both Boudreaux and McCann, res ipsa loquitur was applied to infer negligence by the defendant, where the cause of the injury had not been proved by a preponderance of direct evidence. In McCann, our Supreme Court states with citation of authority that “Res ipsa loquitur is, of course, irrelevant when a body of direct evidence is available explaining the activity leading to the injury.” See also Sonnier v. Dupin, 416 So.2d 1371 (La.App.3d Cir.1982), writ denied, 420 So.2d 984 (La.1982).

In the present ease, unlike Bou-dreaux and McCann, the direct evidence shows the cause of the damage, i.e., that plaintiff’s net snagged on debris which someone negligently left on the floor of the Gulf. The question is whose debris was it? Res ipsa loquitur cannot be applied to answer this question. The plaintiff must prove it by a preponderance of the evidence.

For the reasons stated above, we conclude the doctrine of res ipsa loquitur is not applicable.

PROOF IT WAS TEXAS GULF’S DEBRIS

The next issue is whether plaintiff proved by a preponderance of the evidence that the debris was left on the floor of the Gulf by Texas Gulf. There is no direct evidence. The evidence is only circumstantial. Thus plaintiffs burden was to exclude with a fair amount of certainty any reasonable hypothesis, but that it was Texas Gulfs debris. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971).

Plaintiff relies principally on the close proximity of the Texas Gulf wells and the absence of any other well closer than 5,990 feet, almost one nautical mile. Without commenting on the correctness of the motion for summary judgment granted in favor of Kerr-McGee, we note that many of the same reasons presented by Kerr-McGee in support of its motion are equally applicable to the conclusion that the plaintiff has not proved Texas Gulfs liability by a preponderance of the evidence. The only real distinctions between the wells drilled by Kerr-McGee and Texas Gulf are their location and the length of time which has passed since abandonment. Although Texas Gulf appears to be the only party entitled to conduct drilling operations in East Cameron Block 129, that area is not subject to Texas Gulfs exclusive control. Other parties may have crossed the East Cameron Block 129 carrying equipment necessary for the placement or removal of an oil rig. Debris could have been negligently or intentionally disposed of in East Cameron Block 129 by any party not necessarily a lessee of that block. Considering the evidence presented at trial, this explanation is as likely as the one presented by plaintiff that Texas Gulf is responsible for the debris.

Apparently, the trial judge also found the proof insufficient to show it was Texas Gulfs debris. He therefore applied a res ipsa presumption and made the following statements:

“When the plaintiff is in a situation where he is hampered by proving his case because of exclusivity or proximity between the defendant and the means of proof, then it switches the burden of proof, once the plaintiff reaches a certain level or made out a prima facie case . The defendant is in a much better position to find out unquestionably whether or not defendant was the perpetrator guilty of leaving this debris. It could be discovered several ways. The best thing to do would be to hire a diver and find out exactly where it came from, and then they could find the real culprit. The shrimper who finds himself victimized by this debris is not in a position to do so. So once he proves that it’s oil field equipment and it has some reasonable connection with a local operation, here just a few hundred feet, I think the burden of proof has shifted. Then the question is has the defendant carried its burden.”

We cannot agree with this reasoning by the trial judge. As previously stated, Texas Gulf did not have exclusive control over the area in which the debris was found. Plaintiff could have just as easily hired a diver and attempted to identify the debris on which the net hung. In fact, a portion of the debris was at one time in the possession of Jim Watkins, manager of the boat operations, but was inexplicably lost. Under the circumstances, we can only conclude that plaintiff has failed to prove that Texas Gulf is the party responsible for leaving the debris on the floor of the Gulf.

Accordingly, the judgment in favor of plaintiff Hat III, Inc., d/b/a S/B Silver Fox, and against Texas Gulf, Inc. is reversed, and judgment is hereby rendered in favor of Texas Gulf, Inc., dismissing plaintiffs claim. All costs in the trial and appellate courts are assessed to plaintiff-appel-lee.

REVERSED AND RENDERED.


text:
    Edgar JEAN, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee.
    No. 84-7.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Reuvan Rougeau, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Stephen A. Berniard, Jr., Lake Charles, for defendant-appellee.
    Before FORET, CUTRER and CULPEP-PER, JJ.

       Culpepper, Judge, ad hoc.

   CUTRER, Judge.

The plaintiff, Edgar Jean, instituted suit against his underinsured motorist carrier, United States Fidelity & Guaranty Company, contending that he was involved in a collision with a “hit and run” vehicle on Interstate Highway 10 in Calcasieu Parish on the evening of July 4/5, 1982. The trial court rendered judgment against the plaintiff, finding that the plaintiff had failed to meet his burden of proving by a preponderance of the evidence that his automobile came into physical contact with a hit and run automobile. From that judgment plaintiff perfects this appeal.

The sole issue on appeal is whether the trial court, committed manifest error in finding that plaintiff failed to meet his burden of proving that there was physical contact between his vehicle and that of a hit and run automobile.

The appellate review of facts is limited to determining whether the trial court’s findings of fact and evaluations of credibility of the witnesses were manifestly erroneous. Ebey v. Dolphin Const. Co., 435 So.2d 1154 (La.App. 3rd Cir.1983); Arceneaux v. Domingue, 365 So.2d 1330 (La..1978). Our review of the record reveals no such error.

The uncontested findings of the trial court were that, between the hours of 12:00 P.M. and 1:00 A.M., either on Saturday night, July 4, 1982, or Sunday morning, July 5, 1982, plaintiff was traveling west in the north or outermost lane on Interstate Highway 10 toward Lake Charles, Louisiana.

Plaintiff was traveling at approximately 55 miles per hour, which was the speed limit, and was about one mile west of Iowa, Louisiana, when he observed, through his rearview mirror, traffic traveling west and overtaking him from behind. The overtaking car, traveling in the southern innermost lane of Interstate Highway 10, approached and pulled alongside of plaintiff’s car and then changed lanes from the innermost to the outermost lane while near the front of plaintiffs automobile. After the overtaking car changed lanes, plaintiff ran off the interstate to the northern side of the highway striking a road sign with the front portion of his car, and then hitting a ditch on the northern side of the interstate. Plaintiff could not determine the identity of either the operator or the owner of the automobile which caused the accident. Plaintiff reported the accident within 24 hours to a state police officer.

It is also uncontested that there existed a contract of insurance between plaintiff and the defendant, in which defendant provided the plaintiff with protection against uninsured motorists. The uninsured motorist provision included coverage for bodily injury caused to the plaintiff by a hit and run automobile if he showed that there was physical contact between the hit and run automobile and the automobile which plaintiff occupied; that the identity of the operator or the owner of the hit and run automobile cannot be determined, and that the plaintiff reported the accident within 24 hours to a police officer.

With the exception of proving that there was physical contact between plaintiff’s vehicle and the hit and run automobile, the trial judge found that the plaintiff met all other requirements of the “hit and run automobile” provision of the policy as follows:

“There is no question but the hit and run automobile caused bodily injury to Jean arising out of an automobile which the insured was occupying at the time of the accident; that Mr. Jean cannot determine the identity of either the owner or the operator of such hit and run vehicle; and that Mr. Jean reported the accident within 24 hours to a police officer.”

The trial court found that plaintiff did not meet his burden of proving by a preponderance of the evidence that his automobile came into physical contact with a hit and run automobile.

The plaintiff only produced himself as a witness and State Trooper Shields, for the plaintiff, stated that he observed no scratches or marks on the left side of plaintiff’s vehicle which indicated to him that it had come into contact with another automobile. The trooper further stated that he was of the opinion that the damage that he observed had come as the result of the automobile striking a sign post and going into the ditch on the side of the road.

The defendant presented the following evidence as summarized in the trial court’s opinion:

“The defendant summoned Mr. Jerry Jessup, an appraiser, who had appraised the automobile damages to the Jean vehicle for the defendant insurer, and a Mr. Leward Lavoilette, the body shop manager of W.F. Wilson Company which had repaired the damages to the Jean vehicle as a result of the accident in question. Both Mr. Jessup and Mr. Jean testified that they did not recall seeing any damages to the left side or front of the Jean vehicle such as scratches, dents or other marks which indicated to them that the Jean vehicle had come into contact with another vehicle at the left front portion of the vehicle. Mr. Jessup had taken black and white photographs of the vehicle which were introduced into evidence

Based on this evidence, the trial court found as follows:

“The Court has observed this vehicle through its pictures which were taken July 9th, a matter of only five days after the accident. From the pictures as well as the testimony of Trooper Shields, Mr. Jessup and Mr. Lavoilette, the Court does not find that Jean has met his burden of proving by a preponderance of the evidence that his automobile came into physical contact with a hit and run automobile. The pictures, and particularly the picture to which the Court has referred, amply demonstrates that both Trooper Shields and Mr. Jessup and Mr. Lavoilette testified to that there was no type of dent or scratch to the immediate front left portion of the automobile or to the left fender of the Jean automobile. The photographs show to the Court just as were testified to by the Officer and the expert appraiser and the expert car repairman, that the damages to the hood and left front fender and left front bumper of the automobile were apparently caused by the car making contact with some object on the left front portion of the car.”

From our review of the record of this case we agree with the trial court that the plaintiff failed to prove that his car was actually hit by the alleged hit and run car.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Edgar Jean.

AFFIRMED.


text:
    Ronald J. KIDDER, Plaintiff-Appellant, v. POWER RIG DRILLING COMPANY, INC., Defendant-Appellee.
    No. 84-8.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Leonard J. Cline, Metairie, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & McElligott, John G. Swift, Lafayette, for defendant-ap-pellee.
    Before FORET, CUTRER, JJ., and CUL-PEPPER, J. Pro Tern.
   CULPEPPER, Judge Pro Tem.

This is a worker’s compensation case that was dismissed by the trial court on an exception of prematurity. Plaintiff, Ronald J. Kidder, now appeals the judgment of dismissal with prejudice in favor of defendant, Power Rig Drilling Company, Inc.

Essentially, Kidder urges three errors:

1) The exception of prematurity was procedurally defective in that it was not filed before the answer, and the trial court erred in not dismissing the exception.
2) The suit was not premature because there had been persistent arbitrary or capricious refusal by the defendant to pay medical expenses. Therefore, the court erred in dismissing the suit.
3) The court erred in dismissing the suit with prejudice.

The first issue is whether the exception should have been dismissed since it was not filed before the answer. Although Article 928 of the Code of Civil Procedure states that declinatory exceptions and dilatory exceptions shall be pleaded prior to answer or judgment by default, we believe the worker’s compensation statutes create an exception to this rule.

Ordinarily, a defendant must file his answer within fifteen days after service of citation upon him, or if an exception is filed prior to answer, within ten days of the overruling of the exception or referral to the merits, or service of amended petition. LSA-C.C.P. 1001. However in worker’s compensation cases the answer must be filed within ten days after service of the petition. LSA-R.S. 23:1315. The filing of exceptions to a worker’s compensation petition by the defendant does not relieve him of the requirement to file an answer within ten days after service of the plaintiff’s petition. Dolloile v. Landry, 234 So.2d 492 (La.App. 4th Cir.1970); Romero v. State Farm Fire & Casualty Company, 452 So.2d 382 (La.App. 3d Cir.1984). Here, Power Rig Drilling filed the exception and answer at the same time. Since they had to file an answer within ten days after service of the petition, filing of a dilatory exception at the same time as the answer was proper.

The next issue is whether the suit was premature. Kidder argues it was not since there had been a failure of the employer to pay a medical bill. The test for prematurity in a suit for compensation benefits is not whether there are unpaid medical bills but whether the injured employee has been furnished proper medical attention. Andrus v. Employers Insurance of Wausau, 348 So.2d 1337 (La.App. 3d Cir. 1977). Kidder does not allege nor does the record show that he has not been furnished proper medical attention.

The third issue is whether the court erred in dismissing the suit with prejudice. Defendant-appellee, Power Rig Drilling, concedes that where a suit has been dismissed on an exception of prematurity, the dismissal is without prejudice to the plaintiff’s right to bring the action anew when matured. We agree that the judgment on the exception should be amended to dismiss plaintiff’s suit without prejudice. LSA-C.C.P. art. 933, comment (c). We also agree with Power Rig Drilling that Kidder may not amend his pleadings. Where a suit has been dismissed on an exception of prematurity, the deficiency may not be cured by amended pleadings. Bank of St. Charles and Trust Company v. Ransome, 343 So.2d 1206, (La.App. 4th Cir.1977); Duncan v. Duncan, 359 So.2d 1310 (La.App. 1st Cir.1978).

The judgment of the trial court is amended to dismiss plaintiff’s suit without prejudice. Otherwise, it is affirmed. Costs are assessed to the plaintiff-appellant.

AFFIRMED, AS AMENDED.


author: SCHOTT, Judge. BARRY, Judge,

text:
    Arnold POINTS v. James A. LAIRD and State Farm Insurance Company.
    No. CA 3092.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1984.
    Henry E. Yoes, III Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, for plaintiff-appellee.
    Ford T. Hardy, Jr., New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and CIACCIO, JJ.
   SCHOTT, Judge.

Ex proprio motu we questioned jurisdiction over this appeal from the First City Court of New Orleans. After a motion for a new trial was filed, the court signed an amended judgment, and the clerk mailed a notice thereof to counsel of record on June 1, 1984. This appeal was taken on June 18, 1984.

LSA-C.C.P. Art. 5003 A provides that an appeal from a judgment of a city court “may be taken only within ten days from the date of the judgment or from service of notice of judgment, when such notice is necessary.” In this case notice was necessary.

Art. 5003 stands in sharp contrast to Art. 1974 which counts the delay for applying for a new trial from “the day after the clerk has mailed, or the sheriff has served, the notice of judgment...”; to Art. 2087 which counts the delay for taking a devolu-tive appeal from a district court judgment from “the date of the mailing of notice” of the court’s refusal to grant a new trial; and to Art. 2123 which counts the delay for taking a suspensive appeal with the same language as found in Art. 2087.

Thus, in order to count the delay provided by Art. 5003 for the present appeal we do not start from the date of the mailing of the judgment, but instead from the date of the service of the notice which we interpret to mean the date when the notice was received by counsel for appellant.

Nothing in the record discloses when this was done. In response to our order to show cause why the appeal should not be dismissed, appellant’s counsel states that his own file does not reflect the date he received the notice. If counsel received the notice on June 6, 1984 his June 18 filing was timely. We cannot presume that something mailed on June 1 was necessarily delivered before June 6.

Appeals are favored in the law and any reasonable doubt must be resolved in favor of saving, rather than dismissing, an appeal. In the present case our interpretation of Art. 5003 is consistent with this principle. We deny our motion.

BARRY, J., dissents, assigning reasons.

BARRY, Judge,

dissenting:

I interpret the Art. 5003 date of “service” to be when notice is mailed.

The majority effectively wipes out Art. 5003 by allowing counsel to state (perhaps guess) when notice was received. More often than not, as here, nothing in the record will show when notice was received. Hence, there is no limit on appeal time contra to Art. 5003.

If service means receipt, then the legislature would have required certified mail with return receipts. No presumption of mail delivery time is necessary if the clerk’s record of mailing suffices.

I dissent.


author: DOMENGEAUX, Judge.

text:
    Jerry HARKINS, d/b/a Harkins Construction, Plaintiff-Appellee, v. HOWARD LUMBER COMPANY, INC., Defendant-Third Party Plaintiff-Appellant, Port Barre Lumber Industries, Inc., Third Party Defendant-Appellant.
    No. 83-1086.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1984.

      Guglielmo & Lopez, James C. Lopez, Opelousas, Gahagan & Gahagan, Marvin F. Gahagan, Natchitoches, for defendant-appellant.
    Kelly & Salim, Michael I. Murphy, Natch-itoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

Plaintiff brought this suit against Howard Lumber Company, Inc. seeking to recover damages which he suffered as a result of having purchased allegedly defective redwood siding. The defendant answered the suit and brought in as a third party defendant, Port Barre Lumber Industries, Inc., from whom the siding had been originally purchased. Port Barre filed an answer admitting that it did sell the redwood siding but denied that it had manufactured the lumber. After trial of the matter the lower court rendered judgment in favor of the plaintiff and against the defendant, awarding him the following damages: (A) Total labor cost for putting new siding and removing old siding— $2,117.24; (B) Cost of interim financing— $5,024.55; (C) Original purchase price of redwood siding — $2,611.39; (D) Cost of replacement lumber from Rodney McNeal and Sons — $4,773.06; (E) Cost of removing old siding — $430.00; (F) Insulation damage due to removal of old siding — $201.60. The trial court also rendered judgment in favor of the defendant on its third party demand against Port Barre Lumber Industries, Inc.

Howard and Port Barre have perfected appeals claiming that the trial court committed the following reversible errors: (1) In finding that the redwood siding was defective; and (2) In awarding damages in excess of the original purchase price. Port Barre also claims the trial court was in error in granting Howard its third party demand.

Following the lodging of the appeals, Howard and Port Barre filed exceptions of prescription in this Court urging that the instant action was one in redhibition and had prescribed. The appellants claim that the siding was purchased in March and April of 1979, plaintiff discovered the defects in July of 1979, and the instant suit was not filed until February 24, 1981. It is thus the appellants’ theory that plaintiffs claim had prescribed.

It is clear that redhibitory actions prescribe one year after the sale if the seller is in good faith. La.C.C. Art. 2534. Redhibitory actions prescribe one year after the discovery of the vice if the seller is in bad faith. La.C.C. Art. 2546. Under these articles suit must be brought within one year, at the latest, from the date of the discovery of the defects. Tidewater, Inc. v. Baldwin Lima Hamilton Corporation, 410 So.2d 355 (La.App. 4th Cir.1982).

Notwithstanding the above articles, we nevertheless find appellants’ claim of prescription to be invalid because we do not view this case as one of a “defective” product. It is rather a situation where the seller promised to supply a product of a certain quality but instead delivered a product of a lesser quality. The testimony adduced at trial and the purchase invoice shows that the siding purchased was to be a “clear grade” of redwood siding. “Clear grade” is a term used by the industry to rank siding as to its quality, i.e., streaking, knot holes, etc. The record firmly establishes that the siding delivered to the plaintiff was not of a clear grade but was rather of an inferior grade; therefore, the contract has been breached. The plaintiff has a cause of action to rescind the contract based upon this error regardless of any cause of action sounding in redhibition because of the “defective” nature of the product. Accordingly plaintiff’s cause of action is governed by a ten year prescriptive period. La.C.C. Art. 3544.

Applicable to the situation at hand is La.C.C. Art. 1931. That Article provides:

“A contract may be violated, either actively by doing something inconsistent with the obligation it has proposed or passively by not doing what was covenanted to be done, or not doing it at the time, or in the manner stipulated or implied from the nature of the contract.”

It can be readily seen from the above Article that a contract may impose upon the parties thereto obligations to do. Further:

“Classifications of contracts have occasioned the courts some difficulty where the contract includes aspects of the obligation both to do and to give. Where they are inseparable, generally one of the obligations must be determined as fundamental and the rules thereunder will control. 7 S. Litvinoff, La. Civil Law Treatise: Obligations Book 2, Section 158 at page 291. However, where the object provided is not that which is contracted for, redhibition does not apply.
In Victory Oil Company, Inc. v. Perret, 188 So.2d 360 (La.App. 4th Cir.1966), writ refused, the court noted succinctly that an action in redhibition is based upon a vice or defect in the thing sold. LSA-C.C. Article 2520. There the object contracted for was a specific type of diesel oil, but the oil delivered was a different type unsuitable for use in the buyer’s trucks. The court determined that an action based on the delivery and failure of the wrong commodity was not an action in redhibition, but one for breach of contract and the ten-year prescriptive period applies. In Vico Concrete Company, Inc. v. Antley, 283 So.2d 830 (La.App. 2nd Cir.1973), the court cited Victory and distinguished its own facts, which involved contaminated concrete, from the Victory facts involving a failure to provide the specific product under the contract. See also PPG Industries v. Industrial Laminates, 664 F.2d 1332 (5th Cir.1982)” (Footnote omitted.)

The People’s Water Service Company of Louisiana v. Menge Pump & Machinery Company, Inc., et al., 452 So.2d 752 (La. App. 5th Cir.1984), writ denied, 456 So.2d 1391 (La.1984).

In the case at hand as well as in Victory and People’s Water Service Company, the defendant breached his contract by failing to provide the product contracted for. He breached his obligation to do, that being his obligation to deliver siding of a specified quality by providing the plaintiff with siding of an inferior nature. The applicable prescriptive period for such a breach is ten years under La.C.C. Art. 3544 and thus plaintiffs claim is timely. Further the breach of this obligation to do renders the seller liable for damages under La.C.C. Art. 1926 and 1928. Those Articles provide:

“Art. 1926.
On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.”
“Art. 1928.
The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the cause will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case require it.”

It is clear from Article 1928 that the seller should be liable to the extent necessary to restore things “to the situation in which they were before the act complained of was done.” The damages due are, however, subject to certain codal restrictions, the amount of the loss sustained and the profit of which the party has been deprived. In general then, the measure of damages for breach of a contract is the sum that will place plaintiff in the same position as if the obligation has been fulfilled. Harelson v. Parish of East Baton Rouge, 272 So.2d 382 (La.App. 1st Cir. 1972). The amount of damages must, however, be determined in relation to the contract and the circumstances which surround it. Jolley Elevator Company v. Schwegmann Brothers Giant Supermarkets, 230 So.2d 640 (La.App. 4th Cir.1970).

Under the above stated guidelines and having found that plaintiff has a legal right to recover, we hold damages should be fixed on the following basis: (1) Original purchase price of redwood siding from Howard Lumber Company, Inc.—$2,611.39; (2) Labor incurred in removing the old siding—$430.00; (3) Insulation damage suffered by removal of the old siding— $470.40; (4) Cost of interim financing incurred due to inability to sell the home— $2,058.84.

As to item of damages No. 4 we have reduced the trial court’s figure from $5,024.55 to the above stated figure because we feel the trial court’s award was excessive. The amount awarded by the trial court represents the interest paid by Harkins on his interim finance loan for a period from July 29, 1980, to February 18, 1981, a total of 205 days.

Although Harkins is entitled to the interest which he was required to pay on his interim finance loan, we feel he is entitled only to the interest for such period as the record reflects he was actually delayed by Howard’s breach of contract. In this connection the record shows that the old siding was removed from the house on July 28, 1980. Harkins testified that prior to this he had negotiated with Howard without success for a period from 4 to 6 weeks. When the negotiations fell through, the siding was removed. He then testified that he immediately ordered siding from McNeal, but it was not received before 4 to 5 weeks. Harkins himself testified that, although the siding was not completely installed on the house until the first week in January, the siding could have been completely installed on the house in one week’s time. The record reflects the reason for the delay in installing the new siding, and that being because, at the same time Har-kins was constructing the home under consideration here, he had 10 or 11 other homes also under construction. The trial court allowed plaintiff interim financing for the period from the day after the siding was removed from the house to the date when the house was fully completed, a period of 205 days. As aforesaid we find this award to be excessive as the record makes clear that Harkins was not delayed for a period of 205 days. In our view, and viewing Harkins’ own testimony in its most favorable light, Howard’s breach of contract cannot be said to have delayed plaintiff longer than a period of 12 weeks, i.e., negotiations—6 weeks; order and delivery of new siding—5 weeks; and installation of new siding—1 week. These collective periods amount to a total of 84 days. The record reflects that Harkins incurred interest on the interim financing for this house at a rate of $24.51 per day. Accordingly we shall reduce the trial court’s award for interest on the interim financing from $5,024.55 to the sum of $2,058.84.

Further, the trial court awarded the plaintiff additional damages including the purchase price and installation cost of a new and higher grade of siding. We find those awards to be improper. As pointed out earlier the damage awarded for a breach of contract case should be only the amount that would place the plaintiff in the same position as if no breach had occurred. In this case before plaintiff bought the inferior siding he had a residential home with no siding on it. From our above award he has been restored to that status and has recovered any damages which were caused by that breach. To award the cost of the new siding and its installation cost would be to bestow that benefit upon him gratuitously. For if we were to affirm the award, the result would be that before the breach occurred the plaintiff possessed a home with no siding—after the breach he would have a home with siding on it with the improvements having cost him nothing. We therefore limit plaintiff’s recovery to the above stated amounts. See Caubarreaux v. Hines, 442 So.2d 898 (La.App. 3rd Cir.1983), writ denied, 446 So.2d 1225 (La. 1984).

The only other item of damage which plaintiff might be entitled to recover, other than those specified above, would be the cost of installing the original siding. Our review of the record reflects no evidence on the specific dollar amount expended by plaintiff for this installation. The only evidence in regard thereto is the testimony of plaintiff and Jerry Doyle that it took approximately one week to put up the original siding. As to this item of damage, the record does not reflect with sufficient specificity the damages suffered in this regard, thus, plaintiff has failed in his burden of proof and must be denied damages for this item.

Lastly, we must reverse the trial court’s judgment insofar as it granted Howard’s third party demand against Port Barre. The evidence in the record is to the effect that Port Barre delivered to Howard clear redwood siding with 10 to 15 percent carmel developing. The expert testimony in the record supports our finding that the redwood siding ordered, shipped, and invoiced correctly describes, according to industry grading standards, the actual redwood delivered to Howard. If Howard represented to the plaintiff that the siding was clear redwood siding, when Port Barre identified it as clear with 10 to 15 percent carmel developing, Port Barre cannot be held liable for a misrepresentation as to quality made by Howard. For this reason we shall reverse the trial court’s judgment in favor of Howard and against Port Barre and dismiss Howard’s third party demand.

For the above and foregoing reasons the judgment of the trial court is affirmed in part and reversed in part and it is hereby Ordered, Adjudged and Decreed that there be judgment herein in favor of the plaintiff, Jerry Harkins d/b/a Harkins Construction, and against the defendant, Howard Lumber Company, Inc., in the sum of $5,570.70, with legal interest thereon from date of judicial demand until paid. The amount awarded is broken down as follows:

(1) Original purchase price of redwood siding from Howard Lumber Company— $2,611.39.

(2) Labor incurred in removing the old siding — $430.00.

(3) Insulation damage suffered by removal of the old siding — $470.40.

(4) Cost of interim financing incurred due to inability to sell the home — $2,058.84.

It is further Ordered, Adjudged and Decreed that the judgment of the trial court is reversed insofar as it granted judgment in favor of third party plaintiff, Howard Lumber Company, Inc., against the third party defendant, Port Barre Lumber Industries, Inc., and said third party claim is hereby dismissed.

It is further Ordered, Adjudged and Decreed that the exceptions of prescription filed in this Court on behalf of Howard Lumber Company, Inc. and Port Barre Lumber Industries, Inc. are expressly overruled.

All costs at trial and on appeal are assessed against appellant, Howard Lumber Company, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Ralph Day, who was tendered and accepted by the Court as an expert witness for Port Barre Lumber Industries testified that the two top grades of redwood siding are “Clear” and “Clear All Heart”. This conforms to the brochure tendered by the defendants. This Exhibit contains the following language:
      "Two grades of redwood are usually used for siding. Clear All Heart is the finest redwood grade, ... and the face is free of knots. Clear grade redwood is similar to Clear All Heart except that the pieces may contain contrasting streaks of cream colored sapwood.”
      According to this, the only difference between Clear All Heart and Clear Redwood is that Clear includes varying amounts of sapwood but, otherwise is virtually the same as Clear All Heart.
      The invoice from Howard Lumber Company shows that the redwood siding that was supposed to have been furnished the plaintiff was a clear grade. Mr. Day testified that the material the plaintiff purchased was a carmel grade or a B grade. It is apparent from the testimony and evidence presented that the material purchased by the plaintiff does not conform to the industries’ specifications for clear redwood siding.

      . Article 3499 replaces former Article 3544 of the Louisiana Civil Code of 1870. It does not change the law. See Acts 1983, No. 173, effective January 1, 1984, and official comments under the new Article 3499.


author: ROBERTSON, Justice,

text:
    Navis Jane MAY v. STATE of Mississippi.
    No. 54455.
    Supreme Court of Mississippi.
    Nov. 7, 1984.
    Rehearing Denied Jan. 9, 1985.

      F. Kent Stribling, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

Navis Jane May shot and killed her husband on February 27, 1982. In due course she was indicted for murder. On October 18, 1982, the case was called for trial in the Circuit Court of Rankin County, Mississippi, at the conclusion of which the jury found May guilty of the lesser-included offense of manslaughter, Miss. Code Ann. § 97-3-31 (1972). The Circuit Court has sentenced May to a term of eight years.

From this conviction and sentence, May appeals. She presents a history of abuse and mistreatment by her husband and argues that, as a matter of law, her actions were taken in necessary self-defense and thus constitute justifiable homicide.

May’s case evokes sympathy. We have studied it carefully, beyond the errors formally assigned. For the reasons below, we affirm.

II.

John D. and Navis Jane May were married in October of 1960. At the time of the incident in question, John was 70 years old. Navis was 52 and an arthritic. They had lived in a trailer home on Williams Road in Florence, Mississippi for most of the past five years.

On Saturday evening, February 27, 1982, Navis Jane May shot and killed her husband at their home. Of that there is no dispute. The circumstances under which the killing occurred, however, were hotly disputed at trial.

Navis’ described a battering husband who had threatened to kill her in the past and had repeated those threats on the night in question; a man who had been drinking that evening and who frequently drank a fifth of whiskey a day; an account of a struggle, a chase, more threats, a fear of being severely beaten with a walking stick, and a shooting after warning shots had failed to stop her angry husband’s advance.

The evidence offered by Rankin County Deputy Sheriff Ernest Burnham, however, revealed a different scene. Deputy Burn-ham testified that he received a call at the Sheriff’s Office at approximately 8:00 p.m., February 27, 1982. The caller identified herself as Mrs. J.D. May and said “I’ve just killed my husband”. Deputy Burnham and Officer Kenneth Dickerson promptly went to the May residence where they found John D. May lying on the patio in front of the home. May was dead.

Navis May told Deputy Burnham conflicting versions of what had happened. First she described a struggle and said that she had accidently shot Mr. May.

Subsequenlty, Navis May told Deputy Burnham that there had been an argument and a scuffle inside after which John May said he was “gonna get away from there”. She told him not to leave and then she went back into the house and got the gun, came back out and shortly thereafter the shooting occurred.

At trial Navis Jane May described the sequence of events in considerable detail. Suffice it to say that her trial testimony strongly suggests that she acted in self-defense. That version would have had her firing the shot from behind a deep freeze as her angry drunken husband approached. Deputy Burnham, who had carefully examined the scene of the killing, explained that had Navis May been standing there, she would have been in a muddy area, for it had been raining all day. Deputy Burnham testified that there were no footprints at the end of the patio by the deep freeze. Deputy Burnham also explained that the angle at which the fatal bullet entered John D. May strongly suggested that Navis Jane May could not have fired the fatal shot from the position she contended. Finally, Deputy Burnham testified that when he arrived at the May home Navis Jane May appeared intoxicated.

At trial Navis Jane May testified that John D. May was advancing upon her with a walking stick. No walking stick was found in the hands of the victim, but Navis explained that she had pulled the stick and, because of her arthritis, used it to walk to a gate which had to be opened for the officers to enter. Officer Kenneth Dickerson testified that when he and Burnham arrived they found a pair of bedroom slippers clutched in the two hands of the victim, suggesting, of course, that he could not have also had in his hands a walking stick.

III.

A.

Navis Jane May’s first assignment of error — one which is argued with substantially more vigor than the others — is

“The verdict of the jury is contrary to the overwhelming weight of the evidence and the Court erred in failing to direct a verdict of not guilty at the conclusion of all the testimony in the case.”

Fairly encompassed in this assignment of error is an appeal from the trial court’s denial of May’s request for a peremptory instruction at the conclusion of all of the evidence as well as the trial court’s denial of her alternative post-trial motions for judgment of acquittal notwithstanding the verdict (j.n.o.v.) or for a new trial. These motions are separate and distinct and perform different offices within our criminal procedural system, although as in the appeal May presents the distinction is frequently blurred.

The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the evidence supporting the verdict of guilty. It is in effect a renewal of the defendant’s request for a peremptory instruction made at the close of all the evidence. It asks the court to hold, as a matter of law, that the verdict may not stand and that the defendant must be finally discharged.

Where a defendant has moved for j.n.o.v., the trial court must consider all of the evidence — not just the evidence which supports the State’s case — in the light most favorable to the State. The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973). If the facts and inferences so considered point in favor of the defendant with sufficient force' that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion — that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions — the motion should be denied.

In other words, once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

The motion for a new trial is a different animal. While the motion for judgment of acquittal notwithstanding the verdict presents to the trial court a pure question of law, the motion for a new trial is addressed to the trial court’s sound discretion. Neal v. State, 451 So.2d 743, 760 (Miss.1984). When he moves for a new trial, a defendant in a criminal case necessarily invokes Eule 5.16 of our Uniform Criminal Eules of Circuit Court Practice which in pertinent part provides:

The court on written notice of the defendant may grant a new trial on any of the following grounds:
(1) if required in the interest of justice;
(2) if the verdict is contrary to law or
the weight of the evidence; ....

As distinguished from the j.n.o.v. motion, here the defendant is not seeking final discharge. He is asking that the jury’s guilty verdict be vacated on grounds related to the weight of the evidence, not its sufficiency, and may be retried consistent with the double jeopardy clause. Tibbs v. Florida, 457 U.S. 31, 39, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652, 659-60 (1982).

That, as a matter of law, the motion for judgment of acquittal notwithstanding the verdict must be overruled and denied in no way affects and little informs the trial judge regarding his disposition of the motion for a new trial. Cases are hardly unfamiliar wherein the court holds that the evidence is sufficient so that one party or the other was not entitled to judgment notwithstanding the verdict but, nevertheless, that a new trial in the interest of justice should be ordered. Hux v. State, 234 So.2d 50, 51 (Miss.1970); Quarles v. State, 199 So.2d 58, 61 (Miss.1967); Mister v. State, 190 So.2d 869, 871 (Miss.1966); Yelverton v. State, 191 So.2d 393, 394 (Miss.1966); Heflin v. State, 178 So. 594 (Miss.1938); Conway v. State, 177 Miss. 461, 469, 171 So. 16, 17 (1936).

A greater quantum of evidence favoring the State is necessary for the State to withstand a motion for a new trial, as distinguished from a motion for j.n.o.v. Under our established case law, the trial judge should set aside a jury’s verdict only when, in the exercise of his sound discretion, he is convinced that the verdict is contrary to the substantial weight of the evidence. Pearson v. State, 428 So.2d at 1364.

As we said in Groseclose v. State, 440 So.2d 297 (Miss.1983)

We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice, [citation omitted] Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system. — 440 So.2d at 300.

B.

The heart of May’s attack on the jury’s verdict is the familiar rule that where the defendant or the defendant’s witnesses are the only eye witnesses to a homicide, their version of what happened, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by credible evidence, physical facts or facts of common knowledge. Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933); Westbrook v. State, 202 Miss. 426, 432, 32 So.2d 251, 252 (1947). That rule does indeed make it mandatory for the court and jury to accept the testimony of the defendant who testifies that he is acting in self-defense where his testimony is reasonable and where there is no evidence to contradict his version of the homicide. Johnson v. State, 346 So.2d 927, 929 (Miss.1977). Johnson goes on to provide, however, that

“If there are circumstances shown in the evidence which materially contradict the defendant’s version of self-defense, the jury is not required to accept his version, but may consider his version of self-defense along with the conflicting evidence in determining the guilt or innocence of the defendant.” 346 So.2d at 929.

Other authorities to like effect include Smith v. State, 394 So.2d 1367, 1369-70 (Miss.1981); Sartain v. State, 311 So.2d 343, 344-345 (Miss.1975); Dixon v. State, 306 So.2d 302, 304 (Miss.1975).

That a defendant’s voluntary statement made to law enforcement officers shortly after the incident may conflict in substantial particulars with his or her testimony at trial may be a significant factor in taking a case out of the Weathersby rule. Dixon v. State, 306 So.2d 302, 304 (Miss. 1975); McElwee v. State, 255 So.2d 669, 671 (Miss.1971); Fortner v. State, 56 So.2d 17, 20-21 (Miss.1952).

Without repeating it here, the testimony of Deputy Sheriff Burnham regarding the voluntary statements made to him by Navis Jane May, the testimony of Deputy Burnham regarding the physical facts which contradicted May’s version of what happened, added to the testimony of Officer Dickerson regarding the slippers found in the hands of the deceased are more than sufficient to bring this case within Johnson and to exclude it from Weathersby. The Fortner case, cited above, on somewhat comparable facts, is to like effect.

Suffice it to say that, when the applicable standards as described above are applied to the evidence in this case, affirmance on this assignment of error is required. The trial judge correctly denied May’s request for a peremptory instruction as well as her subsequent motion for judgment of acquittal notwithstanding the verdict of the jury. Furthermore, on this record the trial judge acted well within his discretion when he denied May’s alternative motion for a new trial.

IV.

May’s Assignments of Error Nos. 2 and 3 arise from separate instances of arguably improper conduct by the district attorney. Twice the prosecutor injected into the trial unrelated and potentially prejudicial matters. Each time the trial judge sustained defense objections but May argues here that the trial judge should have gone further and granted a mistrial.

In the first of these instances, the district attorney asked Navis Jane May if she had shot into her brother’s trailer after an argument. The State obviously was attempting to show that the Defendant was a person of violent propensities. The question, however, was never answered as the trial judge promptly sustained the defense objection and instructed the jury to disregard any inference in the question. The defense motion for a mistrial was denied.

In the second instance, the district attorney asked a defense witness if he knew where the Defendant was “living with Mr. Cooper now?” The inference, of course, was that the Defendant was engaged in an illicit relationship with a Mr. Cooper. Here again the defense objected promptly, before any answer could be given. The trial judge sustained the objection and again admonished the jury to disregard the question.

Without doubt, each of the questions at issue was improper. Neither question, however, was answered. The defense objection was made and sustained — and properly so — before an answer could be given. In each instance the defense further moved for a mistrial. This motion in each instance was denied. The trial judge timely explained that the jury was to base their verdict solely upon evidence in the case and that the questions asked by lawyers were not evidence — only the answers given by witnesses. Accordingly, there was no evidence on the two points at issue which the jury could consider. The trial judge further admonished the jury that they should disregard any inference which might be drawn from the question and • that they should not speculate regarding any answer that may have been given had the question been allowed.

May assigns as error the failure of the trial judge to grant a mistrial. We do indeed have several cases wherein a reversal has been required where the prosecuting attorney deliberately interjected numerous remarks the probable effect of which was incitement of the jury to prejudice against the defendant: Howell v. State, 411 So.2d 772, 773-77 (Miss.1982); Forrest v. State, 335 So.2d 900, 903 (Miss.1976); McDonald v. State, 285 So.2d 177, 179-80 (Miss.1973); and Morgan v. State, 50 So.2d 375, 378 (Miss.1951).

In the case at bar the two questions were improper and the objections were correctly sustained. There is nothing in the record, however, to show any bad faith on the part of the prosecuting attorney or any deliberate attempt to prejudice the jury against Defendant. Absent unusual circumstances, where an objection is sustained and the jury is admonished to disregard the question, we will find no reversible error. Herron v. State, 287 So.2d 759, 766 (Miss.1974) (cases cited therein); see also Evans v. State, 422 So.2d 737, 744 (Miss.1982); Witlock v. State, 419 So.2d 200, 202 (Miss.1982); Carrol v. State, 391 So.2d 1000, 1002 (Miss.1980). We find no such unusual circumstances present here. Assignments of Error Nos. 2 and 3 are denied.

V.

In Assignments of Error Nos. 4 and 5, Navis Jane May launches a two-pronged attack upon Instruction No. S-3— the manslaughter instruction — granted at the request of the State and over her objection. The jury’s verdict makes clear that this instruction was outcome-determinative, for that verdict found May’s actions unnecessary, and thus manslaughter — rejecting her plea that she acted in necessary self-defense.

The instruction in issue is predicated upon the statutory definition of manslaughter as found in Miss.Code Ann. § 97-3-31 (1972), to wit:

“Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter.” [emphasis added]

Instruction No. S-3 actually reads as follows:

The Court instructs the jury that every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter. The Court, therefore, instructs you that if you find from the evidence in this case beyond a reasonable doubt that the defendant, Navis Jane May, unnecessarily killed John D. May, either while she was then resisting an attempt by John D. May to commit any felony, or to do any unlawful act against her, or after such attempt to commit any felony or to do any unlawful act against her, to wit: to assault her; or that she unnecessarily killed John D. May after such attempt to assault her had failed; then you shall find the defendant, Navis Jane May, guilty of manslaughter. [Emphasis added]

May first complains that the instruction was not justified by the evidence. Her argument runs as follows: the indictment charged murder. The evidence, in her view, showed that the killing of John D. May was either murder [Miss.Code Ann. § 97-3-19(1) (Supp.1983)] or justifiable homicide [Miss.Code Ann. § 97-3-15(f) (1972)]. May argues that presenting to the jury the lesser-included offense of manslaughter offered the jury the opportunity to reach a compromise verdict. She cites LaFontaine v. State, 223 Miss. 562, 78 So.2d 600 (1955) which correctly holds that

“Where a killing is, under the proof, either murder or justifiable homicide, the Court should not give instructions upon manslaughter.” — 223 Miss, at 572, 78 So.2d at 604.

The problem with May’s argument here is that there is substantial evidence in this record to support the giving of a section 97-3-31 manslaughter instruction. May testified that she killed her husband as he was attempting to commit an assault and battery upon her. Still, there is evidence that, even though John D. May may have already committed an assault and battery on her or was in the process of trying to do so, Navis Jane May’s actions in killing him were “unnecessary”. We held as much when we rejected Assignment of Error No. 1 above.

In this context, it should be emphasized that Navis Jane May’s self-defense theory was fairly submitted to the jury. That theory is the other side of the coin — if Navis Jane May’s killing of her husband was in necessary self-defense, it was justifiable homicide. If her actions' were unnecessary, they constituted section 97-3-31 manslaughter.

At her request two separate instructions were presented the jury on this question. First, the jury was instructed that

... a person claiming the right of self-defense is not required to retreat or to consider whether she could safely retreat. If she is honestly and reasonably in fear of death or serious bodily harm she may stand her ground and use whatever force is reasonably necessary under the circumstances, even to the extent of taking the life of the attacker, [emphasis added]

In addition, the Court instructed the jury that

... if, after reviewing all the evidence, you believe that the fatal shot was fired by the defendant when she had reasonable cause to believe and did believe that she was in imminent and immediate danger of being killed by John May, or of receiving great bodily harm at the hands of John May, then you should find the defendant not guilty, even though it may not appear that the defendant was not at the time in imminent danger of being killed by John May or of receiving great bodily harm at his hands.

Cf Bebley v. State, 456 So.2d 755, 756 (Miss.1984) (instruction less favorable to defendant given); Haynes v. State, 451 So.2d 227, 229 (Miss.1984) (same); Scott v. State, 446 So.2d 580, 583 (Miss.1984) (same); Robinson v. State, 434 So.2d 206, 207 (Miss.1983) (same).

Here we emphasize that the weight of the evidence did indeed suggest that John D. May had on the day in question and repeatedly over the years been guilty of acts of violence toward Navis Jane May. More precisely, the evidence established that on the day in question John D. May had, within the meaning and contemplation of section 97-3-31, attempted to commit acts toward his wife which in law could constitute “any felony” or “any unlawful act”.

In this context, the critical question is whether the actions of Navis Jane May in shooting and killing John D. May were necessary. The two instructions just quoted told the jury that, if they believed that the actions of Navis Jane May were reasonably necessary, they should find her not guilty on grounds of self-defense. On the other hand, Instruction No. S-3 told the jury that, if they found that the killing was unnecessary, they should find Navis Jane May guilty of manslaughter. We find that the instructions submitted fairly presented the issues to the jury. May’s argument that there was no evidentiary support for Instruction No. S-3 is without merit.

Finally, May’s argument that Instruction No. S-3 contains an erroneous statement of the law or is confusing or misleading is wholly without merit. The instruction tracks verbatim section 97-3-31 in all relevant particulars. It is no more difficult to read or misleading than the statute itself.

Assignments of Error Nos. 4 and 5 are rejected.

VI.

The Circuit Court of Rankin County has adjudged Navis Jane May guilty of manslaughter, Miss. Code Ann. § 97-3-31 (1972), and has sentenced her to the custody of the Mississippi Department of Corrections for eight years. For the reasons described above, we affirm, but in so doing we are not insensitive to the fact that many features of this case are close to the stero-typical case of the battered wife syndrome. See State v. Kelly, 97 N.J. 178, 190-96, 478 A.2d 364, 375-82 (1984); People v. Minnis, 118 Ill.App.3d 345, 355-56, 74 Ill.Dec. 179, 187-88, 455 N.E.2d 209, 217-18 (1983); Hawthorne v. State, 408 So.2d 801 (Fla.Ct. App.1982); State v. Anaya, 438 A.2d 892, 894 (Me.1981); Smith v. State, 247 Ga. 612, 617-19, 277 S.E.2d 678, 682-83 (1981).

Navis Jane May is a 52-year-old woman who suffers a disabling arthritic condition. Among the tragedies of her life wag a long marriage to a man eighteen (18) years her senior who drank whiskey, cursed and beat her with regularity. In this context the trial judge appropriately allowed favorable self-defense instructions and, in spite of May’s complaint here, a manslaughter instruction which may well have saved her from a murder conviction and a mandatory life sentence.

That we are coming to know more about battered wives, that society and its laws are becoming more sensitive to their plight, does not mean that every battering husband killed by his wife has been killed in necessary self-defense. Battering husbands may well be deserving of society’s condemnation. When they batter their wives they should be — and are — subject to prosecution. But they do not all deserve to be killed.

By the same token, what has come to be known as the battered wife syndrome has important informational and explanatory power and is being accommodated by our law. It does not, however, supplant accountability. When a wife kills her husband under circumstances where, objectively speaking, it was not reasonably necessary that she do so in her own self-defense, she should not expect acquittal at the hands of our law, no matter how long she may have been a battered wife.

This case has been tried before a jury drawn from a fair cross-section of the citizens of the county in which John D. and Navis Jane May had lived. The trial judge was alertly neutral — if anything, giving the defendant the benefit of the reasonable doubt. The jury found that her killing of John D. May, objectively speaking, was unnecessary. There is no reason consistent with an enlightened view of our institutional responsibilities why we should disturb that finding.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.