author: LANIER, Judge.

text:
    Helen Smith KIKENDALL v. AMERICAN PROGRESSIVE INSURANCE COMPANY.
    83 CA 0979.
    Court of Appeal of Louisiana, First Circuit.
    July 31, 1984.

      Elaine W. Guillot, Slidell, for plaintiff-ap-pellee.
    Albert Dale Clary, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit in contract by an insured against her insurer seeking to recover the loss suffered from the theft of her vehicle and for statutory penalties for arbitrary failure to pay the claim. After a trial, the district court rendered judgment awarding the insured $9,000 for the loss of her vehicle and awarded statutory penalties that included an attorney fee of $1,500. The insurer took this suspensive appeal.

FACTS

Helen Smith Kikendall was the owner of a tan 1981 Toyota pickup truck. Her son, Tommy, was the principal driver of the vehicle. The vehicle was insured on August 20, 1981, under a policy of insurance (which was in full force and effect at all times pertinent to this suit) issued by Progressive American Insurance Company (Progressive) through its agent, Floyd Fogg Insurance Agency, Inc. On August 24, 1981, Mrs. Kikendall reported the theft of the truck to the police and the agent of her insurer.

On October 13, 1981, a pickup truck was discovered by Staff Sergeant Robert Ar-thurs, St. Tammany Parish Sheriffs Department, in a wooded area near the Fish Hatchery Road near Lacombe, Louisiana. The vehicle was stripped and burned. It was later identified as the vehicle reported stolen by Mrs. Kikendall.

PROOF OF THEFT

The trial court found as a fact that the vehicle had been stolen. Progressive contends that the district court was clearly wrong in this finding. Specifically, appellant argues that this factual finding is not supported by credible testimony.

In the instant case, all of the evidence was presented by live testimony. This court, in Gould v. State, Louisiana Department of Corrections, 435 So.2d 540, 543 (La.App. 1st Cir.1983), writ denied, 438 So.2d 1107 (La.1983), discussed the standard of review applicable to factual findings based on live testimony as follows:

As to facts, Canter v. Koehring Company, 283 So.2d 716 (La.1973), as refined by Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), delineates our review of facts as first an ascertainment that there is in the record ‘a reasonable factual basis’ for the trial court’s factual findings and second a determination from the record that the trial court’s factual findings are not ‘clearly wrong.’ Then, if we, as an intermediate appellate court, find a reasonable basis for the factual findings and such findings are not clearly wrong (or manifestly erroneous), we are admonished not to disturb such findings of fact.
The basis for the Canter-Arceneaux rule is that the trier of fact, actually hearing and observing the witnesses give live testimony, is in a better position to evaluate credibility than a reviewing court on the intermediate appellate level, which at best can only study the written words of a cold record. Stated another way, according to Canter-Arceneaux, where there is a credibility issue or conflict in the testimony and the trial judge (trier of fact) has had the opportunity to observe the demeanor of the witnesses as they testify and to listen to the nuances of their oral testimony, great weight must be given to the factual conclusions of the trier of fact and they should not be disturbed unless clearly wrong.

Progressive presented three witnesses at trial who were in the Fish Hatchery Road area on Sunday afternoon, August 23, 1981: Martin Giordelli, Mike Cousin and John Cousin, Jr. All three were in the area around 2:00 p.m. attempting to pull out John’s truck which had gotten stuck in the mud earlier that day. They all testified that they saw two Toyota pickup trucks, one black and one tan (or beige), in the area that Sunday afternoon. Both vehicles were occupied by two young white males in their late teens or early twenties. They saw both vehicles get stuck in the mud. Gior-delli and Mike Cousin testified that they saw the tan truck again three or four weeks later in the same area burned and stripped.

Tommy Kikendall testified that he used the Toyota truck to get to work at his parent’s gas station at 9:00 a.m. Sunday, August 23, 1981. He remained at work until 5:00 p.m. when his father picked him up. The truck was left overnight on the left side of the station for repairs. When he arrived at work at 7:00 a.m. the next day, the truck was gone. Upon discovering the theft, he called his- parents. Tommy also testified that he personally knew other people who owned trucks similar to his and that there are “numerous trucks like that around Slidell.”

Melanie Rosano, a friend of Tommy for six years, testified that she went by the station on Sunday around 12:30 p.m. Tommy was there and she saw the truck parked on the left side of the station. She stayed around 45 minutes. When she left, the truck was still parked at the station.

Cherry Kikendall, Tommy’s wife (married December 11, 1982), testified that she ate lunch with Tommy on Sunday around 1:00 p.m. She also saw the truck parked on the left side of the station.

After reviewing the evidence, we find that there is a reasonable factual basis in the record to support the district court’s ruling that the vehicle was stolen. The district court was not clearly wrong in finding that the truck was stolen or that Progressive failed to show that the Kikendalls caused the demise of the truck. This assignment of error is without merit.

ADMISSIBILITY OF PHOTOGRAPHIC LINEUP

Detective Charles Edwards, Slidell Police, was assigned to investigate the reported theft. He was informed by Sergeant Arthurs that several witnesses had spotted a truck similar to the missing truck on Sunday afternoon, August 23, 1981, in the area where it was eventually recovered. Detective Edwards interviewed one of those witnesses, John Cousin, Sr., (John Cousin, Jr. was also a witness) in the presence of Carl Ellis, a Progressive claim representative. Detective Edwards showed Cousin a photographic lineup. One of the pictures included in the lineup was of Tommy Kikendall. Cousin identified Tommy Kikendall as one of the persons he saw in the tan truck on the Fish Hatchery Road area that Sunday afternoon.

Progressive attempted to offer into evidence the photographic lineup. Kikendall objected asserting that Cousin, Sr. should be the one to testify concerning the lineup identification and not Detective Edwards. Progressive argued that the evidence was admissible because Cousin, Sr. was deceased. The trial court allowed the evidence to be introduced subject to the objection.

Progressive contends on appeal that the trial court did not rule on the admissibility of this evidence at trial and, after receiving the post-trial memorandums, apparently disallowed this evidence because no mention of it was made in reasons for judgment. Progressive contends that the district court erred in not considering this evidence.

Hearsay evidence is generally described as testimony in court, or written evidence, of a statement made out of court, the statement being offered to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter. State v. Hayes, 414 So.2d 717 (La.1982); State In Interest of Clark, 400 So.2d 334 (La.App. 4th Cir.1981). Such evidence is generally inadmissible as being unreliable because it is based on statements made by persons who are not before the court, have not been sworn and are not available for cross-examination. Lasalle Pump & Supply Co., Inc. v. Louisiana Midland Railroad Co., Inc., 433 So.2d 745 (La.App. 3rd Cir.1982), writ denied, 435 So.2d 450 (La.1983); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980). There are well-recognized exceptions to the hearsay rule. Declarations by a deceased person which are admissible as exceptions to the hearsay rule are dying declarations, statements against interest and, in limited instances, statements pertaining to family history, relationship and pedigree. Miller v. Miller, 226 La. 273, 76 So.2d 3 (1954); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3rd Cir.1983), writs denied, 443 So.2d 591, 592 (La.1983); Baker v. Life General Security Insurance Company, 405 So.2d 1162 (La.App. 1st Cir.1981); D. Binder, The Hearsay Handbook (1975); McCormick’s Handbook of the Law of Evidence (E. Cleary 2nd ed. 1972).

In the instant case, Progressive attempted to introduce the evidence to show the truth of matters asserted, i.e., that Tommy Kikendall was in a tan pickup truck on Sunday afternoon in the Fish Hatchery Road area where the Kikendall truck was eventually found. Detective Edwards’ testimony concerning Cousin Sr.’s identification of Tommy Kikendall is hearsay. The statements made by Cousin, Sr. to Detective Edwards concerning the photographic lineup identification do not come within any of the hearsay exceptions applicable to declarations by a deceased person. Accordingly, Detective Edwards’ testimony concerning statements made to him by Cousin, Sr. is inadmissible hearsay. This specification of error is without merit.

VALUE OF VEHICLE

Mrs. Kikendall completed and mailed to Progressive an. “AFFIDAVIT OF VEHICLE THEFT” in which she claimed $10,-568.65 for the theft of her vehicle. The insurance policy issued by Progressive contained the following coverage for theft of the vehicle:

PART III — PHYSICAL DAMAGE

Coverage D — Comprehensive. To pay for direct and accidental loss of or damage to the automobile due to any cause, except collision or upset. For the purposes of this coverage it is understood that damage caused directly by tornado, cyclone, windstorm, hail, any falling object, and damage resulting from theft, breakage of glass, earthquake, explosion, riot, insurrection or civil commotion, shall not be deemed a loss caused by collision or upset.
Limit of Liability. The limit of the company’s liability for loss shall not exceed the least of:
(a) the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss; or
(b) what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation; or
(c) the applicable limit of liability stated in the declarations; provided, the amount of each separate loss, when determined, shall be reduced by the applicable deductible sum, if any, stated in the declarations.
(Underscoring added)

Further, the “DECLARATIONS” page of the policy showed that the 1981 Toyota pickup truck had comprehensive coverage, with liability limited to “ACTUAL CASH VALUE LESS $250 DED.”

Keith Fogg, an employee of Floyd Fogg Insurance Agency, testified that their agency issued the Progressive insurance policy to Mrs. Kikendall. Mrs. Kikendall had insurance with Commercial Union the previous year through the same agency. Keith Fogg persuaded Mrs. Kikendall to renew her policy with Progressive because he could save her money on her premiums. Mrs. Kikendall agreed and an insurance application was filled out for the Progressive policy. The policy period was from August 20, 1981, to August 20, 1982. The insurance application indicates that the vehicle was inspected on August 20, was in excellent condition with no existing damage and had a “Current Market Value or Declared/Stated Value” of $9,000.00.

Keith Fogg testified that the current market value of the vehicle is supplied to the insurance compány by the insured through the insurance agency. He admitted that, ordinarily, the insurance company would not have any independent knowledge of the condition of the vehicle. However, the company had the option to review the stated value by referring to the blue book and could notify the agency that the value was incorrect. Fogg did not know if Progressive agreed with the $9,000 value placed on the insurance application.

The trial court awarded Mrs. Kikendall $9,000 for the stolen vehicle for the following written reasons:

One other issue left for determination of this Court is the value of the 1981 Toyota Pickup Truck. Testimony shows that the truck had recently been completely refurbished. On August 20, 1981, 3 days before the issuance of the policy, an Agent of Progressive determined the current market value or declared value, after inspection of same to be $9,000.00. Certainly, the value of the truck three days later must be the same and the Court so finds.

Progressive contends that the district court committed error in finding that the truck’s actual cash value when stolen was $9,000 and contends that no competent evidence was presented by Mrs. Kikendall which sufficiently proved and supported the award.

Progressive and Kikendall are bound by the terms of their insurance contract. La.C.C. arts. 1901 and 1945; Gordon v. Unity Life Ins. Co., 215 La. 25, 39 So.2d 812 (1949); Messina v. Metropolitan Life Insurance Company, 431 So.2d 911 (La.App. 2nd Cir.1983); Lambert v. Mutual Life Insurance Company of New York, 431 So.2d 23 (La.App. 1st Cir.1983), writ denied, 438 So.2d 571 (La.1983); Hall v. National Life and Accident Insurance Company, 383 So.2d 74 (La.App. 3rd Cir.1980). The contract provides, in pertinent part, that the limit of Progressive’s liability is the lesser of:

(a) the actual cash value of the automobile at the time of loss;
(b) the cost of repair or replacement of the automobile with other of like kind and quality, less depreciation; or
(c) the applicable limit of liability stated in the declarations (actual cash value).

Under the contract, this liability is subject to a $250 deductible. The insurer is also entitled to a credit for salvage value, if there is any. Sibley v. Insured Lloyds, 442 So.2d 627 (La.App. 1st Cir.1983).

The burden is on Kikendall to prove the facts necessary for recovery. Roy v. Commercial Union Assurance Company, 385 So.2d 1273 (La.App. 3rd Cir.1980). The evidence indicates that the truck was a total loss. However, the record does not reflect the actual cash value of the truck at the time of loss or the replacement cost less depreciation (to show which is lesser), and no evidence was presented concerning the vehicle’s salvage value, if any. The district court judgment did not recognize the $250 deductible.

Mrs. Kikendall argues that the $9,000 value placed on the truck and accepted by Progressive in issuing the insurance policy was sufficient proof of the value of the vehicle before the theft. Since the vehicle was stolen three days after the insurance was issued, she contends that the value must be the same. Compare Schecter v. Camden Fire Insurance Association, 141 So.2d 451 (La.App. 4th Cir.1962). The trial court accepted this evidence as being sufficient to establish the actual cash (market) value of the vehicle before the theft as $9,000.

The value of $9,000 assigned to the vehicle was supplied by Mrs. Kikendall. There is no evidence in the record to show how she arrived at that value. Further, there is no evidence that this value represents the actual cash value of the vehicle prior to the theft. On the contrary, evidence was presented by Progressive to rebut and contradict this value.

Larry Stansbury, service and body shop manager at Charlie Simmons Toyota, was accepted as an expert in the fields of automobile repair and appraisal. He testified that the truck was purchased from Charlie Simmons Toyota. He saw the truck frequently and almost on a daily basis at times. The truck was brought in several times for warranty work which was denied because of the abuse it had sustained. In June or July, Stansbury observed that the truck had a new paint job. Stansbury testified that it was a very sloppy job and “there were scratch marks, still ripples in the finish and so forth, and the paint was full of runs.” Stansbury could not say what the retail value of the vehicle was but gave a wholesale value for it of between $3,000 and $5,000.

Based on this evidence, we find that the trial court was clearly wrong in finding that the vehicle had an actual cash (market) value of $9,000 prior to the accident. Further, there is not enough evidence in the record” for this court to arrive at the market value of the truck prior to the theft.

Under these circumstances, we feel it proper to set aside the $9,000 award of the trial court and remand the matter to receive additional evidence of value in accordance with the views expressed herein.

STATUTORY PENALTIES

The trial court assessed Progressive with statutory penalties which included an attorney fee of $1,500. Progressive contends that the district court erred in awarding statutory penalties because it was not arbitrary, capricious or without probable cause in denying payment of the claim.

A trial court’s conclusion concerning the assessment of statutory penalties is in part a factual determination which should not be disturbed in the absence of a finding that it is manifestly in error. Sibley v. Insured Lloyds, 442 So.2d at 632; Meshell v. Insurance Company of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982). La.R.S. 22:658 provides that an insurer who arbitrarily, capriciously or without probable cause refuses to pay a claim within 60 days of satisfactory proof of loss shall be subject to a penalty of 12% of the amount of the loss, plus a reasonable attorney fee. This statute is penal in nature and must be strictly construed. Hart v. Allstate Insurance Company, 437 So.2d 823 (La.1983); Sibley v. Insured Lloyds, 442 So.2d at 632. This statute is not to be applied when the insurer has a reasonable basis to defend against the claim. Soniat v. State Farm Mutual Automobile Insurance Company, 340 So.2d 1097 (La.App. 4th Cir.1976).

' [14] There was sufficient evidence to justify Progressive’s assertion that the vehicle was not stolen and entitling it to litigate the matter without being assessed with statutory penalties. Prior to the death of John Cousin, Sr., Progressive had evidence which showed Tommy Kikendall in possession of the stolen vehicle in the area where it was ultimately recovered at the approximate time the theft occurred. This evidence also contradicted the Kiken-dall version of what happened. Progressive had a reasonable basis to defend against Kikendall’s theft claim which precludes an award of statutory penalties. This specification of error has merit, and this portion of the district court judgment is reversed.

DECREE

For the foregoing reasons, the judgment of the district court finding Progressive liable for the value of the Kikendall vehicle is affirmed; the award of $9,000 is set aside, and this issue is remanded to the district court to take additional evidence on the value of the vehicle; and the award of statutory penalties is reversed, and that portion of the claim is dismissed with prejudice. Progressive is cast for all costs.

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

      . It is not prejudicial error to allow hearsay testimony about a witness's identification of another when the witness personally appears and testifies at the trial. State v. Vaughn, 378 So.2d 905 (La.1979).

      . This amount represents the total cash price of the vehicle when purchased on December 15, 1980.


source: Caselaw Access Project

author: BARRY, Judge. REDMANN, Chief Judge, WILLIAMS, Judge,

license: Public Domain

text:
    Mrs. Harriet Thomas PREJEAN wife of/and Early Prejean v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., d/b/a A & P Food Stores.
    No. CA-1125.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 1984.
    Dissenting Opinion Oct. 23, 1984.
    Rehearings Denied Oct. 29, 1984.
    Writ Denied Dec. 14, 1984.

      Lambert J. Hassinger, New Orleans, for plaintiffs-appellants Mrs. Harriet Thomas Prejean.
    Melanie Shaw, Henican, James & Cleveland, New Orleans, for defendant-appellee The Great Atlantic & Pacific Tea Co., Inc., d/b/a A & P Food Stores.
    Before REDMANN, C.J., and GARRISON, BARRY, KLEES and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff appeals the dismissal of her lawsuit for damages which allegedly resulted from viewing and smelling a rotten roast.

At about 10 p.m. on April 14, 1979 Mrs. Harriet Prejean and her husband purchased a roast from the defendant grocery store for Easter dinner the next day. Both stated the top part of the meat appeared pink through the cellophane wrap. They went directly home and the roast was put in the refrigerator. The following morning Mrs. Prejean got up at 7:00 a.m., removed the roast from the refrigerator, unwrapped and washed it, but when she turned the meat over it was “green as grass” on the bottom. The odor made her gag and nauseous, but she did not vomit. She showed it to her mother (who lived next door), then immediately returned to the grocery to exchange the meat. The refund receipt was issued at 7:13 a.m. on April 15, 1979. On the way home Mrs. Prejean vomited in the car. She went to her mother’s house and vomited blood in the bathroom, then returned home and told her husband about the bleeding. She tried to bathe and continued vomiting blood.

Plaintiffs mother, Mrs. Eva Thomas, corroborated the rotten condition of the roast and her daughter’s vomiting blood. Eve-line Koenig, a guest for the ill-fated Easter dinner, testified she went into the bathroom to help and saw blood in the tub. Mr. Prejean said he did not see the roast, but took his wife to the hospital because she was vomiting blood.

Dr. Tamer Acikalin, gastroenterologist, saw Mrs. Prejean at the hospital. He had no recollection of the incident and testified from his records which showed Mrs. Preje-an was in the emergency room vomiting gastric contents and blood. Dr. Acikalin said Mrs. Prejean’s life was in danger and she lost 15% of her blood volume. His diagnosis was a Mallory-Weiss syndrome— “a tear of the lining of the junction where the foodpipe meets the stomach”. He said the usual cause is forceful vomiting and can result from one incident. He performed a gastroscopy to examine the lining of the food pipe and duodenum and discovered two tiny ulcers. Importantly, he said the ulcers were not bleeding and did not cause plaintiff’s crisis.

Mrs. Prejean was given a stomach wash and drugs to reduce stomach acidity. She was in intensive care for two and one-half days and discharged on April 20, 1979 (five days post-incident).

The trial judge made specific findings in written reasons:

Although I conclude that plaintiff has proved that the roast was spoiled, and that the sight and smell of it caused her to vomit, resulting in a life-threatening Mallory-Weiss tear of the esophogus, I believe the law does not allow recovery. Although I entertain personal reservation about the rightness of the rule, I conclude that the store’s legal duty (as a warrantor of food, as a packager charged with knowledge of the defect, and despite its actual negligence in failing to discover the roast’s condition) is limited to avoiding harm by consumption. Craig v. Albertson’s, 415 So.2d 237 (2nd CCA 1982).

Was it necessary for Mrs. Prejean to eat the rotten roast in order to have a cause of action? If not, was the trial judge manifestly erroneous in finding that the meat was spoiled, and its condition and smell caused plaintiff’s serious injury?

Plaintiff urges we reject Craig and allow recovery under general tort liability (LSA-C.C. art. 2315) and redhibition (LSA-C.C. art. 2520). She argues defendant packaged the roast and is presumed to know its deleterious condition and under redhibition is liable for the price, damages, and attorney’s fees. LSA-C.C. art. 2545.

Defendant counters that Craig and other cases exclude recovery unless the nauseous food is eaten. It argues plaintiffs case fails under a duty-risk analysis (art. 2315) since “no duty exists in Louisiana to protect against injuries caused by the mere observation of deleterious substances”. It also claims redhibition is inapplicable because the appropriate basis to recover is “breach of implied warranty treated as a tort.”

C.C. arts. 2315 and 2316 provide the source for tort liability. However, to determine the appropriate standard of conduct it is necessary to consult other codal articles, statutes, and jurisprudence. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

The standard of conduct applicable to this case begins with Doyle v. Fuerst & Kramer, Ltd., 129 La. 838, 56 So. 906 (1911). Redhibition articles in the sales section of the Civil Code are also applicable because the purchaser of a defective thing has a cause of action against both the seller and the manufacturer of the thing. Phillips v. Browning Arms Co., 395 So.2d 310 (La.1980); Wright v. Ouachita Coca-Cola Bottling Co., Inc., 415 So.2d 309 (La.App. 2d Cir.1982).

Arts. 2315 and 2545 do not require that deleterious food be consumed in order to recover. We feel to judicially require consumption creates an artificial barrier without statutory foundation. But even if body contact (consumption) is read into Arts. 2315 and 2545, we are satisfied that inhalation of noxious, poisonous gases from putrid meat is no different or less dangerous than swallowing the meat.

Defendant points to our recital that consumption is one of several factors necessary for recovery. Banks v. Jefferson Bottling Company, 249 So.2d 228 (La.App. 4th Cir.1971). However, this case does not involve consumption, but body contact by the sense of smell.

All sales have an implied warranty of fitness for the purpose intended. The unwholesome food cases say that a packager warrants its food to be free from anything that causes injury to a consumer. English v. Louisiana Creamery, Inc., 181 So.2d 800 (La.App. 1st Cir.1965). Mrs. Pre-jean’s burden is to establish by a preponderance of evidence that the food was in a deleterious condition when purchased and caused her illness. She need not negate every conceivable cause but must show that it is more likely than not that the condition of the food product caused the injury. Jackson v. Winn Dixie Stores, Inc., 439 So.2d 1147 (La.App. 4th Cir.1983).

Defendant argues that the medical evidence does not mention the cause of Mrs. Prejean’s distress. Dr. Acikalin said he had no independent recollection of the incident or of Mrs. Prejean. He noted the record of the physical exam and history were “not detailed” and “relatively superficial”. He said that was because plaintiff’s life was in danger and attention was directed to helping her and not taking notes. Mrs. Prejean and her husband recalled that when they arrived at the emergency room there was another life-threatening situation — a cardiac arrest- — and there was “lots of running and commotion”.

Defendant contends that the Mallory-Weiss tear was caused by two pre-existing ulcers, but there is no medical evidence to substantiate that claim. Dr. Acikalin clearly said that the ulcers were not bleeding and had nothing to do with plaintiff’s condition. Even defendant’s physician, Dr. Ronald Martz, gastroenterologist, testified the usual cause of a Mallory-Weiss tear is forceful vomiting and wretching. He stated if the ulcers were not bleeding (as Dr. Acikalin reported) they did not cause the vomiting. Plaintiff had no prior ulcer problems or knowledge of the two tiny ulcers.

The evidence abundantly supports the trial judge’s conclusion that the roast was rotten, and its sight and smell caused Mrs. Prejean to forcefully vomit which resulted in the life-threatening Mallory-Weiss tear.

Under Gonzalez v. Xerox Corp., 320 So.2d 163 (La.1975) we are to set damages. Plaintiff suffered a tear of the esophagus and lost 15% of her blood volume. She was hospitalized for 5 days which included 2lh days in intensive care. A gastroscopy was performed and she received several blood transfusions. Her stomach was washed and she received drugs to reduce stomach acidity. She was followed for approximately one month after discharge and told not to work for 6 weeks. Due to the severity of the injury and its duration, $15,000 in general damages is adequate.

Special damages include:

Hospital' $2,998.70
Drs. Acikalin/White 344.00
Dr. Wagner 157.00
Dr. Kappelman 70.00
7 medicine bills 191.52
Loss of earnings (6 weeks at $120.00 per) 720.00
$4,481.22

Because the roast had a latent or non-apparent defect, plaintiff is entitled to recover attorney’s fees under LSA-C.C. art. 2545. Wright, supra; Pkillipe, supra. Plaintiff’s counsel obviously spent a great deal of time preparing and trying the lawsuit, and in preparation of a detailed brief in support of oral argument. A $3,500.00 legal fee is reasonable. Defendant is east for all costs, including $250 for each expert, Drs. Acikalin and White, together with legal interest. Greer v. Ouachita Coca-Cola Bottling Co., 420 So.2d 540 (La.App. 2d Cir.1982).

The district court judgment is reversed and judgment is hereby entered in favor of Mrs. Harriet Thomas Prejean, wife of/and Early Prejean, and against The Great Atlantic & Pacific Tea Company, Inc., d/b/a A & P Food Stores, in the sum of $15,000 as general damages, $4,481.22 special damages, $3,500 attorney’s fees, with legal interest from date of judicial demand, and $250.00 expert fees for Drs. Acikalin and White. Defendant to pay all court costs.

REVERSED.

RENDERED.

REDMANN, Chief Judge,

dissenting in part.

For general damages I would award only the $6,000 that plaintiff sought in her original brief on appeal to this court. My reading of the record does not support the view that her experienced counsel so badly underestimated the value of her general damages that we should award two and a half times as much as he asked.

WILLIAMS, Judge,

dissenting.

I respectfully dissent.

The majority of this court is in error in rejecting the decision in Craig v. Albertson's Southco, Inc., 415 So.2d 237 (La.App. 2d Cir.1982). Previous decisions by this court have held that proof of actual consumption is required to show that there has been a breach of the warranty of fitness for consumption. E.g., Banks v. Jefferson Bottling Co., 249 So.2d 228 (La.App. 4th Cir.1971).

Furthermore, the facts of this case do not merit an expansion of existing law. I do not find the evidence contained in the record as convincing as the majority. Although plaintiff’s case has been ably presented by counsel at trial and on appeal, nevertheless the facts are not sufficient to sustain a decision that defendant’s product caused plaintiff’s injuries.


author: PRICE, Judge.

text:
    Dodge E. MULLINS, Plaintiff-Appellant, v. James Franklin PAGE, Defendant-Appellee.
    No. 16386-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Writ Denied Nov. 9, 1984.

      Hargrove, Guyton, Ramey & Barlow by J. Marshall Jones, Jr., Shreveport, for plaintiff-appellant.
    Bowers & Bowers by Gary A. Bowers, Shreveport, for defendant-appellee.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   PRICE, Judge.

Plaintiff, Dodge E. Mullins, appeals from a judgment denying the rescission of the sale by him of certain immovable property to defendant, James Franklin Page, on the grounds of lesion beyond moiety.

The facts reveal that the subject property is a somewhat irregularly shaped tract consisting of approximately three acres. The property is located at 3312 North Market Street (also known as U.S. Highway 71 and Louisiana Highway 1) between Deer Park Road and Booth Drive within the corporate limits of Shreveport, Louisiana. North Market Street is a four-lane boulevard. The property is in the northern portion of the city in a neighborhood generally known as the North Highlands area. The boundaries of the neighborhood are Twelve-mile Bayou on the east, Pine Hills Road or a projection thereof on the north, Interstate 220 on the south, and undeveloped lands to the west just off North Market Street. The neighborhood is primarily residential with some commercial zoning classifications. The subject tract is zoned B-2, neighborhood business district.

The subject property is unimproved except for six abandoned buildings which formerly served as a motel travel court known as Spring Court. The buildings are in an advanced state of deterioration. At the time of the sale, there was a pond located on the northeastern portion of the property which was approximately 1.24 to 1.3 acres in size. The pond had been created by an earthen dam and a concrete overflow structure with a culvert type overflow. The property or a portion thereof was considered to be in a flood hazard zone.

In February 1979, defendant purchased a piece of property from plaintiff and his niece, Barbara Sneed, adjacent to the subject tract. Several months later, defendant acted as a realtor for Mullins and listed the subject tract for sale. The subject property had been donated to the plaintiff by his mother. Plaintiff, Mullins, later requested that Page personally purchase the property. Defendant testified that he asked plaintiff to obtain a value on the property and then he would make an offer.

At the time of these negotiations, plaintiff was being cared for by the Fellowship Mission Center in Shreveport, Louisiana. The president and director of the center, Reverend Bobby Henderson, contacted Mark Montgomery, a realtor of Bossier City, to make an appraisal or valuation of the property on behalf of Mullins. Montgomery placed a value on the property within a range of $25,000 to $40,000 after a somewhat hurried appraisal, depending upon the amount of usable land available.

This appraisal information was provided to defendant, Page, and he made an initial offer of $25,000 to purchase the property which was rejected by plaintiff Page subsequently offered $27,500 which offer was accepted by the plaintiff.

On September 28, 1979, plaintiff conveyed the subject property to defendant by a credit sale deed. The deed recited that the sale was made for the consideration of the sum of $27,500. Of this amount, $2,000 in cash was to be paid and a note was executed by defendant to the order of future holder in the amount of $25,500. The note was payable in consecutive monthly installments of $229.50 each until paid in full (approximately a twenty-year period) and was to bear a nine percent interest rate. The deed further stated that “[v]en-dor agrees that he will execute a subordination of this mortgage to any mortgage which may be executed by vendee covering the herein described property.” A correction deed was executed on November 12, 1980, containing a more detailed property description of the property conveyed to defendant.

The evidence established that although the deed recited $2,000 was to be paid in cash to plaintiff as a down payment, this amount was substantially reduced by defendant’s retention of a six percent realtor’s fee on the sale price in the amount of $1,650. The cash amount received by plaintiff was further reduced when the 1979 taxes due on the property were prorated between the parties.

It was established that at the time of sale, the city of Shreveport was undertaking a drainage project on the property to alleviate flooding problems in the surrounding neighborhood. The City Council passed Resolution 862 of 1976 on December 14, 1976 authorizing the engineering firm of Aillet, Fenner, Jolly & McClelland to prepare construction plans, specifications, and contract documents for the “North Highland Area Drainage Project.” The council passed Ordinance No. 269 of 1977 on December 13, 1977, establishing the 1978 Federal Revenue Sharing Capital Budget which allocated $180,000 to the North Highlands/Empire Circle drainage project. This ordinance was advertised in the Shreveport Journal on December 17, 1977. A preliminary survey of the subject proper-

ty was made by Aillet, Fenner, Jolly & McClelland around August 21, 1978.

Insofar as it affected the subject property, the project basically consisted of removing the pond and constructing a concrete drainage ditch.

The evidence is unclear as to the actual date the construction on the drainage project was commenced. It appears that work was begun sometime in 1979 and the project was completed in October 1982. Work on the project seems to have been intermittent. Defendant’s testimony indicates that the earthen dam was not “cut” in order to drain the pond until sometime in 1980.

The drainage ditch was generally constructed in the central portion of the property and essentially divides the subject tract in two with approximately 1.6 acres located southeasterly of the ditch and approximately 1.05 acres located on the northwesterly side of the ditch. The drainage easement contains approximately 15,258.1 square feet.

On February 10, 1981, plaintiff filed suit to rescind the sale of the property on the grounds of lesion beyond moiety. Plaintiff, Dodge Mullins, was later interdicted in March 1982 and Hugh Sneed was appointed as his curator. Sneed’s son is married to Barbara Sneed, a niece of the plaintiff, Mullins. Sneed was substituted as the proper plaintiff in this suit prior to the trial of this matter.

A lengthy trial on the merits was held in which both parties produced expert testimony as to the market value of the subject tract at the time of the sale.

James Young and Thomas Dupree of Waguespack, Dupree and Felts, Inc., testified on behalf of the plaintiff. The value of the property was analyzed by them by the comparison of the subject site with the sales of six comparable sites that occurred in the area in recent years. In the opinion of these appraisers, the highest and best use of the subject tract was commercial with an alternate residential use such as townhouse or multi-family development. The appraisers ascertained the value of the subject property under two premises. Premise one took into consideration the public drainage project and premise two was without regard to the construction project.

The comparable sites used in the appraisal are as follows:

Comparable 1 — This site is located in southeast Shreveport on Pant Parkway and was purchased for townhouse development on June 2, 1980. The zoning was R-l and the sale price of the property was $120,000. The sale was adjusted downward due to a smaller site size (smaller sites generally sell for a higher per unit basis), shape, and location, but was adjusted upward for zoning. Comparable 2 — This site is also located in southeast Shreveport and is being utilized for residential townhouse units. The property consists of two tracts of land on a corner location at East Kings Highway and Dixie Garden Road. Only the larger tract was utilized in the analysis and the sales price for that particular tract was $45,000. The sale was executed on August 28, 1980. The site adjoins Old River Bayou with the property sloping relatively fast to the water’s edge. The sale was adjusted downward due to location and smaller site size but adjusted upward for zoning (R-l) and shape/topography.
Comparable 3 — This site is located at the corner of Ravendale and Dearborn approximately ⅛ mile south of the subject property. The property was purchased on August 12, 1980, for $28,000 as part of an expansion by Republic Bank which adjoins the property. The property has an R-l zoning and a standing pond located on it. The unit value was adjusted downward due to the purchase for expansion and smaller site size but adjusted upwards for inferior zoning, shape/topography and location.
Comparable 4 — This is a dental clinic site approximately ¾⅛ mile north of the subject property at the corner of North Market Street and Poleman Road. There is a drainage ditch dividing the extreme northern portion of the property and approximately 50% of the site is not utilized due to drainage problems. The property was sold on May 21, 1980 for $10,000. The property was adjusted downward due to smaller site size and upward due to zoning (R-l), shape/topography and location.
Comparable 5 — This property was sold on January 16, 1979, and is located approximately 250 feet north of the subject property. The property contains an old service station building upon which a value of $10,000 was placed. The sales price of the property was $34,000 and the tract is zoned B-2. The property was adjusted downward due to smaller site size and upward because it was irregularly shaped.
Comparable 6 — This site is located less than ¼ mile south of the subject tract on the west side of North Market Street. The property was sold in late 1977 for $40,000 and is zoned B-2. A downward adjustment was made due to smaller site size and location and an upward adjustment was made for topography.

Under Premise 1, the appraisers estimated the value of the subject tract at $.65 per square foot for a total value of $84,942 from which a demolition cost to remove the abandoned buildings of $5,000 was subtracted. The value of the subject tract was rounded off to $80,000.

Under Premise II, the appraisers reduced the valuation for shape/topography as the tract with the pond was inferior to the concrete lined drainage ditch. Demolition costs were not extracted from this premise. A value of $.50 per square foot was placed on the property for a total value of $65,000.

In their appraisals, Young and Dupuree used a 12% annual property increase and an upward adjustment of 20% was applied in the comparable sites for zoning.

Plaintiff’s experts further analyzed the sale to determine a “cash equivalent price” which was defined as:

[a] price expressed in terms of cash as distinguished from a price which is expressed all or partly in terms of the face amount of the notes or other securities which cannot be sold at their face amount.

The cash price was discounted by 10% due to a low down payment and an additional 25% because of the subordination clause and lack of security. The experts felt that the 9% interest rate contained in the note was low and should have been around 12%.

Testifying on behalf of defendant was Marshall Graham of Marshall Graham and Associates, Inc. Graham also assigned a market value to the subject tract by a comparison to sales of comparable sites during recent years and felt that the highest and best use for the property was commercial.

Graham used the following comparables: Comparable 1 — This site adjoins the subject tract and was purchased by defendant from plaintiff, Mullins and Barbara Sneed in February, 1979 for $50,000. There were two buildings on the property upon which defendant, Page, placed a value of $30,000. The property was adjusted downward for size and topography and upward for shape. Graham testified that this sale was used primarily for informational purposes.
Comparable 2 — -This site is the same as Young/Dupree Comparable 6. This was adjusted downward for location, topography and size.
Comparable 3 — This site is the same as Young/Dupree Comparable 4. It was adjusted upward for location and downward for size, topography, and corner location.
Comparable 4 — This site is the same as Young/Dupree Comparable 3. It was adjusted upward for location and topography and adjusted downward for corner location, size, and motivation (expansion purchase).
Comparable 5 — This site is located at Pine Hill Road and Louisiana Highway 1 approximately 1.7 miles north of the subject property. The property was purchased for apartment development on May 27, 1982 for a total price of $218,-986.06.

Graham did not make an adjustment for zoning on two of the comparables which were also utilized by Young/Dupree. Graham testified that no adjustment was necessitated considering the proposed use of the comparables by the purchaser and in one instance, final approval of a zoning change had been obtained before the sale of the property. Graham made adjustments for comparables at corner locations. Graham stated such an adjustment is typical for commercial property as it affords easier ingress and egress onto the parking lot.

Under Premise 1 without regard to the drainage project, Graham placed a value of $.38 per square foot on the subject tract and subtracted demolition costs of $5,200 for a total value of $44,624. Under Premise II considering the drainage project, Graham placed a value of $.41 per square foot on the subject tract which subtracting demolition costs left a total value of $48,-558.

Graham did not compute a cash equivalency price but did conduct a study of interest rates in owner-financed sales in Caddo Parish during 1979. Graham concluded that the average rate was 8.64%.

In his written reasons for judgment, the trial judge thoroughly reviewed the evidence and rejected the contention of the plaintiff that a buyer and seller of this property would or should have knowledge of the drainage project or would have increased the sales price had they known of it. The court found the project was too speculative to have been considered by a reasonable buyer or seller even if they had knowledge of it.

In reviewing the expert testimony for both parties the court rejected the following comparables:

Young 1 and 2 — The court found that these sites were located too far away from the subject property and were purchased for multi-family residential, rather than commercial use.
Young 5 — This property contained improvements which the court felt contributed to the value of the property. The court used unimproved property as com-parables.
Graham 1 — This was also improved property which had been recently purchased by the defendant from the plaintiff and others.
Graham 5 — The court rejected this comparable as its highest and best use was not comparable to the subject tract.

The court took the three comparables used by both Young/Dupree and Graham and made the following adjustments.

(1) The court disregarded the 20% adjustments made by Young/Dupree for zoning. The court accepted the explanation of Graham as to why no zoning adjustments were necessary.
(2) The court accepted Graham’s explanation as to why two of the comparables which were located on corners required an adjustment and accordingly adjusted the Young/Dupree figures by 10%.

After making the above adjustments and accepting all the other adjustments used by the appraisers, the court averaged the results obtained and arrived at the following per square foot value for the three compa-rables:

(1) Young/Dupree 3 and Graham 4 — 40.-90 cents per square foot.
(2) Young/Dupree 4 and Graham 3 — 30.-30 cents per square foot.
(3) Young/Dupree 6 and Graham 2 — 44.-50 cents per square foot.

The court averaged these figures, multiplied by the largest square footage of the subject property used by any appraiser (131,116 square feet) and obtained a figure of $50,567. From this amount $5,000 in demolition costs was subtracted and the figure was rounded off to the nearest $500, resulting in a total market value at the time of the sale of $45,500.

In examining the terms of the sale in order to ascertain whether the price paid by the defendant was less than one-half of the value of the property, the court held that a 9% interest rate was an acceptable rate of interest in an owner financed transaction at the time of this sale. The court further held that although the amount of defendant’s down payment may have been low, it did not substantially affect the price received by plaintiff as Mullins got a larger note and larger monthly payment.

In examining the subordination clause, the court recognized that the unusual clause affected the security of the note as well as its value and marketability. The court rejected plaintiff’s estimate that the value of the note was reduced by 25% due to the inclusion of this clause, but rather found that the reduction in value depended on the net worth of the maker, Page. The evidence at trial established that defendant had substantial net worth at the time of the sale to date and the court found under these circumstances the value of the note had not been reduced enough to render the sale lesionary.

After reviewing the evidence, the court held that the plaintiff failed to prove that the sale was lesionary and rendered judgment in favor of the defendant.

The plaintiff asserts the following specifications of error on appeal:

A. The trial court’s determination that the market value of the property at the time of the sale was $45,500 is contrary to law and the evidence;
(1) The court erred in concluding that the proposed drainage project at the time of the sale had no effect on the subject property’s value.
(2) The court erred in basing its determination of value on whether the parties to the sale considered the sale to be lesionary.
(3) The court erred in basing its determination of value on an appraisal which was based on an incorrect assumption regarding the property.
(4) The court improperly disregarded the effect on value of the subject property caused by the type of zoning which applied to the subject property.
(5) The court’s method of determining market value of the subject property based upon averaging of the results of different comparables is improper and unjustified.
B. The trial court erred in finding that the “price given” was more than $22,750.
(1) The court erred in failing to discount defendant’s note to reflect the effect of the subordination clause in the mortgage securing defendant’s note.
(2) The court erred in failing to discount defendant’s note to reflect the effect of the 9% interest rate which was below the market rate of interest at the time of sale.

Upon a review of the record, the judgment of the trial court is affirmed for the following reasons.

The Civil Code provides that lesion is a ground to rescind certain contracts and is limited to sales of immovable property and partitions. La.C.C. Art. 1861. Lesion is defined in La.C.C. Art. 1860 as an injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy is founded upon implied error or imposition upon the vendor for in every commutative contract equivalents are to be given and received. La.C.C. Art. 1860. See White v. Oakley, 191 So.2d 904 (La.App. 1st Cir.1966), Rogers v. Read, 355 So.2d 46 (La.App. 2d Cir.1978) and Cheramie v. St. Pierre, 382 So.2d 1003 (La.App. 1st Cir.1980) and citations therein.

In the sales of immovable property, the vendor may be relieved if the price given is less than one-half the value of the property sold. La.C.C. Art. 1861. See Alexander v. State, Dept. of Highways, 342 So.2d 1201 (La.App. 2d Cir.1977). It is the burden of the vendor in an action for rescission for lesion to prove by clear and convincing evidence that the price given was less than one-half the value of the thing sold. The standard applied to determine the value of the subject property is the fair market value at the time of the sale. La.C.C. Art. 1870, 1871, and 2590. See Goulas v. Goulas, 426 So.2d 735 (La.App. 3d Cir.1983), Bisco v. Middleton, 383 So.2d 1047 (La.App. 1st Cir.1980), Fontenot v. Fontenot, 427 So.2d 27 (La.App. 3d Cir.1983), Dejean v. State, Dept. of Highways, 350 So.2d 938 (La.App. 2d Cir.1977), Crow v. Monsell, 200 So.2d 700 (La.App. 2d Cir.1967), Peterson v. Herndon, 235 So.2d 178 (La.App. 2d Cir.1970), Blount v. Blount, 385 So.2d 476 (La.App. 1st Cir.1980), Succession of Jimmy Lee, 430 So.2d 1126 (La.App. 1st Cir.1983) and numerous citations therein. Market value has been defined “... in numerous cases as meaning the amount a willing purchaser would pay a willing seller for a particular piece of property.” Valley Land Corporation v. Fielder, 242 So.2d 358 (La.App. 2d Cir.1970) at p. 361. The burden of proof is much more stringent in lesion cases than in expropriation cases. See Valley Land Corporation v. Fielder, supra, and Peevy v. State Dept. of Highways, 340 So.2d 642 (La.App. 2d Cir.1976).

Plaintiff contends that the trial court erred in determining that the proposed drainage project at the time of the sale had no effect on the market value of the subject property. Plaintiff essentially argues that' by failing to consider the drainage project, the court incorrectly held that valuations based on the highest and best use do not apply to lesion cases and disregarded the testimony of the appraisers that the drainage project should be included in the determination of market value. In other words, the plaintiff claims that in order to correctly assess the market value of the property, the court must consider the highest and best use of the subject property which would necessarily include the planned drainage project.

There appears to be some discrepancy in the jurisprudence as to the determination of market value in lesion, as opposed to expropriation cases. In Peterson v. Hern-don, supra, this court held that determination of market value by the highest and best use of the property, as in expropriation suits, is inapplicable in a suit to rescind a sale on the ground of lesion. Whereas in Fletcher v. Smith, 216 So.2d 663 (La.App. 3d Cir.1968), the court held that the determination of the market value of real estate should be the same in lesion cases as it is in expropriation cases. Market value in expropriation cases has been defined as the “... price which a willing and informed buyer would pay a willing and informed seller in usual circumstances in the light of the highest and best use to which the property may be put in the not too distant future.” State, Department of Highways v. Cartlidge, 258 So.2d 175 at p. 176 (La.App. 2d Cir.1972).

An examination of the jurisprudence reveals that there is no such restricting rule on the application of highest and best use in determining property market value in a suit for lesion. Rather, the plaintiff in a lesion suit may present proof of the highest and best use of the property rather than solely the actual use of the property at the time of the sale. Such proof may be considered along with all the other evidence of property value provided that it tends to show the value of the property at the time of the sale. See Peevy v. State Dept. of Highways, supra, Martin v. Mays, 127 So.2d 77 (La.App. 1st Cir.1961), Fontenot v. Fontenot, supra, and Valley Land Corporation v. Fielder, supra, and numerous citations therein.

It is clear that there is a fundamental difference between expropriation and lesion cases. In expropriation, the property is essentially being “taken” from the seller whereas in lesion, there is a willing seller and buyer transacting a sale under normal and usual circumstances. Therefore, the courts are somewhat more liberal in ascertaining the market value of property in an expropriation proceeding so as to insure the seller receives adequate compensation for his property.

The court found that plaintiff failed to prove that a well informed buyer would have known of the project or would have increased the value of the property had they known of it due to the speculative nature of the project.

A review of the evidence supports the conclusion of the trial court that the parties to this sale did not have knowledge of the drainage project at the time of the transaction. The resolution, ordinance, and advertisement noted earlier merely identified a drainage project in the area. The scope and exact location of the project was not described therein nor was there any substantial activity on the project site before or at the time of the sale.

However, the actual or presumed knowledge of the parties as to the drainage project is irrelevant as the trial court found the project was too speculative to have been considered by the parties in formulating the sales price of the property. It is well-settled that speculative values may not be considered in determining the market value of a particular piece of property. See Cheramie v. St. Pierre, supra, White v. Oakley, supra, Valley Land Corporation v. Fielder, supra, Crow v. Monsell, supra, Peterson v. Herndon, supra, Fletcher v. Smith, supra, Peevy v. State Dept. of Highways, supra, and numerous citations therein.

Although the project had been funded at the time of the sale it appears that no actual construction work had commenced on the site. The drainage project took approximately three years to be completed which clearly points to its highly speculative nature at the time of the sale. The testimony of defendant’s expert, Graham, supported the finding of the court that the project did not substantially contribute to the value of the property. Graham pointed to the lengthy completion of the project which would render the market for the proposed use of the property and cost of interest extremely speculatory.

The court, in not considering the drainage project, was simply rejecting the highest and best use of the property as this was found to be speculative and did not tend to show the value of the property at the time of the sale. Actual or presumed knowledge, at the time of the sale, of the drainage project becomes irrelevant in light of its speculative nature. Even though the expert appraisers considered the project in determining the market value of the property (Young/Dupree Premise 1, Graham Premise II), the court was not bound to accept these values as they were based upon a speculative project and the court’s own determination of value was based on sound reasoning. See Bisco v. Middleton, supra, Fontenot v. Fontenot, supra, and citations therein. In other words, in determining the market value of the property the court did not have to accept the experts’ testimony as to the highest and best use of the property. The values formulated using this highest and best use were calculated upon a speculative factor and did not tend to show the value of the subject property at the time the sale was transacted. Therefore, under the jurisprudential rule noted earlier, the court was not required to consider this evidence along with the other evidence of the property’s value.

It is notable that defendant’s expert only increased the market value of the subject property by $4,000 when taking the drainage project into consideration.

Plaintiff next argues that the court erred in basing its determination of value on whether the parties to the sale considered the sale to be lesionary. In its opinion, the court examined the Montgomery appraisal and noted that little weight was to be given to this estimate of value. The court stated that the appraisal did illustrate that at the time of the sale both the parties thought the price being paid was not lesionary.

It is well-settled that the vendor has the right to rescind a sale for lesion even though at the time of the sale he knows that the value of the property exceeds twice the price received. La.C.C. Art. 2589. See also Rogers v. Read, supra, and citations therein.

A thorough review of the record reveals that the trial court placed no weight on the finding that the parties did not consider the sales price to be lesionary but rather founded its determination of value on other competent evidence.

Plaintiff contends that the court further erred in basing its determination of value on an appraisal which was based on an incorrect assumption concerning the property.

In testifying, defendant’s expert, Graham, stated that the property had only eleven feet of frontage south of the thirty-foot drainage easement on North Market easement which virtually rendered ingress to the south end of the property impossible. Graham made a negative adjustment to accommodate the cost of a bridge necessary to gain access to the property. Plaintiff claims that Graham was incorrect as to the amount of frontage and therefore his negative adjustment based on this assumption was in error. The record reveals that plaintiff’s argument is without merit.

During the course of his testimony, Graham pointed out although there was substantially more than eleven feet of property frontage on North Market, a bridge was still- necessitated for commercial development to obtain optimum use of the property as the drainage ditch essentially divided the property in two and severely restricted full access to the property. A bridge crossing over the easement would greatly enhance accessibility from one portion of the property to the other which would be necessary to fully develop the property.

Plaintiff next argues that the court improperly disregarded the effect on the value of the subject property caused by the type of zoning which applied to the subject property.

In several of the common comparables used by the court, Young/Dupree had applied a 20% adjustment for zoning. In its opinion, the court stated that it disregarded these adjustments and accepted the expía-, nation of defendant’s expert as to why no zoning adjustment was necessary.

Young testified that in several of the original comparables, the sales were predicated upon rezoning and the adjustment was made in part to take into account the process of obtaining rezoning by the purchaser. Graham testified that he made no such adjustment considering the proposed use of the comparable and in one instance, final approval for the zoning change had been obtained prior to the sale.

The court was not in error in rejecting the zoning adjustment. There was not sufficient evidence in the record as to rezoning expenses or as to inferiority of one zoning classification as opposed to another to substantiate a 20% adjustment.

Plaintiff contends that the court’s method of determining market value of the subject property based upon averaging of the results of different comparables is improper and unjustified and cites State, Department of Highways v. Munson, 174 So.2d 923 (La.App. 1st Cir.1965) in support of this position.

In State, Department of Highways v. Munson, supra, the court held that “... averaging of opinions, though very convenient and probably sound in a case where there is very little difference between the opinions of the various experts, cannot be resorted to to reconcile greatly divergent estimates. To do so would encourage gross exaggerations on both sides and produce wholly unreliable expert testimony.” at p. 924.

The record is clear that the trial court, in making its calculations of value, clearly did not average the appraisals or opinions of the experts. Rather, the court carefully considered each appraisal, rejecting several comparables used by each appraiser. The court rejected some of the adjustments made on the remaining comparables and then utilized the remaining comparables and adjustments to formulate a market value. As the remaining comparables in each appraisal were the same three parcels of property, it is clear that the only thing the trial court averaged were some of the adjustments made by the appraisers on the same comparable sales.

The court in its opinion denying plaintiffs motion for a new trial stated that it found all of the experts to be highly competent appraisers and the court was not inclined to reject adjustments adequately explained by each appraiser, even though they were different.

The reason behind the rule prohibiting the averaging of appraisals is clear. If averaging was permitted, the parties to a suit would produce extremely exaggerated and highly divergent estimates of value to insure they would be protected. The trial court, in this instance, has not violated this rule. Adjustments, rather than appraisals, were averaged. By averaging these adjustments, the court merely gave equal weight to specific adjustments made by the appraisers.

Plaintiff argues that the trial court erred in determining the price given for the property was more than $22,750 by failing to discount defendant’s note to reflect the effect of the subordination clause in the mortgage securing the note and to reflect the 9% interest rate which was below the market rate of interest-at the time of the sale.

In determining whether a sale is lesionary, the court must examine the price given in terms of the usual credit given on sales of property of that description. When there is a variance from the usual credit terms, the credit price may be adjusted accordingly. La.C.C. Art. 1870. See also Parker v. Rhodes, 260 So.2d 706 (La.App. 2d Cir.1971).

At trial, plaintiff produced evidence as to the unusual nature of the subordination clause included in the mortgage which thereby reduced the value of the defendant’s note. Plaintiffs’ appraisers used a 25% adjustment in value to reflect the effect of the clause when computing the cash equivalency of the price given. Defendant’s appraiser testified that the reduction in value necessarily depended upon the net worth of the maker. Graham stated the note would be reduced in value by approximately $500, the cost of obtaining a letter of credit from defendant bank.

The trial court recognized that the clause did affect the value of the note but the reduction in value was not enough so as to render the sale lesionary.

The court noted that the evidence at trial showed the defendant-maker of the note to be of substantial net worth at the time of the sale. The court found that the 25% reduction figure used by plaintiff was not adequately supported.

In light of this evidence, it is the opinion of this court that the trial court did not err by failing to discount the value of the note by 25%. There was simply no evidence to support the seemingly arbitrary assignment of a figure of 25% by the expert. Rather, the evidence showed the maker to have substantial net worth at the time of sale to date which would act to offset any lack of security of the note caused by the subordination clause.

Although the court assigned no figure to the amount the note was reduced in value due to thé inclusion of the clause, it concluded that the reduction was not sufficient to render the sale subject to rescission on the ground of lesion. The evidence in the record fully supports this conclusion.

Plaintiff argues that the price given must also be discounted to reflect the effect of the 9% interest rate which was below the market rate of interest at the time of the sale. Plaintiffs appraiser, Du-pree, testified that considering the prime rate at the time of the sale, the correct interest rate should have been 12%. As noted earlier, defendant’s appraiser conducted a study of interest rates in owner-financed sales in Caddo Parish during 1979. He found the average rate of interest was 8.64%.

The record supports the court’s finding that 9%, as opposed to 12%, was a fair rate of interest at the time of the sale as substantiated by the Graham study and the court did not err in failing to discount the value of the note.

For these reasons, the judgment of the court in favor of defendant, James Franklin Page, and against plaintiff, Hugh Sneed, in his capacity as curator for Dodge E. Mullins, is affirmed at plaintiff’s costs.

AFFIRMED.

      . This description of the subject property is contained in the report of plaintiffs appraisers.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Glenn A. WILSON.
    No. KA-1801.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Rehearing Denied Oct. 29, 1984.
    Writ Denied Jan. 7, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., Kathy L. Torregano, Asst. Dist. Atty., New Orleans, for appellee.
    Richard V. Burnes, Alexandria, for appellant.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   GULOTTA, Judge.

Sentenced to three years’ imprisonment on his guilty plea to violating LSA-R.S. 14:95.1, possession of a firearm by a convicted felon, Glenn A. Wilson appeals the denial of his motion to suppress the evidence. We affirm.

On March 26, 1983, defendant stopped his vehicle at the corner of Martin Luther King Boulevard and Dryades Street in New Orleans, and offered undercover NOPD Officer Claudia Neal twenty dollars to “make love” with him. By a prearranged signal indicating that the crime of prostitution had been committed, Officer Neal alerted two other vice investigation policemen, who were watching 50-100 feet away in an unmarked vehicle. These officers, Anthony Radosta and David Stokes, then drove to defendant’s car and exited with an intention to arrest Wilson.

At a distance of 2-3 feet from the door of defendant’s automobile, Officer Radosta observed defendant lean back, pull something out of his waistband, and reach under the front seat with “something dark” in his hand that Radosta believed to be a pistol. Officer Stokes likewise observed defendant remove “some sort of contraband” from his waistband, although he could not see it clearly. Radosta “jumped back from the door”, drew his own pistol and yelled to his partner that defendant had a weapon. Ra-dosta then ordered defendant to get out of the car, and proceeded to handcuff him at the rear of the vehicle, while Stokes recovered a .38 Smith & Wesson revolver from under the seat of the car. The arrest and handcuffing of defendant by one police officer were almost simultaneous with the recovery of the weapon by the other officer.

After it was determined that defendant had a prior robbery conviction, he was charged with violating LSA-R.S. 14:95.1, possession of a firearm by a felon. Defendant pled guilty, reserving his right, pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), to appeal the denial of his prior motion to suppress evidence of the seized pistol.

ERRORS PATENT

Before turning to the merits of the motion to suppress, we note a single error patent on the face of the record.

In sentencing defendant to serve three years at hard labor without benefit of parole, probation or suspension of sentence, the trial judge failed to impose the additional mandatory fine of “not less than one thousand dollars nor more than five thousand dollars” required by LSA-R.S. 14:95.-KB).

In State v. Jackson, 452 So.2d 682 (La.1984), the Louisiana Supreme Court recently held that an appellate court “should disregard sentencing errors favorable to the defendant unless the prosecution has raised the issue in trial court and has sought appellate review.”

In the instant case, defendant alone has appealed solely on the issue of the denial of his motion to suppress physical evidence. The State has not raised any issue or sought appellate review concerning the trial judge’s failure to impose a fine in addition to the prison term. Under these circumstances, correction of this sentencing error in defendant’s favor would effectively result in a harsher sentence with a possible “chilling effect” on the exercise of the defendant’s right to appeal. See State v. Jackson, supra.

Accordingly, in light of the Jackson holding, supra, we will not remand the case for resentencing or otherwise amend the sentence imposed, despite our recognition of the error.

MOTION TO SUPPRESS

In his sole assignment of error, defendant contends the trial judge erred in denying his motion to suppress evidence of the pistol seized from his vehicle. Citing the established rule that a warrantless search incident to a lawful arrest is limited only to a search of the arrestee’s person and the area within his immediate control (for the purpose of protecting the arresting officer), defendant argues that the vehicle search was unreasonable because it occurred when he was in handcuffed police custody at the rear of his car without immediate access to the pistol under the front seat. We disagree. We conclude the search of defendant’s vehicle was a proper incident of his arrest for prostitution.

In State v. Drott, 412 So.2d 984 (La.1982), the Louisiana Supreme Court held that it is permissible for a police officer to search the interior of a automobile after lawfully arresting its occupant when the arrestee remains “in proximity of the vehicle.” The Drott majority cited language from the landmark United States Supreme Court case, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), to the effect that a policeman who has a made a lawful custodial arrest of an occupant of a vehicle, may “as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”

In Drott, supra, police officers had probable cause for the warrantless arrest of a security guard suspected of theft. After stopping the defendant’s truck, the two arresting officers ordered the defendant to get out of the vehicle, whereupon the officer took a revolver from the suspect. Within thirty to sixty seconds following the initial stop, one of the arresting officers searched the vehicle and recovered several hundred dollars in stolen cash. The search of the truck was held valid as an incident of the defendant’s lawful arrest.

In the instant case, police officers had probable cause to arrest Wilson for prostitution based upon Officer Neal’s prearranged signal that a vice violation had occurred in her presence. As in Drott, the arrest of defendant’and seizure of the evidence occurred closely in time; in fact, in the instant case, they were almost simultaneous. As Officer Radosta approached to make the arrest, he spotted the weapon, “jumped back”, yelled to his partner, ordered defendant out of the car, and proceeded to handcuff him while the second officer retrieved the weapon from under the front seat. Under these circumstances, the officers were clearly justified in seizing the weapon out of concern for their own safety. Moreover, defendant was clearly in “proximity” to his vehicle. Under the rationale of the State v. Drott and New York v. Belton, therefore, the seizure of the weapon was valid as a “contemporaneous incident” of his arrest.

In so holding, we distinguish State v. Blanchard, 374 So.2d 1248 (La.1979), relied on by defendant. In Blanchard, a defendant, who had been stopped for a brake tag violation, spontaneously exited his vehicle and approached the police officer, who proceeded to check his driver’s license. Because of the officer’s suspicion of the validity of the license, he called on his radio for verification of its authenticity. Another officer, patrolling in the area in his police car, heard the radio transmission and proceeded to the place where the stop had been made. His purpose was to assist “in the traffic stop”. A search of the vehicle was made after the first officer expressed a suspicion that the defendant had hurriedly put something under the car’s front seat.

The Supreme Court in Blanchard held that the subsequent seizure of cocaine under the car seat was unreasonable because at the time of the search the defendant was standing 2-4 feet from the closed front door of his vehicle in police custody and had no access to the area searched. We point out also that in Blanchard there was a considerable lapse of time between the arrest and the seizure. However, in the instant case defendant’s arrest and the seizure of the weapon occurred contemporaneously and under circumstances much more dangerous to the safety of the arresting officers than those present in Blanchard. One officer retrieved the pistol after his fellow officer spotted it, “jumped back” and “yelled” to him in the course of Wilson’s arrest. The sequence of events was much more rapid and spontaneous than in Blanchard. Furthermore, because the Blanchard decision predates the United States Supreme Court’s opinion in New York v. Belton, supra, and the Louisiana Supreme Court’s later opinion in State v. Drott, supra, its precedential value as authority for the scope of vehicle searches incident to valid arrests may be questionable.

Although it is not cited by defendant, we likewise distinguish State v. Hernandez, 410 So.2d 1381 (La.1982), where the Louisiana Supreme Court held a vehicle search unreasonable when a defendant arrested for DWI and reckless operation of a motor vehicle had been handcuffed and taken to the police station before the warrantless search of the car at the scene of the arrest. In the instant case, unlike Hernandez, the seizure of the weapon from the front seat of defendant Wilson’s car occurred virtually simultaneously with his arrest and handcuffing in proximity to his car. See also State v. Singletary, 442 So.2d 707 (La.App. 1st Cir.1983), which factually distinguishes Hernandez on similar grounds.

Despite our treatment of Hernandez, we are mindful of the existence of an apparent conflict between Hernandez and Drott concerning the application of New York v. Belton, supra, under the Louisiana constitution.

The Hernandez opinion states, in dicta, that it does not consider the Belton standard of vehicle searches to be a “correct rule of police conduct” under the Louisiana Constitution, which imposes “a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.” However, in the later Drott opinion, supra, the Court appears to apply the Belton standard without expressly overruling the Hernandez dicta or addressing the constitutional question raised by the earlier opinion. Perhaps the apparent conflict between Hernandez and Drott, vis a vis the Belton standard of vehicle searches incident to arrests, may be resolved by the Louisiana Supreme Court in the appropriate case.

Because we conclude under the facts of this case that the warrantless search of defendant’s vehicle was proper as incident to his lawful arrest, we find no error in the trial judge’s denial of the motion to suppress. The sentence imposed following defendant’s plea of guilty is affirmed.

AFFIRMED.

      . LSA-R.S. 14:95.1(B) prescribes the following penalty for possession of a firearm by a convicted felon: "Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars”. (Emphasis ours)

      . LSA-R.S. 14:82(b) defines the crime of prostitution as: "The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.”

      . In a separate opinion in State v. Drott, supra, however, Justice Dennis cited Hernandez and expressed a desire to grant a rehearing in Drott to consider whether the Louisiana constitution permitted the warrantless search of the vehicle under the circumstances in that case.


text:
    Kenneth JOHNSON v. Gregory DIXON and Louisiana Industrial Coatings. Kenneth JOHNSON v. AMAX NICKEL REFINING COMPANY, INC. and Underwriters Adjusting Company.
    Nos. CA-2022, CA-2023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Rehearing Denied Oct. 29, 1984.
    Writ Denied Dec. 14, 1984.

      Evangeline M. Vavrick, New Orleans, for appellee.
    Allain F. Hardin, William N. Hazlaris, Wiedemann & Fransen, New Orleans, for appellant, Gregory Dixon.
    Wilton E. Bland, III, Roch P. Poelman, Andrew C. Wilson, Hebert & Abbott, New Orleans, for appellant, Indus. Coatings.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   GULOTTA, Judge.

In these consolidated suits resulting from a physical confrontation between two workers at a chemical plant, defendants appeal from a judgment in favor of plaintiff for personal injuries. In answer to the appeals, plaintiff seeks an increase. We affirm.

On November 2, 1978, Kenneth Johnson, an employee of Amax Nickle Refining Company, Inc. (Amax), became involved in an argument with Gregory Dixon, an employee of Louisiana Industrial Coatings (LIC), an independent sandblasting and painting contractor at the Amax plant, after Dixon sprayed him with coal tar in the course of his work. During their heated verbal exchange, Dixon pushed Johnson.

Johnson’s personal injury suit against Dixon and LIC was consolidated with his worker’s compensation claim against Amax. Continental Insurance Company, Amax’s insurer, sought reimbursement for medical and compensation payments made to plaintiff.

Following a trial on the merits, a $273,-593.78 judgment was rendered in favor of Johnson and against Dixon and LIC, in solido. Further judgment in the sum of $150,132.75 was rendered in favor of Continental and against Johnson, on Continental’s claim in intervention.

Appealing, LIC contends that it is not liable under a theory of respondeat superi- or because its employee Dixon acted outside the course and scope of his employment. Alternatively, LIC argues that Johnson’s recovery should be barred, or at least mitigated, because of his own aggressive conduct justifying Dixon’s push. LIC further contends that Johnson failed to prove medical causation between the incident and his subsequent neck and lower back complaints. Finally, LIC claims the award is excessive.

In his separate appeal, Dixon likewise argues that Johnson's provocation justified the push, thereby barring or mitigating Johnson’s damages. Alternatively, he argues that Johnson’s “mutual combat” constitutes contributory negligence. If found at fault for the incident, however, Dixon contends that the altercation arose out of a work-related conflict, making his employer LIC vicariously liable. Further in the alternative, he asks that his limited financial means be considered in rendering any judgment against him.

In answer to the appeals, Johnson seeks an increase of the $273,593.78 judgment to $703,017.48, for future medical expenses, past and future loss of earnings, pain and suffering, and permanent physical impairment.

PROVOCATION

The argument ensued after Johnson, an Amax chemical operator working on the floor of the plant, was hit by some coal tar sprayed by Dixon, an LIC painter working overhead.

According to Dixon’s version of the incident, someone working on the floor below “yelled up” at him and his partner to stop painting. Although Dixon testified that he had been instructed by his supervisor that he had “top priority” and was not to shut down his operation unless ordered by his foreman, he decided to stop, to “give the guy a break”. Shortly thereafter he resumed spraying, whereupon Johnson called him a “white bitch” and a “mother f~ — r” and said, “Come down here and I am going to kick your ass.” According to Dixon, after he descended to tell Johnson what the procedures were and to see if he would kick him, Johnson “made a flinching motion” and Dixon reflexively pushed him away. Dixon testified that Johnson did not fall.

On the other hand, Johnson testified that after yelling to Dixon to stop spraying the second time, Dixon hollered, “You can’t tell me what to do. My supervisor is the only one that can tell me.” Johnson further stated that Dixon called him a “nigger” and threatened to come down and spray him “black". According to Johnson, after further argument he turned to get his supervisor, whereupon Dixon pushed him against a steel beam. Johnson denied cursing or striking Dixon.

Johnson’s version of the incident was corroborated by Larry Jones, Dixon’s coworker. According to this witness, Johnson “didn’t want to fight”, and he did not see him make a move before Dixon pushed him into a beam. Although Jones thought there was going to be a fight, he testified that Johnson “didn’t fight back.” Although he did not witness the push, another worker in the area, Edward Frazier, Jr., also saw Johnson fall and strike a beam.

After a plaintiff in a battery case proves a prima facie case, the defendant must prove justification or provocation for the battery under the particular circumstances. Dean v. Nunez, 423 So.2d 1299 (La.App. 4th Cir.1982), writ denied 430 So.2d 76 (La.1983); Freeman v. Lee & Leon Oil Co., Inc. 409 So.2d 408 (La.App. 4th Cir.1982). To establish provocation, the defendant must show some conduct or action by the plaintiff sufficient to provoke and arouse the defendant to the point of physical retaliation. Knuckles v. Beaugh, 392 So.2d 710 (La.App. 3rd Cir.1980). Mere words, however, even if designed to excite or irritate, cannot excuse a battery. Morneau v. American Oil Company, 272 So.2d 313 (La.1973); Dean v. Nunez, supra.

The evidence considered, we find no error in the trial judge’s implicit conclusion that Johnson did not provoke this incident. Before Dixon’s push, the two men had exchanged some profanity. Indeed, Dixon himself acknowledged that the words involved were commonly used by construction workers and that nobody gets too excited by them. Johnson’s movement in turning away, which Dixon interpreted as an attempted punch, did not justify a physical retaliation. Significantly, Dixon demonstrated Johnson’s “flinching motion” at trial for the court’s benefit. As a matter of credibility, we cannot say the trial judge erred in failing to interpret Dixon’s push as a justifiable act of self-defense.

We therefore conclude that Johnson’s behavior during the incident did not constitute aggression or mutual combat sufficient to bar or limit his recovery.

RESPONDEAT SUPERIOR

We likewise reject LIC’s argument that its employee Dixon was not acting within the course and scope of his employment during the incident. According to LIC, Dixon’s personal motives to punish Johnson for racial taunts and to “appease his own machismo” were not in furtherance of LIC’s interests as an independent contractor at the Amax plant. We disagree.

An employer’s liability under the doctrine of respondeat superior for the tor-tious act of its employee depends on the facts and circumstances of each case, including whether the employee’s conduct is closely related in time, place and causation to his employment. LSA-C.C. Art. 2320; Schaeffer v. Duvall, 421 So.2d 262 (La.App. 4th Cir.1982), writ denied 427 So.2d 1209 (La.1983); Puccio v. Finch, 454 So.2d 272 (La.App. 4th Cir.1984). When a dispute involving an employee erupts into violence, the question is whether it was “primarily employment-rooted” and regarded as “a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s business interests.” LeBrane v. Lewis, 292 So.2d 216 (La.1974); Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4th Cir.1980), writ denied 392 So.2d 690 (La.1980); Gautreau v. Davis, 350 So.2d 268 (La.App. 4th Cir.1977), writ refused 352 So.2d 236 and 237 (La.1977).

In the instant case, the dispute between Johnson and Dixon concerned which worker had priority to perform his job in the area. Dixon understood that LIC painters were not to stop spraying unless so instructed by an LIC supervisor, whereas Johnson believed that Amax employees had priority and could stop LIC painters if they interfered with Amax work.

Dixon testified that he had approached Johnson to explain that he could not stop spraying at his request and to inform him of the proper procedure, as well as to see if Johnson would carry out his threat to kick him. According to Johnson, the dispute began when Dixon sprayed him and said he would not stop for him or anyone but his supervisor. In an accident investigation report of the incident, Ronald Burmaster, an Amax supervisor, indicated that Dixon and Johnson’s working in the same area and the painters’ instructions “not to shut down their operation, unless notified by their foreman” were the conditions contributing most directly to the accident.

Although racial slurs and some personal bravado were undoubtedly involved, it is clear that this argument between these workers was primarily employment-rooted and reasonably incidental to the performance of each worker’s duties in furtherance of his employer’s business. Accordingly, we find no error in the trial judge’s conclusion that Dixon acted in the course and scope of his employment, thereby making LIC solidarily liable under the doctrine of respondeat superior for his tortious conduct.

CAUSATION

We likewise find no merit to LIC’s contention that Johnson failed to prove causation between the November 2,1978 incident and his back and neck injuries. According to LIC, Johnson’s trauma from Dixon’s “slight defensive push” was “minimal”. We disagree.

Johnson testified that Dixon’s push caused him to fall backward against a steel beam and land in a sitting position on the floor after hitting a concrete foot high embankment at the bottom of the beam. After receiving first aid from the company nurse on the day of the accident, he worked in increasing pain until November 13, 1978, when he physically left work at Amax and never returned.

On November 16, 1978, plaintiff saw Dr. William H. Hill, who diagnosed his condition as cervical, thoracic and lumbar sprain, with the main problem in the lumbar area. Dr. Hill prescribed conservative treatment in follow-up visits but the pain continued. On January 10, 1979, Dr. Hill indicated plaintiff might possibly have some disc problem.

While seeing Dr. Hill, Johnson was also treated by Dr. Robert Segura, a specialist in industrial medicine with emphasis in or-thopedies. In a January 3, 1979 examination, Dr. Segura found mainly subjective complaints of low back pain with no positive findings. He diagnosed plaintiff’s condition as “lower back contusion” and prescribed conservative treatment. In followup visits of January 10 and February 2, 1979, Dr. Segura found no change in plaintiff’s condition and no evidence of nerve root problems or disc problems in the lumbar area. He felt Johnson was free to return to work, but acknowledged that tests sometimes show disc irregularities in patients who have no objective findings.

On January 18, 1979, on Dr. Hill’s referral, plaintiff was examined by Dr. James Williams, an orthopedic surgeon. His examination of plaintiff’s lower back revealed no nerve root compression or spasms. Although his x-rays were normal, Johnson experienced decreased sensation to pin pricks in his lower left leg from the groin to the toes. Dr. Williams testified it was not unusual for a herniated disc to remain latent for six months and then appear.

On March 7, 1979, plaintiff saw Dr. Richard W. Levy, a neurosurgeon, on continued complaints of low back pain, and numbness and tingling in his leg and left forearm and hand. Although Dr. Levy found no evidence of nerve root injury or lumbar disease, it is significant that he did detect an objective symptom of spasm in the lumbar region. He suggested an orthopedic evaluation.

On May 16, 1979, as a referral from Dr. Hill, plaintiff underwent a neurological evaluation by Dr. Richard D. Palmer, on complaints of lumbar pain, leg numbness and shaking of the left arm. Although Dr. Palmer found no spasm, he thought plaintiff should have an electromyelogram and undergo never conduction studies.

On July 16, 1979, Dr. Naum Klainer, an orthopedic surgeon, examined Johnson to determine his disability status for the Louisiana Department of Health and Human Resources. Although this physician detected no spasm, he found diminished leg reflexes and other findings that were compatible with possible nerve root irritation caused by a disc. Dr. Klainer considered Johnson disabled until further examination to rule out nerve damage.

On July 24, 1979, Johnson began treatment under Dr. Amilcar J.E. Correa, a neurosurgeon. This physician’s initial impression was that plaintiff had lumbar sprain, but x-rays and an electromyelogram showed evidence of neurogenic atrophy and nerve root involvement at the L-5- — S-l level. When plaintiff was hospitalized on August 13, 1979, a myelogram showed a defect at the L-4-5 disc space consistent with a ruptured disc. Following prolonged conservative treatment without improvement, plaintiff was hospitalized again from April 30 through May 17, 1980, when he underwent a discectomy and a laminectomy at the L-4-5 level.

In addition to his low back problem, Johnson had also complained to Dr. Correa of neck pain in late April, 1980. • An elec-tromyelogram on May 6, 1980 showed nerve root degeneration and defects in the cervical veterbrae.

Following a back operation, plaintiff continued with conservative treatment including traction during a ten-day hospitalization in September, 1980. During his re-hospitalization from July 27 through August 3, 1981, a myelogram showed defects in the L-4-5 surgery area, as well as cervical defects. After further conservative treatment and confirmation in a CAT scan and another myelogram, plaintiff underwent an anterior cervical discectomy and fusion at the C4-5, C5-6 levels during hospitalization from March 19 through April 13, 1982. Meanwhile, he underwent psychological treatment for severe depression.

Plaintiff was followed by Dr. Correa in several other visits through October 22, 1982. His neck had improved, but he continued to experience low back pain with numbness in his legs. A CAT scan on December 30, 1982, showed scarring around the nerve roots in the lower back from myelograms. At the time of trial, on April 19, 1983, Johnson was still undergoing outpatient physical therapy and counseling for persistent depression.

Dr. Correa testified that plaintiff had good results from the cervical operation, but continued to have persistent complaints about his lower back. Although he stated that Johnson was 100% disabled for manual labor, this physician felt he could be trained for “sedentary” work. Dr. Correa was of the opinion that plaintiff’s lower back and cervical disc problems were caused by the November 2, 1978 injury. He did not find the delay in complaints about the neck problems until April, 1980, to be medically significant, since plaintiff’s back pain from the accident could have masked the neck symptomatalogy.

The medical evidence considered, we conclude, as did the trial judge, that Johnson established causation between the work-related incident and his disabling neck and lower back disc injuries requiring surgery. Accordingly, we find no error.

QUANTUM

In his written “Reasons for Judgment”, the trial judge stated:

“The Court has no difficulty in assessing liability, however, the evidence presented at trial was not as specific or clear as it should have been with respect to damages and injury suffered and received by plaintiff. Damages cannot be awarded on a speculation of the parties. In this case the evidence offered by plaintiff leaves much to be desired in precisely and accurately computing and awarding damages and accordingly the Court has computed damages in the light most favorable to plaintiff....”

The $273,593.78 award includes $43,593.78 in stipulated past medical damages, with the remainder for unspecified future medical expenses, wage loss and general damages.

In answer to defendants’ appeals, plaintiff seeks an increase to the sum of $703,-017.48 to include: $43,593.78 for past medical expenses; $32,180.00 for future medical expense, $87,243.70 in past loss of earnings, $140,000.00 for future loss of earnings; $200,000.00 for mental anguish, pain and suffering; and $200,000.00 for physical impairment of bodily functions. On the other hand, LIC contends the trial court’s award is excessive. Dixon, who presented evidence of his poverty at trial, seeks mitigation of damages in light of his limited means.

We reject plaintiff’s claim for an increase. Although Johnson presents detailed and skillful arguments for a higher award based on specific dollar amounts for each aspect of his loss, the evidence adduced at trial simply does not support those figures.

Plaintiff’s claim for $32,180.00 in future medical expenses is composed of $20,000.00 for surgery and hospitalization, and $12,180.00 for out-patient treatment at the rate of $420.00 per year during his 29 year life expectancy. Significantly, however, Dr. Correa merely alluded to the possibility of future surgery, and did not indicate that plaintiff would be required to have regular out-patient care for the balance of his life. Under these circumstances, plaintiff’s argument is unfounded.

•[11] Similarly, we are not persuaded by plaintiff’s claim for $140,000.00 for future loss of earnings. Johnson’s argument for this specific amount is based on a 28.5 year work life expectancy and an annual income loss of $12,642.84, discounted at 8%. This figure assumes, however, that Johnson would have continued to earn his 1977 career high earnings of $20,234.84 per year, had his injuries not relegated him to “some form of minimum wage employment” in the future. We reject this approach.

Although a stipulated letter from Amax indicates plaintiff’s earnings and work history prior to the injury, proof is lacking that Johnson would have continued to earn an annual income comparable to or greater than his 1977 salary. Moreover, Dr. Cor-rea only testified that plaintiff could no longer do manual labor, although he may be capable of performing sedentary work. He did not state that such non-physical work will be at a minimum wage or of a menial nature. Plaintiff’s claim for a specific future wage loss of $140,000.00 is simply not supported by the record.

We recognize that Johnson has proven a permanent medical disability as a result of this accident, and has presented evidence of pain and suffering from serious injuries that have required extensive treatment and surgical intervention. We recognize also that future loss of earnings, while somewhat speculative in character, cannot be calculated with absolute, mathematical certainty. See Robinson v. Graves, 343 So.2d 147 (La.1977); Roundtree v. Technical Welding & Fabrication Co., 364 So.2d 1325 (La.App. 4th Cir.1978). Nonetheless, as noted by the trial judge, we are confronted with a record that simply does not support the specific dollar amounts sought by plaintiff. Considering the evidence, or the lack thereof, we conclude the trial court’s award is neither inadequate nor excessive.

We likewise reject Dixon’s argument for a reduction based on evidence of his poverty. We cannot say the trial judge failed to consider Dixon’s means in setting the award. Moreover, this argument might be more persuasive had Dixon been cast solely liable, rather than liable in soli-do. We find no basis for reducing the award.

Accordingly, for the foregoing reasons, the judgment is affirmed.

AFFIRMED.