author: BOWES, Judge.

text:
    Dorothy Simkin STOLIER v. Bert STOLIER.
    No. 8708.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 9, 1978.

      Zelden & Zelden, Max Zelden, New Orleans, for Dorothy Simkin Stolier, plaintiff-appellant.
    Rudman & Howard, Lawrence D. Rud-man, New Orleans, for Bert W. Stolier, defendant-appellant.
    Before GULOTTA, BEER and BOWES, JJ.
   BOWES, Judge.

Plaintiff, Dorothy Simkin Stolier, obtained a judicial separation from her husband, Bert Stolier, on the ground of abandonment. The judgment of separation granted custody of the minor child to the mother and condemned the father to pay one-third of each monthly pay check as child support and alimony pendente lite.

Later, on November 23, 1971, on the ground of no reconciliation, the husband obtained a divorce. In accordance with an agreement between the parties, that judgment declared the wife was without fault in the separation and awarded her permanent custody of the minor. By consent and agreement among the parties, that judgment also provided for permanent alimony and child support in an amount equal to one-third of the husband’s monthly income, after taxes, until such time as the minor child reached the age of majority, at which time the alimony was to be reduced to a sum to equal 28% of the plaintiff’s monthly income “from all sources, after taxes”. Following the divorce, the husband remarried and the child is now no longer a minor.

Mr. Stolier, a commissioned salesman with earnings of $60,000 per year, made payments from 1971 to. October, 1975, totaling approximately $82,000. He discontinued payments following an operation which left him apparently totally disabled.

After receiving no payments for several months, the wife filed a rule for contempt and the husband thereafter filed a rule to terminate or, alternatively, to reduce the alimony. The rules were consolidated for trial and judgment was rendered purging the husband of contempt, superceding all agreements between the parties relative to alimony, and ordering Mr. Stolier to pay his former wife $175 per month beginning July 1, 1976. Both parties have appealed.

In this court Mrs. Stolier contends: (1) consent to the payment of alimony is a judicial admission of the wife’s necessitous circumstances and her right to receive alimony; (2) her former husband has failed to show a change of circumstances entitling him to modification of the alimony granted in the divorce decree; and (3) his second wife’s income should be considered in determining the amount of the alimony award.

Mr. Stolier contends: (1) his former wife is not in necessitous circumstances, and thus not entitled to alimony, or, in that the alimony should be reduced to $175 per month, the amount finally awarded by the trial judge.

We agree that consent to the payment of alimony is a judicial admission of the wife’s right to receive alimony and her necessitous circumstances. The jurisprudence is also to the effect that judgments awarding alimony and support, including consent judgments such as the one here, are always subject to modification and may be adjusted at any time to meet the changing needs of the wife and the husband’s ability to pay, or revoked entirely, if it becomes necessary, or if the wife remarries.

It is obvious, therefore, that the wife’s right to alimony is predicated on her not having income sufficient for her maintenance.

The uncontradicted evidence shows that the former Mrs. Stolier is a part-time secretary to a doctor. She earns $406.77 per month or $94.42 per week. She was earning $70 per week at the time of the consent judgment of 28% of all the husband’s income after taxes in November, 1971. She also has $1,800 per year interest from securities and savings (the equivalent of approximately $150 per month). These figures translate into an annual income of approximately $6,685 per year now as compared to $3,640 per year in 1971. In addition thereto, she has $29,000 in municipal bonds. It is not clear from the record whether the tax free income from these bonds is included in the $1,800 per year she receives. We assume it is since such income from bonds is normally called “interest”, $4,125 on deposit in a homestead, and $255 in a checking account.

The husband receives the sum of $18,000 per year from his disability insurance which we hold constitutes “income” within the purview of the consent judgment of November 3, 1971, $502 interest on savings accounts, and one-half of $4,355 interest per year or approximately $2,177,'from a corporation in which his present wife has an interest, according to their joint tax returns, all of which items we also hold constitute “income” to the husband. Im-primis, we hold that in determining the husband’s property and earnings, income from all sources, including that of the second wife should be taken into consideration. His present wife owns, or has an interest in, and derives income from a business known as Swenson’s Ice Cream. Corporate 1975 federal tax returns indicate the firm operated at a loss in that year. However, $10,843 of that loss is represented by a bookkeeping entry for depreciation. If one-half of this is added back, the hüsband has an additional $5,000 in “income from all sources”. Thus, it appears that the .husband’s present annual income amounts to a figure of either $20,679 or $25,679, depending upon the accounting point of view. The husband itemized his living expenses at $1,593.50 per month.

For the court to alter an alimony agreement established by a consent judgment, or otherwise, the party seeking modification must show a change in circumstances of either party from the time of the. award to the time of trial of the alimony rule.

The wife contends that the award- of 28% granted in the divorce decree takes into consideration changing circumstances. (In passing, we note that C.C. Art. 160 permits the court to award an amount not to exceed one-third of the husband’s income.) While it is true the 28% is flexible, and does take' into consideration changing circumstances of the husband, it is still subject to modification by the court on the basis of fairness and equity and in accordance with the changing situations of the parties as seen by the court.

We are of the opinion that the husband has proven a change in circumstances. He has shown that his income from all sources has dropped from some $60,000 per year to $20,679 or $25,679 per year and his health from that of a healthy substantial wage earner to that of complete disablement, or practically so. He has also shown that his former wife’s income has risen from $3,640 to $6,685 per year.

However, $1,800 of the wife’s income is composed of interest from investments arising from her frugality in saving funds received from the community property settlement and the past alimony payments, which are rightfully hers by virtue of the marriage and the original consent judgment and by astutely investing these funds. In O’Brien v. O’Brien, 308 So.2d 333, 336, La.App., (1975), our brothers of the First Circuit Court of Appeal held, under relatively similar circumstances “[that] to punish her for this prudent handling of her affairs would be unjust.”

We feel that the same rule should apply here and thus $1,800 of the increase in the wife’s income should not be considered in judging the husband’s rule to decrease.

We are aware that the record is bare with regard to the wife’s expenses at this time. If the wife chose not to present evidence in this regard, we can only assume that her expenses have not substantially increased since 1971, or surely she would have been forcefully alleging same. She must bear the consequence of such lack of evidence as, surely, it is not up to the trial judge to demand same.

Conversely, if the wife offered no evidence regarding her expenses, it was surely the burden of the husband to question her, or show by other evidence, that her expenses had decreased if such were his contention. He failed to do so and is bound by his original judicial admission of her right to permanent alimony by the 1971 consent judgment.

However, we do not feel that the lack of such evidence prevents us from deciding the case without remanding it. We are still faced with the evidence that the husband’s income has decreased from $60,-000 to approximately $20,000 or $25,000 per year while the wife’s income has increased moderately. The husband was paying the wife 28% of $60,000 after taxes. The record does not reveal the exact amount but the sum was obviously equal to $15,000 per year, less taxes, or $1,250 per month less taxes — and the alimony itself was deductible. He would have us terminate all alimony to the wife, or affirm the trial court’s award of $175 per month, and the wife would have us leave, without disturbance, the original agreement of 28% of all income, less taxes.

We do not agree with either contention, but we do feel some decrease is merited under the circumstances. Considering all the factors, we feel the alimony should be reduced to $350 per month, which amounts to approximately 18.5% of an average annual income of $22,500. Obviously, we are unable to compute the taxes of this amount. The reduced alimony is to date from June 11, 1976, when the rule to decrease was filed.

In addition, the wife is entitled to 28% of all of those items which we have classified hereinabove as “income” from January 1, 1976 to June 11, 1976, in accordance with the original consent judgment dated November 3, 1971.

For the reasons assigned, the judgment of the Civil District Court for the Parish of Orleans is amended and affirmed in part and recast in part as follows:

It is ordered, adjudged and decreed that Bert W. Stolier be and he is hereby condemned to pay back-due alimony to Dorothy Simkin Stolier in an amount equal to 28% of plaintiff’s income from all sources from January 1, 1976 to June 11, 1976, and alimony in the sum of $350 per month thereafter. The amount of past due alimony, that is the amount due from January 1, 1976 to the date of this decree shall bear interest at the legal rate. In all other respects, the judgment appealed from is affirmed. All costs of these proceedings are taxed against Bert W. Stolier.

AMENDED & AFFIRMED IN PART; RECAST IN PART.

      . Bernhardt v. Bernhardt, La., 283 So.2d 226.

      . Ward v. Ward, La., 339 So.2d 839; Smith v. Smith, 217 La. 646, 47 So.2d 32; Russo v. Russo, 208 La. 17, 22 So.2d 671; Slagle v. Slagle, 205 La. 694, 17 So.2d 923; Scott v. Scott, 197 La. 726, 2 So.2d 193.

      . Abbott v. Abbott, 199 La. 65, 5 So.2d 504; Jackson v. Burns, 112 La. 854, 36 So. 756.

      . Houghton v. Hall, 177 La. 237, 148 So.37; Swider v. Swider, La.App., 314 So.2d 372; LSA-C.C. Art. 2334.

      . Ducote v. Ducote, La., 339 So.2d 835; Swider v. Swider, supra, note 4.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    GUEDRY FINANCE COMPANY, INC. v. Oscar M. SANDERSON.
    No. 8763.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Warren M. Simon Jr., Metairie, for Gued-ry Finance Company, Inc., plaintiff-appellant.

      George J. G. Roux, New Orleans, for the Legal Successors of Oscar M. Sanderson, defendant-appellee.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

Defendant heirs of Oscar M. Sanderson obtained an ex parte order dismissing plaintiff’s suit as abandoned under C.C.P. Art. 561. Plaintiff filed a rule nisi questioning the validity of that order, and judgment was rendered dismissing the rule and maintaining the order of dismissal of suit. Plaintiff appeals.

The pertinent facts are that Guedry Finance Company, Inc. filed a suit on a promissory note January 21,1971, and the sheriff returned citation not served, February 1, 1971. Within five years of those dates nothing was done except on November 14, 1975, plaintiff filed a motion to withdraw the promissory note from the registry of the court to use in another suit against these heirs. The sole question is did thát action constitute a step in the prosecution so as to prevent abandonment? Louisiana Code of Civil Procedure Article 561 states in pertinent part:

“An action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

The interpretation of that rule is that a step in the prosecution of a suit requires some formal move which must appear in the court record in the subject court and intended to hasten judgment therein. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975). A motion to withdraw the promissory note upon which the suit is based may have been of assistance in prosecuting the other suit, but it is certainly not a step in the prosecuting of this suit. See for example, Lips v. Royal Insurance Company of Liverpool, 149 La. 359, 89 So. 213 (La.1921) arising under then Civil Code Article 3519 in which a motion for permission to withdraw the record was made.

The judgment is affirmed.

AFFIRMED.


text:
    Eldon A. PALMER v. Cecil M. KEENEY, Amon W. Kersteter, George Ventura, Harold Hebert, I. B. Alley, Jr., and Employers Insurance of Wausau.
    No. 8780.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.

      Jim Garrison, Tucker, Schonekas & Garrison, New Orleans, for Eldon A. Palmer, pláintiff-appellant.
    Wood Brown, III, of Montgomery, Barnett, Brown & Read, New Orleans, for Cecil M. Keeny, et ah, defendants-appellees.

      Before REDMANN, GULOTTA and BOUTALL, JJ.
   BOUTALL, Judge.

Plaintiff, Eldon A. Palmer, appeals a summary judgment dismissing his tort suit against officers of his employer for personal injuries which occurred in the course and scope of his employment.

The injury occurred on March 1, 1973 while plaintiff was working for Equitable Equipment Company, Inc., where construction of new ships, Lash barges, took place. As a result he came within the coverage of the benefits provided in the United States Longshoremen’s and Harbor Workers’ Compensation Act, as amended by the 1972 amendment, 33 U.S.C.A. Sections 901, et seq., 902, 903(a), and the benefits provided in the Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1101, prior to its 1976 amendment. This issue as well as several other issues raised have been settled by the case of Poche v. Avondale Shipyards, consolidated with Adams v. Hartzman, 339 So.2d 1212 (La.1976), appeal dismissed, Territo v. Poche, 434 U.S. 803, 98 S.Ct. 31, 54 L.Ed.2d 60, which is controlling of all of the issues herein. That case held that the federal and state compensation statutes can operate concurrently and that the injured employee has the right to elect under which system he will pursue his remedies. Our case is a tort proceeding under the state system for damages against certain officials, a plant manager, superintendent and maintenance foreman of the employer. The issue is whether plaintiff has made an election of the federal benefits, and is thus precluded from proceeding in tort under the state system.

The Supreme Court in the Poche-Adams case, supra, in per curiam on rehearing stated (339 So.2d 1225):

“Applicant Adams properly points out in his application on rehearing that there is no evidence in the record establishing that he made an election, or a choice of L.H.C.A. remedies, but only evidence that he has accepted benefits under the L.H. C.A. Act.
“In light of the following cases: Calbeck v. Travelers Insurance Company, 370 U.S. 114, 116, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962); Holland v. Harrison Bros. C. Dry Dock and Repair Yard, Inc., 306 F.2d 369 (5th Cir. 1962); Griffin v. Universal Underwriters Insurance Company, 283 So.2d 748 (La.1973), and Ryder v. Insurance Company of North America, 282 So.2d 771 (La.App. 3d Cir. 1973), we deem it advisable to vacate our original judgment as to plaintiff Adams and to remand the case to the district court for the purpose of trying the issue of whether Adams elected federal benefits.”

Accordingly, we consider those cited cases to embody the principles and standards we should use in determining if the employee has made an election.

There .is no dispute in our case as to material facts, although there is a dispute as to the conclusion to be drawn from those facts. To some degree this involves a consideration of the intention of plaintiff, not generally a subject for summary judgment, but we believe the uncontested facts to be decisive herein.

After plaintiff’s injury, his attorney timely filed a claim for compensation under the federal Longshoremen’s and Harbor Worker’s Act with the Deputy Commissioner’s office and also filed in the Civil District Court for the Parish of Orleans a suit for Louisiana workman’s compensation benefits and this suit, a tort suit for recovery of his injuries against executives and employees. We do not consider the filing of those suits to constitute an election, but simply to be the action of a cautious practitioner aware of the confused status of the law at that time. Initially, he was sent benefits under the state compensation law and refused federal benefits by the insurer. After some proceedings taking place in the federal Deputy Commissioner’s proceeding, the insurer changed its position and then he was sent benefits under the federal LHWCA. At first Palmer refused to accept these benefits and returned them, and attempted to withdraw his federal claim. The insurer resisted the withdrawal of Palmer’s claim, and the Deputy Commissioner, after consideration, refused to permit withdrawal from the federal system.

The issue was then appealed by Palmer to the Benefits’ Review Board and was remanded to the Deputy Commissioner to determine whether he had in fact denied claimant’s request to permit the withdrawal of this claim. The matter came before an administrative law judge for this purpose, and he concluded that the Deputy Commissioner did not act arbitrarily and did not abuse his discretion in denying the claimant’s request for withdrawal. It was noted that the action of the insurer in commencing previously refused payments and resisting the withdrawal was not a matter of altruism but a matter of seeking to protect itself against the possible consequences of the existing state suit against the employer’s officials. Nevertheless, the judge noted that the Deputy Commissioner had the discretion to approve or disapprove in the claimant’s best interest, and upon the showing that the accrued compensation owed to that date amounted to more than $18,000, and that the claimant was entitled to be paid weekly compensation of $108.69, together with reasonable medical expenses from the injury, apparently without limitation as to time, that his discretion dictated the continuance of federal benefits rather than the possible risk of loss which could be faced in the prosecution of the state actions.

At this stage of the proceedings, it would appear that plaintiff had clearly made an election to pursue state benefits rather than federal benefits and was only prevented from doing so by the refusal of the Deputy Commissioner to approve withdrawal of his claim. However, following this, two other events took place which cast doubt upon this clear election, which appellee contends show reversal of election or at least acquiescence in the federal benefits.

The first of these is failure of the employee to prosecute an appeal from the ruling of the administrative law judge referred to above. Although an appeal was permitted from that ruling, the employee chose not to prosecute that appeal, contending that it would be useless and unavailing under the legal circumstances. Considering appellee’s contentions, there exists a dispute over the reasons for nonprosecution of the appeal, and if that is a material fact, this being summary judgment, we would have to reverse the decision. However, there is no way to determine the truth of the reason advanced, for this we could only speculate what was in the employee’s mind. We consider material only the fact that he did not appeal. We believe the case of Ryder v. Insurance Company of North America, supra, to be persuasive of our determination that the failure to appeal under the circumstances existing had no effect on the employee’s right to proceed under state law. We note that the employee had filed for benefits under both jurisdictions, and that the insurer was paying benefits under the state law. It was as a result of the insurer’s election to stop paying state benefits and to voluntarily pay federal benefits, that the federal suit got in the posture that developed, wherein the original claimant for benefits is then insisting that he is not entitled to benefits because he does not want them, and the insurer is contending that its obligation is to pay under the federal statute. The obvious basis for the rule expressed in the Poche-Adams case is that the election or choice is the right of the claimant and not the right of the insurer or employer. The decision against the employee is final and conclusive only as to his rights arising in the federal suit, and does not preclude him from seeking an award of compensation in accordance with Louisiana law. See for example Griffin v. Universal Underwriters Insurance Company, supra.

The second event is that, after a period of rejecting tender of the checks for the amount due under the LHWCA, the employee then began accepting the checks, cashing them, and at the time of trial was current with the payments due under the LHWCA. The benefits he has received thereunder are in excess of that to which he would be entitled to under Louisiana law at the concurrent point in time and will continue to be greater over the effective date of the respective payments. It is argued to us that the final acceptance of these payments constitutes an election to receive the federal benefits, and especially because the amount received greatly exceeds the amount due under the Louisiana system. We do not agree. As we see it, the basic purpose of the workman’s compensation laws is to enable an injured worker to receive some payments for his support during his disability. Under the holding in the Poche-Adams case, the workman is entitled to make an election or choice of which system of benefits he shall receive. In a case such as this, where the insurer is the same person in each system the insurer, by offering the workman whatever benefits it chose and withholding the other, could force a penurious workman to accept benefits under the one system, and then contend that this alone constituted an election. Such are the facts as we have before us, with an additional fact we deem not controlling. The insurer, by its shift in decision as to which benefits it would pay, has presented the workman with a situation where he must accept the federal benefits, or be deprived of any at all until he is able to obtain relief under the state system. We believe such a forced election is not such an election as meets the standards proposed to us in Poche-Adams. The fact that the federal benefits received are in excess of those which may be received under the state system is a fact which may be considered by the appropriate court by granting credit for the payments made. See Griffin v. Universal Underwriters Insurance Company, supra, and Holland v. Harrison Bros. Dry Dock and Repair Yard, Inc., supra.

Accordingly, we conclude that the undisputed facts do not show an election to accept the federal benefits to the exclusion of the Louisiana benefits, and the motion for summary judgment should have been denied. We reverse the judgment appealed from and remand this matter for further proceedings in accordance with the views expressed herein.

REVERSED AND REMANDED.

      . The additional fact is that the workman also finally cashed a $4,058.92 check for the difference in amounts between the state compensation benefits which were at first paid by the insurer and the federal compensation benefits which the insurer later decided it was to its advantage to pay.


author: GARSAUD, Judge.

text:
    Floyd Leon WIXOM, Jr. v. The TRAVELERS INSURANCE COMPANY, Joseph R. Ruppel, Willie J. Rucker, Jr., Edmond E. Himel, Jr., Ottis Burck, Curtis Hanson, the Black and Decker Manufacturing Company, and the Liberty Mutual Insurance Company.
    No. 8885.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.

      Frey & Wheelahan, Richard B. Stricks, New Orleans, for plain tiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart R. Niles, Jr., New Orleans, for defendants-appellees Travelers Ins. Co., Joseph Ruppel, Willie Rucker, Jr., Edmond E. Himel, Jr., and Ot-tis Burck.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   GARSAUD, Judge.

Plaintiff, Floyd Leon Wixom, Jr., brought this suit against the executive officers of Boland Marine and Manufacturing Company and their insurer, Travelers Insurance Company, for personal injuries sustained on March 5, 1976 within the scope of his employment with Boland Marine. Plaintiff was an ironworker who, at the time of his injury, was performing ship repairs aboard a ship in the Industrial Canal, a navigable waterway in the city of New Orleans.

Defendants filed exceptions of no cause of action, no right of action, and lack of jurisdiction, contending that plaintiff’s exclusive remedy for this maritime injury is under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq. These exceptions were maintained by the trial court, dismissing plaintiff’s suit, and plaintiff has appealed.

The primary issue on this appeal is a question of law: whether the LHWCA is plaintiff’s exclusive remedy for his injury. If it is decided that it is not, then a second issue arises, dealing with whether the plaintiff elected the federal remedy over state workmen’s compensation remedy.

The facts are not in dispute. The plaintiff was a traditional maritime worker who performed repair work on a vessel over navigable water. It is the plaintiff’s position that under Poche v. Avondale Shipyards, 339 So.2d 1212 (La.1976), appeal dismissed, Territo v. Poche, 434 U.S. 803, 98 S.Ct. 31, 54 L.Ed.2d 60 (1977), the LHWCA does not pre-empt the power of the State of Louisiana to provide a state remedy to this plaintiff, including (since the injury occurred prior to the 1976 amendment to La.R.S. 23:1101) a tort action against fellow employees and executive officers. The defendant argues that the case is res nova, as it is defendant’s view that in no other instance was a Louisiana court called upon to decide the exclusive applicability of the LHWCA where a traditional maritime worker is injured while repairing a vessel on a navigable waterway.

Under these circumstances, we do not believe it is necessary to explore the “long and tortuous route” of the relationship between state workmen’s compensation statutes and LHWCA. Poche v. Avondale Shipyards, Inc., supra, contains a complete exposition of this divergent history in Louisiana. After a review of that decision, and even including its special reference to Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1961), it is our view that this is a case wherein the exclusivity of the LHWCA must pre-empt the state remedy. Our case lacks any of the unique facts which enabled past courts to find dual coverage, as in Arp v. Maryland Casualty Co., 170 So.2d 166 (La.App. 4th Cir. 1964) and Poche v. Avondale Shipyards, Inc., supra. Further, a purpose of allowing dual remedies was to insure protection for injured maritime workers against an absence of redress due to some technical aberration in state compensation statutes, and also to extend the more liberal and uniform provisions of the federal act to injuries on land. Here, neither of these concerns obtain.

There remain some maritime injuries for which the exclusive remedy is under the LHWCA, and this injury, occurring to a maritime worker while repairing a vessel on a navigable waterway, falls within that exclusivity.

This simple problem should not be complicated by attempting to inquire into the applicability of the so-called “twilight zone” developed in Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942). This doctrine was developed for the benefit of workers where it was difficult to determine which jurisdiction would apply. Under these facts, however, we do not believe there is any so-called twilight zone, but that it is crystal-clear that this is a pure maritime question.

The Court is aware of Richard v. Lake Charles Stevedores, 95 So.2d 830 (La.App. 1st Cir. 1957), cert. denied, 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529 (1958), in which state law was held applicable under circumstances similar to this case, but Richard cannot be followed. Flowers v. Travelers Insurance Co., 258 F.2d 220 (5th Cir. 1958) and Noah v. Liberty Mutual Insurance Co., 267 F.2d 218 (5th Cir. 1959) are controlling. As Judge Brown stated in Flowers,

“The setting was wholly maritime. The ship was the very instrument of ocean commerce. The vessel, if not actually floating in navigable waters, was there in law. [In our case, it was in fact on navigable waters.] . . . The work [plaintiff] was doing was maritime. For the repair of an existing vessel is one of the most ancient of maritime transactions giving rise even to that most cherished and characteristic badge — the formidable lien in rem.” [Citations omitted.] 258 F.2d at 221.

For these reasons the decision of the trial court is affirmed.

AFFIRMED.


author: GAUDIN, Judge.

text:
    Bernard R. ACOSTA v. George R. CARY, Jr., M.D., Employees Insurance of Wausau, and Hartford Fire Insurance Company.
    No. 8901.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Joseph S. Russo, Jefferson, for plaintiff-appellant.

      Normann & Normann, David R. Nor-mann, New Orleans, for Employers Ins. of Wausau, defendant-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

Plaintiff, Bernard R. Acosta, alleging invasion of privacy and breach of contract, filed the instant suit against several defendants. Before us now is an appeal from a dismissal by summary judgment of one of the defendants, Employers Mutual of Wau-sau, incorrectly named initially as Employees Insurance of Wausau. We affirm the trial judge’s action.

The facts are these:

On June 10,1971, Wausau had Mr. Acosta examined by Dr. George R. Cary, Jr. in connection with a workmen’s compensation claim.

Upon receipt of a report, Wausau compensated the physician and his services were completed.

In February, 1976, while Mr. Acosta was employed by Kaiser Aluminum and Chemical Company, he sustained another injury and was examined, ironically, again by Dr. Cary.

Following this examination, Dr. Cary forwarded medical data to Kaiser, including a copy of his June 10, 1971 report. This allegedly caused Mr. Acosta to be dismissed from his job.

Mr. Acosta contends that a master-servant relationship existed between Wausau and Dr. Cary, and that Wausau had the power and duty to restrict dissemination of the 1971 report.

However, Louisiana jurisprudence has long recognized the status of the doctor as an independent contractor and has severely limited the vicarious liability of his principal. See Dowling v. Mutual Life Insurance Co. of New York, La.App., 168 So.2d 107, and Ford v. Louisiana & A. Ry. Co., La.App., 196 So. 403.

In Dowling, a 1964 Fourth Circuit Court of Appeal decision, a physician was retained by an insurance company to examine one of its insureds. Alleging .that the doctor did not inform him of various medical findings, the insured sued the company.

We held that the physician’s relationship to the company was “. . . one of contract, or engagement to render a service as an independent contractor.” and we affirmed the district court’s sustaining of exceptions of no right or cause of action, which dismissed the company from the case.

If Dr. Cary was an independent contractor, as indeed he was, we cannot hold Wau-sau answerable for Dr. Cary’s actions.

Wausau was properly dismissed via summary judgment.

AFFIRMED.

      . Dowling v. Mutual Life Insurance Co. of New York, La.App., 168 So.2d 107, at page 111.


author: GULOTTA, Judge. REDMANN, Judge,

text:
    Timmy HANZO v. TRAVELERS INSURANCE COMPANY.
    No. 8910.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.

      Pitard, Pitard & Porobil, Gregory M. Po-robil, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellants, Travelers Ins. Co. and Pizza Inn.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Defendants, appealing from an adverse judgment in a slip-and-fall case, contend the trial judge erred in his liability determination where plaintiff’s testimony was inconsistent and the evidence established that the floor had been swept immediately before the accident and was clean and dry prior to plaintiff’s fall. Defendants further claim, in this appeal, that an award in excess of $5,000.00 for lost wages was speculative because plaintiff was unemployed at the time of the accident and employment was “slow” during the approximate 2lh months of his disability. We reverse and remand on the award for lost wages and affirm in all other respects.

At approximately 10:00 or 10:30 p. m. on October 6, 1976, plaintiff and a companion entered the Pizza Inn located in Kenner and went to the counter to place an order. When directed by an employee to place his order with a waitress from a table in the dining area, plaintiff turned around, slipped and fell on the red-brick tile floor. According to plaintiff, he slipped on a wet or damp floor and, after the fall, noticed his shirt, pants, hair and hands were wet. His testimony was corroborated by his companion who testified that the floor was damp and that plaintiffs pants and shirt were damp. Both indicated that upon entering the premises they had not noticed any water, foreign substances or materials on the floor, or any warning signs posted for dampness. Plaintiff sustained back injury resulting in an approximate 21/2-month disability during which time he was receiving medical treatment and was unable to work.

Under these circumstances, when a plaintiff proves he slipped and fell in a store or business establishment, not due to his fault, on a foreign substance or on a wet, damp or slippery floor, the burden of proof shifts to the store owner to exculpate himself from negligence. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Calecas v. Great Atlantic and Pacific Tea Company, Inc., 330 So.2d 619 (La.App. 4th Cir. 1976).

In connection with defendants’ burden, Darryl Lincoln, a Pizza Inn employee at the time of the accident, testified that the area where the fall occurred was mopped each night after the 12:00 midnight closing but that no “regular policy” for inspecting, cleaning or sweeping each hour at designated intervals was in effect. According to this witness, if something was known to have spilled on the floor, it was “mopped up”. Lincoln further stated that he had swept the area where plaintiff fell approximately one hour before the accident. He did not, however, mop the floor at that time. According to Lincoln, the floor was dry at the place plaintiff fell.

Denny Alvarez, another employee of Pizza Inn, though not present at the store on the day of the accident, testified that no one had the assigned duty to police during business hours the area where plaintiff fell. Alvarez stated, however, that waitresses travel back and forth in this area in the course of serving patrons in the dining room and indicated that if the waitresses see something on the floor, they “call it to someone’s attention”. This witness testified that on occasions employees would forget to clean, after closing, the “foyer” area where plaintiff fell.

A third Pizza Inn employee corroborated Lincoln’s testimony that the floor was not damp at the time of the accident. She added that after the incident she had inspected the area to see if there were any foreign substances on the floor but had found nothing. She saw only a skid mark about 4" long over the tile floor. This witness added that the floor had not been recently waxed. She also stated that a large private party had taken place in the restaurant from 6:30 to 9:30 p. m. on the evening of the incident, that approximately 40 or 45 minutes were required following it to clean the restaurant and that the area where plaintiff fell was clean and dry. This employee acknowledged that when carrying trays from the kitchen to the dining area, waitresses traversed the area where the accident occurred. The implication is that spills from the trays could have occurred in this area.

The court concluded in oral findings of fact that plaintiff had slipped on the “damp floor” and that the floor had not been “properly maintained”. Though defendants point out certain inconsistencies in plaintiff’s testimony, we do not consider these inconsistencies to be significant. As pointed out by the trial judge, this matter involved a credibility determination. His factual findings are supported by the record. We cannot say, under these circumstances, the trial judge erred.

While a showing of systematic, periodic inspections is significant in exculpating an owner of a large self-service establishment from a finding of negligence, regular, time-spaced inspections are not as relevant to the owner’s duty in a small establishment like the Pizza Inn. Understandably, in a small establishment, foreign objects, spills or dampness on the floor are more easily seen by employees than in a larger store. What is relevant to each case, however, is that a reasonable effort is made to insure the patron’s safety from a slip- and-fall accident under the circumstances. Kavlich v. Kramer, supra; Sansonni v. Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th Cir. 1977), writ denied, 346 So.2d 209 (La.1977). From the testimony it is apparent that a risk of spillage resulted from the waitresses’ traversal of the area and that defendant’s procedure of maintaining the floor did not constitute the supervision necessary under the circumstances.

The trial court awarded plaintiff as loss of wages $7.02 per hour at 40 hours per week for the five month period of disability. Plaintiff, an oiler, worked out of a local union at various job sites. When his work on a job was completed, he customarily signed in on the out-of-work list at the union hall and was assigned, according to seniority on the list, to work on jobs as they became available. It is undisputed that plaintiff’s rate of pay was $7.02 per hour and that he was unable to work from October 6, 1976, the date of the accident, through February 24, 1977, as a result of the injuries caused by the fall. Plaintiff testified that at the time of the accident he had been working on a job, obtained through the union, for aboút two or three months. Although he testified that he had not been out of work for more than two weeks at a time during 1976, the business agent from his union stated that work for oilers had been “extremely slow” that year. Furthermore, the agent’s records showed that work orders had been issued for plaintiff in 1975 for ten different companies, indicating a somewhat inconsistent earning pattern.

Admittedly, a plaintiff’s own testimony as to his loss of earnings may constitute the necessary preponderance of evidence, without the use of documentary support such as income tax records, but under the circumstances of this case plaintiff’s inconsistent pattern of earnings cannot support a conclusion that he would have earned his hourly rate 40 hours every week during the period of disability. However, the record does indicate a substantial loss of earnings during this period, and denial of the entire claim for this item of damages is not justified.

Under the circumstances, we find it necessary to set aside the award for loss of wages and to remand the case for 1) introduction of income tax returns and other documentary evidence of recent earnings and for 2) setting the amount of lost wages based on past earnings and the probability that plaintiff’s earnings would have continued at that rate if he had not been injured.

Accordingly, that portion of the judgment awarding plaintiff the sum of $5,503.68 for lost income is reversed and set aside. The case is now remanded for the reassessment of the award for loss of wages. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

REDMANN, J., dissents.

REDMANN, Judge,

dissenting.

Self-service grocery stores deliberately distract their patrons’ attention from the floor to the shelves displaying their wares, and for that reason we do not hold the patrons contributorily negligent for failing to see something obvious on the floor. This accident did not occur in a self-service store but in the well-lit lobby of a waiter-service restaurant, from so much water that it left plaintiff “dripping”, he testified. Accepting the trial judge’s credence in plaintiff and his girlfriend (although it is much more human for them to color the facts in his self interest, than for fired or resigned ex-employees to color facts in which they have no interest), plaintiff was contributorily negligent in not seeing the quantity of water he described, on the floor in his path, in a brightly-lit room, without any distracting displays from which he was to serve himself.

The judgment should be reversed.

      . The inconsistencies noted by defendants are plaintiffs testimony that his companion had consumed one bloody Mary before the incident in contrast to her statement that she had “two or three” vodka and orange juices; and plaintiffs statement that the lighting in the Pizza Inn was “bright as the courtroom” as opposed to his companion’s testimony that the lighting was dim.
      Defendants also point out plaintiffs testimony in deposition that the floor was wet over its entire surface contradicts his statement at trial that he was aware of wetness only in the area of his fall and further observe that plaintiff made no complaints of wetness to defendant’s employees despite his testimony that he slipped on the damp floor.

      . The job description for an oiler in the record is that he greased cranes and was required to climb and lift heavy objects.

      . The ex-employees do not merely disagree with plaintiff on whether the floor was wet and on whether plaintiff was allowed to use the telephone. They tell of plaintiffs complaining of the “shitty floor” and of many times calling the 25-year-old assistant manager a “bitch”. Plaintiff admitted threatening to have his “little nephew . beat the tar out of” a 17-year-old employee. The former assistant manager also quotes him as saying “1 know a Judge, my mother knows a Judge and I could get you fired.” That witness was fired by the restaurant, and it is especially difficult to suppose that she was slanting her testimony to favor the ex-employer who fired her. Perhaps the improbability of the ex-employees’ lying should enter into a determination whether plaintiff proved his facts as more probable than not.


author: REDMANN, Judge.

text:
    Homer Gerald OUTLAW et al. v. BITUMINOUS INSURANCE COMPANY.
    No. 8925.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.

      Charles A. Kronlage, Jr., Kronlage, Ditt-mann & Caswell, New Orleans, for plaintiff s-appellees.
    Harold A. Thomas, Adams & Reese, New Orleans, for defendant-appellant.
    Philip S. Brooks, City Atty., Jules A. Fon-tana, Jr., Deputy City Atty., for third party defendant-appellee.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   REDMANN, Judge.

Does a mature golfer by driving a golf ball breach a duty towards a nine-year-old golfer who is but slightly (13° to 22° ) to the left of his intended drive line and only 172 feet away, but is aware of and (ignoring whether a nine-year-old legally can consent) has consented to the impending drive (as a golfer allowing another to play through) and has crouched behind his own golf bag for protection from the golf ball? We answer yes: the mature golfer, just like the automobile driver, must be aware that young children possess limited judgment and are likely at times to forget dangers and behave thoughtlessly, and therefore he should anticipate that the nine-year-old might raise his head above or otherwise leave the protective cover of his golf bag and place himself into the path of a possible bad shot: and, because of the nearness of the child to the tee and the consequent impossibility of a timely warning to the child to return to cover after the ball is struck and its path evident, the mature golfer owes to the child a duty not to drive the ball at all in his general direction.

Defendant’s insured did drive the ball, the nine-year-old did raise his head above his golf bag, and the ball struck him in the eye, destroying its sight.

Murphy v. Podgurski, La.App. 4 Cir. 1970, 236 So.2d 508, writ refused 256 La. 867, 239 So.2d 363, reasoning that a player is not negligent in making a bad shot and that other golfers assume the risk of bad shots, is not in point. Our defendant’s insured’s negligence was not in hitting the ball badly (a matter not fully within his control) but in hitting the ball at all.

The jury’s special findings that the driver was negligent and the boy con-tributorily negligent but that the driver had the last clear chance are largely consistent with our analysis. Ignoring the question of the validity of a nine-year-old’s consent to a play-through (if he could not consent, the driver would breach a duty towards him by playing through without consent), we assume the jury found negligence on the driver’s part in driving at all under the circumstances, found the child negligent in staying on the fairway or in raising his head from safety into danger, and found the golfer had the last clear chance because he could have not hit the ball. Rather than excuse contributory negligence on a last-clear-chance theory, however, we hold that the child’s negligence (if any) was not contribu-torily negligence barring his recovery. A nine-year-old may be capable of contributory negligence, but like a 12-year-old, Plauche v. Consolidated Companies, 1958, 235 La. 692, 105 So.2d 269, he is not held to adult standards of comprehension of danger and duty of self-care. We may assume that the jury properly evaluated this child’s awareness of danger and properly concluded that he was negligent. But his negligence cannot be both the foreseen risk which imposes the duty on the mature golfer not to hit the ball and at the same time a defense to an action for damages for breach of the mature golfer’s duty. The youngster’s leaving a place of safety cannot both impose a duty and excuse its breach.

We therefore affirm the judgment on jury verdict as to liability.

On quantum, $150,000 for general damages including loss of sight in one eye is within the jury’s “much discretion”, La.C.C. 1934(3). See Walker v. Champion, La.1974, 288 So.2d 44.

The judgment over against the father for half was the result of the jury’s finding that the father was negligent. One might view as unreasonable and therefore negligent a parent’s allowing a too-young child to subject himself to the inherent dangers of a golf course, present even without negligent conduct by other golfers. Conceivably such a parent could owe damages to the child for loss of an eye caused by non-negligent injury by a golf ball. And, more remotely conceivably, the parent might owe damages to the child for injury from another golfer’s negligence (although this is quite doubtful because the risk of non-negligent injury alone is the source of the parent’s arguable duty to keep the child off the golf course, and therefore negligent injury is not within the risk which the duty is designed to protect against). Even so, the parent would be entitled to judgment over of 100% tort-indemnity against that golfer: accordingly that golfer is not entitled to judgment over of 50% contribution from the father. Truxillo v. Gentilly Med. Bldg. Inc., La.App. 4 Cir. 1969, 225 So.2d 488. Nor, by the same reasoning, does the father’s theoretical negligence bar his recovery of medical expenses he paid for his child. By exposing the child to golf-course dangers which are unavoidable if the game is to be played at all, he accepts the burden of medical expenses arising from those unavoidable dangers. But he does not thereby accept the burden of medical expenses from avoidable danger which arises only because of another golfer’s negligence: he consents that other golfers may non-negligently cause him medical expense, but he does not consent that they may negligently cause him such expense. Accordingly, the father is not liable to the golfer’s insurer for the judgment over and he is entitled to recover the medical expense.

Nor, similarly, is the city of New Orleans liable as operator of the golf course on defendant’s third-party demand. Conceivably the golf course operator could be as liable as the parent for allowing too-young children on the golf course, because of the danger of their injury by non-negligently hit stray balls. But the risk such a possible duty is designed to protect against does not include injury by negligently hit balls.

Defendant complains of the trial judge’s comment, in response to defendant’s explanation that conflicts in testimony caused an objected-to line of cross-examination, “There wasn’t too much conflict by that witness who was there. Let’s go.” However, the trial judge himself, after a discussion at the bench, instructed the jury “Strike that comment. Leave him note that he moved for a mistrial on that comment. Strike the comment. You all will conclude what is conflict and what is not. . Disregard that, it is up to you all to determine that.” This instruction cured the error of commenting on the evidence. However, defendant further complains of the judge's reference to the motion for a mistrial. Although preferable practice might for the record note such motions at the bench or otherwise out of the jury’s hearing, we see no prejudice to defendant. The overall impression we gather is that the trial judge conceded he had erred, but that that mistrial could be avoided by the jury’s disregarding his comment.

Defendant finally complains of the judge’s instructions to the jury. The trial judge noted for the record, after the jury had retired, “For the sake of convenience of all concerned . . . counsel agreed to make specific objections to any portions of the general charges and to any special charges given or refused after the jury has retired to consider its verdict.” The record thereafter contains the objections. We hold that counsel may not preserve a right to appellate review of jury charges by stipulation that the law for preserving that right not be followed. Once the jury has retired to its deliberation the trial judge can no longer correct any error in his charge, howsoever clearly pointed out by post-retirement objections. Therefore C.C.P. 1793 insists that, to preserve the right of review, the objections must be made while they can still be effective: “A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires . .” We therefore decline to consider the untimely objections. See Watts v. Aetna Cas. & S. Co., La.App. 2 Cir. 1975, 309 So.2d 402, writ refused La., 313 So.2d 601; Arnold v. U. S. Rubber Co., La.App. 3 Cir. 1967, 203 So.2d 764, writ refused 251 La. 738, 206 So.2d 91.

Judgment on main demand affirmed in its award of $150,000 for the minor but reversed in its rejection of father’s claim and judgment rendered for $10,850 with interest from judicial demand for Homer G. Outlaw against Bituminous Insurance Company; judgment on third-party demand affirmed as to dismissal of City of New Orleans and otherwise reversed and demand dismissed. All costs to be paid by defendant.

      . According to plaintiffs surveyor, who measured with the child in the position he said he was in at the time of the accident, the child was approximately 22° 31' to the left of a drive line down the middle of the fairway, and 12° 52' to the left of a drive line aiming at the left edge of the fairway where the fairway angled (“doglegged”) sharply to the left. The jury could have inferred that the latter was the intended drive line.

      . La Croix v. Middle South Svc. Inc., La.App. 1 Cir. 1977, 345 So.2d 136 writ refused La., 346 So.2d 716; Sanders v. English, La.App. 1 Cir. 1976, 325 So.2d 692; Kelly v. Messina, La.App. 4 Cir. 1975, 318 So.2d 74; Ates v. State Farm Mut. Auto. Ins. Co., La.App. 3 Cir. 1966, 191 So.2d 332.

      . There is no indication that counsel timely attempted to present objections, but was prevented by the trial judge from doing so. Furthermore, a local custom to make objections after the jury has begun deliberations is inconsistent with C.C.P. 1793 and thus invalid. See 9 Wright & Miller, Federal Procedure and Practice § 2553 (1971).


text:
    Julian ROY v. Edward C. KURTZ, Director, Department of Safety and Permits for the City of New Orleans, et al.
    No. 8930.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.

      Martin A. Welp, New Orleans, for Julian Roy, plaintiff-appellant.
    Thomas P. Anzelmo, Jack P. Panno, Asst. City Attys., Philip S. Brooks, City Atty., for Edward C. Kurtz et ah, defendants-appel-lees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

This appeal involves two issues: The validity of an order of the Board of Zoning Adjustments for the City of New Orleans granting a variance, and the timeliness of a building permit issued in connection therewith.

The record shows that pursuant to an application by John J. Grisaffi for a variance from the requirements of The Comprehensive Zoning Ordinance of the City of New Orleans, The Board of Zoning Adjustments held a public hearing at which a number of neighboring owners appeared in opposition, and granted a variance permitting construction of an enclosure of a roof deck and erection of a fence 6 inches in excess of the required height on Grisaffi’s property, a nonconforming commercial building in use in an RD-2 Two Family Residential District. The order was rendered April 9, 1976 and promulgated on April 23, 1976 by written notice of the Board. One of the opponents, a neighboring property owner, Julian Roy, timely sought review by the Civil District Court, and that suit lay dormant for some time. Nearly a year after the date of the variance order, on April 6, 1977, Grisaffi filed an application for a building permit, together with detailed plans and specifications for the proposed construction. The application was examined by the appropriate city agencies and was approved on April 14. In accordance with usual procedure, the permit was issued dated as of the date of application April 6. The opponent then supplemented his petition for review to include injunctive relief against the issuance of the building permit and the construction proposed thereunder. After hearing on the merits, the court rendered judgment approving the order of the Board of Zoning Adjustments and holding the building permit legally issued. Opponent Roy appealed.

In our consideration of the validity of the variance order, we refer to the case of State ex rel. Phillips against Board of Zoning Adjustments for the City of New Orleans, 197 So.2d 916 (La.App. 4th Cir. 1967) wherein we stated the following general rule, page 918:

“[1, 2] We are in agreement with the first contention to the extent that there is a prima facie presumption of validity which attaches to the acts of a duly constituted administrative board, such as the Board of Zoning Adjustments in the instant case, and accordingly, on appeal, or on writ as here, from such an act the burden is on the appellant or relator to affirmatively show the board abused its discretion or its decision was in excess of its jurisdiction or otherwise erroneous as a matter of law.” Citations omitted.

Applying that principle to this case, we note that the evidence is rather sketchy, but that the Assistant State Fire Marshal had issued on January 2, 1976 an order of correction directed to the premises to provide additional means of egress from second floor to ground level, and had by letter to the chairman of the board informing the board that the State Fire Marshal’s office was directing the owner to completely enclose the roof deck for the safety of the students or occupants of the building in the event of panic or fire. By letter of April 7, 1976, the State Fire Marshal himself explained that it was not a mandatory requirement of his office that a complete enclosure was necessary but that it was a mandatory requirement that some protective barrier be erected and that he considered the complete enclosure to be strongly recommended. Based mainly upon this and considering other evidence, the Board determined that it should grant the variance, and we conclude that the Board had sufficient evidence before it to support the grant of variance.

On the issue of the validity of the building permit, we note the requirements expressed in Ordinance # 4264, M.C.S. Article 15 § 2.3(6) entitled: “Authorization of Variance.”, which provides in pertinent part:

“ * * * No order of the Board authorizing a Variance shall be valid for a period longer than one (1) year from the date of such order unless substantial construction or change of use has commenced in accordance with the plans for which such Variance was authorized, or if the Board does not specify a longer period than one (1) year for good cause shown.”

We do not discern any ambiguity in the ordinance, and we read it to mean simply what it says. The only action taken by the applicant was the filing of his request for building permit along with plans and specifications within the one year period. The question is simply, does that constitute substantial construction?

On this issue the only evidence is that given by Frank E. Robin, Chief Building Inspector and Administrator of the Office of Permits. He testified that the plans and specifications normally constitute about 10% of the cost of the total job, and that his department considers that this is substantial construction in accordance with the requirements of the Ordinance. He explained the procedures in accordance with the granting of permits and stated that in the 23 years of experience that he had in this position, that these conclusions and practices had been adhered to and proven satisfactory. We point out that there is no countervailing evidence to show that the plans in this case did not conform to the general rule and there is no other evidence we can refer to in order to compare the standard used by the department in determining substantial construction with any other standard of substantial construction. Without such evidence we do not feel compelled to overturn this long standing interpretation and procedure adopted by the agency. Accordingly, we .hold the building permit to be validly issued.

The judgment appealed is affirmed.

AFFIRMED.


text:
    U. S. FIRE INSURANCE COMPANY v. Jacob M. LISS et al.
    No. 8940.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      George O’Dowd, New Orleans, for Jacob Liss, defendant-appellant.
    Montgomery, Barnett, Brown & Read, Kenneth V. Faherty, New Orleans, for third party defendant, Cas. Reciprocal Exchange.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is an appeal by Jacob M. Liss from the granting of motion for summary judgment by his insurer, Casualty Reciprocal Exchange, dismissing his third party demand for lack of coverage over the hazard which is the subject of the main demand.

Jacob M. Liss operated “Mr. Jack’s Pizza” on the premises located at # 58 West Bank Expressway, Gretna, owned by Gattuso and Saragusa and insured by U. S. Fire Insurance Company. That insurer, under subro-gation, sued Liss, his employee, and others, alleging that a fire occurred on the premises in a pizza oven which spread through negligent acts of the employee and others. Liss in turn brought third party action against his general insurer, Casualty Reciprocal Exchange, alleging coverage under its policy. That insurer filed a motion for summary judgment based on lack of coverage under the policy for the hazard sued upon. Liss appeals.

The issue is purely of law involving interpretation of the policy. Liss contends that the policy is an “owners’, landlords’ and tenants’ liability insurance.” covering property damage liability arising out of the negligent acts of himself and his employees in the operation of the premises, and that it covers the damages to the landlord’s building sued for herein. He further contends that the exclusion relied upon by the insurance company is not applicable to these circumstances, and that at best the policy is confusing and ambiguous, and that it should be interpreted liberally in his favor, relying upon Albritton v. Fireman’s Fund Insurance Company, 224 La. 522, 70 So.2d 111 (La.1953) and Cooling v. United States Fidelity & Guaranty Company, 269 So.2d 294 (La.App. 3rd Cir. 1972).

We find no ambiguity or conflicts in the policy in relation to this hazard. The policy of insurance issued by Casualty Reciprocal Exchange to the insured contains the following exclusion upon which third party defendant relies:

“I. COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY
Exclusions
This insurance does not apply:
(k) to property damage to
(l) property owned or occupied by or rented to the insured, . .

We conclude the policy means exactly what it says, and this exclusion (k) is applicable to the case at bar. Accordingly, we affirm the judgment.

AFFIRMED.


author: STOULIG, Judge.

text:
    Patte Weathers MARINES v. Henry W. HINRICHS.
    No. 8942.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Writ Refused June 30, 1978.
    Band & Hopkins, David Band, Jr., New Orleans, for Patte Weathers Marines, plaintiff-appellant.
    William M. Detweiler, New Orleans, for Henry W. Hinrichs, defendant-appellant.
    Porteous, Toledano, Hainkel & Johnson, Ben C. Toledano, New Orleans, for State Farm Fire and Cas. Co., defendant-appellee.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Patte Weathers Marines, has appealed a judgment (1) adopting a jury verdict which awarded her $15,000 against defendant, Henry W. Hinrichs, for damages she suffered after he shot her through the face and (2) dismissing her suit against defendant, State Farm Fire and Casualty Company, Hinrichs’ insurer. Her appeal seeks reversal of that part of the judgment dismissing the insurer on a finding the shooting was intentional and not accidental. She also seeks an increase in the quantum of damages.

It is not disputed plaintiff was shot by defendant at approximately 2:30 a. m. on October 7, 1972 in plaintiff’s apartment. What is at issue is whether Hinrichs deliberately shot her.

Appellant contends the jury’s finding of intentional shooting is a result of prejudicial conduct during the course of the trial, namely a reading of allegations in plaintiff’s original petition asserting the shooting was intentional. Because the entire sections now complained of were read at counsel for plaintiff’s insisten.ee, appellant may not now challenge this act as prejudicial.

However, we note in passing that by the time Hinrichs concluded his testimony it would have been difficult for anything to prejudice the result at which the jury arrived. His convenient amnesia and conflicting statements of the incident were totally contradicted by the physical evidence. This logically would lead the jury to conclude that Hinrichs intentionally shot the plaintiff.

According to plaintiff, she remembers little of what happened other than realizing after its occurrence she had been shot. She did recall defendant appearing at about 2:30 a. m. in a less than sober state. She made coffee and defendant (with whom she was concluding an 11-year affair) began to question her about her date with another man earlier that evening. She expressed her disinclination to argue and suggested defendant leave (in more explicit and less quotable vernacular). She placed her hand on the doorknob and suddenly she was shot.

Powder burns on her left cheek indicate she was shot at close range. The trajectory of the bullet (it passed on a straight line between the point of entry on the left cheek and the tissue against which it lodged in the right cheek) indicates it was fired at a level even with plaintiff’s face.

The physical facts establish defendant’s version of the incident as impossible. Hin-richs testified that after his arrival at plaintiff’s apartment, he made himself comfortable by emptying his pockets, placing the contents on a coffee table and taking off his shoes. When the argument started, he said, he was seated on the sofa, and when plaintiff requested him to leave, he got up to do so. As he was either placing the gun and other belongings in his pocket with his left hand (the gun barrel was pointed toward the floor) or hobbling around trying to get his shoe on, or both, he accidently discharged the gun. Noteworthy here is the fact that he held it in his left hand, he is righthanded and the gun had to be cocked before it could be fired. With this quality of testimony, which in itself did not remain consistent throughout, and considering defendant pleaded to loss of memory every time questions were asked that would have shed light on the intentional or accidental issue, it is no wonder the jury found as a fact that shooting was intentional.

Appellant cites Denies v. First National Life Insurance Company, 144 So.2d 570 (La.App. 4th Cir. 1962), for the proposition that an insurer who rests his case on a defense of excepted risks must prove the facts that will relieve it from liability. We agree with this proposition of law but we cannot accept plaintiff’s contention that the defendant insurer failed to meet this burden.

We view the issue as one of credibility which the jury resolved against Patte Marines. It is possible she may not have remembered the shooting as she stated, but it is equally possible that her memory loss was motivated by her desire to reach a more solvent defendant. The jury resolved these conflicting probabilities against her. The jurors also had the opportunity to view defendant as he testified and we would be amazed if they reached any other conclusion on his scienter than they did. They resolved the issue of intent favorably to the insurer. We will not disturb that finding. Accordingly we affirm the dismissal of State Farm as a defendant.

We next consider quantum. Unquestionably a $15,000 judgment is extremely low considering the plaintiff’s pain and suffering, her residual problems, and the prognosis for future deterioration of her condition. Briefly, the bullet lodged in her right cheek and could not be removed. As a result the scar tissue that formed internally affected her bite to the extent that she has suffered severe pain, has lost 25% of normal ability to open her jaw, she had a partial loss of hearing for five months, she has suffered sinus problems, many of her lower teeth had to be extracted and the prognosis is that she will lose all her lower teeth. In her dentist’s opinion, there is a good possibility she will not be able to wear a lower denture plate because she does not have a sufficient ridge to hold it. Her medical expenses to date of the trial exceeded $4,000 and her future medical is estimated as high as $3,000.

However, defendant’s wife Ar-timese Hinrichs testified of their financially depleted status. They have eight children and their home is encumbered with three mortgages. The record leaves no doubt that Hinrichs’ finances are borderline solvent and the jury’s concern with the problem is obvious by the fact they asked whether the verdict was payable in one lump sum or was it to be “scheduled out in a period of time.” The defendant’s ability to pay may properly be considered in mitigating damages. Carter v. Strother, 312 So.2d 672 (La.App. 2d Cir. 1975); and Williams v. Garner, 268 So.2d 56 (La.App. 1st Cir. 1972).

Therefore, we affirm the quantum awarded plaintiff in the trial court solely because the record establishes defendant’s ability to respond in damages is extremely limited.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . Hinrichs also appealed but it was dismissed because it was not perfected timely.

      . One of the exclusions to the personal liability coverage under the policy is: “(f) to bodily injury or property damage which is either expected or intended from the standpoint of the insured * *

       « * * * The f0reg0ing ruie is based on the equitable principle that courts will not grant vain and useless relief or render a judgment incapable of execution. We are aware of no requirement that inability to pay be specially pleaded as a defense.” 268 So.2d at 61.


text:
    LIBERTY MUTUAL INSURANCE COMPANY v. ADS, INC. of Louisiana.
    No. 8944.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Law Office of Bruce J. Borrello, Stephen L. Huber, George J. Richaud, Metairie, A. Miles Pratt, III, New Orleans, Denise M. D’Aunoy, Metairie, A. Miles Pratt, III, New Orleans, for plaintiff-appellee.
    Dodd, Barker, Boudreaux, Lamy & Gardner, New Orleans, Daniel S. Foley, New Orleans, for defendant-appellant.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   GARSAUD, Judge.

This suit was instituted in First City Court of New Orleans by plaintiff-appellee, Liberty Mutual Insurance Company, against defendant-appellant, Ads, Inc., to recover $631.70 allegedly due in unpaid premiums on an all risk insurance policy. This policy was issued by Liberty Mutual for a one-year period beginning August 1, 1974, covering 36 electric or neon signs owned by Ads, Inc. and leased by it to various businesses. The initial one-year policy was extended for an additional year. The total coverage provided under the policy was $90,000, with a policy limit of $2,500 per sign.

Defendant Ads, Inc. filed a reconventional demand for recovery of $2,442.06 allegedly owed to it by plaintiff for 29 separate claims of loss or damage incurred between November 15, 1974 and January 1, 1976. This suit arises out of a difference between plaintiff’s and defendant’s interpretations of the deductible clause in the policy.

After a trial on the merits, the trial judge dismissed both the original and the recon-ventional demands. Defendant/plaintiff-in-reconvention has appealed from the dismissal of its reconventional demand.

The parties have stipulated to the following issues on appeal:

“(1) The proper determination of the deductible based upon the contract;
(2) The admissibility of the prior practice of calculating the deductible in claims prior to this dispute;
(3) The admissibility of the testimony of Liberty Mutual’s employee, Mr. Todt, regarding the method he would use to compute the deductible under the policy in question.”

With regard to the first issue, there is no real dispute whether Liberty Mutual owes Ads, Inc. some amount for the claims Ads, Inc. filed.. The amount, however, depends on the construction given to the policy’s deductible clause. The troublesome clause reads as follows:

“Each claim for loss or damage (separately occurring) shall be adjusted separately and from the amount of each such adjusted claim there shall be deducted a sum equivalent to 5% of the amount of insurance on the insured item lost or damaged, but not less than $10.00 nor more than $100.00 any one item.” (Emphasis added.)

Liberty argues that the 5% applies to the amount of insurance coverage on each sign or on $2,500. Thus, each loss is limited by a $100 deductible. Ads, Inc. argues that the 5% applies to the amount of each loss with a $100 maximum.

Part of the misunderstanding unquestionably arose from the slightly different language used in the Binder initially issued to Ads, Inc. to evidence coverage under the policy for the limited period from August 1, 1974 to October 1, 1974. The deductible language contained in the Binder said,

“Each claim for loss or damage shall be adjusted separately and from the amount of each such adjusted claim, the sum of 5% shall be deducted. Maximum $100.” (Emphasis added.)

Ads, Inc. submitted three claims for various amounts during the period of the Binder’s effectiveness. For two of the claims the deductible was calculated as 5% of the claim submitted ($10.52 on a $210.50 claim and $14.29 on a $285.80 claim). Five percent of the third claim (for $199.62) was less than $10.00, so the minimum figure of $10.00 was deducted. On all claims made after October 1,1974, however, Liberty Mutual calculated a deductible of $100.00 per claim because 5% of the amount of insurance per sign ($2,500.00 X 5% = $125.00) was greater than the maximum deductible of $100.00.

If the language of an insurance contract is clear and expresses the intention of the parties, then the contract will be enforced as written. Any ambiguities, however, will be construed against the insurer. C.C.Art. 1945(3); Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975); Thomas v. Protective Life Ins. Co., 319 So.2d 878 (La.App. 3rd Cir. 1975); Dean v. Union Natl. Fire Ins. Co., 301 So.2d 925 (La.App. 2d Cir. 1974); Jennings v. Louisiana & Southern Life Ins. Co., 280 So.2d 297 (La.App. 1st Cir. 1973); Sylvest v. Employers Liability Assurance Corp., 252 So.2d 693 (La.App. 1st Cir. 1971); Labbe v. Mt. Beacon Ins. Co., 221 So.2d 354 (La.App. 4th Cir. 1969). The words used in this policy are quite clear and not ambiguous. The policy provides for a deductible of “5% of the amount of insurance on the insured item,” subject to a maximum of $100.00 and a minimum of $10.00. Each “item” insured by the policy is each individual sign, insured for $2,500 apiece. There is nothing to indicate that each item insured is the letters on the face or any other part of an individual sign, with an attendant reduced coverage. The $10 minimum and $100 maximum is a standard provision in the policy which becomes operative and specific when the amount of insurance coverage is established, e. g., $2,500. That language does not imply that the deductible is based on the variable amount of losses.

Neither is there any language in the policy which would indicate that the intention of the parties was to have the deductible in the policy be calculated on 5% of the amount of the claim, even though this was the method used under the Binder. It is the policy which controls and the Binder does not constitute part of the policy, nor does it create any rights for Ads, Inc. other than during its effective period. R.S. 22:628; Commercial Credit Equipment Corp. v. Evans, 302 So.2d 727 (La.App. 3rd Cir. 1974).

Liberty Mutual’s interpretation of the policy is the correct one and, as a result, the amount owing on Ads, Inc.’s claims is $745.06 (29 claims were submitted, 21 of those claims are for less than the deductible amount of $100, and therefore nothing is owed on them. The eight remaining claims total $1,545.06 from which eight $100 deductibles are subtracted to reach the amount owed). When the amount of past-due premiums owed by Ads, Inc. to Liberty Mutual is applied as a set-off against these claims, $113.36 remains due to Ads, Inc. on its claims.

Concerning the issue of the admissibility of extrinsic evidence to show prior method of payment and the intent of the parties, it is our view that the evidence should not have been admitted. Article 2276 of the Civil Code provides that “[n]either shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” Other than in an action for reformation for mutual mistake, the sole exception to this general rule excluding parol evidence is that uncertainties or ambiguities in the language may be clarified by parol evidence. As was stated in Capizzo v. Traders & General Ins. Co., 191 So.2d 183 (La.App. 3rd Cir. 1966), and quoted in Mid-Continent Underwriters, Inc. v. Rodrigue, 323 So.2d 518 (La.App. 4th Cir. 1975),

“[W]hen the provisions of a written contract are clear and unambiguous, the contract cannot be varied, explained or contradicted by parol evidence, and the meaning or intent of the contracting parties must be sought within the four corners of the instrument.” 191 So.2d at 187.

There being no ambiguity in the wording of the insurance policy provisions, the extrinsic evidence introduced to show a purported different intention of the parties must be regarded as inadmissible.

With regard to the third stipulation, Ads, Inc. may have been confused by the Liberty Mutual agent, who represented that the deductible would fluctuate according to the amount of the claim. Nonetheless, representations of an agent cannot enlarge or extend coverage beyond what is provided in the policy. Smith v. Republic National Life Ins. Co., 335 So.2d 739 (La.App. 2d Cir. 1976), and authorities cited therein. Thus, his testimony on the point was inadmissible and should have been excluded by the trial judge as parol evidence which is not allowed to change the terms of an unambiguous policy.

The judgment dismissing the reconven-tional demand is reversed.’ Judgment is rendered in favor of defendant/plaintiff-in-reconvention, Ads, Inc., for $113.36 ($745.06 less set-off of $631.70 for past-due premiums), with reasonable attorney’s fees of $500.00, statutory penalties of 12% of the judgment, and all costs.

REVERSED AND RENDERED

      . R.S. 22:658; plaintiff-appellee admitted to owing on defendant-appellant’s claim, and the parties stipulated at trial to the amounts owed depending on the interpretation given to the policy.


author: GULOTTA, Judge.

text:
    CITY STORES COMPANY v. NEI CORPORATION et al.
    No. 8949.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Guste, Barnett & Shushan, Sidney L. Shushan, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Daniel Lund, Omer F. Kuebel, Jr., Richard B. Montgomery, III, New Orleans, for defendants-appellees, NEI Corp., The Plaza in Lake Forest, Inc., Rockwood Nat. Corp., James E. Townsend, William G. Dillon, William E. McKenna, Richard B. Montgomery, Jr., William B. Robbins, Seymour J. Sinde-band, Thomas A. Silvestri, Gerald Morris, William Kohler, Howard F. Beck and Martin Karnoff.
    Edward J. Castaing, Jr., New Orleans, for defendants-appellees, Frank L. True, Jr. and Elliott M. Wiener.
    Hammett, Leake, Haminett, Hulse & Nelson, Robert E. Leake, Jr., New Orleans, for defendants-appellees, Norman P. Zucker, Sanford M. Gaynor, Lawrence I. Seigel and Clovis H. Steib, Jr.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment dismissing its suit on exceptions of no cause of action. We reverse, concluding that the petition states a cause of action against three corporate defendants.

In May, 1960, plaintiff, City Stores Company, entered into a 25-year commercial lease with the owners of premises in the Gentilly Woods Shopping Center and commenced operation of a Maison Blanche department store. In March, 1972, with the approval of the lessor, plaintiff subsequently assigned the lease to National Equities, Inc. (NEI) in consideration of City Stores’ purchase of property in a newly developing shopping center owned by The Plaza in Lake Forest, Inc. (Plaza), a wholly-owned subsidiary of NEI. In the assignment, NEI assumed responsibility for the payment of the monthly rental during the term of the lease. As security for its obligations to assume the Gentilly Woods lease, NEI executed a “Security Agreement” whereby 1,000 shares of Plaza stock (the total authorized issue) were pledged to City Stores. The agreement further prohibited 1) any encumbrance or mortgages in excess of $16,000,000.00 on the Plaza Shopping Center real estate and 2) any additional shares of Plaza stock to be issued. The shopping center real estate was sold by Plaza to a third party in March, 1975.

Plaintiff filed this suit in February, 1976, against Roekwood National Corporation (the parent of NEI), NEI, Plaza and a number of individual officers and/or directors of the corporate defendants, Reduced to its simplest terms, the petition seeks 1) damages resulting from NEI’s default under the lease assignment by its failure to pay the rent under the lease terms; 2) damages because of defendants’ breach of the “Security Agreement” by selling the Plaza Shopping Center real estate in violation of a promise not to sell; 3) damages from the defendants’ tortious conversion of the pledged property by selling the real estate and thereby destroying the value of the pledge; 4) recognition of a mortgage or pact de non alienando on the Plaza real estate in favor of plaintiff under the “Security Agreement”; and 5) recognition of the validity of the stock pledge. Attached to the petition were copies of the assignment and assumption of plaintiff’s lease by NEI and the “Security Agreement”.

In response to the petition, defendants filed various pleadings. The thrust of NEI and Plaza’s exception (of no cause of action) is that the “Security Agreement” does not grant a mortgage to plaintiff on the shopping center property or prohibit the sale of Plaza real property and that relief sought based on allegations of unlawful conversion of mortgaged property or unlawful sale of the property state no cause of action. Individual defendants filed exceptions of no cause of action on the ground that the petition unlawfully sought to impose on them personal liability for corporate debts.

In written reasons for judgment maintaining exceptions of no cause of action and dismissing plaintiff’s suit in its entirety against all defendants, the trial judge stated that the “Security Agreement” constituted a pledge of stock (not a pledge of real property) and did not create a mortgage on the Plaza real estate or in any way restrict the sale of the shopping center. The judge concluded, under the circumstances, the sale of the Plaza property did not amount to a conversion of the pledged stock.

In the assignment of the lease, NEI assumes City Stores’ obligations (under the lease terms) to the lessors of the Gentilly Woods Shopping Center property. The petition alleges default of those obligations by defendant NEI. No allegations with regard to default of the lease assignment agreement are directed against Plaza or the individual officers and directors. However, the petition alleges Roekwood owns substantially all of the NEI stock and Plaza is a wholly-owned subsidiary of NEI. Based on this stock ownership, plaintiff claims the three corporations are alter egos and as such are liable in solido to plaintiff. Clearly the petition alleges a cause of action against NEI and Rockwood. Because of the alter ego assertion, plaintiff also asserts a cause of action against Plaza on the claimed lease default. Indeed, in its answer to the petition, NEI states that it has ceased paying rent in accordance with the lease assignment agreement and sets forth reasons justifying its action.

Well settled is the rule that for the purposes of an exception of no cause of action all well-pleaded facts in the petition and attachments are considered as true. Also well settled is that the exception of no cause of action must be overruled when the petition states a cause of action as to any ground or portion of the demand. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Sifers v. Exxon Corporation, 338 So.2d 763 (La.App. 4th Cir. 1976). In dismissing plaintiff’s suit in its entirety against all defendants, the trial judge erred. Plaintiff has alleged default on the lease agreement by Rockwood, NEI and Plaza. We also note that Rockwood’s exceptions of lack of jurisdiction and service of process have not been acted upon by the judge and on remand these exceptions must also be considered.

The trial judge properly maintained the individual corporate officers’ exceptions of no cause of action. LSA-C.C. art. 435 provides that corporations are distinct from the persons who compose them. LSA-C.C. art. 437 distinguishes corporate and individual liability.

Art. 437. Corporate and individual liability distinguished

“Art. 437. According to the above rule, what is due to a corporation is not due to any of the individuals who compose it, and vice versa.
“A creditor of a corporation can not therefore compel any of the members thereof to pay what may be due to him by the corporation; he can demand his payment of the corporation only, through their president, syndic or attorney in fact, and he can seize no other effects but such as belong to the corporation, provided the debt has been contracted by the corporation through their president, syndic, or attorney in fact; for if all the individuals who compose the corporation have signed the deed personally, every one of them may be compelled to make payment, either for his individual portion or in soli-dum, when it has been stipulated expressly that the debt was contracted in soli-dum.”

An exception to this rule is made, however, where fraud is alleged on the part of the corporate officers, directors or shareholders. In such instance, the individual officers and directors are personally liable to those who suffer losses as a result of the fraud. See LSA-R.S. 12:95; Altex Ready-Mixed Concrete Corp. v. Employers Commercial Union Insurance Company, 308 So.2d 889 (La.App. 1st Cir. 1975), writ denied, 312 So.2d 872 (La.1975). By stipulation of counsel on appeal, the parties have agreed that plaintiff “has not alleged and there is not involved in this proceeding any issue of fraud”. Accordingly, absent allegations of fraud, the petition states no cause of action against the corporate officers or directors.

Having determined the petition states a cause of action against the corporate defendants, we do not pass on the trial judge’s conclusions relating to the “Security Agreement”. Suffice it to observe, however, that the allegations of the petition claim indebtedness owed to plaintiff by reason of the corporate defendants’ default on the lease. The allegations relating to the “Security Agreement” breach become relevant only if plaintiff proves entitlement to a money judgment against the corporate defendants for breach of the lease obligations. The allegations of the petition relating to the breach of the “Security Agreement” deal with execution of the judgment in the event defendants are cast in judgment because of default on the lease assignment. Any consideration of the issues relating to the alleged breach of the “Security Agreement” is premature until such time as the primary issue, i. e., the corporate defendants’ alleged breach of the lease, is determined. In the final analysis, we conclude the petition alleges a cause of action against the corporate defendants.

Accordingly, the judgment dismissing the petition against the corporate defendants on exceptions of no cause of action is reversed and set aside. The dismissal of the petition on exceptions against the individual officers and directors is affirmed. The matter is remanded for consideration and determination of Rockwood National Corporation’s exceptions of lack of jurisdiction and insufficiency of service of process and for trial on the merits not inconsistent with the views expressed herein.

AFFIRMED IN PART; REVERSED IN PART; RENDERED AND REMANDED.

      . The three corporations were alleged to be alter egos.

      . An exception of no cause or right of action was filed on behalf of 14 individual officers and/or directors. One individual officer filed a motion for summary judgment which was denied and three others filed an exception of lack of jurisdiction.
      NEI and Plaza answered the petition on the merits and also filed exceptions of no cause or right of action, peremption and prescription and non-joinder of indispensable parties all with respect to plaintiff’s claim for recognition of a mortgage.
      Roekwood National Corporation filed exceptions of lack of jurisdiction and insufficiency of service of process.


author: DeSONIER, Judge.

text:
    Succession of Doris Miles, divorced wife of Fred CHAMBERS, Sr.
    No. 8952.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Rehearing Denied May 10, 1978.
    Arthel J. Scheuermann, New Orleans, for appellant, Fred Chambers, Sr.
    Sherman F. Raphael, New Orleans, for appellee, Mrs. Annie Watson Curry.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   DeSONIER, Judge.

This is an appeal from a judgment removing the father as tutor of his minor children in the succession of his late wife and appointing in his stead the children’s maternal grandmother as provisional tutrix.

The trial court, citing Code of Civil Procedure Article 4231, disqualified the husband finding him unfit to perform the duties of his office for willfully refusing to support the children, and attempting to lie about his conduct in that respect.

We affirm.

The parties were legally separated on November 15, 1973 and divorced on January 28, 1975. The wife was granted the care, custody and control of the four minor children and the husband was ordered to pay $25 per week for their support.

The husband had been in arrears in his payments as far back as December 19, 1973 at which time he owed $1,265. He was 51 weeks behind in payments. He was at least $3,000 behind in payments at the time of the wife’s death.

The appellant claims that he did not make payments because he was not allowed to visit the children, that his income was very low, and that he could not afford to pay $25 per week although four children were involved, and that his wife’s income was greater than his. The wife was employed by the Jefferson Parish School Board with an income of approximately $700 per month, out of which she was trying to support herself and her children.

Particularly impressive, in the voluminous record, is the testimony of Sister Marie Thomas Brogen, Principal of the Re-demptorist High School, where most of the children attended. She was very concerned and fond of the children and their mother, and spoke very highly of all of them. She knew that the family owed a tremendous amount of money and that there was never any attempt by the father to pay any of the bills, that the children worked in order to help. Sister Brogen was willing to do anything possible to help the children, including paying the tuition of one of the children out of her own funds. The children were well liked, most of them were well adjusted, very involved, and very good children. Sister Brogen made it clear she did not wish to interfere in any way, but she was very concerned about the children and knew they loved their grandmother and were frightened of their father.

After the mother’s death, the father came to see Sister Brogen. It was the first time he had every discussed the children or their school careers with her. The children themselves testified that they did not wish to live with their father but preferred to live with the grandmother.

Code of Civil Procedure Article 4231 provides in pertinent part: “No person may be appointed tutor who is: (6) A person who, on contradictory hearing, is proved to be incapable of performing the duties of the office, or to be otherwise unfit for appointment because of his physical or mental condition or bad moral character.”

The Succession of Quave, La.App., 214 So.2d 260, and Succession of Scott, La.App., 303 So.2d 897, deal with this provision of disqualification. Both cases stress that before the relative having the highest priority can be deprived of tutorship that relative must be found disqualified for some valid reason.

The record reflects that in all the years the parties were separated the father made very few efforts to see the children. His lack of concern and support for the children during all of these years clearly supports the trial court’s findings.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED. .