author: BOUTALL, Judge.

text:
    Carmencita Gristina COUVILLION v. Burton A. COUVILLION.
    No. 8064.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for Carmencita Gristina Cou-villion, plaintiff-appellant.
    Robert J. Oster, Edmund T. Wegener, Jr., Gauche, Wegener & Oster, New Orleans, for Burton A. Couvillion, defendant-appel-lee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Mrs. Carmencita Gristina Couvillion filed suit for separation from bed and board on the grounds of abandonment and cruel acts committed by her husband which rendered living together insupportable. The defendant husband answered and reconvened, seeking a separation on the grounds of abandonment of the plaintiff. The trial judge dismissed the suits of both parties after finding that the parties were mutually at fault. Only Mrs. Couvillion has appealed the dismissal of her suit.

The acts complained of by the plaintiff was the defendant’s continued “running around with another woman”, plaintiff’s cousin. The specific act which convinced the plaintiff that the defendant was “running around with another woman” occurred about Christmas of 1974. At that time the plaintiff testified she witnessed the defendant standing outside the car window of her cousin kissing her.

Subsequent to that incident, the plaintiff and defendant resided together as husband and wife for approximately four months, during which there were frequent quarrels. In April of 1975, the defendant informed the plaintiff that her cousin had become separated from her husband. Upon receiving that news the plaintiff ordered the defendant to move out of the family home. The defendant left, but after two weeks he told the plaintiff that he wanted to return to the home with the plaintiff and their family. The plaintiff told the defendant that he could not return.

Mrs. Couvillion testified she could no longer live with her husband because he refused to break off all relations with her cousin, but continued to see her, talk to her on the telephone and even danced with the woman even though she repeatedly pleaded with him not to do so.

The defendant denied engaging in any improprieties with any other women, and stated that there was always a close social relationship between the two families, that they often went camping together, to parties together and lived nearby. Furthermore, every time that the defendant was with or around the other woman, it occurred at dances or places where other family members were present.

The trial judge found the parties to be mutually at fault and it appears obvious to us that the trial judge was correct. The issue is mainly based on credibility of the two parties.

For a party to prevail on the allegation of abandonment, not only must there be a withdrawal from the marital domicile, but there must also be exhibited on the part of the spouse who left a constant refusal to return. LSC article 143, Belou v. Belou, La.App., 231 So.2d 580 (1970); Sciortino v. Sciortino, La.App., 188 So.2d 224 (1966). By plaintiff’s own admission, the defendant was ordered out of the house and attempted to return to the marital domicile, but she refused to allow him to return. These facts cannot support a decree of abandonment.

Plaintiff’s petition for separation also alleges cruel treatment which made the parties’ living together unbearable. We have outlined the facts above. Even if we concede the wife’s complaints to be strong enough to support a finding of cruelty, we are confronted with the opposing testimony of the husband, and an obvious credibility call by the trial judge.

It is apparent to this court that the trial judge was correct. The review of the record leads us to the conclusion that both parties have been at fault and it is impossible to determine which is more at fault. Where fault of the parties are nearly balanced, neither the husband nor the wife is entitled to judicial separation. Geraci v. Geraci, La.App., 226 So.2d 543 (1969); Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952). We agree with the dismissal of the wife’s suit.

We call attention to the fact that the separation took place in April, 1975 and the judgment appealed was rendered March 17, 1976. Act 495 of 1976 added a new article 141 to Louisiana’s Civil Code providing grant of judgment of separation in mutual fault cases, apparently legislatively overruling the prior jurisprudence. However, it was not effective until October 1, 1976.

For the foregoing reasons, the judgment appealed is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY and William Gentry v. Quitman THOMAS and William Mitchell.
    No. 8098.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Wells & Breaux, Mack E. Breaux, New Orleans, for plaintiffs-appellees.
    Jesse S. Guillot, New Orleans, for William Mitchell, defendant-appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit arising out of an intersec-tional collision at Canal Blvd. and Kenil-worth Street in the City of New Orleans. The intersection is controlled by a traffic light. The sole question is which driver had the green light.

The plaintiff testifies that the light was favorable to him and that defendant had a red light. He is supported by the testimony of the driver of another vehicle proceeding alongside of him. Opposing this defendant-appellant contends that he had the favorable light and plaintiff had a red light. His testimony is supported by the owner-passenger of his vehicle, and the driver of a following vehicle.

The question is purely one of credibility. The trial judge noted that the testimony of defendants’ following witness was unbelievable, and we agree. Her version of the accident is completely confused at best, and physically impossible at worst. In rebuttal, a policeman who investigated the accident was called to the stand and testified as to the placement of the vehicles after the accident, the location of collision debris and skid marks. These physical facts corroborate the version of plaintiff.

We affirm the court’s judgment.

AFFIRMED.


author: BOUTALL, Judge. GULOTTA, Judge,

text:
    June Marie SMITH, as Administratrix, Legal Guardian, Tutrix and wife of Deceased James Ferrante, and on behalf of his Estate and succession, and on behalf of the minor children, Jessica Ferrante and Jason Ferrante v. OFFICERS AND DIRECTORS OF KART-N-KARRY, INC., Glen Wright, President, et al.
    No. 8139.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Norman Mopsik, New Orleans, for plaintiffs-appellants.
    Johnston & Duplass, Robert M. Johnston, New Orleans, for Glen Wright, in his capacity as President and Treasurer of Kart-N-Karry, et al., defendants-appellees.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Plaintiff, wife of the deceased James Ferrante, Jr., brought this suit on her own behalf and on the behalf of the deceased’s two minor children as an executive and officer liability suit. Plaintiff seeks recovery of the wrongful death of her husband who was shot to death during the armed robbery of the Kart-N-Karry establishment where he was manager and cashier. Defendants answered the suit and filed a motion for summary judgment. The motion for summary judgment was granted and plaintiff’s suit was dismissed with prejudice. Plaintiff has appealed that judgment.

The issue herein is governed by the provisions of Article 966, Code of Civil Procedure, which, in pertinent part, states:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

There is no factual dispute herein. Mover relies on three documents for judgment: Plaintiff’s petition, Plaintiff’s answer to interrogatories and Plaintiff’s answers to questions on deposition.

Plaintiff’s petition alleges that the defendants were negligent for failing to take various measures to protect the decedent even though the defendants had knowledge of the danger to which the deceased employee was exposed. In paragraph IV(b) of plaintiff’s petition, plaintiff states that:

“The defendants despite their knowledge that their small supermarket was previously robbed and that there were repeated requests by their employees including the deceased James Ferrante, Jr.; and that there had been a repeated history of criminal action perpetrated by third parties, the said defendants failed to do all things reasonable, necessary and foreseeable to protect against such occurrences and safeguard the safety of the decedent."

Defendants submitted interrogatories to the plaintiff and asked specifically what requests and complaints were made by the decedent in regard to the allegations contained in paragraph IV(b) of plaintiff’s petition. Plaintiff answered:

“The deceased James Ferrante made frequent requests, complaints, to his employer about having mobile security and or individually security guards actually stationed in the various stores. He additionally asked for more help besides himself in order to get added protection.”

Additionally, defendants took discovery depositions of plaintiff on March 29, 1976. In summary of her answers, the following facts were stated by plaintiff: that her husband had made repeated requests for help, that he was concerned for his life and safety, that he feared his store would be robbed because it was in a bad neighborhood.

Based on these facts, appellee contends that deceased James Ferrante, Jr. had knowledge of the dangers of working in the Kart-N-Karry under the unprotected conditions in the store, and that under present jurisprudence, to work at the store with the knowledge of the dangers constituted assumption of the risk and contributory negligence. Pfister v. Phoenix of Hartford In surance Company, La.App., 290 So.2d 362 (1974).

In Pfister, an apartment complex manager was severely beaten during a robbery of the office where he worked. The manager had warned the defendant executives and officers of the high crime rate of the neighborhood and sought security guards for protection. This court found the plaintiff apartment manager to be prevented from recovery by the defenses of contributory negligence and assumption of the risk.

This court, in Pfister, said at 290 So.2d 364:

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own safety and protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). In essence, did plaintiff have full knowledge of the danger in which he was placed and were his actions that of a reasonable man under the circumstances to secure safety from attack. If we find that [the] plaintiff fully appreciated the risk he was incurring and freely and voluntarily chose to incur it, then it can be said that he assumed the risk and is guilty of contributory negligence.”
* * Si! * * *
“It is an established principle of law that if an employer puts his employee in a position of undisclosed danger, he is liable to the employee who is injured thereby, but if the employee exposes himself to a known danger, he assumes the risk and is guilty of contributory negligence. See: Swilley v. American Fire & Casualty Company, La.App., 148 So.2d 157.”

When we apply the test for contributory negligence and assumption of the risk set forth in Pfister, we must necessarily conclude that the plaintiff in the case before us is barred from recovery as a matter of law based on the undisputed facts. We find that the trial judge’s application of the law is correct and the summary judgment dismissing plaintiff’s suit to be appropriate. See for example, Comer v. Texaco, Inc., 514 F.2d 1243 (5th Cir. 1975).

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

AFFIRMED.

GULOTTA, Judge,

concurring.

I concur.

Because we are bound by the Pfister decision rendered by this court (from which I dissented) and the facts of the instant ease are not appreciably distinguishable from Pfister, I concur in the result.


text:
    Mary Frederick, wife of Arthur E. STEBER v. Arthur E. STEBER.
    No. 8363.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Roger I. Dallam, Greenberg & Dallam, Gretna, for Arthur E. Steber, defendant-appellant.
    White, Fray & White, Robert H. Fray, Gretna, for Mary Frederick Steber, plaintiff-appellee.
    Before SAMUEL, GULOTTA, and BOU-TALL, JJ.
   BOUTALL, Judge.

Appellant, Arthur E. Steber, appeals a judgment of the trial court which dismissed appellant’s rule to terminate alimony. Appellant contends that: 1.) A prior fault determination in his favor in the separation proceeding barred relitigation of fault after divorce and thus precludes his ex-wife from recovering alimony after divorce and 2.) His ex-wife is not entitled to alimony after divorce because she has sufficient means for her support.

Because of the procedural posture of this case, it is necessary to set out a calendar of the proceedings leading to this appeal.

Appellee Mary Frederick Steber filed suit for separation on the grounds of cruel treatment and abandonment in November of 1972. Appellant answered that suit and filed a reconventional demand for separation on the grounds of the wife’s alleged abandonment. On March 11, 1973, judgment was rendered dismissing Mrs. Steber’s suit and granting a separation a mensa et thoro in favor of Mr. Steber on his recon-ventional demand.

On March 12, 1974, Mr. Steber filed suit for divorce based upon one year’s living apart after rendition of judgment of separation. On May 15, 1974 he was granted judgment of divorce. Additionally, that judgment contained the following:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that counsel, having entered into a joint stipulation, reserve unto defendant, Mary Frederick Steber, the right to adjudicate fault as it relates to defendant’s rights of permanent alimony after divorce on June 25, 1974.”
* * * * * *

On August 19, 1974, the issue of the wife’s fault was tried. The court adjudicated the wife free from fault, decreeing:

“IT IS ORDERED, ADJUDGED AND DECREED that Arthur E. Steber be and he is hereby declared to have been at fault in the separation between him and his wife, and accordingly, judgment is hereby rendered in favor of Mary Frederick, wife of Arthur E. Steber and against Arthur E. Steber in the sum of $225.00 per month as alimony payment . . .”

Nineteen months subsequent to that judgment the appellant filed in June, 1976, the rule to terminate alimony which is now before us. Trial of that rule resulted in judgment of dismissal and the present appeal.

Appellant contends that the judgment of the trial court refusing to terminate alimony should be reversed in light of the pronouncement of the Supreme Court that a fault determination in the separation proceeding is normally determinative of fault for the purpose of deciding whether the wife is entitled to alimony after divorce. Fulmer v. Fulmer, 301 So.2d 622 (La.App.1974). Appellant also relies on this court’s holding in Trahan v. Trahan, La.App., 340 So.2d 676 (1976), for the proposition that relitigation of fault is barred by the principle of Fulmer and litigants cannot stipulate or contract to alter the effect of a prior fault adjudication.

While at first impression it would appear that this case is guided by Trahan, we note an important distinction between the Trahan case and this case. In Trahan, there was an appeal timely taken from the judgment of relitigated fault, and the issue was whether it was permissible to reliti-gate. However, in this case, there was no appeal taken from the judgment of reliti-gated fault, the delays have long since lapsed, and the judgment is definitive, having acquired the authority of a thing adjudged. C.C.P. 1842. Therefore, while we would say under the Trahan rule that the judgment was not proper, it is nonetheless now controlling between the parties. Although a judgment may be erroneous, when it becomes final, it is the law between the parties and is the property of the person in whose favor it was rendered. Allen v. Commercial National Bank in Shreveport, 243 La. 840, 147 So.2d 865 (1963). To hold otherwise would subject to appeal all similar cases where fault was relitigated even though the time and delays allowed for appeal have long since lapsed.

We now pass to the merits to determine if the trial court erred in dismissing the rule to terminate alimony.

The rule was brought to terminate because Mrs. Steber had received her share of the community and allegedly had liquid assets in excess of $20,000.00. At the trial of the rule, Mrs. Steber testified that she had but $13,000 in her possession and that her monthly expenses averaged approximately $1,200. No evidence was introduced to contradict this testimony.

In his reasons for judgment, the trial judge said:

“Since the division of the community, the wife has substantially depleted her only capital and the wife is not required to completely expend her capital assets before receiving alimony.”

We agree that the wife is not required to deplete the entire sum she received from the settlement of the community in order to be entitled to alimony after divorce, and we have so held previously in Mendoza v. Mendoza, La.App., 310 So.2d 154 (1975). Additionally, the trial judge has much discretion in fixing alimony, and his judgment will not be disturbed unless there is a clear showing of abuse of that discretion. Moore v. Moore, La.App., 256 So.2d 782 (1972). Our review of the record leads us to the conclusion that there is no clear showing of abuse of the trial judge’s discretion.

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

AFFIRMED.

      . LSA-R.S. 9:302.

      . Minute entry of the district court for August 19, 1974.


text:
    Mary BARRE, Individually, and her husband, Joseph Barre v. HONG-KONG RESTAURANT, INC. and Aetna Insurance Co.
    No. 8395.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Anthony L. Glorioso, Kiefer, Glorioso & Fleming, New Orleans, for Mary and Joseph Barre, plaintiffs-appellants.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for Hong-Kong Restaurant, Inc. and Aetna Ins. Co., defendants-appel-lees.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Plaintiff, Mary Barre, filed suit for recovery of workman’s compensation benefits. From a judgment dismissing her suit she has appealed.

It was stipulated that the plaintiff cut her left hand and little finger during the course of her employment as a cook at the defendant restaurant; that she was unable to work from February 26, 1974 through April 22, 1974 and during that period of disability she was paid weekly benefits of $65.00 per week; that prior to trial the defendant insurer paid an additional sum of $1,355.00, based upon the schedule of permanent partial disability of the hand.

It was also stipulated that in October of 1974 the plaintiff developed pain in her neck, left shoulder and left arm and that such symptoms were the result of thoracic outlet syndrome. This condition was not related to either the accident or injury sustained on February 25, 1974.

At the trial, the plaintiff called Dr. Harold M. Stokes who testified as her treating physician and as an expert in the field of orthopedic surgery. Dr. Stokes testified that the plaintiff was told that she could return to work in April of 1974, even though she could expect to have some discomfort. The doctor could not give an opinion as to the degree of discomfort suffered by the plaintiff, but did note that no pain medication or analgesics applications were required. Dr. Stokes continued to see the plaintiff from time to time and on September 10, 1974 his examination revealed that the plaintiff had excellent range of motion in the finger and that there was a demonstrated sensation with sweat in the finger. The doctor found the impairment to be 5% of the little finger, and when pressed to relate that to the hand computed only V2 of 1%. He considered her problem to involve only her finger and expected only progressive improvement. He did not believe that the pain from the injury was significant enough to prevent the plaintiff from doing her job.

Subsequent to that September examination, the plaintiff began to suffer pain and symptoms diagnosed by Dr. Stokes and Dr. Bert Glass as thoracic outlet syndrome. In December, 1974, the pain became severe enough that the plaintiff stopped working as a cook with the defendant.

In January, 1975, the plaintiff saw Dr. Gordon McFarland, an orthopedist and hand surgeon who reported he expected the finger and hand to get better by itself, and listed her permanent partial disability to be at one percent of the hand.

On February 28, 1975, the plaintiff was examined by a neurologist, Dr. William Martin. Dr. Martin’s summary stated:

“Electrodiagnostic studies are normal with no evidence of neuropathy, radiculo-pathy or myopathy. I am unable to explain the patient’s pain syndrome on the results of this study.”

It is apparent from the evidence detailed above that the trial judge was correct in his determination that plaintiff suffered no disability for which she had not been paid, either because of pain or because of physical impairment. A party alleging disability because of pain must establish the reasonable existence of that condition by a preponderance of the evidence. The mere claim of pain without some proof is not sufficient to prove residual disability substantial enough to prevent claimant from carrying on the same or similar work. Gros v. Employer’s Insurance of Wausau, La.App., 338 So.2d 986 (1976).

Similarly, a workman’s compensation claimant must prove permanent and total disability by a reasonable preponderance of evidence. Tyler v. Owens-Illinois, La.App., 289 So.2d 893 (1974).

Our review of the record necessarily leads us to the conclusion that the plaintiff failed to prove her claim of pain or functional disability resulting from the accident of February 25, 1974. The medical reports and testimony demonstrate to us that whatever pain the plaintiff suffers is caused by the thoracic outlet syndrome. Her functional disability is limited to 5% of the little finger of her left hand, and she has been more than adequately paid for this disability.

For the foregoing reasons, the judgment appealed is affirmed.

AFFIRMED.


text:
    David C. WOLF v. STATE of Louisiana and Louisiana Board of Review, Dept. of Employment Security.
    No. 8427.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Robert L. Danner, Jr., Asst. Atty. Gen., William J. Guste, Jr., Atty. Gen., State of Louisiana, Warren E. Mouledoux, First Asst. Atty. Gen., William P. Curry, Jr., Asst. Atty. Gen., for State of Louisiana and the Louisiana Bd. of Review of the Dept, of Employment Security, defendants-appellants.
    Thomas F. Schexnayder, New Orleans, for David C. Wolf, plaintiff-appellee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

David C. Wolf was a victim of a violent crime against his person which occurred in New Orleans on October 28, 1972. Wolf sought compensation for his pecuniary losses pursuant to Act 721 of 1972 (R.S. 46:1801 et seq.) by applying for a hearing before the Board of Review, Department of Employment Security, the convening authority to hold hearings under the Act. The Board denied Wolf a hearing because no funds had been made available.

Wolf then successfully applied to the District Court for relief. The defendant Board and the State of Louisiana appealed. On appeal this court reversed the trial court, gave judgment for the State of Louisiana maintaining its exceptions of prematurity and dismissing plaintiff’s suit against the State, and remanded for review by the Board of Review, Department of Employment Security for implementation of Act 721 of 1972, R.S. 46:1801 et seq. Wolf v. State, La.App., 325 So.2d 342 (1975).

Subsequent to that appeal and the accompanying remand, there was a hearing afforded by the Board and the hearing officer recommended that the Board make awards of $3,453.42 for pecuniary loss to Wolf, and $1,151.14 attorney’s fees. However, the Board denied the claims, saying:

“It is the opinion of the Board of Review that these claims must be denied. The State of Louisiana has made no appropriations to fund Louisiana Act 721 of 1972.”

Immediately thereafter, Wolf filed a “Petition for a Judgment” on the pleadings in his favor in the same amount as the recommended compensation made at the Board hearing. The judgment was rendered against the defendants State of Louisiana and the Board of Review, Department of Employment Security, and both have appealed.

Act 721 of 1972 became effective on July 26, 1972. We have examined the Act and we do not find that its effective date was conditioned upon an appropriation by the legislature to implement the fund from which claims were to be paid or upon receipt of funds granted by the United States. The fund could receive other contributions. Therefore, as of July 26, 1972, the Act was effective and operational, and continued to be so until its repeal by Act 535 of 1976, the effective date of which was October 1, 1976. The appellee Wolf’s cause of action arose during the period that the Act was in effect and as we found on the prior appeal, Wolf was entitled to a hearing by the Board of Review. The Board found Wolf and his attorney entitled to compensation under the Act, but refused to give judgment accordingly. There is no serious issue on the amount, and we find that the trial court correctly determined that the Board of Review should have granted judgment for the amount of suggested awards.

The problem is lack of funding. Although the appellee and his attorney are entitled to compensation, there have been no funds appropriated or granted to the Criminal Victim Indemnity Fund from which such compensation was to be paid under the Act.

We note that the decision of the Board was rendered on June 4, 1976 and reiterate that the act was still effective and funds could have been received into the indemnity fund. The Board erred in denying the award completely. The Board should have granted the award, but conditioned its order of payment upon receipt of available funds in accordance with the above cited sections.

We have seriously considered the proposition that the entire matter is moot because the indemnity fund is nil and Act 721 has been repealed. Under these circumstances the court has no authority to authorize payment of the award. That has now become a matter for the legislature to consider. See Const.1921, Art. 3 § 35; Const.1974, Art. 12 § 10. Nevertheless the issues presented were decided at a time when provision for payment could have been legally made by the legislature and the constitutional authority is theirs, not ours.

Finally we note that despite our previous judgment the trial court has again rendered judgment against the State of Louisiana. In this court the state argues that there is no cause of action against it and we agree. The act does not provide for such a judgment, only an order of payment from the indemnity fund.

Accordingly, the decision of the Board of Review, Department of Employment Security, is reversed, and the judgment of the district court is amended in part and reversed in part and recast to read as follows:

“IT IS ORDERED that there is judgment herein awarding compensation to David C. Wolf as pecuniary loss from physical injuries in the sum of $3,453.42 and awarding Thomas F. Schexnayder attorney’s fees in the sum of $1,151.14, both awards to be payable from the Criminal Victim Indemnity Fund, all in accordance with the provisions of Act 721 of 1972. The Board of Review, Department of Employment Security is cast for such court costs as may be legally assessed against it.”

AMENDED IN PART, REVERSED IN PART AND RECAST.

      . AN ACT
      “To provide for the compensation of innocent victims of violent crime in need; to authorize the state of Louisiana to accept any federal funds or grants made available for such purpose; and to further provide with respect to all of the above.”
      Section 1, Act 721 of 1972 states:
      “The Board of Review of the Department of Employment Security hereinafter referred to as the board, shall, among its other duties, serve as a board of Review for claims made under this Act.”
      * * * * * #

      . Section 18. Indemnity fund.
      “There is hereby created, in the office of the state treasurer, a fund to be known as the Criminal Victim Indemnity Fund (hereinafter referred to as the ‘fund’). The fund shall consist of such amounts as may be deposited in, or appropriated to such fund, as provided by law, or as may be contributed to such fund by public or private agencies or organizations or individuals, including grants from the government of the United States.”
      ******
      “Section 21. Fine imposed for Criminal Victim Indemnity Fund.
      “In any Louisiana court of competent jurisdiction upon conviction of a person of a crime resulting in the personal injury or death of another person, the court shall take into consideration the financial conditions of such person, and may, in addition to any other penalty, order such person to pay a fine commensurate in amount with the personal injury or death or* such other person, and such fine shall be
      “ * As it appears in the enrolled bill." deposited into the Criminal Victim Indemnity Fund.”

      . “Section 6. Authorization of payment.
      “A. In any case in which a person is injured or killed by any criminal act, or ommission of any other person, enumerated in Section 7-A of this Act, the board may, in its discretion, upon an application, order the payment of, and pay, compensation in accordance with the provisions of this Act, if such act or ommission occurs within the jurisdiction of the state of Louisiana.”
      * * * * * *
      “Section 11. Character of compensation.

        “The board may order the payment of compensation under this Act for any pecuniary loss actually and necessarily incurred as a result of the personal injury or death of the victim.”
      ******
      “Section 14. Terms and payment of the order of compensation.
      “C. The board shall pay to the person named in the order of payment of compensation the amount named therein in accordance with the provisions of such order.”


text:
    Robert M. DUPAS, Jr. v. CITY OF NEW ORLEANS, Travelers Insurance Company and William O. Brown.
    No. 8060.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Gerald P. Aurillo, Metairie, for Robert M. Dupas, Jr., plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre and James L. Selman, II, New Orleans, for Travelers Ins. Co. and Philip Lorio, defendants-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, and Gerald A. Stewart, Asst. City Atty., New Orleans, for City of New Orleans and William 0. Brown, defendants-appellees.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Plaintiff, Robert M. Dupas, Jr., filed suit seeking recovery of damages for injuries sustained as a result of being struck by a New Orleans Police Department vehicle driven by Officer William 0. Brown on the night of October 15, 1973. Defendants in the suit are the City of New Orleans, owner of the police vehicle, Brown, the driver of the vehicle, and Travelers Insurance Company, the liability insurer of the city. After trial on the merits, judgment was rendered in favor of defendants, dismissing plaintiff’s suit. Plaintiff appeals.

On the night of October 15, 1973, the plaintiff and his brother-in-law, Allen Knickmeyer, rode the plaintiff’s motorcycle to the overpass over Interstate Highway 10, known commonly as the “third turnaround”. The overpass is located in the marshlands of eastern New Orleans 2.9 miles east of Michoud. It is connected to I — 10 with exit and entrance lanes, and is used primarily as a turnaround and by fishermen locally in the area. It receives little vehicular traffic due to the fact that the roadway of the overpass does not connect with any other roads.

The plaintiff and Knickmeyer arrived at the overpass some time after dark in the early evening. They parked the motorcycle in the 3 foot wide emergency lane on the east or Slidell side of the overpass. The two men then took turns using a pair of binoculars to look for UFO’s which had been reported to have been seen in the area. The record discloses that prior to the accident only one vehicle drove upon the overpass. That one vehicle was a police department emergency unit, or crash truck, driven by Sgt. Elmo Boepple. Boepple testified that he was driving with his lights on and that he could see the reflectors on the motorcycle and the two men on the overpass, that he slowed his vehicle, that the plaintiff who was in the roadway saw him and moved out of the roadway as the crash truck approached. Boepple asked them what they were doing there on the overpass and chatted with the two men for several minutes and then left after telling them “to be careful and to stay out of the street”. The two men resumed their lookout for UFO’s.

At about 9:15 P.M., approximately 20 minutes after the departure of the crash truck, the unlighted vehicle driven by Officer Brown struck the plaintiff while he was in the traffic lane of the overpass. The collision caused the plaintiff to be thrown onto the hood of the car and his head struck the windshield of the car. Immediately, Brown came to a stop and the plaintiff rolled off the hood and onto the pavement. In response to Brown’s call for assistance, Sgt. Boepple was dispatched to the accident scene and transported plaintiff to the hospital where doctors diagnosed a closed injury to the brain. Due to the fact that the plaintiffs brain tissue was swollen, the doctors performed a temporal lobotomy and excised a swollen portion of the brain described as the size of a fist.

The trial judge found that the driver was negligent and that the pedestrian was con-tributorily negligent and made the following finding from the bench:

“The best way I know how to state what I believe the legal position in the case is that both of these parties, the plaintiff and the defendant, while they were both negligent and significantly negligent, neither one has any way to anticipate that the other one would be doing what he was doing at the moment of the impact and of the accident. There is no question in my mind that if the police car’s lights were on the accident would not have occurred. There is also no question in my mind that if Mr. Dupas had been using the pedestrian area for example or had simply been aware of what was going on around him as opposed to looking in the binoculars the accident would not have occurred. Both of them were significantly, actively negligent up to the moment of impact.”

The record discloses that plaintiff Dupas was not able to testify completely as to the events surrounding the collision because he suffered loss of memory as a result of the injuries received. A number of experts were called to testify to the different aspects of the case but the basic result is controlled by the testimony of the other two eye-witnesses, the driver Brown, and the plaintiff’s brother-in-law, Knickmeyer.

Officer Brown testified that he was on duty with the ecology squad searching for illegal hunters in the area and had used this overpass as a vantage point for observation to help him in his duties. Shortly before the accident, he had driven off of the Interstate Highway onto the overpass with his lights on from the side opposite to that which the plaintiff and later Sgt. Boepple had used, and as he approached towards the crest he parked his vehicle and turned off the lights at a point subsequently determined to be 100 feet or more from the two pedestrians. Brown stepped out of his vehicle and watched for possible violations for about 15 minutes. He then spotted a suspicious vehicle with a light shining from the window on the side of the approach road he had used and decided to get into his vehicle, cross over the overpass to the far side and turn around in hopes of intercepting the suspicious vehicle. For secrecy purposes, Brown had placed tape over the lights of the 2-way radios in his car so that no light would be reflected up into the windshield, and as a further measure he had a switch that enabled him to turn off his brake and tail lights while the car was moving.

In furtherance of his purpose, Brown started his car up and drove off without turning his headlights on at a speed of 15 to 20 miles per hour when he was suddenly confronted with plaintiff standing in the roadway only 10 feet in front of his car, binoculars raised to his eyes and peering into the skies. As Brown began applying his brakes, the vehicle struck the plaintiff, throwing him up onto the hood and windshield. Fearing that a sudden stop would cause plaintiff to be thrown off the side of the overpass, Brown slowed gently and veered slightly to his left to center the vehicle in the roadway. He testified that he was not able to see the motorcycle until after he struck plaintiff, and that he did not see Knickmeyer at that time because Knickmeyer was sitting down alongside the motorcycle hidden from view. He asserts that plaintiff was standing in his traffic lane at the time of the collision, wearing dark clothes, and looking through the binoculars into the sky, and apparently was never mindful of Brown’s approach.

As opposed to this testimony, Knickmeyer testified that he and Dupas were never aware of Brown’s vehicle having come up on the overpass and parked. He states that he and Dupas had been taking turns watching for UFO’s, and that Dupas was now taking his turn to look and while doing so, Knickmeyer decided to relax and smoke a cigarette. For this purpose he sat up against the rail in the emergency space off the travelled roadway on the New Orleans or western side. As he sat there smoking, suddenly an unlighted car flashed by him and struck Dupas before he could raise any warning. At that time Dupas was crossing the overpass from west to east and was on the eastern side of the roadway, the traffic lane opposed to that in which the defendant should have been driving. He could not say whether Dupas actually had the glasses raised to his eyes at the time, although Dupas was not standing in the roadway but proceeding across it, giving an inference that he was not looking through the binoculars at the time.

The negligence of defendant Brown is apparent from his own testimony. He has admitted driving without lights in violation of LSA-R.S. 32:301. While it is true that he is a police officer in the discharge of his official duties, he also has a duty to the public to act in safety, and under the circumstances above mentioned, we cannot condone proceeding across an overpass in darkness and consider that it is the act of an ordinarily prudent man who has due regard for the safety of others. It is quite clear from the wording of the statute that its purpose is to protect life and property on the highways by requiring motorists to use headlights to aid them in discovering persons and vehicles on the highway, and to make others aware of their presence. It is evident that the harm suffered by plaintiff in this case is clearly the type of risk and harm intended to be prevented by enactment of the statute, and falls within its scope and protection. Under such conditions, the violation of the statute is negligence per se. Independent of the law, it is the grossest kind of negligence. Normand v. Piazza, 145 So.2d 110 (La.App. 4th Cir. 1962).

We have more difficulty in assessing the negligence of plaintiff Dupas. However the record does support the finding of the trial judge that he was in the roadway with his glasses raised, oblivious of any approaching traffic. We are convinced that he was standing in the roadway paying no attention to possible traffic but concentrating on his search for UFO’s, despite having been previously warned by Sgt. Boepple to stay out of the roadway. This activity is not consistent with the duty of ordinary care imposed upon him. Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances.

Alternately, plaintiff contends that defendant had the last clear chance to avoid the accident. The record shows that the opportunity to see and avoid was equally available to the parties. The doctrine of last clear chance is like a two-edged sword, applicable equally to the rights of the defendant and those of the plaintiff. Ortego v. State Farm Mutual Automobile Ins. Co., 295 So.2d 593 (La.App. 3rd Cir. 1974). Where both parties are inattentive and neither is aware of the other in time to take effective evasive action the doctrine does not apply. Burge v. Doty, 279 So.2d 273 (La.App. 2d Cir. 1973). Additionally, it has been held that where the defendant could not see plaintiff and the negligent plaintiff is not helpless to save himself, but is only inattentive to his surroundings, he has no right for reimbursement for loss occasioned by his own inattentiveness. Kraft v. U. Koen & Company, 188 So.2d 203 (La.App. 4th Cir. 1966).

The judgment is affirmed.

AFFIRMED.

GULOTTA, Judge,

concurring.

The result reached by the majority, on last clear chance, is not inconsistent with the dissent in Baumgartner v. State Farm Mutual Automobile Insurance Company, 346 So.2d 277 (La.App. 4th Cir. 1977).

Accordingly, I concur.

      . Dupas testified that he was not aware of being struck by a car. The last he remembers is seeing a white star through his binoculars.

      . The investigating officer placed the collision in Brown’s lane.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Mrs. Nancy Siepman, wife of Ronald HOTZ v. Ronald HOTZ.
    No. 8463.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    Derbes & Derbes, James G. Derbes, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

This appeal by Mr. Hotz is from a judgment on a rule brought by him in July, 1976, to suspend child support payments of $175 per month retroactive to August, 1975, and on a rule brought by appellee to make past due child support executory. The judgment appealed from denied appellant’s motion for a retroactive suspension and awarded a judgment to appellee, making child support payments executory from August, 1975, through July, 1976.

The only testimony at the trial of the rules was that of appellant. He said that continuing difficulties between him and ap-pellee culminated with a telephone conversation in August, 1975, in which the parties agreed that he would no longer exercise his visitation rights and he would no longer make child support payments.

The trial court in reasons for judgment expressed the opinion that the law precluded him from enforcing the agreement of the parties retroactive to the date of the agreement, but he allowed the agreement to be enforced retroactive to the date that appellant filed his rule.

The general law emerging from the jurisprudence is to the effect that relief from liability for accrued alimony cannot be obtained except by an application to the court. Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954); Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953); Collette v. Olivier, 309 So.2d 894 (La.App. 3rd Cir. 1975); Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974); Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971).

These cases and others stand for the proposition that no discretion is vested in the trial court to deny the wife to have past due alimony made executory and then converted into a money judgment since it is a vested property right. The trial court cannot consider equity for the purpose of nullifying or reducing accumulated alimony.

In his brief appellant relies on Caraway v. Caraway, 321 So.2d 405 (La.App. 2nd Cir. 1975) and Silas v. Silas, 300 So.2d 522 (La.App. 2nd Cir. 1974). In both of these cases an exception was made to the general rules recited above that where the wife voluntarily places the child in the custody of the husband for an extended period of time he is entitled to a credit for such period of time on any past due child support. Similarly, in Odum v. Odum, 273 So.2d 576 (La.App. 1st Cir. 1974) a credit was allowed the husband for checks he wrote directly to his daughter in accordance with an understanding reached between him and the mother. These exceptional circumstances are not applicable to the instant case. In the last cited cases the fathers in effect did support the children, in the Silas and Caraway cases by providing actual support during the period when they would otherwise have paid the mothers for the support of the children, and in the Odum case by paying the support directly to the child in lieu of sending the support to the mother in accordance with the agreement she made. But in the instant case the mother bore the full brunt of support for the child and there is no basis for making an exception to the general rule that she is now entitled to have past due child support payments made executory.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

Hotz’s testimony that he and his ex-wife agreed that he would have no visitation of their child but would also pay no more child support is corroborated by her counsel’s stipulating to precisely such a judgment for the indefinite future. (Hotz, of course, like his ex-wife, remains always obliged to the child, La.C.C. 227.) The trial judge thought that, as a matter of law, Mrs. Hotz could not waive her right to claim child support by this bargain, or be deemed to have been paid the child support in the pound-of-flesh currency she demanded, namely the father’s yielding his visitation rights.

None of the cases cited by the majority involve our factual situation (Rodriguez, slightly similar, entailed no bargain at all, much less the no-visitation bargain here).

If the trial judge can (as he did) approve the no-support for no-visitation swap prospectively, he could also do so retrospectively. The judgment for arrearages should be set aside.


author: MORIAL, Judge.

text:
    Leonard ADAMS v. EYE, EAR, NOSE AND THROAT HOSPITAL, et al.
    No. 8100.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Thomas L. Giraud, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., New Orleans, for defendant-appellee.
    Adams & Reese, Henry B. Alsobrook, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is a medical malpractice action by Leonard Adams against defendants Dr. Harry B. Caplan and The Eye, Ear, Nose and Throat Hospital (EENT). Following a cataract operation, plaintiff developed an infection in his left eye which necessitated the surgical removal of the eye. Plaintiff alleged that the infection was due to the negligence of Dr. Caplan, the ophthalmologist who performed the surgery and the EENT staff because the organism citrobac-ter diversus became implanted in his eye while it was under the total control of the defendants.

The. trial judge dismissed plaintiff’s suit, apparently concluding that plaintiff had failed to prove that the treatment administered to him by defendants fell below the standard of care customarily used by members of the medical profession in good standing in the same community or locality. We affirm.

Plaintiff first saw Dr. Caplan on August 31, 1972 complaining of loss of vision in his left eye. Upon examination the doctor found a mature cataract in plaintiff’s eye and recommended surgical removal of the cataract. The doctor sent plaintiff to EENT for a smear culture on both eyes as well as to have a blood sugar taken, a hematology and a urinalysis. Plaintiff was told to see his family doctor for a physical to determine if he was in a condition to withstand surgery.

Caplan also prescribed Chloromycetin, an antibiotic ointment which he was immediately to begin applying every night in preparation for surgery on September 11, 1972. Plaintiff returned to the doctor on September 8 and found that all of his test results were normal and that his family physician had approved the surgery. The eye culture taken showed no evidence of any organism present in the left eye. Plaintiff was admitted to the hospital on September 10, 1972. Caplan had instructed the staff to administer certain antibiotics to ward off infection as well as other drugs used in preparing the eye for surgery. Hospital records reflect that these instructions were followed by the staff. The doctor described the surgical method employed as that customarily used in a cataract operation and termed it successful and uneventful. He testified that the usual sterile techniques were followed and that sterilized instruments were used. Following the completion of the surgery, an antibiotic ointment was liberally applied to the eye and it was bandaged and covered by a plastic shield. The nurses who treated plaintiff testified that all of the doctor’s instructions were followed and sterile techniques were employed at all times. Plaintiff’s recovery proceeded without incident from September 11 through September 13 with the doctor or hospital staff periodically changing the dressing and applying antibiotics. The dressings and bandages were pre-sterilized and kept unopened until application in Dr. Caplan’s personal tray. On the 11th and 12th of September plaintiff used a bed pan and urinal with his wife’s assistance. On the 13th he used a commode next to his bed to go to the bathroom. His eye was to remain bandaged at all times unless a member of the staff was changing it or administering medication.

On the morning of September 14th upon removing the bandage, Dr. Caplan discovered the eye had become infected and immediately ordered an increase in medication including garamycin, Chloromycetin and cholomycin. An eye culture and sensitivity test were taken and the tests showed the organism was sensitive to several of the antibiotics administered. The treatment was continued from the 14th through the 19th of September; however, by the 19th the infection became so severe the doctor feared that it would spread to the brain and concluded that the evisceration of the eye was necessary. The surgery was performed on September 20 and plaintiff was released on the 24th having made an uneventful recovery.

The infecting organism identified as ci-trobacter diversus, is commonly located in the large intestines of warm blooded animals and rarely causes disease. There are no reported cases of it causing infection in the human eye. Neither Dr. Robert Azar, called as an expert witness nor Dr. Caplan were familiar with the organism. The other experts testified that they had dealt with it very rarely. None of the doctors could state specifically how the organism entered plaintiff’s eye.

The general malpractice law was set out in the case of Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1953) as follows:

“A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule, it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.”

Dr. Robert Azar was qualified as an expert in the field of ophthalmology. Upon receiving a description of the pre-operative care given by the doctor, including the smear cultures of both eyes, and the prescription of daily application of antibiotics during the pre-hospitalization period, Dr. Azar was of the opinion that Dr. Caplan’s care exceeded that customarily employed by a competent specialist in his field in this community and in other areas of the country. He stated that the pre-operative orders issued were proper and the surgical technique was correct and in accord with community standards. He testified that the postoperative care and treatment were also in accord with community standards. He stated that postoperative infection did not necessarily indicate negligence on the part of a surgeon or hospital personnel. He explained that a certain percentage of patients will develop an infection no matter how meticulous and cautious a surgeon may be. Prior to this case, Dr. Azar had not heard of the organism citrobacter diversus. He could not explain how the infection had entered plaintiff’s eye.

Dr. George Hauser, the head pathologist at the EENT Hospital was also called as an expert witness. He had never dealt with a case of citrobacter diversus infecting the eye. He explained that the organism is generally found in the large intestines, but is also found in the sputum, nasal passages, throat, urine and wounds about the body. He stated that the bacteria could be transported from the colon to other body areas by direct contact to the eye or through the blood stream. He testified that it was commonly transported by direct transmission when the patient or other party touches the area after using the bathroom and does not wash his hands. However, he also explained how the bacteria could be transported to the eye from within the body when the areas adjacent to the eye, such as the sinuses or nasal passages are infected. He stated that the organism could work its way through a duct leading from the nose to the eye. He was of the opinion that where an antibiotic ointment had been liberally applied to the front of the eye, it would be unlikely for the organism to enter through the front of the eye.

He further testified that the hospital had set out plates containing media in which bacteria grows to determine if the organism was present in the hospital environment. There was no evidence of the organism found in the hospital and there were no reports of any of the other patients developing a similar infection.

Dr. William Mogabgab, a specialist in infectious diseases had never seen a case of a citrobacter diversus infection in an eye in his thirty years of practice. He stated that the organism is usually found in the gastrointestinal contents of humans and animals. He said he could not expect the organism to be transmitted through the blood stream without a patient exhibiting symptoms of high fever and loss of appetite. He stated that the organism could be transported by direct contact or by air. He knew of cases where citrobacter diversus had caused infections in the urinary tract, the sinus, lungs and sputum. He believed that there is a greater probability of the organism being spread by direct contact than through airborne means. He could not state how the organism had been introduced into plaintiff’s eye.

In reviewing the record we find no evidence to contradict the trial court’s conclusion that the defendants exercised the ordinary degree of care employed by members of the medical profession in good standing in this community in their care and treatment of plaintiff. In fact, the expert testimony was to the effect that Dr. Caplan exceeded the degree of care ordinarily used by doctors in this area. The expert testimony was that infection is a postoperative risk in all cases and does not necessarily raise an inference of negligence. We find plaintiff failed to meet his burden of proof. Thibodeaux v. Aetna Casualty and Surety Company, 216 So.2d 314 (La.App. 3 Cir. 1965).

The doctrine of “res ipsa loquitar” is inapplicable. This doctrine comes into play in a case where circumstantial evidence is presented and negligence is inferred on the part of a defendant because the facts indicate this to be the most probable cause of the injury in the absence of other plausible explanations by witnesses found credible. Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621 (1972).

The testimony suggests many possibilities as to the cause of plaintiff’s infection. We are dealing with a rare medical occurrence in this case and understandably so, we were not given any definitive medical explanation as to the cause. We find it significant that none of the other patients in the hospital during this period developed this infection. It suggests that the organism may have been indigenous to the patient infected. We feel it was equally as possible for the plaintiff to have carried the infection' in an area adjacent to the eye or to have touched the area around his eye as it is possible for the infection to have been caused by the negligence of the doctor or staff. We do not find that plaintiff successfully raised an inference of negligence.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: MORIAL, Judge. REDMANN, Judge,

text:
    Kathleen (Mowery) CRAMER in the Interest of Scott Mowery v. Jimmy D. MOWERY.
    No. 8092.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    John P. Ferrara, New Orleans, for plaintiff-appellee.
    Thomas P. Anzelmo, Sr., Salvador Anzel-mo, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Jimmy D. Mowery appeals from a judgment awarding custody of his four year old son Scott to his former wife, Kathleen Mowery Cramer. Mrs. Cramer obtained a change in custody reversing a decree in favor of Jimmy D. Mowery entered in the Court of Common Pleas in Medina County, Ohio on September 26, 1975.

Plaintiff and defendant both filed for divorce in Medina County on May 28, 1974. Jimmy D. Mowery was granted the temporary custody of the child. On July 21, 1974 after a hearing, the Medina court granted temporary custody to the mother and liberal visitation rights to the father. The father was ordered to make temporary alimony and child support payments.

A subsequent hearing was held in Medina on June 20, 1975. At this hearing it was established that Mrs. Mowery had allowed her paramour to stay in her home overnight while the child was in her custody. It was also established that the father was in arrears in his child support payments. The Medina court granted a divorce decree in favor of Mr. Mowery and awarded him the permanent custody of the child. This decree was not formally entered until September 26, 1975.

In July 1975 Mrs. Mowery moved to New Orleans with John Cramer, her paramour and her son. They established a New Orleans residence on July 16,1975. Mr. Cramer supported Mrs. Mowery and the boy. The couple were married on October 11, 1975 in Biloxi, Mississippi. Mrs. Cramer petitioned the court below for a change in custody on October 23, 1975.

Mrs. Cramer testified that she would not be working and that she spends all her time with her son. She stated that her husband got along well with Scott and would continue to support him.

Mr. Mowery testified that he works five or six days a week from seven in the morning until three in the afternoon. He stated that he would spend all his free time with the boy. In his absence his mother would care for the child. He admitted that he had not attempted to communicate with the child or provide him with any support since he had been brought to New Orleans by his mother.

The trial judge found that the mother had made a decided change in her circumstances and in her ability to care for the boy. He noted her remarriage and the fact that she was able to be with her son all the time. The trial court observed that in the past the father had failed to make child support payments.

Defendant argues that the trial court erred in overturning the original custody award and in applying the “double burden” test used in change of custody cases. He also contends that the court erred in admitting evidence of past due child support. Defendant argues that the Medina judge considered that factor and still found that the father should have custody and, therefore, such evidence is irrelevant to this matter.

Plaintiff argues that the findings of the trial court must be given great weight and the decision was correct and made in the best interest of the child.

In Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) the Supreme Court set out the following legal principles to be considered in reviewing a trial court’s decision in a custody matter:

(1) the paramount consideration in determining to whom custody should be granted is always the welfare of the children;

(2) the general rule is that it is in the best interest of the children of the marriage to grant custody to the mother;

(3) when the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of condition demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed;

(4) upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. * * * His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.

In Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972) the Supreme Court applied those principles in determining the correctness of a change in custody by a trial court. Relying on Fulco, supra and Estes, supra the court in Hilliard v. Richard, 291 So.2d 875 (La.App. 3 Cir. 1974) granted a change in custody to a mother who previously had been denied custody because of engaging in immoral conduct. The court ruled in favor of the change in custody upon finding that the mother had remarried and established a stable home. The court noted that the father had provided a good home, but felt the children would be disadvantaged because he worked offshore for two weeks out of the month.

Taking the Fulco principles into consideration, we do not find an abuse of discretion on the part of the trial judge. We reach this conclusion without giving any weight to the evidence concerning past due child support.

It is in the best interest of a child of such tender years to be under the care of a mother who can provide him with daily care and attention. The evidence establishes that the mother has cured the wrongs which led the Medina judge to deny her custody. Further, it was also established that the father works five or six days a week. Under the circumstances of this case the mother is better able to provide the child with a more stable family environment.

The judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge,

dissenting.

This Ohio wife admittedly took this child from her marital home to her paramour’s house in Ohio where she lived as if the wife of her paramour. She then brought the child with the paramour to New Orleans, after the trial in her husband’s divorce and custody suit but before formal judgment. The Ohio court gave the husband a divorce because of the wife’s adultery and also gave him permanent custody because the wife was so openly living in adultery.

About two weeks after the Ohio judgment the wife married her paramour (whether or not validly is not raised). After another two weeks she petitioned a Louisiana court to change custody to herself and the husband responded with a habeas corpus seeking enforcement of the Ohio judgment.

The Ohio judgment should be enforced; the wife’s petition for change of custody should be dismissed for failure to meet her burden of proving changes in circumstances that place the child’s best interest in being in her custody rather than the husband’s.


author: BEER, Judge.

text:
    Mrs. Gail Gaudet, wife of/and Philip GAUDET v. ALLSTATE INSURANCE COMPANY and Leopold J. Schouest.
    No. 8068.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, Daniel R. Hynes, New Orleans, for defendant-appellant.
    Wiedemann & Fransen, Lawrence D. Wied-emann, New Orleans, for plaintiffs-appel-lees.
    Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

Mr. and Mrs. Philip Gaudet were injured in an automobile accident on June 4, 1973. Liability and insurance coverage were stipulated. Quantum was the sole issue before the trial court.

Judgment was rendered, awarding Philip Gaudet $1,500.00 in general damages and $3,820.73 in special damages which included $3,765.73 for the special damages attributable solely to Mrs. Gaudet including:

West Jefferson General Hospital $ 822.30
Drugs 96.37
Mercy Hospital 1,045.06
Dr. Villemarette 367.00
Dr. Kleinschmidt 385.00
Dr. Vogel 1,050.00.

Mrs. Gaudet was awarded $40,000.00 in general damages, but this amount was designated by the trial court to include “all future medical expenses which will probably amount to a very significant sum . ” (emphasis ours). Since the trial court awarded special damages covering all medical charges previously incurred by Mrs. Gaudet directly to her husband, it is remarkable, we believe, that an award was made directly to Mrs. Gaudet for her “future medical expenses.” Indeed, this unusual procedure seems to give some substantiation to appellants’ vigorous oral contention that the trial judge confused this case with another (which he also had taken under advisement), particularly in view of the fact that there is nothing in this record to indicate that there will be any future medical expenses whatsoever incurred by Mrs. Gaudet, nor was any claim made for future medical expenses, nor was any proof adduced or even sought to be adduced that could support any claim for future medical expenses.

A motion for new trial was denied, and defendants suspensively appeal, specifying the amounts awarded to be so excessive as to constitute manifest error.

Mr. Gaudet had suffered a tendon laceration of his right hand in an unrelated accident and had been treated by Dr. Kleinschmidt. After the accident here involved, he complained of swelling in his right middle finger and also complained of back pain. On June 5, Mr. and Mrs. Gaudet were seen by Dr. Hubert Villemarette, a general practitioner, who referred Gaudet to Dr. Arthur Kleinschmidt because he had previously treated Gaudet for the hand injury above described. When he was seen by Dr. Kleinschmidt, Gaudet’s back complaint had “resolved itself with no partial permanent physical impairment,” and his finger problem was, except for a short period of swelling, also resolved. He was completely asymptomatic by June 13th.

When Gail Gaudet was seen by Dr. Ville-marette on the day after the accident, he found a mild cervical sprain and contusions of the left elbow and left shoulder and prescribed muscle relaxants and rest. Thereafter, due to continued subjective complaints, which he was unable to reconcile with generally negative objective findings, he referred Mrs. Gaudet to Dr. Kleinschmidt. He first saw her on July 25th and concluded that Mrs. Gaudet had suffered a muscular or ligamentous strain in the cervical area of a type which “usually resolve themselves with no partial or permanent physical impairment.” Dr. Kleinschmidt saw her again in November, at which time he hospitalized her for “a course of traction, a little more aggressive treatment.” However, at the time of her hospitalization, the results of his examination were completely negative. He states: “Well, actually, on examination, examination (sic) was negative. There was no muscle spasm. There was excellent motion, full range of motion.” Continuing with his objective findings, he states: “Neurological examination of the upper extremities was completely negative. There was no evidence of nerve root involvement.”

At any event, by November 26th, Dr. Kleinschmidt found her to be “completely asymptomatic.” In his words, “She was experiencing no pain at all. Examination revealed no muscle spasms of the cervical spine, full range of painless motion through the cervical spine in all directions . ”

Though she returned to Dr. Kleinsch-midt’s office in December and was re-examined at that time, he indicates that “Examination on that date was again within normal limits, no muscle spasm, and normal motion.” Dr. Kleinschmidt was of the opinion that Mrs. Gaudet had suffered “a mild injury even though she made persistent complaints of pain for rather a long period of time; . . . ”

Mrs. Gaudet first saw Dr. Vogel in the latter part of June, 1974, after being referred to that physician by her attorney. On the basis of the examination which Dr. Vogel conducted at that time (over a year after the accident), he stated: “It was my impression that the patient had experienced a subscapular herniated cervical disc.” However, a myelogram made on June 23, 1974, was normal, and Dr. Vogel changed his original diagnosis concerning the subsca-pula herniated disc. Soon thereafter (two days), without any apparent reference back to the lack of any objective findings on the part of Dr. Kleinschmidt or any apparent consideration thereof, Dr. Vogel performed what he describes as a rhizotomy. This procedure required Mrs. Gaudet to be hospitalized for approximately three days and resulted in the following observation by Dr. Vogel: “I am optimistic that my procedure will resolve her problems. There is no way that I can look into the future and tell for sure and promise this lady that she will never have problems.” Dr. Vogel indicated that Mrs. Gaudet had a normal post-operative course; that her neck and referred pain problems had been resolved; that the residual tenderness at the side of the rhizo-tomy will subside; that no actual loss of body structure has resulted from her injury; and that she will have no disability as a consequence of the rhizotomy.

Although Mrs. Gaudet consistently related subjective pain symptoms to the various physicians, none, including Dr. Vogel, ever clearly found and reported any conclusive or strongly suggestive objective disc pathology. Dr. Vogel, whose first examination of Mrs. Gaudet was over a year after the accident, recommended, and soon thereafter performed, a rhizotomy, a pain-reducing ■procedure which does not affect the functional motor aspects in any way. Dr. Vogel felt that Mrs. Gaudet responded well to his recommended procedure and concluded that she would only be discomforted for a short time, post-operatively. Both Dr. Villemar-ette and Dr. Kleinschmidt, having closely followed Mrs. Gaudet during the entire year after the accident, had previously concluded that she had incurred a moderate or mild cervical sprain.

With this medical history before us, we turn to a consideration of the quantum awards:

The primary authority for the principle that “much discretion” must be afforded the trier of fact in the assessment of damages for offenses is the Louisiana Civil Code. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), reaffirmed the codal provision that quantum determinations may not be altered absent a showing that the trial court abused its “great discretion.” Subsequent appellate court efforts toward “uniformity of awards” have been criticized for being inconsistent with the principle of “great discretion” vested in the trier of fact. Thus, awards in other cases have been relegated to offering, at best, a vague guideline to determine whether there has been an abuse of discretion. The Gaspard court, on rehearing, reluctantly salvaged a minimum basis for considering comparable cases with this statement:

“In view of our codal provision, the appellate courts should consider the amounts of awards in other cases only so far as they are relevant to the question of whether the judge or the jury has abused its discretion in fixing the award in the case under consideration.”

The principles, articulated in Gaspard, were reiterated in Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Walker v. Champion, 288 So.2d 44 (La., 1973); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La., 1973); Boutte v. Hargrove, 290 So.2d 319 (La., 1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La., 1974); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La., 1974); Bitoun v. Landry, 302 So.2d 278 (La., 1974); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La., 1974).

Most recently, the Louisiana Supreme Court, in Coco v. Winston Industries, Inc., 341 So.2d 332 (La., 1976), attempted to further instruct intermediate appellate courts regarding their ambit of review. With all due respect, implementation of this most recent case is, to some degree, irreconcilable with our constitutional mandate.

The Louisiana Constitution of 1921, and the Louisiana Constitution of 1974, extends the jurisdiction of the intermediate appellate courts to review questions of fact and law. Yet, the recent extreme emphasis of the “much discretion” theory has eroded or, perhaps, all but done away with our ability to consider similar cases when attempting to decide if the trial court has, in fact, abused its discretion.

Justice McCaleb, in a dissenting opinion in Gaspard, expressed this same feeling of alarm at the paradox which the Gaspard rationale poses for appellate courts:

“Indeed, if prior awards in cases involving similar injuries are of little value, how will the appellate courts of this State perform their constitutional obligation of review on facts as well as law? The majority perforce acknowledges that pri- or awards must necessarily be considered in determining whether the judge or jury has abused his or its discretion. But, after making this concession, the Court, apparently disregarding the prior jurisprudence, simply concludes that, because plaintiff has suffered" pain and fibrosis in the injured tissues, the jury did not abuse its ‘large’ discretion in giving her $19,500, or almost three times more than has heretofore been awarded for similar injuries. Under this reasoning, what set of facts and circumstances would be required for a verdict to be excessive? Must it be 5 or 10 or 20 times more? Is there to be no precedent to which reference may be made in the determination of just compensation or shall the appellate courts hereafter merely nod their heads in abstract approval of speculative estimates of trial judges and juries? And should trial judges instruct themselves and their juries to give consideration to prior awards in similar cases in reaching their conclusions?”

In Safer v. Gilbert, 161 So.2d 430 (La.App. 1st Cir., 1964), Judge Herget, in his concurring opinion, recognized appellate review of facts and law to be a constitutional right; if the constitutional right is subordinated to or restricted by the codal grant of “much discretion” to the trier of fact, then such codal provision is, he submits, unconstitutional.

By 1965, two years after Gaspard, one commentator discussed the problem which, we believe, is diluting the constitutional jurisdiction of intermediate appellate courts, observing:

“The problem of appellate review of awards which are difficult to assess may be summarized in three statements. First, Louisiana Civil Code Article 1934(3) grants the trial court a large degree of discretion in this area. Second, despite this discretion, the Louisiana Constitution requires appellate review of these awards. Third, since such awards are, by nature, arbitrary, the appellate courts’ natural point of reference in determining whether or not an award is proper is to consider previous awards in similar cases.” (Footnotes omitted.)

However, that commentator suggested that Gaspard was only a warning that emphasis should be shifted away from awards in similar cases, although it was admitted that “. . . for lack of a better guide, awards in previous, similar situations will be used in determining whether the award of the trial court, notwithstanding its undisputed discretion in the area, will be altered.” Finally, the comment concludes:

“The obvious problem which arises is, of course, how to determine whether an abuse of discretion has occurred. The phrase does not readily lend itself to precise definition, and no attempt at defining it has been made in the cases, but its ambit seems to be somewhere between mere ‘error’ and ‘manifest error.’ ” (Footnote omitted.)

Eleven years after that comment, the same questions were being asked:

“But when has the trial judge crossed the forbidden barrier and ‘abused his discretion’? * * * There is little guidance in the jurisprudence to determine what constitutes an abuse of discretion.”

And the same answers were being given:

“It seems to be a necessary inference from the foregoing that if an abuse of discretion is to be shown, it must be on the basis of prior awards in similar cases.”

In Hoffman v. All Star Ins. Corp., 288 So.2d 388 (La.App. 4th Cir., 1974) cert. den. La., 290 So.2d 909, we noted that while the jurisprudence is to the effect that the trier of fact has much discretion in making general damage awards, “. . .we have the onerous constitutional duty to review the facts and to increase or reduce general damage awards resulting from an abuse of discretion by the trial court. LSA-Const. Art. 7, Sec. 29.”

In Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La., 1974), the Supreme Court suggested that one method of testing whether the trial court abused its discretion is to determine whether the award of the jury can be supported by the record:

“Perhaps our courts should define the ‘much discretion’ as used in Civil Code Article 1934(3). Certainly the redactors did not intend to grant unlimited authority to a trial judge or jury to make an award without any reasonable basis in the record to support it.”

On rehearing, in Reggans v. Aetna Casualty & Surety Company, 308 So.2d 898 (La.App. 2nd Cir., 1974) cert. den. 310 So.2d 642, 646, our brethren of the Second Circuit, sitting en banc, noted the role of the appellate courts to be “most perplexing” in light of the apparent conflict between the constitutional mandate and Louisiana Civil Code Art. 1934(3) granting “much discretion.” After briefly discussing Gaspard and Spillers, the court made the following observation before approving their original decree substantially reducing the trial court’s award to two of the plaintiffs:

“Since the jury does have, under the law, much discretion in fixing damages, a more appropriate method of testing whether the jury had abused its discretion is to determine whether the award of the jury can be supported under the evidence.”

An overall examination of the cases since Walker v. Champion, supra, shows that there has been a consistent pattern of reversal of intermediate appellate court reductions of the trial award. It has been noted that such a line of cases gives the trier of fact “virtually unchecked discretion,” and “in effect precludes appellate review of quantum.”

While the intermediate appellate courts are still expected to review quantum awards, the Louisiana Supreme Court, in the post-Walker cases epitomized in Coco v. Winston Industries, Inc., supra, has effectively barred the intermediate appellate courts from making use of most available tools to aid in the review of quantum awards, including similar case awards. Gaspard and those subsequent cases leading to Coco apparently intended awards in other cases to play some role in the formulation of what would ultimately constitute a reasonable ambit of award for the case presented to an appellate court. But, now, without the benefit of the guidance from other cases (as was, we think, contemplated by Gaspard), the appellate court’s role, as reviewer of facts, has been, to a telling degree, judicially purged from use. If we follow the Walker-Coco rationale and mechanically rubberstamp approval of every trial court quantum award, we violate our constitutional obligation to review facts as well as law. If we determine that there has been an abuse of discretion based upon awards in similar cases, we appear to be violating the Coco doctrine.

A recent law review case note effectively states the case:

“Although article 1934(3) establishes the standard of review for damages, quantum, as an issue of fact, is still subject to the general appellate review provided for in the constitution. Appellate review is subject to limited modification by the Code article since, even where no standard of review is specified, appellate courts, by judicial initiative, reverse factual determinations only when the trier of fact has committed ‘manifest error.’ Nevertheless, the supreme court cannot legitimately interpret the Code article as a legislative abandonment or rejection of appellate review of fact since the constitution is premier in the hierarchy of legal authority. That article 1934(3) cannot vest such extensive discretion, at the expense of the constitutional provision, is further evident in that the discretion afforded by the article is limited by a Code provision, article 2315, so as to preclude the award of punitive damages.
“The Walker line of cases may simply reflect the court’s overly solicitous attention to article 1934(3) and the ‘much discretion’ it vests in the trier of fact; or, it may be that the court’s rigid application of the article to reverse appellate reductions and reinstate higher trial awards is intended to raise the basic level of quantum recovery. In either case, the Walker line has so emasculated appellate review of fact that the supreme court has accomplished judicially what could not be accomplished legislatively. The court should reaffirm the fundamental role of appellate review of fact, apply article 1934(3) less mechanically, abandon the perfunctory Walker approach, and return to the moderate and flexible Gaspard approach.” (Footnotes omitted.)

There appears to be only one ambit of consideration left to us; an autonomous review of the record to determine if it can possibly support the judgment. That is what we have done. We find the trial court’s general damage awards to be unsupported by the evidence. See Duffy v. Throwbridge, 327 So.2d 649 (La.App. 4th Cir., 1976) writs granted La., 332 So.2d 280, certiorari rescinded 335 So.2d 30 (La., 1976). The record indicates to us that the trial court awards of general damages to Mr. and Mrs. Gaudet so deviate from the sphere of awards which could reasonably be within the discretion allowed that court by such a degree as to require that we disregard them and proceed on our own.

We reduce the general damage award to Mr. Gaudet to $500.00, and we reduce Mrs. Gaudet’s general damage award to $10,-000.00. These amounts represent the highest awards that can reasonably be made within the discretion that should have been exercised by the trial court. Coco v. Winston Industries, Inc., supra. In other respects, the judgment is affirmed. Each party to this appeal is to bear his own costs.

AMENDED AND RENDERED.

LEMMON, J., concurs in the result.

      . Dr. Vogel’s testimony regarding a theoretically possible, computerized, percentage-based “diagnosis” of disc involvement is not, in any way, supported by any clinical findings that were ever noted by either Dr. Villemarette or Dr. Kleinschmidt throughout their treatment of Mrs. Gaudet.

      . La.Civil Code art. 1934(3) (1870): “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
      “In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

      . La.Const. art. 7, Sec. 29 (1921).

      . LSA-Const. Art. 5, Sec. 10.

      .Comment, “The Effect Of Gaspard V. LeMaire On Awards For General Damages,” XXV La.L.Rev. 545, 546 (1965).

      . Crawford, “Work of Appellate Courts for 1974-1975 — Torts,” 36 La.L.Rev. 400, 406 (1976).

      . Id.

      . Note, “Assessment of Damages — Louisiana Civil Code Article 1934(3) — Appellate Review of Factfinder’s Discretion,” 49 Tul.L.Rev. 460, 462, esp. n. 18 (1975).

      . Id. at p. 465.

      . Coco v. Winston Industries, Inc., supra; Gonzales v. Xerox Corporation, 320 So.2d 163 (La., 1975); Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La., 1976).

      . See footnote # 7, supra, at p. 466.

      . Quaere, however, as to what is “highest possible” award in view of the admonition not to be guided by any other cases or any other awards? In this instance, we have concluded that $500.00 and $10,000.00 represent the highest conscionable awards that are consistent with the fair and proper administration of justice.