text:
    W. M. HEROMAN & CO., INC. v. SAIA ELECTRIC, INC.
    No. 11304.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Robert L. Kleinpeter, Baton Rouge, for plaintiff W. M. Heroman & Co., Inc., appel-lee.
    Leon Gary, Jr., Baton Rouge, for defendant Saia Electric, Inc., appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

The trial judge herein assigned the following written reasons for judgment:

“This suit emanates from the renovation of the Capitol House Hotel, wherein the plaintiff, W. M. Heroman & Company, Inc., as the general contractor of the project, contends that it had negotiated a bid price for the electrical work with Saia Electric, Inc., which defendant subsequently declined to honor at the agreed price after the project was let by the owner, causing the plaintiff to secure another electrical subcontractor to do the work at an increased cost of $96,180.23.

“The testimony reflects that initially the owners of the Capitol House Hotel placed for competitive bids the work to be done under the project, but when the bids came in greatly in excess of the amount allotted for the project, the owners rejected all of the bids. Saia had submitted a bid for the electrical work to be done with Pittman Construction Company, who had been one of the principal bidders for the job. The owners then sought to negotiate a bid with Heroman during the spring of 1973. Saia’s sales representative, A. T. Sanders, Jr., contacted Heroman in an effort to secure the electrical contract on the job. After securing the approval of the Capitol House owners, Heroman agreed to negotiate a price with Saia for the electrical work. These negotiations were conducted principally with G. T. Bourg employed by Saia as senior estimator and engineer. The original estimate furnished by him for Saia on May 17, 1973, was in the amount of $335,125.00. Because the overall price of the project still exceeded the amount available for construction, Perry Segura and Don Chesson, the architect and consulting engineer, respectively, made further changes and alterations which would reduce the overall cost. As a result of their efforts, the seven addenda to the plans prepared by Chesson were finally consolidated into Addenda # 8 which represented the cumulation of the earlier changes. The effect of these changes was to reduce the scope of the electrical and mechanical work contemplated under the project. The final negotiations concerning the prices to be submitted by the various subcontractors were held at Heroman’s office a few days prior to September 10, 1973, when the eighth addenda was dated and executed. Attending this meeting were James Pat Miller, representing the plumbing contractor, Mr. Bourg of Saia, Chesson and Heroman. It was the understanding of the other participants that the meeting was held to “nail down the bids” and there was no doubt in any of their minds that Heroman would use their bids for the purpose of submitting a final bid to the owner. Bourg acknowledged that he assumed Heroman was going to use Saia’s bid of $214,600.00 for inclusion in Hero-man’s total bid price and that as far as he knew Heroman had been exclusively negotiating with Saia for the electrical work to be done on the job. The contract was not let until December 6, 1973, approximately three months later.

“There is a disparity between the witnesses’ testimony concerning what transpired between the date of the meeting and the date of the execution of the contract. Heroman testified that to the best of his knowledge he confirmed the price with Bourg before submitting the bid. Not only Miller, but Gerald recalled that Heroman called them to confirm the bids which they had respectively submitted. However, Bourg and LeBlane, Saia’s executive vice president, denied that they had been contacted by Heroman or any of his representatives. The weight of the testimony and the inferences to be gained from the evidence seem to indicate that there was some discussion between Heroman and Bourg during the three month interval and that Bourg, as Saia’s representative was well aware that the project had not been shelved, but was moving along toward fruition. Certainly the testimony of the two other subcontractors, Miller and Gerald support such a finding.

“Following the execution of the contract, Heroman called Bourg to advise him that his firm had been awarded the contract and to pick up the plans. After some delay, the plans were picked up by Bourg. Shortly after the first of the year, Heroman began to get anxious in commencing the initial phase of the job which included the electrical work and called Bourg for the purpose of discussions toward this end. In response to this request, Saia submitted a new bid of $396,305.00. Heroman expressed surprise and Saia apparently recomputed its bid, reducing it to $269,000.00. There were some efforts to mediate the issue in which Hero-man expressed a willingness to split the difference between Saia’s $214,600.00 initial bid and its latest bid of $269,000.00. These efforts met without success.

“Heroman, finding he was running short of time, negotiated a cost plus (10% overhead and 10% profit) agreement with Coors Electric to perform the work. The total of all payments under this contract amounted to $310,180.23.

“The defendant in its answer denied that it ever gave a final bid or a binding bid. While not contained in its pleadings, its argument essentially is that no contract was entered into between it and the plaintiff and it therefore has no liability. The evidence clearly refutes its contention that it did not furnish a final bid, therefore the question is whether it submitted a ‘binding bid.’

“The general rule relating to offer and acceptance is stated in LSA-C.C. Art. 1800, which states:

‘The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting and there is no contract.’

“However, as stated in LSA-C.C. Art. 1809, an offer, under certain circumstances, may remain irrevocable until the offeree is afforded a reasonable time to accept. Specifically this article declares:

‘The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances, which raise such implication, are known to the party proposing; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.’

As stated in National Co. v. Navarro, 149 So.2d 648 (La.App. 4th Cir. 1963):

‘This article obviously places a limitation upon the general rule that offers may be revoked any time before they are accepted, and is applicable where the offeror has expressly stated an intention to make the offer irrevocable within a stipulated period of time or where the offer is of such a nature that from its very terminology the implication is present that the offeror intended to make it irrevocable for a reasonable period of time, within which it would be necessary for the offer-ee to signify his acceptance.’

While not considering Article 1809 appropriate to the particular facts in dispute, the court in Navarro noted the circumstances wherein it might be applicable and furnished the following illustration:

‘A more modern version of the above example might exist when a custom prevails in the building trade to the effect that a subcontractor’s bid to a general contractor, in the absence of a provision to the contrary, may be considered irrevocable after it has been used in preparation of the general contractor’s bid to the owner, and has been accepted by the owner prior to the attempted revocation by the subcontractor.’

A case of similar import is Claitor v. Delta Corporation of Baton Rouge, Inc., 279 So.2d 731 (La.App. 1st Cir. 1973). Although not involving the identical situation, the court found therein that the bid which had been submitted was irrevocable and the contractor was obligated to maintain its offer open and acceptable for a period of 30 days from the time of opening of the bid. Recognizing the concept of the irrevocability of an offer is an article in 23 Louisiana Law Review, Page 796, wherein it is stated:

‘Although Article 1800 might imply Louisiana followed the general common law rule that an offer may be revoked at any time prior to acceptance, Article 1809 shows otherwise. Article 1809, after stating generally that an offer may be revoked before its acceptance, provides an exception if the offeror has not first allowed “such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may supposed to have intended to give to the party to communicate his determination.” In contrast to Article 1802, Article 1809 is intended to govern situations in which attempted revocation precedes acceptance. Its clear affect is to create a period during which the offeror may not revoke his offer, when such a period is either expressly provided in the terms of the offer or implied by the circumstances. Furthermore, Article 1809 by its terms requires no consideration to render effective such a provision for irrevocability. ‘Article 1809 is harmonious with the civilian concept that a party has legal capacity to bind himself by his will alone.’

It is the opinion of the Court that, considering all of the circumstances, Article 1809 governs the situation, and accordingly, Saia’s offer to Heroman was irrevocable until such bid by the general contractor to the owner had been declined or the project had been abandoned, provided an unreasonable time had not elapsed. While the record reflects that three months did elapse before the contract was let, considering the substantial nature of the undertaking and the fact that the evidence demonstrates that as far as all were concerned, the project was proceeding toward realization, the Court determines that an unreasonable time did not elapse and the defendant is bound by its offer.

“Although not necessary to support this determination, it should be pointed out that the actions of Bourg subsequent to notification to him by Heroman that his firm had been awarded the contract, show clearly that Saia understood that it had the electrical subcontract work, and it was only after a reevaluation was made by it which indicated that the contract might not be profitable was a retiring position sought. Consequently, this conduct may also be considered an assent to the offer on the part of Saia. See Metal Bldg. Prod. Co. v. Fidelity & Deposit Co. of Md., 144 So.2d 751 (La. App. 4th Cir. 1962).

“Following Saia’s refusal to do the work, Heroman was obligated to farm out the work to Coors Electric on a cost plus basis. Considering the nature of the circumstances, the Court believes that the plaintiff’s actions were sufficient to minimize its damages, particularly in view of the advanced stage of the project and the contractor’s necessity to get the electrical work under way. However, it appears that certain minor change orders were made which were reflected in Coors’ billings. The architect, Perry Segura, testified regarding the additional cost represented by these additions which should be deducted from $95,580.28, being the difference between Saia’s bid of $214,600.00 and $310,180.23 billed by Coors under its agreement with Heroman. It appears from his testimony that the revisions made in Change Order No. 3 increased the electrical work to the extent of $5,354.98. Therefore, plaintiff is due $90,225.85 from the defendant in damages for defendant’s failure to perform the work as committed.

“For the reasons expressed herein, judgment is rendered in favor of the plaintiff, W. M. Heroman & Company, Inc., and against the defendant, Saia Electric, Inc., in the sum of $90,225.85, together with all costs of this proceeding.”

All of the assignments of error made by appellant, Saia Electric, Inc., relate to the factual conclusions of the trial court. We find that the facts as found by the trial judge are amply supported by the record, that the legal conclusions drawn therefrom are correct.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Paula Kay COBB v. COLEMAN OLDSMOBILE, INC.
    No. 11311.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Arthur J. Cobb, Baton Rouge, for plaintiff-appellee.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

Defendant Coleman Oldsmobile, Inc., by this appeal, asks us to set aside a default judgment in favor of plaintiff Paula K. Cobb on the ground that the judgment was improvidently rendered.

The record shows that this suit was filed on June 21, 1976, personal service made on the defendant on June 29th, and a preliminary default entered on July 20, 1976. On July 23rd, defendant filed a pleading styled “Motion for Summary Judgment”, reading, in pertinent part, as follows:

“1.

“That as will appear from the petition filed herein and the annexed affidavits, the following undisputed facts are established:
“(a) Plaintiff purchased a 1974 BMW Bavaria automobile on October 31, 1974 from defendant, Coleman Oldsmobile, Inc.
******
“2.
“That there are no material issues of fact; that as a matter of law an action in redhibition prescribes with the lapse of one year, . . .”
******
“WHEREFORE, mover prays that this motion for summary judgment be sustained and that accordingly, plaintiff’s suit be dismissed with prejudice and at plaintiff’s cost and for such additional relief as the law, equity and nature of the case may permit.”

On July 26, 1976, with both judge and counsel for plaintiff unaware that the foregoing pleading had been filed, evidence was offered on confirmation of the default, and the case taken under advisement by the trial judge. On August 2, 1976, he signed a judgment in favor of plaintiff.

In this court, defendant avers that the lower court could not render a valid default judgment because the Motion for Summary Judgment had been filed prior thereto.

The following codal provisions are relevant.

“Art. 1001. Delay for answering
“A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.
“When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.
“The court may grant additional time for answering.”
“Art. 1701. Judgment by default
“If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion on open court or by written motion, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.”
“Art. 1702. Confirmation of default judgment
“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
“When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”
“Art. 1843. Judgment by default.
“A judgment by default is that which is rendered against a defendant who fails to plead within the time prescribed by law.”

It would appear from a reading of the above provisions that the only pleadings which operate as a bar to a default judgment are an answer, which necessitates a trial on the merits, and an exception, which extends the time for answering until after the exception has been disposed of. Nevertheless, it has been held that the filing of any preliminary objection to the petition will prevent the taking of a preliminary default. Johnson v. Walgreen Louisiana Co., 163 So.2d 830 (La.App. 4th Cir. 1964). The holding in this case has been severely criticized, however. See The Work of the Louisiana Appellate Courts for the 1963-1964 Term, Henry G. McMahon, Civil Procedure, XXV Louisiana Law Review, 433, 442 (1965). Although this court has, in dictum, cited Johnson v. Walgreen Louisiana Co., supra, with approval, we are not constrained to question the rule pronounced therein, in view of the codal authorities above cited, and Professor McMahon’s criticism thereon. See Raborn v. Donica, 334 So.2d 471 (La.App. 1st Cir. 1976).

We need not decide that question at this time, however, since we are persuaded that the so-called “Motion for Summary Judgment” is, in substance, an exception of prescription. It is a well recognized principle of law in Louisiana that a pleading is classed by virtue of what is contends rather than what it is called. Article 865, Code of Civil Procedure; Chachere v. Moses George & Son, 165 So. 522 (La.App. 1st Cir. 1936); Bulova Watch Co. v. Nobles, 71 So.2d 396 (La.App. 1st Cir. 1954); Mid-City Investment Co. v. Young, 238 So.2d 780 (La.App. 1st Cir. 1970).

The “Motion for Summary Judgment” states all of the essential allegations for an exception of prescription, and the relief sought is the dismissal of the suit on that account. We think the “motion” should be considered as a peremptory exception of prescription. Under the provisions of Article 1001 of the Code of Civil Procedure, supra, if an exception is filed prior to answer, the delay for answering is extended until ten days after the exception is overruled.

The peremptory exception may be filed at any time, so that it was properly before the court despite the entry of a preliminary default on July 20th, three days before it was filed. Since the exception has not yet been disposed of by the trial court, the delay for answering has not yet expired, and, under Article 1702, supra, the default judgment could not be legally confirmed.

Since we have reached the conclusion that the judgment below must be reversed, we need not consider the other contentions advanced by the parties.

The judgment appealed from is reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. Plaintiff shall pay the costs of this appeal. All other costs shall await the final disposition of this case on its merits.

REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    Joe RHEAMS et al. v. Roosevelt McCRAY et al.
    No. 11260.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Robert J. Mack, Hammond, for Joe Rheams et al., plaintiffs-appellees.
    Richard B. Nevils, Baton Rouge, Frank L. Koles, III, Amite, for Roosevelt McCray et al., defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of the amounts awarded Joe Rheams, plaintiff-appellee, individually and as the tutor of the minor children, Joe Rheams, Jr. and Gladys Rheams, for damages sustained as the result of an automobile accident on June 16, 1975. The award may be broken down as follows:

1) Charity Hospital of New Orleans $1,530.00
2) Lallie Kemp Charity Hospital 767.44
3) Stevens Ambulance Service 62.80
4) Loss of Income 500.00
5) Transportation 700.00
6) Personal Injuries of Joe Rheams, Jr. 7,500.00
7) Personal Injuries of Gladys Rheams 5,000.00

The appellant contends that the award of the Trial Court should be reduced because:

1) The intervention filed by Charity Hospital was dismissed on its own motion;

2) The appellee failed to prove the amount of income lost;

3) The appellee failed to prove the cost of transportation;

4) The award for the personal injuries of Joe Rheams, Jr. was excessive; and

5) The award for the personal injuries of Gladys Rheams was excessive.

The dismissal of Charity Hospital’s intervention on its own motion is not evidence which, by itself, would support a reduction of the amount awarded the appel-lee. While the order dismissing the intervention is evidence that the debt was settled, it is not evidence as to how the debt was settled. If the appellant, Roosevelt McCray, or his insurer, Dixie Auto Insurance Co., paid the Charity Hospital bill they may be entitled to credit for partial payment of the judgment but they are not entitled to a reduction in the amount of the award.

In fixing the awards for loss of income, transportation and the personal injuries of Joe Rheams, Jr. and Gladys Rheams the Trial Judge said:

“Additionally, testimony is that Baca Brown transported the parents to and from Lallie Kemp Charity Hospital each day during which she was in the hospital and subsequently took them to Charity Hospital of Louisiana on each day from June 16,1975, to July 12,1975, for a total of 26 days and subsequently had brought them to Charity Hospital of Louisiana on four additional trips, and that he received compensation for each day of transportation of the parents at the rate of TWENTY-FIVE DOLLARS, ($25.00), per day. The record also indicates in the deposition of Dr. Whatley confirms that the child, Joe Rheams, will have to be seen for follow-up visits at Charity Hospital of Louisiana in the future and, therefore, the Court is going to allow transportation expenses in the amount of SEVEN HUNDRED DOLLARS, ($700.00).
“The record reflects that Rheams was employed at a saw mill at the time the accident occurred and as a result of the accident, had to take time off from work to be with his children because the family had four minor children under the age of six and someone had to be going back and forth between the hospitals to take care of them, however, it is not clear what amount of wages Rheams lost as a result of his having to leave his employment, and although not proved with exactitude, the Court is going to allow general damages in the amount of FIVE HUNDRED DOLLARS, ($500.00), to him for his loss of income.
“The minor, Joe Rheams, Jr., received a fracture of the left femur requiring his hospitalization and being placed in skeletal traction with a pin placed through the femur and requiring him being placed in a spica cast which was removed on July 21, 1975. At the time of the doctor’s deposition taken on March 19, 1976, the x-rays indicated that the femur had a 35 degree anterior angulation which may or may not improve. The Court observed Joseph Rheams, Jr., and the angulation of his left leg at trial and believes that it shows visually a deformity of the leg. Considering the medical testimony, the personal observation by the Court and similar cases, the Court believes that an award of SEVENTY-FIVE HUNDRED DOLLARS, ($7500.00), for the personal injuries of Joe Rheams, Jr., is adequate. “The three year old female, Gladys Rheams, suffered internal injuries in the accident requiring surgery. A hematoma was found in the right retroperitoneum and perinephric area, which resulted in internal bleeding. The surgery was successful and the lost blood, approximately 250 ccs., was replaced by a blood transfusion.
“Surgery resulted in a scar which the Court examined and felt was approximately four and one-half inches long by one-half inch wide with serious keloid formation.
“On the basis of the personal injuries and the permanent scarring which obviously will have to be corrected by plastic surgery or other surgical procedures, the Court feels that an adequate award for this injury is FIVE THOUSAND DOLLARS, ($5000.00).”

The Trial Judge relied on the uncon-tradicted testimony of the appellee in fixing the award for loss of income and the uncon-tradicted testimony of the appellee and Baca Brown in fixing the award for transportation expenses. We find no error in the District Court’s acceptance of this un-contradicted testimony.

A claim for loss of wages does not need to be proved with mathematical certainty, but requires only such proof as reasonably establishes the claim. This may consist of the plaintiff’s own reasonable testimony, although the better practice is to introduce corroborating testimony. Where there is a legal right to recovery but damages cannot be exactly determined, the Courts have reasonable discretion to assess them based on the facts and circumstances of the case. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). There was no abuse of discretion in the Trial Judge’s award for loss of wages and transportation.

In the assessment of damages in cases of offenses and quasi offenses much discretion must be left to the judge or jury. C.C. Art. 1934(3). Before a Court of Appeal can disturb an award made by a Trial Court the record must clearly reveal that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976).

Considering the nature of the injuries of Joe Rheams, Jr. and Gladys Rheams and the findings of fact of the Trial Court with regard to those injuries, we are of the opinion that the Trial Court did not abuse its discretion in its awards for their personal injuries.

For the above reasons, the judgment of the Trial Court is affirmed. Costs to be paid by appellant.

AFFIRMED.


text:
    J. R. McFARLAND, d/b/a United Masonry Company v. HAMMOND-BATON ROUGE BRICK COMPANY, INC.
    No. 11290.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Robert H. Morrison, III, Denham Springs, for plaintiff.
    Tom H. Matheny, Hammond, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an- appeal of a judgment of the District Court in favor of J. R. McFarland, d/b/a United Masonry Company, plaintiff-appellee, and against Hammond-Baton Rouge Brick Company, Inc., defendant-appellant, awarding the appellee $2,355.47, plus legal interest from date of judicial demand for damages sustained as the result of the sale of allegedly defective bricks by the appellant to the appellee.

The appellant contends that:

1. The trial court erred in denying defendant’s motion for new trial to consider the plea of prescription.

2. The trial court erred in failing to dismiss plaintiff’s claim on the basis of re-dhibitory action prescribing in one year.

3. The trial court committed manifest error in awarding judgment in favor of plaintiff.

The evidence before this Court consists of a narrative of facts agreed to by the parties and the exhibits introduced at trial.

The plea of prescription is an objection which may be raised through the peremptory exception and must be specially pleaded. C.C.P. Art. 927. A peremptory exception may be raised at any stage of the proceedings in the Trial Court prior to the submission of the case for a decision. C.C.P. Art. 928. The present case was submitted for a decision and taken under advisement by the District Court at the conclusion of the trial on the merits. Following the trial, judgment was rendered in favor of the appellee. The appellant then raised the objection of prescription in his motion for a new trial.

C.C.P. Art. 1972 provides:

“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
(3) In jury cases, as provided in Article 1814.”

The judgment of the District Court was not clearly contrary to the law and the evidence in failing to sustain a plea of prescription because there was no plea of prescription made prior to submission of the case for judgment. Prior to trial, the appellant knew the date of the sale and that the action might have been prescribed. This was not a jury case. Therefore, it was not mandatory that the District Court grant a new trial.

The granting of a new trial on other grounds is within the discretion of the Trial Judge and his actions should not be disturbed on appeal unless the Trial Judge has clearly abused his discretion. It is an abuse of discretion for the Trial Court to deny a motion for a new trial where, upon the face of the record, the defendant is shown to have an absolute defense to the suit which was not pleaded through the neglect of his attorney. Hardy v. Kidder, La., 292 So.2d 575 (1974). We cannot, however, in the present case say that the Trial Judge abused his discretion because there is no proof of record that the appellee’s claim had prescribed. The record before us does not contain evidence as to certain dates critical to sustaining a plea of prescription, specifically, the date of the sale and the date on which the appellant provided material with which to clean the bricks. The record does contain an invoice and a plea of prescription, but we cannot say this is proof of an absolute defense.

An appellate Court may consider a peremptory exception filed for the first time in that Court, if pleaded prior to submission, and if proof of the exception appears of record. C.C.P. Art. 2163. As was stated above, proof of prescription does not appear of record.

The evidence before this Court consist of the exhibits and a narrative of facts agreed to by the parties. The testimony adduced at the trial on the merits has been summarized in the narrative as follows:

“1. Nelson Cox, witness called by the plaintiff, is a member of the Dixon Memorial Hospital board. He testified that the wall on the west side of the hospital was rejected due to the fact that the bricks utilized were not uniform in color, and that the irregular lengths of same resulted in wavy lines between the rows of bricks. He stated that the Board of Directors would not accept the wall in that condition, and that plaintiff was required to replace same. Mr. Cox also admitted under cross-examination that during the construction of the wall it had rained on newly laid brick and also, that at one time before this wall was completed, presumable because of then existing problems, the job had been shut down. Subsequently, work was resumed and the project completed. He also admitted that it had rained on this wall.
“2. J. R. McFarland, plaintiff, testified to the cost of removing and replacing the wall in question. Under cross-examination this witness admitted that when his company constructed the original wall they placed modular bricks along with regular bricks in the construction. He acknowledged that the modular bricks are shorter in length than standard bricks. This difference in length is less than Vi an inch. This witness further testified that a cleaner which had been recommended and furnished by defendant had been used to try to remove the discoloration, without success, and denied that any acid was used to clean the bricks.
“3. Louis Thompson, witness called by the defendant, is a sales representative for defendant. He testified to the correctness of the amount claimed by defendant in their reconventional demand. He also testified that it is not uncommon for modular bricks to get mixed up in a shipment of standard bricks. This occurrence is not uncommon in the industry and a brick mason can readily see and feel the difference. This witness also testified, over objection by plaintiff as an enlargement of the pleadings, that it was not uncommon.
“4. Raymond Criswell, witness called by the defendant is a bricklayer who at the time of the trial had fourteen years experience qualified as an expert in the field of brick masonry. Over objection by plaintiff as to the enlargement of the pleadings, he stated that in his opinion the stains of the wall were caused by an acid cleaner and these cleaners will cause discoloration. He also testified that a bricklayer can readily distinguish between modular and standard bricks. It is not uncommon to come across a few modular bricks in a shipment of standard bricks and vice versa. His experience and action when this occurs is to be discard the odd bricks, or, in the event there is a large number of them, to contact the owner or contractor and advise them of the problem.”

Considering the foregoing evidence and the exhibits of record, we cannot say that the Trial Court committed manifest error in awarding judgment in favor of the appellee because there is evidence, that the wall was rejected because of the bad bricks, which would support the Trial Court’s conclusions.

Therefore, for the above reasons, the judgment appealed from is affirmed. Cost to be paid by appellant.

AFFIRMED.


text:
    William H. ELLIOTT, Jr. v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 11305.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Bobby L. Culpepper, Jonesboro, for appellant William H. Elliott, Jr.
    Howard P. Elliott, Jr., Baton Rouge, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a decision of the State Civil Service Commission (Commission) upholding the dismissal for cause of William H. Elliott, Jr., plaintiff-appellant.

The appellant was employed by the Louisiana State Police as a Trooper First Class serving with permanent status. On September 23, 1975, the appellant was terminated by written notice for specific listed causes. These causes as summarized by the Commission were:

“1. Making threats of bodily harm to two persons who had been arrested and were in custody of the Sheriff at Farmerville.
“2. Distributing, or having distributed, handbills informing residents of the area of his assignment to duty, which handbills incorporated a solicitation of business for a beauty shop operated by his wife.
“3. Chasing and failing to overtake and apprehend a speeder at speeds up to 120 miles per hour, and, upon making contact with person on the following day, issuing a citation to him charging him with a speed of 85 miles per hour giving him 11 days to appear.
“4. Carrying an AR-15 rifle in his patrol unit.
“5. Failing to handcuff a driver who was apprehended for speeding and DWI, and then after charging the motorist with DWI testifying in court at the trial that the motorist was not intoxicated. The reversal in position as to intoxication of the motorist was said to have been motivated by appellant’s desire to further his own ends in obtaining a loan after being asked by friends of the motorist to go easy on him.”
State Civil Service Commission Opinion, October 4, 1976.

The appellant timely appealed his dismissal to the Commission and the matter was assigned to a referee for a hearing. The hearing was held, the evidence transcribed and the record submitted to the Commission for disposition.

Based on the evidence adduced at the hearing the Commission found:

“1. The Motion for Summary Disposition filed on behalf of appellant was correctly referred by the Referee to the merits for the reason that there were disputed issues of fact concerning the existence or the non-existence of the asserted causes for discharge, and these issues could be resolved only by a hearing on the merits. On its face, the letter of discharge states grounds for discharge.
“2. The remarks attributed to appellant (Letter of Discharge, Item 1) as being made to Kenneth and Roy Ebarb and to Dennis Russell, while they were in the custody of the local Sheriff, were admitted by appellant to have been made, and the making of them was also established through the testimony of one of the recipients of these remarks, Roy Ebarb, and by another State Police Trooper who was present. The making of the remarks amounted to the threatening of these persons with bodily harm.
“3. The cause assigned (Letter of Discharge, Item 2) regarding the distribution of handbills advertising the business of his wife as a beauty operator was admitted by appellant to be true. A copy of the handbill is in evidence, and it establishes the truth of this charge.
“4. The cause assigned (Letter of Discharge, Item 3) regarding the ticketing of a speeding motorist at 85 miles per hour instead of 120 miles per hour was established to the extent that appellant did not charge the motorist with as high a speed as his observations would have justified in view of the fact that his radar unit registered 100 miles per hour (the maximum reading), and he declared that at some times his speedometer read up to 120 miles per hour during the chase.
“5. The cause assigned (Letter of Discharge, Item 4) regarding the carrying in his State Police unit of an AR-15 rifle was established. Appellant’s explanation for this violation of procedural rules — that he had official permission to do so — was not established by the evidence.
“6. The cause assigned (Letter of Discharge, Item 5) with regard to making an official report that a motorist was intoxicated and later testifying in court at a trial of the motorist that he was not intoxicated, was established.”
State Civil Service Commission Opinion, October 4, 1976.

The Commission held that the causes for discharge were adequately stated to the appellant, that they were substantially true as stated and that they were a valid basis for the appellant’s dismissal. Accordingly, the Commission denied the appellant’s appeal.

The appellant has brought this appeal from the Commission’s holding alleging that:

“I. The State Civil Service Commission erred in refusing to issue the subpoenas requested by plaintiff which action was a denial of due process to plaintiff.
“II. The State Civil Service Commission erred in finding that the facts supported plaintiff’s dismissal for cause.”

The appellant was permitted to include in the record a statement as to what he intended to prove by the testimony of the witnesses for whom no subpoenas were issued. Because the appellant’s defense was by way of explanation and excuse rather than by denial of the facts alleged, the testimony of these witnesses would not have affected the factual findings of the Commission. Therefore, the failure of the Commission to issue all the subpoenas requested by the appellant was not reversible error.

A careful examination of the evidence contained in the record, especially the admissions made by the appellant, supports the factual findings of the Commission. These findings establish that the appellant was dismissed for cause.

For the above reasons, the decision appealed from is affirmed. Costs to be paid by the appellant.

AFFIRMED.


author: PONDER, Judge.

text:
    STATE of Louisiana THROUGH the DEPARTMENT OF HIGHWAYS v. A. WILBERT’S SONS LUMBER AND SHINGLE COMPANY et al.
    Nos. 11295, 11296.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearings Denied June 13, 1977.

      Johnie E. Branch, Jr., Executive Asst. Gen. Counsel, Jerry F. Davis, Asst. Gen. Counsel, Hwy. Dept., and Charles A. O’Brien, III, Asst. Gen. Counsel, Hwy. Dept., Baton Rouge, for plaintiff.
    David M. Ellison, Jr., Baton Rouge, for defendant H. B. Fairchild.
    Paul G. Borron, Jr., Plaquemine, David M. Ellison, Jr., Baton Rouge, for defendant A. Wilbert’s Sons Lumber and Shingle Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

These consolidated cases, arising under the “Quick Taking” Statute, were against the property owner and the lessee of part of the property. All parties appealed.

The issues are:

1. The propriety and quantum of severance damages;

2. The propriety and quantum of damages to the lessee;

3. The amount of fees for the expert witnesses.

We amend and affirm.

A. Wilbert’s Sons Lumber and Shingle Company owns a large tract of land in West Baton Rouge Parish, which is bisected by Choctaw Bayou, a navigable stream running roughly north to south. The central part of the land, quite low, is also traversed by a number of sloughs running roughly from northwest to southeast. An elevated all weather road built on an old tramway runs east to west across the land. However, because there is no bridge across Choctaw Bayou, to get from one side of the stream to the other it is necessary to come back to the access to the tramway, go around by public roads, reenter the property from that direction and then proceed to the bank of Choctaw Bayou on the other side. Access from the western side is across property belonging to Florence Ranch. It is also necessary to traverse a totally enclosed piece of property belonging to others, the so-called Sotan property. Prior to the expropriation, access to much of the property was by proceeding on the tramway to the appropriate place and then going southeast along the crest or ridge between the sloughs. The property expropriated was parallel to and several hundred feet south of the tramway.

At the beginning of the trial, the parties stipulated the market value of the land taken was $112,256.50 and the value of the improvements of the property leased to H. B. Fairchild was $5,226.06. During the course of the trial, $500.00 in fencing was added. After trial the court awarded Wilbert an additional $154,475.00 for net severance damages, and Fairchild an additional $10,000.00 for increased costs of transportation and for loss of winter grazing.

SEVERANCE DAMAGES

Wilbert’s experts testified that the special benefits resulting from the building of an access road to that part east of Choctaw Bayou more than equalled the severance damages. The special benefits to the part west of Choctaw Bayou, also resulting from the building of an access road, amounted to $42,750.00. A tract of 4025 acres, however, was damaged an average of $70.00 per acre because the expropriation cut off access from the tram road. The court, after making some adjustments, awarded $49.00 per acre.

The Department first contends that since Wilbert had to cross Florence Ranch and since Wilbert had no written agreement with Florence at the time of the expropriation, legal access to the area purportedly damaged was unavailable to Wilbert for transfer to a willing buyer at the time. A “Servitude Declaration and Agreement,” in which the owners of Florence Ranch acknowledged Wilbert’s right to use the tram road and documents from Gulf States Utilities, owner in fee of the tram road across the Sotan property, it contends, would have no effect because executed long after the taking.

We are concerned only with the values before and after the taking. State, Department of Highways v. Hoyt, La., 284 So.2d 763 (1973). The lower court decided the absence of a written agreement would not have resulted in a lowering by a “willing buyer” of the price after the expropriation. We cannot say he manifestly erred.

The Department contends that no severance damages should be allowed to that part to which access could be had only by trespassing on Sotan property or by building bridges across the sloughs. The trial court rejected this contention but did make adjustment to the average amount of damage per acre. We agree with the conclusion that access was already limited before the expropriation, which resulted therefore in a worsening but was not the sole cause of the denial of access. Wilbert’s contention that LSA-C.C. Art. 699 would give them access to the tram way across Sotan property would not, even if true, make an adjustment invalid. The necessity of securing an agreement or of litigation with Sotan would, it is reasonable to believe, affect the market price of the land.

The Department next contends that the excess of special benefits to the tract east of Choctaw Bayou should be applied to the reduction of severance damages to the tract west of the bayou. Wilbert contended, and the trial court agreed, that unbridged Choctaw Bayou prevented the unified use in fact, required by State, Department of Highways v. Cefalu, La., 288 So.2d 332 (1974). We agree with that conclusion.

The Department contends that the trial court erred in awarding severance damages as a percentage factor rather than a rate per acre. We believe that the percentage factor was used in calculations as interchangeable with the damage per acre factor. At any rate, the use of percentages is not prohibited. See State, Department of Highways v. Denham Springs Development Co., Inc., La., 307 So.2d 304 (1975).

Wilbert contends that the lower court erred in reducing the severance damages from $70 per acre as testified to by their experts, to $49 per acre, or from twenty per cent to fourteen per cent. They cite cases that the testimony of the experts of the defendant has to be accepted in the absence of testimony of another figure. We believe that the law is more appropriately stated that the testimony of experts is an aid to the court and is not binding. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). The court adjusted the figure for decrease in acreage damaged as testified to by Wilbert’s witness and for the absence of a written agreement with Sotan. Considering the facts that the area more easily reached through the Sotan property is approximately 50% of the property damaged and that the damage caused by the expropriation as compared to the unavailability because of the location of the Sotan property was not gauged by any of the experts, we cannot say that the trial court was wrong in making an adjustment of thirty per cent. One of defendant’s experts conceded that an adjustment might be appropriate but did not give us a figure.

Wilbert contends that severance damages should be awarded in the amount of $225,000.00, the cost of constructing a road with bridges. The “cost-to-cure” approach should be used in only special circumstances. Reymond v. State, Department of Highways, 255 La. 425, 231 So.2d 375 (1970). We agree with the trial court in its refusal to employ this method.

AWARD TO THE LESSEE

The expropriation bisected the leased and cleared land. The lessee unequivocally disclaimed any part of the award made to Wilbert for the land taken. Thus we have no issue as to the economic advantage of the lease. Moreover, the value of the improvements stipulated to be $5226.06, was awarded to the lessee. However, because of the limited access to the highway, it is now necessary to traverse a long circuitous route to go from one part of the leased premises to the other. The lower court awarded Fairchild, the lessee, $2000.00 for this. The Department contests the award.

LSA-C.C. Article 2697 states:

“If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.”

This article has been applied to partial takings. The only item he may recover from the expropriator in a case such as this, is the “lease advantage.” State, Department of Highways v. Cefalu, 233 So.2d 273 (La.App. 1st Cir. 1970), writ denied 256 La. 373, 236 So.2d 502. See also State, Department of Highways v. Menefee, 266 So.2d 226 (La.App. 2nd Cir. 1972), writ refused 263 La. 109, 267 So.2d 212.

The lessee has cited the cases of Columbia Gulf Transmission Company v. Hoyt, 252 La. 921, 215 So.2d 114 (1968) and State, Department of Highways v. Norris, 268 So.2d 300 (La.App. 2nd Cir. 1972) in support of his claim. The first case does have some language, not required for the decision, that could be construed so as to give comfort to lessee. We interpret the words, however, to be not inconsistent with the language in the cases above cited that the lessee must secure any award to be given him from the “lease advantage” or be relegated to a rental reduction or lease termination. The second case quite correctly, we believe, holds that the cost of transportation between the severed parts is an item of severance damages to the owner-lessor, who would find it more difficult to lease the property.

After the expropriation, the contractor for that portion of the highway removed the fences across the right-of-way. Despite requests from the lessee to the Department and from the Department to the contractor, the latter did not fence the northern and southern sidelines of the right-of-way for several years, thus making it impossible to use the leased property for winter pasture, its primary purpose. The lessee claimed damages for this and the court awarded $8,000.00. We agree with the Department that this is clearly a claim in tort and should not be litigated in an expropriation proceeding. LSA-R.S. 48:450-451; State, Department of Highways v. Mouledous, 199 So.2d 185 (La.App. 3rd Cir. 1967), writ denied 250 La. 934, 199 So.2d 927 (1967).

Our decision on the items of cost of transportation and loss of winter pasture make it unnecessary to consider the lessee’s contention that the amounts given were inadequate.

The lower court failed to consider the item of damages to fence, stipulated to during the trial. The judgment will be amended to allow $500.00.

EXPERT WITNESS FEES

Defendants claim that the expert witness fees awarded were so inadequate as to constitute an abuse of discretion by the trial judge. Mr. Heidel Brown testified that his fee was $4,200.00; the court awarded $2,950.00. Mr. Kermit Williams testified that his fee was $5,500.00; the court awarded $3,175.00. Mr. Sam Dupree, a Civil Engineer, who testified as to the cost of an alternate road across the south remainder of the property, testified that his fee was $2,812.22' the court awarded $600.00.

In State, Department of Highways v. Hoyt, 272 So.2d 768 (La.App. 3rd Cir. 1972), amended on other grounds La., 284 So.2d 763 (1973), the court said:

“An agreement entered into between an expert witness and one of the parties to the suit as to the fee which the former is to receive for his preparatory work and testimony, or even the actual payment of such a fee to the expert, is no criterion to be used by the court in fixing expert fees. The trial court has a wide discretion in fixing such fees, and we will not disturb his decisions unless it appears that he has clearly abused that discretion.”

We do not believe an abuse of discretion has been shown.

For the above reasons, the judgment rendered in these consolidated cases is amended as to lessee Fairchild to reduce the award from $15,226.06 to $5,726.06. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Art. 699. “The owner whose estate is enclosed, and who has no way to a public road, a railroad, a tramroad or a water course may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, tramroad or water course and shall have the right to construct a road, railroad or tramway according to circumstances and as the exigencies of the case may acquire [require], over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road, railroad, tramroad or water course, or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.” (As it read prior to amendment by Act 672 of 1970).


text:
    Francis Warren GREER v. Ann Mylius GREER.
    No. 11300.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Fred H. Belcher, Jr., Baton Rouge, for plaintiff.
    Richard F. Knight of Talley, Anthony, Hughes & Knight, Bogalusa, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Over one year after a legal separation, plaintiff filed suit for a divorce and for change of custody of his two minor children. The trial judge granted the divorce, but awarded the permanent custody of the children to the defendant.

The only question before us is whether the lower court committed manifest error in awarding custody to the defendant.

We affirm.

In 1974 plaintiff obtained a legal separation. The custody of the two children was granted to Mrs. Greer on the basis of a joint stipulation. Plaintiff now contends that the welfare of the children would be better served by granting custody to him.

The trial court found the children were doing well in the present arrangement, that defendant was not an unfit mother, and that the best interest of the children would be served by the mother retaining custody. Plaintiff has the burden of showing this determination to be manifestly erroneous.

In Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), the court set out some guidelines in custody cases. The welfare of the children is the paramount consideration. This best interest will generally result in the grant of custody to the mother, especially when the children are young. The party seeking to change custody granted by a “considered decree” has a heavy burden. The discretion of a tria^ court will be disturbed only on a clear showing of abuse.

The ojily serious complaint of the plaintiff is that his wife has engaged in an adulterous relationship with another man since the separation. This relationship, he claims, has produced an adverse moral climate in the home. Mrs. Greer, admitting these liaisons, stated that she and the man planned to be married as soon as she got a divorce. Furthermore, their sexual relationship was discreet and completely hidden from the children.

One or several acts of adultery with the same paramour does not, per se, render morally unfit a mother who is otherwise suited for custody. Johnson v. Johnson, 331 So.2d 854 (La.App. 1st Cir. 1976), writ refused, La., 334 So.2d 436.

There is nothing else in the record to indicate that the defendant is in any way unfit to care for her children.

Plaintiff correctly cites Caraway v. Caraway, 321 So.2d 405 (La.App. 2nd Cir. 1975) writ refused, La., 323 So.2d 479, for the principle that the maternal preference rule is a rebuttable presumption. However, plaintiff still has the burden of rebutting the presumption by showing that the best interests of the children would be served by changing custody.

Plaintiff claims the trial court erred in requiring him to overcome the double burden of proof established in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955): to change custody after a considered determination has been made, the plaintiff must show that the present environment is deleterious to the children and that he can provide a better environment.

The record does not show that the judge imposed the double burden. He merely indicated that the children had been with the mother since the separation, they were doing well under the present arrangement, and there was no reason to mandate a change.

Finally, plaintiff contends that the maternal preference rule established by Article 146 of the Civil Code is in violation of the Equal Protection Clause of the United States Constitution. A litigant who fails to plead the unconstitutionality of a statute in the trial court cannot raise the constitutional issue in an appellate court. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971); and Johnson v. Welsh, La., 334 So.2d 395 (1976). The brief filed in this court is the first mention of any constitutional attack on the code article. We do not consider this assignment of error.

The judgment of the trial court is affirmed; plaintiff is cast with all costs of these proceedings.

AFFIRMED.

      . Art. 146. “If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the wife, whether- plaintiff or defendant; unless there should be strong reasons to deprive her of it, either in whole or in part, the decision whereof is left to the discretion of the judge.”


text:
    ROBERT McCONNELL, IND., et al. v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al.
    No. 11307.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Alton T. Moran, Baton Rouge, for plaintiff Jerry Joseph Fontenot, appellant.
    John Gutierrez, Gonzales, for plaintiff Robert McConnell.
    William G. Whatley, Baton Rouge, for defendant State of Louisiana through the Department of Highways, appellee.
    A. J. Kling, Jr., Asst. Parish Dist. Atty., Parish of Ascension, for defendant Ascension Parish Police Jury, appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This case was consolidated for trial and appeal with Number 11,306, “Jerry Joseph Fontenot, Ind., et al. v. State of Louisiana through the Department of Highways, et al.” La.App., 346 So.2d 849.

The trial court awarded $1,388.75 in stipulated special damages and $2,250.00 for injuries. No issue has been raised as to these amounts.

For the reasons stated in Number 11,306, “Jerry Joseph Fontenot, Ind., et al. v. State of Louisiana through the Department of Highways et al.,” the judgment is affirmed.

AFFIRMED.


text:
    JERRY JOSEPH FONTENOT, IND., et al. v. STATE of Louisiana THROUGH the DEPARTMENT OF HIGHWAYS et al.
    No. 11306.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Alton T. Moran, Baton Rouge, for plaintiff Jerry Joseph Fontenot, appellant.
    John A. Gutierrez, Gonzales, for plaintiff Robert McConnell.
    William G. Whatley, Baton Rouge, for defendant State of Louisiana through the Dept, of Highways, appellee.
    Gordon Crawford, Asst. Parish Dist. Atty., Parish of Ascension, Gonzales, for defendant Ascension Parish Police Jury, appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This suit, consolidated in both trial and appeal with McConnell v. United State Fidelity and Guaranty Company, et al., is one for damages from an automobile accident.

Jerry Joseph Fontenot for himself and his three minor children sued the Department of Highways, The Ascension Parish Police Jury, Martin McConnell, the latter’s father, Robert McConnell, and Government Employees Insurance Company, McConnell’s insurer, for the death of his wife. The Ascension Parish Police Jury appealed from a judgment against it; plaintiff answered the appeal asking that the Department of Highways be held solidarily liable with the Police Jury.

The following are allegations of manifest error:

1. holding the Ascension Parish Police Jury liable for plaintiff’s damages;

2. failing to find Mrs. Fontenot contrib-utorily negligent;

3. failing to hold the Department of Highways liable for plaintiff’s damages;

4. awarding Fontenot $75,000.00 for loss of business income.

We amend and affirm.

Mrs. Mary Claire Fontenot was driving on Rouyea Road, a highway maintained by the Ascension Parish Police Jury. Martin McConnell, son of Robert McConnell, was driving on La. 621, a highway maintained by the Louisiana State Department of Highways. The Rouyea Road was a secondary road, but the stop sign facing Mrs. Fontenot had been down for a period of three to six weeks. When she did not stop and yield to the through traffic on the state route, there occurred a collision, resulting in Mrs. Fontenot’s death, Martin McConnell’s injuries and property damage to both vehicles.

The court found the Police Jury negligent in not maintaining the stop sign and awarded Mr. Fortenot $115,000.00 individually and $25,000.00 for each child. The only defendant found liable was the Ascension Parish Police Jury.

LIABILITY OF THE DEPARTMENT OF HIGHWAYS

Appellant argues that because the Department of Highways had the responsibility of maintaining the fallen stop sign the latter should be found liable instead of itself.

LSA-R.S. 32:235 makes the parish authority responsible for placing and maintaining traffic control devices upon highways under its jurisdiction. Admittedly, Rouyea Road was under the jurisdiction of the police jury.

The appellant further argues that since the Department’s responsibility for the state highway included the duty to place and maintain the signs governing access to that highway, the Department is liable. It points to no statutes or cases to that effect and we construe LSA-R.S. 32:235 to be the legislative fiat to the contrary.

The Ascension Parish Police Jury alternatively contends that the Department had a concurrent duty to place and maintain the stop signs at the intersection of parish roads and state highways and therefore the Department should be held solidarily liable along with it for the award. Our finding that the legislature has placed this duty on the local governing authority disposes of this contention.

It is further argued that the Highway Department should be liable because there is no proof in the record that a Traffic Control Devices Manual, as required by LSA-R.S. 32:235(A) was provided for the police jury. As noted in Wall v. American Employers Insurance Company, 215 So.2d 913 (La.App., 1st Cir. 1968), writ refused 253 La. 325, 217 So.2d 415 (1969), the statute charges the Highway Department with adopting a manual only, not distributing it.

LIABILITY OF POLICE JURY

There is a high degree of care imposed upon those responsible for maintaining traffic control devices. Bernard v. Campbell, 303 So.2d 884 (La.App. 1st Cir. 1974). A public body is responsible for damages caused a motorist if the public body had either actual or constructive notice of the defect which caused the accident, and failed to remedy the situation within a reasonable time. Netterville v. Parish of East Baton Rouge, 314 So.2d 397 (La.App. 1st Cir. 1975) writ refused La., 318 So.2d 58.

The evidence is clear that the sign at this intersection had been down at least three weeks, and possibly much longer. This was enough time for the police jury to discover and remedy the situation. Under the holding of the Netterville case, supra, we believe the Ascension Parish Police Jury was guilty of negligence which resulted in injuries to the plaintiffs.

CONTRIBUTORY NEGLIGENCE

The Police Jury has argued that even if we do find it guilty of negligence, plaintiffs should be barred from recovery by the contributory negligence of both the drivers.

The evidence shows that Mrs. Fontenot was unfamiliar with the intersection. She had no reason to believe she was not the favored vehicle in the absence of any warning to the contrary. McConnell was familiar with the intersection, and knew his vehicle was on the favored street. There was no evidence introduced to show he had any knowledge that the stop sign was down. Both vehicles were travelling at a reasonable rate of speed, and there is nothing to indicate that either one could have avoided the accident. We find no error.

QUANTUM

The only issue as to quantum is the $75,000.00 awarded to Mr. Fontenot for “Loss of Material Assistance.” The general rule is that lost earnings need not be proved with mathematical certainty but only by a preponderance of the evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). Jackson v. St. Pierre, 336 So.2d 261 (La.App. 1st Cir. 1976).

The testimony of Mr. Fontenot, although somewhat uncertain and speculative, as to the amount, is, we believe, sufficient to establish some loss of income. Given the breadth of discretion awarded trial courts, we do not believe the trial judge committed manifest error. See Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976).

Defendant contends that Fontenot should be restricted to an award of $50,-000.00 for this loss, the amount prayed for in his petition. Plaintiff argues that a judgment may be awarded in excess of the amount prayed for when evidence of the greater amount is introduced without objection. LSA-C.C.P. Art. 1154; Landry v. Hebert, 250 So.2d 819 (La.App. 1st Cir. 1971); Cheatham v. Lee, 277 So.2d 513 (La.App. 1st Cir. 1973) writ denied La., 279 So.2d 696.

In Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3rd Cir. 1968) writ refused 252 La. 964, 215 So.2d 130, the court said:

“ . . . judgment may be awarded in excess of the amount prayed for, when (1) evidence otherwise inadmissible is admitted without objection, (2) such evidence establishes that the party is entitled to this larger award, and (3) the circumstances are such that it may reasonably be implied that the parties consented to the enlargement of the pleading to include the increased demand.”

The present case does not fall within the above rule of law. Fontenot pleaded $50,-000.00 in loss of business income and the evidence introduced did not go beyond these pleadings. It can not be said that the defendants consented to the increased award, since any objection to the evidence admitted would have been without merit.

The judgment of the trial court is therefore amended to reduce the award to plaintiff Jerry Joseph Fontenot for “Loss of Material Assistance” from $75,000.00 to $50,000.00. In all other respects the judgment is affirmed. Defendant is cast with all costs for which it is responsible.

AMENDED AND AFFIRMED.

      . LSA-R.S. 32:235. Uniform highway marking system

      “A. The department shall adopt a manual and specifications for a uniform system of traffic control devices consistent with the provisions of this Chapter for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system then current as approved by the American Association of State Highway Officials.”


text:
    In the Matter of the Claims of James D. PARKER et al. v. Joseph R. GERACE, Administrator, etc.
    No. 11313.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Jerry L. Gardner, Jr. of Dodd, Barker, Boudreaux, Lamy & Garner, New Orleans, for plaintiffs.
    Marion Weimer, Baton Rouge, for Joseph Gerace.
    Richard F. Knight, Talley, Anthony, Hughes & Knight, Bogalusa, for Crown Zel-lerbach Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in three cases consolidated for trial. Judgment was rendered in favor of the plaintiffs-appellees, employees of the Crown Zellerbach Corporation, and against the defendant-appellant, the Crown Zellerbach Corporation, awarding the appellees benefits under the Louisiana Employment Security Law.

The sole issue presented in these cases is whether holiday pay, paid pursuant to the terms of the labor agreement between ap-pellees and appellant, was wages deductible from unemployment benefits.

These cases relate to the following holidays: December 24, 25 and 26,1974 (Christmas): March 30, 1975 (Easter); and May 26, 1975 (Memorial Day). The appellees were on temporary lay-off status during the weeks which included these holidays. Claims for unemployment benefits were filed by the appellees for the above weeks.

In response, the appellant took the position that the holiday pay received by the appellees was wages, and as such, was deductible from the appellees’ unemployment benefits.

The local agency found for the appellees in two cases and for the appellant in the third. In separate administrative proceedings the cases were brought before Appeals Referees. The Appeals Referees found for the appellees in one case and the appellant in the other two cases. These findings were considered by the Board of Review which rendered decisions in all three cases in favor of the appellant.

The appellees then filed petitions for judicial review of the Board’s decisions. The cases were consolidated for consideration. After reviewing the facts and law in the cases the District Court rendered judgment in favor of the appellees. The Court held that under the terms of the collective bargaining agreement, holiday pay was a benefit issued to employees to cover days on which they did not work and supplemental to Employment Security benefits. It is this judgment of the District Court which has been appealed.

The relevant contractual provisions provide:

“For each recognized holiday an eligible employee shall receive eight (8) hours’ pay at the straight time rate of the job on which he worked on his last working day before the holiday. If such employee works on the holiday, he shall receive additional compensation as provided in Section XIV — ‘Overtime’.
“In order to be eligible for holiday pay, an employee must meet all of the following conditions:
1. He must have been on the payroll of the Company for a period not less than thirty (30) days immediately preceding the holiday.
2. He must have worked his scheduled Work day immediately before and immediately following the holiday unless absent for a justifiable cause.
3. He must have worked on the holiday if scheduled to work unless absent for justifiable cause.
“An employee will be considered absent for justifiable cause:
1. If he is on vacation; or,
2. If he is unable to work because of illness or injury, which must be proven by evidence satisfactory to the Company, and the holiday falls within the first six (6) months of such absence: or,
3. If he has been excused by his supervisor.”
Section X — HOLIDAYS
“I. Subject to the conditions set forth in Paragraph II of this section, any employee will receive time and one-half for: .
E. All hours worked on any of the holidays listed in Section X, ‘Holidays’ .
“II. In applying the provisions of Paragraph I of this section, the following conditions shall be in effect:
A. If a holiday does not fall on an employee’s regular day off, he will receive for such holiday eight (8) hours’ credit toward the forty (40) hour qualification in Paragraph I-D above. In addition, time worked on such a holiday in excess of eight (8) hours will be credited toward the forty (40) hour qualification . .”

Section XIV — OVERTIME

Under the terms of the above agreement, all eligible employees, including those laid off, on vacation, or ill, receive eight (8) hours’ pay for the listed holidays. If a holiday falls on an employee’s regular day off he receives the eight (8) hours’ pay in addition to his regular wages. If a holiday does not fall on an employee’s regular day off the employee receives eight (8) hours’ pay, eight (8) or more hours’ credit towards his forty (40) hour week and time and a half for each hour worked.

R.S. 23:1593 provides:

“An eligible individual who is employed in any week shall be paid with respect to such week a benefit equal to his weekly benefit amount less that part of his wages, if any, payable to him with respect to such week in excess of fifty percent of his current weekly benefit amount. This benefit, if not a multiple of one dollar, shall be computed to the next higher multiple of one dollar.”

R.S. 23:1472 provides in part:

“(19) ‘Unemployment’ — Any individual shall be deemed to be ‘unemployed’ in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount
“(20)(A) ‘Wages’ means all remuneration for services, including commissions and bonuses and the cash value of all remu-iteration in any medium other than cash

While holiday pay is paid in addition to regular wages, sick pay and vacation pay, it must be considered as wages for purposes of unemployment compensation because it is remuneration for services. Further, R.S. 23:1472(20)(C) list payments which are not to be considered as “wages”, and “holiday pay” is not included therein.

To be eligible for holiday pay an employee must meet the specific work requirements cited above. Therefore, holiday pay is deductible from unemployment benefits as it is remuneration dependent on the performance of services.

For the above reasons, the judgment of the District Court is reversed and judgment is rendered sustaining the decision of the Louisiana Board of Review for the Division of Employment Security and dismissing plaintiffs-appellees’ action. Costs to be paid by the appellees.

REVERSED AND RENDERED.


text:
    In the Matter of the Claims of Sherman BRUMFIELD et al. v. Joseph R. GERACE, Administrator, etc.
    No. 11314.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Jerry L. Gardner, Jr., of Dodd, Barker, Boudreaux, Lamy & Gardner, New Orleans, for plaintiffs.
    Marion Weimer, Baton Rouge, for Joseph Geraee.
    Richard F. Knight, of Talley, Anthony, Hughes & Knight, Bogalusa, for Crown Zel-lerbach Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in three cases consolidated for trial. For the reasons assigned in ‘‘In The Matter Of The Claims Of James D. Parker, et. al v. Joseph R. Gerace, Administrator, Etc.,’’ La.App., 346 So.2d 853 (1st Cir. 1977) the judgment of the District Court is reversed and judgment is rendered sustaining the decision of the Louisiana Board of Review for the Division of Employment Security and dismissing appellees’ action.

Costs to be paid by appellees.

REVERSED AND RENDERED.


text:
    In the Matter of the Claims of Joseph BAGENT et al. v. Joseph R. GERACE, Administrator, etc.
    No. 11315.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Jerry L. Gardner, Jr., of Dodd, Barker, Boudreaux, Lamy & Gardner, New Orleans, for plaintiffs.

      Marion Weimer, Baton Rouge, for Joseph Gerace.
    Richard F. Knight, of Talley, Anthony, Hughes & Knight, Bogalusa, for Crown Zel-lerbach Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in three cases consolidated for trial. For the reasons assigned in “In the Matter Of The Claims of James D. Parker, et al. v. Joseph R. Gerace, Administrator, Etc.,” La.App., 346 So.2d 853 (1st Cir. 1977) the judgment of the District Court is reversed and judgment is render sustaining the decision of the Louisiana Board of Review for the Division of Employment Security and dismissing appellees’ action.

Costs to be paid by appellees.

REVERSED AND RENDERED.


author: SAMUEL, Judge.

text:
    Harold MILLER v. Leonce BERTHELOTTE and Fireman’s Fund American Insurance Companies.
    No. 7887.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Ungar, Dulitz, Jacobs & Manuel, Edward J. Brandao and Stanley J. Jacobs, New Orleans, for plaintiff-appellant.
    Loeb & Livaudais, Claire Loeb, New Orleans, for defendants-appellees.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, Harold Miller, filed this suit against two defendants, Leonce Berthelotte and Fireman’s Fund American Insurance Companies, Berthelotte’s liability insurer, to recover damages for personal injuries and to property resulting from an intersectional collision between automobiles driven by plaintiff and Berthelotte. Defendants denied liability and filed a reconventional demand to recover damages for Berthelotte’s injuries and property damage.

After trial on the merits, judgment was rendered dismissing both the plaintiff’s suit and the defendants’ reconventional demand. From that judgment plaintiff has appealed. The defendants have neither appealed nor answered plaintiff’s appeal.

The facts are substantially undisputed. The accident occurred on November 17, 1973 at approximately 7:45 a. m. in the intersection of North Johnson and Barracks Streets in the City of New Orleans. Plaintiff, Miller, was driving in a westerly direction on North Johnson, and defendant, Berthelotte, was proceeding north on Barracks. The intersection is uncontrolled by traffic signs or signals, and plaintiff was on defendant’s right. There is no indication either driver was exceeding the speed limit. Both vehicles entered the intersection and neither yielded to the other. The front of plaintiff’s car struck the right front fender portion of the defendant automobile at or near the center of the intersection.

The only eye witnesses to the accident were the drivers of the two vehicles. Plaintiff testified that as he entered the intersection he observed the approaching defendant automobile, but it was “far enough out that he [the defendant driver] would have ample time to stop if necessary”; and that when he saw the defendant automobile entering the intersection he put his foot on the brakes and tried to stop, but it was too late for him to do so. Defendant testified he did not stop before entering the intersection and that he did not see plaintiff’s vehicle prior to impact.

Plaintiff’s argument is based upon the defendant driver’s negligence in: (1) failing to maintain a proper lookout; and (2) entering the intersection in violation of the directional right of way.

The record leaves little doubt, and defendants do not seriously contest, the fact that the defendant driver was guilty of negligence for both of these reasons. Since defendants have not appealed or answered plaintiff’s appeal, the sole issue for our consideration is whether the trial judge committed error in holding the plaintiff driver was negligent.

Plaintiff relies on New Orleans City Code, § 38-99(c), which provides:

“When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.”

The Supreme Court and this court have held on other occasions that statutory provisions such as the ordinance quoted above neither convert one street into a superior one with an unqualified right of way, nor provide mechanical rules for determining liability after an accident merely because of the direction in which the vehicles happened to be traveling at the time of the collision. A greater degree of care is imposed upon a driver with only a directional right of way than one with an unqualified right of way. Moreover, every driver who approaches an uncontrolled intersection with a street of equal dignity has some degree of duty, depending upon the circumstances, to proceed cautiously and determine before entering the intersection whether he can safely proceed across. A determination of fault in such a collision is made by examining the conduct of each motorist under all the circumstances and facts of each case, including consideration of the directional right of way.

As was concluded in Smith v. Borchers, we find that the plaintiff driver was negligent. He had observed the approaching defendant vehicle and could and should have made such an observation prior to entering the intersection. Yet, he failed to proceed cautiously and failed to determine before entering the intersection that he could safely proceed across.

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

AFFIRMED.

      . The Code of the City of New Orleans, § 38-99(c).

      . R.S. 32:121 B basically contains the same wording.

      . Smith v. Borchers, 243 La. 746, 146 So.2d 793; Toomer v. Kararick, 346 So.2d 858 , No. 8095 of our docket handed down this day; So-niat v. State Farm Mut. Auto. Ins. Co., La.App., 340 So.2d 1097; Gutelius v. Phoenix Insurance Company, La.App., 266 So.2d 717.

        .Supra, footnote 3.


text:
    Laura TOOMER v. Kenneth KARARICK and South Central Bell Telephone Company.
    No. 8095.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Edward P. Comeaux, New Orleans, for plaintiff-appellee.
    Timothy L. McCune and C. B. Ogden, II, New Orleans, for defendants-appellants. '
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit seeking damages for personal injuries and medical expenses resulting from a collision between an automobile in which she was a guest passenger and a South Central Bell Telephone Company pickup truck. The answer filed by the defendants, South Central Bell and its employee driver, denies negligence on the part of that driver. Defendants also filed a third party demand against the driver of the automobile in which plaintiff was a passenger.

Following trial on the merits, there was judgment on the original demand in favor of plaintiff and against the defendants in the sum of $2,750 and, on the third party demand (by confirmation of default), in favor of the third party plaintiffs and against the third party defendant for contribution in the sum of $1,375. The judgment is based on a finding by the trial court that both drivers were negligent.

The two original defendants have appealed contending only that there was no negligence on the part of the driver of the South Central Bell truck, a contention based on the fact that the truck had the directional right of way under LSA-R.S. 32:121(A) and New Orleans Traffic Ordinance 39-99(c).

The accident occurred during the early afternoon of October 3,1973 in the intersection of North Roman and France Streets in the City of New Orleans. Both were two-lane streets surfaced with gravel and both were wet and slippery due to a light rain. There were no traffic controls at the intersection. The South Central Bell truck was proceeding west on North Roman and the automobile in which plaintiff was a passenger was proceeding north on France. A building fronting on North Roman, extending to the sidewalk on both North Roman and France, together with a vehicle parked on the south side of North Roman close to the corner of France, resulted in the intersection being a blind one for both drivers. The collision occurred in approximately the center of the intersection.

At the trial the only evidence offered was the testimony of the defendant truck driver and the plaintiff guest passenger. The truck driver testified he was traveling at a speed of 6 to 10 miles per hour when he entered the intersection and saw the approaching automobile only a second or two before the collision when that car was approximately 40 feet, and his vehicle was approximately 8 feet, from the intersection. At that time he applied his brakes and pulled to his right in an attempt to avoid the accident. He also testified he had blown his horn and slowed down prior to entering the intersection because it looked like a dangerous one. However, in his answer to interrogatories before trial, he had indicated he was traveling 20 miles per hour just before entering the intersection. The plaintiff guest passenger testified the automobile in which she was riding was traveling about 15 miles per hour and slowed before entering the intersection. She saw the truck for the first time at the moment of impact.

Both LSA-R.S. 32:121(A) and New Orleans Traffic Ordinance 39-99(c) basically contain the same wording. LSA-R.S. 32:121(A) reads:

“When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.”

This directional right of way does not give a motorist approaching an uncontrolled intersection an unqualified right of way over traffic approaching from his left; to the contrary, he is obliged to exercise reasonable care in determining whether he can safely cross the intersection.

It is obvious that when the intersection is both blind and uncontrolled, greater care must be exercised. In GuteHus v. Phoenix Insurance Company, a case involving facts similar to the ones present here, we said:

“The so-called directional right-of-way rule does not convert the street into a superior one, having the right-of-way; nor is it a mechanical rule which determines liability after an accident by the mere direction of the vehicles. Its basic function is to rule which of two drivers arriving simultaneously at an uncontrolled intersection of equal streets should let the other pass. Before this rule can be relied on, the driver must first determine that the other driver is coming from his left and is approaching or entering the intersection at about the same time. These determinations one cannot reasonably expect to make while maintaining speed, especially on approaching a blind intersection.
A driver approaching an uncontrolled intersection with a street of equal dignity is obliged, in the exercise of reasonable care, to slow sufficiently to make the determination whether he can safely cross the intersection, including, when another vehicle is approaching, whether the directional right-of-way rule is applicable to cede to him or to the other driver the right to pass first. Such a driver has the right to expect of the other driver only that the other will likewise and for the same purposes slow down on approaching the intersection (and will obey the directional right-of-way if applicable). See Smith v. Borchers, 243 La. 746, 146 So.2d 793 (1962).”

We agree with the trial court’s finding and conclusion that the driver of the South Central Bell truck was negligent.

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

AFFIRMED.

      . Smith v. Borchers, 243 La. 746, 146 So.2d 793; Carney v. State Farm Mutual Auto. Insur. Co., La.App., 335 So.2d 759; Lagrue v. Murrhee, La.App., 291 So.2d 844; Gutelius v. Phoenix Insurance Company, La.App., 266 So.2d 717.

      . Supra, footnote 1.


text:
    Gail Marie Dedman, wife of Michael Lane ROUSSEL v. Michael Lane ROUSSEL.
    No. 8328.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Edwards, Porteous & Lee, Marion F. Edwards. Gretna, for plaintiff-appellant.
    F. Charles McMains, Jr., Baton Rouge, for defendant-appellee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   SAMUEL, Judge.

This is an appeal taken by the plaintiff mother from a judgment changing custody of her minor son from herself to the child’s father.

The litigants were married December 14, 1968, judicially separated January 23, 1973 and divorced April 26, 1974. Plaintiff was awarded the care, custody and control of the child in the separation and divorce judgments without opposition from the defendant. Subsequently, in 1974, 1975 and 1976, defendant filed contempt rules against the plaintiff based on her alleged refusal to comply with visitation privileges awarded him. On March 3, 1976 defendant filed the present rule seeking a change of custody based on the alleged moral unfitness of the plaintiff and, with various specifications, on the alleged unsuitability of the conditions under which the child was being raised.

At the trial of the rule on May 4, 1976, when the child was 5 years of age, it was stipulated the plaintiff had been living in open concubinage with a man named Don Lyon since October, 1974 (they had been dating two or three months prior to that time) and that she and Lyon had been married the week before May 4, 1976. During the trial plaintiff admitted she and Lyon had lived together since September, 1974. She stated they were able to get married only after Lyon and his former wife were divorced by judgment dated April 27, 1976.

In this court appellant contends: (1) the trial court erroneously punished her for past indiscretions (living with Lyon, indiscretions which were cured by their marriage); and (2) the trial court erred in refusing to grant her motion for a new trial based upon the allegation that Lyon’s former wife had committed perjury.

We first consider the second contention. It is based on the fact that the witness had testified she had not intentionally attempted to delay the pending divorce proceeding between herself and Don Lyon while this custody rule was pending whereas, as shown by an attached affidavit given by Lyon’s attorney in that divorce proceeding, the contrary was true. We do not agree with the contention.

As pointed out in the trial court’s written reasons for denying the motion for a new trial, the alleged perjured testimony was not germane to the issue of custody in this case and, even if true, would not justify a change in result. The witness testified with regard to only two matters. First, she identified the record of her divorce proceedings in the suit against Lyon in the Nineteenth Judicial District Court, testimony not necessary for the introduction of those proceedings inasmuch as properly certified copies thereof were introduced into evidence. Second, on cross examination she was asked if she had delayed her divorce proceedings pending this custody rule. Her answer was that she had not and the asserted testimony of Lyon’s attorney allegedly would show this answer was incorrect. The fact is that the witness’s divorce from Lyon was obtained on April 27,1976 and whether it could have been obtained sooner if she had been agreeable to an earlier disposition is immaterial insofar as the present custody matter is concerned.

Nor do we agree with the first contention. It is true that in his reasons for judgment, which he gave orally from the bench, after stating his primary concern was the welfare of the boy, the trial court did emphasize plaintiff’s immoral conduct in living in open concubinage with Lyon. He stated he was impressed by the fact that she was not a juvenile but rather an intelligent young woman who, by her own testimony, knew she was doing wrong and so acted regardless of the consequences insofar as concerned the small boy who resided with them, thus exposing the child to an environment which would lead him to believe this was proper conduct. He was concerned with what he considered plaintiff’s “flouting” of court orders regarding visitation and, inferentially, with her willingness to ignore and violate not only social mores, but legal ones as well. He also stated he found the record replete with evidence which satisfied him the child would be better off with the father and the latter’s present wife.

We note the record contains evidence, both in the form of testimony and the above referred to divorce pleadings and judgment between Lyon and his former wife, showing or tending to show use of marijuana by plaintiff and Lyon. That part of this evidence which consists of testimony is conflicting, but there is enough apparently credible testimony to support a factual basis for a finding of such use. And, in connection with the granting to Lyon of visitation rights with his minor daughter the judgment of divorce between him and his former wife specifically provides those rights shall “never be exercised in the presence of any drug users, and at no time shall said minor child be exposed to any immoral conduct.”

In Fulco v. Fulco, 259 La. 1122, 254 So.2d 603, 605, the Supreme Court of Louisiana said:

“Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.”

We find no abuse of discretion in this case.

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

AFFIRMED.

      . In this connection see Beck v. Beck, La.App., 341 So.2d 580.

      . See Canter v. Koehring Company, La., 283 So.2d 716, 724.