author: GARRISON, Judge.

text:
    Nellie ROBERTS et al. v. TINY TIM THRIFTY CHECK et al.
    No. 9661.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Nelson, Nelson & Lombard, Ltd., J. Thomas Nelson, Irving H. Koch, New Orleans, for plaintiffs-appellants.
    Young, McMahon & Levert, Joseph R. McMahon, Jr., New Orleans, for defendants-appellees.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

The facts of this case are not in dispute. On September 7, 1974, Fred Roberts, a 19 year old was in the Tiny Tim Food Store on Jefferson Highway. He had been there about 2 hours trying to place a long distance phone call. At about 8:00 P.M. two men entered the store. They went to the back, got a six pack of beer and walked up to the counter. They then drew guns and ordered the cashier, Mrs. LeBlanc and her husband to lie on the floor. She yelled to Roberts to “get off the phone, he’s got a gun.” Mr. and Mrs. LeBlanc, and Micelli, a boy who worked in the store, all obeyed the robbers. Mrs. LeBlanc testified she heard a scuffle and one of the robbers say “So you want to fight.” Then the robber turned and fired at Roberts. He was pronounced dead at Oschner Foundation Hospital at 8:31. His parents filed a wrongful death action against the store. After a trial on the merits, the judge found against the plaintiffs dismissing their suit. They have appealed.

The trial judge in his reasons for judgment found that the store owner had fulfilled his duty of reasonable care. The court then went on to find that even if the defendant had breached a duty, the decedent’s own actions in choosing to fight with an armed robber precluded recovery. We affirm.

The record shows that the defendant had hired an armed guard who travelled between his Jefferson Highway store and one on Claiborne Avenue, 10 blocks away. He also requested that the Jefferson Parish Sheriff’s office patrol his stores regularly, which they did. There was also no evidence that the likelihood of robbery was high, or that the store was frequently robbed. In light of these circumstances the trial court concluded. “[T]o ask this store or any other small business to do more, such as hiring full time armed guards in fear of any potential robbery would make this burden of prevention extremely high and in all likelihood make the cost of running a small business prohibitive.”

A store owner is under a duty to take reasonable care for the safety of his patrons, but he is not the insurer of their safety. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir. 1973); DeHart v. Travelers Ins. Co., 10 So.2d 597 (La.App.Orl.1942); Matranga v. Travelers Insurance Co., 55 So.2d 633 (La.App. Orl.1952). It has also been stated that a proprietor of a public place has a duty to protect his patrons from injuries at the hands of third parties when it is within his power to do so. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir. 1965) (emphasis added). The trial judge concluded that the defendant in this case exercised reasonable care for his patron’s safety and that it was not within his power to protect Fred Roberts. There is no error in these findings.

The cases cited by appellant may be distinguished from the one at bar. In Anderson v. Clements, supra, the defendant was found negligent because (after being warned that a patron was going to return to “cause trouble”) an employee of the establishment failed to call the police or warn other patrons. Instead he armed himself. During the ensuing fight an innocent bystander was shot. Therefore it was the violation of the duty to notify the police which resulted in liability. In the case here presented, there was no opportunity to notify the police.

In Nordmann v. National Hotel Company, 425 F.2d 1103 (5th Cir. 1970), a hotel was found to have breached its duty of reasonable care to protect their guests from injury by third persons. In that case two hotel guests were assaulted and robbed. The hotel had 1200 rooms and on the night of the robbery had twelve to fourteen hundred people attending a ball there. Yet the hotel had on duty at the time only one security officer, one room clerk and one bellboy. However, the court concluded that there was even stronger evidence of negligence in that a patron in the adjoining room notified hotel employees that there was a robbery in progress. Yet the desk clerk did not call the police until 40 minutes later. During that time the assailant escaped. This is clearly distinguishable from the robbery at the Tiny Tim Food Store.

An analogy may be made to this situation and those where bus patrons are assaulted by fellow riders. The duty of a carrier is even more strenuous than that of a storeowner. A carrier is required to exercise the highest degree of vigilance, care and precaution for the safety of its passengers, and is liable for the slightest negligence. Aime v. Hebert, 282 So.2d 566 (La. App. 4th Cir. 1973). Yet it is not the insurer of its patrons safety. It is not obliged to provide armed guards to protect its passengers. Higgins v. New Orleans Public Service, Inc., 347 So.2d 944 (La.App. 4th Cir. 1977).

There can be little argument that the decedent’s actions in this case preclude any recovery. The trial judge accepted Mrs. LeBlane’s testimony that Fred Roberts chose to fight with the armed robber. At the least this can be termed contributory negligence.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. Restatement of Torts Second, Section 463 (1965). The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. Restatement of Torts Second, Section 464 (1965). See: Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Theunissen v. Guidry, 244 La. 631, 153 So.2d 869 (1963); Sloan v. Flack, 150 So.2d 646 (La.App. 3rd Cir. 1963).

Smolinski v. Taulli, 276 So.2d 286, 290 (La.1973). A reasonable man does not fight with two armed robbers.

It may also be concluded that Fred Roberts assumed the risk of being shot. “In order for a plaintiff to assume a risk, he must knowingly and voluntarily encounter the risk which causes his injury . Recovery is denied if the plaintiff knew or should have known of the risk involved.” Prestenbach v. Sentry Ins. Co., 340 So.2d 1331, 1335 (La.1977). Certainly Roberts should have known that he could be shot if he disobeyed the instructions of the robbers.

Finally appellants argue that it was prejudiced by the trial court’s refusal to accept Mr. Gersaud as an expert in the field of security systems. However, his testimony was proffered and the court was “not impressed” by it. The qualifications of an expert witness rests within the sound discretion of the trial court, and his determination will not be disturbed except for a showing of manifest error. Maddox v. Percy, 351 So.2d 1249 (La.App. 1st Cir. 1977); w. d. La., 353 So. 1336; Sledge v. Aluminum Specialties Mftg., Inc., 351 So.2d 835 (La. App. 1st Cir. 1977); Ashley v. Nisson Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir. 1975) w.d., La., 323 So.2d 478. We find no such error.

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

AFFIRMED.


source: Caselaw Access Project

author: STOULIG, Judge. SCHOTT, Judge,

license: Public Domain

text:
    AGENCY RENT-A-CAR, INC. v. FIBERGLASS INSULATORS, INC. and Anthony M. Lucas.
    No. 9665.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Beoubay & Gegenheimer, Jon A. Gegen-heimer, Gretna, for Fiberglass Insulators, Inc., defendant-appellant.
    Montgomery, Barnett, Brown & Read, Daniel Lund and Terry J. Freiberger, New Orleans for Scaffolding Rental and Erection Sc ice, Inc., and Zurich Insurance Company, third party defendants-appellees.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   STOULIG, Judge.

This is an appeal from a judgment dismissing the suit of Fiberglass Insulators, Inc. (Fiberglass), against Scaffolding Rental and Erection Services, Inc. (Scaffolding), and its liability insurer, Zurich Insurance Company, on a finding that the suit was “ * * * strictly in tort, thus the one year prescription applied.” The trial court held prescription began to run on the date of the accident.

On July 24, 1975, Anthony Lucas, while driving a rental car for the benefit and with full authority of his employer Fiberglass, was involved in an automobile accident with a vehicle owned by Scaffolding. The automobile lessor, Agency Rent-a-Car, Inc. (Agency), filed suit against Fiberglass and Lucas on September 14, 1976, more than one year after the accident. On March 10, 1977, Fiberglass and Lucas were cast in judgment for $2,961.02 in damages because the rental agreement contained a provision requiring the lessee to reimburse the lessor for any damages to the vehicle while it was being leased, regardless of the negligence or non-negligence of the lessee driver.

On April 11, 1977, Fiberglass filed this suit for indemnification in which it alleged it was cast in judgment for $2,961.02 due to the negligence of Scaffolding’s driver and prayed for indemnification.

The trial court improperly applied the C.C. art. 3536 prescription of one year limiting suits for damages resulting from offenses or quasi-offenses. The petition states a claim for indemnification based on the negligent act of Scaffolding’s driver; however, if we concede for the sake of argument that a one-year rather than a 10-year prescription is applicable, C.C. art. 3537 stipulates prescription tolls from the date the damages are sustained. In this case the earliest date Fiberglass sustained damage is March 10, 1977, the date of the judgment or possibly the date said judgment became executory.

The original suit was not brought by Agency until more than a year had elapsed from the date of the accident. During this period, Fiberglass, only vicariously liable under the doctrine of respondeat superior, had no cause of action for property damage because it did not own the car. Nor did it have a personal injury claim.

The inability of Fiberglass to state a cause of action within the year following the accident makes relevant the contra non valentem agere nulla currit praescriptio doctrine, which Black’s Law Dictionary, 4th Ed., translates: “No prescription runs against a person unable to bring an action.”

In Edward Levy Metals, Inc. v. New Orleans Pub. Belt R., 243 La. 860, 148 So.2d 580 (1963), the Court held that prescription against an action for indemnification does not begin to run until the party to whom it is due is cast in judgment. In Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970), the Supreme Court noted the contra non valentem doctrine has been infrequently applied in Louisiana cases. It points out that C.C. art. 3536 provides a prescription of one year to sue for “ * * * damages caused by * * * or resulting from offenses or quasi offenses * * * ”, which, under C.C. art. 3537, begins to toll from the time the damage is sustained.

As a general rule, the offense is committed and the resulting damage is sustained simultaneously, but in the ease of an indemnification action, the party vicariously liable in tort does not sustain the damage until the claim against him is liquidated by judgment.

In this case we rest our result on Levy and Cartwright and reverse the judgment of the district court. We note parenthetically that the Supreme Court has reached the same result by applying the equitable remedy afforded by the actio de in rem verso. (See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 [1967].) The rationale of this approach is that one vicariously liable should not suffer a loss for which another is responsible or, stated another way, that the tort-feasor should not be unjustly enriched at the expense of the party constructively liable. A concise summary of both approaches to afford relief to the party seeking indemnification is found in Brenham v. Southern Pacific Company (W.D.La.), 328 F.Supp. 119 (1971), affirmed 469 F.2d 1095, cert. den. 409 U.S. 1061, 93 S.Ct. 560, 34 L.Ed.2d 513 (1972).

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings in the district court. Defendants are to pay the costs of this appeal.

REVERSED AND RENDERED.

SCHOTT, J., concurs with written reasons.

SCHOTT, Judge,

concurring.

I reach the same result as the majority because of the tort indemnity theory applied by our courts in Edward Levy Metals, Inc. v. New Orleans Pub. Belt R., 243 La. 860, 148 So.2d 580 (1963) and the cases cited therein. However, I do not believe that the doctrine of “contra non valentem” discussed in Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970) has any application to this case because there is simply no evidence in the record on which the doctrine can be based.


author: SCHOTT, Judge.

text:
    Joan Marie MELANCON v. Sam J. VITRANO.
    No. 9668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Rehearing Denied Feb. 15, 1979.

      Charles S. Lagarde, Jr., Luling, for defendant-appellee.
    Hackman & Lewis (Gordon Hackman), Boutte, for plaintiff-appellant.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing her action to annul a default judgment taken against her on October 22, 1976.

In the proceedings leading up to the default judgment Sam Vitrano originally brought suit against Gregory Vitrano only as head and master of the community between him and his wife, Joan Marie Melan-con, who is the appellant herein. Sam Vi-trano sued to have the sale of some immovable property by him to Gregory and appellant rescinded and declared null and void as a simulation in that no part of the stated cash consideration of $1500 was paid to Sam. Gregory answered and Sam moved for a summary judgment.

In denying this motion on September 1, 1976, the trial judge reasoned that in the sale sought to be rescinded both Gregory and appellant took title as purchasers. He noted further that there was now pending on his docket separation proceedings between Gregory and appellant and an injunction in effect against Gregory from alienating community property. He concluded that Sam’s proceedings had to be directed against Joan as well as Gregory.

Sam filed a supplemental petition joining appellant in the proceedings and on September 21, 1976, she was served in person with the petition, the supplemental and amended petition and the citation. When appellant made no appearance a default was entered and was subsequently confirmed against her. She took an appeal to this court from the judgment but it was untimely and was dismissed. Vitrano v. Vitrano, 353 So.2d 398 (La.App. 4th Cir. 1977). She now seeks to annul the judgment.

In her petition to annul the judgment granting a rescission to Sam Vitrano she alleged that fraud was perpetrated on her in that Sam and Gregory Vitrano both “knew that the purported sale was a valid donation in disguise” and that the action to rescind the sale was the result of collusion between the Vitranos. Sam filed an exception of no cause of action.

The trial judge maintained the exception and granted appellant fifteen days in which to amend her petition so as to state a cause of action. This judgment was signed on January 30,1978. By March 3 she had filed no amending petition and on that date the trial judge, on motion of Gregory Vitrano, dismissed her suit to annul the judgment of October, 1976.

Appellant did not make any oral argument in this court and filed a pro forma type brief on the date the case was scheduled for argument, claiming that the dismissal of her suit on the ex parte motion of her co-defendant deprived her of due process in violation of her constitutional rights.

This is not a question of an absence of due process, but rather a failure on the part of the litigant to avail herself of procedural remedies which are more than adequate in order to afford the litigant due process. Plaintiff has cited no authority for the proposition that a plaintiff is entitled to an additional hearing before the case is dismissed because of plaintiff’s failure to state a cause of action where the plaintiff was given time in which to amend the petition in accordance with C.C.P. Art. 934. On the contrary, the article mandates the dismissal of the suit under such circumstances.

Since she fails to argue the merits of her case, appellant apparently concedes that she states no cause of action. Suffice it to say that she is attempting to raise in an action of nullity that which was available to her as an affirmative defense of fraud. She does not allege any facts to show that the judgment was taken against her as a result of fraud or ill practices. A defense on the merits is not available as a ground for an action of nullity. American Fidelity F. Ins. Co. v. Binnings Const. Co., Inc., 302 So.2d 320 (La.App. 4th Cir. 1974), Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir. 1967).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    Satoshi WAITE v. TOMENY RIVER ROAD ESTATES, INC., et al.
    No. 9675.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Writ Refused Feb. 23, 1979.

      Gerald P. Webre and Kerry P. Camarata, Metairie, for plaintiff-appellee.
    Don Almerico, Norco, for Tomeny River Road Estates, Inc., defendant-appellant.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   STOULIG, Judge.

Plaintiff, Satoshi Waite, filed suit against defendants, Tomeny River Road Estates, Inc., and Pat J. Tomeny, Jr., to rescind a contract of sale involving a mobile home trailer. Alleging bad faith and fraud on the seller’s part, plaintiff asked for damages and attorney fees or alternatively, rescission of the sale because of redhibitory defects.

Defendants first pleaded a declinatory exception due to insufficiency of service of process, which apparently was never adjudicated. Then, without reserving their rights under the exception, defendants answered with a general denial and pleaded no special defenses.

The trial court rendered judgment against both defendants awarding plaintiff $24,943.89, representing the down payment of $2,800; the subsequent monthly payments of $7,597.24 to the finance company; the payout figure to satisfy the mortgage of $11,546.65; and $3,000 of other costs and expenses. In its judgment the trial court noted the claim for attorney fees was to be taken under advisement. Within the delays for applying for a new trial, the trial judge, on his own motion, amended the judgment to delete the award of $3,000 and to vacate the entire judgment insofar as it cast Pat J. Tomeny, Jr., individually, as a solidary obli-gor with the corporation Tomeny River Road Estates, Inc. He gave as his reason the failure to serve and cite Tomeny individually with a copy of the petition.

Defendants appealed and plaintiff answered the appeal.

The evidence preponderates to the effect that Bill Harris, the seller’s representative, made two serious misrepresentations to plaintiff when he was purchasing the trailer. Plaintiff testified that Harris said the trailer was new and that the land on which the trailer was parked would be plaintiff’s property after he paid a given number of installment payments. As it developed, the trailer was not new and had been abandoned by the original owner because it had serious leaks in the structure that caused frequent flooding in the interi- or. In addition, the land was being leased and not sold to plaintiff.

During the two years that followed the sale, several things occurred to make plaintiff and his wife suspect the trailer was not new when they bought it. In talking with John McGee, a neighbor in the trailer park, plaintiff was told that he (McGee) had visited a previous occupant of their trailer. At this point plaintiff’s wife testified she questioned Harris as to whether the trailer was new and he assured her it was. He told her people in the trailer park had lied to her. The suspicion lingered but was not confirmed until April 1976.

On the land ownership issue, plaintiff and his wife, thinking they were making installment payments on the lot, repeatedly asked for “papers” evidencing their ownership. Harris and Pat Tomeny, Jr., kept putting them off. In April 1976, plaintiff refused to continue making the monthly land payments without the papers and about this time consulted an attorney.

On their attorney’s instructions they looked through whatever papers they had or could find in the trailer that might give more information to assist with their claim. Mrs. Waite then looked through a packet of papers that had been in the trailer when they moved in that she had put aside and had forgotten. She found a registration slip reflecting that one Cassidy Billiot had purchased the trailer prior to their acquisition. Billiot testified that he had lived in it for six months and vacated it because of numerous leaks and other defects.

One of the incidents to confirm the Waites’ growing suspicion that Tomeny’s representatives had misled them was a notice their rent would be increased from $55 to $65 per month. When plaintiff confirmed the trailer was in fact used and the trailer lot was not to be theirs, he tried to have Tomeny’s agent Harris install the wheels that came with the trailer. Harris admitted having the wheels which he conceded were accessories of the sale but failed to explain why they were not installed.

Harris, the salesman for Tomeny River Road Estates, Inc., said he too assumed the unit was new when he sold it due to his inexperience in selling trailers. He could neither confirm nor deny specifically telling Mr. and Mrs. Waite it was new. He denied he told them they were buying the land. He testified the monthly payment of $55 was the ground rental fee on which the trailer was parked. The monthly payment was treated by the corporation as rent and the receipts their employees issued variously referred to the payments as “land note” or “payment on lot” or “rent”. These references lend considerable credence to the purchaser’s statement that he was told he was buying the land. In addition, Pat To-meny did not testify for defendant Tomeny River Road Estates, Inc., although he was involved in the transaction.

In summary, we conclude Bill Harris and Pat Tomeny, Jr., as representatives of the corporate defendant, knowingly misrepresented the mobile home was new when in fact it was not and further deceived plaintiff about the ownership of the lot. We also conclude that the trailer was defective in that it leaked and had numerous other problems incidental thereto.

The measure of damages to which the plaintiff is entitled is set forth in C.C. art. 2545 as follows:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

The sale price of this trailer was $13,648, of which plaintiff deposited $2,800 in cash (which included a $2,000 trade-in allowed on another trailer) and financed the balance with Commercial Credit Corporation. Plaintiff is entitled to recover the down payment, all installment payments made to the finance company and the amount it will require to pay off the mortgage balance on the vehicle. In addition he is entitled to all expenses he incurred, plus reasonable attorney fees. Thus we summarize plaintiff’s damages as follows:

Deposit on sale price $ 2,800.00
Total amount paid Commercial Credit Corporation at date of trial 7,773.92
Attorney fees 3,500.00
Replacement refrigerator 302.34
Sun porch 295.00
Installation of porch 85.00
Air conditioning installation 300.45
Trailer tie downs 156.00
$15,212.71

Plaintiff is also entitled to an additional credit for the amount of monthly installments paid between the time of the trial and the time this opinion becomes final, as well as a judgment for the amount it will take to pay off the mortgage loan at the time the trailer is reconveyed and the seller returns the purchase price with the damages we assess.

Defendants claim the corporation is entitled to offset plaintiff’s use of the land and the trailer. In this connection we point out that the plea of offset was not affirmatively pleaded as a special defense as required by C.C.P. art. 1005.

With respect to rental value of the land, there is evidence admitted without objection that rental value of the land until April 1976 was $55 per month. The value of the lot is established by the testimony of defendants’ agent Harris; what is disputed is whether this monthly payment was to ultimately be applied to a purchase price. After moving into the trailer park, plaintiff was allowed a grace period of six months without making the monthly payments of $55. At this point in time—December 1974 —plaintiff began paying $55 per month until April 1976 when he was notified by defendants that rent would be increased to $65. Upon learning the payment was in fact for rental and the trailer was not new, plaintiff discontinued the land payments and demanded his wheels so that he could move from the property. When defendants who admittedly had the wheels refused to install them, it effectively prevented plaintiff from vacating. Thus no credit is due to defendants for use of the land except that the payments made through April 1976 to defendants as rent are not refundable under plaintiff’s land-purchase theory.

The pleadings have not been expanded to set forth an affirmative defense quoad value of the use of the trailer. Therefore we will not allow it. In White v. Martin GMC Trucks, Inc., 359 So.2d 1094 (La.App. 3d Cir. 1978), the court reached the same result we do here via a different rationalization. It held that where the value of the use of the object sold pending the redhibitory action has not been established, it is reasoned that the use of the money paid for the object during the interim offsets the value of the use by the purchaser.

We finally consider the liability of Tomeny individually. Without sorting through the procedural arguments, we simply note there is not one scintilla of evidence that establishes Tomeny individually sold the trailer. The record indicates the vendor is the defendant corporation.

For the reasons assigned the judgment appealed from is amended to award plaintiff the sum of $11,712.71, plus the sum of the additional monthly installments paid to Commercial Credit Corporation from the computation made at the trial until this matter becomes final, together with the mortgage payout due Commercial Credit Corporation when the trailer is reconveyed to defendant Tomeny River Road Estates, Inc., also $3,500 attorney fees, with legal interest on said sums from judicial demand until paid. The judgment vacating the judgment against Pat J. Tomeny, Jr., is affirmed. All costs are to be borne by appellant.

AMENDED AND AFFIRMED.


author: LEMMON, Judge. PER CURIAM.

text:
    Joseph A. NAVARRO and Blue Cross of Massachusetts, Inc.—Blue Shield of Massachusetts, Inc. v. Bosit BOMMARITO, d/b/a Westbank Union Cab Company, Cheryl M. Laballe, and Central National Insurance Company of Omaha, Nebraska.
    No. 9695.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Rehearing Denied Feb. 15, 1979.

      Herman M. Schroeder and John S. Seiam-bra, New Orleans, for plaintiffs-appellees.
    Philip A. Gattuso, Gretna, for defendant-appellant.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

The appeal by defendant Bosit Bommari-to in this automobile accident case asserts (1) that plaintiff failed to produce evidence of Bommarito’s vicarious liability for the negligence of Cheryl Laballe, who was driving a West Bank Cab owned by Bommarito in the collision in which plaintiff sustained the injuries in suit, and (2) that the evidence does not support the trial court’s awards for pain and suffering and for past and future lost earnings.

I

In his petition plaintiff named “Bosit Bommarito, d/b/a Westbank Union Cab Company” as a defendant and alleged that Bommarito owned the cab and that Miss Laballe, another defendant, was driving the cab in the course and scope of her employment with Bommarito. He further alleged that defendant Central National Insurance Company insured the cab owned by Bom-marito. The answer, filed jointly by Central National, Miss Laballe and “Bosit Bom-marito, d/b/a Westbank Union Cab Company”, denied each allegation of the petition, except to admit Central National had issued an insurance policy covering “the vehicle owned by defendants (sic) Bosit Bommarito, d/b/a Westbank Union Cab Company”. Contributory negligence was also pleaded.

In preparation for a pre-trial conference plaintiff submitted a proposed pre-trial order, which stated:

“II
“In view of the answer filed by defendants, it appears that all of plaintiffs’ allegations, except, as to the name and status of the three defendants, are at issue. Defendants’ allegations contained in their answer, in the alternative, are also at issue”.

Defendants then filed a pleading entitled “Defendants’ Inserts for Pre-Trial Order”, which stated in pertinent part:

“2) Contested issues are all of plaintiffs’ allegations as to negligence, contributory negligence, and quantum”.

The pre-trial order was thereafter amended three times (once by defendants) as to other points, but the list of contested issues was never changed. When the matter proceeded to trial, neither side called Bommarito or Miss Laballe as a witness. After trial the court rendered a judgment awarding plaintiff an amount in excess of the limits of Bommarito’s insurance policy.

In an application for new trial defendants argued plaintiff’s failure to prove Bommar-ito’s vicarious liability. After the application was denied, Central National paid plaintiff the amount of its policy limits. Bommarito then obtained new counsel and perfected this appeal.

II

Plaintiff contends admissions by Bom-marito’s prior counsel in pleadings filed in pre-trial proceedings made it unnecessary to produce proof on the issue of vicarious liability.

One of the principal purposes of pretrial proceedings is to narrow the issues of the litigation to those which are contested and to dispense with proof on the issues which are not contested. C.C.P. art. 1551, relative to pre-trial procedure, allows the court to render an order (which, of course, may be prepared by the parties) that, among other things, “limits the issues for trial”. The article further provides that the order, unless modified to prevent manifest injustice, controls the subsequent course of the action.

In the present case defendants in their answer alleged a dispute as to the issue of Bommarito’s vicarious liability. However, in their subsequent pre-trial pleadings defendants, by expressly stating the only contested issues, implicitly notified plaintiff that vicarious liability was no longer a contested issue.

In reliance on the pre-trial order plaintiff omitted evidence of the fact that Miss Laballe was in the course and scope of employment at the time of the accident. Since the issue of vicarious liability was excluded from the contested issues listed in the pre-trial order which controlled the course of the proceeding, and since there was no suggestion prior to or during trial that the pre-trial order should be modified in the interest of justice, we decline to consider the issue raised now on appeal by new counsel.

III

Quantum is the second issue raised by Bommarito’s appeal.

In the November 23, 1975 accident plaintiff sustained a fractured nose, facial lacerations, a separation of the sternoclavi-cular joint, a fracture of the tenth rib, a cervical strain, contusions of the knee, elbow, and upper arm, as well as general bruises and contusions. He was hospitalized for 11 days following the accident.

Dr. James Day, a plastic surgeon, repaired the facial lacerations in the emergency room and on December 2 surgically realigned the fractured nose. After two outpatient follow-up visits in December, plaintiff never returned to Dr. Day.

In May, 1976 plaintiff consulted Dr. Daniel Adams, an otolaryngologist, who diagnosed a saddle nose depression and nasal septum deviation, noting that the latter protrusion obstructed plaintiff’s left nostril. Dr. Adams surgically straightened the septum to improve plaintiff’s breathing, a procedure which required three days of hospitalization. Two weeks later plaintiff reported his breathing had improved. In May, 1977 plaintiff returned for advice on the saddle depression deformity, and Dr. Adams recommended further surgery, which plaintiff declined. At trial plaintiff complained that he still had difficulty breathing.

For his orthopedic injuries plaintiff was attended immediately after the accident by Dr. Arthur Kleinschmidt, an orthopedic surgeon. After an unsuccessful attempt at closed reduction of the dislocation, the doctor recommended against surgery and prescribed medication, limitation of activities and exercises. By February, 1976 there was only a slight limitation of shoulder motion, but plaintiff continued to complain of pain in the joint. In subsequent examinations the knee and neck injuries eventually cleared, but the doctor continued to report the slight motion deficit noted previously. At plaintiff’s last visit to Dr. Kleinschmidt on May 31, 1976, he was advised to return in one month, but did not. Plaintiff did not seek further medical care prior to the January, 1978 trial, but he never returned to work as a longshoreman.

As to the extent of plaintiff’s disability, Dr. Kleinschmidt estimated plaintiff would have a 15% partial, permanent anatomical disability of the right extremity, which could be the source of pain or tenderness or of arthritic change. He added, however, that plaintiff should be “near normal” from a functional standpoint. In response to the only question about plaintiff’s ability to return to work as a longshoreman, he stated he had advised plaintiff during treatment that he could eventually return to this type of work.

Dr. A. W. Dunn, an orthopedic surgeon that plaintiff had consulted during the two months immediately following the injury, noted only “a little discomfort on shoulder motion” in December, 1975 and the following month observed plaintiff had regained full range of motion, but still had some discomfort. At trial the doctor stated that no surgery or further treatment was indicated, because this type of injury does well if left alone. He added that normal function usually returns after this injury, the only effect being visual prominence of the proximal end of the clavicle. He opined that plaintiff’s injury should not cause problems in performing manual labor as a longshoreman in the hold of a ship, since this type of injury is “compatible with very strenuous use of the upper limb”.

The trial court awarded $22,500.00 for pain and suffering, $4,427.65 for medical expenses, $2,032.00 for property damages, $8,500.00 for lost earnings, and $30,000.00 for future lost earnings. The awards for medical expenses and property damage are not contested on appeal, and the award for pain and suffering is clearly within the wide discretion accorded the trial judge by C.C. art. 1934(3).

However, the record does not support an award of $8,500.00 for lost earnings. Plaintiff’s earnings at the time of the accident were almost $600.00 per month. At the time of his last orthopedic examination in May, 1976, six months after the accident, he exhibited some motion limitation, but there was no medical evidence that any disability to work as a longshoreman existed or was expected to continue after June, 1976. Plaintiff’s own assertion that he was still unable to return to work as a longshoreman at time of trial because of the condition of his shoulder simply was not supported by the consistent medical evidence.

Accordingly, the award for lost earnings must be reduced to $4,200.00 ($600.00 X 7 months), and the award for future lost earnings or impairment of earning capacity must be set aside.

For these reasons the judgment of the trial court is amended to reduce the award for lost earnings from $8,500.00 to $4,200.00 and to delete the $30,000.00 award for future lost earnings. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing plaintiff argues that the trial court awards relating to wages were modified without substantial basis.

The reduction of the award for past lost wages and the reversal of the award for future lost wages (or impairment of earning capacity) were based on the burden of proof and the determination of the sufficiency of evidence. Plaintiff had the burden to prove his losses. That burden was not discharged as to loss of wages when the only proof of continuing disability was plaintiff’s statement and the actuary’s mathematical computation. Some medical proof of this fact was necessary, and there was absolutely no medical proof of any condition disabling plaintiff from employment after May 31, 1976.

      . The legal counsel provided by Bommarito’s insurer possibly overlooked a valid personal defense which perhaps should have been presented on his behalf. Nevertheless, Bom-marito agreed to and accepted that representátion, and this matter is properly regarded as one between the insured and the insurer and/or its counsel which might give rise to other consequences, but which does not affect the present litigation with plaintiff.


text:
    Robert T. DE FRANCESCH et al. v. George CELLA, III, et al.
    No. 9711.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Thomas F. Schexnayder, Metairie, for Robert T. De Francesch and Maria De Francesch, plaintiffs-appellees.
    Levenson & Bonin, Leonard L. Levenson, New Orleans, for George Celia, III, d/b/a Celia Development Corporation, defendant-appellant.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   STOULIG, Judge.

This appeal concerns a dispute arising out of a contract to purchase realty. On October 22, 1977, Robert T. De Francesch entered into an agreement to purchase a house to be constructed by George A. Celia, III, doing business as Celia Development Corporation, on property owned by Celia designated as Lot 8, Square H, Sequoia Street, Kenner, Louisiana. The agreement stated the house was “ * * * to be constructed according to plans and specs, of house at # 64 Woodlake with changes on attached addendum.” The contract further provided the sale was to be passed on or before April 30, 1978.

During the course of construction a dispute arose between the prospective purchasers and the contractor-owner as to the use of materials in the home to be furnished by the purchasers. On April 13,1978, plaintiffs, Robert and Maria De Francesch, filed suit seeking a temporary restraining order and a preliminary injunction prohibiting defendant Celia from using any wallpaper, lighting fixtures, flooring materials and range top other than those furnished by plaintiffs. Pending the hearing on the preliminary injunction, on April 14, 1978 a temporary restraining order issued to this effect, conditioned upon plaintiffs’ furnishing a $500 bond. A hearing on the preliminary injunction was held on April 24, 1978 and in due course a writ of preliminary injunction was granted on April 26, 1978 upon the plaintiffs’ furnishing security in the amount of $500. On May 2, 1978 the judgment granting the preliminary injunction was amended to change the phrase “lighting fixtures” to “remaining lighting fixtures.” No bond was set in the supplemental and amending judgment.

After the first judgment was signed and prior to the signing of the second one, the offer to purchase the property expired. By its own terms the act was to be passed on or before April 30, 1978. Therefore the propriety of issuing the preliminary injunction has become moot by the failure of the parties to extend their agreement in writing. Not only must the contract to purchase realty be in writing, but any subsequent agreement that extends the time for performance must also be reduced to writing. Harrell v. Stumberg, 220 La. 811, 57 So.2d 692 (1952), and Wells v. Spears, 255 So.2d 215 (La.App. 1st Cir. 1971).

Once the contract expired, plaintiffs had no interest in the manner of construction of the residence or any right to enforce the terms of the agreement. Therefore under C.C.P. art. 927, the plaintiffs have no right of action and this suit must be dismissed.

Defendant further contends this court should adjudicate whether he is entitled to claim damages for the wrongful issuance of a temporary restraining order. A motion to dissolve the temporary restraining order was filed in the trial court but there was no evidence adduced and the record fails to indicate the motion was considered.

There is nothing for us to review on this issue and any statement by the court in connection therewith would be premature.

For the reasons assigned, this suit is dismissed with prejudice on an exception of no right of action. Plaintiffs are to pay all costs of this appeal.

APPEAL DISMISSED.

      . The restraining order was issued six days prior to the expiration of the contract to sell and purchase; the preliminary injunction four days before said expiration; and the amended judgment two days after the expiration date.


text:
    GOODYEAR TIRE & RUBBER CO. v. John E. RUIZ, Sr.
    No. 9712.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Rehearing Denied Feb. 15, 1979.

      Chaffe, McCall, Phillips, Toler & Sarpy (William F. Grace, Jr.), New Orleans, for plaintiff-appellant.
    Charles E. McHale, Jr., New Orleans, for defendant-appellee.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

The Goodyear Tire & Rubber Company has appealed from a summary judgment dismissing its suit against defendant to compel specific performance of an agreement to sell to Goodyear property owned by defendant.

In March, 1971, defendant leased his property to Goodyear under terms which obligated defendant to construct a building which Goodyear would occupy and use as a retail tire store. The lease would be for a primary term of fifteen years commencing after the building was ready for occupancy and Goodyear had two options to extend the lease for five years each. The building was completed and the primary term commenced on December 1, 1973, at a monthly rental of $2,668.79.

On December 20, 1976, Goodyear addressed a letter to defendant relative to the lease, containing the following proposal:

“In consideration of the mutual benefits expected to accrue to each of the parties thereto, it is hereby proposed that the following paragraph shall be added to said lease:
Lessee shall have, and the Lessor hereby grants to the Lessee, the exclusive right at its option, at any time during the twelve (12) month period beginning January 1, 1977, to purchase the aforesaid premises for the sum of $400,-000.00 to be paid to the Lessor, upon tender by the Lessor of a good and sufficient warranty deed conveying to the Lessee the fee simple of the said premises, free and clear of all liens and encumbrances except such as have been made or suffered by the Lessee, and except taxes and assessments becoming payable thereafter, and this lease.
In case the Lessee shall elect to purchase said premises, it shall signify its intention so to do by serving not less than 120 days’ written notice upon the Lessor; and Lessor shall thereupon promptly deliver to the Lessee, concurrent with the tender of the deed, title guaranty showing the title to be as above provided; provided always, however, that Lessee’s right to so purchase is expressly conditioned upon the faithful performance and observance by the Lessee of all the covenants, agreements, and conditions on its part herein contained, and the payment to the Lessor of the rental hereby reserved up to the date of the completion of said purchase.
All rights of Lessee may be assigned without restriction and without Lessor’s consent.
All other terms and conditions of said lease, as amended, shall remain in full force and effect. In the event that the lease is assigned the Goodyear Tire & Rubber Company will not be absolved of any obligations presently existing in connection with the lease of March 22, 1971.
Please indicate your acceptance of the foregoing proposal by signing the attached carbon copies of this letter and returning them to The Goodyear Tire & Rubber Company, 1144 East Market Street, Akron, Ohio 44316, Attention: Real Estate Department.”

Defendant did sign and return the copy indicating his agreement.

This agreement was identical to an earlier agreement made in November, 1976, except that the right of Goodyear to assign its rights was added in the later agreement.

On February 23, 1977, Goodyear notified defendant “of its election to exercise its option to purchase said premises on or about June 30, 1977.” On June 13 proper tender was made by Goodyear to defendant of the purchase price, whereupon defendant declined to sell the property, and the instant action followed thereafter.

Defendant moved for a summary judgment based upon the documents of record. He took the position that there was no consideration given by Goodyear for the option, so that the agreement was not binding upon him and unenforceable by Goodyear. Goodyear took the position that the option was an amendment to the lease and the lease itself afforded consideration for the option. Alternatively, Goodyear contended that the December, 1976, agreement was an offer by defendant to sell the property to Goodyear and was accepted by it before it was withdrawn by defendant so that it ripened into a valid and enforceable agreement to buy and sell the property.

In dismissing Goodyear’s suit the trial judge gave the following reasons for his judgment:

“Although the document is couched in terms that purport to make it an extension of an amendment to the existing lease between the parties, it succeeds only in placing a unilateral burden upon the defendant. He is obligating himself; plaintiff is not assuming any burden whatsoever. The benefits accruing to the parties from the lease agreement are neither altered, amended, nor enhanced by the purported amendment of December 20, 1976. As stated hereinabove, no interpretation is possible save that of its being an option to purchase unsupported by consideration, in line with the jurisprudence and codal articles relating hereto, the court considers this to be a nudum pactum and therefore unenforceable by either party.”

LSA-C.C. Art. 2462 provides the codal authority for an option agreement as follows:

“One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party. (As amended by Acts 1910, No. 249; Acts 1910, 2nd Ex.Sess., No. 3; Acts 1920, No. 27.)” (Emphasis supplied)

These provisions authorizing the option first came to the Civil Code by Act 249 of 1910, and in its original form was identical except that as originally enacted the article provided in lieu of the emphasized portion above the words “for value.”

Goodyear seems to concede that there must be some consideration for an option, but contends that the substitution of the words “any consideration therein stipulated” for the words “for value” clearly indicates the legislature’s intent to provide that an option would be binding on the parties for only the slightest identifiable consideration.

Goodyear relies on Kinberger v. Drouet, 149 La. 986, 90 So. 367 (1922) as authority for the proposition that the lease itself between the parties afforded sufficient consideration to support the option. It takes the position that the so-called amendment which added the option agreement made the option an integral part of the original lease and therefore the rule of the Kinber-ger case applies.

We cannot accept Goodyear’s position on this point. At the time this option agreement was entered into defendant’s property was under a long-term lease to a solid tenant for a substantial rental. The option agreement was something entirely new and was not mentioned or contemplated when this lease was executed more than five years previously. The rule of Kinberger contemplates that the two parties considered the option at the same time the lease itself was being considered, so that the option given to the tenant was a part of a package of benefits being exchanged for those flowing to the lessor. Under these circumstances, there is no question but the lease provides the consideration for the option. But those circumstances do not exist in the instant case, and simply because the option agreement was called an amendment to the lease does not change its character.

The only real consideration suggested by Goodyear to support the option agreement was the lease. Since we have concluded that Goodyear’s argument on this point has no merit we conclude, as did the trial judge, that the option agreement is a nudum pactum and is unenforceable by Goodyear. However, the case does not end on this issue. The other point made by Goodyear, and one not specifically dealt with by the trial judge, is that defendant’s granting the option was a continuing offer on his part to sell his property to Goodyear, and when Goodyear accepted that offer it ripened into a binding agreement to buy and sell the property.

In support of this position Goodyear relies on Moresi v. Burleigh, 170 La. 270, 127 So. 624 (1930) in which the Supreme Court was confronted with the question of an option’s validity based upon the question of consideration and concluded that the option was valid because it was supported by some consideration, although slight. The court went on to say:

“However, even though consideration be totally lacking, which is clearly not the case here, the offer to sell was accepted before being withdrawn and by reason of its acceptance became a binding contract enforceable against either party.”

Defendant’s argument that this is pure dicta is well taken because the statement was entirely gratuitous on an issue which did not have to be addressed and after the case had already been decided quite definitively. Nevertheless, the statement represents the last expression by the Supreme Court on the issue which Goodyear has raised and it is not within the province of this court to ignore the statement. This is so even though the Moresi case appears to be in conflict to some extent with Glover v. Abney, 160 La. 175, 106 So. 735 (1925), decided just five years previously by the Supreme Court.

Defendant relies heavily upon the Glover case, but we are not persuaded by the case for several reasons. First, because, as already stated, the language of the Moresi case is in conflict and is the last expression of the Supreme Court. Second, the Glover case arose between 1910 and 1920, so that Art. 2462’s “for value” was the test for adequate consideration for an option. Third, the facts of the Glover case show that the purported option was an entirely gratuitous, unilateral declaration on the part of Abney. Four years later one of the original supposed optionees, together with the heirs of the other, attempted to take up the option. In the instant ease, we are dealing with a signed agreement between two sophisticated parties, and one which was voluntarily entered into by defendant after a great deal of time was available to him for reflection. Goodyear’s attempt to exercise the option took place only a month after the option was agreed upon.

We have concluded that there is some wisdom in the statement quoted above from the Moresi decision. The essence of an option from the standpoint of the optionor, is the offer to sell the property. When that option is purchased by the optionee it is still simply an offer to sell but is now irrevocable for the term specified in the agreement. Ordinarily, an offer may be withdrawn at any time before it is accepted, C.C. Art. 1801 et seq. The option simply adds the ingredient of irrevocability to the offer to sell. Defendant was free to withdraw his offer at any time until Goodyear accepted it, at which time the matter ripened into an executory agreement to buy and sell.

Since this matter is before us on a summary judgment dismissing plaintiff’s suit, we reverse that judgment and remand the case to the trial court for further proceedings consistent with this opinion. The questions of defendant’s withdrawal vel non of his offer to sell and the acceptance vel non of that offer by Goodyear are factual issues to be decided by the trial court. The costs of this appeal are to be borne by defendant, and all other costs are to await the final outcome of the case.

REVERSED AND REMANDED.


text:
    Ricky DeCASTRO v. Roger BOYLAN et al.
    No. 9713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Rehearing Denied Feb. 15, 1979.
    Robert T. Garrity, Jr., New Orleans, Joseph J. Tosh, Gretna, for plaintiff-appellant.
    Robert B. Nolan, New Orleans, for defendants-appellees.
    Before STOULIG, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

On August 15, 1977 Louis Arzonico was driving a 1977 Chevrolet leased by his employer, Bernard Lumber Co. Inc., and owned by Genway Corporation, all defendants in this suit. He parked the car in front of a construction site and left the keys in the ignition and the car unlocked. The keys were left in the car, it is contended, so that it could be moved from in front of the work site in case other materials or laborers arrived.

The car was stolen shortly thereafter. Mr. Arzonico called the police and reported the theft. The car was seen on Airline Highway by Jefferson Parish Sheriff’s deputies who entered into pursuit. Deputy Rickey DeCastro was ordered to set up a roadblock to intercept the vehicle. The alleged thief, John Boylan, tried to run the road block, crashed into Deputy DeCastro’s vehicle and injured him. DeCastro filed suit against the alleged thief’s father, Louis Arzonico, the employer of Louis Arzonico as well as the alleged owner and sub-lessor of the subject car.

The trial judge granted the defendants’ motion for summary judgment holding that “as a matter of law the solitary act of leaving a car unlocked with the keys inside cannot be the proximate cause of a subsequent tort committed by an unauthorized user of the vehicle.” Plaintiff has appealed. We affirm.

“Obviously the motion for summary judgment was based on the well established rule in Louisiana that the leaving of ignition keys in an unattended automobile does not of itself constitute negligence on the part of the owner and he owes no duty to the public at large against the risk of a thief’s negligent operation of the automobile. Midkiff v. Watkins, 52 So.2d 573 (1st La.App.1951); Town of Jackson v. Mounger Motors, 98 So.2d 697 (1st La.App.1957); 22 La.L.Rev. 886-889 (1962). Even if a motorist leaves his vehicle unattended in violation of the so-called “lock statute” (L.R.S. 32:145), it has been held that he is nevertheless not responsible for the carelessness of a thief who steals the vehicle and while operating it causes injury to another. Call v. Huffman, 163 So.2d 397 (2nd La.App. 1964) writ refused, 246 La. 376, 164 So.2d 361 (1964); Berluchaux v. Employers Mutual of Wausau, 194 So.2d 463 (4th La. App.1967) writ refused, 250 La. 533, 197 So.2d 79 (1967).”

Roach v. Liberty Mutual Ins. Co., 279 So.2d 775, 777 (La.App. 1st Cir. 1973) w. d. 281 So.2d 756; Duplessis v. NOPSI, 354 So.2d 768 (La.App. 4th Cir. 1978).

The application of a “duty-risk” standard to these facts would not change the result of this case. In Pierre v. Allstate Insurance Co., 242 So.2d 821 (La.1970), the Supreme Court applied the duty risk concept of tort responsibility. Under this approach it must be determined if the duty was designed to protect the plaintiff from the type of harm arising in this matter. See Crowe, The Anatomy of a Tort, 22 Loy.L.Rev. 903. The courts in the majority of jurisdictions which have statutes prohibiting the leaving of keys in unattended automobiles have construed the purpose of these laws to be the protection of automobile owners or as an aid to police officers. They have not held its purpose to be the protection of third parties from the negligent operations of thieves. See, Note, 22 La.L.Rev. 886 and cases cited therein. The purpose of the subject Louisiana statute appears to have been intended to prevent the theft of vehicles from the public streets and roadways. See Berluchaux and Call, cited supra in the Roach case.

We conclude that R.S. 32:145 does not go as far as to protect a plaintiff from being negligently injured by one who has stolen his car with the keys left in it. More specifically, with regard to the case at hand, we conclude that Arzonico’s having left the keys in the ignition of his car- — particularly in view of the fact that he had a legitimate reason for so doing — should not be regarded as a negligent act constituting the proximate cause of the plaintiff’s injury.

For the foregoing reasons, the judgment below is affirmed.

AFFIRMED.


author: BOUTALL, Judge. BEER, Judge,

text:
    Theresa M. MARTIN, w/o Candido Lopez v. Candido R. LOPEZ.
    No. 9726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Christopher T. Grace, Jr., Occhipinti, Grace, Berger & Dunford, New Orleans, counsel for Theresa M. Martin Lopez, plaintiff-appellant.
    Anthony A. Fernandez, Jr., Chalmette, counsel for Candido Lopez, defendant-ap-pellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is a case involving the denial of alimony to a wife due to the finding that she is not without fault.

Theresa Martin Lopez filed suit for divorce on grounds of adultery, and, alternatively, for separation on grounds of abandonment. Her husband, Candido Lopez, answered the suit and reconvened for a divorce based on his wife’s adultery. At trial, it was conclusively shown that Mr. Lopez was guilty of adultery. Much conflicting evidence was introduced on the issue of adultery as to Mrs. Lopez.

The trial judge rendered judgment awarding a divorce in favor of Mrs. Lopez and against Mr. Lopez and dismissed the prayer for separation and the reconventional demand. The judge also found that Mrs. Lopez was not free from fault and stated that permanent alimony would not be awarded. It is from this finding on the issue of fault that this appeal is taken.

Mrs. Lopez admitted that she had, on a regular basis, stayed overnight at the apartment of a Mr. Salvadore Vaccarro. Both testified, however, that others were always present in the apartment and that they slept in separate bedrooms. It was also admitted that Vaccarro had stayed overnight at her house on a few occasions, but again always with others present and never in the same room. These assertions were rebutted by certain testimony of Mr. Lopez and his sister who stated that they observed Vaccarro’s car parked outside of Mrs. Lopez’ home late at night and again early next morning on several occasions.

The trial judge gave no written reasons for his judgment. He did, however, discuss the case on the record at the end of the trial. Unfortunately the record at this point reflects some confusion apparently on the part of the court reporter in transcribing the judge’s remarks. We have considered remanding the record for clarification, however, in considering the totality of the judge’s remarks and the action that he took, we believe that we have discovered his conclusions.

The judge first noted that, as to Mrs. Lopez, it was a question of circumstantial evidence of adultery versus the possibility of a reasonable hypothesis to the contrary. He then discussed the evidence and concluded “adultery had occurred”. He then pointed out that he had a second problem that “even though the proofs of adultery were to be found, whether or not either party was free from fault”. There was clearly fault by Mr. Lopez. The court felt that Mrs. Lopez was also at fault, because, even if Mrs. Lopez proved some reasonable hypothesis that she did not commit adultery (which he found hard to accept) she was still at fault for “obviously giving the impression to any reasonable person that possibly it was being committed” under the circumstances he outlined of sleeping in the man’s apartment and his sleeping at her home. He apparently considered that he may be precluded from granting a divorce at all to either party on the basis of mutual fault, and suggested to the parties that he would permit them to amend to pray for separation only which he felt he could grant on finding mutual fault.

In accordance with his statements, the judge took the matter under advisement to research the applicable law and apply it to the evidence he had heard. On March 2, 1978, he granted divorce to Mrs. Lopez, but denied her alimony, finding her not free from fault. He dismissed both her petition for separation on grounds of abandonment and Mr. Lopez’s petition for divorce on grounds of adultery. He gave no reasons for this judgment and did not mention the proposed amendments for separation for mutual fault.

At this time there was pending in the Supreme Court of Louisiana the case of Thomason v. Thomason, 355 So.2d 908 (1978), judgment handed down March 6, 1978. Prior to that decision there was jurisprudence to the effect that the divorce demands of both parties should be rejected because of mutual, equal fault as stated in the Court of Appeal decision in Thomason, 349 So.2d 928, 931 and recognized by the Supreme Court as the doctrine of recrimination, 355 So.2d at 910. In Thomason the doctrine of recrimination was specifically abrogated and the doctrine of comparative rectitude recognized which would permit the trial judge to render judgment of divorce by comparing the relative degree of fault of each party and by granting a divorce to the party less at fault.

The trial judge’s oral statements and his later judgment lead us to conclude that he felt that both parties had committed adultery, but that the husband’s actions, admittedly taking up residence in open adultery with another woman more than a year before the time that his wife was alleged to have committed occasional adultery, constituted a greater degree of fault than the wife’s. Accordingly, he properly granted the wife a divorce, also in view of the great discretion afforded the trial judge in decisions dealing with the credibility of conflicting witnesses, we find that the record supports the finding that both parties committed adultery, and that, for alimony purposes, the wife was not without fault.

The judgment of the trial court is affirmed.

AFFIRMED.

BEER, Judge,

concurring.

Though concurring in the result, my views with respect to this case are essentially the same as those expressed in my concurring opinion in No. 9421, Rittiner v. Sinclair.


author: GULOTTA, Judge.

text:
    Gary D. ALLEN v. Warren SCHLESINGER and Allstate Insurance Company.
    No. 9729.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Charles C. Garvey, Jr., Robert B. Keaty, New Orleans, for plaintiff-appellant.
    Murphy & Simon, David T. Bowman, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal on an exception of res judicata of his personal injury suit arising out of an automobile accident.

The accident occurred on August 25,1976. On November 12, 1976 plaintiff was paid the sum of $7,200 in settlement and compromise of his claim against the defendants in this suit. Plaintiff was unrepresented by counsel. According to the adjuster for the insurer who settled the claim, plaintiff stated he was not desirous of obtaining an attorney because of the costs involved. Based on this settlement and release of the defendant automobile driver and his insurer, an exception of res judicata v/as filed and maintained by the trial judge.

While acknowledging his signature on the draft and release and acknowledging receipt of the sum of $7,200, plaintiff attacks the validity of the settlement on the grounds that he lacked “mental capacity” (because of the effect from pain killing and high blood pressure medication) at the time of the execution of the release. Plaintiff further complains that the trial judge erred in denying him a continuance of the hearing on the exception thereby depriving him of the right of submitting evidence in support of his claim on the invalidity of the release.

Finding no merit to either contention, we affirm.

Considering plaintiffs claim in inverse order, we reject his contention that the trial judge abused his discretion in denying plaintiff’s request for continuance. As pointed out by the trial judge, in oral reasons, supported by the record, on plaintiff’s motion three earlier requests for continuances had been granted. Furthermore, as indicated in one of these motions for continuance, plaintiff suggested that the hearing on the exception be delayed to allow the taking of his deposition in order that the matter might be submitted on the deposition and other evidence. Significantly, no mention is made in plaintiff’s brief relating to whether or not plaintiff’s deposition was in fact taken or, if taken, whether or not the deposition was offered.

On April 29, 1978, the date on which the matter was ultimately heard, upon learning that plaintiff’s counsel was engaged in litigation in Washington Parish, the court informed the attorney (through the attorney’s secretary) that the matter would be taken up on that date, however, he would delay the hearing until after the docket had been concluded. Whereupon, the attorney for plaintiff informed the court that he would be available at approximately 1:00 p. m. to take up the matter. No appearance was made by either plaintiff or plaintiff’s attorney and at approximately 4:15 p. m. the trial judge heard evidence on the exception. The deposition of plaintiff’s chiropractor and that of the claims adjuster was submitted in evidence.

No writ application was made to this court when the requested continuance was denied. The circumstances considered, we find no abuse of the trial court’s discretion in hearing evidence on the exception of res judicata despite plaintiff’s request for continuance.

Turning now to the central issue, we conclude, as did the trial judge, that plaintiff failed to carry the burden of proof required to set aside the compromise.

The basis of plaintiff’s claim of mental incapacity is that at the time the settlement was made, he was taking prescribed pain medication, (A.P.C. with Demerol) and also medication for high blood pressure. The evidence supporting plaintiff’s claim is unconvincing.

Dr. Hanckes A. Klein, plaintiff’s treating chiropractor, stated in deposition, that depending on the individual, A.P.C. with Demerol, as could aspirin, “possibly” could hamper one’s judgment. According to the insurer’s claim adjuster, in one of the negotiation sessions (lasting approximately two hours) plaintiff stated that he had become dizzy and requested an ambulance (apparently in jest) when a $7,100.00 settlement offer was made by the adjuster to plaintiff, in response to plaintiff’s $7,200.00 demand.

Negotiations between the adjuster and plaintiff extended over an approximate period of two to three months, with the final three days of negotiations requiring a total of approximately eight hours. According to the adjuster, after the “in jest” ambulance request, the negotiations continued on for an additional period of two hours. Apparently, the impediment to settlement was the sum of $100.00.

After plaintiff left the adjuster’s office, according to the adjuster, he decided upon a $7,200.00 figure settlement, as requested by plaintiff. At the conclusion of the day’s business, the adjuster dropped off the check and release at plaintiff’s home. On the following day, November 12, 1976, plaintiff executed the release and the draft was paid on November 16,1976. The settlement figure was computed as follows: $200.00 for medical expenses, $5,000.00 in loss of wages and $2,000.00 for pain and suffering.

According to plaintiff’s petition, he sustained injury to the “head, neck, shoulder, interscapula and low back area” and treatment consisted of four visits to a chiropractor. The trial judge concluded that plaintiff sustained a “soft tissue” injury.

The allegations of the petition as amended, the nature and duration of the medical treatment received, and the findings of the trial judge of a “soft tissue” injury, support a conclusion that plaintiff was adequately compensated for the injury sustained. Significant is the absence of a showing by plaintiff of injuries so severe as to warrant a finding that the settlement figure is inadequate. The cases relied on by plaintiff are either factually distinguishable or support the validity of the settlement.

Under the circumstances, we conclude the trial judge properly dismissed plaintiff’s suit on the exception of res judicata. Accordingly, the judgment is affirmed.

AFFIRMED.

      . C.C. Art. 3078. Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.

      . C.C. Art. 3079. A transaction may be rescinded notwithstanding, whenever there exists an error in the person or on the matter in dispute. It may likewise be rescinded in the cases where there exists fraud or violence; Williams v. Boston Insurance Co., 222 So.2d 306 (La.App. 1st Cir. 1969).

      . The trial judge made the observation in his reasons for the judgment that the request was made “in jest.”

      . Although not clear from the record, apparently the visits were made on November 3rd and November 9th, 1976 and February 2nd and March 4th, 1977.

      . Davenport v. F. B. Dubach Lumber Co., 112 La. 943, 36 So. 812 (1904); Wells v. Aguillard, 244 So.2d 689 (La.App. 4th Cir. 1971); Cleveland v. Employers’ Liability Assurance Corp., 222 So.2d 644 (La.App. 2nd Cir. 1969); Wilson v. Aetna Casualty & Surety Company, 228 So.2d 229 (La.App. 4th Cir. 1969).


author: LEMMON, Judge. BEER, Judge,

text:
    Howard D. REED v. PENINSULAR LIFE INSURANCE COMPANY and General Motors Acceptance Corporation.
    No. 9730.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    McDonough & McDonough, Birch P. McDonough, New Orleans, for plaintiff-appellant.
    Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

This litigation involves a dispute between plaintiff and the chattel mortgagee of his mortgaged automobile over the proceeds of plaintiff’s claim under a credit life and credit accident and health insurance policy.

I

Peninsular Life Insurance Company had issued a creditors group life insurance policy, with a disability insurance rider, to Mike Persia Chevrolet, Inc. Plaintiff purchased a car on credit terms from Persia, and as part of the financing package with General Motors Acceptance Corporation (GMAC), plaintiff purchased credit life and credit disability insurance in the amount of $3,351.96, the certificate being issued for a 30-month period beginning July 25, 1972.

Under the policy Peninsular insured the life of the debtor of the creditor for the amount necessary to discharge the debtor’s indebtedness, and the creditor was named as irrevocable beneficiary. Peninsular further agreed, in the event of disability, to “pay the monthly indemnity shown herein for the remainder of the term of this certificate during which such debtor shall be so disabled”. The disability benefits were payable to the creditor to be applied to reduce or extinguish the indebtedness, with the provision that “(i)f the indemnities exceed the unpaid indebtedness, any such excess will be paid to the debtor”.

In March, 1974 plaintiff became disabled. However, for some reason unexplained in the record, he did not apply for disability benefits until September 23, 1974. In the meantime plaintiff had continued to make sporadic payments to GMAC, but had fallen behind on his obligation by about two monthly payments of $112.56 each.

On October 16, 1974, after several phone calls to plaintiff about the delinquent debt, a GMAC representative persuaded plaintiff to execute a voluntary surrender contract, in which plaintiff agreed to surrender his title to the vehicle in consideration for GMAC’s discharging him “from all further liability” on the chattel mortgage and note, which had an unpaid balance of $1,063.00. The contract further provided:

“For the consideration recited above, I hereby transfer to General Motors Acceptance Corporation any and all rights and claims that I have or may have to any insurance proceeds, premiums or claims on the above-described vehicle.”

Six days later Peninsular issued a check in the amount of $675.36 to GMAC. When plaintiff claimed entitlement to the funds, GMAC refused, and plaintiff filed this suit against Peninsular and GMAC. Peninsular was subsequently dismissed on a pre-trial motion.

At trial plaintiff testified that he implored GMAC to wait for the proceeds of the insurance claim (in a sum about double the amount of the delinquent payments) which had been approved, but that he finally executed the surrender at GMAC’s insistence, with the promise that he would receive the proceeds and that there would be no report which might impair his credit rating. The GMAC representative testified that he knew of the disability claim, but had no idea of the amount claimed. He denied that he promised to turn over the proceeds to plaintiff.

The trial court rendered judgment dismissing plaintiff’s suit, and plaintiff perfected this appeal.

II

On appeal GMAC argues that the dispute is controlled by the contract between the parties, in which plaintiff transferred his claim to any insurance proceeds. However, we do not agree with that construction of the voluntary surrender contract.

The form contract was prepared by GMAC, and the intention of the parties as to the phrase “insurance proceeds, premiums or claims on the above-described vehicle” is a paramount consideration. One could reasonably expect that, at the time of a repossession through voluntary surrender, a debtor might be entitled to the proceeds of a pending collision insurance claim on the vehicle, or might have a yet unpresented insurance claim on the vehicle, or might be entitled to a refund of unused collision or other insurance premiums paid on the vehicle as part of the financing package, and the surrender contract thus might reasonably be construed to contemplate such items. However, since one would not reasonably expect that the debtor would be two or three months delinquent on financing payments and yet not have collected insurance proceeds amounting to six months of payments, the provision of the form contract cannot reasonably be construed as contemplating such proceeds. Moreover, the contract specifically refers to insurance proceeds or claims “on the above-described vehicle”, and these were proceeds on disability insurance, which would not generally be regarded as insurance on the vehicle.

Accordingly, we conclude the parties did not intend to provide specifically in the written contract for disposition of the proceeds of the pending claim under the disability insurance policy.

Ill

We are thus faced with determining the entitlement to the proceeds in the absence of a specific agreement between the parties at the time they executed the surrender contract which extinguished the debt.

If there had been no surrender prior to payment of the insurance proceeds, GMAC would only have been entitled to the amount of the two or three overdue payments and could have been required to turn over the balance to plaintiff in reimbursement for payments made by him during the period he was disabled. Therefore, it is logical that the existence of a surrender agreement (without a specific provision for distributing the proceeds) should not give GMAC any right to claim the portion of the proceeds which otherwise would have reimbursed plaintiff for the payments made by him while he was disabled.

As to the portion of the proceeds which (if no surrender agreement had been executed) would have been applied to bring plaintiff’s account with GMAC to a current status, there is a basic fallacy in GMAC’s position that it is entitled (in the absence of a specific provision in the surrender agreement to that effect) both to the surrender of the vehicle under threat of seizure and to the overdue payments which would have made the debt current and thus eliminated the right to seizure.

As part of its financing package GMAC had plaintiff purchase a credit disability insurance policy, in which GMAC was named irrevocable beneficiary, the purpose of the policy being to insure that GMAC’s credit would be paid if the debtor could not make the payments because of disability. Since it was thus fully protected against a loss due to disability of the debtor, GMAC had an implied obligation, in the event of the debtor’s disability, to look to the benefits provided by credit disability insurance (which in the present case were more than sufficient to catch up the overdue payments and almost sufficient to pay off the balance of the entire indebtedness) before repossessing the mortgaged vehicle. When GMAC chose instead to seek the surrender of the car and to use the delinquent chattel mortgage debt (which would not have been delinquent if the insurance benefits were applied) as a tool for persuading plaintiff to execute the surrender, that choice must be regarded as a forfeiture of any claim to the portion of the insurance proceeds which would have brought the account to a current status.

For these reasons the judgment of the trial court is reversed, and it is now ordered that there be judgment in favor of plaintiff in the sum of $675.36, with legal interest from October 22, 1974 until paid and all costs of the proceedings in both courts.

REVERSED AND RENDERED.

BEER, Judge,

concurring.

I concur in the result.

      . If GMAC had waited for the forthcoming insurance payment that admittedly had been approved, plaintiff would have had the car, the refund of installment payments made during disability and (if disability continued) the right to claim insurance benefits for the remaining three installments.


author: LEMMON, Judge.

text:
    ASSOCIATES FINANCIAL SERVICES, INC. v. Edwin C. McCLENDON.
    No. 9737.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.

      Jacob Karno, Metairie, for plaintiff-appellant.
    Robert J. Skinner, Metairie, for defendant-appellee, First Metropolitan Bank.
    Grant & Barrow, Jo Ellen McMillen, Gretna, for garnishee-appellee, Jefferson Parish School Board.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

This is a contest between two conflicting creditors of Edwin McClendon, whose wages have been garnisheed by one of the creditors.

On April 27, 1977 McClendon had executed a “Pledge and Assignment of Proceeds Services”, whereby in order to secure a $38,344.42 loan McClendon did “pledge and/or assign, transfer, set over and deliver” to the First Metropolitan Bank “any and all sums now due and owing to the said McClendon or that may hereafter become due and owing to McClendon under and by virtue (of) services performed” by McClen-don for his employer. The contract was immediately served by mail on McClendon’s employer, who did not consent to the assignment in writing, but did begin paying McClendon’s wages directly to the Bank. The employer continued to do so until Associates Financial Services Company, Inc. filed a garnishment on November 8, 1977.

Associates had obtained a judgment against McClendon on September 27, 1977 and subsequently filed the petition for garnishment, making McClendon’s employer the garnishee. The employer answered, admitting McClendon’s employment, and moved for the court to render a judgment ranking the competing claims. The judgment of the trial court ordered that the Bank’s assignment be accorded preference over Associates’ garnishment, and Associates appealed.

A seizure under garnishment takes effect upon service on the garnishee of the petition, citation, and interrogatories. C.C.P. art. 2411. In a garnishment of wages the seizure includes both accrued and future earnings. R.S. 13:3923; Sun Sales Co. v. Hodges, 256 La. 687, 237 So.2d 684 (1970). And the seizing creditor, by the mere act of seizure, acquires a privilege on the property seized which entitles him to a preference over ordinary creditors. C.C.P. art. 2292.

Thus, in this case Associates would be entitled to preference over the Bank if the latter is an ordinary creditor. However, the Bank is either (1) a privileged creditor, having acquired a privilege by virtue of the wage “assignment” (if the “Pledge and Assignment” is a security device which created a privilege on the credit under C.C. art. 3155 and 3157 until the indebtedness secured thereby is satisfied), or (2) the owner of the wages, having acquired ownership as transferee by virtue of the wage “assignment” (if the assignment is a transfer of credit under C.C. art. 2642 et seq). Whichever status the Bank occupies, it is more than an ordinary creditor, and in either case the Bank is entitled to the preference accorded.

Associates contends, however, that an assignment of future wages is an assignment of accounts receivable, which under R.S. 9:3102 is not valid unless recorded.

As between McClendon and his employer there was no “account”, which R.S. 9:3101 defines as indebtedness arising out of the assignor’s business or undertaking. This statute was not intended to include wages earned by the assignor as an employee in the employer’s business or undertaking.

The judgment is affirmed.

AFFIRMED.

      . In Thomas v. Young, 71 So.2d 368 (La.App. 1st Cir. 1954), which also involved a contest between a garnishing judgment creditor and a wage assignee, the court held that the assignment transferred the wages to the assignee and operated to vest the earnings as they accrued, so that the employer (sought to be made garnishee) never owed any wages to the employee which might be seized by the garnishing creditor.
      This decision is open to question insofar as it would allow assignment of wages in excess of that portion which is not exempt from seizure. Assignment of future wages, while recognized by R.S. 23:731, is certainly not intended as a tool for a creditor to circumvent the public policy underlying the exemption of the major portion of an employee’s wages from seizure. Furthermore, an “assignment” of future wages until an indebtedness is paid appears to have more characteristics of the security device than of a sale. (C.C. art. 2642 et seq, cited in the Thomas case, are found in Chapter 12 of Title 7, Of Sale, of Book 3, Of the Different Modes of Acquiring the Ownership of Things). However, these interesting questions need not be decided in this case.


author: GARRISON, Judge. STOULIG, Judge,

text:
    Dr. William C. SUPER v. Madeleine BURKE.
    No. 9763.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Rehearing Denied Feb. 15, 1979.

      Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for plaintiff-appellee,
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for defendant-appellant.
    Before STOULIG, SCHOTT, and GARRISON, JJ.
   GARRISON, Judge.

This is a suit by Dr. William C. Super seeking to have his marriage to Madeleine Burke annulled.

The facts of this case are not in dispute. Dr. Super married Monya Gray in 1965 and established a domicile in Louisiana. In February of 1972, he travelled to the Dominican Republic for the sole purpose of obtaining a divorce which he did on February 7th. At this proceeding Monya Gray was represented by an attorney, appointed by her by virtue of a notarized power of attorney.

On February 10, 1972, a marriage ceremony was performed between Dr. Super and Madeleine Burke in the Dominican Republic. The couple then returned to live in Louisiana. On February 7, 1973 Monya Gray obtained a divorce from Dr. Super in Louisiana. On August 1, 1977 Madeleine Burke obtained a legal separation from Dr. Super in the Parish of Jefferson but this is not involved in the instant matter.

Dr. Super testified he had doubts about the legality of the Dominican Republic divorce. Madeleine Burke was present when the Dominican Republic divorce was granted. She testified Dr. Super assured her of its legality and she thought it was a legal divorce. He did not discuss its nonvalidity with her until she filed suit for separation.

The trial judge found that the Dominican Republic divorce decree between Dr. William Super and Monya Gray Super was invalid and a nullity. However, he also found that Madeleine Burke was totally unaware of the defect and thought she was lawfully married to Dr. Super. As such she is considered as his putative wife. Madeleine Burke appealed the finding of nullity; and Dr. Super answered contesting the judgment declaring defendant a putative wife. We affirm.

The issue of the validity of the Dominican Republic divorce was decided by this court in Everett v. Everett, 345 So.2d 586 (La. App. 4th Cir. 1977) writ dismd., La., 349 So.2d 329. The facts of that case are identical to the ones at bar. There too, the wife had signed a power of attorney and was represented by counsel. This court specifically rejected the argument with respect to comity. It stated:

“We think that the state does have an interest in having a clear cut determination as to the status of its citizens and it should not recognize a quick divorce obtained by its citizens on overnight trips to foreign countries where attitudes and philosophies of the courts, as well as concepts of substantive and procedural due process, are entirely unknown and probably inconsistent with our own.” 345 So.2d 588.

The court then went on to reject the argument that plaintiff was estopped from bringing the action.

In order for estoppel to apply there must be: (1) a representation by word or conduct, (2) justifiable reliance, and (3) a change to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). The Everett court concluded there was no representation on the plaintiff’s part on which the defendant relied to his detriment. The representation of the validity of the Dominican Republic divorce was made by an attorney. But the court went on to say that even if plaintiff had represented the validity of the divorce, defendant would not have been justified in relying upon his words to that effect.

This argument was also rejected in Clark v. Clark, 192 So.2d 594, 597 (La.App. 3rd Cir. 1966).

We find no merit in the defendant’s contention on this point, for a marriage between persons already legally married is prohibited by law and the doctrine of estoppel cannot be urged to impair the force and effect of a prohibitory provision of law. La.Rev. Civil Code Art. 93; Rhodes v. Miller, 189 La. 288, 179 So. 430, 440 (1938). In addition, a marriage which is invalid because one of the contracting parties was legally married at the time of its confection is an absolute nullity and may be impeached by either of the parties to the marriage or by any other party in interest. La.Rev. Civil Code Arts. 93, 113; Monnier v. Contejean, 45 La.Ann. 419, 12 So. 623; Rhodes v. Miller, supra; Burrell v. Burrell, 154 So.2d 103 (La.App. 1st Cir. 1963).

The plaintiff has appealed that part of the judgment declaring Madeleine Burke to be a putative wife, La. C.C. 117, 118. That part of the judgment was in response to defendant-appellant’s supplemental answer to the petition, in which answer she alternatively averred that even if there was a defect in plaintiff’s divorce, affecting her marriage to him, she should be considered in law a putative wife. We concur with the holding of the trial judge in this regard.

Counsel for Dr. Super relies on Gathright v. Smith, 352 So.2d 282 (La.App. 2d Cir. 1977), as authority that once a null marriage is proven, the burden of proving good faith shifts to the party who contracted the marriage. However, in Gathright — as in Succession of Choyce, 183 So.2d 457 (La. App. 2d Cir. 1966) writ dismd. 249 La. 64, 184 So.2d 735, cited in Gathright — the burden of establishing good faith was placed upon the party who had not terminated his previous marriage.

This court has recently considered the question of marital good faith. In Succession of Zinsel, 360 So.2d 587, 592 (La.App. 4th Cir. 1978), the court stated:

“‘Good faith’ within the meaning of LSA-C.C. arts. 117 and 118 has been defined as ‘an honest and reasonable belief that the marriage is valid and that no legal impediment exists thereto’. Succession of Fields, 222 La. 310, 62 So.2d 495 (1952); Succession of Pigg, 228 La. 799, 84 So.2d 196 (1955). The existence of good faith is a factual question dependent upon the circumstances of each case. Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947). Furthermore, this good faith is presumed to exist in favor of a party claiming to be a putative spouse who, free of her own impediment, enters into the marriage and the burden of proving the lack of good faith is upon the party attacking the marriage. Succession of Chavis, supra; Succession of Jene, supra, [173 So.2d 857 (La.App. 4th Cir. 1965)].”

The trial judge found that Madeleine Burke’s belief that the Dominican Republic divorce was legal was honest and reasonable. He was in a position to rule on the credibility of the witness. Furthermore, “if there is any doubt as to the good faith of the parties to a second marriage, it is to be resolved in favor of good faith.” Succession of Primus, 131 So.2d 319, 321 (La.App. 1st Cir. 1961).

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

AFFIRMED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I concur in the result.

      . Art. 117. The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith. Art. 118. If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.