author: BOUTALL, Judge.

text:
    Robert M. DUPAS, Jr. v. CITY OF NEW ORLEANS, Travelers Insurance Company and William O. Brown.
    No. 8060.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.
    Gerald P. Aurillo, Metairie, for Robert M. Dupas, Jr., plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre and James L. Selman, II, New Orleans, for Travelers Ins. Co. and co-counsel for City of New Orleans and William 0. Brown.
    Gerald A. Stewart, Asst. City Atty., co-counsel for City of New Orleans and William 0. Brown, defendants-appellees.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Plaintiff, Robert M. Dupas, Jr., instituted suit seeking damages suffered by him when struck by an automobile owned by the City of New Orleans and operated by New Orleans Police Officer William 0. Brown. Plaintiff sued the City of New Orleans, Brown, and Travelers Insurance Company, the liability insurer. The trial court found no liability and dismissed plaintiff’s suit and we affirmed. Dupas v. City of New Orleans, 346 So.2d 322 (La.App. 4th Cir. 1977). The Supreme Court of Louisiana reversed the dismissal of plaintiff’s demands and. remanded the case to us in order to fix the damages to which plaintiff is entitled. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978).

The facts surrounding the accident are stated and discussed in those previous decisions. Suffice it to say that on October 15, 1973, Dupas, a pedestrian, was struck by the police vehicle and thrown on the hood of the car. When the car stopped, Dupas rolled off of the hood onto the concrete pavement. As a result of this collision, Dupas suffered severe head injuries and it was noted that he was unconscious and bleeding from his ears and mouth.

Dupas was taken to Charity Hospital in a police emergency vehicle and was immediately examined by doctors there who determined that he was suffering a closed head injury with considerable brain damage and needed immediate operation. Dr. David G. Kline, a neurosurgeon, carried out a partial lobectomy of the left temporal lobe of the brain, removing the most swollen and contused portion of the brain to allow room in the cranial cavity for the remainder of the brain. Dr. Kline estimated that he removed a portion of the brain approximately the size of his fist and that it constituted approximately 8 to 10% of the brain overall. Dr. Kline noted that the brain injury was not confined to that portion that he removed, but that there was overall damage to the brain, which was the main cause of the overall lasting effects suffered by Du-pas.

The operation was successful, and Dupas remained in a coma for the next several days in critical condition. Under Dr. Kline’s treatment, he regained consciousness, and it was determined that he suffered right-sided hemiplegia or paralysis, and that he had a significant degree of aphasia, a speech impairment. Under continued care, plaintiff began a rather remarkable recovery, reducing his right-sided hemiplegia to right-sided hemiparesis and showed continued improvement in his ability to speak.

On November 6, 1973 Dupas was transferred from Charity Hospital to Hotel Dieu for treatment and remained there until December 16,1973. While there he was treated mainly by Dr. Patricia Cook, a neurologist whose diagnosis was the same as Dr. Kline’s and noted that Dupas was suffering from severe brain injuries, aphasia and right hemiparesis. Plaintiff’s physical therapy was increased, and he continued to improve, gradually reducing the right-sided weakness and arkwardness and improving in spe'ech.

From Hotel Dieu, Dupas was transferred to the L.S.U. School of Medicine Rehabilitative Center where he remained an inpatient for three months and continued improvement. He was then discharged as an inpatient and treated at the Center as an outpatient for five months subsequent.

In October, 1974, Dupas was referred to Dr. Raeburn C. Llewellyn, a neurosurgeon, for evaluation and further treatment. He found that Dupas had an awkward gait, which affected his balance, spasticity in the lower limbs, some reduction of dexterity in the right arm and fingers, and that he exhibited a flattened personality, showing lack of interest in his surroundings and no inclination to inaugurate conversation or continue with one. His diagnosis was that Dupas was suffering an organic brain syndrome based on severe brain damage as a result of the trauma. Dr. Llewellyn last saw plaintiff on March 18, 1976. On this occasion he found some slight improvement, but basically his condition remained the same with the exception that he noted some effect on the lower facial muscles of Dupas on the right side.

In the interim Dupas attended Dr. Max E. Johnson, a neurologist/psychiatrist for evaluation and treatment. Dr. Johnson also found that Dupas’ speech was slurred and he had some trouble articulating. He was disoriented timewise, walked slowly and stiffly with his right leg and exhibited slow, awkward movements with his right arm. He too diagnosed that Dupas was suffering from a post-traumatic cerebral brain syndrome with expressive and sym-patic aphasia, moderately severe intellectual and memory impairment, and personality changes. In connection with his treatment by his doctors during this period, Dupas was examined and tested by several psychologists and speech therapists, and beginning on December 3,1975 undertook speech therapy at New Orleans Speech and Hearing Center.

In summary, the medical history of plaintiff is consistent from doctor to doctor and there is basic general agreement amongst them as to the cause of Dupas’ injuries and the residuals he suffered. Plaintiff continues to have the right-sided weakness and awkwardness and the impairment in his speech and memory, together with a marked personality change. The medical evidence is that he is incapacitated from work except under sheltered conditions with close supervision and that the only type of job he could possibly hold would be with some type of rehabilitative program. There is only a slight chance of improvement in his condition and that mainly in the area of his speech impairment. We conclude that he is presently disabled and will be permanently disabled for the rest of his life.

The problem that concerns us here is the fixing of damages for the injuries received and the resulting disability. In Louisiana damages are compensatory in nature and this case presents problems not ordinarily found in damage suits. Dupas’ lifestyle prior to the injury was not that of the so-called “ordinary man” that courts usually use as a standard for a comparison in assessing damages.

The evidence shows that prior to the accident, Dupas was able to work, and that after the accident he is not able to work and produce income: At the time of the accident Dupas was unemployed, but had been employed by Avondale Shipyards, Inc., prior to the accident from June 26, 1973 through August 7, 1973 as an electrician’s helper at the rate of $3.35 per hour. Plaintiff asks us to use this most recent employment as a basis for computing lost wages. He introduced evidence to show that at this rate a normal work year would produce a total income of $8,929.96 per year. He would thus have lost from the date of the accident, October 15, 1973 to January 1, 1976, wages to the extent of $19,748.95. His age was 27 at the time of the accident and his work life expectancy would have been 35.1 years to age 62.1. His life expectancy was computed at 42.9 years to age 69.9. Using various formulae involving future increase in productivity, inflation rate and discount rate, his loss of future income would range from a low of $142,009.70 to a maximum of $377,942.52. However, we cannot agree with any of the proposed amounts.

In computing damages in this case we find it necessary to rely upon the prior life history of Dupas because we believe it demonstrates a more accurate picture of his actual income loss. His work record apparently began with Avondale from April 12, 1962 to January 29, 1963 when he was discharged for having been absent from work. This was to form a typical pattern of his work history and for the next ten years prior to the accident he worked for numerous employers for a short period of time before leaving for one reason or another. His work history can perhaps be best summarized by his tax returns which were introduced into evidence and show that in 1966 he earned $1,085.16 at four different places of employment; that in 1967 he earned $1,335.95 at three different places of employment; that in 1968 he earned $1,939.78 at one place of employment; that in 1969 he earned $2,234.36 at one place of employment; that in 1972 he earned $1,071.25 at two different places of employment; that in 1973 during the nine months prior to the accident, he earned $3,518.03 at three different places of employment. The evidence further discloses that during the earlier portion of that time, he was addicted to drugs and supported himself by theft and burglary in between the short periods of gainful employment. He was convicted of a felony and imprisoned at the Louisiana State Penitentiary. After his release, he continued this lifestyle, and was committed to the Louisiana State Hospital at Mande-ville for psychiatric treatment, for a manic-depressive type of schizophrenia. At the time he was in Mandeville, a detainer was placed upon him by authorities in Jefferson Parish for possession of stolen property. It should be noted that his commitment to Mandeville was preceded by an episode wherein he threatened to kill himself, his wife and children, and pistol whipped his wife.

Whether his prior problems were due to drug addiction, or whether his drug addiction was merely a symptom of other deeper psychological problems, we do not know. Suffice it to say that his lifestyle was such that he only worked intermittently at best. We note, for example, that in September, 1970, he was hospitalized at Charity Hospital for viral (serum) hepatitis which he apparently contracted from an unsterile syringe used for a Heroin injection, causing his incapacity for some time. Nevertheless, in his favor we must state that the evidence indicates an attempt on his part to rehabilitate himself in the year prior to the accident, which was partially successful. Coupled with his work history, we further consider that Dupas, by education and training, could only perform general labor or semiskilled labor. While it is possible that by diligent application, he could have increased his skills, his life history does not indicate the probability of that occurring.

Considering these factors enumerated above, we cannot fix Dupas’ loss of wages with preciseness. Based upon his most recent work experience prior to the accident, perhaps his most favorable year, we can only conclude that he would produce only one half of the income per year that he was capable of producing, and instead of using his yearly estimated full time income from Avondale of $8,929.96 per year, we would fix his loss of income at $4,464.98 annually. Accordingly, we would award him lost wages for the period October 15, 1973 to January 1, 1976 in the amount of $9,874.48. In fixing loss from future wages, we accept his work-life expectancy to age 62.1 and consider his income would increase by 3% per year with a discount factor of 5% per year, and reach a total of $104,249.17.

We next approach the measure of general damages that should be awarded to Dupas as compensation for the injuries he suffered. We have already discussed his medical history caused by the severe brain injuries he received, resulting in an organic brain syndrome, aphasia and right hemipar-esis, demonstrating awkwardness of gait and use of the right side, lack of dexterity, lack of interest in his surroundings and a change in his activity pattern from an active person to a rather withdrawn, disinterested and retiring individual of low normal intelligence. We have also mentioned above his criminal and anti-social behavior. While .it might be said from some abstract point of view, that the change in Dupas’ lifestyle is an improvement insofar as society in general is concerned, nevertheless we note that his disabilities are such that he will be handicapped throughout the rest of his life and that he will need the care of someone watching over him in general. We are not disposed to award him any amount for his alleged loss of cohabitation and companionship of his wife, because the evidence shows that his previous lifestyle was such that he enjoyed no settled family life. We also note that the nature of his injuries is such that he suffered very little pain in the initial stages of his 'treatment, and he suffers none thereafter. We do consider that his residual disabilities will handicap him throughout his life span. We consider the sum of $50,000 to be adequate compensation.

In setting his special damages, we would award the following:

Hospital expenses including $2,879.65 for Charity Hospital, a total of $5,587.95; expenses of physicians and surgeons, $875.00; rehabilitation expenses, $585.00. Additionally we would note that the evidence indicates that he should continue his therapy consisting of three sessions a week at $15.00 each, in the amount of $2,340.00.

In this case there was testimony from a number of expert witnesses. We award the sum of $150.00 each for Dr. David G. Kline, Dr. Max E. Johnson, Dr. Patricia S. Cook, Dr. Robert A. McFarland and Dr. Raeburn C. Llewellyn. We award $75.00 each to Dr. Olin K. Dart, Dr. Jack Rosen, Dr. John Kullen, and Dr. John W. Chisholm. These amounts are taxed as costs. Finally we note that the liability of Travelers Insurance Company was stipulated to be the amount of its policy, $25,000.

For the reasons above assigned, IT IS ORDERED, ADJUDGED and DECREED that there is judgment herein in favor of Robert M. Dupas, Jr. and against the defendants, William O. Brown, City of New Orleans and Travelers Insurance Company, in solido, in the amount of $25,000 and that there be further judgment against William O. Brown and the City of New Orleans in solido in the amount of $148,511.60, all amounts with legal interest from date of judicial demand until paid. The expert fees are taxable as costs, and all costs are assessed against the above named defendants, including the City of New Orleans to the extent provided by law.

Damages fixed in response to remand.

      . This figure represents 'A of his estimated income and is consistent with his partial earnings for the year reflected in his 1973 income tax return.


source: Caselaw Access Project

author:
GARSAUD, Judge.
      BOUTALL, Judge,

license: Public Domain

text:
    BARNETT ENTERPRISES, INC. v. Thomas J. WARD and Floyd A. Sinclair.
    No. 8813.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearings Denied Sept. 15, 1978.
    Writ Refused Oct. 26, 1978.

      Beard, Blue, Schmitt, Mathes, Koch & Williams, A. J. Schmitt, Jr., New Orleans, for plaintiff-appellant.
    Edwards, Porteous & Lee, G. Thomas Porteous, Jr., Gretna, for defendants-appel-lees.
    Before REDMANN, GULOTTA, BOU-TALL, SCHOTT and GARSAUD, JJ.
   GARSAUD, Judge.

By written agreement, Barnett Enterprises, Inc. agreed to buy and Thomas J. Ward and Floyd A. Sinclair agreed to sell two lots of ground in Jefferson Parish. Barnett sued for specific performance and was met by defendants’ motion for summary judgment, which contended that the agreement had expired by its own terms for lack of attempted performance by all parties. Judgment was rendered granting defendants’ motion for summary judgment and dismissing plaintiff’s suit. Plaintiff appealed.

The pertinent portions of the agreement are as follows:

“Act of sale at expense of purchaser to be passed before purchaser’s Notary, on or prior to Sept. 30, 1976. In the event bona fide curative work in connection with title is required, the parties herewith agree to and do extend the time for passing of act of sale by sixty days.
‡ * jfc ¡fc s}s *
“The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof, and reserving unto agent the right to recover commission.
“In the event the seller fails to comply with this agreement for any reason, within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller; or the purchaser may demand specific performance, at his option.
“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit ipso facto forfeited, without formality beyond tender of title to purchaser; or the seller may demand specific performance.”

Since we are considering a summary judgment, the basic issue is whether the contract became null on the basis of uncontested material facts relating to these provisions. The uncontested facts are that pri- or to the proposed sale date of September 30, the purchaser’s notary was preparing for the passage of the act of sale and had ordered mortgage and conveyance certificates upon the property. Upon receipt of these certificates from the clerk of court, initialed September 17, the notary discovered, in addition to an anticipated mortgage and lease, an unexpected inscription of another mortgage on one certificate (making a total mortgage debt greater than the purchase price) and a lease on the other certificate. The proposed sale was not set and neither party took any action to place the other in default. Instead, it is asserted by appellant, its attorney notified the other parties and the agent, by telephone on or before September 29th, that it was necessary to cancel these inscriptions before passage of the act, requesting that this be done as soon as possible. These telephone calls, and any other oral notification, are denied, however, and are in contest.

The sole basis of defendants’ motion for summary judgment was that, irrespective of whether any curative work was necessary, and irrespective of whether defendants were verbally notified of any necessary work, defendants were not notified in writing and therefore the sixty-day-extension provision was never effectively invoked by plaintiff. As the trial judge was of the opinion that a written notice extending time was required, the contested fact of verbal notice was immaterial. It is stipulated that there was no written notification prior to September 30th. Several days later, by letter dated October 4 and mailed with postmark of October 5, the purchaser’s attorney did make written notification and request for clearing of title. By letter written October 5 and postmarked October 5, the sellers notified the agent that they considered the agreement null and void in accordance with its terms and authorized him to return the purchaser’s deposit.

The primary dispute between the parties is the interpretation of the provision for extension of time for passing the act of sale in the event bona fide curative work is required. The argument is whether the language of the contract requires written notice prior to the original expiration date in order for the sixty-day extension to be operative, or whether the language, given the proper circumstances, is self-operative with no notice being required to extend the time for the closing of the act of sale. The language in question is as follows:

“In the event bona fide curative work in connection with title is required, the parties herewith agree to and do extend the time for passing of act of sale by sixty days.” [Emphasis added.]

While we agree that an extension of a contract for purchase of immovables requires a written agreement where no extension of time is provided for in the contract, or where the extension period, by its terms, has already expired, it is nonetheless our view that the clause in question in and of itself extends the time with nothing more than the need for curative work. By the language “the parties herewith agree to and do extend,” etc., the parties have agreed beforehand, in writing, to extend the time for closing if bona fide curative work need be done. This is the plain meaning of those words. Such work presumably was required here (perhaps, an act of correction of property description in the extra lease or mortgage). Further, there is no modification or change in the original terms of the agreement which would require a writing, but merely an implementation of a provision already made part of the agreement. Thus, no notice, written or otherwise, is needed to give effect to the provision and to extend the time.

The defendants-appellees rely heavily on the case of Wells v. Spears, 255 So.2d 215 (La.App. 1st Cir. 1971). We do not believe that case is applicable, as there the trial court found that, before any notice of title defect was given to the seller, even the extension period had elapsed (at least the purchaser did not prove the contrary), thus terminating the agreement. Here, all parties agree that notice of title defect was given within the extension period.

We believe, therefore, that it was error for the trial court to grant a summary judgment, as mover was not entitled to judgment as a matter of law. As agreed between the parties, this contract was automatically extended for sixty days (assuming the necessity for curative work), and the result of that extension in terms of plaintiff’s demand for specific performance must be resolved by a trial on the merits. According, the decision of the trial court is reversed, and the matter is remanded for a trial on the merits consistent with this opinion.

REVERSED AND REMANDED.

BOUTALL, Judge,

dissenting.

The basic issue is the interpretation of the quoted provisions for extension of time for passing the act of sale in the event bona fide curative work is required. A similar provision was considered in the case of Wells v. Spears, 255 So.2d 215 (La.App. 1st Cir. 1971) and it was determined that because there was no notification of title defects to the seller prior to the time for passage of the act of sale, the agreement became null and void. In that case the court stated that written notification would be required, however, I do not consider that as controlling here because of the difference in the factual situation. Nevertheless, I find it persuasive in view of our decisions in the cases of Bagby v. Clark, 327 So.2d 633 (La.App. 4th Cir. 1976) and Alley v. New Homes Promotion, Inc., 247 So.2d 218 (La.App. 4th Cir. 1971.)

Considering the principles announced in these cases, and in the cases cited and discussed therein, I have no difficulty in saying that there was no putting in default of one party by the other prior to September 30 under the terms of the contract or under the provisions of Civil Code Article 1911. Accordingly the contract became null and void unless extended by written notice. But it is contended before us that the contract is automatically extended or that oral notification will suffice to activate the extension clause under our contract.

In this regard I refer to the other quoted provisions of the agreement and point out that they provide that the sellers “inability to deliver such title within the time stipulated herein shall render this contract null and void” and that in such a case the only result is return of the deposit and recovery of agent’s commission. However if the seller fails to comply with the agreement “for any other reason” then purchaser can demand double his deposit as penalty or specific performance. Thus in the case before us an inability to perform may be differentiated from a refusal to perform, invoking one or the other result specified. For this reason I would accord the required notice in this case the same formality required in contracts of sale of real estate generally, that it be in writing. If we say that a simple oral notification can serve as the basis for the purchaser’s right of deposit return changing into a right of specific performance we run contrary to the underlying principle in Alley v. New Homes Promotion, Inc., supra, and promote the swearing contest at trial that previous courts so studiously have avoided.

I conclude that under the terms of this contract as quoted above, a written notification was required to be made to the seller prior to the last day for passage of the act of sale, September 30, 1976, in order to activate the 60 day extension period for title curative work. Since no written notice was given, the defendants were entitled to judgment as a matter of law, and the contested oral notification is not a material fact that would prohibit summary judgment. I would affirm the judgment.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    Gwen Delaneuville, wife of/and Gene DELANEUVILLE v. Dr. Sidney BULLARD, Dr. D. Thomas O’Quinn, Dr. Robert Sharp, Dr. W. K. Gauthier and Metairie Hospital.
    No. 9147.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      Daniel E. Becnel, Jr., Robert R. Fau-cheux, Jr., C. William Bradley, Jr. and Barry J. Landry, Reserve, for plaintiffs-appellants.
    John J. Weigel, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Dr. W. Kohlmann Gauthier, defendant-appellee.
    H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for Dr. Sidney Bullard, and Metairie Hospital, defendants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This appeal involves a claim for damages by plaintiff Gwen Delaneuville against Dr. Sidney Bullard, Dr. William K. Gauthier and Metairie Hospital for malpractice, alleging their negligence in failure to properly inform plaintiff and in performance of improper surgical procedures which resulted in the necessity of further surgical procedures to correct, and which caused considerable pain and suffering. The jury rendered verdict in favor of defendants, dismissing plaintiff’s suit, and she appeals.

Mrs. Delaneuville had her uncle, Dr. Sidney Bullard, as her family physician for many years, and he had delivered three children for her, the first normally and the later two by Caesarian section. It was routinely discovered on a Pap smear test that she faced the possibility of cancer, and after consultation with Dr. Bullard it was decided that he would perform a hysterectomy. It is this operation which forms the basis of most of the claims herein.

On October 9, 1973 at Metairie Hospital, Dr. Bullard, assisted by Dr. D. Thomas O’Quinn, performed a hysterectomy in which he removed the uterus, tubes and ovaries. The operation was apparently successful and plaintiff was discharged from the hospital. Two weeks later, plaintiff noticed a passage of urine vaginally and again consulted Dr. Bullard. His subsequent examinations failed to discover the cause, and he referred her to Dr. Robert Sharp, a specialist in urology. Dr. Sharp was able to identify a vesico-vaginal fistula, an abnormal passageway or hole between the bladder and the vagina, permitting urine to flow through. Dr. Bullard then rehospitalized her at Metairie Hospital for corrective surgery of the fistula. On November 14, 1973, surgical repair was attempted by the team of Dr. Bullard, Dr. Sharp and Dr. William K. Gauthier. The repair was unsuccessful, and she continued to leak urine, necessitating a further operation by Dr. Fred Brumfield who successfully repaired the fistula. Plaintiff claims that the negligent performance of the first operation led to the formation of the fistula, and the negligent attempt to repair the fistula led to the third operation.

Further claims arose due to the onset of severe abdominal pain more than a year later on August 29,1975. Mrs. Delaneuville again consulted Dr. Brumfield, and following examination she was referred to a surgeon, Dr. James Dowling, to perform exploratory abdominal surgery. This surgery revealed a cyst in the pelvic area which contained ovarian tissue and a slight amount of foreign material, suggestive of cotton sutures. It is contended that this piece of ovary which caused that condition was negligently left in Mrs. Delaneuville’s body in the course of the hysterectomy operation in which both entire ovaries were to have been removed.

The first issue for consideration is whether Mrs. Delaneuville was adequately informed of the nature of the two operations by Dr. Bullard, and of the name and qualifications of the surgeons who were to perform them. There is no serious contention as to the hysterectomy operation, and this issue mainly centers around the attempted fistula repair in November, 1973.

The plaintiff contends that Dr. Bullard did not tell her who was to perform the actual surgery, and that he only informed her that the repair attempt would be made vaginally, a less serious procedure than finally resulted. She relates that she was simply given a blank form of authorization for the procedure, which she signed, trusting entirely on her faith in Dr. Bullard to do what was right. As opposed to this, Dr. Bullard testified that he had discussed the procedures involved with plaintiff, and that he informed her of the doctors who were to operate. He refers to the medical authorization form filed in evidence, completely filled out, with his name stating that surgery will be under his direction and granting him and his associates or assistants authority to perform such further procedures as may be necessary. Additionally he refers to the hospital notes which contain a statement by him as to the surgeons involved and the procedures to be employed, all having been explained to the patient.

This issue is obviously concerned with the credibility of the witnesses, and it is apparent that the jury must have resolved that issue in favor of the defendant. There is sufficient evidence to support such a finding, and based upon the rule of proper allocation of trial and appellate functions announced in Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), we cannot disturb such a finding absent manifest error.

However, the main thrust of plaintiff’s suit is the negligent performance of the hysterectomy operation and the attempted fistula repair which followed. Expert medical testimony was produced to show that medical malpractice or negligence occurred during the course of a hysterectomy operation which resulted in a damaged bladder and the formation of the vesico-vaginal fistula, showed rough handling of the internal organs such that massive adhe-sions formed making further surgical procedures difficult or impossible, and left ovarian tissue where it was supposed to have been entirely removed. There is abundant medical testimony in this case disputing whether any one particular of these three items is caused by negligence, by known and accepted risks, or by other causes. Plaintiff’s expert himself recites the possibility of non-negligent conditions which might cause any one of the three, but asserts that the presence of all three can lead only to one conclusion, that of incompetent and negligent performance. There is no dispute over the fact that further operations were necessary to repair the fistula, and that an operation was necessary to relieve plaintiff’s distress caused by the ovarian tissue. The dispute centers around the cause and origin of each of these conditions.

The general rule is that it is the duty of a physician to exercise a degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same community or locality and to use reasonable care and diligence along with his best judgment in the application of his skill to the case. Meyer v. St. Paul Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (La.1954); Uter v. Bone & Joint Clinic, 249 La. 851, 192 So.2d 100 (La.1966). The physician is ordinarily not a guarantor of a perfect result each time, and it is recognized that despite the best skill and judgment of competent practitioners, unfortunate results may occur.

In considering the development of this lady’s condition after the hysterectomy operation, we note that at trial time there was no way of positively determining the cause of the fistula. The evidence preponderates that it occurred in this case as a result of the hysterectomy, but the precise cause cannot be pinpointed. However, all of the surgeons who testified stated that the development of a fistula does not indicate negligent performance, per se. There is some difference of opinion amongst the doctors as to what may have caused the fistula in this case, but there seems to be a general consensus that with a patient of this type, who had two prior surgeries, Caesarian sections, prior to the hysterectomy, that considerable adhesions in the area would develop, making the handling of the bladder more difficult, and that such handling could damage blood vessels causing degenerative changes in the tissues and resulting in a fistula. Dr. Bullard testified in detail as to his procedures during the surgery and gives no indication of negligent handling of the bladder or of causing a suture -wound. Under this state of the evidence, it is possible to reach a different conclusion from the jury which found no negligence, but the jury concluded there was no negligence. There is sufficient evidence to support that conclusion, and we find no manifest error.

Continuing with the fistula, it is noted that the operation to repair was not a success. There is a dispute as to whether this operation was prematurely performed, thus preventing good results. The evidence indicates that it is a matter of judgment amongst physicians as to whether a fistula repair should be attempted shortly following the development, or whether a period of six or more months should be allowed to pass before attempting repair. The basic purpose for this delay is to permit the tissue in the area to become healthy and free from any infection or swelling in order to achieve maximum success. It is recognized that for some reason or other, not due to negligence, successful repairs are not always achieved. As we appreciate the testimony, the main insurance of success is the condition of the tissues surrounding the fistula, and in this case the testimony is, by those who viewed it, that the tissue was not swollen, irritated, or infected, but was suitable for operation. At the same time, it should be noted that although this repair was to be primarily attempted by a vaginal procedure; because of complications which arose it had to be performed by entering the abdominal area. The actual repair was made by Dr. Sharp, whose specialty of urology encompasses the bladder, and he satisfied himself that the repair was properly made. There is no evidence whatever of any negligence on the part of Dr. Sharp, and plaintiff’s expert could state none. Indeed, at the conclusion of trial, plaintiff voluntarily dismissed suit against Dr. Sharp.

Further contentions were raised that Doctors Bullard and Gauthier failed to order an enema of the patient for this operation and failed to order a cross-matching of blood in anticipation of the surgery which did finally occur. The medical testimony demonstrates that this is a matter of judgment of the physician and not required under the standards of proper care in the community. Most important, however, is that neither of these items played any part in the performance or completion of the operation and are irrelevant. Considering all of the evidence concerning the attempted fistula repair, we cannot say that the jury was manifestly erroneous in its conclusions.

The last issue is the fact that a small piece of ovary was found in the patient’s body, and that that caused the condition which brought on the operation by Dr. Dowling in September of 1975. The pathologist’s reports submitted upon the tissue removed by Dr. Dowling show that it was live ovarian tissue. This of course raises the inference that in the hysterectomy operation, Dr. Bullard did not remove the entire ovary as he intended, and as stated in the pathology report from that operation. Of significance here is the location of the specimen removed. Dr. Dowling testified that in his operation he found a small cyst near the true pelvic brim and excised the ovarian tissue which was imbedded there. The preponderance of medical evidence is that this is not the normal place where ovarian tissue would be found in the patient’s body, and that this tissue was probably ectopic, or aberrant tissue, that is, tissue which is sometimes found in the body at a place removed from its normal site. Accordingly, we conclude that the jury did not manifestly err in its determination that there was no showing of negligence by the presence of this tissue.

In summation, our examination of the record shows sufficient evidence, to support the findings of the jury, and we find no manifest error in its verdict. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissents.

I disagree with the dismissal of the claim for damages resulting from malpractice in the surgical repair of the fistula.

The crucial issue on this point is causation. The record leaves no doubt that the professional conduct fell below acceptable standards; the question is whether it is more probable than not that successful repair of the fistula would have been accomplished in one simple surgical procedure by performance according to acceptable standards.

On November 12, 1973 Dr. Sharp (the urologist) located the fistula vaginally and by cystoscope in an office examination. He reported this finding by telephone to Dr. Bullard (the family practitioner) and referred the patient back to him. Location of the fistula was the only purpose of Dr. Sharp’s examination, and he had nothing to do with the decision to perform surgery.

The same day Dr. Bullard decided on surgery to repair the fistula, a procedure that was admittedly beyond Dr. Bullard’s competence. Dr. Gauthier (the surgeon), who had never heard of plaintiff until after she was admitted to the hospital on November 13, was called in to perform the surgery. Dr. Gauthier did not examine plaintiff or attempt to identify the fistula. He did not attempt to determine (or to find out if someone else had determined) that the tissue in the fistula area was ready for repair only 36 days after the hysterectomy and three weeks after the fistula had developed. He did, however, call in Dr. Sharp to assist, but it was contemplated that Dr. Sharp would only cystoscope the patient and pass a catheter into the vagina. Although Dr. Gauthier had not performed this operation in 35 years, he proceeded to operate the next morning without any further preparation or examination.

Dr. Gauthier attempted to locate the fistula vaginally, but could not do so. He had Dr. Sharp locate the fistula with a cysto-scope and attempt to insert a catheter from the bladder into the vagina, but that attempt also was unsuccessful. Dr. Gauthier then decided to open the abdomen (although he had not ordered the preparation normally done when abdominal surgery is anticipated) and to attempt the repair from above. However, when problems with ad-hesions caused by prior surgery and with bleeding made it difficult to separate the bladder from the vagina, Dr. Sharp agreed to open the bladder from the dome and repair the fistula transversically. The repair by Dr. Sharp failed to hold.

In December, 1973 plaintiff was referred to Dr. Brumfield (the gynecologist), who advised a second surgery, after a period of treatment necessary to restore the tissue in the area to a condition appropriate for achieving a successful repair. He treated her for several months and then repaired the fistula vaginally on April 26, 1974 with no problems.

Failure to achieve desired medical results is not in itself indicative of malpractice. However, failure to insure that the patient is in a condition most suitable for the probability of satisfactory results before proceeding with elective surgery is malpractice. The overall circumstances of this case establish it is more probable than not that proper and adequate preparation and examination prior to the hastily scheduled surgery would have prevented the need for the secondary abdominal approach in the first surgery and for any second surgery.

I would hold Drs. Gauthier and Bullard liable for plaintiff’s damages resulting therefrom.

      . There is a problem of proof as to the condition of the tissue in the fistula area, the only direct evidence being available to the defendants. However, the pre-operative preparation as a whole was so poor as to cast doubt on all preparatory procedures and to tip the preponderance in favor of the conclusion that bad results were caused by bad preparation.


text:
    Carol Taylor SCHERER v. Douglas SCHERER.
    No. 9157.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.
    Cooper & Hingle by John T. Cooper, New Orleans, for Carol Taylor Scherer; plaintiff-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Max Nathan, Jr., and Peter S. Title, New Orleans, for Douglas Scherer, defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

This is an appeal by Mrs. Carol Taylor Scherer, former wife of Douglas Scherer from a judgment terminating post-divorce alimony payments of $600.00 per month. Her main contention is that there was no showing of a material and substantial change of circumstances of the parties in order to warrant the termination.

This litigation began with a separation suit by Mrs. Scherer during which she was awarded $1,800 per month as alimony pen-dente lite. After considerable litigation between the parties, divorce was granted on April 22, 1975, with Mrs. Scherer reserving her right to demand permanent alimony. In July 1975 she filed a motion to set permanent alimony at that rate, alleging her husband has refused to pay since the divorce decree. A consent judgment was rendered on August 21, 1975 which, amongst other things, ordered Douglas Scherer to pay $600.00 per month beginning August 8, 1975 “until Carol Taylor Scherer remarries or departs this life”. On January 28, 1977, Mr. Scherer filed a rule to show cause why the alimony should not be terminated or in the alternative reduced. A judgment of termination resulted on June 30,1977, “terminating, this day and forever thereafter, the post litem alimony”. This appeal followed.

The trial judge gave no reasons for judgment, and we cannot tell with certainty whether his judgment was based upon a change in material circumstances, whether he concluded that Mrs. Scherer was not in necessitous circumstances, or both. We conclude that there has been no material and substantial change of circumstances such as to warrant revocation, and we reverse.

In the case of Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) the court held that a consent alimony provision constitutes an award previously fixed and determined, and is not subject to adjustment or modification absent proof of a substantial change in the circumstances of the parties from the date of the rendition of the alimony judgment to the time of the trial of the rule demanding an adjustment or modification. Although the record in this case does show a change in circumstances, they are not substantial enough to support a decree of termination. The changes here are an increase in the former husband’s income from $30,000 to $60,000 per year, his remarriage and a change in Mrs. Scherer’s tax liability for income taxes from previous years. The salary increase and remarriage are evident; the tax liability requires further explanation.

The Scherers were entitled to a refund from their 1972 Income Taxes and in 1973 Mrs. Scherer received 2 checks payable to both parties, one in the amount of $9,232.69 from the Federal Government and one for $1,154.54 from the State of Louisiana. The parties were negotiating the cashing of these checks. In 1974 the Federal Government issued a Federal tax lien against Mrs. Scherer in the amount of $13,719.24 for unpaid 1973 taxes. During this time Mr. Scherer was paying alimony pendente lite of $1,800 per month with other benefits, and this was adjusted to omit the other benefits after hearing on May 24, 1974. The consent alimony judgment of $600.00 was rendered on August 21, 1975, and on January 19, 1976, Mrs. Scherer signed an acceptance of overassessment and the tax lien was reduced to $3,808.00. The handling of the tax refund checks and the subsequent tax lien assessment apparently caused the parties considerable difficulties and at trial time, with the aid of the court, the parties finally determined that the refund would be split 50/50, and that Mrs. Scherer’s half would be used to pay her tax assessment and she would keep the surplus. The trial took place over a period of months, and it was discovered that the Federal Government had finally decided that no taxes were due from Mrs. Scherer and cancelled the assessment. Based on this, Mr. Scherer argued that there was in excess of $5,000 coming to Mrs. Scherer which would provide her income for at least a year. We can only speculate whether the trial judge accepted this as additional means of Mrs. Scherer and a change in circumstances so as to terminate alimony. The wording of the judgment however does not reflect that he considered such a temporary measure. In any event, the case was kept open to introduce additional evidence, and we are finally told in brief that the refund checks were not so apportioned. Mr. Scherer gave to Mrs. Scherer one half of the state check, but the United States check was deposited in a joint account of both parties, apparently it being considered that it was a community asset and subject to division between the parties only when the community property partition between them is to be made at some future time. Under these circumstances, it is difficult to perceive how a combination of the refund checks and tax assessments can be considered as “means” of Mrs. Scherer available to her for her maintenance and support.

In addition to that matter, Mr. Scherer points out that Mrs. Scherer had received an increase in salary from her employment as an interior decorator with Maison Blanche. Mrs. Scherer insists that she began employment with Maison Blanche in June, 1975, shortly prior to the alimony judgment, and that she is still employed at the same rate. We are not told the precise date her employment began. As shown by her 1975 Federal Tax Return she earned $2,485.00 from Maison Blanche for the balance of that year. Her 1976 return shows earnings of $5,398.00 or $450.00 per month. Mr. Scherer would divide her 1975 earnings by 7 months showing a monthly salary of $355.00 or an increase at the present of $95.00 per month. Mrs. Scherer contends that there was no increase, and it is apparent that a six month division into the 1975 earnings would approximate $414.00 per month, a difference of $36.00 per month. Whether we consider the difference to be $36.00 or $95.00, this difference cannot serve to terminate $600.00 per month completely.

Mr. Scherer also introduced into evidence proof showing that Mrs. Scherer owned considerable personal property, such as furs, jewelry, silverware, antiques and art objects which he contends total some $48,000 in value. The record shows that substantially all of these articles were owned by Mrs. Scherer prior to the previous judgment of alimony, and consist of gifts to her by her husband, her father and members of the family, and other types of acquisition. Mrs. Scherer contends that these items have less than half of that value, but we are not concerned in fixing the value with preciseness, inasmuch as there has been no change in her condition, she having owned them previously.

Considering all of these items, we are of the opinion that there has been no showing of a material change such as to support termination of alimony under the rationale of Bernhardt v. Bernhardt, supra. Nevertheless, we have examined into these items in an effort to determine whether, in total, they may be such as to demonstrate non-entitlement to support from Mr. Scherer on the theory that perhaps he was not aware of the true value of these items. In this respect we have referred to the cases of Bazzell v. Bazzell, 289 So.2d 202 (La.App. 1st Cir. 1973); Laiche v. Laiche, 289 So.2d 277 (La.App. 1st Cir. 1974); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir. 1975); O’Brien v. O’Brien, 308 So.2d 333 (La.App. 1st Cir. 1975); Newman v. Newman, 293 So.2d 565 (La.App. 3rd Cir. 1974) and Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir. 1976). Comparing the circumstances in those cases with the circumstances in these cases, and considering the principles followed therein, we are of the opinion that the trial judge erred 'in terminating the alimony, and we order reinstatement of the alimony.

Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that the judgment appealed from is reversed and there is now judgment in favor of Mrs. Carol Taylor Scherer and against Douglas Scherer ordering the reinstatement and payment by Mr. Scherer of alimony at the rate of $600.00 per month pursuant to the alimony judgment rendered on August 21, 1975. All costs of these proceedings shall be borne by appellee.

REVERSED AND RENDERED.


author: GARSAUD, Judge. SCHOTT, Judge,

text:
    Elliott P. BOISDORE v. INTERNATIONAL CITY BANK & TRUST COMPANY.
    No. 9247.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      Levy, Smith & Gennusa, Adolph J. Levy, New Orleans, for plaintiff-appellant Elliott P. Boisdore.
    Lemle, Kelleher, Kohlmeyer & Matthews, Earl S. Eiehin, Jr., New Orleans, for defendant-appellee Federal Deposit Ins. Corp., Receiver for International City Bank & Trust Co.
    Myers N. Fisher, Asst. Gen. Counsel, Michael B. Burgee, Federal Deposit Ins. Corp., Washington, D. C., of counsel.
    Before SCHOTT, BEER and GARSAUD, JJ.
   GARSAUD, Judge.

This appeal is from the trial judge’s dismissal of plaintiff’s suit for wrongful eviction from leased premises and for illegal seizure and tortious conversion of certain movable property located on the premises. As plaintiff’s pleadings were vulnerable to exceptions of vagueness, three amendments were required to state a clear and valid cause of action. In the original petition and first two amendments, only the wrongful seizure of plaintiff’s property was asserted as a claim. It was not until the third supplemental and amending petition that the existence of a lessor-lessee relationship was claimed, that the date of the alleged wrongful seizure was first mentioned, and the allegation made that changing the locks on the premises was done without any judicial process or notice of eviction. Further, it should be noted that in all the petitions the only claims for damages are (1) for loss of income from the date of the changing of the locks, and (2) for mental anguish and embarrassment resulting therefrom. No claim is made for the return of the items wrongfully seized (or for their value), or for the alleged wrongful eviction.

Briefly stated, the facts are that plaintiff Boisdore owned several pieces of property in New Orleans, including the premises located at 2123, 2123%, 2129 and 2131 Columbus Street, all of which were mortgaged to the defendant International City Bank and Trust Company (ICB). Foreclosure proceedings began on most of these properties in 1972. Those specifically related to the premises at 2123-2131 Columbus Street, which are all that are the subject of this suit, resulted in the sale of these premises at public auction to ICB in November of 1972.

Plaintiff Boisdore used these premises for the operation of a nursery school (including kindergarten and first grade). Consequently, since the foreclosure and sale took place in the middle of the school year, he had a particular interest in being allowed to stay on the premises. Apparently some of the students’ parents were concerned with the foreclosure and “For Sale” notice posted on the premises by the Civil Sheriff and had removed some of the children from the school. The evidence reflected that in response to Mr. Boisdore’s concern on this point, Mr. Remus Hebert, Senior Vice President of ICB, wrote him a letter of assurance that if the bank was the successful purchaser at the foreclosure, it would lease the premises back to him. Thus, although a letter of eviction from Mr. Ronald Newman, attorney for ICB, was sent to Mr. Boisdore in December 1972, there was apparently no intention on the part of ICB to evict him. Several lease agreements were prepared, but Mr. Boisdore never signed any of them, as he did not want to be committed to a long-term lease, which ICB felt was necessary to justify carrying such a large piece of property on their books. Although no lease was ever signed, in January of 1973 Mr. Boisdore began paying $1,600 per month to ICB, which continued through May 1973. No such payments were made during November and December of 1972. Mr. Boisdore called these payments “rent,” and claims an oral lease at that stipulated rental; however, although ICB referred to this as “rent” in various communications and memos, it apparently applied these payments to reduce the principal owed by Mr. Boisdore on the deficiency judgment. Mr. Hebert testified that the bank never intended for Mr. Boisdore to occupy the premises without a lease.

When summer 1973 arrived, Mr. Boisdore realized that it would not be economically feasible to keep the school open for the summer session and, as a result, he would not be able to pay $1,600 per month during the summer months. Consequently, in June of 1973 he wrote Mr. Newman, attorney for ICB, the following letter:

“Mr. Ronald Newman
Attorney-at-Law
International Trade Mart Bldg.
New Orleans, Louisiana
“Dear Mr. Newman:
“Because of a very light registration for our summer day camp session, it is necessary that we cancel it for the months of June, July and August.
“Unless rent payments can be suspended for these months, we would be compelled to cease operations completely, and vacate the premises.
“Kindly let me hear from you regarding this matter.
“Very truly yours,
Elliot P. Boisdore”

Mr. Newman, by letter of June 11, 1973, responded that he would set up a meeting between Mr. Boisdore and Mr. Hebert to discuss the matter. This meeting never transpired. According to Mr. Hebert’s testimony, there was never any possibility of such an arrangement, and this was known by Mr. Boisdore. In any event, no payments were made by Mr. Boisdore to ICB in June or July 1973. About the same time, on July 19, 1973, Mrs. Boisdore, through attorney Joseph Casey, wrote to Mr. Hebert proposing a $1,000 monthly rental for a term of nine months, renewable annually. Apparently, nothing came of any of this. Thus, for June and July Mr. Boisdore retained possession but made no payments.

In early August, ICB learned that there was a possibility they could sell the Columbus Street property, and thus the bank authorized James Stroughter, a real estate agent, to show the property to the prospective buyer. When it was realized that Bois-dore had the only keys to the buildings, Mr. Lewis, ICB Vice President, authorized Stroughter to have the locks changed to gain access to the buildings and to show, the property. The prospective sale did not materialize, and subsequently no use was made of the premises by Boisdore or ICB. It should be noted that the changing of the locks was not done for the purpose of evicting Mr. Boisdore or to protect the security behind the chattel mortgage, but to permit ICB access. It is clear, on the other hand, that no notice or warning of the lock change was given to Mr. Boisdore at any time.

A great deal of equipment located on the premises for the operation of the school was now unavailable to Mr. Boisdore. Some of this equipment was the security for a chattel mortgage held by ICB; however, some of it was owned outright by him. This was readily admitted by ICB officers, but nonetheless they refused to let him remove these items. All parties agree that ICB never claimed ownership of all the items and kept promising to let Mr. Boisdore remove his property. However, although Mr. Boisdore was allowed in to make an inventory with bank representatives some nine months after the locks were changed, he still was not allowed to remove anything from the premises. It was not until August 1974, one full year after the “conversion,” that he obtained his property. The obvious difficulty was that there was great similarity between those objects that belonged to Mr. Boisdore and those subject to the chattel mortgage, and ICB clearly did not want Mr. Boisdore to remove the items which belonged to it under the chattel mortgage.

The basic issues are as follows:

(1) What was the nature of the legal relationship, if any, between Mr. Boisdore and ICB stemming from the former’s possession and use of the property after the foreclosure proceedings?

(2) Presuming there is some legally cognizable relationship between the parties, what duty, if any, was owed to Mr. Bois-dore regarding the return of his property?

(3) Presuming a breach of some duty, what compensable damages, if any, were suffered by Mr. Boisdore and how are those damages to be assessed?

The initial question to be determined is the legal relationship arising as a result of Mr. Boisdore’s possession of the property subsequent to the foreclosure. The record indicates that after the foreclosure sale, Mr. Boisdore continued in the possession and use of the property, operating his school in the months of November and December 1972 without payments of any nature being made to ICB. Further, in December 1972 Mr. Boisdore received from Mr. Newman, attorney for ICB, a letter which stated,

“Please accept this as your notice to vacate the captioned properties on or before January 2, 1973. Should you fail to do so, we will request the clerk to issue a writ of possession to the sheriff for eviction pursuant to R.S. 13:4346.”

Thereafter, apparently as a result of negotiations among attorneys, Mr. Boisdore, as previously noted, made payments of $1,600 a month to ICB from January through May 1973. These payments were part of checks drawn for $2,000 ($1,600 for the school, $400 for his residence) which were designated as “rent” by Mr. Boisdore, and which were clearly referred to as “rent” in correspondence among attorneys for the parties, as well as among certain bank officers (including internal correspondence of the bank). Additionally, the record reveals that after the letter of June 1973, quoted above, was sent by Mr. Bois-dore to Mr. Newman, Mr. Boisdore ceased to make payments in June and July 1973. Finally, as also noted above, his wife offered the bank a proposal to rent the premises for a nine-month term at $1,000 a month.

We do not believe the record supports the establishment of a lessor-lessee relationship. As this Court has stated,

“Mere occupancy of a building does not of itself imply the relationship of lessor and lessee. A lease is a contract by which one party gives to the other the enjoyment of a thing at a fixed price. As in the contract of sale, there are three absolutely essential elements to a lease: the thing forming the subject matter of the contract; the price for the enjoyment of the thing; and the consent or agreement of the parties. There can be no contract of lease in the absence of a stipulation or agreement between the parties as to the amount of rent to be paid.” Groghan v. Billingsley, 313 So.2d 255, 258 (La.App. 4th Cir. 1973), writ refused, La., 318 So.2d 46, 48.

There simply never was any consent to a lease on the part of these parties, nor was there ever any agreement on the precise amount of the rent. Mr. Boisdore consistently refused to sign any formal agreement proffered by ICB. These factors all indicate that at best these parties were simply negotiating, going back and forth, offering and counteroffering proposals for an arrangement or a relationship which would culminate in a lease. During this formative period of the proposed lease, these factors did not mature into a lessor-lessee relationship under the appropriate requirements of the Codal articles. Many of these actions are simply inconsistent with any conclusion that there was a lease, written or oral, for the premises in the amount of $1,600. The fact that the payment was described as rent by the parties is not, in and of itself, sufficient to overcome the clear implications of the actions in which the individuals involved participated. Accordingly, the trial court was correct in its conclusion that there was no lease and that there was no lessor-lessee relationship between the parties.

The next consideration then is, what was the relationship between Mr. Boisdore and ICB in August of 1973, when the locks were changed and he was effectively denied entrance to and use of the premises? The appellant argues that he was an “occupant,” as defined in Code of Civil Procedure Article 4704. That article states in part, “Occupant includes . . . any person occupying immovable property by permission or accommodation of the owner . . .” The language, “by permission or accommodation of the owner,” has been interpreted by this Court to mean “there has existed between the parties a contractual relationship of some kind, expressed or implied, relative to the occupancy of the property.” Stroughter v. Shepherd, 207 So.2d 865, 867 (La.App. 4th Cir. 1968). It is our opinion that, although there was no lease agreement during the time all these proposals and counterproposals took place, many of which were inconsistent with a lessor-lessee relationship, there is nothing in the record to indicate that Mr. Boisdore did not have at least the implied permission of ICB to remain in those premises. He thus was an “occupant.” As a matter of fact, even when the locks were changed, the testimony of all the defendant’s witnesses was to the effect that the locks were changed not to evict Mr. Boisdore, but simply to permit the bank access in order to show the property to prospective buyers, as Mr. Boisdore had the only set of keys to the old locks. Appel-lee makes much of the eviction letter of December 1972 to indicate that there was no permission to occupy these premises, but the remaining actions on the part of ICB belie this fact. Further, it is apparent that the letter sent by Mr. Newman does not really indicate a change in the bank’s willingness to permit Mr. Boisdore to remain and to run his school, but rather was sent as a result of some misunderstanding subsequently rectified by negotiations among the attorneys which resulted in the beginning of the $1,600 payments in January 1973.

As an occupant, therefore, Boisdore was “constructively evicted” from the premises when the locks were changed. He was entitled then to a prior notice to vacate under Article 4702 of the Code of Civil Procedure, which notice was not given by ICB. However, plaintiff has neither claimed, asserted, nor proved any damages relative to this constructive eviction, nor does the record support any damages for this eviction per se.

However, plaintiff does assert that he has been damaged by this action on the part of ICB in that his property was “illegally seized” or “converted” by the defendant. As noted before, this claim brings us to the issue of whether, once the locks were changed, ICB owed any duty to Mr. Bois-dore as far as his personal property locked in the premises was concerned.

We believe ICB, giving due consideration to the protection of its own interest (i. e., preserving the chattel mortgage), owed a duty to Mr. Boisdore to permit him to retrieve his property within a reasonable period of time. When it became evident, as a result of the change of the locks, that Mr. Boisdore would no longer have admittance to those premises to run his school, and when he requested the return of his property, then there was a duty on ICB to organize its affairs, considering its own protection under the chattel mortgage, in such a fashion as to provide Mr. Boisdore access to the premises within a reasonable time in order to remove his property. Certainly some delay would have been reasonable; but we believe that by delaying for an entire year, ICB breached that duty, resulting in a wrongful detention or conversion of plaintiff’s property under Article 2315 of the Civil Code. “Conversion includes any act of dominion wrongfully asserted over the property of another in denial of or inconsistent with the owner’s rights therein.” Hamilton v. Travelers Indemnity Co., 248 So.2d 617, 619 (La.App. 3rd Cir. 1971). See also, Importsales, Inc. v. Lindeman, 231 La. 633, 92 So.2d 574 (1957); Marcel v. Denton, 195 So.2d 163 (La.App. 1st Cir. 1967).

Clearly, a conversion of plaintiff’s property took place, because ICB was well aware that it had some of plaintiff’s property in its control and that plaintiff was thereby deprived of their use. That it was difficult to distinguish those items under the chattel mortgage from those belonging to plaintiff is no excuse for a delay of an entire year in allowing plaintiff access to his property.

ICB contends that no conversion took place because it never denied that these things belonged to Mr. Boisdore and it never refused to return them. This argument appears very specious because in spite of the repeated promises, Mr. Boisdore was not allowed to remove his things. It would be wrong to fail to find conversion merely because ICB was agreeable and never denied Mr. Boisdore’s ownership. Their actions, or more precisely, failure to act timely, rather than their motives, control.

For this conversion, plaintiff seeks damages of $150,000 for “loss of income from the date of the illegal changing of the locks to the present and in the future,” and $100,000 for “mental anguish and embarrassment and other damages which were suffered as a result of the illegal seizure.” He does not specifically request the traditional damages for conversion, which consist of the return of the property itself, or if the property cannot be returned, the value of the property at the time of the conversion. Marcel v. Denton, supra; Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959); Lafleur v. Sylvester, 135 So.2d 91 (La.App. 3rd Cir. 1961).

With regard to the latter first, it is well-settled that under our fact-pleading,

“[s]o long as the facts constituting the claim [here, damages for conversion] are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence; the ‘theory of the case’ is abolished as a pleading requirement or restriction.”
Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848, 855 (La.1974)

As Boisdore did receive a portion of his property back, the question is whether he proved the value of the property which was converted but not returned and to which he is entitled under Cox, even though such relief is not specifically prayed. We believe Exhibit Boisdore-33, plus testimony regarding its introduction (Record, Vol. V, Part 2, page 31) sufficiently support his claim, and prove his loss in this regard. There was no contradictory evidence denying his outright ownership his subsequent loss of these items, or the valuation of them. Accordingly, he is entitled to recover $7,058.70 for these items. (This amount excludes from the list in Boisdore-33 the value of the piano, which he conceded in testimony was subject to the chattel mortgage.)

Mr. Boisdore’s specific claims for damages are not as easily resolved. His first claim is for loss of earnings as the result of the conversion. He argues that had he been permitted to remove his property in August of 1973, he could have opened his school timely at an alternate site for the 1973-74 school term and, of course, continued thereafter. Failing to do this, he has been deprived of the income he would have earned had the school been in operation.

Regarding the 1973-74 school year, it is our view that, as a result of the reasonable time accorded ICB to unscramble the co-mingled property (those items subject to the chattel mortgage and those not subject), as noted above, there simply was no way for Mr. Boisdore to obtain his property from ICB for use in a new school for August or September of 1973. At that point, an unreasonable delay had not occurred and no damages had yet resulted from the conversion.

With regard to future years, there is no evidence to show that such losses, if any, were caused by defendant’s tort. By the time of the 1974-75 school year, plaintiff was in no way deprived of his ability to operate the school because of defendant’s actions. Plaintiff had sufficient time to organize his affairs to begin the 1974-75 year without the use of the property which was the subject of the conversion. Additionally (and this analysis would apply alternatively to the 1973-74 year), there was a great deal of evidence introduced concerning the “alternate site,” its suitability and adaptability for a school. Mr. Boisdore’s accountant, Mr. Reynard Roehon, and an economist, Dr. Melville Wolf son, testified at length regarding income projections for the school and the amount of income Mr. Bois-dore lost as a result of closing the school. However, it is not clear at all that the so-called alternative site could or would have been effectively used for the school, or that the equipment actually would have sufficed to allow him to open a school next door. Additionally, the experts’ projections were all based on mere assumptions not verified by them, that enrollment would increase, tuition would increase, and a number of other variables. In view of the highly speculative and conjectural nature of these alleged damages, they should be denied. Campbell v. Lelong Trust, 327 So.2d 533 (La.App. 3rd Cir. 1976), writs refused, La., 331 So.2d 494.

This leaves the claim for mental anguish, humiliation and embarrassment. That these are proper items for recovery for tortious conversion- was most recently restated in Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La.1977), citing Grandeson v. International Harvester Credit Corp., 223 La. 504, 66 So.2d 317 (1953); Hamilton v. Travelers Indemnity Company, 248 So.2d 617 (La.App. 3rd Cir. 1971); Gullatt v. Ashland Oil & Ref. Co., 243 So.2d 820 (La.App. 2nd Cir. 1971); 48 Tul.L.Rev. 1171-1172; 51 Tul.L.Rev. 753. The appel-lee’s reliance on Meador v. Toyota of Jefferson, Inc., La., 332 So.2d 433 (1976) is wholly misplaced. That case, as specifically pointed out by Justice Calogero, is applicable to cases involving breach of contract and not, as here, to actions under Article 2315 of the Civil Code.

It is difficult to assess damages of this sort accurately because, as in awards for pain and suffering, the damages cannot be calculated with exactitude. However, the mere fact that plaintiff was wrongfully deprived of his property for a period of time necessarily means that some mental anguish and humiliation and embarrassment resulted. Bostwick v. Avis Rent-a-Car, 215 So.2d 854 (La.App. 1st Cir. 1968); Steadman v. Action Finance Corporation, 197 So.2d 424 (La.App. 2nd Cir. 1967), writ refused 250 La. 907,199 So.2d 918. It is much more difficult to arrive at the amount than to conclude that plaintiff is entitled to these damages.

The evidence establishes that Mr. Bois-dore suffered a great deal of mental anguish as a result of this loss of his property. Even if it were not properly established that he could have opened up a school next door if he had had his equipment, he certainly believed that he could have done so, which only increased his frustration and anguish as the delay grew longer and longer. In addition, aside from his school equipment, many school records were locked in the buildings, such as children’s health certificates and teachers’ teaching certificates. As a result, parents and teachers were constantly calling him because they needed these records either to enroll their children elsewhere or to teach elsewhere. These constant telephone calls, when he had no answers to give, were particularly emotionally disturbing to him.

Both plaintiff and his wife testified regarding the change in Mr. Boisdore’s personality after the school closed. Apparently the school was especially important to him because he had started it in memory of his mother, naming it after her because she had operated a nursery school for thirty or forty years. He and his wife worked very closely with the school and had an excellent relationship with each other, which deteriorated seriously after the school was closed. The Boisdores separated in August 1974 and had not reconciled at the time of trial in 1976. Friends of the Boisdores, Mr. and Mrs. Robert Francis and Mr. Joseph Laura, also testified to the devastating effects of the school’s closing on Mr. Boisdore.

Although awards for this element have been allowed, the awards granted have been particularly small. In 1968, in Bostwick v. Avis Rent-a-Car, supra, the plaintiff was awarded $250 for the wrongful conversion of his clothes over an 18-month period (his clothes were found by the court not to have any real value). The same amount was awarded in Steadman v. Action Finance Corporation, supra, for the wrongful seizure of plaintiff’s automobile. The court awarded $1,000 for mental anguish and inconvenience in the recent case of Alexander v. Qwik Change Car Center, supra.

In Lee v. Lewis, 339 So.2d 513 (La.App. 2nd Cir. 1976), the Second Circuit reduced a $750 award for humiliation, embarrassment and inconvenience to $200. The court felt that the embarrassment for the conversion of plaintiff’s truck for his default in payments was minimal. However, in Hamm v. Sales Financing, Inc., 181 So.2d 480 (La. App. 2nd Cir. 1965), an award of $1,500 was found to be neither inadequate nor excessive. There the defendant had wrongfully seized plaintiff’s furniture from her house while enforcing a chattel mortgage on plaintiff’s daughter’s furniture. Similarly, in Vercher v. Toda Enterprises, Inc., 216 So.2d 318 (La.App. 3rd Cir. 1968), an award for $1,000 was sustained, where the defendant’s manager used profanity and excessive force when wrongfully repossessing plaintiff’s automobile in front of witnesses. Plaintiff, Vercher, was denied possession of his property for approximately 18 months.

In another recent case, Deshotels v. Statewise Trailer Sales, 333 So.2d 259 (La.App. 1st Cir. 1976), a $1,000 award of general damages was sustained. Defendants converted plaintiff’s trailer and refused to return it after demand. There appeared to be no other particularly aggravating facts.

In 1958, the Supreme Court reduced a $1,500 award for humiliation, mortification, mental anguish, and inconvenience to $1,000 in Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959). The court recognized specifically this element of damages as not being confined by any necessity of showing actual pecuniary loss or any particular malice or harshness on the part of defendant. This case seems particularly appropriate for consideration here, since no malice or undue harshness is alleged.

Considering all the facts in this case, we believe a substantial award for mental anguish and humiliation is justified. Mr. Boisdore may have been overly optimistic about the feasibility of opening a school on the “alternate site.” Likewise, he may have overreacted to the circumstances in which he found himself. However, we think it clear that he has suffered noticeably and the entire affair has had an adverse effect on his life. An award of at least $7,500 in general damages for mental anguish is justifiable; to be reduced, however, by the value of the use of the premises which Mr. Boisdore enjoyed in November and December 1972, and June and July 1973. Marcel v. Denton, supra. As we have found that no precise figure for rent was agreed upon, we believe that a fair resolution would be to split the difference between what was offered as a short-term lease by the Boisdores ($1,000 a month) and the amount suggested by ICB for a long-term lease ($1,600 a month). Thus, a reduction of $1,300 for four months, or $5,200 total, is appropriate.

Accordingly, as the trial court dismissed plaintiff’s claim once it had determined that no lessor-lessee relationship existed, we must reverse that dismissal.

THEREFORE, IT IS ADJUDGED AND DECREED that defendant, International City Bank and Trust Company, is liable unto plaintiff, Elliott P. Boisdore, in the amount of $7,058.70 for the value of the property lost by the conversion; further, that the defendant is liable unto plaintiff for damages for mental anguish and humiliation in the sum of $7,500, less $5,200 for plaintiff’s use of premises, all with interest from date of judicial demand, costs to be borne by defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

SCHOTT, J., is of the opinion the rehearing should be granted and assigns reasons.

SCHOTT, Judge,

dissenting from denial of rehearing.

I vote to grant a rehearing because I would like to reconsider our original opinion insofar as we granted ICB an offset of $5200 against plaintiff’s claim.

      . The Boisdores had been separated briefly before, in 1971, as a result of Mr. Boisdore’s financial difficulties.


author: BOUTALL, Judge. PER CURIAM.

text:
    Linda Madere TIMBERLAKE and her husband David Timberlake v. AVIS RENT A CAR SYSTEM, INC.
    No. 9452.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearing Denied Sept. 12, 1978.
    Samuel Richard Exnicios, Roger R. Roy, New Orleans, for Linda Timberlake and David Timberlake, plaintiffs-appellants.
    Stephen L. Huber, Metairie, for Avis Rent a Car System, Inc., defendant-appel-lee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

Plaintiff’s suit for workmen’s compensation benefits was dismissed on the basis that she was an independent contractor, and she appeals. Because of compromises amongst the parties to the original suit and stipulations, this appeal is only concerned with the determination of plaintiff’s status as independent contractor or statutorily defined employee with the resultant issue of statutory penalties and attorney’s fees.

The pertinent facts are that Linda Tim-berlake agreed to a vehicle transfer contract with Avis Rent A Car System, Inc. wherein she agreed to drive one of Avis’ rental automobiles from Baton Rouge to New Orleans for a set price. The contract contained this language:

“It is agreed that this contract in no way constitutes Contractor as an agent, servant or employee of the Owner of said vehicle or of Avis Rent A Car System, Inc., any of its affiliates, agencies or Licensees.”

The trial judge found that there was an actual contract for a specific undertaking at a stated price and that defendant had no control over the plaintiff except as a result of the work, and concluded that plaintiff was an independent contractor. We agree with the factual findings, but we disagree with the conclusion, believing the issue is controlled by the type of work done, that is, manual labor.

The Louisiana Workman’s Compensation Law contains a definition of “Independent Contractor” which goes beyond those facts recited by the trial judge. LRS 23:1021(6) defines independent contractor as follows:

“Independent Contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his. work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.”

The pertinent issue here is whether Tim-berlake was engaged in manual labor in carrying out the terms of the contract: driving an automobile from Baton Rouge to New Orleans. Our Louisiana statute has been cited by Larson’s Workmen’s Compensation Law, § 49.21 page 9-33, as an example of the type of statutory law which declares that an independent contractor doing manual work is an employee for compensation purposes, citing Blade v. Mervis, 226 So.2d 552 (La.App.1969) and Guidry v. DeFelice Marine Contractors, Inc., 200 So.2d 329 (La.App.1967). Unfortunately the statute does not contain a definition of manual labor and the stipulation of fact does not go into plaintiff’s obligations under the contract except that she was to drive an automobile from Baton Rouge to New Orleans. LRS 1:3 requires that words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Without citing dictionary authorities, we believe it sound to say that the common usage of “manual labor” would encompass the driving of an automobile, wherein a person is physically required to regulate the direction, speed and control of the car by physical means. We refer to the case of Welch v. Newport Industries, Inc., 86 So.2d 704 (La.App.1956) wherein the court, in applying the term “manual labor” to the Workmen’s Compensation Law stated at page 707:

“ * * * but the true legal meaning of the term “manual labor” is to denote work in which the physical element predominates over the mental, see 26 Words and Phrases, Verbo Manual Labor, p. 603. For purposes of determining compensation coverage, the distinguishing feature is whether the workingman participates physically himself, rather than — so to speak — aloofly directs in clean Sunday clothes.”

In summary, we conclude that driving an automobile is manual labor within the definition of LRS 23:1021(6), and the plaintiff is a statutorily defined employee engaged in manual labor and covered by the provisions of the Workmen’s Compensation Law.

Because of the stipulations of the parties, we do not have to decide the benefits to which the employee is entitled. There merely remains the question of assessment of statutory penalties and attorney’s fees under LRS 23:1201.2. We believe reasonable cause existed for nonpayment. We note especially the terms of the contract entered into between the parties, and the fact that there was a serious dispute between the parties as to the application of the law and the contract terms to the claimant. We further note that the trial judge denied plaintiff benefits and dismissed her suit on the basis that she was an independent contractor. Under these circumstances we cannot say that the failure to pay is “arbitrary, capricious, or without probable cause.” Accordingly, we would deny the claim for statutory penalties and attorney’s fees.

IT IS ORDERED, ADJUDGED AND DECREED that the judgment appealed from is reversed, and there is judgment herein in favor of plaintiff Linda Timber-lake decreeing her to be an employee of defendant Avis Rent A Car System, Inc. and entitled to Workmen’s Compensation Benefits for the accident of October 2,1973, but denying her statutory penalties and attorney’s fees. Each party shall bear his own proportion of the costs in the trial and appellate courts.

REVERSED AND RENDERED

PER CURIAM.

We note that the decree rendered herein is in error because it reversed the judgment appealed from in its entirety. Under the issues stipulated before us, we should have affirmed the judgment insofar as it denied plaintiff statutory penalties and attorney’s fees.

Accordingly, we reform our decree and render it as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the judgment appealed from is reversed in part and affirmed in part as follows; there is now judgment herein in favor of plaintiff Linda Timber-lake decreeing her to be an employee of defendant Avis Rent A Car System, Inc. and entitled to Workmen’s Compensation Benefits for the accident of October 2,1973, but affirming the judgment insofar as it denies her statutory penalties and attorney’s fees. Each party shall bear his own proportion of the costs in the trial and appellate courts. The application for rehearing is denied.

REVERSED IN PART,

AFFIRMED IN PART.


author: HALL, Judge.

text:
    Ernest Roy SNELL, Sr., Plaintiff-Appellee, v. Phyllis Rose Tuminello SNELL, Defendant-Appellant. Ernest Roy SNELL, Sr., et al., Plaintiffs-Appellees, v. Phyllis Rose Tuminello SNELL, Defendant-Appellant.
    Nos. 13593, 13594.
    Court of Appeal of Louisiana, Second Circuit.
    July 6, 1978.
    En Banc. Rehearing Denied Aug. 15, 1978.
    Writ Refused Oct. 10, 1978.

      Glen H. Smith, Shreveport, for appellant.
    D. G. Tyler, Shreveport, for Ernest Roy Snell, Sr., Betty Kellett and Robert H. Snell.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

In this case, a mother has been denied custody of her two small children for much too long a time. The children have been well cared for by a grandparent, to whom custody was originally awarded on a temporary basis at the beginning of this litigation, and in whom custody was continued in subsequent proceedings despite findings that the mother was fit and able to have custody. We reverse the most recent judgment of the trial court continuing custody in the grandparent, and award custody to the mother.

These proceedings began in October 1976 when Ernest Roy Snell, Sr. filed suit against his wife, Phyllis Rose Tuminello Snell, seeking a separation on the grounds of abandonment and custody of their small son and daughter, ages five and two. At the time the suit was filed, Phyllis Snell was in California where she had been visiting her mother for about two weeks, resting from the ordeal of financial and marital problems and the problems of coping with her young hyperactive son. The children were left with the paternal grandparents while Phyllis was away. A few days after the suit was filed, she returned from California and took her son from school to stay with her at her grandmother’s home in Shreveport. The father, Ernest Roy Snell, Sr., paternal grandmother, Betty Kellett, and the paternal grandfather, Robert H. Snell, commenced a habeas corpus proceeding. Phyllis answered the suits denying the allegations of abandonment, reconvening for a separation on the grounds of constructive abandonment, and seeking custody of the children. The father of the children has never actually sought custody and the contest has been primarily between Mrs. Kel-lett and Mrs. Snell.

In December 1976, after trial of the custody matter, the trial court found that the mother “at this point in time,” did not have the maturity and was not prepared to cope with the problems presented by the hyperactive son, and awarded custody of the children to the grandmother “until further orders of this Honorable Court.” On the mother’s appeal this court affirmed in June 1977. Snell v. Snell, 347 So.2d 511 (La. App.2d Cir. 1977).

In May 1977 Phyllis Snell, who moved to California to live with her mother after the original custody judgment, filed a rule to change custody. ThiS rule and the merits of the separation proceeding were tried in June. The trial court found that Mrs. Snell’s previous problems were due primarily to the influence of her husband and that “Phyllis has changed for the better . She has demonstrated . . . that she is ready, willing and able to care for her children ... At this point in time the Court can find no legal reason to continue depriving this mother of the custody of her children. It is in their best interests to be with their mother.” These findings are fully supported by the evidence presented at the lengthy trial. Judgment was rendered awarding custody to the mother, but, in spite of the findings of the court quoted above, conditioning the granting of physical custody of the children on the mother’s compliance with three conditions established by the court: (1) that the mother continue psychiatric treatment of the son and herself; (2) that she obtain an apartment for her and the children; and (3) that she enroll the son in Creative Frontier School, a private day care center specializing in learning disabilities. Judgment was also rendered granting a separation on the grounds of mutual fault.

The mother immediately offered evidence of compliance with the conditions, which was not accepted by the trial court. The grandmother moved for a new trial and opposed the mother’s efforts to satisfy the court that the conditions had been met. After hearings in the early part of August, the court was still not satisfied, ordered physical custody to remain with the grandmother, and continued the entire matter for hearing on September 20. The mother applied to this court for writs which were denied. She also applied to the Supreme Court for writs, which were denied with the comment “It is understood that the trial judge will make a determination of the issue of compliance with the conditions of custody by the mother on September 20, 1977.” One justice dissented from the denial, commenting perceptively, particularly in view of later developments, that “there is no shred of evidence in this record, nor contention made by the parties or the judge, that could support the continued refusal to permit this mother to regain the custody of her children. It is a great injustice to separate a mother from her children without good reason, and a greater injustice to perpetuate the error, once discovered. I would grant the writ, reverse the ruling of the trial court, and order the children surrendered to the mother immediately.”

On September 20, after considering depositions of the mother and several persons living in California relating primarily to whether the mother had actually obtained an apartment, the trial court found there were conflicts in the testimony which led the court to conclude that “deliberate fraud and deceit” had been perpetrated on the court by Mrs. Snell and others. The trial court concluded she “is not morally capable of taking care of these children, if she attempts to commit such a fraud on the Court.” After further procedural skirmishing, a judgment was signed in January 1978 which had the effect of continuing custody in the grandmother, from which judgment the mother appealed. On appeal she urges error in not granting her unconditional custody of the children and in granting the separation on grounds of mutual fault instead of her husband’s constructive abandonment.

We hold:

(1) It is usually in the best interest of a child for custody to be vested in the child’s natural parent. In a contest between a parent and a nonparent, custody must be awarded to the parent unless the parent is shown to be unfit or incapable of caring for the child or has forfeited parental rights. Wood v. Beard, 290 So.2d 675 (La.1974).

(2) The “double burden” rule does not apply in this case where the initial award of custody to the grandmother was temporary in nature. DeCelle v. DeCelle, 313 So.2d 634 (La.App.2d Cir. 1975).

(3) The evidence fully supports the trial court’s findings made after trial in June 1977 that the mother was ready, willing and able to care for her children, that there was no legal reason to continue to deprive the mother of the custody of her children, and that it was in the best interest of the children to be with their mother.

In view of these findings, the conditions established for the actual physical change of custody were not justified and amounted to an abuse of the trial judge’s discretion. Even if the conditions were originally justified, satisfactory evidence of substantial compliance with the conditions, including a statement from a psychiatrist, a statement from the school, and a copy of a lease, was presented immediately after the June ruling and again in August. There was no reasonable basis for requiring the mother to go back to California, personally obtain and move into the apartment, and personally enroll the child in the special school, prior to the physical change of custody. It is to be noted also that custody of both children was subject to the court-established conditions although the conditions related almost solely to the care of the hyperactive son.

Unique circumstances may warrant unique custody decrees calling for closer judicial supervision than that normally employed. Morris v. Morris, 350 So.2d 971 (La.App. 2d Cir. 1977); Edisen v. Edisen, 236 So.2d 528 (La.App. 4th Cir. 1970); 297 So.2d 787 (La.App. 4th Cir. 1974). See also Lloyd v. Lloyd, 313 So.2d 854 (La.App. 2d Cir. 1975); Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir. 1963). The circumstances warranting such supervision, however, are usually extreme. The evidence in this record does not establish such circumstances.

(5) The testimony contained in the depositions filed at the September 20 hearing, while containing some minor conflicts, does not support the trial court’s finding of fraud, deceit, or moral unfitness. To the contrary, the testimony further supports the efforts of the mother to obtain a place to live in compliance with the conditions established by the court. In any event, the entire matter of the apartment is so minor and insignificant in relation to her right to have the children with her and the children’s interest in being with their mother, that it cannot possibly serve as a basis for continuing to deprive the mother of custody-

(6) The motion for new trial filed by the grandmother seeking to overturn the June 30, 1977 judgment on the rule for change of custody did not have the effect of suspending the delays for appealing the judgment granting a separation on the grounds of mutual fault. Neither of the parties to the separation suit, Mr. or Mrs. Snell, applied for a new trial as to that judgment and it became final long before this appeal was taken on February 8, 1978. Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973); Payton v. Aetna Life and Casualty Company, 299 So.2d 489 (La.App. 4th Cir. 1974), writ refused 302 So.2d 617 (La.1974); State, Department of Highways v. D & J Realty Co., 245 So.2d 465 (La.App.2d Cir. 1971), writ refused 258 La. 583, 247 So.2d 396 (1971); LSA-C.C.P. Art. 1971. Accordingly, the issues concerning the grounds on which the separation judgment was granted may not be considered on this appeal.

For the reasons assigned:

(1) Insofar as custody of the children, Ernest Roy Snell, Jr. and Jennifer Michelle Snell is concerned, the judgment of the district court is reversed and set aside;

(2) There is judgment in favor of Phyllis Rose Tuminello Snell and against Ernest Roy Snell, Sr., Betty Kellett and Robert H. Snell, granting the immediate and unconditional care, custody and control of the children, Ernest Roy Snell, Jr. and Jennifer Michelle Snell, to their mother, Phyllis Rose Tuminello Snell;

(3) The case is remanded to the district court for such further proceedings as may be appropriate in connection with Phyllis Rose Tuminello Snell’s demands for child support or other ancillary matters; and

(4)All costs are assessed to appellees, Ernest Roy Snell, Sr. and Betty Kellett, in solido.