text:
    Vivian Jones DAIGLE v. Herbert J. DAIGLE.
    No. 10929.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.

      Clint L. Pierson, Jr., Julian J. Rodrigue, Covington, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Vivian Jones Daigle was granted a separation from Herbert Daigle on July 24, 1962. At that time she was awarded custody of the three minor children of the marriage. Alimony for support of herself and the children, previously agreed upon in the amount of $275.00 per month, was continued in the separation judgment.

On November 26, 1963, Herbert Daigle was awarded a divorce from Vivian Daigle on the ground of having lived separate and apart for a period of two years. Custody of the children was continued in Mrs. Daigle, and the alimony and child support remained the same.

On June 1,1966, Mr. Daigle filed a rule to reduce alimony. Although the record does not contain the judgment on the rule, the Court evidently reduced the alimony to $200.00 per month.

On May 27, 1975 Mr. Daigle filed a rule to terminate alimony and child support. Mrs. Daigle then countered with a rule to make past due alimony executory. After trial of the rules judgment was rendered (a) terminating child support as of May 27, 1975; (b) awarding Mrs. Daigle the sum of $900.00 for past due alimony; and (c) reducing alimony for the support of Mrs. Diagle to $75.00 per month.

On appeal, Mr. Daigle contends the trial court erred in granting Mrs. Daigle judgment on the arrearage and in refusing to terminate alimony due Mrs. Daigle.

Although the judgment signed by the trial court states that the alimony ar-rearage was computed from June 1, 1965 through February, 1976, it is clear from the transcript that the trial judge computed the arrearage from the time Mr. Daigle ceased paying the $200.00 per month, which was May 27, 1975. The Court stated:

“The Court is going to order that the defendant is in arrears at the rate of $100.00 per month since May of 1975 when he ceased paying the $200.00. The child at that time became of age and the wife is not entitled to collect for the child and prorate the support at $200.00, $100.00 to the child and $100.00 to the wife.
The Court orders that he pay the ar-rearage of $100.00 per month up until this date.”

The $900.00 awarded as arrearage correctly reflects nine months of non-payment (June, 1975 through February, 1976) at $100.00 per month.

The trial court also reduced the alimony for support of the wife to $75.00 per month. Appellant contends it was error to refuse to eliminate this alimony completely.

The evidence adduced at the hearing on the rule shows that the wife has a current net salary of $425.00 per month. Her current monthly expenses totaled $656.83. Appellant argues that only food, clothing and shelter expenses are to be considered in determining the needs of the wife, and that the wife’s expenses herein included unnecessary items. However, in Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) the Court recognized that:

“Common sense dictates that the term ‘maintenance’, while meaning primarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife.”

See also Laiche v. Laiche, 289 So.2d 277 (La.App. 1st Cir. 1974). From a perusal of the expenses listed by the wife, we are convinced that at least $600.00 thereof is necessary for her maintenance.

Since the 1966 reduction, the wife has purchased a $12,179.00 house for which she yet owes $4,700.00. On the other hand, her savings' of $6,500.00 in 1966 have been reduced to $4,100.00 at present.

Mr. Daigle’s expenses in 1966 were $533.00 per month; his present expenses are $1,163.50 per month. In 1975, Mr. Dai-gle grossed $10,630.00; and his present wife, $6,350.00. There is no evidence in the record of his income in 1966.

It was incumbent upon Mr. Daigle to prove a change either in his former wife’s circumstances or in his own, from the time of the earlier rule in 1966, that would warrant the relief sought, i. e., a termination of alimony for the wife. See Bernhardt, supra.

The wife is in no better situation now than in 1966: her necessary expenses each month exceed her net income by more than $150.00. Additionally, her savings have been reduced by $2,400.00 in the last 10 years. Thus she remains in necessitous circumstances. Laiche, supra.

Relative to Mr. Daigle’s circumstances, his expenses are greater now than in 1966. However, there is no evidence of his income in 1966 with which to compare his present income. It may be that his income has increased so as to offset his increased expenses. His was the burden of showing a change in circumstances sufficient to warrant the termination of alimony for the wife. He has failed to meet this burden.

The trial court has much discretion in determining alimony, and we find no abuse of that discretion herein.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Peter BICKFORD v. Gerald LUTZ and Dan Anzalone d/b/a Lutz Greenhouse.
    No. 10911.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Robert J. Mack, of Mack & O’Neal, Hammond, for Peter Bickford, plaintiff-appellee.
    Foster J. Johnson, Jr., New Orleans, for Gerald Lutz, defendant-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff-appellee, Peter Bickford, was injured in an automobile accident in Mississippi while making deliveries for his employer, Gerald Lutz d/b/a Lutz Greenhouse. Lutz, an out-of-state resident, operated a temporary, seasonal nursery business in Hammond, Louisiana. What purports to be a default judgment was entered against Lutz in favor of Bickford on a workmen’s compensation claim. Lutz appeals the judgment entered against him.

The record with which this Court is confronted is replete with errors, omissions and inconsistencies. From what we can extract from the record, the plaintiff attempted to serve the defendant by certified mail under La.R.S. 13:3204, et seq. (Louisiana’s Long-Arm Statute). Allegedly, the required certified copies of the petition and citation were sent with a cover letter by certified mail to defendant on July 29, 1974, and were received on August 1, 1974, by Eleanor Nyquist, who defendant admitted in his deposition of November 7, 1974, was authorized to receive mail for him. However, in his deposition, defendant claimed that he received only the cover letter and that no petition was enclosed. Evidently, appellee was somewhat doubtful that his initial attempt to serve the defendant had been properly effected because on August 13, 1974, a citation and petition was sent by certified mail to the same address, i. e. “7281 N. 20 Mile Road” with instructions that delivery be to addressee only. According to the defendant’s deposed testimony, his correct address at that time was “7281 East 20 Road.” In any event, the second communication, with enclosures, was returned August 17, 1974, marked “unclaimed.” Further, plaintiff failed to file an affidavit of service with attached return receipt as is required when service is effectuated under the Long-Arm Statute. La. R.S. 13:3205.

On October 1, 1974, a supplemental and amending petition was filed by plaintiff naming Aetna Casualty & Surety Company as the workmen’s compensation insurance carrier of defendant Gerald Lutz, and asking that said carrier be made a party defendant. Plaintiff pled therein the reiteration of each and every allegation of his original petition and prayed for judgment against Gerald Lutz and Aetna, in solido. The record reflects that, as sought by plaintiff, the supplemental petition was served upon Aetna. The record does not reflect that service was attempted or made upon Gerald Lutz. Aetna immediately responded to the claim made against it and, while the record does not reflect the result, a motion for summary judgment was filed in its behalf, a hearing was held February 14, 1975, on the motion, memoranda was to be filed, and the matter was presumably taken under advisement.

After the defendant failed to answer, plaintiff took a preliminary default on December 6, 1974. The minute entry for that date indicates that the preliminary default was entered against Lutz Greenhouse, a trade name, and not against the named defendant, Gerald Lutz. On December 11, 1974, plaintiff presented evidence, including his own testimony and that of his attorney, defendant’s deposition and various medical bills, to confirm the preliminary default. Judgment was entered on January 27,1975, ordering that the “default entered herein against the defendant, Gerald Lutz, on December 6,1974 ... be now confirmed and made final.”

The following questions are presented by this appeal:

(1) Was proper service of process made under La.R.S. 13:3204, so as to give the trial court jurisdiction to render a judgment against the non-resident defendant?
(2) Was the judgment rendered based upon the entry of a valid preliminary default?
(3) Was the judgment appealed from one by default as provided for by La.C. C.P. art. 1701, et seq.; or was it a “preliminary judgment” as provided for by La.R.S. 23:1316?

I.

In order to have proper service on a non-resident defendant under the Long-Arm Statute, the plaintiff must follow exactly the statutorily mandated provisions. La.R.S. 13:3201, et seq.; Ray v. South Central Bell Telephone Company, 303 So.2d 877 (La.App. 1st Cir. 1974), affirmed, 315 So.2d 759 (1975). Such service may be perfected by sending a certified copy of the citation and petition to the defendant by registered or certified mail. La.R.S. 13:3204. Should an amended petition or a supplemental petition be filed, service thereof is required and must be effected in the same manner. See reporter’s comment (e) infra § 3204; and cf. La.C.C.P. arts. 1153, 1312, and La.R.S. 13:3207.

The defendant challenges the service by alleging that the original citation and petition were not enclosed in the certified letter sent to and received by him. He does not raise the question of the apparent lack of service of the supplemental and amending petition. Pretermitting the effect of any failure to serve the supplemental and amending petition upon Gerald Lutz, such an allegation, if proved, would render the service invalid. However, the question of the sufficiency of service may not be raised for the first time on appeal. Young v. Warner, 283 So.2d 547, 550 (La. App. 1st Cir. 1973). If such an issue is not raised by a declinatory exception, the issue may be raised collaterally in a suit to annul the judgment. See, Swann v. Performance Contractors, Ltd., 271 So.2d 294 (La.App. 3rd Cir. 1972).

II.

Defendant’s next contention is that the method of proof of service directed by La.R.S. 13:3205 was not followed and the default judgment is therefore invalid. Without getting into the issue of method of proof of service or conceding that same may be raised for the first time on appeal, La. R.S. 13:3205 sets the time delay which must run before a preliminary default may be rendered when service is made by § 3204. This delay is triggered by the filing of an affidavit of service by the plaintiff. La. R.S. 13:3205 provides:

“No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
“(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; * * *.”

No such affidavit with attached return receipt was filed in the record by plaintiff. § 3205 mandates the filing in the record of the affidavit of service to commence the running of the thirty-day delay before a “default judgment” may be validly entered. The reporter’s comment (c) indicates that “default judgment” as used in § 3205 is intended to have the same meaning attributed to it by La.C.C.P. art. 1701, and in the professional vernacular to mean “preliminary default” rather than “confirmation of a default.” Plaintiff’s attempts to offer the return receipt at the confirmation of the default would not cure an invalid preliminary default previously entered. Since no affidavit was filed by the plaintiff, the required thirty days did not elapse; therefore, the preliminary default entered against the defendant was premature. Any final judgment of default obtained without a valid preliminary default is an absolute nullity. See, e. g., Arthur v. Cochran, 12 Rob. 41, 43 (1845); Welch v. Welch, 169 So.2d 713 (La.App. 4th Cir. 1964).

In this same regard, we have noted that the December 6, 1974, minute entry shows that the preliminary default was entered in the trade name, Lutz Greenhouse, not in the name of the defendant. No preliminary default was entered against the named defendant. A judgment cannot be rendered against a defendant who has never answered and has never made a general appearance in the absence of the entry of a preliminary default. Welch v. Welch, supra, and cases cited therein.

III.

Appellant also contends that the evidence presented to confirm the preliminary default was insufficient. This contention raises the question of whether the judgment at issue was a default judgment under C.C.P. arts. 1701, et seq., or a workmen’s compensation “preliminary judgment” under La.R.S. 23:1316. The basis or proof for judgment is different in each instance.

C.C.P. art. 1702 requires that a judgment of default (preliminary default) must be confirmed by “proof of the demand sufficient to establish a prima facie case.” Such a judgment is final and may be appealed.

On the other hand, a “preliminary judgment” under La.R.S. 23:1316 may be obtained on the basis of the facts set forth in a verified petition, without the necessity of proof. Such a judgment is in the nature of a penalty assessed against the employer for his failure to answer, is interlocutory in nature, and not properly appealable unless it causes irreparable injury. Naquin v. Coal Operators Casualty Company, 157 So.2d 276, 278 (La.App. 3rd Cir. 1963). The proper response by a defendant who has a “preliminary judgment” entered against him would be to request a hearing on the merits.

While the attorney for the plaintiff referred to La.R.S. 23:1316 during the confirmation of the default and the trial judge averred to its applicability in his judgment, we find that the judgment appealed from was not styled as an interlocutory “preliminary judgment” under R.S. 23:1316, but in the language of the judgment, was a “final” judgment by default pursuant to C.C.P. art. 1702. The plaintiff never sought a workmen’s compensation “preliminary judgment” based on the allegations of the petition, but instead sought to confirm a preliminary default by presenting evidence for weekly benefits and medical expenses. Furthermore, while R.S. 23:1316 contemplates a preliminary judgment providing for the payment of “compensation,” we find no authority for the inclusion of attorney fees as was adjudicated in the judgment under consideration.

Summary

The judgment rendered below upon confirmation of default is an absolute nullity due to the failure of the plaintiff to obtain a preliminary default against the individual defendant-appellant cast. Even assuming that proper long-arm service was effected, the judgment would still be a nullity because of plaintiff’s failure to comply with the provisions of R.S. 13:3205. As plainly stated, no default judgment (preliminary default) can be rendered until thirty days after the filing of the required affidavit. There is no showing that this thirty-day period was ever commenced by the filing of the affidavit. Because of its absolute nullity, we vacate and set aside the judgment of January 27, 1975.

Having determined that the default judgment rendered is an absolute nullity for the foregoing reasons, it is unnecessary to address the question of whether the evidence presented to confirm the preliminary default was sufficient. Our comments would only be obiter dicta. It suffices to say that the requirements for the establishment of a prima facie case to confirm a default judgment are set forth in many cases, including Courville v. Southern Casualty Insurance Company, 304 So.2d 93 (La.App. 3rd Cir. 1974), and Smith v. Doyle, 160 So.2d 791 (La.App. 3rd Cir. 1964).

The sufficiency of service on the non-resident defendant herein, the method of proof thereof, and the concomitant exercise of personal jurisdiction over said defendant by virtue of such service are matters that direct themselves to the trial court. In view of the contentions with respect to the alleged enclosure of the citation and original petition in the letter of July 29, 1974; the lack of evidence in the record to show that the supplemental and amending petition was ever attempted to be served or served upon defendant-appellant; and because plaintiff, as yet, has not filed the affidavit required by R.S. 13:3205; there is ample justification for a remand of this ease so that additional evidence may be adduced thereon.

For the several reasons discussed and summarized above, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion. The costs of this appeal are to be assessed to the appellee.

JUDGMENT VACATED AND REMANDED.


text:
    Noah WESSINGER et al. v. Frankie OVERTON et al.
    No. 10916.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Otha Curtis Nelson, Sr., of Simmons & Nelson, Baton Rouge, for plaintiffs-appellants.
    F. Barry Marionneaux, of Marionneaux & Marionneaux, Plaquemine, for defendant-appellee Frankie Overton.
    John I. Moore, of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-ap-pellee Travelers Ins. Co.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

An accident involving a pick-up truck and an automobile occurred in West Baton Rouge Parish on August 30, 1974. Jerry Wessinger, the driver of the automobile, was killed and Ronald Harris, a guest passenger in the same vehicle, was injured. Noah and Estelle Wessinger, parents of the deceased, and Ronald Harris appeal the decision rendered by the district court in favor of appellees, Frank Overton, the driver of the pick-up truck, and The Travelers Insurance Company, Overton’s insurer. We affirm.

The uncontroverted facts are that on the morning of August 30,1974, Jerry Wessinger was driving a 1964 Chevrolet automobile containing four'other occupants, including Ronald Harris, in an easterly direction on a two-lane hard surfaced road. At the same time a 1974 Ford pick-up truck was being driven in a westerly direction on the same road by Frank Overton. Both vehicles were traveling at about 50 to 55 miles per hour. These two vehicles collided, giving rise to this suit. However, from the evidence and testimony presented at trial, the sequence of events and actions of the parties leading to the collision are disputed.

The trial court found that prior to the accident Jerry Wessinger was driving his vehicle from one side of the highway to the other, thus crossing the center line and then returning to his own lane of traffic. Based on the testimony of the passengers in the Wessinger automobile, this erratic driving was the probable result of his visibility being reduced because his windshield fogged up and because of his attempts to clear off the windshield as he drove. In support of the trial court’s findings, Overton testified that he first observed the Wessinger vehicle swerve when the vehicles were about one-fourth of a mile apart. Consequently, he reduced his speed to about 35 miles per hour. He further testified that as the vehicles approached each other he assumed the Wessinger vehicle would then remain in its proper lane of travel.

The trial court further found that as the vehicles neared each other, Wessinger again veered into the westbound lane causing Overton to turn left in an attempt to avoid him. The record establishes that Overton also applied his brakes in response to the emergency situation with which he was thus confronted. Overton’s evasive action was unsuccessful and the resulting collision occurred approximately in the center of the highway with most of the debris left in the westbound lane. The trial court’s conclusions as to these facts are supported by the testimony of Frank Overton and that of the State Trooper who responded to the call. The State Trooper based his testimony on the evidence at the scene of the accident, his conversation with Overton, and his conversations with the passengers of the Wes-singer vehicle.

The trial court held that Frank Overton was not guilty of substandard or negligent conduct causing the accident either (1) by veering into the oncoming lane of travel or (2) by failing to take evasive action to avoid the Wessinger vehicle.

First, appellants contend that contrary to the findings of fact by the trial court Jerry Wessinger was operating his car in a safe manner and that Frank Overton drove his vehicle into the wrong lane of travel. Appellants base this contention upon the testimony of the four passengers of the Wes-singer vehicle. However, a review of this testimony reveals that it does not support such a contention. James Smith testified that he did not remember anything about how the accident occurred, only that he saw the truck as the vehicles neared the point of collision. Further, he testified that he did not know which lane either vehicle was in at the time of the collision. Appellant, Ronald Harris, also testified that he did not know how the collision occurred other than that it was a “head-on” collision. George Harris, appellant’s brother who was also a passenger in the Wessinger vehicle, testified that he really did not know in which lane the accident happened.

The testimony of Gerald Hawkins demonstrates inconsistencies as to how the accident occurred. First, his testimony is contradictory concerning the position of the vehicles after the impact. On direct examination he testified that the Overton vehicle was in the eastbound lane or that the cars were both in the center of the highway. Under cross-examination he testified that he did not know on which side of the road the collision occurred. Earlier in his deposition Gerald Hawkins had testified as follows:

Q. Where was [sic] the car and the truck in reference to the highway?
A. On the left-hand side of the road.
Q. On Mr. Overton’s side of the road?
A. Yeah.
Q. Both the car and the truck were on Mr. Overton’s side of the road?
A. Uh-huh.
Q. All the way on his side?
A. All the way.

This testimony is reiterated several times in his deposition and directly contradicts his trial testimony.

Appellants have failed to sustain their burden of proof that Frank Overton was responsible for the accident as a result of negligent conduct in driving his vehicle into the wrong lane of travel.

Next, appellants contend in the alternative that the appellee was negligent in that, after having earlier observed the appellant vehicle veer into the wrong lane some three or four times, he should have pulled off the road onto the shoulder. However, Overton was reasonable in concluding that Wessinger would operate his vehicle in a lawful manner and return to and remain in the proper lane, thus according him the right of way to which he was entitled in sufficient time to avoid a collision. See Woodard v. American Indemnity Company, 118 So.2d 284 (La.App. 1st Cir. 1960); Wood v. Manufacturers Casualty Insurance Company, 107 So.2d 309 (La.App. 2nd Cir. 1958); La.R.S. 32:72 (1962).

Overton’s reaction of slowing to 35 miles per hour was a reasonable response to the situation in which he found himself. While hindsight indicates that a better response might have been to pull over onto the narrow shoulder of the road and stop, the law does not interpose hindsight to hold a man to such a high standard of care. Rather, the law requires only that in the context of the situation in which a person finds himself that he react in a reasonable manner. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 389 (1972). Overton observed the Wes-singer vehicle in his lane about three times within a distance of approximately one-quarter of a mile. He responded by slowing his vehicle and staying on his own side of the road, properly assuming that the approaching vehicle would remain on the appropriate side of the road as the vehicles passed. This response by Overton was reasonable under the circumstances and, therefore, was not substandard or negligent conduct creating any breach of a duty owed the driver or passengers of the other vehicle.

For the foregoing reasons, the decision of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


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    Bernie Mike HOWARD, husband v. Cheryl Brown HOWARD, wife.
    No. 10920.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Barron Whipple, Houma, for plaintiff and appellee.
    A. D. O’Neal, Jr., Houma, for defendant and appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff-appellee, Bernie Mike Howard, filed suit seeking a separation from his wife, Cheryl Brown Howard, and the permanent custody of their infant, Saca Jewea Howard, issue of the marriage between the parties. After a hearing on the custody question, the trial judge on March 3, 1976, granted the father the permanent care, custody and control of the child. Defendant-appellant, Cheryl Brown Howard, appeals this award of permanent custody to the father. We affirm.

The question presented is whether the trial judge abused his discretion in awarding permanent custody to the father.

The record discloses that prior to the marriage of the parties appellant had a history of erratic behavior. In June, 1972, due to her uncontrollable behavior, she was committed to the Department of Corrections facility for juveniles (L.T.I.) upon the complaint of her aunt with whom she lived. Appellant remained at L.T.I. until October of 1972 when she was released because she was pregnant. In May, 1973, after the birth of an illegitimate child, she was recommitted for the same reasons. In March of 1974 she was released on parole to a foster home. Upon complaint of the foster mother, Mrs. Josie Austin, the appellant was called before the court again for her uncontrollable behavior. At this time in July, 1974, it was decided that the appellant, then fifteen years old, would be allowed to marry the appellee. This marriage occurred in August of 1974.

The child in question, Saca Jewea Howard, was born in August of 1975. The infant was in the care of her parents until the appellant abandoned the matrimonial domicile in January, 1976. On January 21, 1976, appellee was granted the temporary custody of the child. Since that time, the child has been living in the home of the appellee’s mother who is caring for her.

Currently, the appellant is on parole status from L.T.I. and is seventeen years old. She has no apparent source of income and has made no serious effort to obtain employment. Further, the appellant was not able to testify as to where she or her illegitimate child have been residing during the months since she left the matrimonial domicile. Evidently her illegitimate child has been moved from place to place with no stable environment. In fact, it is not even clear whether she has been taking care of this child or leaving the child in the care of others. The record discloses that on occasion she has left her illegitimate child in the care of others for long periods to go on social outings with her friends.

Appellant testified that if she is awarded custody, she would reside in the home of Mrs. Austin, her foster mother. Mrs. Austin testified that she lives in a three-bedroom house with her three daughters, ages eighteen, twenty-one and twenty-three, and her son, age seven. Two of her daughters have children, ages three and four, who live at the same residence. Also residing in the home is a foster child. Thus, there are currently eight people in the house, not including the appellant and her two children.

Appellee, Bernie Mike Howard, is twenty-seven years of age and has been gainfully employed for four years at Wonderland Day Care Center, which is a day care center for the mentally retarded. Appellee lives in a house trailer with appellant’s brother and sister. Since gaining custody of his infant daughter, he has placed her in his mother’s home for care and has provided money for her support. Mrs. Howard, ap-pellee’s mother, testified that the appellee visits the child several times a day, both before and after work. Mrs. Howard owns her own home and lives there with her mother, her retarded daughter, and her granddaughter whose mother is dead.

Appellant alleges that the trial court abused its discretion in granting the permanent care, control and custody to the appel-lee.

In cases involving custody the paramount consideration in determining to whom custody should be granted is necessarily the welfare of the children. While the general rule is that the best interest of the children will be served by granting custody to the mother, in cases where it is shown that the mother is morally unfit or otherwise unsuitable to have custody, the best interest of the child may dictate that custody be denied her. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Meyers v. Meyers, 324 So.2d 562 (La.App. 1st Cir. 1975); Whatley v. Whatley, 312 So.2d 149 (La.App. 1st Cir. 1975).

In custody cases the determination of the trial judge should be accorded great weight, for he is in a better position to determine the best interest of the child based upon his overview of the conduct and character of the parties. Therefore, his exercise of discretion will not be disturbed except upon a clear showing of an abuse of the discretion accorded him. Fulco, supra.

The record discloses that the appellant has demonstrated that she is unsuitable at the present time to have custody. She cannot or will not provide a stable physical environment for her illegitimate child in that she has no apparent residence nor any apparent means for her own support or that of the child. Also, it appears that she has made no serious effort to gain employment. Further, her erratic behavior demonstrates an immaturity and an inability at this time to accept the responsibilities imposed by the care of small children. If appellant were granted custody, the child would, at best, reside in a three-bedroom home with ten other people of various relationships.

Appellee, on the other hand, has demonstrated a greater degree of stability in maintaining employment for a period of four years and providing financially for the support of his child. He has demonstrated his concern for the welfare of the child by placing the child in the care of his mother and by visiting her several times a day. By placing the child in the care of his mother, appellee has provided her with the most stable environment available to the parties.

For the reasons stated above, we find the result reached by the trial court to be correct and well within the discretionary limits accorded the trial judge in custody cases.

The judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.


text:
    MAYFAIR SALES, INC. v. Oscar SAMS.
    No. 10933.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18, 1977.

      George L. Clauer, II!, Baton Rouge, for plaintiff.
    Anthony J. Marabella, Jr., Baton Rouge, for defendant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff-appellant, Mayfair Sales, Inc., appeals a summary judgment rendered in favor of appellee, Oscar Sams, dismissing appellant’s petition to revive a money judgment. The issue presented to the court poses these questions. When a final, definitive judgment is obtained by a corporation and the corporation is thereafter dissolved, may a proceeding to revive the judgment be brought solely in the name of the dissolved corporation? If not, who is the proper party plaintiff to file the petition to revive the judgment?

Mayfair Sales was granted a judgment against Oscar Sams on May 17, 1965, for $256.04, representing the amount of an N.S.F. check made by Sams payable to Southern Steel of Baton Rouge and duly endorsed. On November 15, 1965, voluntary dissolution proceedings were commenced by Mayfair Sales and a liquidator was appointed. Mayfair Sales was dissolved as a corporation on May 10, 1966, as certified by the Secretary of State. This judgment against Oscar Sams was not listed in the dissolution proceedings as an asset of the corporation.

A petition to revive the judgment of May 17, 1965, was filed on April 7, 1975, by the original attorney of record in the name of Mayfair Sales, Inc. Subsequently, the defendant moved for and was granted a summary judgment based on the prior dissolution of the plaintiff corporation.

Appellant contends that a dissolved corporation may bring an action to revive a judgment in its own name without being represented by its liquidator, when the original action or suit commenced before the effective date of the dissolution. This contention is founded upon La.R.S. 12:148(C), which provides:

“C. Upon issuance of the certificate of dissolution, the corporate existence shall cease as of the effective date stated in the certificate, except for the sole purpose of any action or suit commenced theretofore by, or commenced timely against, the corporation.”

The purpose of this statute is to allow for the extension of corporate existence to finalize litigation previously commenced by or against the corporation. Without this statute, unresolved claims by or against a corporate entity asserted prior to dissolution would abate upon dissolution of the corporation. See McCoy v. State Line Oil & Gas Company, 180 La. 579, 157 So. 116 (1934).

Appellant misconstrues the statute by equating an “action or suit” with a final judgment that has acquired the authority of the thing adjudged, i. e., one which has become definitive. Article 421 of the Louisiana Code of Civil Procedure defines a civil action as “a demand for the enforcement of a legal right.” Article 1841 defines a judgment as “the determination of the rights of the parties in an action” and a final judgment as one “that determines the merits in whole or in part.” Article 1842 states that a final judgment is definitive when it has acquired the authority of the thing adjudged. Hence, when the period expired for the taking of a devolu-tive appeal from the judgment of May 17, 1965, Mayfair Sales, Inc., as a viable existent entity, acquired an asset in the nature of an executory judgment. La.C.C.P. art. 2087. It no longer had an action (demand) for the enforcement of a legal right to the sum of $256.04 represented by the N.S.F. check. The “action or suit” not only had commenced prior to dissolution of the corporation, it had also terminated and, therefore, there was nothing to prevent a cessation of the corporate existence. Redundantly, the exception provided for in La. R.S. 12:148(C) is not relative to the facts peculiar to this case and cannot be interposed to continue corporate existence for the purpose of petitioning to revive a judgment. It should be noted that a petition to revive a money judgment contemplates “an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.” See La.C.C.P. art. 2031. A fortiori, that which does not exist cannot be “an interested party”; and, therefore, a negative answer to the question herein-above first posed is mandated.

As regards the proper party plaintiff to file a petition to revive the judgment rendered in favor of Mayfair Sales, Inc., on May 17, 1965, reference should be made to the statutory provisions concerning corporate liquidation.

Louisiana’s Business Corporation Law provides that upon commencement of voluntary dissolution proceedings a liquidator is to be appointed. La.R.S. 12:142(B). The powers of the liquidator are covered in La.R.S. 12:145 and are far-reaching. They include full authority:

“To demand, collect, sue for and recover, in the name of the corporation, the debts and property of the corporation.

The liquidator is intended to have full authority to act in behalf of the corporation with the ultimate goal of concluding all corporate affairs. Any assets remaining after the payment of all debts and liabilities are to be paid by the liquidator to the shareholders according to their preferences. La.R.S. 12:145(F). If any property is inadvertently omitted from the liquidation, it vests in the liquidator for the benefit of those persons entitled to it. La.R.S. 12:148(D). Further, after the dissolution of the corporation, the liquidator is given the express power “to take all action required to preserve the interests of the corporation.” La.R.S. 12:148(E). This would include the action to revive a money judgment as provided for by La.C.C. art. 3547 and La.C.C.P. art. 2031.

In the present case, the judgment in favor of the corporation was omitted from the liquidation. Contrary to the assertion by the liquidator that there were no assets whatsoever remaining, the judgment represented an asset and, under § 148(D), it vested in the liquidator. During the prescriptive period provided for by La.C.C. art. 3547, the liquidator of Mayfair Sales, Inc., is the proper party to bring an action in the name of the corporation to revive the judgment. The record does not reflect that the person appointed liquidator has ever been discharged of his responsibilities. In the event of his death, disability or unwillingness to serve, the court, under La.R.S. 12:148(E), has the power to appoint a new liquidator.

To determine that § 148(C) extends corporate existence for almost nine years after dissolution for purposes of reviving a judgment would be to extend it beyond its intended purpose as discussed previously. Further, such an interpretation would be in conflict with the other statutory provisions providing for the orderly liquidation of a corporation and the disposition of corporate assets upon liquidation.

For the foregoing reasons, we affirm the summary judgment of the trial court dismissing appellant’s action to revive the judgment. Appellant is to pay all costs of these proceedings.

AFFIRMED.


text:
    KINGSMAN ENTERPRISES, INC. v. BAKERFIELD ELECTRIC COMPANY, INC., et al.
    No. 10996.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.

      J. Donald Cascio, Denham Springs, for plaintiff-appellant.
    J. Glenn Dupree and E. Wade Shows, Baton Rouge, for defendants-appellees.
    William C. Bradley, Baker, for Baker Bank & Trust Co., appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Kingsman Enterprises, Inc. brought suit against Bakerfield Electric Company, Inc., Dynamic Constructors, Inc., and Horace B. Womack, majority shareholder of both corporations, for the alleged breach of a construction subcontract between Kingsman and Bakerfield. The trial court rendered judgment in favor of Kingsman against both Bakerfield and Dynamic, in solido. Judgment was rendered in favor of Wom-ack, relieving him of any personal liability under the contract. Kingsman appeals only that portion of the trial court’s judgment absolving Womack of personal liability. We affirm.

The issue presented by this appeal is whether Bakerfield and Dynamic were mere alter egos of Womack, thereby making Womack personally liable for the corporations’ breach.

The Arnott Corporation contracted with Dynamic Constructors, Inc. to build a Days Inn Motel on property owned by Arnott. In effect, Dynamic gave the contract to Bakerfield Electric Company, Inc. Both corporations were principally owned and controlled by Horace Womack.

Bakerfield entered into a subcontract with Kingsman Enterprises, Inc. for the construction of the concrete slabs and framing for the buildings on the Days Inn project for a price of $82,000. Kingsman performed a portion of the work in accordance with the subcontract, making draws of $32,000 before the subcontract was terminated by Bakerfield. The subcontract was terminated as a result of the termination of the general contract by Arnott.

The trial court found and it is uncontested that the subcontract was terminated without just cause and in violation of the provisions of the contract between Baker-field and Kingsman. Furthermore, the trial court found that Dynamic and Bakerfield were operated as one corporation, thereby making both corporations liable under the contract. This conclusion is not questioned; therefore, it is unnecessary to review the soundness of this determination.

The appellant contends that the trial court erred in relieving Womack, the principal owner of the defendant corporations, of personal liability. This contention is based upon the theory that Womack is liable because the corporations were his alter egos in conducting his personal business, in that he disregarded the corporate entities and made the corporations mere conduits for his own business. No allegations of fraud or deceit on the part of Womack are alleged as a basis for disregarding the corporate identity. Several cases are cited by appellant in support of this theory, e. g., Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943); Bossier Millwork & Supply Company v. D. & R. Construction Company, Inc., 245 So.2d 414 (La.App. 2d Cir. 1971); Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2d Cir. 1969); Hebert v. Wiegand, 207 So.2d 882 (La.App. 4th Cir. 1968); Lindstrom v. Sauer, 166 So. 636 (La.App. Orl.Cir. 1936).

In support of the theory that the corporations in question were alter egos of Wom-ack, appellant relies almost exclusively on the fact that Womack owned virtually all of the stock of the defendant corporations and that as president and principal shareholder he exercised control over the operations of both corporations. Appellant also points to various transfers of funds between the bank accounts of the corporations and the personal account of Womack to support his position. Our review of the applicable law as hereinafter discussed, as well as the totality of facts, convinces this court that the case does not justify piercing the corporate veil.

The general rule that corporations are distinct legal entities, separate and distinct from the individuals who compose them, is statutory in origin and well recognized in the Louisiana jurisprudence. La. C.C. art. 435; Buckeye Cotton Oil Company v. Amrhein, 168 La. 139, 121 So. 602 (1929); Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., supra; Johnson v. Kinchen, 160 So.2d 296 (La.App. 1st Cir. 1964). Thus, shareholders are not individually responsible for the debts due by the corporation. La.C.C. art. 437; La.R.S. 12:93(B); Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., supra.

There are, however, limited exceptions to the rule of non-liability of shareholders for the debts of a corporation whereby the court may ignore the corporate fiction and hold the individual member or members liable. In such situations courts commonly refer to the corporation as the “alter ego” of the shareholder. One such exception to the non-liability rule involves situations where fraud or deceit has been practiced on a third party by the shareholder acting through the corporation. La.R.S. 12:95; Bossier Millwork & Supply Company v. D. & R. Construction Company, Inc., supra.

Another basis for disregarding the corporate entity involves the failure to conduct a business on corporate footing, thereby disregarding the corporate entity to such an extent that the corporation ceases to be distinguishable from its shareholders. Gordon v. Baton Rouge Stores Company, 168 La. 248, 121 So. 759 (1929); Brown v. Benton Creosoting Company, 147 So.2d 89 (La.App. 2d Cir. 1962). In Louisiana, courts usually base this rule upon the often-quoted language of Keller v. Hass, supra:

“It is well settled that where an individual forms a corporation of which he is the sole and only stockholder or owns such control of the stock that the act of the corporation is his own, then he may not use the screen of corporate entity to absolve himself from responsibility. [Citations omitted]” 12 So.2d at 240

However, the broad language quoted gives little indication as to what circumstances justify piercing a corporate veil absent fraud on the part of the shareholder. In fact, courts in cases involving issues of shareholder liability often fail to clearly enunciate the bases for disregarding corpo-rateness under which they seek to hold the shareholder liable. This confusion of the grounds for disregarding corporate identity may occur because circumstances exist which support piercing the corporate veil because of both fraud and the failure to operate the corporation on a corporate footing distinct from the shareholder’s personal identity. Also, the failure of a shareholder to adequately separate the corporation’s identity from his own because of various factors may lead to fraud or deceit. Regardless of the basis for piercing the corporate veil, it is clear that the situation must be viewed with regard to the totality of circumstances in each case. However, it should be kept in mind that in Louisiana the concept of the separation of the corporate entity from its shareholders is the general rule and is firmly established. Because of the beneficial role of the corporate concept, this principle should be disregarded in only exceptional circumstances. Johnson v. Kinchen, supra.

In the present case appellant seeks to circumvent the rule of shareholder non-liability on the basis of various transfers of funds between the separate corporate accounts of Bakerfield and Dynamic and the personal account of Womack. Appellant elicits these transfers to support his contention that the funds were commingled, thus demonstrating that the corporate identity was ignored. However, it is clear from the record that separate banking accounts were maintained by each corporation and Womack. Also, different accountants were used by the corporations. Further, the corporate bookkeeping was kept entirely separate. It is not unusual for a sole shareholder to make loans to his corporations and to have these loans repaid. Some of the fund transfers in the instant case can be explained as loan transactions. Such circumstances do not demonstrate a commingling of corporate funds with the funds of the individual, thereby destroying the separate identities of the entities.

Appellant further relies on the fact that Womack as the majority owner of both corporations exercised complete control over the operations of the corporations, to demonstrate that the corporations were mere conduits of his personal business. Womack candidly testified that he made the decisions for Bakerfield as was his right as the controlling owner. However, Wom-ack carefully followed the advice of his attorneys in complying with the necessary formalities of corporateness when transacting business in behalf of the corporation. When advised by his attorney, necessary board meetings were held, minutes taken and resolutions signed. As stated in Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., supra:

“The fact that one owns a majority of stock in a corporation does not of itself make him liable for the corporate debts. So long as the corporate existence is maintained, immunity from liability of even a sole stockholder is the same as if there are many stockholders. [Citations omitted] Except under circumstances whereby a shareholder becomes individually liable for corporate debts through fraud, deceit, or ill practices, the shareholder is within his rights to limit his obligation by the amount of and to the extent of his subscription for capital stock. * * *” (227 So.2d at 269)

See, also, Cefalu v. N. Cefalu Company, 253 So.2d 547, 551 (La.App. 1st Cir. 1971), and Johnson v. Kinchen, supra, 160 So.2d at 299. In fact, our Business Corporation Law now recognizes that one person may form a corporation. La.R.S. 12:21.

Appellant elicits partial facts from other cases as authority for finding that the corporations were the alter egos of Womack. However, this approach is inadequate because it fails to consider the totality of circumstances as is necessary in such cases. For example, appellant cites Hebert v. Wie- gand, supra, for the proposition that the corporate veil may be pierced when every act purporting to have been done by and on behalf of the corporation is entirely dictated by the shareholder. However, in Hebert v. Wiegand no corporation records were kept; there were no bylaws, resolutions or minutes; and there were no separate bank accounts. In Lindstrom v. Sauer, supra, 166 So. at 639, cited by appellant, the basis for piercing the corporate identity was the personal wrongdoing of the sole shareholder. In Bossier Millwork & Supply Company v. D. &. R. Construction Company, Inc., supra, 245 So.2d at 417, the basis of finding shareholder liability was a finding of fraud and deceit on the part of the shareholders.

In the present case appellant’s allegations of fraud and deception on the part of Womack were abandoned at trial. Therefore, fraud cannot be used as a basis for disregarding the corporate entity. When fraud or deceit is absent, other circumstances must be so strong as to clearly indicate that the corporation and shareholder operated as one. For example, in Brown v. Benton Creosoting Company, supra, a case concerning multiple corporations having identical ownership, the court found that the corporation had ceased from its inception to operate as a separate corporate entity. However, the totality of facts strongly supported this finding:

“* * * [N]o meetings of the shareholders or directors were held after the organizational proceedings were had. No bank account was maintained by the corporation, but all receipts, whether by check or cash, were remitted to and deposited in the account of Kennedy Sawmills, Inc. Invoices for materials sold instructed the purchasers to remit directly to Kennedy Sawmills, Inc. The books of the corporation were kept in the office of Kennedy Sawmills, Inc., whose checks paid the operating expenses of the corporation, for, as stated, the corporation maintained no bank account.
******
“The funds of the corporation and Kennedy Sawmills, Inc., were completely commingled. One endorsement stamp served the purpose of endorsing all checks for deposit, whether received in the name of John E. Kennedy, Kennedy Wood Farms, Kennedy Supply Company, Inc., Kennedy Sawmills, Inc., or Benton Creosoting Co., Inc. * * *” 147 So.2d at 93

To the contrary, the totality of facts in the instant case does not support a finding that the corporations had ceased to exist as entities, separate and distinct from their principal shareholder. Bakerfield had been an active contracting firm since the early 1960’s with a recognizable identity. In fact, it is evident from the record that Kingsman was familiar with Bakerfield and never doubted that it was dealing with the corporation and not Womack personally. Further, each corporation and Womack maintained separate bank accounts and bookkeeping procedures and employed different certified public accountants. Transactions between the parties’ accounts were documented so as to maintain the separate identity of the funds. Appellant has failed to substantiate his contention that Wom-ack’s personal funds and the funds of the corporations were commingled. Womack, upon the advice of his attorneys, followed the formalities necessary to maintain the corporations’ identities. The totality of facts pointed out by the appellant fails to justify the contravention of the general rule of shareholder non-liability for corporation debts.

For the foregoing reasons, we affirm the trial court’s decision. The costs of this appeal are assessed against appellant.

AFFIRMED.

      . These factors may include but are not limited to: commingling of corporate and shareholder funds; failure to follow statutory formalities for incorporation and the transaction of corporate affairs; undercapitalization; failure to provide separate bank accounts and bookkeeping records; and failure to hold regular shareholder or director’s meetings.


author: SARTAIN, Judge.

text:
    Jim DIXON, Jr., Plaintiff-Appellant, v. J. E. GUTNECHT et al., Defendants-Appellees.
    No. 10812.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18, 1977.

      Joseph A. Gladney, Baton Rouge, for plaintiff-appellant.
    Shelby W. McKenzie, Vernon P. Middleton, Carey J. Guglielmo, Baton Rouge, for defendants-appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Plaintiff, Jim Dixon, Jr., was seriously and permanently injured on March 6, 1970, at the Kaiser Aluminum & Chemical Company (Kaiser) plant in Baton Rouge, Louisiana. At the time plaintiff, an employee of Kaiser, was stenciling paper bags when two large cartons of these bags fell on him. He sued numerous employees of Kaiser under the theory of executive liability, St. Regis Pulp & Paper Corporation and St. Regis Paper Company, Inc. (St. Regis), the manufacturer of the bags and cartons, alleging that the carton itself was defective and/or that St. Regis was negligent in failing to give proper instructions as to the stacking of these cartons. Other defendants were named and subsequently dismissed via motions for summary judgment. The release of these latter defendants is not an issue.

The cause went to trial on the merits and on the morning of the second day thereof plaintiff entered into a restrictive compromise and settlement with the Kaiser employees and their liability insurer for the sum of $275,000.00. As part of the settlement Kaiser waived any claim it had to the sum of $55,991.68 representing the amounts paid to plaintiff as workmen’s compensation weekly benefits and medical expenses. As thus postured, the trial continued for an additional four days amassing a rather large record as the seriousness of the injuries and the complexities of the circumstances would indicate. Plaintiff now appeals from a judgment rejecting his demands as to the remaining defendants. We affirm.

GENERAL FACTS

Kaiser is the manufacturer of certain aluminum products. One of its products is packaged in paper bags in the Hydrate Loadout Building. Kaiser purchases these bags from three sources including St. Regis. The bags are shipped by rail and truck to Kaiser in palletized cartons. When they arrive at the Kaiser plant they are stored in a brick warehouse and also in the Hydrate Loadout Building. The individual bags are removed from the carton in the Hydrate Loadout Building, stenciled to designate the shipment order, filled with the aluminum product, and shipped to Kaiser’s customers.

Dixon had removed and stenciled approximately three hundred of these bags when the top two of a stack of four cartons fell on him causing the injuries which precipitated this litigation.

These cartons consist of two large pasteboard boxes approximately 48" X 48" with open (telescopic) tops. Approximately two thousand paper bags are stacked in an interlocking manner in one of the boxes. The other box is then inverted and placed over the box containing the bags. A wooden frame (referred to as a picture frame) is placed on top of the carton. Another frame of similar design together with two by four runners (stringers) are placed on the bottom of the carton. The whole assemblage is then bound together as one unit with metal bands. The purpose of the stringers is to permit lifting and unloading with a forklift machine. The picture frame across the top is to lend rigidity to the carton so as to facilitate handling. In the trade, the carton thus comprised is referred to as a “palletized telescopic carton, picture frame on top, with two way entry.” It weighs approximately 1700 pounds. When bags are needed, the carton is then moved near the bagging machine by a fork-lift machine. The wire band is cut, the picture frame removed, the top box lifted, and the bags removed as needed. The bags themselves are 21" X 24" with a five inch top and bottom and five layers of thickness.

These cartons are stored primarily in a brick warehouse at Kaiser. However, because of the abundance of supplies on hand, they are also stored in the Hydrate Loadout Building. It was Kaiser’s practice to stack them as high as these two buildings permitted, generally four-high.

The record contains the testimony of numerous employees of Kaiser and centers around the stability, handling and storage of these cartons. Several forklift operators testified that when the cartons arrived by rail they would be packed very tightly in the boxcars and were very difficult to unload, and frequently, a carton would break or a stringer would break. Apparently, these operators were given no instructions as to how high these cartons should be stacked. When one operator was asked how high did he stack the cartons, he said it all depended on the height of the building. They all knew that a damaged carton was not to be stacked and that the cartons themselves were to be stacked evenly and straight. One operator testified that they were always falling. The testimony as a whole does not support this observation. Another employee had worked for Kaiser for over 29 years and had never seen a stack of cartons topple over or fall. Plaintiff himself worked around these cartons for almost five years and while he observed a broken carton on several occasions on the floor in the mornings when he arrived for work, he had never actually seen or heard of a carton falling. It is impossible to say whether these particular cartons observed by plaintiff on these occasions had fallen or were not stacked because they were already broken as per instructions.

Every supervisory employee of Kaiser who testified stated that he had no knowledge of any of these cartons falling. Further, for a period of fifteen years they had received bags from St. Regis. During this span of time bags arrived without pallets, picture frames or stringers. Earlier, Kaiser had used its own pallets to lift, move or store these cartons on. At no time did they or any person at Kaiser complain to or notify St. Regis that the packaging, palle-tizing and shipment of these bags presented any problem, was defective, inferior or improper in any manner.

The trial judge, in his written reasons for judgment, stated:

“Numerous witnesses testified in the matter concerning factors which may have precipitated the fall of the cartons and no useful purpose would be served in rendering a detailed review of their testimony. Suffice it to say that the overwhelming weight of their testimony, together with the photographs filed in the record, demonstrate clearly that the real and underlying cause of the accident was the improper stacking of the cartons which was solely attributable to the employees of Kaiser, both in a subordinate and supervisory capacity. In fact, confirmation of this conclusion is graphically evidenced by one photograph (Exhibit P-2 G) taken the day before the incident in the special products building which photograph shows the same cartons which fell on Dixon in a leaning attitude. Obviously, the cartons should not have been stacked four high and particularly not in the manner depicted. There is no question but that the cartons were stacked there by Kaiser’s employees with at least some knowledge on the part of those in charge, including some of the named individuals who were formally named in this litigation.
“Nevertheless, plaintiff’s counsel, industriously strives to show that the supplier, St. Regis, was deficient in a number of respects and the Court therefore will undertake to seriously consider each of the complaints described. First, it is asserted that the palletized cartons as shipped by St. Regis, including those involved in the occurrence, were not only improperly designed but were defectively constructed. On this point, plaintiff’s own expert, Dr. Gerald Whitehouse, reiterated several times in his testimony that he found no shortcomings in the design or makeup of the pallets and cartons, but felt that the only failing of the supplier, if there was one, was in not apprising its consumer, Kaiser, as to the safe limits to which the cartons could be stacked. Other than the implication that the pallets involved in the accident may have been improperly constructed because of a cracking sound heard by Dixon before the fall, there was no substantive evidence showing defective construction or fabrication of the cartons or pallets.
“St. Regis acknowledged that prior to the accident it did not conduct testing to see how high the cartons could be safely stacked nor did it advise Kaiser as to the safe limits to which they could be stacked. The Court is of the opinion that St. Regis did not have a duty to test cartons for safe stacking nor to warn plaintiff of danger in stacking cartons four high. This is because the law does not require that one undertake to do a vain and useless thing, but only to do that which is reasonable under the circumstances. Singleton v. Olen Mathierson [Olin Mathieson] Chemical Corporation, 131 So.2d 329. Had the product furnished by St. Regis had either some inherent or hidden properties which rendered it or made its use inherently unsafe, then of course adequate testing and sufficient dissemination of this fact to the consumer would be required. But such is not the case in the matter under consideration. To the contrary, all of the properties and characteristics of the product which would make it unsafe were easily observable to a prospective user. Clearly, if the cartons were stacked too high in an imperfect fashion, they would not defy gravity, but would fall. Additionally, the prospective user in this case was an ‘informed’ user, i. e., engineering personnel and experienced forklift operators of Kaiser. Particular in this regard is the case of West v. Hydro-Test, Inc., 196 So.2d 598 (La.App. 1st Cir. 1967), wherein the Court stated:
“ ‘ . . . [T]he manufacturer of a dangerous instrumentality is obliged to warn foreseeable users of the limitations of a product when use beyond its limitations may be fraught with potential perils. However, such rule is without application in those instances wherein the injured party either knows or should know the limitations and restricted capabilities of the article.’
“In a similar case, Albert v. J. [&] L., Engineering Company, 214 So.2d 212 (La. App. 4th Cir. 1968), the court declared:
“ ‘Stated another way, the law appears to be simply that a duty to warn is imposed on the manufacturer only when there is a hidden danger not obvious to one using the product.’
“It would be difficult to consider what St. Regis knew about stacking its product that Kaiser did not already know. While the Court is clearly sympathetic with the plaintiff’s case because of the magnitude of his injuries, there is no liability owed by St. Regis to. him.”

ASSIGNMENT OF ERRORS

Plaintiff assigns as error here the failure of the trial judge (1) to hold St. Regis strictly liable as a manufacturer of a defective product; (2) to hold St. Regis liable for failure to design and test the carton for safe stacking; (3) to hold St. Regis legally responsible for its failure to warn Kaiser of the danger of stacking the cartons four high; and (4) to hold St. Regis liable as a joint tort feasor of Kaiser.

It is evident, from the above assignment of errors, that plaintiff seeks recovery from St. Regis under one of two (or both) theories of law: that is, strict tort liability for a defective product (Error 1) or on the basis of traditional negligence (Errors 2, 3 and 4).

It is argued that by virtue of the holding in Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754 (1971), Louisiana has joined the ranks of those common law jurisdictions who have imposed strict liability on the manufacturer for injuries resulting from the use of a defective product. In Weber, the court stated:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

The Weber court did not use the sacramental words “strict liability” nor did it refer to Section 402 A, Restatement of Torts (Second). As a matter of interest, the dissent particularly noted that Louisiana had not yet incorporated this section as such in our jurisprudence. Nonetheless, Weber, has provoked considerable discussion among the writers who have said the decision is “functionally equivalent to and theoretically all but indistinguishable from” Section 402 A (Robertson, 50 Tul.L.R.) and “ Weber’s implication was clear and left little doubt that the rule there articulated was a virtually verbatim adaptation of the Restatement concept” (Boisfontaine and All-mont, 20 Loy. (N.O.) L.R. 559). Similar views were expressed and the courts so held in Welch v. Outboard Marine Corporation, 481 F.2d 252 (5th Cir., 1973) and Perez v. Ford Motor Co., 497 F.2d 82 (5th Cir., 1974).

In Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974), plaintiff purchased a truck through Reliable, had it adapted to haul pulpwood through G & S, and purchased tires through Montgomery Ward. While the latter defendant was mounting the tires on split rims, a tire “exploded” from the wheel, injuring plaintiff. The court found negligent conduct on the part of G & S and Montgomery Ward, declared G & S to be a manufacturer presumed to know the vice of its product, and exonerated Reliable of any liability as a Seller under C.C. Art. 2531. It is pertinent to the issue here discussed that Weber was not mentioned in the decision. The two dissents expressed the view that Weber and the principle announced in Section 402 A were applicable.

Strict liability in and of itself is nothing new to Louisiana. It is found in cases involving food and drink (LeBlanc v. Louisiana Coca Cola Bottling Co., 221 La. 919, 60 So.2d 873 (1953); in matters of redhibition (C.C. Arts. 1920, et seq.); vicinage (C.C. Arts. 667-669); with the latter being tied directly into C.C. Art. 2315 (Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971)). The nature of the conduct complained of and the character of the parties have determined the applicable rules. However, the imposition of strict liability on a manufacturer of a non-bodily-use product is new to our jurisprudence if its advent was occasioned by Weber. We hold that it was.

The invocation of strict liability brings with it a corresponding change in the conventional rights and responsibilities of the parties in a delictual action. In essence, it is liability without proof of specific substandard conduct. All that is required is that the plaintiff prove a defect in the product; that at the time of its failure it was in normal use; that it was unreasonably dangerous in that use; and that the injuries were caused by the defect. The defenses in such an action are the negative of any of the above plus the assumption of risk as distinguished from contributory negligence. Hastings v. Dis Tran Products, Inc., 389 F.2d 1352 (W.D.La.1975); and Langlois v. Allied Chemical Corporation, above.

In the instant case, the trier of fact found and we agree, that the cartons were not defective. It is for this reason that plaintiffs claim on the basis of strict liability must fall.

Weber theorizes that a product is defective when it is “unreasonably dangerous to normal use ... if the injury might reasonably have been anticipated.” Welch, above, stated that “A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risk involved or if the risks are greater than a reasonable buyer would expect.” Neither of these definitions excludes the other and both turn on foreseeable risks.

Plaintiff argues that the cartons were defective for two reasons. One, that the wood used for the picture frames and stringers was inferior and gave way to superior weight; and two, that the design of the cartons was such as to preclude safe stacking beyond the height of two cartons. With respect to the first claim, the trial judge was correct when he stated that other than plaintiffs testimony that he heard a “cracking” sound just before the accident, there is no evidence that would support a conclusion that the wood on these two particular cartons was inferior, broken, weak or otherwise unsuited. To determine that the cartons fell because of a particular defect in the wood would be rank speculation. It is far more reasonable to conclude that the cartons fell because they were improperly stacked. This conclusion is supported by the photograph in the record which very clearly depicts the angle at which the top carton was resting, a condition which had been permitted to exist for hours before the cartons toppled. Plaintiffs own expert could not find fault with the basic design of the single palletized carton.

This leads us to the second contention of plaintiff, i. e., that the design and construction of the carton did not permit safe stacking to the height of four.

This argument must also be rejected. Assuming, which we must, that a cause in fact of the incident was the improper stacking, it must also be shown that the alleged defect in design, which, acting either in conjunction with or independently of the improper stacking, was also a cause in fact of the accident. Plaintiff attempted to show that the design was defective because as the metal bands around the carton were drawn tighter the top of the carton was no longer perfectly flat and therefore it was not possible to stack successive cartons on the level surface. Hence, a stack of four cartons creates a column that is unstable, susceptible of toppling and therefore dangerous. We do not find that the evidence adduced during the course of the trial supports the conclusion that this condition, if it existed, was a cause in fact of the falling of the two cartons which injured plaintiff. Further, plaintiff’s entire argument in this regard assumes a premise that is not supported by the record. That is, that St. Regis was required to furnish Kaiser with a carton that could be stacked to the height Kaiser’s personnel presumed to stack them.

The type of carton, its composition and design requirements were specified by Kaiser, to-wit: “Palletized telescopic cartons with picture frames on top; two-way entry; 2000 per pallet; rubber dunnage; truck shipments to be single tier or open trucks.” St. Regis was not asked or required by Kaiser to design, produce or furnish Kaiser with a carton possessing any particular stacking capability. The individual carton was prepared according to a given customer’s need and request.

In the instant case, notwithstanding the testimony of some of Kaiser’s operators, St. Regis was never told of any particular problem experienced by Kaiser throughout the years it had purchased bags from St. Regis. Significantly, Kaiser supervisory personnel was satisfied with the cartons as received. St. Regis’s own experience with the stacking of these cartons in its own warehouse disclosed no danger to stacking. For these reasons, we must conclude that plaintiff has failed to satisfy the proof of a defect under either the Weber or Welch rule, above. Certainly, if any object is stacked too high it will have a tendency to fall. This does not make the item itself dangerous or defective. There was nothing inherently dangerous in the carton itself. Only its subsequent improper use made it dangerous in the instant case. By such use, plaintiff was placed in a position of peril. The persons responsible were his immediate superiors who failed to observe and correct a hazardous situation created by the improper placement of one of the cartons in a leaning position.

ERRORS 2 AND 3

As stated above, the sole cause in fact of this accident was the result of improper stacking of the cartons by Kaiser employees. Ordinarily, this would obviate the necessity of discussing the duty owed by St. Regis under the circumstances. Nonetheless, we are satisfied that St. Regis breached no duty to Kaiser and its employees. Plaintiff argues very strongly that the carton sold by St. Regis “was unreasonably and inherently dangerous when stacked in Kaiser’s warehouse at a level of four (4) high.” Again, plaintiff assumes a premise that is not supported by the record, namely, that St. Regis was required to produce a carton that could be stacked to the level of four high. We find nothing in the record that imposes such a duty on St. Regis. Kaiser, with a staff of engineers and safety experts, had designated the type of carton that they desired and had for years purchased the same from St. Regis without having once voiced a single complaint as to its construction or any of the difficulties some of plaintiff’s witnesses (Kaiser forklift operators) claimed to have experienced. This is not to say that St. Regis, with impunity, could unleash on its customers a product that was fraught with danger. But, there is nothing inherently dangerous in the carton itself. Only its subsequent improper use made it dangerous in the instant case. It was just such a use that placed plaintiff in a position of peril. St. Regis’s duty was to produce a product that in its normal and reasonably foreseeable use would not be hazardous to others. We do not construe and cannot say that stacking these cartons four high falls within the category of normal use. St. Regis, after having produced the carton according to Kaiser’s specifications, was not required to follow its product into the market place in an effort to preclude any and all possibilities of injury, including the manner in which such cartons were stored or stacked. We do not assume for one minute that these cartons are incapable of being stacked to the level of four high because the evidence on this point is inclusive. Be that as it may, the unalterable fact remains that this was not a requirement placed on St. Regis by Kaiser or a duty that falls within the purview of reasonableness and is therefore imposed by law.

Plaintiff argues very strongly that the test performed by Kaiser’s engineers after the accident caused Kaiser to limit future stacking to two cartons and then only after requiring heavier stringers. We can only assume that this was a double precaution exercised by Kaiser taking into account their own storage requirements. But, even then plaintiff’s own expert conceded that the earlier cartons could be reasonably stacked two high. Under these conditions, we fail to see how St. Regis was guilty of negligence in the premises.

ERROR 4

Lastly, plaintiff argues that St. Regis is a joint tort feasor of Kaiser and inasmuch as the trial court has found Kaiser guilty of negligence, St. Regis should also be cast in judgment. We agree that Kaiser supervisory personnel were negligent in failing to observe the manner in which these cartons were improperly stacked, thereby permitting plaintiff to work in an area that was unsafe which resulted in his injuries. However, we find no grounds upon which to base a finding of negligence on St. Regis. Two or more persons may be liable in solido for injuries to another when the individual acts of those persons contribute to the incident which caused the injuries. In the instant case we find no negligent conduct on the part of St. Regis for the reasons stated above. The only other basis on which a finding of liability in solido of St. Regis with Kaiser would be upon a showing that St. Regis caused, assisted or encouraged Kaiser in the commission of the offense for which Kaiser itself is deemed to be negligent. C.C. Art. 2324. In this matter St. Regis was the manufacturer-vendor of a product sold to Kaiser and nothing more.

Accordingly, for these reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Douglas W. Partin

      . John Bergeron

      . Edgar Ruiz


text:
    Milton CRANFORD et al., Plaintiffs-Appellants, v. NELSON & EAST FORD CO., INC. and American Oil Company, Defendants-Appellees.
    No. 10976.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Stephen P. Dart, Kilbourne & Dart, St. Francisville, for plaintiffs-appellants.
    Carey J. Guglielmo, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for American Oil Co., defendant-appellee.
    Robert W. Smith, Seale, Smith & Phelps, Baton Rouge, for Nelson & East Ford Co., defendant-appellee.
    Arthur H. Andrews, Franklin, Moore & Walsh, Baton Rouge, for third party defendant, Brunner Engineering & Mfg., defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Plaintiff herein appeals from a judgment in the district court denying him relief sought for personal injuries and property damages allegedly suffered when his 1971 Ford Econoline van was destroyed by a fire and explosion.

In June, 1971, plaintiff engaged American Oil Company to remove a liquified petroleum gas (L.P.G.) tank from another vehicle he owned and install it in his Econo-line van. American provided the components and performed all the work necessary to convert the van’s fuel system to L.P.G. from gasoline use. The tank was manufactured by Brunner Engineering & Manufacturing Company. Plaintiff operated the vehicle without any problems until January 6, 1972. On that day he took his van to Nelson & East Ford Co. in Zachary, Louisiana for a “valve job.” Nelson & East kept the vehicle for five days, during which time its mechanics removed the engine head, carburetor and connecting hose leading to the carburetor from the vaporizer located underneath the hood of the van. They then ground the valves and reassembled the engine components.

On January 18, 1972, as plaintiff was driving the van, it exploded and caught fire and was destroyed along with its entire contents. In addition, plaintiff claims to have suffered abrasions and burns in the accident.

Plaintiff, joined by his insurers, subro-gees to his rights involving certain medical payments and property damages, instituted this suit against American and Nelson & East. Plaintiff alleges that both defendants were negligent in failing to exercise the proper standard of care in installing and/or repairing the fuel system to be used in connection with a highly dangerous substance and in providing a fuel system or parts thereof which possessed an inherent defect. It also alleged, in the alternative, that the doctrine of res ipsa loquitur should apply. Defendant American Oil Company third partied Brunner as manufacturer of the tank alleging that Brunner be held liable to American in the event that American should be held liable to the plaintiff for any defects in the tank.

The trial court dismissed claims against all defendants, finding that the plaintiff did not discharge the burden of proof necessary to establish negligence on the part of any of them. Likewise, the lower court found the doctrine of res ipsa loquitur inapplicable. We affirm.

Plaintiff testified that on the morning of the accident he filled the tank of his van from a five hundred gallon field tank located in the yard at his home. Upon filling the tank he smelled escaping gas so he left open two wide doors on the side of the van to allow the fumes to dissipate. He then returned to the house and waited inside for about fifteen minutes. When he returned and noticed no gas he closed the doors and proceeded down the road toward his job. He said he had travelled no more than three-quarters of a mile when he felt a “tingling” sensation on the back of his head and hands and then an explosion followed. Plaintiff claims the force of the explosion propelled him out of his seat and through the front windshield onto the highway. He states the van did not crash.

In order to establish liability of a party in a negligence action a causal connection must be found between his acts of commission or omission and the harm suffered by the complaining party. The Supreme Court of Louisiana used the following test to determine if this required causal connection has been shown:

“Every act leading up to an accident cannot be said to be a cause-in-fact. However, when those antecedent acts bring the court, after careful scrutiny of all the facts and circumstances, to a conclusion that more probably than not they were necessary ingredients of the accident, they constitute cause-in-fact. In resolving this question we make no inquiry as to whether the act was unlawful or negligent. We determine only whether it was a substantial factor without which the accident would not have occurred — that is, whether it had some direct relationship to the accident.”

Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714, 717 (1972).

Plaintiff contends that American, in installing the L.P.G. tank in the van violated various regulations of the Louisiana Liquified Petroleum Gas Commission by placing the tank too close to the engine, in placing the tank in a space which was not sealed off from the passenger compartment, and in not directing the vent from the tank’s safety relief device in an upward direction. Assuming that American did violate these regulations when it installed the tank, plaintiff has made no showing that such violations contributed in any way to the explosion which destroyed the van. No evidence or testimony presented at trial pointed to any other actions on the part of American which could reasonably be concluded as having contributed to the explosion and fire which destroyed the van. The tank and its components were found to be intact after the incident and showed no signs of rupture. Plaintiff had had some problems prior to the accident with leakage from one of the valves of the tank. However, the record is void of any evidence which would lead us to conclude that any leakage occurred at the time of the explosion. Rather, plaintiff testified he had smelled gas when he filled the tank but by the time he began driving the van, immediately before the accident, no smell was to be found.

We likewise uphold the trial court’s finding that the doctrine of res ipsa loqui-tur is inapplicable to the case presented here. Larkin v. State Farm Mutual Automobile Insurance Co., 233 La. 544, 97 So.2d 389 (1957); Bougon v. Traders & General Insurance Co., 146 So.2d 535 (La.App. 4th Cir., 1962), and Morales v. Employers’ Liability Assurance Corporation, 202 La. 755, 12 So.2d 804 (1943).

Turning now to the issue of Nelson & East’s negligence in repairing the van, the record shows that the mechanic who performed the work, including the reassembling of the fuel system, was experienced at that relatively simple task. His testimony reflects that he did indeed tighten the clamps necessary to prevent leakage of the gas. Had this not been done correctly, the vehicle would be expected to run very sluggishly due to introduction of air into the fuel line. Plaintiff himself stated that the van ran smoothly until the accident. The metal and plastic hood covering the engine, designed to contain engine noise and fumes, is located inside the passenger compartment next to the driver’s seat. All evidence indicates that this was tightened adequately by Nelson & East mechanics upon completion of repairs. No evidence was offered to indicate leakage of gas from this source.

In Morales, the Supreme Court held:

(12 So.2d at page 808)
“It is the duty of the plaintiff to prove negligence affirmatively; and while the inference allowed by the rule of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as a result of one of two causes, the reason for the rule fails and it cannot be invoked.”

Plaintiff admits that among the other items found in the van at the time of the accident were metal cans containing lacquer thinner, contact cement and a large heater containing diesel fuel. All of these materials are highly flammable. It was shown at trial that there were various possible sources of ignition found within the van itself, such as the ignition switch, radio, and even sparks from a burning cigarette. The presence of these factors casts considerable doubt on plaintiff’s assertion that because the fire or explosion occurred it must have been caused by the presence of propane (L.P.G.) gas inside the van.

As to American Oil Company’s third party claim against Brunner Engineering & Manufacturing, there was ample evidence presented at trial to show that the tank manufactured by Brunner was free from defects and that it in no way contributed to the fire. The only part of the tank or its components which had given plaintiff any previous trouble was the POL valve, which American had installed at plaintiff’s request and which was not manufactured by Brunner. It had leaked small amounts of gas on previous occasions and the testimony suggests that this was due to improper filling procedures utilized by plaintiff.

In his written reasons for judgment the trial judge stated:

“Without going into the unlikely and improbable story of the plaintiff of this bizarre event, this court finds that the plaintiff has not sustained his burden of proving negligence on the part of either of the defendants.”

We concur.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge:

text:
    Melvin BANKS, Individually and as Administrator of the Estate of his minor son, Kevin Banks v. TERREBONNE PARISH SCHOOL BOARD et al.
    No. 10936.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Edward Dixon, New Orleans, for plaintiffs and appellants.
    Anthony D. Ragusa and Edmund McCol-lam, Houma, for Terrebonne Parish School Board, appellees.
    Edward B. Lobman, New Orleans, for Chester Dillard and appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

Kevin Banks, fifteen years old, injured his neck and back while performing a tumbling exercise over stacked chairs in a school gymnasium. This lawsuit followed. The trial court dismissed the suit by Melvin Banks (in his own and his son’s behalf), finding no negligence on the part of either Coach Chester Dillard or the Terrebonne Parish School Board or its public liability insurer, The Travelers Insurance Company, in this accident. We affirm the judgment of the trial court.

The accident occurred in the Southdown Middle School Gymnasium on January 29, 1974, during the physical education class. Kevin Banks was a student member of the physical education class in the eighth grade at Southdown Middle School at the time of the accident. The class was taught by Coach Dillard, one of the named defendants. On the date in question Kevin arrived at the gymnasium about 11:00 o’clock a. m. At the time of his arrival several fellow students were engaged in a tumbling activity, which consisted of a diving roll over two or three folding-chairs stacked on top of each other on the gymnasium floor. The students in turn would approach the stacked chairs, hit a spring board, and dive head first over the chairs, landing on a mat on the other side, where they tumbled over the landing area.

While Kevin was jumping, his foot apparently struck the chairs causing him to hit the landing mat on his head rather than on his feet, resulting in the injury which precipitated this suit. The attending physician diagnosed his injury as a very slight sub-luxation of the cervical spine (at C-2 and C-3) which responded to conservative treatment.

At the time of the incident Coach Dillard was on the stage at one end of the gymnasium collecting valuables from other students who were to dress out and then take part in the physical education exercises, so he did not observe the tumbling activity or see Kevin Banks get hurt. After his injury, Kevin reported the incident to Coach Dillard who sent him to the principal’s office. There he reported the incident and called his mother. Kevin was taken to the hospital, where he remained for 10 days.

The particular type of class activity in which Kevin was engaged was permissable and a recognized acceptable form of physical education at the school. The evidence establishes that Coach Dillard is a qualified and competent instructor in this field, including the type of gymnastics in which Kevin was engaged and that the coach properly instructed the students in his class, including young Banks, in this type of gymnastics.

The evidence establishes, and the trial court found, that the particular tumbling activity was not authorized at the time or under the circumstances, but that a number of students were engaging in the activity contrary to the school rules and regulations governing such activities. The testimony in this case is to the effect that students were not authorized to participate in this type of gymnastics until they had properly dressed out and the roll call of the students had been taken by the coach. Only then, and under supervision of the coach, were the students authorized and permitted to perform this type of activity. The evidence also shows that the students, including Kevin Banks, were properly instructed in tumbling by the coach. We are convinced from the evidence that on this occasion Kevin and his fellow students were performing the tumbling activity of their own accord in the gymnasium prior to the physical education class actually commencing, without any supervision of the instructor. There is no testimony that the particular tumbling activity was authorized by Coach Dillard. In fact, he testified that he would not allow unsupervised tumbling exercises; and that if he had been aware of the activity, he would have stopped it. The evidence establishes that the coach was not aware of the unauthorized activity going on because he was busy collecting valuables from other students and with other matters preliminary to getting a physical education class started. There is just no way that a teacher can give personal attention to every student all of the time.

The court in McDonald v. Terrebonne Parish School Board, 253 So.2d 558, 562 (La.App. 1st Cir. 1971), writ ref. 260 La. 128, 255 So.2d 353 (1971), commented:

“The fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees.”

In Selleck v. Insurance Company of North America, 182 So.2d 547 (La.App. 1st Cir. 1966), a student was injured when struck by a bicycle ridden by another student on the school playground contrary to school regulations. The court rejected the plaintiff’s contention that school was negligent in not properly supervising the playground activities, and said at page 550:

“From the evidence before us we are unable to say that the school was negligent in providing only one supervisor for the overseeing of thirty to forty children. Plaintiff contends that an additional supervisor should have been with the children. The complaint is based on the failure to observe young Donald riding his bicycle. We find no validity or merit in this argument because necessarily the supervisor could not at one and the same time observe all actions of all children in all directions. Neither could such observations have been provided short of a supervisor for each child at large on the playground. We find no basis for finding a causal relationship between the lack of additional playground supervisors and the occurrence of the accident involved herein. Nor under the evidence presented herein is there a basis for holding that the supervisor was negligent merely by reason of the occurrence of the accident. Negligence, in this type (of) case does not attach by inference.”

The plaintiff in Selleck tried to analogize the incident to automobile accidents. However, the court rejected this argument in the following language at page 551:

“The duty imposed on the playground supervisor to oversee the playing and other activities of children is quite different from the duty of a motorist to keep a sharp lookout ahead. The playground supervisor cannot be burdened with the duty to see and actively direct the movements of each child at all times. There is no analogy between the duties of a motorist and those of a school playground supervisor.”

“As is often the case,” the court said in Nash v. Rapides Parish School Board, 188 So.2d 508, 510 (La.App. 3 Cir. 1966), “accidents such as this, involving school children at play, happen so quickly that unless there was direct supervision of every child (which we recognize as being impossible), the accident can be said to be almost impossible to prevent.”

The facts of the instant case bring it within the scope of the foregoing statements. Hence, the judgment appealed from is affirmed at the appellant’s costs.

AFFIRMED.


text:
    Dorothy C. SMITH v. Woodrow W. SMITH.
    No. 10940.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    W. J. Barnes, II, Baton Rouge, for ap-pellee.
    Joel B. Dickinson, Baton Rouge, for appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This is an appeal from a judgment on a rule to fix accrued and past due alimony and from a judgment awarding alimony pendente lite in a reduced amount. We affirm in part and reverse in part.

Mrs. Dorothy C. Smith, appellee, was legally separated from her husband, Woodrow W. Smith, appellant, by judgment signed on July 31, 1975, which also ordered the husband to pay his wife alimony pen-dente lite in the amount of $497.12 per month. Appellant made only one payment, then failed to make further payments. Thereafter, on January 14, 1976, appellee brought a rule for judgment for the past due alimony and to increase the alimony pendente lite, alleging that the original award was insufficient because of increased expenses. Appellant answered the rule and sought by reconventional demand to be relieved of payment of alimony because of a change in business income. The trial court dismissed the reconventional demand without prejudice and allowed the appellant to file an appropriate rule. Appellant then brought a rule to be relieved from payment of alimony pendente lite or to have the amount of alimony reduced.

After a hearing, the trial court rendered judgment in favor of appellee, making the rule absolute to the extent that the accrued and past due alimony was fixed in the amount of $2,485.60 as of January 14, 1976. Judgment was signed on February 17, 1976. On the same date, the trial court signed judgment reducing the amount of alimony pendente lite to $350.00 per month. The husband has appealed both judgments.

We note that the parties were before this court earlier this year. On April 12, 1976, we reversed the award of $497.12 alimony pendente lite. This was done on a finding that the aforesaid amount was sufficient for her maintenance, but that she had sufficient income therefor because she was receiving all proceeds from a liquor store owned by the community of acquets and gains existing between them, one-half of said proceeds exceeding the $497.12 per month. This case is reported in 331 So.2d 611; writs were refused by our Supreme Court on July 2, 1976, 334 So.2d 435. Therefore, as to the $2,485.60 alleged accrued past due alimony, that matter is moot and we must reverse the trial court as to that portion of its judgment.

The trial court heard the evidence and concluded that the circumstances of the husband had changed inasmuch as business income was no longer available to him, so that his present income amounted to about $900.00 monthly. The wife’s expenses approximated $600.00 per month. She is not employed. Under the circumstances, the court considered that the alimony pendente lite should be reduced to the sum of $350.00 per month, payable in semi-monthly installments of $175.00 each on the first and fifteenth day of each month.

Under LSA-C.C. art. 148, if the wife does not have a sufficient income for her maintenance pending the suit for separation from bed and board or divorce, the court shall allow her a sum for her support proportioned to her needs and to the means of the husband. The wife is entitled to a sum sufficient to support her in a standard of living comparable to that which she enjoyed before the separation. The award must, however, be proportionate to the ability of the husband to pay.

An award of alimony pendente lite is largely within the discretion of the trial court, and in the absence of manifest error it will not be disturbed on appeal. Robichaux v. Robichaux, 276 So.2d 332 (La.App. 4 Cir. 1973); Gardes v. Gardes, 249 So.2d 221 (La.App. 4 Cir. 1971); Fuori v. Fuori, 316 So.2d 803 (La.App. 1 Cir. 1975).

We conclude that the trial court exercised his discretion fairly and without abuse in fixing the alimony in a reduced amount.

Accordingly, that portion of the judgment awarding the appellee $2,485.60 is reversed. The award of $350.00 per month alimony pendente lite is affirmed. Each party is assessed with one-half of the costs.

AFFIRMED IN PART; REVERSED IN PART.