author: REDMANN, Judge. PER CURIAM.

text:
    Philip J. NAMI v. PENINSULAR FIRE INSURANCE COMPANY et al.
    No. 8773.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 15, 1978.

      J. Paul Demarest, Favret, Favret & De-marest, New Orleans, for plaintiff-appellee.
    Albert H. Hanemann, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellants.
    Before REDMANN, BOUTALL and BEER, JJ. '
   REDMANN, Judge.

Defendant personal liability insurer appeals from a judgment which awarded plaintiff damages for injury to his hand from a gunshot wound suffered at his grandfather’s house from an automatic pistol belonging to the grandfather.

Plaintiff’s petition alleges, and he and his grandfather testified at trial, that the grandfather accidentally discharged the pistol while handing it to plaintiff. But medical records introduced by plaintiff (without objection) and testimony introduced by defendant show that plaintiff had told two treating physicians that he had accidentally shot himself.

Furthermore, according to an agent of the insurer, when the agent telephoned the grandfather about a year after the incident, in response to a letter from a lawyer purporting to represent both grandfather and plaintiff, the grandfather told the agent that plaintiff had shot himself when removing the loaded and cocked gun from atop a television set at the grandfather’s request.

Plaintiff (20 years old at the time of the accident) explained at trial that he was then trying to protect his grandfather from involvement. The grandfather gave no explanation for his inconsistency. The trial judge concluded that the wound was self-inflicted. He nevertheless imposed liability, reasoning that the “grandfather was negligent in placing on the TV a loaded and cocked (ready to fire) .45 caliber pistol.”

The question presented is whether, after rejecting as a fabrication the sworn testimony of plaintiff and the grandfather (in which action we find no error), the trial judge erred in basing a judgment on the facts stated in the unsworn prior contradictory statements of plaintiff and the grandfather.

We reason that the prior contradictory statements introduced by defendant did not constitute evidence of their substantive content. (That introduced by plaintiff, if evidence of its content despite plaintiff’s disavowal of it, would serve only to show that the wound was self-inflicted and would not implicate the grandfather.) Although the usual impeachment procedure was not employed, defendant’s introduction of the prior inconsistent statements- — especially that of the grandfather — was intended to show the unworthiness of belief of the sworn testimony. To that extent, the introduction of the prior inconsistent statements was similar to the introduction of such statements during impeachment of a witness.

The Louisiana rule on impeachment is the traditional one that the prior inconsistent statement is admissible only for impeachment purposes and is not evidence of the substantive content of the prior statement. State v. Ray, 1971, 259 La. 105, 249 So.2d 540; State v. Causey, 1972, 261 La. 1074, 262 So.2d 326; State v. Gray, La. 1973, 286 So.2d 644; State v. McMellon, La. 1974, 295 So.2d 782; State v. Kaufman, La. 1974, 304 So.2d 300; State v. Williams, La. 1976, 331 So.2d 467; Pardue v. Johnson, La.App. 2 Cir. 1975, 307 So.2d 682, writ refused, La., 310 So.2d 853.

We apply the impeachment rule by analogy in our circumstances, so that at least the grandfather’s prior contradictory statement, introduced by defendant to defeat the cause of action sued upon, does not constitute evidence of its substantive content. Accordingly there is no evidence of that substantive content and the plaintiff has therefore not proved how the accident happened nor why his grandfather’s insurer should be held liable; he has not proved any negligence on the grandfather’s part nor that the grandfather’s negligence caused his injury.

Reversed at plaintiff’s cost.

REHEARING OPINION

PER CURIAM.

Plaintiff represents that he does “not understand the Court’s holding in the last paragraph of its decision” and asks an explanation.

We meant that plaintiff did not prove either the case he testified to and alleged in his petition or the case that the trial judge found.

Plaintiff’s testimony and that of his grandfather at trial time were rejected insofar as they testified that the grandfather accidentally shot plaintiff while handing him the gun. The trial judge, with ample support apart from simple disbelief, rejected that testimony. So plaintiff did not prove that case.

But the trial judge found that the grandfather’s negligence, “in placing on the TV a loaded and cocked . . . [automatic] pistol” caused plaintiff’s injury, in that when plaintiff removed the gun from the TV the cocked gun simply went off, injuring plaintiff. However, plaintiff did not prove that case either. Those facts are not contained anywhere in the record except in the insurer’s agent’s testimony of an un-' sworn statement by the grandfather in a telephone conversation, which was testified to only for purposes of showing a prior inconsistent statement by the grandfather so as to refute the grandfather’s sworn testimony, and not for purposes of establishing the truth of the grandfather’s un-sworn statement.

If the sworn statement and the unsworn statement were simple logical contradicto-ries, such that the falsity of one would entail the truth of the other, then rejection of the sworn statement would necessitate acceptance of the unsworn statement. But the statements here are merely contraries, and not contradictories: they cannot both be true, but they could both be false; the truth of one entails the falsity of the other but not vice versa. That a thing is red means that it is not green; but that a thing is not green does not mean that it is red: it could be blue.

What the record here proves is that plaintiff accidentally shot himself at his grandfather’s house with his grandfather’s gun. Because the sworn testimony has been appropriately rejected and there is no other proof, there is no proof of how the shooting occurred. There is therefore no basis upon which to hold the grandfather at fault in the shooting.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Laurin T. Courtney, wife of/and Marion COURTNEY v. Bobby HARRIS, Fogleman Truck Lines, Inc. and the Insurance Company of North America.
    No. 8774.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Alford & Caruso, Walter T. Gamard, II, Fineran & Campbell, Robert J. Fineran, New Orleans, for intervenor-appellant.
    Darleen M. Jacobs, New Orleans, for plaintiffs-appellees.
    Ralph S. Johnson, New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and BEER, JJ.
   BEER, Judge.

Laurin T. Courtney suffered back injuries requiring hospitalization and medical treatment resulting from an automobile accident caused by Bobby Harris, employee of Fogle-man Truck Lines, Inc. She (and her husband) filed suit, and Allstate Insurance Company, the Courtneys’ insurer, intervened seeking reimbursement for medical expenses of $1,000, claiming to be subrogat-ed to plaintiffs’ rights to that extent or, alternatively, by virtue of La.Civ.Code art. 2315.

The trial court (without written reasons) awarded special damages of $1,338.96 to Marion Courtney, $4,000.00 to Laurin T. Courtney, and dismissed the claim of inter-venor, Allstate. Allstate alone appeals, contending that their recovery right should be validated on the basis of several alternative theories: conventional subrogation, legal subrogation, an independent cause of action in tort and/or prevention of unjust enrichment.

Allstate’s contention that it was conventionally subrogated to the rights of its insureds is unfounded. There is ample proof that a draft for $1,000 was received, but no proof of subrogation. Mrs. Courtney testified that she had not been told at any time that Allstate would seek repayment. She and her husband testified that in their view the payment of premiums to Allstate entitled them to keep the proceeds noted above regardless of possible recovery from defendants.

La.Civ.Code art. 2160 requires that conventional subrogation be express. There is no proof of such an express agreement.

In its alternative contention, Allstate cites Stephens v. Dore, 281 So.2d 889 (La. App. 3rd Cir. 1973), which is completely inapplicable to the facts of this case, and Hartford Accident & Indemnity Company v. Byles, 280 So.2d 624 (La.App. 3rd Cir. 1973), which is properly considered in light of the entirety of the jurisprudence, starting with London Guarantee & Accident Ins. Co. v. Vicksburg, S. & P. R. Co., 153 La. 287, 95 So. 771 (1923). The London Guarantee rule was often applied in cases dealing with property and collision damage. See, e. g., Volume Shoe Corp. v. Armato, 341 So.2d 611 (La.App. 2nd Cir. 1977); Hartford Accident & Indemnity Company v. Byles, supra; Aetna Casualty & Surety Company v. Allen, 132 So.2d 240 (La.App. 3rd Cir. 1961), and John M. Walton, Inc. v. McManus, 67 So.2d 130 (La.App. 1st Cir. 1953). The rule has not gone without criticism, although it has not been expressly overruled. In Forcum-James Co., Inc. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957), our Supreme Court cited the Supreme Court of the United States’ opinion in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 135, 72 L.Ed. 290. In that case, Justice Holmes concluded that:

“ * * * no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong. * * The law does not spread its protection so far.”

Forcum-James has been followed in Desormeaux v. Central Industries, Inc., 333 So.2d 431 (La.App. 3rd Cir. 1976), writ denied, 337 So.2d 225; Baughman Surgical Associates, Ltd. v. Aetna Casualty & Surety Co., 302 So.2d 316 (La.App. 1st Cir. 1974); and Messina v. Sheraton Corp. of America, 291 So.2d 829 (La.App. 4th Cir. 1974). However, in American Indemnity Co. v. New York F. & M. Underwriters, Inc., 196 So.2d 592 (La.App. 1st Cir. 1967) (which is particularly relevant to the instant case in that it dealt with medical payments under an automobile liability insurance policy, not with property or collision insurance as in the above cited cases), the court, holding that the insurer had no direct right of action against the third party tortfeasor, also observed that “dual recovery” is not, in and of itself, a basis' for upholding subrogation, citing Warren v. Fidelity Mutual Ins. Co., 99 So.2d 382 (La.App. 1st Cir. 1957).

Subsequent to American Indemnity Company, supra, the Third Circuit reached a similar result in Harris v. Huval Baking Company, 265 So.2d 783 (La.App. 3rd Cir. 1972), writ refused, 263 La. 103, 267 So.2d 210. There, an employees’ association founded for the purpose of providing medical and surgical treatment to its members, which had paid the member, intervened in a suit between its member and a third party tortfeasor. Citing Forcum-James, supra, the court denied that the association had a right of action in tort. Also, the court cited La.Civ.Code art. 2161(3) and the holding of the Supreme Court in Pringle Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969).

It must also be carefully noted that Hartford Accident & Indemnity Co., supra, dealt not with medical payments, but rather with uninsured motorist coverage. The court held in favor of legal subrogation, but, in so doing, it carefully distinguished Harris v. Huval Baking Company, supra, as follows:

“Substantially the same distinction is made in the American Indemnity case, supra. There, the insurer sought to recover from an alleged third party tort-feasor the amounts which it had paid to its own insured as property damages and as ‘medical benefits’ under an automobile liability policy. The trial court awarded it the amount which it had paid as property damages, because the policy specifically provided for subrogation as to those damages, but it rejected the insurer’s demand for the amount it had paid as medical expenses. The First Circuit Court of Appeal affirmed, holding that the insurer was not legally subrogated to the rights of the insured insofar as the medical payments were concerned. In that case, as in Harris v. Huval Baking Co., supra, the medical payments were owned by the insured regardless of liability on the part of anyone else, and the insurer thus was not bound with or for any other person for those payments. Article 2161 of the Civil Code did not apply, and the insurer thus was not entitled to a legal subrogation to the rights of its insured under that article. (Emphasis added.)”

Other circuits appear to have taken the position that, absent conventional subrogation, payment by the insurer to insured under the policy’s medical payment coverage provision does not result in legal subro-gation of the insurer to the rights of the insured. The rationale supporting this result seems to be that “ . . . subrogation arises only in favor of one who pays the debt of another, and not in favor of one who pays the debt in performance of his own covenants.” See: “Medical Insurer’s Right of Subrogation,” 73 A.L.R.3d 1140, 1148. We agree, being of the view that such medical payments are in response to a contractual obligation which arises from premium payments to the insurance company-

Stated another way, we are of the view that subrogation rights to medical payments in comprehensive automobile insurance policies do not obtain by implication or simply by operation of law. Nothing in this opinion should be construed to contravene or inhibit an insurance company’s right to provide, by policy provisions, for a right of subrogation conditioned only upon the pressures of the marketplace insofar as the premium rate and other competitive factors are concerned.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed. Each party to this appeal is to bear his own costs.

AFFIRMED.


author: GULOTTA, Judge.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY and Max Ferran & Son, Inc. v. Sharleen ROLLINGS, Larry Rollings and Continental Insurance Company.
    No. 8802.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Jack C. Benjamin, Arthur A. Crais, Jr., New Orleans, for defendant-third party defendant-appellant, Continental Ins. Co.
    James L. Bates, Jr., New Orleans, for defendants-third party plaintiffs-appellees, Sharleen Rollings and Larry Rollings.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   GULOTTA, Judge.

The sole issue confronting us is whether an automobile liability insurer has the responsibility to defend a suit filed against the driver of an automobile owned by the named insured, when the driver did not have permission from the insured to use the automobile, but the petition alleges this permission existed. We conclude, under these circumstances, the insurer is liable for the expense of the driver’s defense although the trial court determined, after trial, the driver was not in fact an “insured” under the policy. See American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1970).

The facts are that defendant, Larry Rollings, an employee of Southern Scrap Materials Company, Ltd., was given permission to drive a company-owned truck home overnight for his personal use. While the employer’s truck was in his possession, Rollings gave permission to his wife to use the vehicle and she became involved in the accident which is the subject of this suit.

Plaintiffs, the owner and insurer of the vehicle struck by Mrs. Rollings, filed suit against the Rollings and, under the Direct Action Statute, against Southern Scrap’s liability insurer, Continental Insurance Company. Southern Scrap was neither named as a party defendant nor thirdpar-tied. The petition alleged that Mrs. Rollings and her husband had the express or implied permission of Southern Scrap to use the company-owned vehicle.

In answer, on its own behalf only, Continental denied coverage on the ground that no such permission existed and thus the Rollings were not “insureds” under the policy. In answer to plaintiffs’ demand and by way of third-party petition, however, the Rollings sought reimbursement from Continental for any amount for which they may be cast in judgment and additionally sought $2,000.00 in attorney’s fees for their defense of plaintiffs’ claim.

Judgment for damages was rendered, after trial, in favor of plaintiffs and against the Rollings, based on a finding of Mrs. Rollings’ negligence. Plaintiffs’ claim against Continental, however, was missed on the court’s finding that Mrs. Rollings was driving the company vehicle without the permission of the named insured. Upon this finding of fact, there exists no liability coverage under the policy provisions. The trial judge rendered further judgment, however, in favor of the Rollings and against Continental in the sum of $2,000.00 for attorney’s fees for their defense of plaintiffs’ demand. Continental appeals. We affirm. dis-

The standard policy in this case provides property damage and bodily injury coverage and the company is obligated to pay “on behalf of the insured all sums which the insured shall become legally obligated to pay . . . .” The policy further states that “the company shall have the right and duty to defend any suit against the insured . even if any of the allegations of the suit are groundless, false or fraudulent . .” An “insured” is defined under the policy as:

“(a) the named insured,
(b) . . .
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured .
(d) . . .

According to the insurer, because its liability extends only to payment on behalf of the insured for all amounts for which the insured may be liable and because the Rollings do not fit the category of an insured (the trial judge having concluded that Rollings’ use was without permission), the trial judge erred when he cast the insurer in judgment for the payment of the defendant’s driver’s attorneyis fees incurred for their defense.

Our case is controlled by American Home Assurance Company v. Czarniecki, supra. In Czarniecki, a minor borrowed a vehicle without permission from its owner and became involved in an accident. Plaintiff sued the minor’s father who then thirdpar-tied the insurer of the owner of the vehicle driven by the minor. Plaintiff’s petition, as supplemented, alleged that the minor was driving the vehicle with the permission of its owner. As in our case, the owner’s policy defined an insured as:

u * * *
(1) the named insured .
(2) any other person using such automobile with the permission of the named insured . . . .”

and it further provided:

“[T]he company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * * Jf

After trial in Czarniecki, it was factually determined that the minor had driven the vehicle without the owner’s permission. The Supreme Court held, however, that even though the insurer was not liable under the policy for damages, it nonetheless was liable to the minor’s father for his expense in defending against plaintiff’s suit. In so holding, the court recognized that the insurer’s obligation to defend suits against its insureds is broader than its liability for damage claims. The Czarniecki court went on to say:

“Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Benoit v. Fuselier, 195 So.2d 679 (La.App.1967).
“Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insurer regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. Benoit v. Fuselier, ibid.”

See also Employers Commercial Union Insurance Company v. Bertrand, 306 So.2d 426 (La.App. 3d Cir. 1975).

Our situation is similar to that in Czar-niecki. The policy provisions are virtually the same and the petition before us alleges that the vehicle driven by Mrs. Rollings was owned by Southern Scrap Materials Company, Ltd., and insured by Continental Insurance Company, and that the Rollings “had the express or implied permission of the owner of the 1973 truck, that is Southern Scrap Materials Company Limited”. As pointed out in Czarniecki, it is of no moment (for the purpose of the insurer’s providing a defense) that after trial it is determined that no such permission was granted.

We find no merit to Continental’s contention that the Czarniecki case is inapplicable. Continental points out that the policy language relating to the insurer’s duty to defend in Czarniecki provides for a defense of “any suit” and in our case the policy obligates the insurer to provide a defense against “any suit against the insured”. According to Continental, the language in the instant case places a narrower responsibility for defense than in Czarniecki. We do not agree.

Both policies place the responsibility for the defense of any suit against its insured. Although the words “against the insured” do not appear in the Czarniecki policy, it is clear that reference to defense of “any suit” means a suit against its insured. The pertinent language in Czarniecki provides for the insurer’s defense of “any suit seeking damages . . . payable under the terms of the policy . . . .” The pertinent provision in our case which provides for a defense of “any suit against the insured” has the same meaning as the pertinent language in Czarniecki. We find no significant difference in the wording of the policies.

We are not persuaded to reach a different result by Smith v. Insurance Company of State of Pennsylvania, 161 So.2d 903 (La.App. 1st Cir. 1964), cited by Continental. This case predates and is in conflict with the later Supreme Court Czarniecki case.

Under the circumstances, we conclude the trial judge properly rendered judgment in favor of the Rollings and against the defendant insurer for the payment of attorney’s fees necessitated for the Rollings’ defense. The judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    GREAT AMERICAN INSURANCE COMPANIES and Interstate Foundry and Machine Co. v. Louis J. MARSHALL. Louis J. MARSHALL and Norma Marshall v. Michael J. O’CONNOR, Great American Insurance Companies and Interstate Foundry and Machine Co.
    Nos. 8807 and 8803.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Robert J. Young, Jr., Joseph R. McMahon, Jr., Edward L. Levert, Jr., New Orleans, for defendants-appellants, Michael J. O’Connor, Great American Insurance Companies and Interstate Foundry and Machine Co.
    Sanford Krasnoff and Michael Stagg Guillory, New Orleans, for plaintiffs-appel-lees, Louis J. and Norma Marshall.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   SCHOTT, Judge.

These consolidated cases arose out of a collision between a motorcycle operated by Louis J. Marshall, with Mrs. Marshall as a passenger, and an automobile operated by Michael J. O’Connor, owned by Interstate Foundry and Machine Company, and insured for liability by Great American Insurance Companies. The Marshalls sued for personal injuries sustained in the accident and Interstate sued for damage to its automobile. From a judgment in favor of Mrs. Marshall against O’Connor and Great American for $20,000 in general damages and $7,882.65 in special medicals these defendants have taken an appeal. The trial court also awarded a judgment to these defendants on their third-party demand against Marshall for contribution of one-half of the amount awarded to his wife. The Marshalls have answered the appeal, seeking a reversal on Marshall’s liability as . well as an increase in the quantum of damages awarded to Mrs. Marshall.

The accident occurred at about 10:30 in the evening of January 1, 1971, on Camp Street, in the City of New Orleans, between Canal and Common Streets. At this point Camp Street consists of four lanes of traffic and is a one-way street in the direction of Canal Street. The two lanes of Camp Street on each side were occupied by parked vehicles, leaving only the two middle lanes available for moving traffic. O’Connor had been proceeding toward Canal Street in the right of these two lanes and when he was in the middle of the block, as he was about to change lanes to the left his automobile came into collision with the Marshall’s motorcycle.

In findings of fact and reasons for judgment the trial court found that O’Con-nor turned on his left lane blinker indicating a left turn, and at that point the motorcycle was behind a car in the left lane; there was an automobile ahead of the motorcycle and it passed the automobile on the right side; O’Connor did not see the motorcycle and moved across the line slightly into the left lane whereupon the motorcycle hit the O’Connor automobile with sufficient force to cause a gash in the driver’s door. The trial court concluded that both drivers were guilty of negligence.

There is evidence in the record to support these findings. While Marshall testified that he was in the middle of the left lane of traffic and O’Connor pulled into his path, an independent witness testified that he was in the left lane of traffic behind another automobile, also in the left lane, and he saw O’Connor’s automobile in the right lane ahead of both of these automobiles in the left lane and saw the left turn indicator on the O’Connor automobile working. At that time the motorcycle passed on the right of both his automobile and the automobile ahead of him so that it was passing moving lanes of traffic, when it came into collision with the side of the O’Connor automobile. We fail to see how we can consider a reversal of this case on liability where there is such evidence supporting the trial court’s findings. Furthermore, we find that the testimony of this independent witness convicts Mr. Marshall of a violation of R.S. 32:191.1 (B&C), which prohibits the operator of a motorcycle from overtaking and passing in the same lane occupied by another vehicle and from operating the motorcycle between lanes of traffic or between adjacent lines or rows of vehicles. While it was negligence for O’Connor not to see Marshall approaching, at the same time Marshall’s violation of the statute and his unreasonable conduct in passing the automobiles in the left lane contributed to the accident.

We have concluded that there is no error in the judgment of the trial court on liability, and pass to the other issues raised in the case.

As to Mrs. Marshall’s claim for an increase in the general damages awarded, she contends that she suffered injuries to her lower left leg with vascular damage and scarring which is clearly established in the record, along with herniated disc and severe heart condition or aggravation thereof. If the evidence established that the latter two conditions were caused by the accident her argument would have some validity to the effect that the award was inadequate, but the trial court apparently did not believe that these injuries were related to the accident, and we find no error in this conclusion. At best, the medical testimony is to the effect that there is a possibility, or it is conceivable that these conditions are related to the accident, but there is no medical testimony that these conditions were in fact related to the accident with any degree of probability. Mrs. Marshall made no real complaints about the disc injury until October, 1974, when she first saw an orthopedic surgeon, and her cardiac condition was not a real problem until 1975. We have concluded that the award of $20,000 is adequate and not in any way beyond the discretion of the trial judge.

O’Connor and his insurer have also assigned error to the trial court’s award to Mrs. Marshall of her special medical expenses despite the fact that there was a community existing between the Marshalls and these expenses were all incurred by the community. This contention has merit. The husband is the head and master of the community and has the right to assert the claim for these medical expenses. Charles v. Sewerage & Water Board of New Orleans, 331 So.2d 216 (La.App. 4th Cir. 1976) writ refused, La., 334 So.2d 431, and because of his contributory negligence he is barred from recovering these expenses. Kientz v. Charles Denery, Inc., 17 So.2d 506 (Orleans La.App. 1944) reversed on other grounds 209 La. 144, 24 So.2d 292 (1945). In answer plaintiff has cited Act 444 of 1976, but we do not find that that act has any applicability to this case even if plaintiff’s argument has any merit as a matter of law. Accordingly, the judgment will be amended to delete the award of $7,882.65.

Accordingly, the judgment appealed from is affirmed but is amended so that there is judgment in favor of Mrs. Norma Marshall and against defendants Michael J. O’Connor and Great American Insurance Companies jointly and in solido in the sum of $20,000 with legal interest from date of judicial demand until paid, and for all costs of these proceedings, and there is judgment in favor of the defendants as third-party plaintiffs against third-party defendant Louis J. Marshall for one-half of the amount for which they are liable to Norma Marshall.

AMENDED AND AFFIRMED.


author: WICKER, Judge. SCHOTT, Judge,

text:
    EKCO DISTRIBUTORS, INC. v. C. Dawson MOORE, Sr. and C. Dawson Moore, Jr.
    No. 8814.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Roccaforte & Rousselle, Leo W. Rousselle, New Orleans, for plaintiff-appellant.
    Levy & Smith, Lawrence J. Smith and George R. Simno, III, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   WICKER, Judge.

Plaintiff filed a suit against defendants to recover $396.89 for supplemental work it expended in causing certain windows purchased by defendants to be exchanged for windows of a different size.

Defendants answered and denied liability for the bill. After a trial, judgment was rendered in favor of defendants dismissing plaintiff’s suit. Prom that judgment plaintiff has appealed.

The basic facts are not in dispute. Edward M. Kuhn, plaintiffs president, spoke to Curry Holifield, employed by defendant contractor, and quoted a price for furnishing Alcoa windows for use in residential construction undertaken by defendant. While there is some conflict, the evidence bears out plaintiff’s contention that the number and sizes of the needed windows were obtained by plaintiff from a representative of Alcoa Aluminum and not from defendant.

Kuhn testified he told Holifield he would confirm the quotation in a written proposal and asked Holifield to check the proposal for errors since he was not financially able to bear the expense of exchanging improperly furnished windows. Holifield denied plaintiff requested that he check for errors.

The proposal was mailed to defendant, but in the process it appears plaintiff either made typing errors with regard to the size of certain windows or obtained incorrect information regarding their size.

The proposal was mailed to defendant with the following warning typed in capital letters and underlined: “THIS PROPOSAL. IF ACCEPTED. IS NOT SUBJECT TO CHANGES OR CANCELLATION AFTER DATE OF ACCEPTANCE.”

Defendant signed the proposal without reading or checking it, and it was returned to plaintiff. Plaintiff ordered the windows listed on the proposal and made delivery of the windows in due course.

At this time defendant learned some of the windows were of improper size, but they nevertheless conformed to the sizes set forth in the written agreement between plaintiff and defendant.

Defendant requested plaintiff to take back the windows and furnish windows of proper size. Plaintiff expended sums to obtain windows which conformed to the size needed by defendant, made delivery of the windows in due course, and billed defendant for the amount sued upon. Defendant paid the original contract price but refused to pay for the extra charge billed by plaintiff.

The facts indicate both plaintiff and defendant were in error when they entered into the contract for the windows. Plaintiff erroneously listed the sizes of certain windows, and defendant erroneously accepted plaintiff’s bid for these windows without checking the sizes against plans and specifications to assure their conformity. Under certain circumstances, mutual error is sufficient to vitiate a contract and will allow its recission. However, in this case, the contract was accepted by defendant and no suit for recission was filed. Consequently, it appears the only issue for our decision is whether, under all the circumstances of the case, plaintiff is entitled to recover for “extras” incurred as a result of the error in the contract proposal furnished by plaintiff and accepted by defendant.

The trial judge found as a matter of fact that the original contract for the sale of windows had been performed by both plaintiff and defendant. We see no error in this finding.

The trial judge also found as fact that the defendant never contracted to pay plaintiff extra sums for substituting windows called for by the plans and specifications, for the incorrect sized units originally delivered. Plaintiff’s representative testified he adamantly refused to deliver the replacement windows unless defendant promised to pay his extra charge. Holifield testified the only concession made by defendant was an offer to end the dispute by “splitting the difference”, but plaintiff refused this offer at all times.

Basic contract law provides that if an offer and an acceptance do not conform to each other, no contract has been reached. In refusing to enforce plaintiff’s demand for extra remuneration the trial judge obviously accepted the testimony of Holifield over that of plaintiff’s representative and found that each party did not accept the offer made by the other. There is ample evidence in the record to justify this finding, and we conclude the trial judge did not violate the wide range of discretion afforded him by Louisiana law.

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

AFFIRMED.

SCHOTT, J., concurring with written reasons.

SCHOTT, Judge,

concurring in result.

I agree that a contract was never con-fected between the parties for any amount, over and above the contract price they agreed upon in the first instance. The extra expenses incurred by plaintiff cannot be charged to defendants on a theory of contract because both parties were mistaken about the object of the contract when plaintiff’s proposal was accepted by defendants. Both parties thought the proposal contained the correct sizes for the windows when it did not. Thus, there was never a meeting of the minds and no contract was ever confected for the purchase and sale of windows of the wrong size.

I have also considered the question of plaintiff’s right to recover in tort. It may be argued that defendants owed plaintiff a duty to cheek the sizes specified in the proposal before accepting it, and their failure to do so caused plaintiff to suffer the loss. However, plaintiff, who initiated the contact with defendants, gave defendants a quotation on windows which defendant wanted. The underlying cause of the problem was plaintiff’s failure to perform the duty he had undertaken, so that, in a sense, he is barred from recovery by his own contributory negligence.

Thus, I am unable to find any theory of law which might provide a basis for plaintiff to recover under the circumstances of this case. I therefore concur in affirming the judgment of the trial court.

      . The parties stipulated at trial that C. Dawson Moore, Sr. was not a proper defendant because he was not involved in his son’s business in any manner. Therefore, “defendant” as used herein refers only to C. Dawson Moore, Jr.

      . Civil Code Articles 1805 and 1806.


text:
    Antoinette Harris, wife of Walter E. HARRIS, and Walter E. Harris v. James E. D’ANTONI, Sr., Carol J. D’Antoni and the Travelers Insurance Company.
    No. 8815.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Floyd F. Greene, New Orleans, for plaintiffs-appellees.
    James J. Morse, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   GULOTTA, Judge.

The sole issue before us is the quantum of a jury award for damages resulting from a rearend collision. Plaintiffs were awarded $12,000.00 for pain and suffering and $45,-000.00 for past and future loss of income.

Defendants, while not quarreling with the pain and suffering aspect of the judgment, contend that the amount awarded for loss of income is excessive and should be reduced to a sum in the range of $8,000.00-$16,000.00 in accordance with the testimony of plaintiffs’ own actuarial expert. In answer to the appeal, plaintiff, who sustained a neck injury resulting in the removal of two cervical discs, claims the general damage award is inadequate.

We decline to disturb the $57,000.00 total award. In affirming the award as determined by the jury, however, we find merit to the contentions of both parties and conclude that the award for loss of income should be reduced and that the award for pain and suffering should be increased though the total amount is neither excessive nor inadequate.

PAIN AND SUFFERING

As a result of the accident on December 22,1973, plaintiff, in her mid-fifties, sustained a neck injury ultimately resulting in removal of two discs and the fusion of the cervical spine. Medical testimony indicates that she is totally and permanently disabled from pursuing her former occupation as a bar owner.

Two days after the accident, plaintiff’s condition was diagnosed as cervical and lumbosacral sprain. She received 27 heat treatments through February 20, 1974, but experienced no improvement.

On March 1, 1974, she consulted Dr. James M. Ciaravella who found spasm of the cervical muscles with limitation of motion. He diagnosed her condition as cervical disc syndrome and advised her to enter the hospital for further evaluation.

Following admission to the hospital, plaintiff was examined by Dr. R. C. Llewellyn, a neurosurgeon, who found plaintiff’s neck movements to be limited to approximately half the normal range. His examination also revealed muscle spasm, tenderness of the upper extremities and numbness of the left arm. A myelogram revealed disc lesion or protrusion at the C-5, C-6 level and to a lesser extent at the C-6, C-7 level. Dr. Llewellyn felt that plaintiff had symptomatic disc problems. On April 9, 1974, the two discs were removed and the joints fused. Plaintiff was discharged from the hospital on April 19, 1974.

Postoperatively, plaintiff continued to experience muscle soreness in the neck, limitation of motion, neck swelling and coughing. The physician was of the opinion that plaintiffs tolerance for exertion is limited and that she will achieve only a 75-80% range of comfort in the neck area provided she limits her activities. He stated that her injuries “stemmed” from the accident and that she is totally and permanently disabled from working outside the home.

Dr. Ciaravella also testified that plaintiff can no longer continue in her occupation as a bar owner because of her inability to stand for long periods of time, weakness in her arm and severe neck and lower back pain. He also testified that her problems with anxiety, asthma, emphysema and bronchitis “seem” to have been aggravated by the accident.

Dr. James Williams, who examined plaintiff before and after the operation, found plaintiff to have an estimated 50% restriction of motion in the neck. According to this doctor, plaintiff had a residual neck disability of approximately 40% and an entire body disability of 25%. He felt that Mrs. Harris should be able to work as a secretary where no heavy lifting is required.

Although a jury award is not to be disturbed absent a showing of an abuse of discretion, an appellate court, in reviewing law and fact, must amend the judgment when circumstances warrant a revision. LSA-C.C. art. 1934(3); Reggio v. Louisiana Gas Service Company, 333 So.2d 395 (La. App. 4th Cir. 1976), writs denied, 337 So.2d 187 (La.1976) and 337 So.2d 526 (La.1976). Considering plaintiff’s continuing painful disability as a result of the accident and the fusion of the two cervical discs, we conclude that a $12,000.00 award for pain and suffering is so inadequate as to constitute a violation of the much discretion rule.

LOSS OF INCOME

At the time of the accident, plaintiff and her husband were owners of a small bar in New Orleans. Due to her injuries, plaintiff was unable to perform her accustomed duties. The business was sold in July, 1974.

The only testimony relative to loss of income was that of Melvilla Wolf son, an expert economist who was called by plaintiff to testify to past, present and future earning losses. Using the joint income tax returns filed by plaintiff and her husband for the years 1970 through 1974, this witness calculated an average annual net income from the business of $2,031.25. Referring to U.S. Department of Labor tables, he further concluded that plaintiff had a work-life expectancy of nine years. Furthermore, consulting U.S. Department of Health, Education and Welfare studies, Wolfson stated that plaintiff’s life expectancy was approximately 23 years. Taking these factors into account, as well as a 5% discount, he concluded that plaintiff had sustained a total loss of income, past, present and future, of $16,000.00 as a result of the accident.

In Welton v. Falcon, 341 So.2d 564 (La. App. 4th Cir. 1976), writs denied, 342 So.2d 872 (La.1977) and 342 So.2d 1109 (La.1977), cited by defendants, we were confronted with a similar situation in which the jury’s award for loss of wages and earning capacity exceeded the figure advanced by plaintiff’s actuarial expert. In Welton, the jury awarded $65,000.00 for loss of wages even though the expert’s calculation valued this element of damages at $53,000.00. We stated:

“Here, the actuarial expert performed several calculations to estimate the present value of plaintiff’s impaired earning capacity (and those using lower interest rates indicated a higher value). However, on the calculation deemed appropriate by the expert, the value was $53,-000.00. Since the jury’s award was significantly higher than the value advanced by plaintiffs own expert, we conclude that this record does not support the higher award and reduce the amount of the judgment for this item of damages to $50,000.00.”

In our case, the jury’s award for loss of income in the amount of $45,000.00 significantly exceeds the $16,000.00 figure advanced by plaintiffs’ expert economist.

We find no merit to plaintiffs’ contention that the jury’s award is not excessive because it is reasonably based on plaintiff’s life expectancy rather than on her work-life expectancy. In Welton, citing Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968), we stated that although loss of income cannot be computed with mathematical certainty, an actuarial expert’s calculations merit substantial consideration in arriving at the award. Though it is true that plaintiff is self-employed and is not an employee subject to mandatory retirement, we consider it unreasonable, in light of the expert testimony, to base an award for loss of income on her entire life expectancy. It cannot be said with any degree of probability that plaintiff would have continued to operate the bar business for the duration of her life. To base an award on a possibility that plaintiff might operate a business during her entire life expectancy is purely speculative. We conclude, under the circumstances, the $45,000.00 loss of income award is excessive.

Although the $12,000.00 award for pain and suffering is woefully inadequate and the $45,000.00 award for loss of income is excessive, nevertheless, we cannot say the $57,000.00 total award, under the circumstances, violates the much discretion rule. The judgment is affirmed.

AFFIRMED

      . An additional sum of $4,681.68 as stipulated special damages was also awarded.

      . The husband testified that four employees worked at the bar but in their absence he would take a 16-hour shift and his wife would work the other eight hours.

      . The average annual net income figure of $2,031.25, when multiplied by plaintiff’s life expectancy of 23 years, totals in excess of $46,000.00.


author: BOUTALL, Judge.

text:
    Succession of Walter F. POYNOT v. J & T DEVELOPMENTS, INC., et al.
    No. 8816.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Robert P. Charbonnet, Charbonnet & Charbonnet, New Orleans, for J & T Developments, Inc., Dr. Charles H. Johnson, Jr. and Dr. William C. Terral, appellants.
    Harry R. Cabral, Jr., Metairie, for the Succession of Walter F. Poynot, appellee.
    Before REDMANN, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is an appeal by defendant endorsers from a proceeding instituted by a succession representative to obtain payment on a handnote secured by a collateral mortgage and note.

J & T Developments, Inc., through its president, Dr. Charles H. Johnson, Jr., executed a handnote in favor of Walter F. Poynot for the principal sum of $63,840.00. The note was endorsed by Johnson and William C. Terral, individually. A collateral mortgage note in the same amount and similarly endorsed was pledged to secure the loan. The mortgage identified with that note is on a building owned by J & T Developments, Inc., and was first subordinated on October 21, 1971, and then again on September 10, 1974. Thus, the Poynot mortgage is third in rank.

The defense to collection of the note was that of payment and satisfaction. Drs. Johnson and Terral testified that they were advised by Gerald G. Pfister, who managed J & T Developments, Inc., that the Poynot succession wanted to call in the mortgage, and that Pfister could arrange another loan with Cumberland Capital Corporation, the proceeds of which would be used to pay off the Poynot loan. Such loan was made from Cumberland, and the check representing the loaned capital was signed by Dr. Johnson and delivered to Pfister for payment of the Poynot loan. The check was subsequently deposited to the account of Arealco, Inc., in which Pfister had an ownership interest, and the Poynot loan was not paid out. As part of the Cumberland loan transaction, Mrs. Poynot, the succession adminis-tratrix, executed an act of subordination of the Poynot mortgage to the Cumberland mortgage, giving it third ranking.

There was judgment for plaintiff for the balance due on the Poynot note. Defendants appeal, contending that Pfister was the agent of Mrs. Poynot and the Succession of Walter F. Poynot, so that payment to him of the Cumberland loan proceeds was payment and satisfaction of the debt. Alternatively, they argue that the subordination of the mortgage, of which they claim to have had no knowledge, resulted in the discharge of the endorsers to the extent that the subordination might have prejudiced them.

In written reasons for judgment, the trial judge expressly found that Pfister was not a legal representative or agent for the plaintiff in this transaction. The record fully supports this conclusion. It does reflect that Pfister and the Poynots had a close personal relationship. However, the only evidence of agency is the bald assertion of Dr. Terral to that effect in response to a leading question from his attorney.

Instead, one is compelled by the trial record to conclude that Pfister acted as agent for J & T Developments, Inc. Both Johnson and Terral stated that Pfister encouraged them to purchase the property which is the subject of the mortgage sought to be enforced. It was Pfister who had arranged for the financing, had managed the building, and, in fact, had been fully authorized to act on their behalf in all matters concerning the property. All previous payments of interest on the mortgage were made directly to Pfister. Dr. Johnson stressed that he placed much trust in Pfis-ter to attend to this business matter, as well as many others for both doctors. Whenever Pfister asked for money the doctors paid it without question as Pfister was handling all their investments. The doctor’s testimony shows his own lack of familiarity with the details of the J & T operation and that Pfister had all of his books and records. Since Pfister was the agent of J & T Developments, and not the agent of Poynot, proof of payment to him does not constitute the defense of payment and satisfaction of the debt.

In response to appellant’s contention that Drs. Johnson and Terral, as endorsers, were released from liability to the extent that they were prejudiced by Mrs. Poynot’s subordination of the mortgage, the trial judge concluded that appellants had failed to show any prejudice as a result of the subordination,' citing American Security Bank of Ville Platte v. Vidrine, 255 So.2d 140 (La.App. 3rd Cir. 1971); Patterson-Redmond Equipment v. Martin, 166 So.2d 65 (La.App. 4th Cir. 1964), writ refused, 246 La. 858, 167 So.2d 673; La.R.S. 10:3-601 and La.R.S. 10:3-606, portions of the new Commercial Laws.

In American Security Bank of Ville Platte v. Vidrine, supra, one of two tracts of land subject to a mortgage securing the note sued upon had been released from the mortgage by the mortgagee. The tract had been sold for $2,000. Finding prejudice to the endorser who did not know of the release, the court awarded him a credit of $2,000 toward the default judgment due. The rule of Louisiana jurisprudence governing such cases was stated, as follows:

“The endorser of a negotiable instrument is entitled to the protection afforded him by any specific security for payment of the debt which the principal debtor may have given the holder, or which the holder may have acquired by application of law, and if the holder releases or voluntarily destroys any part of such security, the endorser is discharged to the extent that such specific security would have gone to pay the debt. Central Savings Bank & Trust Company v. Oilfield Supply & Scrap Material Company, 202 La. 787, 12 So.2d 819 (1943). See also Glass v. McLendon, 66 So.2d 369 (La. App. 2 Cir. 1953), and the numerous authorities cited therein.” Id., at 146-147.

The instant case differs from American Security Bank in two respects:

1) The mode of impairing the endorser’s rights was different, and
2) there was proof of the value of the released property in American Security Bank.

Although there is not a complete release of mortgaged property in the instant case as in American Security Bank, the subordination certainly was an impairment of the subrogation rights of the indorser.

The action of subordinating the second mortgage to the rank of third mortgage prejudiced the endorsers to the extent that the proceeds of sale of the property might be applied to satisfy the outstanding debt on the Cumberland Capital Mortgage, which became a second mortgage. The value of released collateral may be proven by testimonial evidence. See, e. g., Glass v. McLendon, 66 So.2d 369 (La.App. 2d Cir. 1953), writ denied (where the estimates of witnesses of the value sufficed to determine the amount by which the surety was prejudiced). However, in this case there is a complete failure to show the extent of any prejudice. There is no evidence of the value of the mortgaged property or of the amount of outstanding debt priming this debt. The burden of proof of prejudice is placed upon the endorsers and they have failed to carry it.

Additionally, an equally serious obstacle for the appellants to overcome is the requirement that the release of collateral be without the consent or knowledge of the endorser. Glass v. McLendon, supra; La. R.S. 10:3-606. Both Dr. Terral and Dr. Johnson deny having actual knowledge of the subordination, but the evidence shows the contrary.

The mortgage to Cumberland and the subordination were handled on the same day by the same notary public. In the Cumberland mortgage, the notary took pains to point out that the mortgage certificate showed a number of inscriptions, Items 1 and 3 being the Poynot collateral mortgage and the 1971 subordination. He then stated:

“The above collateral mortgage and subordination thereof are subordinate and inferior to the mortgage granted herein.”

Both endorsers signed this act individually along with J & T Developments, Inc. This alone impresses them with knowledge, and even more so with our conclusion that Pfis-ter acted as their agent in arranging this transaction.

The knowledge of their agent must be imputed to them, and as against the Poynot succession, they must bear the burden of loss. Bank of Louisiana v. Argonaut Ins. Co., 248 So.2d 349 (La.App. 4th Cir. 1971); Russell v. Armington, 162 So.2d 91 (La.App. 4th Cir. 1964), writ denied, 246 La. 350, 164 So.2d 352.

It seems an inescapable conclusion that despite the fact that J & T Developments, Inc. is a corporate entity separate in identity from Drs. Johnson and Terral, the doctor’s close relation to the corporation rendered Pfister their servant, too. The two doctors were the owners of the corporation. Pfister knew Dr. Johnson because the latter treated Pfister’s children. He and an accountant prepared Dr. Johnson’s personal income tax. He handled not only J & T Developments for the doctors but a number of other matters as well; as the doctors testified, whenever he asked for money they simply paid it to him to handle the business at hand and they completely trusted him. Pfister was the agent not only of J & T Developments, but also of Drs. Johnson and Terral. Therefore, Pfister’s knowledge is imputed to the endorsers, who are not discharged.

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

AFFIRMED.

      . Mrs. Poynot adopted Pfister, but the act of adoption was after a petition was filed to interdict Mrs. Poynot. Those matters are still in litigation. See our opinion in Poynot v. Pfister, 348 So.2d 98, Aug. 1, 1977. (Writ refused Nov. 4, 1977)

      . This allegation was raised by supplemental and amending answer after the case was submitted for decision.


author: REDMANN, Judge.

text:
    Rudy P. BROWN v. EXPRESSWAY TIRE & APPLIANCE, INC., et al. Roy PERRILLOUX et al. v. Rudy P. BROWN.
    Nos. 8817 and 8818.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Leon C. Vial, III, Hahnville, for Rudy P. Brown.
    Bruce W. Dinwiddie, Ernest V. Richards, IV, Metairie, for Roy Perilloux.
    Before REDMANN, BOUTALL and BEER, JJ.
   REDMANN, Judge.

Defendant Roy Perriloux appeals from a refusal to dissolve an order preliminarily enjoining him from exercising any function as president of a corporation of which he is majority shareholder, and appointing plaintiff as “administrator and overseer” of the corporation. We reverse and dissolve the preliminary injunction and terminate the appointment.

We dismiss defendant’s argument of lack of jurisdiction in the trial court because, see La.Const. art. 5 § 16, it is apparently a question of venue, and in any case it is waived by failure to object preliminarily, C.C.P. 7 and 44.

The fatal defect of the preliminary injunction was that defendant was not allowed to present evidence at the trial. Defendant was denied any meaningful opportunity to be heard at that “trial” (see Tr. 57-58). The preliminary injunction was therefore issued in violation of C.C.P. 3602 and is therefore dissolved.

La.R.S. 12:151C authorizes appointing a receiver ex parte “pending trial” and § 151A(1) allows appointment after trial. Together those statutes make it clear that the ex parte appointment is only a temporary, emergency measure, the effectiveness of which cannot continue beyond the time reasonably necessary to have a trial at which opposition to an appointment could be heard. We conclude that that reasonable time has elapsed and that, for lack of opportunity for defendant to be heard, no post-trial appointment could be effective. Accordingly we terminate the appointment of plaintiff as “administrator and overseer” of the corporation.

(That corporate dissolution proceedings may be in progress does not render this appeal moot because of the possible claims for attorneys’ fees under R.S. 12:151D.)

Reversed; preliminary injunction dissolved; appointment of administrator and overseer terminated.


author: GARSAUD, Judge.

text:
    Barbara Lee Wollman, wife of Binks Arthur GRAVAL v. Binks Arthur GRAVAL.
    No. 8833.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Nel F. Vezina, Gretna, for defendant-appellant.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for plaintiff-appellee.
    Before LEMMON, STOULIG, and GAR-SAUD, JJ.
   GARSAUD, Judge.

This case is a procedural labyrinth designed to test the patience of the most long-suffering trial judge. An attempt will first be made to unravel the maze, as the myriad of rules filed becomes important in our substantive decision.

On March 28, 1974, a judgment was rendered for separation from bed and board in favor of Mrs. Binks Arthur Graval, herein the appellee, against her then-husband Binks Arthur Graval, herein the appellant. The judgment awarded $500 a month alimony pendente lite and $500 a month child support for one child, Kelly. On August 19, 1975 a rule was issued, directing Binks Arthur Graval to show cause why he should not be adjudged in contempt for failure to pay alimony, and why said judgment should not be rendered against him and immediately made executory for the sum of $5,000 for past-due alimony pendente lite. On August 22, 1975 the $5,000 past-due alimony was made executory to be paid within a year, defendant was held in contempt, and the Court ordered him to pay $300 a month child support and $200 a month alimony.

On October 23, 1975 another rule was filed by Mrs. Graval for contempt and to make past-due alimony executory, this time in the amount of $1,500, including a part for child support. On November 18, 1975 a judgment was rendered in the district court, decreeing that the defendant be held in contempt for failing to pay alimony, and further decreeing that the defendant shall have the right to purge himself of his contempt by paying the plaintiff the sum of $5,000, within one year from the date of the hearing, in no event later than August 22, 1976.

On November 17,1975, the day before the above judgment, a rule for decrease in alimony was filed by Mr. Graval. The basis of this rule was the plaintiff’s lack of need and the defendant’s inability to pay. This rule was set for hearing on November 21, 1975. Subsequent thereto, a motion for continuance on the part of Mrs. Graval as a result of a change in legal counsel was granted to Friday, December 5, 1975. This rule was continued to December 17, 1975, then to December 18, 1975, and finally on December 18th was continued without date, and again on December 21, 1975 it was ordered to be continued without date.

On November 23, 1976, nearly a year later, another rule for contempt was filed against Mr. Graval, alleging that he was now in arrears in the total amount of $9,600, and requesting that the amount be made executory.

On November 29, 1976, a final judgment of divorce was granted, which gave the wife the permanent custody of the minor child, and further ordered the defendant to pay child support in the amount of $300 a month and permanent alimony in the amount of $200 a month. On December 7, 1976, Mr. Graval filed another rule to decrease alimony, alleging a drastic change in the financial situations of the defendant and the plaintiff. On December 13, 1976, a hearing was finally held on the contempt rule brought by Mrs. Graval for alimony in arrears, as well as the rule to reduce filed by Mr. Graval.

On January 7, 1977, the trial court rendered a judgment dismissing the rule to reduce which had been filed by Mr. Graval. It is also assumed that this dismissal included the dismissal of the rule which had been continued without date previously filed in 1975, although no specific mention is made of this. However, it is reasonable to conclude that this was the disposition of that rule, as there is no other evidence that it had ever been heard. The trial judge commented at this time that he dismissed the rule as a result of the arrearages, and as soon as Mr. Graval was current, he would be entitled to file a new motion to reduce. In this January judgment, the Court found that the balance in arrearages from prior judgments was $3,955. He specifically stated it was in addition to the $5,000 which previously had been made executory. He further found Mr. Graval in contempt of court, and sentenced him to Parish Prison for 90 days, suspending the sentence and placing Mr. Graval on probation for one year. The condition of his probation was that he make a payment of $50 per week on the $3,955 judgment until the matter was satisfied. This $50 was in addition to the $300 monthly for child support and $200 monthly for alimony.

On January 12, 1977 Mr. Graval filed a new rule to terminate alimony, alleging that Mrs. Graval had obtained employment on or about September 1, 1976. This rule was continued to February 18, 1977, at which time a further continuance was requested by Mrs. Graval as a result of her obtaining new legal counsel. On March 2, 1977, Mrs. Graval then filed a rule to increase child support, to make past-due alimony and child support executory, and for contempt of court. On March 14, 1977 Mr. Graval filed a rule to change custody, terminate and/or reduce child support, and a rule for contempt and specific visitation. These rules were all heard together on March 19, 1977. The procedural nightmare was continued when the new attorney for the appellee indicated that his rule for contempt and to make past-due alimony execu-tory was superfluous, as he had learned of the January 7,1977 judgment in this regard only the day before the March 19, 1977 hearing. Thus, this issue was not argued on March 19,1977. The trial judge directed counsel then to prepare a judgment for his signature based on the judgment rendered in open court on January 7, 1977.

On April 5, 1977, the judgment of January 7, 1977 was signed by the trial court. Further, on April 5, 1977 a judgment was rendered on the three rules heard on March 19, 1977, but that judgment was not signed until April 6,1977. In this latter judgment, the Court ordered that the alimony be terminated, that the rule to increase child support be made absolute, and condemned Binks Graval to pay $500 a month child support. It further decreed that the rule to make past-due child support executory and for contempt of court be dismissed, and finally ordered that the rule to terminate or reduce child support and to change custody be dismissed.

The resulting chaos spilled over into the appellate process when, in his motion for appeal, appellant specifically stated that he desired to appeal devolutively from the final judgment rendered on the 5th day of April, 1977 and signed on the 6th day of April, 1977. Further, in his appeal bond, he repeats the specific dates alluded to. An appeal bond of $300 was set in the matter. In his brief, and before this Court in oral argument, counsel for appellant indicates' that he intended to appeal the judgment rendered January 7,1977 but not signed till April 5,1977, and he thought in fact he had done so by his motion for appeal. In his brief, the appellee recognizes the difficulty and argues simply that the matters in the January judgment are not before this Court on appeal. The appellee’s brief does not consider in the alternative the issues raised by the judgment of January 7,1977. When inclined to permit the appeal on both judgments, this Court, through the Clerk’s office, invited an additional brief from attorney for appellee.

The appellant argues the following issues on appeal:

(1) Whether the court’s termination of alimony should have been retroactive to the date of filing of the rule;

(2) Whether the wife is entitled to alimony after she becomes a full-time employee with sufficient funds for her maintenance, and where the husband has not sufficient funds to pay the same;

(3) Whether the imposition of a 90-day sentence in Parish Prison for contempt was an abuse of judicial discretion. (The argument is that the alimony payments were paid to the parents of the wife and not directly to the wife, but in his decision of January 7, 1977 the trial Court stated that he could get no credit for these payments as the Court ordered him to pay the alimony and child support to the wife and no one else);

(4) Whether the wife should be entitled to custody when the child is not living with her;

(5) Whether the payment of $500 monthly in child support is excessive.

The first issue which must be resolved is whether the appellant properly appealed from the judgment rendered on January 7, 1977. To reiterate, the judgment of January 7, 1977 made absolute the rule to make past-due alimony and child support executo-ry, and rendered a judgment in this regard in favor of plaintiff in the sum of $3,955. Further, it made absolute the rule for contempt against Binks Graval, and ordered him sentenced to 90 days in Parish Prison, which sentence was suspended, and defendant placed on probation, a condition of which was the payment of $50 per week to be applied toward the retirement of the executory judgment rendered therein.

The question of whether the appeal is proper poses a vexing question for this Court. It is easily understood how counsel for appellant could consider that his motion for appeal covered all issues, as the prior skirmishes (and unfortunately we can find no better description) in this matter could lead one to total confusion. Be that as it may, it is our view that this matter is governed by Loyacano v. Loyacano, 311 So.2d 910 (La.App. 4th Cir. 1975), writ refused 313 So.2d 847 (La.1975), where two judgments were so interrelated, one of June 7th and one of July 26th, that an appeal taken from the judgment entered on “the 26th day of July” was considered also an appeal from the June 7th judgment. In that case, neither judgment had become definitive. Here we have simply a continuum of rules arising in the same context, and all very much interrelated. Also, neither judgment had become definitive when the motion for appeal was filed. The appeal filed by the appellant, therefore, was sufficient to include the judgment rendered on January 7, 1977 and signed on April 5th as well as the judgment rendered on April 5th and signed on April 6th, 1977.

This, then, leads us to consider the merit of the error assigned regarding the judgment of January 7, 1977. With respect to this judgment the appellant contends that it was an abuse of judicial discretion to sentence the defendant to 90 days in Parish Prison, in view of the fact that some child support payments were paid to the grandparents, who had physical custody of the children. It is the defendant’s position that, as a result of these payments to the grandparents, the defendant did not deliberately refuse to perform an act which was yet within his power, as required under R.S. 13:4611(A), dealing with punishment for contempt of court.

With respect to the amounts paid to the grandparents, which the record indicates were rather minimal, we believe that the trial court was correct in refusing to grant credit for such payments. The obligation of the father is to pay the child support to the mother who has legal custody of the child. He complies with this obligation only when the payments are made to the mother. Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971); Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974); see also, Pascal in Symposium: The Work of the Louisiana Supreme Court for the 1951-1952 Term (1953), 13 La.L.Rev. 230 at 258, wherein the author says, “Actually, alimony for the wife should be made payable to her in her own name, but alimony for the child should be made payable to the wife who has its custody and in her capacity as tutrix. Only the tutor may receive funds owing to the child.” Also, Pascal, in Symposium: The Work of the Louisiana Supreme Court for the 1949-1950 Term (1951), 11 La.L.Rev. 141 at 174, “It may be pointed out (the practice notwithstanding) that nothing in Louisiana legislation authorizes the payment of alimony for a child to anyone but its legal representative. During marriage and before separation from bed and board, the father would be the representative. After the death of a parent, separation, or divorce, the tutor would be the representative.” See also, Odum v. Odum, 273 So.2d 576 (La.App. 1st Cir. 1973). It was not an abuse of discretion, therefore, for the trial court to exercise its contempt power and to impose a 90-day sentence on the defendant. We affirm the trial court in its judgment of January 7, 1977.

Insofar as the second judgment is concerned, the issues to be resolved are (1) whether the termination of alimony, which was given no retroactive effect, should have been given some retroactive effect by the trial court; (2) whether the child support should be increased to $500; and (3) whether custody should remain with the mother.

Addressing the first issue, there are five possible alternatives: (a) to make the termination of alimony retroactive to when the first rule to decrease was filed in 1975; (b) to make it retroactive to the time Mrs. Graval obtained employment; (c) to make it retroactive to the rule to decrease filed in December 1976; (d) to make it retroactive to the day the rule to terminate was filed on January 12, 1977; (e) to make it effective as of the date of judgment, as did the trial court.

No doubt when a rule for reduction or termination of alimony is made absolute, the decrease or termination may be made retroactive to the date the rule was filed. Vinson v. Vinson, 292 So.2d 763 (La.App. 4th Cir. 1974). Of course, this assumes that the rule which was made absolute was the rule to the date of which the reduction was made retroactive. Accordingly, in this instance, as the rule of December 1975 and the rule of December 1976 were dismissed, the only rule to which the reduction can be related and made retroactive is the rule filed January 12, 1977.

However, the appellant strenuously argues that fairness would demand that the termination of alimony be made retroactive, to March 1976, when the appellee obtained employment. The record is clear that in March 1976, the appellee became a temporary full-time teacher in the Jefferson Parish school system, earning approximately $1,068 a month in gross figures. It is also clear that in September 1976 she became a permanent full-time employee of the Jefferson Parish school system at the same level of earnings. The record sustains the allegation that the appellee hid this fact of employment from her former husband, and did not advise him of the same until some time toward the end of 1976. The appellant testified that after the wife had brought this fact to his attention, they discussed it for a couple of months with a view toward her voluntarily terminating or reducing alimony payments. However, this apparently did not succeed, and she filed one of the rules for contempt. In December 1976, he then filed for a reduction on the basis of her employment.

The trial court in terminating the alimony clearly concluded that the wife did not require any further moneys, as she had sufficient means for her support as the result of her job. The issue, then, is whether by concealing this fact from her husband, the husband should be granted credit now for the amount paid from the time the wife did have sufficient means for her maintenance.

Under normal circumstances, once alimony payments accrue they become a property right which may not be divested. Regardless of the equity which may be involved in reducing or forgiving past-due alimony, such a vested right cannot be disturbed. Relief lies in application to the court for a modification of the judgment. C.C.P. Art. 3945; Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974); Whitt v. Vauthier, 316 So.2d 202 (La.App. 4th Cir. 1975). In none of these cases, however, did the party who was the recipient of the alimony act to defraud the former spouse by concealing an essential fact relative to the spouse’s need for alimony, i. e., full-time employment. The Court will not reward Mrs. Graval for concealing from her former husband a pertinent fact which relates to his obligation to her to pay alimony after divorce. As a matter of law, as of March 1976, the wife had sufficient means for her maintenance as a result of her full-time employment. Alimony may have accrued from that date as a matter of fact, but not as a matter of law. Further, only legitimate rights vest. Even those which are subject to divestment in other jurisdictions are not ab initio illegitimate. Accordingly, it is our view that fairness and justice require that the alimony be terminated as of March 1976. In this regard, then, the trial court’s decision is reversed.

The next issue to be resolved is whether the $500 awarded for child support is excessive.

There can be no equivocation about the obligation imposed by Article 227 of the Civil Code. Parents share the obligation of supporting, maintaining, and educating their children. The degree of support is determined by the need of the child and the ability of “those who are to pay it.” C.C. Art. 231; Ducote v. Ducote, 339 So.2d 835 (La.1976).

As appellee argues in her brief,

“The duties of preparing meals, washing clothes, providing transportation, furnishing care and guidance, and performing all the day-to-day services that are demanded of a mother contribute substantially to the mutual obligation of support.” Ducote v. Ducote, supra, at 839.

This is true, of course, when the mother has chosen to remain at home and the circumstances justify this decision, as in Ducote, where the two young daughters needed the attention of their mother.

Here we have a wholly different proposition. Both parents are gainfully employed and must discharge their obligation in whole or in part by financial contributions for the benefit of the child. The mother provides very little, if any, of the services referred to in Ducote for her son. This mutual obligation, then, must be apportioned in each case as indicated by the parents’ respective abilities to support the needs of the child.

The record in this regard is unenlightening, particularly regarding the child’s needs. It is clear that the child resides with the grandparents from Sunday evening to Friday evening. Weekends are spent partly with the mother and partly with the father. There is absolutely no evidence clearly supporting the amount of expenses for the child which are incurred by the grandparents.

There are allegations in the record, supported by self-serving documents, purporting to establish the following:

Monthly
1. Husband — gross income $ 911.00
2. Husband — expenses, not including child support 1,553.00
3. Mother’s gross income from job (mother may have some additional income) 1,068.00
4. Mother’s and child’s expenses (not apportioned between the two) 2,313.00
5. Mother pays grandparents for rental of house and/or for child (this amount varies a few dollars month-to-month) 225.00

On the basis of this evidence, we believe it was manifestly erroneous for the trial court to increase child support from $300 to $500. Apparently the trial court believed that by terminating the $200 alimony, the ability of the husband to pay was increased by $200. That is granted; however, no scintilla of evidence supports any increase in the need of the child. The increase in child support under these circumstances was not justified. We must, therefore, reverse the trial court on this issue and order a reduction to $300 for child support.

Finally, with respect to the denial of a change in custody Mr. Graval complains that plaintiff, although legal custodian, does not have actual custody of the child. As previously indicated, the testimony showed that the child spends most of every week at the home of his maternal grandparents. According to Mrs. Graval, the child stays with her parents during the week for school, financial, and social reasons, and because she works full-time.

The principles which control when considering a change of custody are those set forth in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), as follows:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father.
“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.
“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interest of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.” (Citations omitted.)

This case appears to be similar in many ways to the factual situation presented in Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958), where custody of a 15-month-old child was granted to the mother, who kept the child at the home of her parents in Mansura. Soon thereafter the mother mother moved from Mansura to New Orleans to attend a business college. The court determined that this was not a question of deciding custody between the father and maternal grandparents, because the mother had not relinquished custody of the child to her parents. The child was merely temporarily left in the care of its maternal grandparents while its mother attended school to become self-supporting. In these circumstances, the Supreme Court refused to change custody to the father.

Applying the Fulco principles to the present case, we are unable to find that the trial judge erred in continuing custody with the mother, Mrs. Graval. There is no real showing that the child is not well-cared-for in a moral and suitable environment under the present circumstances. The father’s claim that he would provide a more conducive environment for the best interests of his son is pure speculation, to say nothing of the cost of furnishing the lifestyle he suggests. For these reasons, we affirm that part of the trial court’s opinion.

AFFIRMED IN PART.

REVERSED IN PART.

      . We do not intend, by this statement, to approve the dismissal of the rules to reduce, on the basis that the husband was not entitled to' relief on these rules until the arrearages were paid. However, because of the result we reach, we need not discuss the propriety of the dismissal of these rules.


author: STOULIG, Judge. LEMMON, Judge,

text:
    DEPARTMENT OF HIGHWAYS, State of Louisiana v. Walter SMITH and Douglas Wildey.
    No. 8835.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Marshall W. Wroten, Robert J. Jones, David K. Balfour and Richard M. Sandefer, Baton Rouge, for plaintiff-appellant.
    Robert A. Pitre, Jr., Gretna, for Walter Smith Sumner and Douglas Wildey, defendants-appellees.
    Young, McMahon & Levert, Edward L. Levert, Jr., New Orleans, for Con-Plex, Division of U. S. Industries, Inc., and Rodney Small, defendants-appellants.
   STOULIG, Judge.

Before LEMMON, STOULIG and GAR-SAUD, JJ.

This appeal involves a $530.57 property damage claim to a truck owned by the Department of Highways of the State of Louisiana. Plaintiff originally filed suit against Walter Sumner, driver of the truck that backed into the door of the State’s parked vehicle, and his employer, Douglas Wildey. More than 15 months after the accident, plaintiff filed an amended petition to join as defendants Rodney Small and his employer, Con-Plex, Division of U. S. Industries, Inc., who pleaded the exception of prescription because more than a year had elapsed between the accident and the filing of the amended petition in which they were cited as defendants.

The trial court found that the negligence of Rodney Small was the sole proximate cause of the accident and the record fully supports this result.

Briefly, Small, who had been seated in the rear seat of the Highway Department truck, opened the door as a dump truck operated by Sumner was moving between 12 and 18 inches from the side of the plaintiff’s vehicle. Small should have been aware that the truck was going to be put in motion as he opened the door; however, his negligence in failing to look before executing this maneuver resulted in the door of plaintiff’s truck being pushed into the path of the moving dump truck which was backing up. Had Small not opened the door, no accident would have occurred.

The trial court properly dismissed plaintiff’s suit against Sumner and Wildey but erred in overruling the plea of prescription filed on behalf of Con-Plex. The original petition would have served to interrupt prescription running in favor of Con-Plex only had the original defendants been liable with it as a cotortfeasor. Absent solidary liability with a defendant timely cited, a negligent late-joined defendant may successfully plead prescription. Fontenot v. Lucas, 228 So.2d 211 (La.App. 3d Cir. 1969). Con-Plex’s plea of prescription is maintained.

Although the exception of prescription is also urged on Small’s behalf in brief, we note that no formal plea of prescription has been filed on his behalf. A peremptory exception must be filed if prescription is to be considered on any basis. The court cannot raise it ex proprio motu nor will it consider the plea that has simply been injected in brief or oral argument. Motor Machine & Supply Co. v. Delilah Towing Co., Inc., 321 So.2d 896 (La.App. 1st Cir. 1975); City of New Orleans v. Di Benedetto, 144 So.2d 558 (La.App. 4th Cir. 1962); Merchants Adjustment Bureau v. Malta, 102 So.2d 781 (La.App. 2d Cir. 1958).

For the reasons assigned, the judgment appealed from is reversed insofar as it overrules the plea of prescription urged for Con-Plex and plaintiffs suit against Con-Plex is hereby dismissed. In all other respects the judgment is affirmed. Defendant Small is to pay all costs of this litigation.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

LEMMON, J., dissents with written reasons.

LEMMON, Judge,

dissents in part and assigns reasons.

Form is indeed triumphing over substance when this court tells Rodney Small that he loses this case he otherwise would have won if the piece of paper filed in this court by his attorney had the word “brief” written at the top of it rather than the word “exception”.

C.C.P. art. 2163 authorizes consideration of a peremptory exception when “filed” for the first time in the appellate court. The requirement of C.C.P. art. 927 that the exception of prescription must be “specially pleaded” should be reasonably interpreted to mean that the “court cannot supply the objection of prescription” (as stated by the introductory clause of the article), which must be supplied or “pleaded” by the party. This article should not be taken to mean that the plea of prescription cannot be “pleaded” by the party in a brief or in some other written document “filed” in the appellate court well in advance of oral argument, nor should the article be construed in conflict with C.C.P. art. 5051, which mandates that rules of procedure should be construed so as to implement the substantive law and not as being an end in themselves.

In this case defendant Rodney Small filed a brief on June 29, 1977, assigning as error in the judgment below the overruling of the exception of prescription. Had he filed ten more pieces of paper marked “exception” and therein reiterated the issue of prescription, those “special” pleadings would not have informed plaintiff any better that prescription was an issue to be determined by this court in the hearing on January 6,1978.

The purpose of filing pleadings is to notify the opposing parties what are and what are not the issues to be decided in the particular court in which the pleadings are filed. When that purpose has been accomplished (as was undoubtedly done in this case), justice and fair play demand that substantive issues should not be decided on the basis of the denomination of the papers filed in the court, but should be decided on the merits of the substantive issues themselves.

I therefore dissent from the decree insofar as our judgment failed to maintain the exception of prescription “filed” by defendant Rodney Small, and I would overrule those intermediate appellate decisions based on pre-Code of Civil Procedure statements that briefs are mere arguments and form no part of the pleadings.

      . Con-Plex filed a plea of prescription in the trial court and it was also urged on appeal in the brief filed in Small’s behalf.

      . The general rules for pleadings are provided in C.C.P. art. 852 et seq., which provide essentially that a pleading must be in writing, must contain a caption setting forth the name of the case and the title and number of the action (C.C.P. art. 853), but that there need be no technical form of pleading (C.C.P. art. 854).


text:
    KEN EDWARDS REAL ESTATE, INC. and Kenneth T. Edwards, Agent v. MOLERO’S MARINA, INC. and Melvin Molero.
    No. 8839.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Miranne & Miranne, Ira J. Middleberg, New Orleans, for plaintiff-appellant.
    Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for defendant-ap-pellee.
    Before LEMMON, STOULIG, and GAR-SAUD, JJ.
   GARSAUD, Judge.

This suit for breach of contract is brought by plaintiffs, Ken Edwards Real Estate, Inc. and Kenneth T. Edwards, Agent, against defendants, Molero’s Marina, Inc. and Melvin Molero. Plaintiff-appellant claimed a breach of real estate listing agreement through a sale outside of the agreement, and sued for the commission stipulated in the contract. Defendant-ap-pellee answered, alleging that a material alteration of the contract existed which extended the length of the contract from six months to twelve months. The sale of the property in question occurred between the six-month and twelve-month periods.

After a trial on the merits, the trial judge found that the plaintiff had failed to explain adequately the alteration, and judgment was rendered in favor of defendant. Plaintiff has appealed from that judgment.

This entire case turns on whether the contract was for six months or twelve months. There is no disagreement that the listing agreement was dated August 16, 1973 and the property in question sold on July 3, 1974, more than six months but less than twelve months from the execution of the contract. The resolution of this question depends on determining the intention of the parties. The absolute conflict in testimony, as well as the change and the interlineation in the agreement, render this task difficult.

The trial court answered the dilemma by ruling the contract inadmissible on the basis of the credibility of the defense and the inability of the plaintiff to explain satisfactorily the alteration and addition in the agreement. The following statement by the Court appears in the record at p. 314:

“The Court states for the record further that if in fact the Court would rule in favor of the defendant herein, and that no request for written reasons were asked by either attorney, in case of an appeal that both attorneys should know that the Court resolves the question of the admissibility which has been argued several times in favor of the defense, and vice versa, if I decide in favor of the plaintiff.”

Two versions of the agreement were submitted for a ruling as to admissibility. The plaintiff offered the original of the agreement, which was dated “8-16-73” at the top and “8-16-74” at the bottom on a line entitled “Expiration Date.” In the body, where the normal effective period reads “six (6) months,” one finds “six (6)” struck out and “12” written underneath. There are no initials by this strike-out. Further, under Melvin Molero’s signature, one finds typed the words, “As Ind. & Duly Author. Corp. Officer.”

The copy introduced by the defendant, which he testified that he obtained after suit was filed, does not have on it the typed words noted immediately above. It should be noted here that these words are the only typed words on the document. All other blanks are completed in the handwriting of the plaintiff.

In his answer, the defendant alleged that the contract was for only six months, thus putting squarely at issue the term of the agreement. In his testimony, he insists that the contract was altered in three ways after he signed, and without his knowledge: first, the strike-out of “six (6)” and the addition of “12”; second, the insertion of “8-16-74” in the blank for expiration date; third, the typed interlineation of “As Ind. & Duly Author. Corp. Officer.”

The plaintiff alleges that all of these changes were made while defendant was present and with his full knowledge. He explains the copy introduced by defendant, in which no typing appears, by stating that after the defendant signed the agreement, a copy of it was made and handed to defendant by plaintiff’s secretary. At that point, plaintiff became aware of the existence of the Molero corporation, at which time he contacted his attorney and was advised to type in the language at issue. The plaintiff maintains that all this was done in Molero’s presence, and that a second copy with the typing was given to him.

The trial court, in its finding for defendant, ruled the original agreement inadmissible. We agree with that ruling. It is well-settled that writings which are erased or interlined are presumed to be false, and the person relying on such a document must satisfactorily explain the alterations. McMicken v. Beauchamp, 2 La. 290 (1831); Barrett Division of Allied Chemical & Dye Corp. v. Kennedy Saw Mills, Inc., 230 La. 143, 88 So.2d 5 (1956); Twilbeck v. Twilbeck, 192 So.2d 907 (La. App. 4th Cir. 1966). Obviously, the trial court did not believe that the plaintiff satisfactorily explained the strike-out and the interlineation. This was a credibility question which the trial court resolved in defendant’s favor. Absent manifest error, of which there was none, the trial court’s conclusion must be given great weight. Canter v. Koehring Co., 283 So.2d 716 (1973); Dyson v. Gulf Modular Corp., 338 So.2d 1385 (1976). The lower court’s decision that plaintiff was unable to carry its burden in this regard was no doubt influenced by the fact that the plaintiff’s lawyer witness could not remember whether he gave the advice to insert the typed words in 1973 or 1974. and the inconsistent testimony offered by plaintiff’s secretary when she testified regarding the events of the day on which the agreement was executed.

Plaintiff-appellant objects to the application of the rule of McMicken and Barrett, supra, on the grounds that the finding of a material alteration should go to the weight of the evidence offered rather than to the admissibility thereof. The court in McMicken, however, stated:

“[W]e are of opinion the judge erred in receiving the instrument in evidence, with this apparent falsification — if the alteration be in a substantial part. . . ”
2 La. at 291. (Emphasis supplied.)

Appellant further argues that this case is controlled by Kindred v. Hardie-Meric, Inc., 159 So.2d 370 (La.App. 4th Cir. 1964) and Trinity Universal Insurance Company v. Lambert, 176 So.2d 651 (La.App. 1st Cir. 1965), writs denied, 248 La. 413, 179 So.2d 15. Appellant’s reliance is misplaced in both instances.

In Kindred, the court dealt with an instrument which simply was not altered. The complaint there was that what had been agreed to orally was not incorporated into the instrument. As the court stated in Kindred, “An examination of the document does not reveal to the naked eye that it has been altered.” Kindred v. Hardie, supra, at 373. Here we have a clear alteration that must be satisfactorily explained. Further, the fraud rationale of that case is inapplicable to the issue here as framed by the various allegations.

As far as Trinity is concerned, plaintiff, on the basis that the contract here actually was not completely filled out (specifically, the expiration date) when defendant left plaintiff’s office, argues that the contract is admissible into evidence because

“[WJhoever signs or executes an instrument bearing blanks and later contests the correctness of the completion of the blanks, bears the burden of proving by a preponderance of the evidence that the document was completed in a manner not agreed to between the parties.” 176 So.2d at 657.

This follows the general rule as stated in 3 C.J.S. Alteration of Instruments § 62 (1936), which provides:

“Blanks of any description left in writings not under seal may, except as prohibited by the statute of frauds, be filled in in pursuance of mere parol authority, and it may be laid down generally that if one signs an instrument containing blanks he must be understood to entrust it to the person to whom it is delivered to be properly filled in, according to the agreement between the parties, and, when so filled in, the instrument is not considered altered so as to invoke the technical rules there and it is as good as if originally executed in complete form. Strictly speaking, the filling of a blank in a written instrument presents merely a question of authority, and not one of an alteration of a completed instrument, and, as a general rule, when the filling of a blank space in an instrument is authorized by the parties, the act does not constitute a material alteration.”

Thus, according to plaintiff, even if th*> expiration date were left blank by defendant and later filled in, this is not a material alteration and the contract is complete on its face. This argument might have merit if it were merely a case of completing the contract by filling in the blanks. Here, however, there is also an interlineation of the word “six,” which has been replaced by the number “12.” This substitution acts as a material alteration, invoking the rule set forth in McMicken, supra.

For the reasons stated, the judgment is affirmed.

AFFIRMED.