author: BLANCHE, Justice.

text:
    LOUISIANA POWER AND LIGHT COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al. HOOKER CHEMICALS AND PLASTICS CORPORATION v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 63181.
    Supreme Court of Louisiana.
    March 5, 1979.

      Andrew P. Carter, New Orleans, J. Wayne Anderson, Monroe & Lemann, New Orleans, for Louisiana Power & Light Co.'
    Marshall B. Brinkley, Gen. Counsel, Michael R. Fontham, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, for Louisiana Public Service Commission.
    John V. Parker and R. Gordon Kean, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for Hooker Chemicals & Plastics Corp.
    Stephen Miller Irving, Baton Rouge, for Louisiana Consumer’s League, Inc.
   BLANCHE, Justice.

Louisiana Power and Light Company (LP&L) filed an application with the Louisiana Public Service Commission (Commission) on November 12, 1976, seeking a rate increase totaling $53,986,820, alleging an increase was necessary due to the deterioration of its earnings, inflation, and the need for continued construction of its new generating plant. Hooker Chemicals & Plastics Corporation (Hooker) successfully intervened. Intervention was also sought by the Louisiana Consumer’s League, Inc., but was. denied by the Commission. That denial was subsequently reversed by this Court and the Consumer’s League was ordered to be made a party. Louisiana Consumer’s League, Inc. v. Louisiana Public Service Commission, 351 So.2d 128 (La.1977).

Hearings on the rate request commenced in March of 1977 and ran intermittently until concluded in October of 1977. The case was then taken under advisement by the Commission. On November 23, 1977, the Commission, by Commission Order No. U-13220, granted LP&L a rate increase of $4,970,610 and stipulated the increase was to be allocated entirely to LP&L’s industrial customers.

LP&L immediately implemented the increase granted by the Commission and filed a devolutive appeal with the Nineteenth Judicial District Court under LSA-R.S. 45:1192. The utility company claimed the decision of the Commission in awarding only $4,970,610 was arbitrary, capricious, confiscatory and denied them a fair rate of return on equity. LP&L sought interlocutory injunctive relief suspending the operation of Order No. U-13220 of the Commission and enjoining the Commission from using that order to prevent LP&L from implementing a $13,790,000 rate increase during the pendency of the appeal. LP&L further requested that after a hearing on the merits the injunction be made permanent and they be granted a rate increase in the full amount of $53,986,820.

Hooker also filed a petition for appeal and review under R.S. 45:1192, being a party in interest dissatisfied by the order, seeking review of the allocation of the entire rate increase to industrial customers. Union Carbide Corporation intervened on the side of Hooker in this appeal. Subsequently, on motion of Hooker, the separate appeals of LP&L and Hooker were consolidated.

The request of appellant LP&L for interlocutory injunctive relief was denied. The district court, after a painstaking and thorough review of the record, determined that the Commission had acted arbitrarily and capriciously in awarding only $4,970,610, when the evidence more than adequately supported the finding that $13,790,000 was the proper rate increase, and also in allocating the entire $4,970,610 rate increase to industrial customers. The trial judge remanded the case to the Commission, ordering it to determine how the $13,790,000 increase should be allocated among LP&L’s various classes of customers. The Commission, however, was limited in that the Court held that any allocation must be done on some cost-of-service basis. The district judge, in his Written Reasons for Judgment, went on to say:

“When this has been accomplished, the Court will order a full accounting to be made by LP&L regarding any refund or credit for any amounts paid by the industrial customers pursuant to the Commission’s Order No. U-13220 in excess of what would have been the amounts allo-cable to such industries if the amount of the increase had been properly allocated among all customer classes based on cost of service. (Emphasis added)

On remand, the Commission concluded that their data was “insufficient to make a precise determination of the proper allocation of costs among customer classes pursuant to the district court’s determination” and ordered the rate increase be allocated based upon historical allocation factors proposed by LP&L.

Following remand, based upon the finding of the Commission, the district court issued the following order:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said rate increase in the sum of $13,790,000 shall be allocated to the various classes of customers of Louisiana Power & Light Company as follows:
Industrial $ 4,970,000
Residential 5,570,000
Commercial 2,885,000
Municipal Water Pumping 85,000
Street and Other Lighting 280,000
Total $18,790,000
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that within 90 days of the date hereof, Louisiana Power & Light shall render a full accounting regarding the refund or credit due for amounts paid by industrial customers pursuant to Commission Order No. U-13220 from date of its implementation by Louisiana Power & Light to date of this Judgment, in excess of what would have been the amount allocated to such industries if the amount of the increase ordered by Commission Order No. U-13220 had been properly allocated among all customer classes based on cost of service; and the Court shall retain jurisdiction of this phase of the case until the accounting has been made as ordered herein.” (Emphasis added)

From this judgment, both LP&L and the Commission devolutively appealed to this Court under Article 4, § 21(E) of the Louisiana Constitution of 1974. LP&L also filed in the district court a motion to stay the accounting ordered by that court pending the appeal. This motion was granted. Hooker filed a motion in this Court to dismiss the appeal or, in the alternative, to vacate the stay order granted by the district court. We denied the motion to vacate the stay order and referred the motion to dismiss to the merits. All parties, including the Louisiana Consumer’s League, filed briefs.

Neither LP&L, nor the Commission, assigned as error the amount of the increase ordered by the district court or the method by which it was allocated. Additionally, no one has challenged the district court’s finding that the allocation by the Commission of the $4,970,000 increase solely to industrial customers was arbitrary, capricious and confiscatory. The sole issue raised by this appeal is whether the district court erred in ordering LP&L to make an accounting to determine the amount of refund or credit due to industrial customers for the amounts they paid, during the period the Commission’s original order (No. U-13220) was in effect, in excess of what would have been the amount allocated to such industries if the original increase had been properly allocated among all customer classes on a cost-of-service basis.

MOTION TO DISMISS

Appellee, Hooker, filed a motion to dismiss the appeal on the ground that this Court was without jurisdiction.

Appellants rely on Article 4, Section 21(E) of the 1974 Louisiana Constitution as giving them the right of direct appeal to this Court in cases involving actions taken by the Commission. Counsel for ap-pellee Hooker claims this reliance is misplaced and cites the provision, in part, as follows:

“These rights of appeal shall extend to any action by the Commission.” (Emphasis by appellee)

Appellee claims that the action appealed, the order for an accounting, is not an action taken by the Commission but rather is action taken by the district court. Since this Court’s jurisdiction under Article 4, § 21(E) is limited to “actions by the Commission,” it is urged, the appeal should be dismissed.

This argument is wholly without merit, as a full reading of the section reveals:

“(E) Appeals. Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of. Sub-paragraph (3) of Paragraph (D) of this Section.” (Emphasis added)

The section makes it clear that any judgment of a district court sitting in review of actions by the Public Service Commission under the authority of Article 4, § 21, is directly appealable to this Court. The motion to dismiss is, therefore, denied.

THE MERITS

After several months of hearings on the $53,986,820 proposed increase, the Commission issued Order No. U-13220, which contained the following language:

“For the reasons stated in the opinions of Commissioners Louis J. Lambert, Thomas E. Powell and John Schweg-mann, Jr.;
“IT IS ORDERED, That Louisiana Power and Light Company be permitted to increase its rates to industrial customers for retail electric service in the gross amount of $4,970,610.”

Commissioner Schwegmann’s 26-page report concluded that 12.5 percent earnings on equity would produce an overall fair rate of return of 9.2 percent. In order to achieve this rate of return, it was necessary that LP&L be granted a rate increase of $13,790,000. Schwegmann rejected the approach taken by the other two commissioners that any increase should be borne wholly by industrial customers. In his conclusion, he acknowledged that the proper amount allocable to industrial consumers under a $13,790,000 increase would be $4,970,610. Commissioners Lambert and Powell, however, concluded that only a $4,970,610 increase was warranted and that the entire amount should be borne by industrial consumers. However arrived at, the result of the Commission’s action was that a $4,970,610 increase allocable solely to industrial consumers was authorized and immediately put into effect by LP&L.

The district court made two separate findings as to the action taken by the Commission. First, the court concluded that the Commission had acted arbitrarily and capriciously in allowing only a $4,970,610 increase when a $13,790,000 increase was warranted. No party has assigned this finding as error and, therefore, the question of the amount of the increase is not before us today. Secondly, the district court found that the Commission had acted arbitrarily and capriciously in allocating the entire $4,970,610 increase solely to industrial customers.

The trial judge, in his Written Reasons for Judgment, noted:

“There should be no disagreement with the statement that cost of service is the appropriate basis for rate increase allocation. Much testimony was given at the hearings regarding the different methods of computing the cost of service. The Commission ignored all of them, stating that they did not have sufficient data. Even if they did not have sufficient data, their action of allocating this entire increase to the industrial customers, was arbitrary.”

The finding by the trial court that the allocation of the $4,970,610 increase solely to industrial customers was arbitrary, capricious and confiscatory has not been assigned as error, nor has any party appealed the trial court’s allocation of the $13,790,000 increase on a cost-of-service basis, the method of computing the cost of service, or the allocation factors which were finally used.

Therefore, for the purposes of determining whether any refund is due to the industrial consumers for sums paid during the period when Commission Order U-13220 was in effect, we assume that the trial court was correct in holding the increase was allocated in an arbitrary and capricious manner and should have been calculated on a cost-of-service basis.

ISSUES

Appellants basically advance two arguments as to why the trial judge erred in ordering an accounting. First, they claim that a utility which collects a revenue pursuant to a Commission-approved increase is not required to make a refund in the event that the rate is later determined to be excessive. Secondly, even assuming that a refund may be required where a rate increase granted by the Commission is put into effect and then later reversed or reduced, no refund is due in this case. Appellants claim that since the amount which the industrial customers were forced to pay during the effective period of Commission Order No. U—13220 is the same amount which was later determined to be allocable to the industrial consumers on a cost-of-service basis under the $13,790,000 increase granted by the district court, the industrial consumers have simply been paying all along what they were required to pay. The corollary to this argument is that the Commission was correct in assessing a $4,970,610 increase against industrial consumers but was arbitrary in failing to order additional increases against other classes of consumers. Hence, the argument goes, the industrial consumers paid their fair share from the beginning and the other classes of consumers simply received a windfall during the period the order was in effect.

Appellee Hooker claims that Louisiana law provides for refunds in cases where a rate increase, authorized by the Commission and put into effect by the utility, is subsequently reversed by a court on appeal. They claim this Court granted such a refund in Gulf States Utilities Company v. Louisiana Public Service Commission, 364 So.2d 1266 (La.1978). Hooker further argues that there were, in fact, two rate increases: the first in the amount of $4,970,610 under Commission Order U— 13220 which was allocated solely to industrial customers and was in effect from November 23, 1977 (the date the Commission’s order went into effect) until the date the district court rendered its judgment (July 24, 1978); and a second increase in the amount of $13,790,000 which came as a result of the judgment of the district court reversing the Commission and which was allocated on a cost-of-service basis. Hooker argues that the fact that the amount allocated to industrial customers under the second increase was practically the same as that allocated under the first increase has nothing to do with whether an accounting is due for the period the original increase was in effect. The question is simply whether industrial customers paid a greater portion of the first rate increase than would have been due by them had the increase been allotted based upon cost of service.

1.

In regard to appellants’ first contention, that a utility which collects a revenue pursuant to a commission-approved increase is not required to make a refund in the event that the rate increase is later reversed or reduced, we note that Article 4, Section 21(D) of the Louisiana Constitution of 1974 provides:

“(D) Applications, Petitions, and Schedules; Protective Bond and Security.
“(1) Within twenty days after a common carrier or public utility files a proposed rate schedule which would result in a change in rates, it shall give notice thereof by publication in the official state journal and in the official journal of each parish within the geographical area in which the schedule would become applicable.
“(2) Within twelve months after the effective filing date, the commission shall render a full decision on each application, petition, and proposed rate schedule.
“(3) After the effective filing date of any proposed schedule by a public utility which would result in a rate increase, the commission may permit the proposed schedule to be put into effect, in whole or in part, pending its decision on the application for rate increase and subject to protective bond or security approved by the commission. If no decision is rendered on the application within twelve months after such filing date, the proposed increase may be put into effect, but only if and as provided by law and subject to protective bond or security requirements, until final action by a court of last resort.
“(4) If a proposed increase which has been put into effect is finally disallowed, in whole or in part, the utility shall make full refund, with legal interest thereon, within the time and in the manner prescribed by law.” (Emphasis added)

While at first blush it appears that sub-paragraph (4) dealing with refunds for disallowed rate increases relates only to sub-paragraph (3) of the same section, a thorough reading of the constitutional debates during this section’s consideration indicates an intent by the delegates that rate increases which were approved by the Commission after a full determination and later reversed or reduced were to be subject to this provision. Immediately prior to passage of the Ray Amendment, which provided the great majority of the substance for paragraph (D), Ray explained subparagraph (4) as follows:

“Section 4 deals with the ... 2 and 3. In other words, suppose the commission, six months after an application was filed with it, granted the rate increase and put it in effect. Then subsequently, a year and a half or two years later, the Supreme Court says you should not have granted the rate increase; then Section 4 is applicable, and the utility company must make the refund with interest subject to the method and time being developed by the legislature.” (Louisiana Constitutional Convention Verbatim Transcripts, Volume 35, 107th Day, p. 29. See also Louisiana Constitutional Convention Verbatim Transcripts, Volume 34, 105th Day, p. 145, and Volume 35, 107th Day, p. 4.)

The only thing the delegates left to the discretion of the legislature was what time limitations, if any, would be placed on the utility and in what form the refund would be paid. The failure of the legislature to act on these two minor points, however, should not operate to deprive appellees of their right under the section to a refund since reasonable requirements of time and method can be supplied by either the Commission or the courts, as was done in this case by the district court.

The question presented by this appeal is whether the refund requirements of subparagraph (4) apply not only to a situation where an increase granted by the Commission was later reduced or reversed but also in the case where one class of consumers has paid a greater amount of an increase than their fair share because of an improper allocation and that improper allocation is subsequently reversed. We believe that it should. The clear purpose of subparagraph (4) is to insure that utility consumers are refunded amounts which they pay pursuant to a rate increase when that rate increase is subsequently disallowed. With this purpose in mind, we have no hesitancy in interpreting this provision so as to include a situation where an improper allocation results in an overpayment by one or more classes of consumers.

2.

The- second basic position taken by appellants is that even should a refund be required in some eases, one should not be granted here since the amount of the increase borne entirely by industrial customers under Commission Order No. U-13220 is substantially the same amount that was finally determined to be allocable to industrial consumers under the increase granted by the district court. They claim that since the amounts are the same the industrial consumers were merely paying their fair share the entire time while other classes of consumers received a windfall as a result of the Commission’s failure to grant corresponding increases allocated to other classes of consumers.

On the surface, this reasoning is very appealing. However, it breaks down under the inescapable conclusion that there was not one but two, increases in this case. Appellees correctly point out that during the seven months while Commission Order No. U-13220 was in effect LP&L was enjoying a rate increase of $4,970,610 of which industrial consumers bore 100 percent of the cost. The later increase and allocation is simply not relevant to the fact that for seven months industrial consumers paid a disproportionate share of an increase which should have been allocated on a cost-of-service basis. It is clear from reading the history of Article 4, Section 21(D)(4) that when a utility company collects under a rate increase authorized by the public service commission before the time for appeal has run or all appeals have been exhausted, it does so at its own risk that it may one day have to make a refund. Further, to adopt appellants’ position would result in a retroactive application of the rate increase granted by the district court.

Appellants claim that industrial consumers have not been prejudiced since they have not been required to do any more than pay their fair share of the cost of service from the beginning. We disagree. Cost of service is no more than a formula for allocating rates. The rate increase that was in effect during the seven-month period in question was borne entirely by industrial customers when, in fact, they should have only been required to bear approximately 34 percent of the increase. The fact that the rate was later increased by the district court, and the amount allocated to industrial customers under that increase was the same as the amount allocated wholly to industrial customers under the Commission’s order, does not alter the fact that industrial consumers paid, during the period in question, a percentage of the increase in excess of'what they could legally have been obliged to pay.

Counsel for appellants further argues that Commissioners Powell and Lambert, in fact, recognized that the $13,790,000 increase was mandated by the evidence but for some ulterior motive refused to vote for any rate increase which would affect anyone but industrial consumers. Therefore, they approved only the amount of the $13,-790,000 increase allocable to industrial consumers, which was $4,970,610, and stipulated that amount was to be paid by the industrial consumers. Hence, all the court did was to reverse the Commission and order that the remainder of the classes of consumers be forced to pay their portion of the $13,790,000 to which LP&L was legitimately entitled. Appellant claims that LP&L should not be penalized by having to make a refund because of the conduct of the Commission.

This Court, in reviewing the findings of administrative bodies, has always been loath to peer into the minds of the members who participate in such decisions. Our review is limited to determining whether such bodies have acted in an arbitrary and capricious manner such that their action violates the rights of due process of those who are affected by their decisions. Therefore, irrespective of how the Commission reached its decision, the fact is that as a body a $4,970,610 increase allotted solely to industrial customers was approved and industrial customers paid increased rates as a result thereof. The district court found this decision was arbitrary and capricious and no party has challenged that finding. Since we assume the district court was correct in that determination, the only issue for our consideration is whether the persons adversely affected by the arbitrary and capricious actions of the Commission are entitled to relief. We conclude that they are.

We, therefore, find no error in the district court judgment which ordered LP&L to make an accounting regarding refunds or credits for amounts paid by industrial consumers pursuant to Commission Order No. U — 13220 from the date of its implementation by LP&L to the date of the district court judgment in excess of what could have been the amount of the increase allocated to such industries if the amount of the increase ordered had been properly allocated among all customer classes based on cost of service.

For the above and foregoing reasons, the motion to dismiss filed by Hooker Chemicals & Plastics Corporation is denied, and the judgment of the district court is affirmed. Appellants are to pay all costs of this appeal.

MOTION TO DISMISS DENIED AND DISTRICT COURT JUDGMENT AFFIRMED.

DIXON and CALOGERO, JJ., dissent.

      Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . Subparagraph (4) is distinguished from the second sentence of subparagraph (3) in this regard. In South Central Bell Telephone Company v. Louisiana Public Service Commission, 334 So.2d 189 (La.1976), this Court denied relief because the legislature had not passed enabling legislation envisioned by the convention. The language “but only if and as provided by law” was set out in that subparagraph to make it clear that no rate increase could be put in effect by a utility company under that subpara-graph until the legislature had established the procedure and bond requirements.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Harry Andrew NICHOLS.
    No. 64126.
    Supreme Court of Louisiana.
    March 9, 1979.
   In re Harry Andrew Nichols applying for writs of certiorari, mandamus and prohibition. Parish of Sabine.

Granted. District Court order denying continuance is overruled and a continuance is granted; the trial date is upset.


text:
    QUALITY TRANSPORT, INC. v. YOUNGER BROTHERS, INC., et al. Steven BROWN v. YOUNGER BROTHERS, INC., et al. TEXAS GENERAL INDEMNITY CO. v. YOUNGER BROTHERS, INC., et al.
    No. 64177.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Quality Transport, Inc. and Texas General Indemnity Co. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 366 So.2d 1042.

Writ granted. This case is remanded to the Court of Appeal for reconsideration in light of Arceneaux v. Domingue, La., 365 So.2d 1330.

SUMMERS, C. J., dissents from the order.


text:
    Steven BROWN v. YOUNGER BROTHERS, INC., et al. QUALITY TRANSPORT, INC. v. YOUNGER BROTHERS, INC., et al. TEXAS GENERAL INDEMNITY CO. v. YOUNGER BROTHERS, INC., et al.
    No. 64188.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Steven Brown applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 366 So.2d 1042.

Writ granted. This case is remanded to the Court of Appeal for reconsideration in light of Arceneaux v. Domingue, La., 365 So.2d 1330.

SUMMERS, C. J., dissents from the order.


text:
    Trudy M. DANIEL v. CAMBRIDGE MUTUAL FIRE INS. CO. et al.
    No. 64201.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Trudy M. Daniel applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 368 So.2d 810.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Hugh C. WILBOURN.
    No. 64420.
    Supreme Court of Louisiana.
    April 17, 1979.
   In re Hugh C. Wilbourn, applying for motion for time to file writ application and for a stay order. Orleans Parish. No. 253-070.

Execution of sentence stayed pending action by U. S. Supreme Court on relator’s application in that Court; however, stay shall not be effective for five days in order to allow time for state to hold bond hearing.

SUMMERS, C. J., dissents from order and would deny a stay order.

BLANCHE, J., dissents from order.


text:
    STATE of Louisiana v. George AMBROSE et al.
    No. 64434.
    Supreme Court of Louisiana.
    April 17, 1979.
   In re George Ambrose, et al., applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo. Nos. 110,897, 110,718, 110,685, 110,697, 110,747, 110,720, 110,684, 110,694, 110,690, 110,693, 110,714, and 110,702.

Writ denied.


text:
    STATE of Louisiana v. Jeff CAMERON.
    No. 64433.
    Supreme Court of Louisiana.
    April 17, 1979.
   In re Jeff Cameron, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 110,683.

Writ denied.


text:
    STATE of Louisiana v. Mitchell Edwin GRIFFIN.
    No. 64432.
    Supreme Court of Louisiana.
    April 17, 1979.
   In re Mitchell Edwin Griffin, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 110,717.

Denied.


text:
    STATE of Louisiana v. Dennis BOYETT.
    No. 64428.
    Supreme Court of Louisiana.
    April 17, 1979.
   In re Dennis Boyett, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 110,709.

Writ denied.


text:
    STATE of Louisiana ex rel. William DOYLE v. Honorable Israel AUGUSTINE, Judge, et al.
    No. 64252.
    Supreme Court of Louisiana.
    April 19, 1979.
   In re William Doyle applying for writ of habeas corpus and/or mandamus. Parish of Orleans. No. 242-169.

Due to the failure of State to show cause it is ordered that the relator is admitted to bail upon his own recognizance.


text:
    STATE of Louisiana v. Dwayne WILLIS.
    No. 64258.
    Supreme Court of Louisiana.
    April 19, 1979.
   In re Dwayne Willis applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 78-1821.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Wallace C. LeBrun, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 7th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be determined by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Michael JASON.
    No. 64461.
    Supreme Court of Louisiana.
    April 20, 1979.
   In re Michael Jason, applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish. No. 79-136.

Not considered. Not timely filed.


text:
    STATE of Louisiana ex rel. William DOYLE v. Hon. Israel AUGUSTINE, Judge, et al.
    No. 64252.
    Supreme Court of Louisiana.
    April 20, 1979.
   In re William Doyle, applying for remedial writs. Orleans Parish. No. 242-169.

This Court’s order of April 19, 1979 is stayed pending further orders of this Court.


author: LANDRY, Judge. PONDER, Judge,

text:
    COLLEGE ASSOCIATES v. The CITY OF BATON ROUGE et al. CHEVRON OIL COMPANY v. The CITY OF BATON ROUGE et al.
    Nos. 12322, 12323.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Rehearings Denied April 16, 1979.
    Eugene R. Groves, Baton Rouge, of counsel for plaintiff-appellee, Chevron Oil Co.
    Parish Atty. Joseph F. Keogh, Baton Rouge, John S. Thibaut, Jr., Baton Rouge, of counsel for defendant-appellant, City of Baton Rouge, et al.
    Before LANDRY, COVINGTON, LOT-TINGER, CHIASSON and PONDER, JJ.
   LANDRY, Judge.

Defendants, The City of Baton Rouge, The Parish of East Baton Rouge and the Greater Baton Rouge Consolidated Sewer District, (Appellants), appeal from judgments awarding plaintiffs College Associates (College) and Chevron Oil Company (Chevron), (Appellees), recovery on the theory of unjust enrichment, of the partial cost of a sewer system constructed by Appellees and accepted by Appellants as part of Appellants’ municipal sewer system. Appel-lees have answered the appeal seeking an increase in the awards. We amend the judgments to increase Appellees’ recovery.

RELEVANT BACKGROUND INFORMATION

Subject sewer lines are situated in the northeast quadrant of the intersection of I — 10 and College Drive, a major intersection in the City of Baton Rouge. In 1968, a large portion of the then undeveloped subject area consisted of an 80 acre tract owned by the W. R. Aldrich Estate which parcel was bounded west by College Drive, north by lands of Para P. Aldrich, east by lands of the Witter Estate and south by I-10. Chevron desired to obtain from the Aldrich Estate a one acre tract situated near the northwest corner of the Aldrich property and fronting on College Drive, for use as a service station site. Negotiations for the purchase disclosed the fact that owners of the Aldrich property would not sell less than six acres. Being interested in only one acre, Chevron contacted a representative of the Howard Johnson Company through its local franchiser, College, to ascertain whether College was interested in acquiring a five acre parcel for construction of a motel. Upon College evidencing interest in the proposal, Appellees engaged A. E. Probst, a local developer, to assist in obtaining a rezoning of the Aldrich tract and approval of its subdivision to permit commercial use of the area. It was learned that subdivision regulations required that developers provide sewerage facilities for the area proposed to be subdivided as a governmental prerequisite to approval of all proposed subdivisions. An engineer, Toxie Craft, was employed to determine availability of a sewerage trunk line to serve subject area. Craft reported that an existing line located near the northwest corner of the Aldrich tract on the opposite side of College Drive, near Bawell Street, was available for a sewer tie-in. This information proved inaccurate when local officials pointed out that the Bawell Street line was already overloaded and not available for additional tie-ins. It was then discovered that the nearest available trunk line was approximately 5,000 feet distant from Chevron’s prospective station site, said line being on the south side of I — 10 almost due south of the southeast corner of the Witter tract, which parcel contained approximately 100 acres. To connect this line with Chevron’s proposed site, a trunk line would have to be laid beneath I — 10 northerly to a pumping station in the southeast corner of the Witter tract near Wards Creek, which bounds the Witter property on the east. The line route also required a right-of-way across the southern boundary of the Witter tract (parallel to I — 10).

During the negotiations between Appel-lees and the Aldrich Estate for purchase of the site and during the concurrent negotiations between Appellees and Appellants concerning the matter of sewerage tie-in, it became evident to Appellees, Appellants and local developers that the various properties in subject area possessed considerable potential for commercial development. Appellants, through its officials and agents, showed considerable interest in a development plan for the entire area and indicated their willingness to cooperate with potential developers (including others than Appellees) who were displaying interest in the area. The potential envisioned led to the conclusion that any sewer system constructed should be sufficient to accommodate development of the Aldrich and Witter tracts as well as other properties in the area. Although Chevron’s needs required only a small line, much larger facilities were required to serve the whole area. The Witter interests agreed to donate a right-of-way across their lands in exchange for Chevron’s agreement to build a line sufficient to serve the Witter property after its development. As Appellees’ agent, Probst negotiated with Appellants for construction of a sewer line at Appellants’ expense inasmuch as all parties concerned agreed that development of the area would greatly benefit Appellants by producing additional tax revenues and affording employment potential for local citizens. Appellants recognized the potential but lacked funds to construct the necessary sewer extension. On September 13, 1967, the Parish Council adopted Resolution 7319 which authorized transfer of $85,-000.00 from the budget of the Consolidated Sewer District to extend the trunk line to serve subject area. Later it was learned these funds had been previously committed to another project. On June 26, 1968, the Parish Council adopted Resolution 7766, authorizing allocation of $90,000.00 to the proposed project from the 1969 budget, when funds became available.

On May 5,1969, Chevron signed an agreement to construct the line at its own expense, an agreement routinely required by Appellants as a prerequisite to official approval of proposed subdivision plans. Chevron purchased six acres from the Aldrich Estate and transferred five acres thereof to College in which transfer it was agreed that College would pay 80% of the cost of the proposed sewer facilities and Chevron the remaining 20%. Relying on the above mentioned resolutions and the verbal assurances of Appellants which Appellees understood to be a commitment by Appellants to reimburse the cost of the entire project, Appel-lees constructed a sewer line the plans for which were previously approved by Appellants. The work was performed according to a contract between Chevron and Acadian Engineering Company, under the supervision of Toxie Craft as consulting engineer. The project included extending the existing line beneath I — 10; construction of a lift station north of 1-10 near Wards Creek; laying an 18-inch line from the lift station westerly along the southern boundary of the Witter tract to the Aldrich property; constructing a 15-ineh line northerly from the terminus of the 18-inch line; laying a 10-inch line from the end of the 15-inch main to Chevron’s site on College Drive. Other developers have built additional lines which tie into the 15-inch main laid by Appellees. The project aggregated $118,-134.88, of which sum Chevron paid $30,-312.02 and College paid $87,822.86.

In 1975, College sued Appellants seeking reimbursement, but limited its claim to $85,000 (the amount authorized by Resolution 7319). College based its demand on contract and, alternatively, on unjust enrichment. The trial court found an absence of contract but, relying on Pugh v. Town of Logansport, 235 So.2d 226 (La.App. 2d Cir. 1970), and Coleman v. Bossier City, 305 So.2d 444 (La.1974), gave College judgment on its alternative plea of unjust enrichment. Pursuant to said authorities, College was denied 25% of the amount it paid inasmuch as the record contained College’s stipulation that 25% of the contract price represented contractor overhead and profit. On this basis, College was granted judgment for $65,172.25.

Appellants moved for and were granted a new trial in the College case, on the basis of newly discovered evidence, namely, the May 5, 1969 agreement wherein Chevron undertook to construct the project at its cost and posted a surety bond to guarantee performance. Based on this agreement, Appellants third partied Chevron in the College suit. Chevron filed a separate action against Appellants claiming $30,312.02 paid by Chevron as its part of the construction cost pursuant to its arrangement with College. Chevron’s suit was consolidated with that of College.

The record before us includes the record in the first trial of College’s claim and additional testimony introduced principally on behalf of Appellees. The trial court concluded that the totality of evidence presented a confusing picture as to the intent of the parties concerning reimbursement of Appellees for the work in question. The court noted that while Appellees expected total reimbursement, Appellants intended to defray only the cost of crossing I — 10 and erection of a lift station. Despite finding that Appellees spent more than $85,000 on the entire project, the trial court granted recovery only for that portion of the work situated outside Appellees’ individual development area and on this basis awarded $85,000 with no deduction for overhead or profit, contrary to the initial award. In so concluding, the trial court found there was no profit to Appellees since Appellees had not acted as contractors and that all funds expended by Appellees represented actual expenditures which they were entitled to recoup.

THE ISSUES

Appellants maintain that, under the holding of Miller v. Housing Authority of New Orleans, 249 La. 623, 190 So.2d 75 (1966), the principle of unjust enrichment is inapplicable herein because a contract existed with Chevron pursuant to which Chevron agreed to construct the entire project at its cost. Alternatively, Appellants contend that it agreed to reimburse Chevron the cost of only a portion of the line, namely, the crossing of 1-10 and construction of the lift station.

Conversely, Appellees urge that the resolution adopted by Appellants and the repeated promises and representations of Appellants’ officials, representatives and employees, led Appellees to believe and expect the cost of the entire project would be refunded. It is also contended that the dollar figures mentioned in Resolutions 7310 and 7766 were merely cost estimates and were not indicative of Appellants’ total commitment to the project.

We find the issues to be: (1) Did a specific contract exist thereby restricting the parties to its terms and precluding application of the unjust enrichment doctrine; (2) If there was no contract, do the circumstances warrant application of the unjust enrichment doctrine; and (3) If the unjust enrichment doctrine applies, what reimbursement is due Appellees.

THE TESTIMONY

Chevron’s investment manager, C. R. Gui-dry, participated in the negotiations with Appellants concerning the sewer system. He stated that adoption of Resolutions 7319 and 7766 prompted his recommendation that Chevron purchase six acres from the Aldrich heirs, it being his distinct understanding that Chevron would be reimbursed the total cost of the required sewer extension. After completion of the work he learned that Appellants contemplated less than 100% reimbursement. This development occasioned his letter of October 1, 1971, to Appellants requesting repayment of $100,082.93, which had been spent on the system as of that date.

Donald J. Fleishaker,. managing general partner of College, testified that during early negotiations with Appellants, it was estimated that total cost of the proposed system would run between $85,000.00 and $90,000.00. From the discussions, he believed that Appellants would make full reimbursement. He referred to an agreement between Chevron and various developers of subject area whereby Chevron and College agreed to construct the sewer system in consideration of which the other developers would bear the cost of drainage and streets and lighting for the remainder of the area. Fleishaker’s testimony establishes that subdivision and rezoning would not have been allowed in the area unless the developers submitted a detailed comprehensive plan for the entire area involved.

Toxie Craft, consulting engineer on the project, also participated in the negotiations between Appellants and Appellees. He explained that he personally approved payments to the contractor based on his computation of completed bid quantities. In addition, he itemized the cost of the various components of the contract pursuant to which the work was performed.

Ray W. Burgess, Director, City-Parish Department of Public Works, confirmed his writing Appellees a letter acknowledging the appropriation of $85,000.00 in the budget of the Consolidated Sewer District, which sum was earmarked for the project in question. Burgess also conceded that considerable benefit accrued to the City-Parish government from the development made possible by construction of the sewer system involved herein.

A. E. Probst attested his negotiations with Appellants relative to the proposed system and his detailing to them the amount of sales and ad valorem taxes to be generated by commercial development of subject area. He testified unequivocally as to assurances made to him by Appellants’ Mayor-President that Appellants would provide the required sewerage facilities. We note that Probst’s testimony appears to restrict Appellants’ commitment to that part of the project situated outside the area presently known as Corporate Square. Probst acknowledged that, absent a contrary agreement, it would be the developer’s responsibility to pipe sewerage to the nearest existing trunk line. He explained Chevron’s agreement to install sewerage at Chevron’s expense as a routine requirement of governmental officials before official consideration of a subdivision request.

We find, as did the trial court, that there was no contract in this instance. We so conclude because the record discloses there was no meeting of the minds of the parties on the indispensable element of price. Despite the mentioned resolutions, the assur-anees of the Mayor-President and Director of Public Works, Burgess, and the representations of other governmental representatives, the record as a whole convinces us there was never a complete understanding between the parties as to their precise respective intentions concerning cost reimbursement.

Absence of a contract, however, does not preclude Appellees’ right to relief. In Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3d Cir. 1974), plaintiff was allowed recovery for repairs performed on defendant’s boat. In that case the court found no contract between the parties but granted recovery upon finding that defendant was unjustly enriched by work performed by plaintiff in good faith, which services benefited defendant. The measure of recovery granted was in quantum meruit, the value of goods and services actually rendered for and accepted by defendant.

The same result was reached in Daspit v. City of Alexandria, 342 So.2d 683 (La.App. 3d Cir. 1977) wherein plaintiff sued on an alleged contract entered into by defendant’s mayor without authorization by the municipal governing authority. Finding no contract for lack of authorization the court, nevertheless, granted recovery under the principle of unjust enrichment because defendant accepted and benefited from work performed by plaintiff.

Pugh v. Town of Logansport, supra, is analogous to the case at hand in that it involved sewer work performed pursuant to an invalid contract. Applying the unjust enrichment principle, the court awarded plaintiff recovery in quantum meruit because the officials of the municipality were aware of the construction and agreed to purchase the sewer line when funds became available.

The foregoing jurisprudence of our intermediate appellate courts has been recognized, ratified and approved by the Supreme Court in Coleman v. Bossier City, supra, which involved construction by developers of a sewer and water facility integrated into defendant’s sewerage and water systems. The Court found that refund contracts between the parties, pursuant to which defendant City agreed to reimburse plaintiffs fifty percent of plaintiffs’ actual cost, were void for failure to comply with public bidding laws, but that, nevertheless, plaintiffs could recover pursuant to La.C.C. Article 1965 which allows recovery from one who has been unjustly enriched at the expense of another. Finding plaintiffs in good faith and also noting an absence of fraud, the Court concluded that since the municipality received the actual value of the materials and services furnished, equity demanded payment of the value thereof. In affirming the decision of the Second Circuit Court of Appeal, the Court in Coleman awarded the developers fifty percent of the actual cost and expenses which were paid out to the contractors and engineers for construction of the facilities without deduction for overhead or profits. The Court’s reasoning was based on the finding that the plaintiff developers made no profit as such on the contract between plaintiffs and defendants and that the award represented only actual cost of the developers. Otherwise a deduction for profit earned and overhead costs would have been appropriate under the jurisprudence. Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (1949); Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943).

In this instance, there is no hint whatsoever of fraud and no question of Appellees’ good faith. We find, therefore, that the trial court correctly allowed recovery pursuant to La.C.C. Article 1965 and the above cited jurisprudence.

We also find that, in the second trial, the Trial Judge was correct in refusing to deduct from Appellees’ recovery 25% thereof as the profit and overhead of the contractor. We think that Coleman, supra, indicates that in cases of this nature, recovery by the developer should not be reduced by the profit and overhead of the contractor and engineer of the facilities. Appellees were not the contractor or engineer in this instance and actually disbursed the total contract price.

We find the record supports College’s claim to $94,507.90 (80% of $118,134.88) and Chevron’s demand for $23,626.98 (20% of $118,134.88). We also note the record contains a stipulation between College and Chevron whereby it was agreed that Chevron paid $6,685.04 more than called for under the contract with Acadian and that, therefore, Chevron’s award should be increased by that amount with a commensurate decrease in the judgment in favor of College.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby amended and judgment rendered herein in favor of Chevron against Appellants in the sum of $30,312.02 and in favor of College against Appellants in the amount of $87,822.86 with legal interest thereon from date of judicial demand. Appellants are cast for such costs as they are legally liable.

Amended and rendered.

PONDER, Judge,

dissenting.

I am unable to agree with the majority’s conclusions on both the law and the facts.

Evidently the majority has come to the conclusion that plaintiffs under the situation of the instant case are entitled to recovery of their entire cost if they show that that was their understanding without regard to the reasonableness of their belief that they were so promised. I believe this to be contrary to the spirit of, if not the exact holding of, Coleman v. Bossier City, 305 So.2d 444 (La.1974), in which recovery was allowed of only what the City had agreed to, one-half of the cost, not the entire cost.

I believe that the chronology of events was as follows.

When the owners and prospective purchasers discovered they would be unable to tie into the sewer on Bawell, immediately across College Drive, the next available trunk line was on the north side of Perkins Road. The master plan for the consolidated sewer district provided for the ultimate extension of this line northward under Interstate I — 10 to a lift station on the west bank of Ward’s Creek. In addition to plaintiffs herein, others, who were working on the development of Concord Place immediately south of Interstate 1-10, would benefit. The Parish Council in Resolution 7319 adopted on September 3, 1967, authorized the extension of a 15-inch trunk line northward from Perkins Road “to serve properties lying north of Interstate Highway 1-10 between College Drive and Jefferson Place Subdivision,” and authorized the transfer of $85,000.00 for that purpose. When it was discovered that the funds were not available, the Capital Improvements Expediting Committee on September 20, 1967 made a report to the Parish Council, which accepted it on September 27, for the reconsideration of the installation of a sewer trunk line extension from Perkins Place (Road?) to the northside of Interstate Highway No. 1-10.”

On June 26, 1968, the Parish Council adopted Resolution 7766 declaring an intention to include in the 1969 budget an item of $90,000.00 “for the purpose of extending a 15-inch trunk line from Perkins Road northward to Interstate Highway 1-10 in order to serve properties north of the Interstate between Jefferson Place Subdivision and College Drive.”

The next day Mr. A. E. Probst, who was representing the landowners and purchasers, secured from the Mayor a letter addressed to him expressing an intention to include in the budget an item for $90,000.00 “to extend a sewer trunk line with the necessary lift station, from Peggy Drive to the north side of Interstate 1-10 along Ward’s Creek.” Emphasis added. Mr. Probst stated he asked for the letter to reassure his people and that it accurately reflected the understanding with the City-Parish.

By agreement, dated May 5, 1969, between the City-Parish and Chevron Oil Company the .latter agreed to install a sanitary sewer line and lift station to prove wyes for Lots X, Y and Z of the L. A. Holland property. While there has been testimony that this was the required and routine method to effect subdividing, nevertheless, it is more than of passing note that no counter letter or similar • understanding was required or even suggested by the partners of College Associates, who were lawyers and sophisticated real estate developers, or by Chevron Oil Company who had both legal and property management divisions.

Much has been made of the fact that the lines installed were of larger size than was required for the plaintiffs’ sole use. However, the entire situation should be examined. Mr. Fleishaker testified that College Associates and Chevron Oil Company agreed to take care of the sewerage requirements for not only their property but also for that property that later became Corporate Square, in return for those developers taking care of the paving, lighting and other requirements for the development of the entire area. Also as a condition of the granting of a servitude across the Witter property the grantors required installation of sufficient size to accommodate that property. There was no testimony that the excessive size was required by the City-Parish.

On October 1, 1971, Mr. C. R. Guidry, the investments and retail manager of Chevron Oil Company, wrote Mayor Dumas, saying:

“By Resolution No. 7319 adopted by the Parish Council on September 13, 1967 it was indicated that we would be refunded the major portion of this expenditure.” (Emphasis added)

The letter of R. H. Wilkins, Retail Property Representative of Chevron Oil Company, dated March 19, 1974, had exactly the same words.

Despite his letter of October 1, 1971, concerning a partial reimbursement, Mr. Gui-dry testified on the trial that it was always his understanding that Chevron would be reimbursed the entire cost. He did not testify of the source of his understanding, even stating that he had never met with a representative of the City-Parish.

Mr. Fleishaker, the managing party of College Associates, testified in regard to his understanding of reimbursement of a major portion of the cost.

Mr. Probst testified that it was never the intention of the parties that Chevron Oil be reimbursed for the cost of building a sewer system within the 80 acre tract of land now known as the Corporate Square development.

I therefore conclude that the City-Parish promised to pay $90,000.00 for the extension of the sewer trunk.line from Perkins Road to and under Interstate 1-10 to a lift station and including the lift station to be situated on the bank of Ward’s Creek. The City-Parish has already paid out $32,000.00 for the extension to Concord Place. I therefore believe that there should be judgment for the cost of the extension from Concord Place to and including the lift station but not more than. $58,000.00.

The testimony of plaintiffs to the contrary is vague, general, not attributed to a definite source and contradictory. However, even if plaintiffs believed that they were to be reimbursed the entire cost, they were not justified in doing so and they should be reimbursed only to the extent that they could reasonably believe they had been promised.

I therefore dissent.


author: LANDRY, Judge.

text:
    Granville Ray CLEETON v. Sonja Petersen CLEETON.
    No. 12439.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Philip P. Spencer, New Orleans, for plaintiff appellant.
    Wendell E. Tanner, Slidell, for defendant appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment granting defendant (Appellee) custody of three minor children of the marriage between these parties, which union was dissolved by divorce granted Appellant on the grounds of Appellee’s adultery. The trial court granted Appellee custody of the children, Christine Cleeton, age 15 years, Carla Cleeton, age 10 years, and Cynthia Cleeton, age 7 years, upon finding that admitted acts of adultery by defendant did not render her morally unfit to retain custody granted her in a prior separation action between the parties. We reverse and award custody to Appellant.

The parties separated in May, 1976. Ap-pellee retained physical custody of the children. A suit for separation resulted in a consent judgment by the trial court granting custody of the children to Appellee, awarding alimony for Appellee and the children, and fixing Appellant’s visitation rights. After the separation, Appellee established a household for herself and the children. Since about November, 1977, Ap-pellee has resided with the children in a three bedroom apartment in Slidell, Louisiana. On March 20, 1978, Appellant instituted this action for divorce.

Appellee’s present living quarters is a split level apartment with two bedrooms on the upper level and one bedroom on the lower floor. Appellee occupies the lower floor bedroom; the children are assigned the upper level sleeping accommodations. By Appellee’s own admission she had permitted one Dave Breedlove, a married man living separate from but not judicially separated from his own wife and children, to spend the night with' Appellee once each week while the children were in the home. She acknowledged also that Breedlove spent New Years Eve, December 31, 1977, with her in the apartment while the children were present and that he spent the Mardi Gras season, February 3 through February 7, 1978, with her, at which time the children were likewise present. Additionally, Appellee acknowledged that on at least two occasions she took weekend trips with Breedlove while the children were visiting Appellant. Appellee concedes that Breedlove kept toilet articles and clothing in her apartment; that he took Appellee and the children to dinner and on recreational excursions; and that he bought the children some clothing.

It is shown, however, that the children are being maintained in school; that all three are achieving grades commensurate with their respective abilities; that the girls are well fed and clothed; and, that the children attend church about as regularly as they did when the parties were living together.

Appellant earns approximately $31,000.00 per year as manager of a chain store. His work requires his absence from home Mondays through Fridays, from 8:00 A.M. to 5:30 P.M., and on alternate Saturdays. Appellant is willing to care for the children and, if granted custody, he will provide a suitable home which will be supervised by Appellant’s mother until Appellant can secure a proper housekeeper.

The trial court concluded that, notwithstanding Appellee’s admitted adultery committed while the children were in the home, Appellee was nevertheless entitled to retain custody because the children were being well cared for insofar as concerned their physical needs and also because there was no showing that the children were aware of the full import of Appellee’s conduct or that the children had been adversely affected thereby.

It is well settled that in matters of child custody trial courts are vested with considerable discretion which is not to be set aside on appeal save in a ease of manifest error. Lambert v. Lambert, 286 So.2d 390 (La.App. 1st Cir. 1973).

In custody matters, especially those involving children of tender years, the mother is preferred and will be awarded custody unless she is shown to be unfit; but in all custody cases, the paramount consideration of the court is the welfare of the children concerned. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971).

The best interest of children involves more than mere fulfillment of their physical needs for food, clothing, shelter and education. It is of utmost importance that children be taught by word and example the principles of decency and commonly accepted social and moral standards and concepts. Murray v. Murray, 220 So.2d 790 (La.App. 1st Cir. 1969).

Moral values of parents are likely to be reflected in their children on attaining adulthood. Phillips v. Phillips, 244 So.2d 652 (La.App. 2d Cir. 1971).

Under circumstances somewhat similar to those involved herein, we held, in Murray v. Murray, supra, that the mother was unfit to have custody.

We are also aware of the heavy burden incumbent upon one seeking to change custody in that it must be established not only that the present circumstances are harmful to the physical or moral welfare of the children concerned, but also that the party seeking change of custody can provide a better and more wholesome atmosphere for the children.

We have no hesitancy in concluding that Appellee’s actions established an unwholesome home atmosphere for the children involved herein. Appellee made no effort to conceal her illicit relationship with Breedlove until such time as Appellant instituted the divorce action. In effect, Ap-pellee placed Breedlove in the position of loco parentis to the children by allowing him to share her apartment one night each week; to maintain clothing and personal effects therein as if he resided there; to entertain the children and Appellee as a family unit; and to virtually conduct himself as though he were the head of the family. We believe that such conduct created an unwholesome situation and was grossly harmful to the moral welfare of the children. Morris v. Morris, 152 So.2d 291 (La.App. 1st Cir. 1963).

We find that Appellant has discharged the burden incumbent upon him and that he is entitled to the permanent care, custody and control of the children involved, and that the trial court erred manifestly in deciding otherwise.

It is ordered, adjudged and decreed that the judgment of the trial court awarding Appellee permanent care, custody and control of the minors Christine Cleeton, Carla Cleeton and Cynthia Cleeton, be and the same is hereby annulled, reversed and set aside and judgment rendered herein granting Appellant, Granville Ray Cleeton, permanent care, custody and control of the said minors Christine Cleeton, Carla Cleeton and Cynthia Cleeton.

It is also ordered, adjudged and decreed that this matter be and the same is hereby remanded to the trial court for fixation of visitation rights of Appellee, Sonja Petersen Cleeton; all costs of these proceedings to be paid by Sonja Petersen Cleeton.

Reversed and remanded.


author: COVINGTON, Judge.

text:
    Ronald James DUPREE, Sr. v. PECHINAY SAINT GOBAIN CO. et al.
    No. 12429.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Boris Navratil, of Breazeale, Sachse & Wilson, Baton Rouge, for appellant-defendant-Dow Chemical Co., Dow Engineering and Constr. Co. and Associated Indem. Co.
    James H. Dupont, of Dupont, Dupont & Dupont, Plaquemine, for appellee-plaintiff, Ronald James Dupree, Sr.
    Lloyd C. Melancon, of McLoughlin, Bar-ranger, Provosty & Melancon, New Orleans, for appellee-defendant-Creusot-Loire, Ltd. and Compagnie des Ateliers et Forges de la Loire (C.A.F.L.).
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

Dow Chemical Company and Dow Engineering & Construction Services, and their insurer, Associated Indemnity Company, appeal from judgment against them, pursuant to jury trial, awarding plaintiff, Ronald James Dupree, Sr., damages for serious burns sustained when one of the pressure vessels or reactors, in which polyvinyl chloride (PVC), a plastic resin, was produced at Goodyear Rubber & Tire Company’s chemical plant near Plaquemine, Iberville Parish, Louisiana, came open while the vessel was in chemical reaction, spilling highly flammable gases which caused a flash fire and explosion.

This litigation arises from the flash fire accident which occurred on January 7, 1972, and which injured several Goodyear employees, including Dupree. Three of the employees, Ronald James Dupree, Sr., Sterling Hebert and Michael Bourgoyne filed suits to recover damages for the injuries they sustained in this industrial accident. Their suits, as well as the suit filed by Travelers Insurance Company, Goodyear’s workmen’s compensation carrier, to recover for compensation paid to the Goodyear employees injured in the accident, were consolidated for trial.

The Goodyear plant where the accident occurred was at the time using a manufacturing process, known as the “Pechinay” process, to make polyvinyl chloride or “PVC”. The worldwide patent rights to the “Pechinay” process were held by a French chemical company known originally as Pechinay Saint Gobain Co., later as Rhone-Progil, and presently as Rhone-Pou-lenc, sometimes referred to hereinafter as “PSG”. It was under license from PSG that Goodyear was using the “Pechinay” process.

The Goodyear chemical plant was designed and constructed in two stages by an engineering subsidiary company of Dow Chemical Company, known as Dow Engineering & Construction Services, both companies sometimes hereinafter referred to as the “Dow group”. The first stage, consisting of one production unit of pressure vessels, known as “Train 1”, was constructed for Dow Chemical Company. Dow Chemical Company planned to manufacture polyvinyl chloride; however, upon completion of the plant, Dow Chemical Company sold it, along with license rights to the “Pechinay” process, to Goodyear.

Subsequently, Goodyear decided to enlarge the chemical plant by adding a second train of pressure vessels, known as “Train 2”. For this second stage, Goodyear contracted with Dow Engineering for the engineering design work. The pressure vessels for the second train, as were those for the first train, were manufactured by a French manufacturer of industrial machinery, known as Compagnie des Ateliers et Forges de la Loire, which later became Creusot-Loire, sometimes referred to hereinafter as C.A.F.L. The Train 2 pressure vessels were purchased by Goodyear from C.A.F.L. It was one of the pressure vessels in Train 2 which was involved in the accident which caused the injuries sued upon herein by the plaintiffs.

The plaintiffs initially sued a number of defendants, but in due course limited their suits to PSG, C.A.F.L., the Dow group, several executive officers of Goodyear, and certain insurance companies.

Before the suits came to trial, all plaintiffs settled their claims against PSG, C.A. F.L. and the Goodyear executive officers for $1,200,000.00 to Hebert, $400,000.00 to Bourgoyne and $100,000.00 to Dupree, with the plaintiffs reserving their rights against the Dow group. However, due to third-party demands and counter claims, none of these parties were dismissed from the litigation.

In this posture, the suit proceeded to trial on August 29, 1977. During the course of the trial, the Dow group dismissed their indemnity actions against PSG and the Goodyear executive officers, who, in turn, dismissed their counter claims against the Dow group. Later, during the trial, the Dow group settled the claims of plaintiffs Bourgoyne and Hebert.

At this point, the actions remaining before the court were the Dupree damage suit against the Dow group and Associated Indemnity Company, their insurer; .the third-party action of the Dow group against C.A. F.L.; and C.A.F.L.’s counter claim against the Dow group. Subsequently, the Dow group’s motion for a directed verdict against C.A.F.L. was granted, dismissing the latter’s counter claim. However, the Dow group’s motion for a directed verdict against plaintiff Dupree was denied.

After a lengthy trial, the case was submitted to the jury on special interrogatories. The jury answered the interrogatories to the effect that the combined negligence of the Dow group and C.A.F.L. was the proximate cause of the injuries to Dupree, and awarded plaintiff Dupree the sum of $33,000.00 as damages against the named defendants in solido.

From this judgment, Dow Chemical and Dow Engineering perfected a suspensive appeal. Plaintiff Dupree answered the appeal, seeking an increase in the damage award. C.A.F.L. also answered the appeal, claiming recovery from Dow Chemical and Dow Engineering and their insurer for full indemnity, or a pro rata contribution for the earlier settlements with the plaintiffs.

Although the appellants are the sole remaining defendants, liability of other defendants is before us because the appellants, in addition to urging the Dow group’s freedom from negligence, contend that the Dow group should be awarded full indemnity against C.A.F.L., and that the Dow group and C.A.F.L. should not have been held to be solidary obligors. The appellants also urge that the trial judge erred in failing to sustain the objections to the trial tactics of counsel for C.A.F.L.; in ruling that the Dow group would have to introduce the entire deposition of Lucien Vigliec-ca, a French engineer, rather than those portions Dow’s counsel selected; and in ruling certain documentary evidence inadmissible. The appellants particularly contend that the trial judge erred in failing to sustain their motion for a directed verdict at the close of plaintiff’s case.

Before examining the evidence in this case, we note that under the rule of Canter v. Koehring Company, 283 So.2d 716 (La.1973), a reviewing court must give great weight to factual conclusions of the trier of fact.

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of the law is clearly erroneous. Moreaux v. Argonaut Insurance Company, 350 So.2d 240 (La.App. 3 Cir. 1977), writ denied, 351 So.2d 776 (La.1977); Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La. App. 4 Cir. 1976). In the absence of manifest error, the appellate court is not to disturb, on appeal, the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based on its reasonable evaluation of credibility. Canter v. Koehring Company, supra; Blancher v. Samuels, 354 So.2d 213 (La.App. 4 Cir. 1977), writs denied, 355 So.2d 257, 263 (La.1978).

Looking to the record in this case, there is ample testimony by the Dow employees and Goodyear employees that Dow Engineering and Construction Services engineered and designed the degas lines, the piping and the flanges for both “Train 1” and “Train 2” (which were substantially identical in all pertinent areas) and which the jury evidently decided were faulty, causing the accident and injuries to Dupree.

Alton Deville, the Maintenance Supervisor for Goodyear who investigated this accident immediately after it occurred, testified that the degas line ruptured due to metal fatigue, and improper fitting of the line with the pressure vessel, causing the flash fire. This testimony was corroborated by Douglas Connor, the Manager of Engineering and Maintenance for Goodyear, who testified that the degas line was broken and the filter head was turned upside down in the manway opening, indicating that the filter head had been forceably pushed away from the reactor. Deville’s testimony was also supported by Amos Dixon, Production Superintendent for Goodyear. Tommy E. Stockman, Shift Supervisor for Goodyear on “Train 2” at the time of the accident, said that the degas line which was connected to the head of the pressure vessel kept it from turning and that it was the failure of the degas line due to metal fatigue which caused or contributed to the accident:

“Q. This degas line which you referred to as the 212 flange, about how big is the degas line?
A. I think it was either 4 or 6 inches, at this point that is really a guess.
Q. Four to six inches in diameter?
A. Yes, sir.
Q. And it attached to the top of the filterhead?
A. That’s correct.
Q. You indicated that sometimes the degas line at the top of the filter-head didn’t line up just right?
A. That’s correct.”
!{: * sk * % sfc
“Q. Are you not personally, based on your experience with these reactors, convinced that the degas elbow on autoclave 2B failed because of fatigue?
A. That’s my belief, yes, sir.
Q. And that this caused or contributed to the accident?
A. Yes, sir.”

There was also testimony that Dow Engineering was negligent in that it had a duty and obligation to check the pressure vessels purchased from C.A.F.L., and that it breached this duty by failing to make a proper check of the vessels to see if the vessels met pressure vessel requirements of the American Society of Mechanical Engineers (A.S.M.E.). There was evidence by the expert witness, Dr. Gerald D. White-house, showing that the pressure vessels did not meet the A.S.M.E. standards.

In addition, there was evidence that the pressure vessel involved did not have a proper locking mechanism, or a valve-type device to relieve pressure in case of emergency; and there was no way to examine visually the alignment pins to see that they were in place and in good condition to assure that the vessel was secured before the building up of pressure in the vessel.

From the verdict and the answers to the special interrogatories, it appears that the trial jury accepted plaintiff Dupree’s allegations that there were acts of negligence on the part of the Dow group which caused, or contributed to the cause of, the injuries to the plaintiff herein. We have reviewed the record and do not find manifest error in the verdict and judgment based thereon. Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976). On the contrary, there is persuasive evidence in the record establishing the liability of the Dow group.

Moreover, in view of the significant credible evidence discussed above, we find that the trial court properly denied the appellants’ motion for a directed verdict in their favor against plaintiff Dupree. There was substantial evidence, if believed by the jury, from which reasonable inferences could be drawn by the jury in reaching a verdict against Dow Chemical and Dow Engineering. Hence, the trial judge properly denied the motion by appellants for a directed verdict under LSA-C.C.P. art. 1810.

Furthermore, we find no merit to the appellants’ contention that they were deprived of a fair trial due to the improper conduct of counsel for C.A.F.L. The record does not reflect any improper conduct by counsel for any of the parties. Counsel merely vigorously and enthusiastically advocated the rights of their respective parties during a complex, multiparty lawsuit tried over a period of five or six weeks to a jury. The trial judge listened to all sides of every issue as questions arose, and ruled firmly and fairly when called upon to do so.

The trial judge admonished counsel when arguments tended to become heated, and in a manner which could in no way adversely reflect upon any counsel’s behavior to the jury. The rights of appellants were not prejudiced by any tactics or activities of counsel representing any of the parties.

Counsel for appellants does not set out any particular documentary evidence that he was unable to present to the jury which in any manner prejudiced the rights of his clients, so we will assume this is not a serious issue before this Court despite his general reference to the trial court’s error in sustaining objections to some documents offered on behalf of the appellants.

When an appellate court has all the facts before it, it is its duty to render judgment on the merits where a trial judge has made a consequential but erroneous ruling on exclusion of admission of evidence or where a trial judge has made an erroneous instruction to the jury. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

Thus, as to the specification of error concerning the trial judge’s sustaining the objections to some documentary evidence, we are of the opinion that in light of our Supreme Court’s decision of Gonzales v. Xerox Corporation, supra, there is no need for us to determine whether or not the trial judge erred in his ruling on the objections. For, even if we were to find the trial judge in error, rather than remanding for a new trial, we are compelled to render judgment on the merits. The evidence in the record supports a finding that the injuries sustained by plaintiff Dupree were caused by the combined negligence of the Dow group and C.A.F.L.

The appellants also contend that the trial judge erred in refusing to permit them to offer a selected portion of the deposition of a French engineer, Lucien Vigliecca, in evidence. LSA-C.C.P. art. 1450(4) provides:

“If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which, in fairness, should be considered with the part introduced, and any party may introduce any other parts.”

Although we feel that the judge did err in his order that the entire deposition be read, without regard to whether fairness and equity required it, we find that it did not constitute reversible error because the desired evidence was obtained from other sources.

In Broussard v. State Farm Mutual Automobile Insurance Company, 188 So.2d 111, 120 (La.App. 3 Cir. 1966), writ refused, 249 La. 713, 190 So.2d 233 (1966), the Court stated:

“As suggested by the plaintiff, the defendant’s introduction of isolated excerpts from the plaintiff’s discovery deposition could and did present a distorted meaning of the plaintiff’s discovery reply in the context of preceding questions and the surrounding testimony. For this reason, we think, prejudicial error was committed in admitting isolated excerpts of the discovery deposition without requiring the defendant simultaneously to introduce relevant immediately preceding or succeeding portions which showed the meaning in context of the excerpts introduced, as well as in refusing to permit the plaintiff subsequently, on redirect to introduce the whole discovery deposition

The record does not show that counsel for appellants pursued this matter in the trial court; but, rather, other depositions were read to the jury. Counsel for appellants admits in his brief that he did not pursue this matter further, but elected to proceed without this item of evidence “to keep from prejudicing his side of the case further, by boring the jury with the reading of a 400-page deposition, much of it irrelevant.”

As an alternative, the Dow group avers that they are entitled to recover from C.A. F.L. indemnity toward any judgment recovered herein by Dupree on the grounds that C.A.F.L. was negligent in:

a. Designing, constructing and manufacturing the production equipment used in the manufacturing process, more specifically the post-polymeriz-ers and their manway closures;
b. Failing to properly test, inspect and examine the production equipment, including the post-polymerizers and their closures, to ascertain that it was free from defects;
c. Failing to warn users of the vessels of the importance of maintaining the integrity of all parts of the manway closures, specifically certain positioning pins;
d. Failing to equip the vessels with adequate safety and warning devices in the event the integrity of the closures became impaired while the vessels were in reaction;
e. Failing to inform the Dow group and Goodyear of their own operating experience, which should have demonstrated to C.A.F.L. that the closures were defectively designed.

The Dow group thus contends that their liability is only derivative and secondary to that of C.A.F.L., the manufacturers of the pressure vessels, whose liability in this regard should be deemed active and primary.

The simple answer to this contention is that the jury found active and primary negligence on the part of Dow Chemical and Dow Engineering and found that the Dow group’s negligence, combined with the negligence of C.A.F.L., was the proximate cause of the accident and the resulting injuries. The jury found the Dow group and C.A.F.L. solidary obligors. Under LSA-C.C. art. 2103 the jury could cast each soli-dary debtor for its “virile portion of the obligation,” and that is exactly what the verdict indicates was done. The Dow group was given credit for C.A.F.L.’s virile portion since C.A.F.L. had already settled with plaintiff.

Furthermore, the Dow group has no right to recover by way of indemnity. It .is only where there is a party not actually at fault, whose liability is vicarious and derivative because it results from the faults of others, that the party may be indemnified by such others. See Bewley Furniture Company, Inc. v. Maryland Casualty Company, 285 So.2d 216 (La.1973).

The general rule which is applicable to this situation is set out and discussed in Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922), where the Court stated:

“It is undoubtedly the general rule of law and jurisprudence that where two or more parties, acting in concert, or are legally held to have acted in concert, commit a wrongful act from which damages result to a third party, the party who is compelled to respond and to pay for the injury can have no action for indemnity against the other party or parties to the wrongful act. The rule has its foundation in public policy, that no one can allege his own turpitude or claim an advantage for his own wrong. The courts in such a case will leave the parties in the position in which they have placed themselves, and will not undertake to adjust equities between them, nor to inquire into the comparative or relative culpability as between them. Every rule, however, has its exception, and where, as in this case, the actual fault of the proximate cause of injury is attributable to one of the parties and the other is only technically or constructively at fault, from failure or omission to perform some legal duty, the general rule will not apply, and indemnity may be had against the one primarily responsible for the act which caused the damage. . . . The plaintiff, not being in possession of the property, and having no knowledge of the defective condition of the door and no opportunity to prevent the accident which befell Lincoln, could not in law or morals be said to be a culpable participant in the act of negligence.”

In this suit C.A.F.L., at the time of the filing of responsive pleadings, asserted an alternative third-party petition seeking contribution and indemnity against Dow Chemical and Dow Engineering and their insurer, Associated. Thereafter, with full disclosure to all parties, C.A.F.L. made a restricted settlement with the plaintiffs which included a reservation of rights. The jury specifically found the Dow group and C.A.F.L. to be joint tortfeasors. Their combined negligence was active and primary in causing the accident. There is ample evidence in the record to support the jury’s conclusion that C.A.F.L.’s negligence was not merely vicarious and secondary. For the reasons more fully discussed above in denying the Dow group’s claim for contribution or indemnity, we deny C.A.F.L.’s claim for such relief.

We have previously indicated the amount of the award made to plaintiff Dupree. Plaintiff-appellee, in his answer to the appeal of the Dow Group, seeks an increase in the award.

In Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971), the Supreme Court stated the well-settled principle that in assessing damages much discretion is left to the trial judge or jury, LSA-C.C. art. 1934(3):

“From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”

The Supreme Court has. also set forth the rule of appellate review as it applies to awards of general damages in the case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), as follows:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated' by the record before an appellate court will tamper with an award of general damages.”

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the Supreme Court made the definitive statement in regard to appellate review of awards for general damages as follows:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, [302 So.2d 278 (La.1974)] supra.; Fox v. State Farm Mutual Automobile Ins. Co., [288 So.2d 42 (La.1973)] supra.; Walker v. Champion, [288 So.2d 44 (La. 1973)] supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., [294 So.2d 803 (La.1974)] supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.
“Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two eases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Of course, another factor bearing on this matter is that significant change has been, and is taking place in our society not the least of which are changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities, and even lifestyles. Furthermore, it is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.”

See also Note, 49 Tul.L.Rev. 460 (1975).

With regard to quantum, the medical evidence presented at trial revealed that Dupree suffered painful injuries as a result of the accident. Dr. Charles H. Baughman, the attending surgeon, testified that plaintiff Dupree was burned over about 30-35% of the body area, primarily over the head, arms and back. Dr. Baughman was of the opinion that Dupree had sustained a major burn injury, his burns appearing to be largely second degree. Dupree remained in the hospital for approximately 36 days, during which time he received the acceptable burn treatment, including skin grafts and physical therapy. Dr. Baughman assigned a 15% permanent disability, taking into consideration sensitivity to sunlight and heat, and emotional problems connected with this type of injury. Dr. Baughman stated that within these limitations, Dupree should be able to lead a full and useful life. The record shows that Dupree went back to work on light duty about two months after the accident and has worked continuously since his release to full duty without any untoward experiences.

We have considered the award made in the instant case in light of the well-established rule and find no abuse of the much discretion vested in the jury. The award is within the bounds of the jury’s discretion.

Accordingly, for the foregoing reasons, we affirm the judgment appealed at appellants’ costs.

AFFIRMED.

      . The judgment mentions C.A.F.L. only as to costs because Dupree had previously settled with that defendant. The judge apportioned the jury award of $33,000.00 among the three, so that we have a total judgment of $22,000.00 (omitting C.A.F.L.), i. e., $11,000.00 against Dow Chemical and $11,000.00 against Dow Engineering.

      . The jury was aware that Dupree had already received $100,000.00 in his settlement with certain other defendants and C.A.F.L.


author: SARTAIN, Judge.

text:
    Vincent BROCATO, Jr., Plaintiff-Appellee, v. Elosia Ann Babin BROCATO, Defendant-Appellant. Consolidated with Elosia Ann Babin BROCATO, Plaintiff-Appellant, v. Vincent BROCATO, Jr., Defendant-Appellee.
    Nos. 12352, 12353.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Kenneth L. Riche, Baton Rouge, of counsel for plaintiff-appellee, Vincent Brocato, Jr.
    Richard C. Cadwallader, Baton Rouge, of counsel for defendant-appellant, Elosia Ann Babin Brocato.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

These two suits were consolidated in the trial court. In each the respective plaintiff sought a judgment of.separation based on specifically alleged acts of cruelty. Each plaintiff also sought the custody of the minor children, issue of the marriage. There were numerous hearings which spanned a period of some seven months. Initially, the trial judge awarded the temporary custody of the minor children to Mr. Brocato, which order was appealed and affirmed by us. Thereafter, the trial judge rendered a judgment decreeing a separation between the parties in favor of Mr. Brocato and against Mrs. Brocato “based upon the mutual fault of both parties.” A common judgment was entered in each suit.

Mrs. Brocato has appealed both judgments. She contends that since Mr. Broca-to neither appealed nor answered her appeals, the determination of fault on his part is final. However, she strongly asserts that the record before us does not support a finding of fault on her part. She therefore seeks to have these judgments reversed and rendered in her favor without the legal consequences that a finding of fault on her part involves. The principal issue presented for our review and resolution is whether the trial judge committed manifest error in his determination that the conduct of Mrs. Brocato was such as to constitute “mutual fault” within the meaning of C.C. art. 141.

First, Mrs. Brocato urges that the judgment against her should be reversed as a consequence of the failure of the trial judge to submit written findings of fact and reasons for judgment as per her counsel’s request. She reasons that C.C.P. art. 1917 gave statutory validity to previous constitutional provisions which required a district judge in all contested civil cases, other than jury cases, to give in writing his findings of fact and reasons for judgment. Art. VII, § 43, La.Const. of 1921; Emanuel v. Hatcher, 19 La.Ann. 525 (1867); Block v. McGuire, 18 La.Ann. 417 (1866). This contention must be rejected. The Louisiana Constitution of 1974 does not contain a similar provision. Accordingly, the absence of written findings of fact and reasons for judgment for any reason does not now raise a constitutional issue. Probably the absence of a similar provision in the constitution of 1974 is in recognition of the fact that more and more judgments are being rendered at the trial level without the record containing either written or oral reasons for judgment.

When a trial judge fails to comply with a timely request for written findings of fact and reasons for judgment under C.C.P. art. 1917, the proper remedy for the aggrieved party is to apply for supervisory writs or move for a remand for the purpose of requiring or affording the trial judge an opportunity to comply with the request. In the instant case neither device was employed. Accordingly, we shall review the matter as in any other case where the record contains no reasons for judgment.

Appellant contends that “mutual fault” under C.C. art. 141 means “equal fault” and that the evidence adduced during the course of the hearings failed to show that any fault on her part was equal to that of her husband’s. As a matter of fact, she urges that the conduct complained of by her husband was nothing more than a showing of incompatibility which is not grounds for a separation. C.C. art. 138; Pearce v. Pearce, 348 So.2d 75 (La.1977); Dixon v. Dixon, 357 So.2d 856 (La.App. 4 Cir. 1978).

In order to understand appellant’s contention that the “mutuality of fault” referred to in article 141 is “equal fault,” it is necessary to consider the prior jurisprudence of this state relative to the courts’ application of the doctrines of recrimination and comparative rectitude. Both are jurisprudential rules of law. The doctrine of recrimination is based on the equitable idea that he who comes into court with unclean hands cannot obtain judicial relief. Where the parties to a domestic dispute were determined to be equally at fault neither could prevail. Thomason v. Thomason, 355 So.2d 908 (La.1978); Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952) and the authorities therein cited.

The doctrine of comparative rectitude was accepted in Louisiana to offset the rather harsh consequences of the recrimination theory. It required the court in each instance to determine the degree of fault of each party and to grant judgment in favor of the spouse whose fault was found to be of a lesser degree. Only in those cases where mutual wrongs were so proportional that it was difficult to ascertain which party was more at fault would the court decline to interfere and refuse to grant relief to either party. Eals v. Swan, above, and Lane v. Lane, 165 So.2d 682 (La.App. 1 Cir. 1964).

Under the above theory only equal fault on the part of both parties barred relief in the form of a judicial separation. Since disproportional wrongs were never a bar to a judicial separation in Louisiana, appellant reasons that the mutual fault referred to in article 141 has to mean “equal fault.” We think not.

We doubt very seriously that the legislature by the adoption of article 141 in 1976 had in mind the technical distinction between the theory of recrimination and the theory of comparative rectitude and more particularly the weighing process required of the court under the latter theory.

Unquestionably the legislature by the addition of article 141 sought to abrogate in Louisiana the doctrine of recrimination. However, we do not believe that the legislature intended that the article’s application be restricted to only those cases presenting equal fault on the part of both parties. Had the legislature intended such a limited application of the article, it could have evidenced such intention by simply adding the word “equal.”

We adopt the interpretation of the article as expressed by the court in Saucier v. Saucier, 357 So.2d 1378, 1379 (La.App. 4 Cir. 1978).

“LSA-C.C. art. 141 authorizing a separation in cases of mutual fault presupposes each party has committed fault constituting an independent ground for separation under LSA-C.C. art. 138. Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir. 1978). To be considered as ‘fault’, the spouse’s ‘misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation . . . .’ Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707, 709 (1958). * * *”

Under the above interpretation not only is the doctrine of recrimination no longer applicable, but also it is no longer necessary for the trial court to weigh the proportional wrongs of each party under the doctrine of comparative rectitude. If the fault of each party, equal or unequal, standing alone is sufficient to award the other a judgment of separation, then their respective fault is deemed to be mutual.

The fault of Mr. Brocato consisted of his acts of physical cruelty to his wife, verbal abuse, falsely accusing her of having sexual relations with other men and asserting that she was a drug addict and mentally and emotionally unstable.

The fault of Mrs. Brocato consisted of her leaving the matrimonial domicile for long periods of time, leaving the small children with neighbors and friends, drinking to excess which caused many arguments and altercations between her and her husband, and using drugs and medication to excess.

The evidence presented by each of these parties, either in support of their respective allegations or in opposition to the other’s is in hopeless conflict. The record portrays an unyielding alignment of family and friends of one against a similar contingent of the other. It is difficult to determine which of the above acts of misconduct on the part of one caused or brought on the wrongful and retaliatory conduct of the other. The trial judge obviously concluded that there was some truth in what each witness had to say and that each party litigant had proved the averred acts of cruelty of the other.

We find that the wrongs of each party standing alone are sufficient grounds to award the other a judgment of separation. C.C. art. 141 is therefore applicable.

Lastly, Mrs. Brocato claims that it was error on the part of the trial judge to enter judgment in favor of her husband and against her even upon his finding of mutual fault. The signed judgment specifically states it was based on mutual fault and therefore the phraseology indicating a nominal winner is a distinction without a difference.

Accordingly, for the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . See Brocato v. Brocato, La.App., 364 So.2d 152 (1978).

      . C.C. art. 141.
      “A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

      .C.C.P. art. 1917.
      “In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment.”

      . Even the courts on occasion have confused the two theories. See our opinion in Thomason v. Thomason, 349 So.2d 928 at 931, where we describe the elements of the doctrine of recrimination and inadvertently called it the doctrine of comparative rectitude.