text:
    HOWARD AVENUE REALTY CORPORATION v. H. P. McINTOSH, IV.
    No. 8510.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Feb. 17, 1978.

      Milling, Benson, Woodward, Hillyer & Pierson, F. Frank Fontenot, W. Richard House, Jr., New Orleans, for plaintiff-ap-pellee.
    Hammett, Leake, Hammett, Hulse & Nelson, John I. Hulse, IV, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

H. P. McIntosh, IV, appeals from the dismissal of his suit to annul a judgment rendered against him and to set aside the seizure and sale of real property in connection with the execution of the judgment.

Under the Long Arm Statute, LSA-R.S. 18:3201 et seq., jurisdiction was obtained over McIntosh, a non-resident defendant, in a suit filed by Howard Avenue Realty Corporation (HARC) on May 21, 1968, for unpaid rent. As required in LSA-R.S. 13:3204, a copy of the petition was sent to the non-resident defendant by certified mail. Service of process, through this method, was made on May 22, 1968. The return receipt was signed on May 31, 1968. In a June 10, 1968 letter from the attorney for • McIntosh, request was made by the defendant for extension of time in which to file responsive pleadings. Subsequently, McIntosh’s original attorney withdrew from the matter and other attorneys were sought to be employed. Thereafter, on May 1, 1969, the attorney for HARC took steps to obtain a default judgment pursuant to LSA-R.S. 13:3205 which provides:

§ 3205. Default judgment; proof of service of process
“No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
(b) actually delivered the process to the defendant, showing the date, place, and manner of delivery.”

In an affidavit executed on April 30, 1969 and filed on May 1, 1969, the attorney stated that he had, on May 22,1968, sent a copy of the petition to McIntosh by registered mail; that the letter had been received by McIntosh on May 31, 1968, through his agent; and, that the affiant had been contacted by the attorney purportedly representing McIntosh who subsequently withdrew. The affidavit further recited that it was being made for the purpose of compliance with LSA-R.S. 13:3205. However, the return receipt was not attached to the affidavit.

Thereafter, on June 6, 1969, a second affidavit was filed, virtually repeating the May 1 affidavit and further reciting that the return receipt was attached to and made a part of it. As per this recitation, the return receipt was in fact attached. A preliminary default was entered on June 6, 1969, and confirmed on July 10, 1969.

In connection with the subsequent seizure of real property belonging to McIntosh and located in this state, the court appointed a curator ad hoc to represent the absent defendant. Service of process was effected on the curator on October 8, 1969. McIntosh’s property was sold on January 7,1970, to a third party, in execution of the judgment. The petition to annul the original judgment and sale, filed on July 8, 1970, was dismissed by the trial judge. It is from that judgment of dismissal that McIntosh appeals.

It is the non-resident’s contention, on appeal, that the Long Arm Statute is in derogation of common rights and accordingly must be strictly construed. According to McIntosh, a default judgment cannot be rendered against a non-resident defendant, under the Long Arm Statute, until the expiration of 30 days after the filing in the record of the affidavit, together with the attached return receipt. LSA-R.S. 13:3205. McIntosh points out that the supplemental affidavit and the attached return receipt were filed on June 6, 1969. Because the affidavit filed May 1,1969, was defective in that the return receipt was not attached, a preliminary default entered on June 6, 1969 and confirmed on July 10, 1969, he argues, does not meet the 30-day requirement between the filing of the proper affidavit (filed on June 6,1969) and the taking of the preliminary default.

McIntosh further contends that LSA-R.S. 13:3205 further requires that the return receipt “of the defendant” be attached to the affidavit showing that the petition was mailed to the “defendant”. He argues that the return receipt attached in the instant case indicates that the letter and the accompanying petition were received by defendant’s ranch employee who was neither a member of his household nor a designated agent for service of process. Under these circumstances, McIntosh complains that the affidavit does not show proof of proper service and does not comply with the statute. We do not agree.

We do not quarrel with the settled jurisprudence that the Long Arm Statute is in derogation of a common right and must be fully and strictly complied with in order to satisfy the requirements of due process. However, the cases cited by defendant, though authority for this rule, involve factual situations where no proof existed in the record that the non-resident defendant was ever served in accordance with the statute. Unlike the cited cases, in the instant case, service of process by certified mail was made. Although the original affidavit attesting to the certified mailing and receipt of the petition may not be technically correct (because of the failure to attach the receipt), no prejudice to the non-resident McIntosh has been shown. Our case is not one where no affidavit has been filed or no return receipt of the delivery of the petition and citation to defendant exists. Service of process by certified mail was made upon the defendant more than one year before a preliminary default was taken. In fact, one year, to the day, elapsed between the time that McIntosh, through his New Orleans attorney, made a request for an extension of time in which to file responsive pleadings and HARC confirmed the default judgment. Plaintiff’s only error was in attaching the return receipt to the second affidavit (filed on June 6, 1969) instead of the first affidavit (filed on May 1, 1969). Under these circumstances, the failure to strictly comply with the provisions of the statute has not prejudiced the non-resident’s rights.

In Pertuit v. LeBlanc, 216 So.2d 863 (La. App. 2d Cir. 1968), cited by the trial judge, a sheriff’s return failed to include the name of the person to whom the citation was handed and a 1-day discrepancy existed between the date the petition was actually served and the date of service indicated on the return. Though this case did not involve the Long Arm Statute, language in the cited case is particularly appropriate to the situation before us:

“Koster’s [defendant’s] rights were not affected by the discrepancy in the date of service. He neither took action, nor refrained from taking action because of the failure of the return to give the name of the person to whom the citation was handed. His rights were not prejudiced by the defect in the return. To strike down a judgment on such narrow technical grounds because of previous expressions in cases would be to ignore the obvious intent of the legislature.”

Finally, we find no merit to defendant’s contention that the return receipt does not show proof of service and does not comply with the statutory provision requiring that the “return receipt of the defendant” (underline ours) be attached to the affidavit. Though it is true that McIntosh did not personally sign the receipt, the record indicates that Earl Stewart, an employee at McIntosh’s ranch, had been designated to pick up the mail at the distant post office. The evidence indicates that Stewart was employed full-time as a member of McIntosh’s household staff and business. Under these circumstances, his receipt of the petition and citation constitutes valid service. We do not interpret the language “return receipt of the defendant” found in LSA-R.S. 13:3205 to require personal service on the defendant. In Thomas Organ Company v. Universal Music Company, 261 So.2d 323 (La.App. 1st Cir. 1972), a case in which the certified copy of the citation and petition under the Long Arm Statute was received by a member of defendant’s family at his out-of-state domicile, the court stated:

“ * * * Under the clear wording of the above-quoted statute [LSA-R.S. 13:3204], all that is necessary to constitute service upon a non-resident under the ‘Long Arm’ statute is that counsel for plaintiff send a certified copy of the citation and of the petition in the suit to defendant by registered or certified mail (or actually deliver it in person). There is no provision against domiciliary service and no requirement for a signed return receipt. It has been held in both the International Shoe Company and McGee cases cited supra, that the sending by mail of a certified copy of citation and petition satisfies the requirements of ‘due process’. To allow a defendant to defeat service of process by refusing to accept a registered letter or to allow a member of his family to receive it for him ineffectually would make a mockery of R.S. 13:3204 and render it completely ineffective. * * *”

The language in the Thomas Organ case is particularly appropriate when considering our case.

Accordingly, we conclude the requirements of the Long Arm Statute have been met.

The judgment is affirmed.

AFFIRMED.

      . McIntosh cites, in this connection, Spearman v. Stover, 170 So. 259 (La.App. 2d Cir. 1936); Taylor v. Bush, 104 So.2d 433 (La.App. 1st Cir. 1958); Antley v. Wilson, 156 So.2d 269 (La. App. 4th Cir. 1963), writ refused, 245 La. 84, 157 So.2d 231 (1963); Lafayette Insurance Company v. Weiss, 297 So.2d 681 (La.App. 4th Cir. 1974).

      . In Comment (c) to LSA-R.S. 13:3205, a “default judgment”, as used in this section, is intended to have the same precise meaning attributed to it by Article 1701 of the Louisiana Code of Civil Procedure, and in the professional vernacular to mean “preliminary default” rather than “confirmation of default”.

      . In Lafayette Insurance Company v. Weiss, 297 So.2d 681 (La.App. 4th Cir. 1974), the petition and citation mailed to the non-resident defendant were returned “Moved, not deliverable”. In Taylor v. Bush, 104 So.2d 433 (La. App. 1st Cir. 1958), no return receipt was filed in the proceedings. The record in Spearman v. Stover, 170 So. 259 (La.App. 2d Cir. 1936) also did not contain a return receipt of the defendant. Antley v. Wilson, 156 So.2d 269 (La.App. 4th Cir. 1963) and Day v. Bush, 18 La.App. 682, 139 So. 42 (La.App. 2d Cir. 1932), also cited by defendant, held that the non-resident motorist statute was inapplicable to the facts of those cases.

      .LSA-C.C.P. art. 1292, although not dealing with the Long Arm Statute, states that a court may allow any process or proof of service to be amended where it appears that no “material prejudice” would result to a party’s substantive rights.


source: Caselaw Access Project

author: GULOTTA, Judge. LEMMON, Judge,

license: Public Domain

text:
    Joyce Faciane, wife of/and John MARTIN v. SOUTHERN BAPTIST HOSPITAL et al.
    No. 8514.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.

      Loeb & Livaudais, Claire Loeb, New Orleans, for plaintiffs-appellants.
    Monte J. Ducote, New Orleans, for defendant-appellee, Southern Baptist Hospital.
    Lemle, Kelleher, Kohlmeyer & Matthews, William S. Penick, New Orleans, for defendant-appellee, New Orleans Blood Bank, Inc.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from the dismissal of their suit for damages based on the claim that Mrs. John Martin contracted serum hepatitis from a blood transfusion required in connection with surgery received by her. Suit was directed initially against Southern Baptist Hospital. Subsequent to a third-party demand filed by the hospital against the New Orleans Blood Bank, Inc. (NOBB), plaintiffs, by supplemental petition, joined the blood bank as a party defendant. In reasons for judgment, the trial judge stated:

“The Court does not feel that the plaintiffs have carried the burden of proof as to the negligence of the defendants.”

The blood in the instant case was received by the NOBB from the Interstate Blood Bank, located in Memphis, Tennessee, and was distributed by the NOBB to the Southern Baptist Hospital. Mrs. Martin received the blood from the hospital.

In this appeal, plaintiffs contend the hospital was negligent 1) in failing to conduct a test for the presence of hepatitis; 2) in relying on the “integrity” of the test conducted by the Memphis blood bank; and, 3) in participating with the NOBB in a blood plan where blood is purchased from donors. Plaintiffs further contend they are entitled to recovery under the strict liability provisions of LSA-C.C. art. 2317. In this connection, the Martins rely also on the case of Loescher v. Parr, 324 So.2d 441 (La.1975) and cases following.

NEGLIGENCE

At the outset, we are in agreement with the findings of the trial judge that plaintiffs failed to carry the burden of showing defendant’s negligence. No showing was made that accepted medical standards were not followed in the screening and testing of the blood and in administering the blood transfusion. Interstate is a federally-licensed blood bank with the obligation to test the blood for hepatitis, as the originating bank. Plaintiff did not offer evidence to show that Interstate failed to conduct a test. As a matter of fact, defendant’s attempt to introduce Interstate’s records for the purpose of showing that tests had been conducted were met by an objection from plaintiffs which was sustained. Furthermore, according to the testimony of the director of the Baptist Hospital blood bank, the blood administered to Mrs. Martin was tested by the hospital for research purposes and negative findings resulted.

In connection with accepted blood tests for hepatitis known to medical science in 1972, when Mrs. Martin received the transfusion, the testimony is clear that 100% accuracy was not attainable. The medical evidence in the instant case is virtually undisputed that the tests were accurate and effective only to the extent of 35-45%. Supportive of the inaccuracy of the tests was evidence that while Mrs. Martin was hospitalized at Baptist Hospital and evidencing symptoms of hepatitis, blood tests conducted at that time were negative; furthermore, in a subsequent hospitilization at Ochsner Hospital during 1973, blood tests were performed and were negative. Medical experts testifying at trial further indicated that an improved test for detecting serum hepatitis, unavailable in 1972, is only approximately 70% effective. The evidence clearly indicates that the transfused blood in the instant case was subjected to the best test available which produced negative results for serum hepatitis. Under the circumstances, we find no error in the trial court’s conclusion that plaintiffs have failed to show negligence.

STRICT LIABILITY

Plaintiffs, in relying on Loescher v. Parr, supra, contend that in order to establish liability, they are required to show only 1) that defendant had custody of the blood; 2) that there was a defect or vice in the blood; and, 3) that the damage occurred through or as a result of the defect or vice. According to plaintiffs, once the above have been established, defendant can only escápe liability by showing that the damage was caused through plaintiffs’ fault or through the fault of a third person or by some irresistible force.

Although acknowledging that “implied warranty” of fitness is not applicable to blood, nevertheless, plaintiffs contend the doctrine of strict liability is applicable under LSA-C.C. art. 2317 as applied in the Loescher case. In Loescher, an automobile owner was permitted to recover for damages to his car when struck by a falling tree. The tree, located on defendant’s property, was diseased but the defect was unknown to the defendant. The Supreme Court, supra, at page 446, stated:

“The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the . . . (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.”

We reject plaintiffs’ contention that the Loescher case is controlling in our case. As pointed out by defendant, blood is statutorily not considered a “commodity” but is regarded as a “medical service”. See LSA-C.C. art. 1764(B). This public policy statute recognizes the life-saving need for use of blood, vital in some cases. While the danger of contracting hepatitis exists in blood transfusions, medical science, in 1972, had not progressed to the point where effective, foolproof tests had been perfected to discern the presence of hepatitis. To permit the application of strict liability in these cases would effectively instill, in the medical profession, fear of the use of blood until such time as foolproof tests could be devised. Such a result is untenable.

In Juneau v. Interstate Blood Bank, Inc. of Louisiana, 333 So.2d 354 (La.App. 3d Cir. 1976), writ denied, 337 So.2d 220 (La.1976), a case on all fours with the instant one, plaintiff’s reliance for recovery based on strict liability was rejected. See also Koppenol v. St. Tammany Parish Hospital, 341 So.2d 1242 (La.App. 1st Cir. 1976), writ denied, 343 So.2d 1067 (La.1977); Adams v. New Orleans Blood-Bank, Inc., 343 So.2d 363 (La.App. 4th Cir. 1977).

Accordingly, we conclude that absent a showing that accepted standards in screening and testing blood and in administering blood transfusions were not followed or that hepatitis resulted from some negligent act of a defendant, a plaintiff is not entitled to recover. No negligent act was shown in the instant case.

The judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

I believe that the furnishing of defective blood gives rise to a cause of action in tort based on fault. However, a plaintiff has the burden of proving that the particular blood was unreasonably unsafe for its intended use, when the risks are balanced against the benefits. Our plaintiffs have failed to prove that the risks were greater than a reasonable user would expect under the then existing circumstances considered in relation to the benefits.

      . LSA-C.C. art. 2317 provides as follows: Art. 2317. Acts of others and of things in custody
      “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . Glorioso v. Chandler, 337 So.2d 269 (La.App. 2d Cir. 1976); Woodward v. First of Georgia Insurance Co., 333 So.2d 709 (La.App. 2d Cir. 1976); dissent in Gansloser v. Kansas City Southern Railway Company, 339 So.2d 498 (La. App. 2d Cir. 1976), writ denied, 342 So.2d 219 (La.1977).

      . We find no merit to plaintiffs’ suggestion that the documentary evidence pertaining to tests conducted by the hospital was inadmissible because of the hospital’s failure to produce the original cards evidencing the fact that the tests were conducted. The hospital clearly established that the microfilmed originals could not be located after search and photocopies of the cards were introduced instead. Under these circumstances, the trial judge properly admitted evidence relating to these tests. The copies were the best documentary evidence available since the originals could not be found. See Auto for Rent, Inc. v. Provenza, 261 So.2d 732 (La.App. 2d Cir. 1971); Miley v. Steedley, 269 So.2d 522 (La.App. 1st Cir. 1972); Fidelity National Bank of Baton Rouge v. Jack Neilson, Inc., 248 So.2d 412 (La.App. 4th Cir. 1971); Alexander v. Occhipinti, 251 So.2d 188 (La. App. 4th Cir. 1971).

      . See LSA-C.C. art. 1764, which, in pertinent part, provides as follows:
      Art. 1764. Contracts; subject, motive, elements determining nature, and exceptions to implied warranty provisions
      “A. All things that are not forbidden by law, may legally become the subject of, or the motive for contracts; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider:
      * jH * s)c 4; *
      2. Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description; of this nature is warranty, which is implied in every sale, but which may be modified or renounced, without changing the character of the contract or destroying its effect.
      ‡ ‡ ‡
      B. Notwithstanding the provisions of Section A.2. of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.”

      . In Justice Tate’s dissent from the denial of the writ, concurred in by Justice Dennis, he stated: “I think the defect in the blood gives rise to a cause of action for fault, La.Civil Code arts. 2313, 2317, not upon any implied warranty. See dissent in Thomas v. Gillette Co., 230 So.2d 870, 876 (La.App. 3d Cir. 1970).”


author: STOULIG, Judge. BEER, Judge,

text:
    Rodney C. GUIDRY, Sr. v. PIZZA HUT OF LOUISIANA, INC., and St. Paul Fire & Marine Insurance Company.
    No. 8382.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Writ Refused Jan. 13, 1978.
    Jack Peebles, New Orleans, for plaintiff - appellee.
    Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., New Orleans, for defendants-appellants.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

This is an appeal from a $45,000 jury award to plaintiff, Rodney C. Guidry, against Pizza Hut of Louisiana, Inc., and its liability insurer, St. Paul Fire & Marine Insurance Company, for damages he sustained in a slip-and-fall accident. On appeal defendants reurge the defense of contributory negligence as a basis for reversal on liability. Alternatively they seek a reduction of quantum.

Admittedly, at 1:30 a. m. on July 27,1975, plaintiff slipped and fell on a wet floor in a Pizza Hut restaurant. The hazardous condition resulted from leaking plumbing of which the management had knowledge some time between 2lh to 6V2 hours before the incident. The plea of contributory negligence is based on the premise plaintiff could have seen the water on the floor had he exercised reasonable care in observing his surroundings.

Plaintiff fell in the entrance foyer when he was walking toward the men’s rest room door adjacent to the accident area. The evidence fails to precisely describe the lighting conditions in the restaurant at the point where the accident occurred nor does it disclose the amount of water standing on the floor at the moment plaintiff fell. It was established the Pizza Hut employees were aware of the leak and slippery floor problem for some time before plaintiff’s fall. In fact water had been removed by mopping at least one time earlier that same evening.

Because negligence is conceded, the crucial question is whether plaintiff should have observed the hazardous condition as he approached the area. Two witnesses familiar with the restaurant and the plumbing problem left the impression that a patron unfamiliar with the problem would not have readily observed the standing water. Dale Redding, a waitress on duty that night, said it was observable if the patron looked directly at the floor. A patron dining in a restaurant does not usually walk in this manner nor should he be deemed negligent if he fails to first check his passageway before traversing it in anticipation of pitfalls in his path. Charlotte Rainwater testified that it was not noticeable from a distance.

Contributory negligence is an affirmative defense that must be proven by the party alleging it. C.C.P. art. 1005; Spriggins v. Broadmoor Esso Service Center, 263 So.2d 365 (La.App. 4th Cir. 1972). Defendants have failed to prove the lighting conditions and/or the vantage point from which plaintiff approached would have afforded a reasonable man the opportunity to be forewarned of the slippery condition had he been exercising ordinary care under the circumstances. Conversely, the evidence preponderates to the effect that the slippery floor was not apparent to plaintiff. Thus the jury’s factual finding plaintiff was not contributorily negligent is fully supported by the record.

As to quantum, we likewise find no reversible error. The jury did not abuse the “much discretion” vested in it by C.C. art. 1934(3).

Immediately after his accident, plaintiff undisputedly manifested a disabling back condition — ankylosing spondylitis, also known as the more readily pronounceable Marie-Strumpell disease. Simplistically described, the joints of the back stiffen and actually turn to bone resulting in loss of mobility of the spinal column and forward spinal curvature.

The medical question here is whether the trauma from the fall aggravated and accelerated the progression of this degenerative condition or whether plaintiff sustained a back sprain and coincidentally reached a point in the progression of the spondylitis that disabled him immediately after the accident but independent of its occurrence.

Dr. Rodney Coulon, a neurosurgeon with Ochsner Foundation Hospital, and Drs. James Williams and Ray Haddad, orthopedists, confirmed the presence of Marie-Strumpell disease. Dr. Haddad had treated plaintiff for spondylolisthesis (slipped vertebra) incurred in an accident in 1969 and recommended a surgical fusion to correct the condition in 1970. Plaintiff refused surgery. Dr. Williams examined plaintiff in 1971, 1972 and 1973 in connection with a disability payment application. Neither orthopedist diagnosed Marie-Strumpell disease before the 1975 accident.

Dr. Coulon was plaintiffs treating physician when he was admitted to Ochsner Foundation Hospital, where he was hospitalized and placed in traction for 18 days. Thereafter he was treated as an outpatient until November 10, 1975. At that time Dr. Coulon discharged him to the care of another doctor with the Veterans Administration Hospital, not because plaintiff had recovered, but because he could no longer afford private treatment. In Dr. Coulon’s opinion the fall aggravated and accelerated the progression of the Marie-Strumpell disease, which all medical experts agree is not originated by trauma.

Although Dr. Haddad stated an orthopedist speaks with greater authority in the area of Marie-Strumpell disease than a neurosurgeon (suggesting his was the more knowledgeable opinion), Dr. Coulon’s theory of traumatic acceleration coincides with the history of plaintiff’s physical capabilities before and after the fall. For three months prior to this accident, plaintiff and his 17-year-old son worked together to refurbish rented premises as a liquor store. They painted, nailed shelves, lifted, bended and did all forms of physical exertion necessary to accomplish the remodelling. Plaintiff stood on his feet at least eight hours a day operating his own retail liquor business. After the fall, there was no doubt plaintiff could no longer perform any of these activities.

The verdict indicates the jury assigned more weight to the testimony of treating physician Dr. Coulon than to the opinion of Dr. Haddad, who examined plaintiff after this fall only for the purpose of evaluating his condition. We do not find reversible error in the result and think an award of $45,000 under these circumstances is justified.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

BEER, J., dissents with written reasons.

BEER, Judge,

dissenting in part.

I agree with the majority’s conclusion regarding appellants’ failure to carry the burden of affirmatively proving contributory negligence and, accordingly, agree that the judgment should be affirmed. However, I respectfully dissent from the affirmation of the award in the amount of $45,-000. I do not feel that the medical testimony regarding the effect of Mr. Guidry’s slip and fall on his preexisting condition supports a conclusion that his condition was either seriously aggravated thereby or that it was aggravated for anything more than a brief period of time. Because of this, I find the award to be manifestly excessive and am of the view that it should be reduced to $10,000.


author: STOULIG, Judge.

text:
    Linda Reck MICHEL et al. v. HOMETOWN SUPER MARKETS, INC., et al.
    No. 8442.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Martzell and Montero, Frank E. Lamothe, III, New Orleans, for Linda Reck Michel, plaintiff-appellant.
    Cronvich & Wambsgans, A. W. Wambs-gans, Metairie, Kenneth V. Ward, Jr., New Orleans, for Alwynn Cronvich, defendant-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Linda Michel, individually and as administratrix of the estate of her five minor children, filed a damage suit against the Hometown Super Market, Inc.; its executive officers; their liability carrier, Hanover Insurance Company; and Alwynn Cronvich, individually and as sheriff of Jefferson Parish, for the wrongful death of Euclid Michel, Jr., her husband and the children’s father. Taken hostage by holdup men escaping from a food store, Michel allegedly was killed in an exchange of gunfire between sheriff’s deputies and the fleeing felons.

Defendant Cronvich filed a motion for summary judgment and an exception of no cause of action. The summary judgment was set for argument and after a hearing, judgment was rendered maintaining the exception of no cause of action. The motion for summary judgment was not adjudicated.

We reverse and overrule the exception of no cause of action. Appellant and appellee differ as to whether any argument or hearing was had on the exception in the trial court. Appellant argues it was procedural error for the court to pass on the exception without having a hearing. Rather than speculate whether or not a hearing was held and remand this cause for further proceedings on the exception, we exercise the authority granted by C.C.P. art. 2164 and reverse the judgment of the trial court.

Plaintiff alleged, sufficiently if somewhat vaguely, the sheriff’s deputies were negligent in (1) failing to engage in proper police practices; (2) negligently engaging in close pursuit and thus placing Michel’s life in jeopardy; and (3) failing to retreat despite the fact that Michel’s life was endangered. These allegations of the petition, deemed true for the purpose of deciding this exception, do state a cause of action against the sheriff.

The jurisprudence of this State has interpreted R.S. 33:1433 to mean a sheriff is answerable in damages for the negligent act committed by his deputies performing official duties of the sheriff’s office. Gray v. De Bretton, 192 La. 628, 188 So. 722 (1939); Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La.App. 4th Cir. 1970). We recently followed that line of jurisprudence in Andry v. Parish of Orleans, 309 So.2d 814 (La.App. 4th Cir. 1975). C.C.P. art. 331 makes the sheriff responsible “for the performance or nonperformance of their official duties by his deputies”; however, R.S. 33:1433 limits this responsibility to the amount of the bond furnished by the deputy sheriff when the deputy is not acting in compliance with a direct order of the sheriff.

As to the motion for summary judgment, this is not before us because it was not passed upon in the district court.

For the reasons assigned the judgment appealed from is reversed, the exception of no cause of action is overruled, and this matter is remanded for further proceedings consistent with the views herein expressed. Appellee is to pay all costs of this appeal.

REVERSED; RENDERED; AND REMANDED.


text:
    Mrs. Mary Angelene Juneau, wife of Salvador MANCUSO v. Salvador MANCUSO.
    No. 8481.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Theodore W. Nass, Gretna, for plaintiff-appellant.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

This appeal was lodged to question (1) the correctness of a judgment reducing child support, and (2) alternatively, the allowance of a credit for the amount of the decrease against past-due payments made executory by a judgment rendered before the decrease was allowed.

The district court proceedings pertinent to this appeal are these:

On March 17, 1975, Salvador Mancuso was ordered to pay $320 monthly for the support of his minor child.

Pursuant to a rule filed March 8, 1976, the court found Salvador Mancuso $640 in arrears on child support payments for the period January 17, 1976 through March 17, 1976. Judgment making these arrearages executory was rendered March 25 and signed March 30,1976. No application for a new trial was made nor was an appeal taken by the father from this judgment.

On March 30, 1976, Mr. Mancuso filed a motion for a decrease in child support alleging, inter alia:

“ * * * [A]t the time the above amount was set there was no formal hearing had * * *.”

and

“ * * * [T]he amount of child support set by this Honorable Court is far in excess of the said mover’s income and means * * *.”

On April 30, the trial court rendered judgment which denied Mary Mancuso an increase; reduced the monthly child support award from $320 to $270; vacated the March 30 judgment making $640 in past-due child support executory; and decreed that an amount of $759 was past due and executory. Only Mary Mancuso has appealed.

In considering the correctness of the judgment reducing child support, neither the pleadings nor the proof is sufficient to warrant a reduction in child support. It is well established that the party seeking a modification in a child support or alimony award must allege and establish a change in the respective financial circumstances of the parties since the award was judicially established. And this is true whether the judgment is rendered by consent or at the conclusion of an adversary proceeding. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

In this case the pleading is somewhat ambiguous in that it alleges no formal hearing was held. We assume that the award was a consent judgment. If there was any irregularity or denial of due process to Salvador Mancuso in that he was not represented by an attorney or did not appear pro se, then he bears the responsibility of bringing any such fact to the court’s attention. The burden of proof is borne by the party seeking the change. Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir. 1976). The only evidence before us is that Mrs. Mancuso’s take home pay was $285 per month when this matter was heard and Mr. Mancuso netted $810 monthly. Accordingly the husband has neither alleged nor proved the facts to justify a reduction in child support.

The alternative issue of whether the trial court has the discretion to allow as a credit the amount of the decrease in child support against accrued delinquent payments must be answered in the negative.

The record indicates the father made no child support payments between the time the first and second judgments were rendered. The judgment in response to the rule to decrease rendered on April 30, 1976, decrees in part:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the prior Judgment signed March 30, 1976, making past due Six Hundred Forty Dollars and 00/100 ($640.00) in child support be vacated and the total child support due and owing and executory be set at Seven Hundred Fifty-Nine Dollars and 00/100 (759.00) to include Four Hundred Forty Dollars and 00/100 ($440.00) past due since the prior judgment.”

It is apparent that the trial court in reducing the monthly amount of child support also amended the judgment making execu-tory past-due payments to retroactively reflect the amount of the decrease. At that point the trial court had no jurisdiction to amend or modify that judgment as to substance because seven legal days for applying for a new trial had expired. C.C.P. art. 1974. Once past-due child support or alimony is made executory by final judgment, it is no longer subject to modification.

From the record we are aware that the sum of $960 was past due and owing on April 28, 1976 and only to this amount can we make a judgment executory.

For these reasons, the judgment appealed from is reversed insofar as it reduces child support, vacates the March 30, 1976 judgment, and applies a retroactive credit for the reduction. The judgment of March 30, 1976 making executory past-due child support of $640 for the period January 17 through March 17, 1976 is decreed to be final and unappealable. Nothing herein shall prejudice appellant’s right to make executory all other past-due child support for the period commencing on March 17, 1976. Appellee is to pay all costs of the litigation incurred since the filing of the March 8, 1976 rule.

REVERSED IN PART; AFFIRMED IN PART; AMENDED IN PART.


text:
    Gordon K. KONRAD v. PARISH OF JEFFERSON.
    No. 8488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Gordon K. Konrad, in pro. per.
    Harry Lee, Parish Atty., Gretna, Lawrence J. Fritz, Asst. Parish Atty., Metairie, for defendant-appellant.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Defendant, the Parish of Jefferson, has appealed a judgment ordering it to rezone and reclassify ten lots owned by plaintiff, Gordon K. Konrad, from “R-l Residential” to “C-l Commercial.” The property is located at the intersection of West Esplanade Avenue North and Severn Avenue, two major traffic arteries that border the Fat City commercial development in East Jefferson. The rear property line is a major drainage canal situated in the neutral ground area that divides the eastbound and westbound traffic lanes of West Esplanade Avenue.

The property immediately to the south that fronts on West Esplanade Avenue South and abuts the other side of the drainage canal is zoned C-l Commercial. Other properties lying between the north bank of the drainage canal and the north roadway of West Esplanade are zoned for commercial use. In fact the testimony indicates the plaintiff’s property is totally unsuitable for residential purposes.

Hugh Ford, Planning Director for Jefferson Parish, testified his department’s advisory board recommended to the Parish Council that plaintiff’s request for a zoning change be denied for three reasons:

1. There was no need for additional commercial property in the area.
2. Plaintiffs property was not eligible for rezoning under the rule that abutment to commercial property would qualify the adjacent property for reclassification as commercial and that the reclassification would constitute spot zoning.
3. Rezoning plaintiffs property as commercial would endanger the existing residential section located between Fat City and the south shore of Lake Pontchartrain.

Under cross-examination, appellant’s planning director acknowledged the property could not be developed as single family dwellings but that under the R-l classification it could be used for a church or a school. He admitted that the usage of the property for single family residences would be impractical.

When Ford was confronted with the zoning regulation that for zoning purposes the boundaries of two or more districts abutting a water area shall extend into midstream, he conceded that the reclassification of plaintiffs property would be an extension of C-l and not spot zoning as initially indicated in the advisory board’s recommendation to the Parish Council.

Before the court may reverse a zoning classification, plaintiff must establish the agency abused the law-making discretion vested in it by the legislature. In discussing the limited access to judicial review in this area, the Supreme Court in Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 672 (La.1975), stated:

“The authority to enact zoning regulations flows from the police power of the various governmental bodies; zoning is a legislative function. State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440 (1923); State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613 (1921); Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir. 1966); Smith v. City of Baton Rouge, 233 So.2d 569 (La.App. 1st Cir. 1970). Courts will not and cannot substitute their wisdom for that of a legislative body or other zoning authority except when there is an abuse of discretion or an excessive use of power. However, the exercise of a police power in zoning cannot be made without substantial relation to the health, safety and general welfare of the public. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503 (1947); City of Shreveport v. Bayse, 166 La. 689, 117 So. 775 (1928). All ordinances are presumed valid; whoever attacks the constitutionality of an ordinance bears the burden of proving his allegation. City of New Orleans v. Beck, 139 La. 595, 71 So. 883 (1916); Ward v. Leche, 189 La. 113, 179 So. 52 (1938). * * * J)

Using this and the criteria enunciated in Dufau v. Parish of Jefferson, 200 So.2d 335 (La.App. 4th Cir. 1967), the trial judge concluded the board-recommended council decision to deny rezoning was in fact an abuse of discretion. Among the factors influencing this result was that (1) more than 10,000 vehicles passed the property daily on West Esplanade Avenue; (2) the property is unsuited for residential use; (3) the already heavy traffic flow on Severn Avenue, the side boundary, was soon to increase with the construction of a bridge across the canal; (4) a large sewerage and water manhole and an 8-foot-high lift are located on adjacent property; and (5) other properties fronting on the neutral ground side of West Esplanade Avenue North are zoned C-1 Commercial.

All these factors combine to demonstrate the three reasons Ford enumerated for denial of the request to rezone plaintiff’s property are arbitrary and capricious. The evidence demonstrates reclassification to commercial is imperative if plaintiff’s property is to remain in commerce.

For the reasons assigned the judgment is affirmed.

AFFIRMED.

      . Mr. Ford defined “spot zoning” as “ * * * the island of one classification in the sea of another classification.”

      . Comprehensive Zoning Ordinance No. 7530, § V(2) provides:
      “All lands within the unincorporated areas of the Parish of Jefferson, which are under water and are not shown as included within any district shall be subject to all the regulations of the district adjacent to the water area. If the water area adjoins two or more districts, the boundaries of each district shall be construed to extend into the water area in a straight line until they intersect.”

      .The ordinance defines “district” as “any section of the Parish of Jefferson in which these zoning regulations are uniform.”


author: STOULIG, Judge. REDMANN, Judge,

text:
    Willie WASHINGTON and Helen McGee v. DIXIE LEASING OF NEW ORLEANS, INC., Craig Coleman and Liberty Mutual Insurance Company.
    No. 8525.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.
    James G. Kambur, New Orleans, David M. Smill, Metairie, for plaintiffs-appellants.
    Bruce J. Borrello, Stephen L. Huber, George J. Richaud, Metairie, A. Miles Pratt, III, New Orleans, Denise M. D’Aunoy, George J. Richaud, Metairie, for Liberty Mut. Ins. Co., defendant-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiffs, Willie Washington and Helen McGee, filed suit for personal injuries and property damage incurred when the parked taxicab occupied by Willie Washington was struck by a truck. Named defendants were Craig Coleman, the truck driver; Dixie Leasing of New Orleans, Inc. (Dixie), the owner of the truck; and its liability insurer, Liberty Mutual Insurance Company (Liberty Mutual). The trial court rendered judgment against Craig Coleman in favor of Willie Washington for $2,837 and of Helen McGee, the owner of the vehicle, for $467.50 property damage. Plaintiffs’ suit against the other two defendants was dismissed.

Plaintiffs have appealed — Washington, individually, for an increase in quantum, and both, to have appellees Dixie and Liberty Mutual cast in judgment along with the presumably less solvent Coleman.

The record does not warrant our increasing the award to Washington. He was treated for neck and back injuries from the date of the accident, July 31, 1974, through October 23, 1974. The duration of symptoms is questionable in view of the fact that the orthopedic surgeon who initially treated him discharged Washington on September 11, 1974. Plaintiff consulted another doctor who treated him from September 25 through October 23, 1974 and expressed the opinion plaintiff had suffered neck and back strain. Viewed in the light most favorable to plaintiff, the special damages he incurred totalled $597 ($297 in medical bills and $300 in lost wages). Plaintiff testified he lost between $200 and $300 in income as the result of this accident; however, his failure to file tax returns and his admission that he understates the number of trips his cab makes daily punctuates the income part of his testimony with questionmarks.

In our view the award of $2,837 is extremely generous and we do not conclude the trial court abused its much discretion in arriving at this figure; therefore, we affirm quantum. C.C. art. 1934(3); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

We next consider whether the trial court erred in dismissing the suit against Dixie and its insurer, Liberty Mutual. On July 30, 1974 Dixie leased the van involved in the accident to one Craig Connor, its employee; however, the rental was independent of his employment. Connor testified he had been told on previous occasions that if he loaned the cars he rented to another party, the insurance afforded by the rental agreement would be nullified. When Con-nor leased the van he did not inquire whether it would be insured if he loaned it to a third party nor was he specifically told by Dixie personnel what would happen in this event. We are at a loss to understand why Connor assumed the insurance coverage afforded would be different from a rental car as opposed to a rental van.

In the contract of lease, the lessee agrees that liability coverage is contingent on his compliance with the terms of the agreement. One of the restrictions in the contract is that:

“The vehicle described on the reverse side hereof shall not be operated:
******
(e) By any person other than the Renter who signed the rental agreement * * *

Appellant first argues Liberty Mutual and its insured were not entitled to defend on the coverage question because it is an affirmative defense they failed to specially plead. We disagree.

The petition alleges the driver Coleman, was an agent and/or employee of Dixie and on this basis the insurer is liable. Defendants denied this assertion. As it develops, it was the lessee, Connor, not the driver, Coleman, who was an employee and the van was rented to Connor for his personal use. Connor simply loaned the van to Coleman, despite the prohibition in the contract. At the time of the accident Connor was not a passenger in the van, which was being used by Coleman to move some furniture for his mother. Coleman was not on a mission for the lessee or involved with him in a joint venture.

In an action on an insurance contract, plaintiff has the burden of pleading and proving his claim is covered by the policy. Carriere v. Triangle Auto Service, 340 So.2d 665 (La.App. 4th Cir. 1976).

The issue in this case is whether the driver was a named insured under the policy because he was using the car with the permission of the renter. This element of proof concerns basic coverage and must be established by plaintiff as part of his prima facie case. Bagnell v. Travelers Insurance Company, 270 So.2d 255 (La.App. 4th Cir. 1972). By contract the renter stated under which conditions liability insurance coverage applied and plainly disclosed to the lessee that there was no insurance coverage if the car were operated by anyone other than the lessee. This language is not an exclusion. Before the exclusionary provisions have applicability, there must be a named insured to whose actions these may be applied. The question here concerns basic coverage, without which no provision of the contract is applicable.

Appellants argue that public policy considerations require this court to interpret the contract to extend coverage under the omnibus clause. They cite R.S. 22:655 and Hughes v. Southeastern Fidelity Ins. Co., 340 So.2d 293 (La.1976), to support this proposition. In general terms the statute states insurance policies are issued for the benefit of the injured but this is not a blank check for courts to bring every claim against an insurance company under the omnibus provision of its policy. The case cited is not authority for the proposition appellants urge. Hughes turned on a factual determination that the driver was in fact operating the car with the permission of the named insured. In the instant case the named insured is Dixie and not the lessee Connor. While Connor had permission of the insured to operate the car, the driver Coleman, did not and could not become a permittee (omnibus insured) under the expressed prohibition in the rental agreement. Therefore, the omnibus clause coverage is not applicable.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

REDMANN, J., dissented and filed an opinion.

REDMANN, Judge,

dissenting.

The Louisiana law is that one who has an automobile owner’s permission “to use the car as his own” has the authority to permit another driver to drive the automobile, and that last driver is deemed to have the owner’s permission and is therefore an omnibus insured under the owner’s liability insurance policy; Hughes v. Southeastern Fidelity Ins. Co., La.1976, 340 So.2d 293.

The only difference between this case and Hughes, apart from the fact that in Hughes the first permittee was in the car at the time of the accident, is that the apparently unrestricted renting of the vehicle by a commercial car rental agency was intended by the lessor to be restricted. The lessor placed a provision in the two-page rental “INVOICE” (also described, in letters four times smaller, as “standard rental agreement”), a half-line declaration, that the vehicle “shall” not be operated “By any person other than the Renter who signed the rental agreement”.

This difference does not amount to a distinction. We have the same problems as Hughes: (1) the “first permittee” could reasonably believe he had authority “to use the car as his own”; more important, (2) the third-party driver could reasonably assume, from the appearance that the lessee could “use the car as his own”, that the lessee did have authority to allow him to drive; and (3) the third-party injured person is the intended beneficiary of liability insurance (although he does not “rely” on any appearance of authority or upon any insurance in becoming a tort victim).

The worst result of finding that a third-party driver did not have the owner’s permission is that the third-party driver’s own insurance may not afford him coverage while driving another car without its owner’s permission; American Home Ins. Co. v. Czarniecki, 1969, 255 La. 251, 230 So.2d 253. Thus such a finding deprives both the third party victim and the third party driver of the benefits of insurance. See the additional concurring reasons of Mr. Justice Tate in Hughes, at 340 So.2d 295, suggesting that Czarniecki should be overruled.

Perhaps the most socially acceptable function of the driving-without-permission exclusion is to deny protection to an automobile thief, or to another driver who has no reasonable belief that he may lawfully drive the car. Even this theory seems death-bound in a society which as a rule prefers to spread risk through insurance rather than suffer an innocent victim to bear a loss alone. But, allowing the exclusion of thieves and bad-faith drivers, of what benefit to society is it to exclude as insureds drivers lawfully driving an “insured” automobile when the insurance industry has elected to insure automobiles rather than drivers?

Of what concern to the insurer is the method whereby a given driver lawfully, i. e., not wrongfully, drives an insured automobile, if the owner could have made that driver an “insured” by the simple expedient of permission (which the lawful driver reasonably believes he already has)? How can courts tell automobile accident victims that the insurance on the injury-causing automobile is not available because the automobile owner who freely gave the keys and the killing-power of the insured automobile to a first permittee held some invisible string which, by an ethical restraint not effective against mechanical monsters, disallowed second permittees’ driving?

The insurer is liable because the attempted disallowance of second permittees’ driving should not be held effective against the third-party second permittee, much less against the innocent third-party victim.

      . This witness was never tendered or accepted as an expert. For this reason his specialty was never disclosed.

      . The court held in part:
      “ * * * [I]t is also established by this jurisprudence that the plaintiff has the burden of proving that the driver had the permission of the insured in order for the omnibus clause quoted supra to be effective.
      “With equal force, it can be stated that in such circumstances, a special defense of lack of permission need not be pleaded for the defendant to prove lack of permission of the insured to operate such vehicle.” 270 So.2d at 259.

      . R.S. 22:655 in pertinent part provides:
      “It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is Hable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal iiabiiity said insured may have as or for a tortfeasor within the terms and limits of said policy.” (Emphasis added.)


text:
    Ronald GREEN v. LIBERTY MUTUAL INSURANCE COMPANY, Ray Pitre, Ray Valliant, George Isreal and Robert Sour.
    No. 9025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Eldon E. Fallon, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., and Steven G. Durio, New Orleans, for Ray Pitre, George Isreai, Robert Sour and Liberty Mut. Ins. Co., defendants-appellees.
    Leonard Führer, Alexandria, for Louisiana Trial Lawyers Ass’n, amicus curiae.
    Before LEMMON, STOULIG and BEER, JJ.
   STOULIG, Judge.

This is an appeal from a judgment dismissing an “executive officer” tort suit on an exception of no cause of action. Ronald Green alleged the negligent acts of omission of four officers of Westbank Electric, Inc., created unsafe working conditions at his place of employment that proximately caused his injury in an industrial accident.

The accident occurred January 11, 1976. La.Acts 1976, No. 147, § 1 was enacted some six months later, and, among other things, it amended R.S. 23:1032 to prohibit suits against executive officers based on any activity they performed as management of the corporate employer. This suit was filed November 8, 1976, several months after the amendment became effective. In maintaining defendants’ exception, the court applied the amending law retroactively.

The issue before us is whether the amendment destroys a cause of action based on incidents that occurred prior to the effective date of Act 147 of 1976. Or, stated another way, is the law at issue subject to prospective or retroactive application?

As a general rule, laws are deemed to be prospective in effect unless their language clearly indicates otherwise. C.C. art. 8; R.S. 1:2; Churchill Farms, Inc. v. Louisiana Tax Com., 338 So.2d 963 (La.App. 4th Cir. 1976); Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3d Cir. 1974); 1 Planiol Treatise on the Civil Law (La.St.L.Inst. transl. 1959) §§ 254 and 255 at page 181. Exceptions to this principle are laws which are (1) interpretative (Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975); (2) remedial or curative (Fullilove v. U. S. Casualty Company of New York, 129 So.2d 816 (La. App. 2d Cir. 1961); and (3) procedural.

Appellant contends R.S. 23:1032, as amended by Act 147, falls within the general rule of prospective operation. Appellees claim the law is remedial and/or curative or interpretative and is entitled to retroactive application.

Prior to its adoption, an injured workman could file a suit in tort against any executive officer or director of his corporate employer for a work-connected injury despite the R.S. 23:1032 concept that a workmen’s compensation claim was an exclusive remedy. The landmark decision in Canter v. Koehring Company, 283 So.2d 716 (La.1973), crystallized the workman’s right to bring actions in tort against executive officers by reconciling divergent lines of jurisprudence. All circuit courts of appeal agreed the executive officer faced individual liability in tort under R.S. 23:13 and certain principles of agency, differing only as to the degree of answerability. After tracing the development of the jurisprudence in this area, Canter repudiated that line of cases limiting C.C. art. 2315 liability in any respect. Presumably the right to sue was conferred by R.S. 23:1101. That the Canter court did not consider the executive officer suit in conflict with the R.S. 23:1032 exclusiveness section of the Workmen’s Compensation Act is evidenced by its failure to discuss the point in an otherwise thorough analysis of all law relevant to the issue.

Act 147 clearly repudiates this result by amending R.S. 23:1032 to prohibit executive officer suits based on employment-connected negligent acts of commission or omission. Now not only is the corporation itself shielded from tort liability under the respondeat superior doctrine, but also the corporate directors have no personal exposure as long as the action complained of falls within the ambit of their managerial duties.

In attempting to bring this within one of the exceptions to the prospective application rule, appellees rely on Gulf Oil Corporation v. State Mineral Board, supra, which discusses the permissibility of retroactively applying interpretative laws. The reasoning is the legislature is simply stating more clearly what it meant to say in the first place. We quote the language appel-lees emphasize:

“Moreover, interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of laws. The interpretive legislation does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. * * * ” 317 So.2d at 591.

The issue in Gulf was whether the State’s patents granted to private owners over navigable water bottoms were valid. Pointing out that such conveyances were null ab initio and repugnant to stated public policy, the Supreme Court declared La.Acts 1912, No. 62 invalid insofar as it quieted title to privately owned property illegally transferred from the State. In reaching this result it discussed at length La.Acts 1954, No. 727, which (1) reiterated the State’s policy against private ownership of navigable water bottoms, (2) specified that privately held property titles granted under state patents could only be quieted by La.Acts 1912, No. 62 if the land in question could have been validly deeded ab initio; and (3) specifically declared the 1912 law intended this originally.

While the Supreme Court discussed Acts 1954, No. 727 as evidence of the legislative intent expressed by La.Acts 1912, No. 62, and, without holding it was interpretative, the Court based its result on the original act of repose. In so doing it avoided the constitutional pitfalls of a retroactive application of an amending statute.

The instant case is not concerned with a law repugnant to public policy of this State. We are dealing with an individual right to seek redress for injuries in a given situation. Whether an injured workman may or may not file a tort suit against an executive officer of his employer corporation has no relation to policy limitations by the sovereign toward its citizens as does the public versus private ownership of water bottoms. Unlike Gulf, this case takes away what once was a valid cause of action. The water bottoms ownership, the Court reasoned, was null ab initio. We do not deem Act 147 of 1976 a clearer restatement of the original section of the compensation law. Rather we think it is a change that the legislature in its wisdom thought was relevant at this point in time.

Nor do we conclude Act 147 is remedial or curative and entitled to retroactive application as was the statute at issue in Fullilove v. U. S. Casualty Company of New York, supra. Briefly, that case involved a suit titution. On both the state and federal levels, the court against the State of Louisiana authorized by a joint resolution of the legislature, waiving the State’s sovereign immunity. The State filed an exception of no cause or right of action, which the trial court maintained because the Supreme Court had recently declared the legislature could not validly waive the sovereign immunity granted the State by La.Const.1921, Art. 3, § 35. (Duree v. Maryland Casualty Company, 238 La. 166, 114 So.2d 594 (1959)). While the Fullilove appeal was pending, the constitution was amended to permit the legislature to waive the State’s sovereign immunity in certain cases. The court gave the amendment retroactive effect. It first stated the language of the amendment manifested an intent that the amending law apply retroactively. (We agree it did.) Alternatively, it buttressed this result by holding that the amendment was curative and remedial. The Fullilove court manifested its concern over the divesture of a property right (immunity from suit) by a retroactive application of the law in its lengthy explanation of why no constitutional question was involved. On a state level, the law was a part of the constitution. On both the state and federal levels, the court pointed out, no constitutional argument could be made on the state’s behalf because constitutional guarantees flow from the sovereign to the citizen and not to the state itself. In short, the state as an entity has no constitutional rights.

U.S.Const. Art. 1, § 10 prohibits a state from passing a retroactive law that would destroy a vested right of a citizen or impair the obligation of a contract, while the Fourteenth Amendment guarantees the citizen against loss of a property right without due process of law. See also La.Const. 1974, Art. 1, § 23. The right to file a damage suit in tort is a vested property right. If we were to give retroactive effect to the amending language of R.S. 23:1032, we would effectively terminate plaintiff’s right and in so doing give an unconstitutional interpretation to the statute. Churchill Farms, Inc. v. Louisiana Tax Com., supra.

We hold the amendment to R.S. 23:1032 is prospective in operation. Our result conflicts with the holding in Barr v. Preskitt, M.D., Ala.E.D., 389 F.Supp. 496 (1975). While we are impressed with the presentation of authority to support the retroactive application point of view, we view the constitutional question in a different light and, not being bound by the Barr holding, respectfully disagree.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. The motion to certify this matter to the Supreme Court of the State of Louisiana is denied. All costs of this appeal are to await the final disposition of this matter.

REVERSED AND REMANDED.

      . Named defendants were Ray Pitre, Ray Valli-ant, George Isreai and Robert Sour, individually, and their liability insurance carrier, Liberty Mutual Insurance Company.

      . The effective date of La.Acts 1976 is October 1, 1976.


author: BOUTALL, Judge.

text:
    Bernadine Caruso ROSSELLI v. Dominick F. ROSSELLI, Jr.
    No. 8438.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Tonry, Mumphrey & D’Antonio, James C. Wilbert, Chalmette, for Bernadine Caruso Rosselli, plaintiff-appellee.
    Thomas E. Stirewalt, Jr., McPherson & Abadie, New Orleans, for Dominick F. Ros-selli, Jr., defendant-appellant.
    Before SAMUEL, REDMANN, and BOUTALL, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment finding Dominick F. Rosselli, Jr. in contempt of court for failure to pay alimony and child support as ordered and imposing a six month sentence. His appeal raises 2 issues: 1.) Whether the trial court abused its discretion in finding him in contempt of court for failure to pay; and 2.) whether the trial court abused its discretion in sentencing him to serve 6 months in jail, together with other conditions of sentence.

On the first issue, the record discloses, and the defendant admits, that he is in arrears in the total sum of $1,055.00 during the relevant period, and that he never paid the full amount due on any regularly scheduled payment. In an attempt to exculpate himself, the defendant asserts that it is not within his power to make the payments, because his hair cutting business failed and he is now working on a limited salary. However, his further testimony in the case was to the effect that in some unexplained manner his girl friend took over ownership of the business and simply hi’-ed him as manager. The trial judge was totally unimpressed with this testimony and found defendant in contempt. We find no error and we affirm the finding of contempt.

On the second issue, the amount of the sentence, we do find that the trial judge exceeded his authority in imposing a 6 month jail term. We note the trial judge’s expressions in connection with the imposition of sentence, particularly that this was the fourth proceeding for contempt, and that he had been very patient in attempting to avoid sending defendant to prison, but we note that the sentence was apparently imposed under the wrong section of the contempt statute. C.C.P. Article 224(2) sets out that a constructive contempt of court is willful disobedience of any lawful judgment, order, mandate, writ or process of the court. Article 227 provides for punishment in accordance with R.S. 13:4611. The appropriate punishment is that found in subsection 4 of section 4611:

“(4) For any other contempt of court, by a fine of not more than two hundred and fifty dollars, or imprisonment for not more than thirty days, or both.”

See Ourso v. Ourso, La.App. 4th Cir., 282 So.2d 157; Wall v. Wall, La.App. 1st Cir., 230 So.2d 420; Compton v. Bertaut, La.App. 4th Cir., 348 So.2d 78. The sentence imposed is beyond that permitted under the statute and cannot be imposed for this type of contempt. Accordingly, we must set aside and annul the sentence of contempt and remand the matter to the trial court in order that he may sentence the defendant not in excess of the limit set by the statute.

Defendant also contests the authority of the trial judge to additionally provide that the sentence may be suspended in the event .that defendant purge himself by paying a stated sum of arrearage and then placed on probation with the condition that he continue to maintain the regular payments. In view of our ruling that the sentence is null, we make no ruling hereon but refer the parties to the statements of the court in the cases of Ourso and Wall, supra.

For the reasons above stated, the judgment of the trial court is affirmed insofar as it finds the defendant in contempt of court, but is annulled and set aside insofar as the sentence imposed. This matter is remanded to the trial court for the imposition of sentence in accordance with L.R.S. 13:4611(4) and the views expressed in this opinion.

AFFIRMED IN PART,

ANNULLED AND REMANDED IN PART.


text:
    Clifford LEWIS v. NEW YORK FIRE & MARINE UNDERWRITERS, INC.
    No. 8477.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.

      Frank S. Bruno, New Orleans, for Clifford Lewis, plaintiff-appellant.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for New York Fire & Marine Underwriters, Inc., defendant-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

A pedestrian, Clifford Lewis, struck by an automobile, sued the driver, Elvin Nicholas, and his insurer. Plaintiff appeals from a judgment dismissing his suit.

This accident took place on LaSalle St. in the City of New Orleans, in 1963, and was not tried until February of 1975, due to many continuances and a prior appeal (# 3873 of this Court) in 1970 from judgment dismissing plaintiff’s suit for his failure to appear at trial on the day set. After remand from that appeal, the trial was continued three more times at plaintiff’s request. In the meantime, both plaintiff Lewis and defendant driver Nicholas had died and Lewis’s heirs were substituted as plaintiffs. At trial, the investigating policeman, Earl Boudreaux, was qualified as an expert. He found 50 feet of skid marks on the scene, which indicated a speed of approximately 30 miles per hour. He further testified that Lewis had told him at the investigation that he ran into the street looking the other way.

This was confirmed by the only remaining eye witness, Freddie Smooth, a passenger in Nicholas’ car. He testified that he saw Lewis run into and across LaSalle Street to catch a bus on the other side, looking away from traffic as he ran, and that Nicholas, travelling about 30 miles per hour, slammed on his brakes at once but could not avoid hitting Lewis.

The judge below, in his written reasons, stated that he found no evidence to support a finding that Nicholas was guilty of any negligence, and further that Lewis was negligent in running into the street looking away from traffic, and that this would constitute contributory negligence so as to bar recovery.

Plaintiff assigns four errors on appeal, the first three being proffers of evidence disallowed by the trial judge.

Assignment of Error: Nos. 1.) and 3.) are essentially the same. After Freddie Smooth testified, he returned to the scene of the accident during a recess and measured the distances from point of collision to where he remembered Lewis was when he was first seen and where Nicholas’ car was at that time. Plaintiff attempted to recall Smooth to testify as to this measurement, and again to call Smooth on rebuttal to so testify.

The testimony was admissible and ordinarily is allowable. There seems to have been no reason to disallow this other than that plaintiff’s counsel had already belabored this point during Smooth’s examination. The witness also testified that he had gone to the scene the day before at counsel’s request and that counsel’s son had made the measurements. The trial judge had already given counsel latitude in examination of this witness beyond reasonable expectation. The judge could perhaps have justified his refusal on these grounds. However, we note in the judge’s written reasons that he discussed and seemed to consider this proffered evidence anyway; he found Smooth’s testimony on the distances involved “vague”, and mentioned that he considered “several measurements that he (Smooth) described when he was put back on the witness stand . was confusing”, noting several inaccuracies therein. We agree with this analysis. The proffered testimony added nothing to the effect of Smooth’s overall explanation of the accident.

Assignment of Error No. 2.

Plaintiff counsel attempted to call Mr. John Exnicious as second expert witness, after Boudreaux had already testified as an expert. Exnicious was not on plaintiff’s list of witnesses elicited in interrogatories and at pretrial, and the judge in oral reasons felt that defendant counsel was surprised and that it was unfair for him to be confronted at that late date with a new witness after so many continuances by the plaintiff over the prior 12 years. This was certainly within the judge’s right to control the case under La.Code of Civil Procedure, Article 1632.

Assignment of Error No. 4.

Plaintiff argues that judgment should have been granted in his favor, and that plaintiff should not be found contribu-torily negligent, and that the doctrine of last clear chance should apply. He argues that since the skid marks found were fifty feet long, and that Boudreaux would add some 31 or so feet to that as driver reaction time, for a total of 81 feet, that the driver did not attempt to stop at the first instant he saw Lewis, which counsel contends is 114 feet. However, Smooth’s testimony was firm in that Nicholas put on the brakes as soon as they saw Lewis running into the street. The trial judge found that there was no evidence to show improper speed, or failure to maintain proper lookout, or failure to see the pedestrian timely and react.

We find no manifest error here so as to reverse the trial court’s finding of fact. On these facts, the doctrine of last clear chance does not apply.

Accordingly, the judgment appealed from is affirmed. *

AFFIRMED.


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    James R. RAMIREZ, Jr., et al. v. WHITE FLEET CAB CO., INC., et al.
    No. 8524.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Sidney D. Torres, III, George N. Bischoff, Jr., Chalmette, for James R. Ramirez, Jr., et al., plaintiffs-appellants.
    Lyman L. Jones, Jr. Metairie, Michael K. Fitzpatrick, Porteous, Toledano, Hainkel & Johnson, New Oreans, for White Fleet Cab Co., Inc., and George Barnes, Jr., defendants-appellees.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit for damages and personal injuries arising from an automobile accident. Plaintiff has appealed from a judgment dismissing his suit.

The accident occurred at the intersection of St. Louis and Basin Streets in the City of New Orleans. Plaintiff, Ramirez, was travelling on St. Louis Street towards the river, when he approached a stop sign facing him at Basin Street’s intersection. Defendant Barnes was in the median or neutral ground of Basin Street facing down St. Louis Street, away from the river. Barnes turned left onto Basin Street while plaintiff’s vehicle was' proceeding toward him and the vehicles struck, left fender to left fender.

Defendant contends he was proceeding down St. Louis away from the river, stopped at the stop sign at Basin, proceeded to the neutral ground and turned left. Plaintiff contends he stopped for his stop sign and proceeded to cross Basin, at which time defendant, whom he says had been driving on Basin Street, made a U-turn, crossed the median and ran into his car. A fare-paying passenger in Barnes’ cab left the scene and no investigating police officer testified at trial. Barnes, Ramirez and Ramirez’s wife were the only witnesses testifying as to the accident itself.

During defense counsel’s cross-examination of Ramirez, testimony was elicited contrary to Ramirez’s prior deposition testimony, and contrary to plaintiff’s previously filed answers to defendant’s interrogatories in several particulars. Chief among these were the surprising (to defendant) admissions that plaintiff, contrary to prior answers, had just recently been involved in an automobile accident and had seen two doctors for injuries from this just before trial, and that plaintiff had filed several lawsuits for personal injures and for Workmen’s Compensation claims.

When the defense counsel finished his case, before resting he asked for a continuance because of this surprising testimony of plaintiff so that he could investigate and subpoena the doctors, etc. The court denied this, saying it was unnecessary and rendered judgment for defendants, stating in oral reasons that the plaintiff had failed to prove any negligence by the defendant, since to find such negligence, he would have to believe fullhéartedly the testimony of Ramirez, which he found to be “throughout this trial . . . wrought with contradictions”.

Important was the location of impact; near the cemetery alongside Ramirez’s stop sign, as Barnes testified, or near the neutral ground, three or four lanes away as Ramirez testified. The court noted that no investigating police officer was produced to set the location impartially and that it could not believe Ramirez. In a perusal of the transcript we note several self-contradictions in Ramirez’s testimony, and many obvious contradictions to his prior deposition and answers to interrogatories, dealing with his employment, his applications for employment subsequent to the present accident, his injuries prior to the accident, even as to when he first saw defendant’s cab, which he variously places as in, from, or across the neutral ground, or striking him when he first sees it. We note similar inconsistencies in Mrs. Ramirez’s testimony, although on points unrelated to the accident.

The trial judge undoubtedly made a negative determination as to plaintiff’s credibility. Wide discretion is allowed him in determination of the credibility and truthfulness of witnesses and findings of fact based thereon will not be disturbed on appeal unless manifestly erroneous. Kelly v. Bonnet, 299 So.2d 884 (4th Cir. La.App. 1974); Kolb v. State, Dept. of Public Safety, Lic.C. & D.I.Div., 299 So.2d 877 (4th Cir. La.App. 1974).

Plaintiff further complains that the judge erred in stopping the trial when he did, arguing that it was prematurely completed by the judge, and that plaintiff was denied any rebuttal. He argues La.Code of Civil Procedure Article 1632, which provides for “Order of Trial”, but which we note further provides that this order may be varied by the trial judge. We note that plaintiff’s counsel objected to defendant’s motion for continuance at the end of his case, and did not attempt or offer to produce any rebuttal witnesses, testimony of documentary or other evidence. He stood silent, and did not object during or after oral rendition of judgment. He did not tell the judge at any time that he had any rebuttal, nor move to introduce any, and he cannot let the judge render decision without objecting or notifying him of any intentions as to rebuttal and then later, without even asking for new trial, object on appeal. Such a procedural right not asserted at trial is considered abandoned. See Holder v. Travelers Ins. Co., 159 So.2d 292 (2nd Cir. La.App. 1964), writ refused, 245 La. 954, 162 So.2d 10.

For these reasons, we affirm the judgment below.

AFFIRMED.


author: SCHOTT, Judge.

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    Isaac ADAMS v. CONTINENTAL CAN COMPANY, INC. and Kemper Insurance Companies.
    No. 8485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendants-third-party plaintiffs and defendants-appellees.
    Thomas M. Young and Emile L. Turner, New Orleans, for third-party plaintiff and defendant-appellant.

      Before STOULIG, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff, while unloading a truck owned by the Hertz Corporation (Hertz) and leased to Continental Can Company, Inc. (Continental), was injured when the wheel of a forklift truck he was operating inside the trailer went down into a hole in the floor causing him to fall.

He brought suit against Continental and its liability insurer, American Motorists Insurance Company (American). They in turn filed a third-party demand seeking indemnity or alternatively contribution from Hertz as a joint tort feasor. Hertz then brought a third-party demand against Continental and American seeking full indemnification, including reasonable attorneys’ fees in connection with the defense of the third-party demand. The trial judge awarded judgment in favor of plaintiff and against defendants, Continental and American, and dismissed all third-party demands. From that judgment Hertz has appealed and Continental and American have answered the appeal, so that the third-party demands are now under consideration.

Pursuant to the lease agreement between Continental and Hertz, Continental was to provide a policy of liability insurance to insure both Continental and Hertz with respect to liability arising out of the ownership, maintenance, use or operation of the vehicles furnished by Hertz to Continental. Continental secured such insurance from American, and the policy named Hertz as an additional insured.

Continental and American contend that Hertz breached its contract with respect to maintenance of the trailer by not repairing the floor despite notice from Continental to Hertz pursuant to the lease. Continental’s maintenance supervisor testified that he had reported that the floor was defective prior to the accident and Hertz had declined to repair it. Hertz relies on provisions of the lease which required that all such notices be in writing, except as to emergency repairs which could be reported by telephone. In such instances when Hertz failed to make such repairs Continental was entitled to make them and charge Hertz for same. Hertz takes the position that it committed no breach of the contract which caused the accident since Continental’s failure either to give written notice or to repair the floor under the emergency clause was the cause of the accident. We do not find it necessary to resolve this issue in order to decide the case, and for our purposes we will assume that Hertz breached its duty to repair the floor.

As far as Continental is concerned, it has incurred no monetary loss for which it may claim contribution or indemnity against Hertz. It was afforded a full defense by American under its policy and it therefore incurred no attorneys’ fees or other costs of defense. The claim of plaintiff was ultimately paid by American under the policy.

As to American, if its claim against Hertz is one in subrogation to the rights of Continental under its contract with Hertz, since Hertz is also the insured of American, the latter is not entitled to subrogate against Hertz. Boston Insurance Company v. Pendarvis, 195 So.2d 592 (La. App. 1st Cir. 1967). If American’s claim for indemnity against Hertz is considered one in tort or, as pleaded, a claim for contribution from a joint tort feasor, American is in the position of an insurer seeking recovery in tort against its own insured, which is precisely what Hertz was insured against in the first instance. Had plaintiff filed suit against Hertz initially in tort Hertz could have called upon American for defense, and had American failed to provide a defense Hertz could have collected attorneys’ fees and its costs of defense because of American’s breach of its insurance contract. By bringing this third-party demand, American has subjected Hertz to the very same risk, and we see no reason why Hertz is not entitled to indemnity.

The record does not contain any basis for our fixing an amount to which Hertz is entitled so that the case must be remanded to the trial court for the sole purpose of fixing the amount of the award in favor of Hertz against American under its claim for indemnity for attorneys’ fees and other costs.

Accordingly, the judgment insofar as it dismissed the third-party demand of Hertz against American is reversed and set aside, and there is judgment in favor of third-party plaintiff, The Hertz Corporation, and against third-party defendant, American Motorists Insurance Company, on the claim for indemnity in an amount to be fixed by the trial court. In all other respects, the judgment appealed from is affirmed. The case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


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    Duard LAWRENCE v. Mary Hinson LAWRENCE.
    No. 8512.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellant.
    Ronald J. Harris, Metairie, for plaintiff-appellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

The husband filed suit for separation from bed and board based upon allegations of cruel treatment and abandonment by the wife. She reconvened for separation alleging cruel treatment on his part. The trial court dismissed both the main and recon-ventional demands, applying the doctrine of comparative rectitude. Only the wife has appealed. The husband has neither appealed nor answered the appeal.

The wife specifies two errors, one, in the finding that her fault was equal to her husband’s, and two, in the failing to grant a separation from bed and board upon a finding of mutual fault, pursuant to Act 495 of 1976.

With respect to the first specification, the evidence consisting principally of the testimony of the parties is in hopeless conflict and we cannot say that the degree of fault on the husband’s part was any greater than on the wife’s.

However, we have concluded that the wife is entitled to a judgment of separation under the provisions of Act 495 of 1976 which added Art. 141 to the Civil Code, reading as follows:

“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.”

The husband contends that this act has no application because its effective date was October 1, 1976, and the separation between the parties occurred on May 24, 1976. He relies on Couvillion v. Couvillion, 346 So.2d 310 (La.App. 4th Cir. 1977) Douglas v. Douglas, 342 So.2d 1124 (La.App. 4th Cir. 1976) and cases from the other circuits which held that this act does not apply retrospectively. The instant case is distinguishable from all the cases cited in that it was tried on October 18, after the effective date of the act. The act which legislatively overrules the jurisprudential rule of comparative rectitude is remedial in nature. It was in effect when this case was tried and constituted a directive to the trial court as to the proper disposition of this case where the spouses were mutually at fault.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, Mary Hinson Lawrence, on her reconventional demand and against her husband, Duard Lawrence, decreeing a separation from bed and board between the parties based upon LSA-C.C. Art. 141.

All costs of these proceedings are assessed against the husband, Duard Lawrence.

REVERSED AND RENDERED.