author: BEER, Judge. LEMMON, Judge,

text:
    SADIE’S, INC. v. Sandi HITCHCOCK and Kris Cleveland d/b/a Sexy Sadie’s.
    No. 9409.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiff-appellant.
    Before REDMANN, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Sadie’s, Inc., owns and operates two established ladies’ clothing boutiques in Orleans and Jefferson Parishes. Defendants are the recent owners and operators of Sexy Sadie’s, a similar type boutique located in Jefferson Parish. Plaintiff sought preliminary injunctive relief and damages, alleging that Sexy Sadie’s was a deceptively similar name and thus constituted an unfair trade practice. After a hearing on the rule for injunctive relief, judgment was rendered from the bench in favor of defendants without written reasons. Plaintiff appeals. Appellee did not file a brief, and the matter has been submitted without oral argument.

The record confirms that Sadie’s, Inc. has been in business for twelve years, and that Sadie is the owner’s given name, duly registered as a trade name. “Sexy Sadie’s,” which was changed from “Casual Ms” in July of 1977, approximately one month after the business was purchased by defendants, allegedly derives its name from the song, “Sadie, Sadie, Married Lady,” and was not an intentional imitation of “Sadie’s, Inc.”

Plaintiff’s attorney testified that he mailed a certified letter of protest to defendants on November 10, 1977, objecting to the use of the deceptively similar trade name, but defendants denied receipt of same. The sender was unable to produce a return receipt.

Although plaintiff’s considerable prior use of the owner’s given name, “Sadie,” is not contested, priority of appropriation by use is not decisive of a party’s exclusive proprietary interest in a trade name. Only the subsequent appropriation of a deceptively similar trade name is prohibited, and priority of appropriation does not entitle the prior user to injunctive relief unless his trade name has been so exclusively identified with his business as to indicate his business alone. Appellant emphasizes her property right in her own name, citing White v. White, 68 So.2d 648 (La.App. 1st Cir. 1953), cert. denied February 15, 1954. However, the White case is inapposite, as proprietary interest in a surname is not at issue. “. . . The same principles which guarantee natural persons the right of use of the family name, subject to recognized limitations, may not be extended to given names or nicknames until, like other trade names, they have become well established and recognized by previous use.” Even so, a property right may exist in a name used over a considerable period of time in which business has been conducted and under which good will and reputation have been established. However, the burden of proof of secondary meaning rests on the plaintiff. United Distributor’s, Inc. v. United Distributing of Shreveport, Inc., 273 So.2d 871 (La.App. 2nd Cir. 1973). Thus, mere showing of use of a trade name for twelve years (including recordation of articles of incorporation and a certified trademark) does not conclusively establish the existence of secondary meaning or the public’s exclusive identification of plaintiff owner’s given name with her clothing outlets.

Assuming proprietary interest in the trade name “Sadie,” it is a prerequisite to granting injunctive relief that intentional misrepresentation be established on the part of the defendant. The burden of proof is, again, upon the plaintiff. Straus Frank Company, supra; accord, Metalock Corporation, supra.

Plaintiff’s owner testified that she received some inquiries from customers with regard to the relationship between her business and that of defendants, but no evidence of misrepresentation or deception was presented. The evidence of confusion was minimal, and the trial court may disregard circumstances of minimal confusion which are clarified by the defendant.

We conclude that the trial court has not manifestly erred, and the judgment is, accordingly, affirmed. Each party shall bear its own cost of this appeal.

AFFIRMED.

LEMMON, Judge,

concurs and assigns reasons.

I am inclined to the view that likelihood of confusion, rather than actual fraud or misrepresentation, should be the proper standard for granting injunctive relief, notwithstanding the language of Straus Frank Co. v. Brown, above, especially when the trade name does not involve the second user’s given or family name. See La.L.Rev. 529, footnote 125 (1977); T.G.I. Friday’s, Inc. v. International Restaurant Group, Inc., 405 F.Supp. 698 (M.D.La.1975). This case, however, does not reach that problem.

This record fails to establish either likelihood of confusion or actual misrepresentation. There is no credible evidence of loss of customers, confusion of customers, reduction of plaintiff’s business, or misrepresentation on defendants’ part. By either standard injunctive relief was properly denied.

      . Couhig’s Pestaway Company, Incorporated v. Pestaway, Inc., 278 So.2d 519 (La.App. 3rd Cir. 1973). Metalock Corporation v. Metal-Locking of Louisiana, Inc., 260 So.2d 814 (La.App. 4th Cir. 1972), writ denied, 262 La. 189, 262 So.2d 788 (1972).

      . LSA-R.S. 12:23. Registration of a trade name under LSA-R.S. 51:222 and 223, as amended by Acts 1968, is prima facie evidence of registrant’s ownership of the mark and her procedural right to enjoin use of the name by a newcomer. Gallo v. Safeway Brake Shops of Louisiana, Inc., 140 So.2d 912 (La.App. 4th Cir. 1962). In the case at bar, plaintiff’s statutory right of injunction did not vest until after defendants had commenced operating under the trade name “Sexy Sadie’s.”

      . 87 C.J.S. § 90 Trade Marks, Trade Names and Unfair Competition, pp. 321-22; Cf. Straus Frank Company v. Brown, 246 La. 999, 169 So.2d 77 (1964).

      . 87 C.J.S. Trade-Marks, Etc. § 107, p. 363; citing Kay Jewelry Company of Chattanooga v. Morris, 26 Tenn.App. 285, 171 S.W.2d 410 (1942).

      . For application by analogy, R.S. 51:212(6) prohibits registration of a trade name which so resembles an unabandoned trade name previously used by another “as to be likely . . . to cause confusion or mistake or to deceive”.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Greg FONTENOT v. MONSANTO COMPANY et al.
    No. 9447.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Leach, Paysse & Baldwin, Michael A. Britt, New Orleans, for defendant-third party plaintiff-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Barkley, Jr., Jack M. Alltmont, Michael R. Allweiss, New Orleans, for defendant-third party defendant-appellee.
    Before REDMANN, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff, Fontenot, sued Monsanto Company (hereafter, “Monsanto”), Ford Motor Company, River Parish Maintenance, Inc. (hereafter, “River Parish”), and XYZ Insurance Company to recover damages for injuries sustained as a result of allegedly being thrown from and rolled over by a Ford tractor which he was driving. The tractor was owned by Monsanto. At the time of the accident, plaintiff was working within the course and scope of his employment by River Parish cutting grass on the Monsanto premises, in accordance with a contract between Monsanto and his employer, River Parish. While passing beneath a tree, the tractor’s overhead roll bar came into contact with a tree branch which resulted in Fontenot being knocked off his tractor seat. It is alleged that the tractor continued to move forward with the bush hog still in operation, so that the tractor wheels rolled over him, causing severe injuries.

Fontenot thereafter dismissed his employer, River Parish Maintenance, from the tort suit, and the workmen’s compensation insurer of River Parish Maintenance intervened. Monsanto filed a third party demand against River Parish, alleging a contractual indemnity by reason of certain specific provisions of the maintenance contract between Monsanto and River Parish. River Parish then filed exceptions of no right and no cause of action and/or a motion for summary judgment, contending, inter alia, that its contractual obligation of indemnity did not specifically provide for indemnity for Monsanto’s alleged negligence and that no other basis for their liability existed or could exist. Following a hearing on the motions, judgment was rendered maintaining the exception of no right of action and thus dismissing Monsanto’s claim against River Parish. As its basis for sustaining the exception of no right of action, the trial court concluded, in written reasons, that an employer can not contract away his statutory exemption from tort liability for injuries to an employee, citing LSA-R.S. 23:1032 (1950). Monsanto appeals.

Appellant’s argument centers on the contention that R.S. 23:1032, et seq., does not unilaterally preclude express contractual indemnity agreements between a workmen’s compensation employer and an alleged third party tortfeasor; and urges that the right to contractual indemnity from River Parish is contingent upon the jury’s resolution of the factual issues determinative of Monsanto’s alleged negligence, especially if it be only vicarious, derivative, constructive or secondary.

River Parish apparently acknowledges the basic validity of contractual liability vel non, but contends that no such agreement has been here confected which exposes them to Monsanto’s third party claim. River Parish seems to be contending that the trial court was correct in simply determining that they had not, by the written agreement hereafter to be discussed, contracted away their “exclusive remedy” defense and, thus, could not be required to respond to Monsanto’s claim which results — directly— from Fontenot’s injury during the course and scope of his employment by River Parish.

The contract between the parties (drafted by Monsanto) provides for the obligation of the “Contractor” (River Parish Maintenance) to indemnify Monsanto as follows:

“17. The Contractor agrees to indemnify and save Monsanto harmless against any and all loss, damage, costs and expenses which it may hereafter suffer or pay out by reason of any claims, actions and rights of action, in law or equity, arising out of the performance of the Work and resulting from injuries or damage occurring to, or caused in whole or in part by, the Contractor (or his employes), any subcontractor (or its employes), or any person, firm or corporation (or the employes thereof) directly or indirectly employed or engaged by either the Contractor or any subcontractor.
“The Contractor agrees to make full reimbursement for any damage to existing property or property being installed, including loss of use thereof, which may arise from operations under or in connection with the Contract by the Contractor or by any of his subcontractors or by any person, firm or corporation directly or indirectly employed or engaged by either the Contractor or any of his subcontractors. Monsanto agrees, however, that the Contractor shall not be liable to Monsanto for loss of use resulting from damage to property under the Contractor’s care, custody or control and waives all right to recover from the Contractor for damage Arising (sic) from the perils set forth and defined in the standard fire and extended coverage insurance policy.”

Paragraph 18 of the contract requires the “Contractor” to obtain employer’s liability insurance for employees who are not protected by the workmen’s compensation statute, public liability insurance, and automobile liability insurance.

River Parish further contends that the purported indemnity agreement is vague, seeking, thus, to invoke the codal rule of strict construction of ambiguities against the drafter of the contract. La.C.C. art. 1958 (1870); Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966); Mills v. Fidelity & Casualty Company of New York, 226 F.Supp. 786 (W.D.La.1964). They argue further that the ambiguity in paragraph 17 is clarified in favor of their contentions by reference to the paragraph titled “insurance provisions,” contending that Monsanto’s requirement of employer’s liability insurance for those employees not covered by workmen’s compensation evidences Monsanto’s intent to limit River Parish’s obligation of indemnity to workmen’s compensation-type benefits rather than tort liability.

River Parish expresses the premise that there are only three possible and material trial court findings with respect to Fonten-ot’s tort claim: a) Monsanto without fault; b) Monsanto solely at fault; and c) concurrent fault of Monsanto and a third party.

They argue (a) that if Monsanto is not east in judgment for plaintiff’s injuries, they (Monsanto) would obviously have no cause of action for indemnification and (b) that the indemnity provisions do not include indemnification for loss resulting from Monsanto’s sole negligence where such intention has not been expressed more precisely, citing Green v. Taca International Airlines, 304 So.2d 357 (La.1974); Arnold v. Stupp Corp., 205 So.2d 797 (La.App. 1st Cir. 1967); contra, Jennings v. Ralston Purina Company, 201 So.2d 168 (La.App. 2nd Cir. 1967).

We certainly agree with the first observation (a) and, to some extent, with the second observation (b), although we are not obliged, at this point in the proceedings, to decide as a matter of law whether the contractual language between the parties lacks the requisite specificity to provide Monsanto with a cause of action for indemnification if it be determined, at the trial, that Monsanto is solely at fault.

The plot materially thickens when we consider (c), labeled by River Parish’s able counsel as “concurrent fault of Monsanto and a third party.”

A finding of vicarious (or derivative, or constructive, or secondary, take your choice) negligence on the part of Monsanto and actual negligence on the part of River Parish, coupled with a fair reading of River Parish’s hold harmless agreement with Monsanto, could, possibly, we believe, result in River Parish’s tort exposure to Monsanto.

We are much influenced by Bagwell v. South Louisiana Electric Coop Association, 228 So.2d 555 (La.App. 3rd Cir. 1969), which held that there could be no indemnity from the workmen’s compensation employer by the third party in the absence of a contractual relationship between the parties. The court stated:

“Although the ‘exclusive remedy’ provision of the Workmen’s Compensation Act relieves a statutory employer from the obligation to indemnify under the ‘tort-indemnity’ theory, we think an obligation on the part of the employer to indemnify may be created by or may arise from a contract of indemnity entered into between the employer and the party demanding indemnification. We made that observation in Hebert v. Blankenship, 187 So.2d 798, supra.”

The court did not enforce indemnity in Bagwell, but the reason seems to be only that there was not contractual language clearly evidencing an intent by the employer to indemnify the alleged third party tort-feasor. That is not the case here. River Parish is signatory to a contract containing provisions which require it to indemnify and hold harmless Monsanto Company from claims and actions arising out of its performance of the “work” required by the contract. Factual issues determinative of the contractual agreement are yet totally unresolved.

Though it is conjecture to perceive of factual circumstances which, if proven, would clearly support the effective enforcement of River Parish’s agreement to indemnify Monsanto, we feel constrained to observe that it is also conjecture to perceive what the parties intended by the wording of the indemnity agreement if not to indemnify.

One cannot gainsay the observation that River Parish’s categorically stated willingness to “save Monsanto harmless” from claims, etc., which arise “out of the performance of the work (undertaken by River Parish for Monsanto) resulting from injuries ... to employees (such as Fon-tenot) . . .” is a classic example of contractual liability or indemnification.

The exclusiveness of Fontenot’s remedy against his employer, River Parish, is of no significance in interpreting the contractual commitment which River Parish has made to Monsanto. Companies who make these kind of indemnity agreements (and insurers who insure, for some agreed upon premium, their validity) have, we believe, made a calculated business decision so to proceed.

As long as Fontenot persists in his claim for damages arising from the performance of his duties at the Monsanto facility while he was employed by River Parish, Monsanto has an equal right — under the terms of the particular contractual language contained in the agreement between Monsanto and River Parish — to persist in its third party claim against River Parish for indemnification, Fontenot’s exclusive remedy against River Parish (limited to workmen’s compensation) to the contrary notwithstanding.

The factual issues concerning Monsanto’s alleged exposure are, as yet, unresolved. Accordingly the dismissal of Monsanto’s claim for indemnity against River Parish was manifestly erroneous.

The judgment of the 29th Judicial District Court for the Parish of St. Charles is reversed, and the exceptions and motions are overruled. The cost of this appeal is to await final disposition of the litigation.

REVERSED, EXCEPTIONS OVERRULED.

      . For an excellent dissertation on this and other pertinent points, see Louisiana Bar Journal, September 1978/Vol. 26, No. 2, p. 90, “Contractual Indemnity: Interpretation and Effect,” by Joel L. Borrello, Esq.

      . Our review of the pleadings provokes the observation that pretrial discovery procedure could, perhaps, demonstrate a basis for the granting of summary judgment in behalf of third party plaintiff, Monsanto, and, thus, obviate that company’s claim against River Parish.


text:
    Mrs. Joan Rulis MITTELBRONN v. Ernest J. MITTELBRONN, III.
    No. 9455.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellant.
    Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for plaintiff-appellee.
    Before REDMANN, LEMMON and BEER, JJ.
   BEER, Judge.

The parties to these proceedings were judicially separated in February, 1973. Ap-pellee, Mrs. Joan R. Mittelbronn, was awarded custody of their four minor children, and alimony pendente lite was fixed in the amount of $500. In August, 1975, the trial court suspended the payments, based on evidence that appellant had lost his position as a dentist with Charity Hospital and remained unemployed. In April, 1976, the parties were divorced, at which time the court ordered monthly child support payments in the amount of $200.

In September, 1977, following another hearing on appellee’s rule to increase child support from the $200 award noted above, the trial court placed Dr. Mittelbronn under mandate to elevate his income within six months. However, about six weeks later, appellee filed a second rule to increase. Acting on the second rule, in November, 1977 (after an evidentiary hearing), the trial court ordered monthly support payments to be increased from $200 to $6Q0. Defendant-appellant here appeals from that November, 1977 order, seeking reinstatement of the $200 monthly rate. He alleges that the increase is unwarranted because (1) plaintiff-in-rule failed to carry the burden of proof of change in circumstances, and (2) the child support judgment exceeds his ability to pay and infringes on his right to engage in private dental practice.

Appellant contends that plaintiff-in-rule failed to prove a change in circumstances since the April, 1976 divorce judgment, the order to increase apparently being based only upon the fact that time had elapsed which should have enabled Dr. Mittelbronn to elevate his income so as to provide reasonable child support.

Though it is correct that the party seeking modification of a child support award is generally required to allege and prove a “change in circumstances,” Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), judicial focus on the totality of pertinent circumstances is in accord with La.C.C. article 231, which provides:

“Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.”

The trial court received into evidence an itemized list of the children’s monthly living expenses, totaling $1,542.70. Mrs. Mittel-bronn testified that her monthly net income as a nursing instructor amounted to $740, and that $215 of the $289 monthly house note is allocated to the four children. She also testified that due to the children’s necessitous circumstances, she is indebted to various relatives in the amount of $7,000. Although Dr. Mittelbronn testified that his private dental practice averaged only about eight patients weekly and was his sole source of income, he admitted that he had recently paid $3,400 in attorney fees; $5,000 to repay a loan from Dr. Sinclair; $3,000 to Davidson Dental Supply Company; $1,000 travel expenses; and $8,000 to his mother as partial repayment of a loan. Dr. Mittel-bronn has remarried and testified that most of their current living expenses are actually paid for by his present wife (for which he signs IOU’s) and that he pays monthly apartment rental of $175 (also by IOU) to his mother (and lessor). Defendant demonstrated a remarkable lack of knowledge of his business expenses and his present living expenses.

Mrs. Mittelbronn’s petition alleged increased expenses since the April 1976 judgment. Though the record appears devoid of evidence of child support expenses upon which the reduction to $200 was based when set at that time, an earlier judgment for child support (January, 1974) in the amount of $500 was apparently based on evidence of itemized monthly expenses of $1,042.75. Thus, on November 18, 1978, when the trial court received evidence of expenses amounting to $1,542.70 monthly, a change in circumstances from the last hearing at which evidence of need was adduced was demonstrated. Furthermore, the able trial judge was quite familiar with the circumstances of the parties and obviously concluded from all the evidence that the children had consistently required much more than $200 per month and that now Dr. Mittelbronn was fully capable of providing the increase.

Though the record is also devoid of evidence regarding Dr. Mittelbronn’s April 1976 income, changes in his circumstances since April, 1976 were established:

1) Increasing income from private practice.
2) Remarriage (subject to a pre-nuptial agreement).
The alleged marriage contract was not produced, and it is conjectural to attempt to determine the extent (if any) of the trial court’s reliance on the second wife’s admitted contributions to Dr. Mittelbronn’s present living expenses.

What is most apparent is the trial court’s familiarity with Dr. Mittelbronn’s negligible efforts to earn an income commensurate with his potential and with the needs of his children, and, since the judgment was sufficiently based upon a showing that his overall financial circumstances supported the increase necessary to meet the clearly proven needs of his children, we find no manifest error in the action taken.

Insofar as actual amount of increase is concerned, such award is within the sound discretion of the trial court and will not be disturbed unless so manifestly erroneous as to constitute an abuse of discretion. Ducote v. Ducote, 339 So.2d 835 (La. 1976). Child support should be granted in proportion to the needs of the children and the totality of circumstances of those who are to pay.

We find no abuse of the trial court’s great discretion in setting the amount, and, accordingly, the judgment is affirmed, at appellant’s cost.

AFFIRMED.

      .Mrs. Mittelbronn appealed the August, 1975 suspension, and on August 31, 1976, this court reversed and reinstated the $500 pendente lite award for the period of suspension prior to the divorce. Mittelbronn v. Mittelbronn, 337 So.2d 608 (La.App. 4th Cir. 1976).

      . That rule was continued as an open matter to March 31, 1978.

      . Effective as of November 15, 1977.

      . The court noted his present wife’s employment as a lab technician, as well as her income from rental property. Defendant testified to a recorded pre-nuptial agreement with his second wife, without detail as to stipulations.

        . These parties have appeared before the trial court on numerous occasions: six judgments were rendered by Judge Duran during the period 1973-1977; in addition to numerous rules to accumulate past due child support pendente lite.


text:
    MONAHAN BROS., INC. v. Robert GODORO and Robert Godoro & Associates, Inc.
    No. 9664.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Robert T. Wakefield, New Orleans, for plaintiff-appellant.
    Ellis Jay Pailet, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Monahan Bros., Inc., sued Robert Godoro & Associates, Inc. and Robert Godoro, individually, for $1,704 — its charge for printing and mailing services rendered during the period of October 30, 1975 through January 21,1976. Robert Go-doro, individually, filed a general denial, and default judgment was entered against the corporation. Trial on the merits resulted in judgment, from the bench, in favor of the defendant. In oral reasons, the trial court concluded that Godoro was not the individual with whom plaintiff transacted business; that the testimony established that a purchase order bearing the corporate name was sent to plaintiff; that the plaintiff-creditor had, or should have, a duty to investigate the status of its debtors; and that there was no evidentiary basis for piercing the corporate veil. Subsequently filed written reasons refer to the oral reasons noted above.

Plaintiff has instituted a timely devolu-tive appeal alleging that the trial court erred in a) placing the burden of inquiry into corporate status on the creditor; b) relying on testimony rather than documentary evidence of purchase orders, in contravention of the Best Evidence Rule; and c) in giving insufficient weight to the eviden-tiary rule that defendant’s unexplained failure to call material witnesses (defendant’s sales manager and secretary) creates a presumption that the witnesses’ testimony would have been adverse. Appellee’s primary contention is that the corporate identity was sufficiently manifest during the course of all pertinent business dealings.

Godoro denied that he ordered any printing from plaintiff, and plaintiff’s sales manager testified that he spoke to Godoro only once and then in connection with a requested speedy delivery. The sales manager further testified that all of his contacts were with Lynn Nelson, who operated her own commercial art business and did certain work for the corporation, including choosing the printer. Subsequent to Nelson’s selection of a printer, purchase orders were issued by Godoro’s secretary. Pretermit-ting other issues, the record supports affirmation of the trial court’s factual finding that Robert Godoro was not the corporate agent who had direct business dealings with appellant. Thus, there was no basis established which might require him to have made affirmative disclosures of corporate status. Since fraud has been neither alleged nor proved insofar as Godoro’s actions are concerned, we need go no further in our review of the record.

Godoro’s exposure to personal liability depends, we think, on the trial court’s resolution of contested material issues of fact regarding the placing of the printing orders. We cannot conclude, from this record, that the trial court manifestly erred in those critical resolutions, and, accordingly, the judgment is affirmed, at appellant’s cost.

AFFIRMED.

      . City Stores Company v. N E I Corporation, 357 So.2d 1364 (La.App. 4th Cir. 1978); Smith v. Moore, 347 So.2d 316 (La.App. 4th Cir. 1977); Altex Ready-Mixed Concrete Corp. v. Employers Commercial Union Insurance Company, 308 So.2d 889 (La.App. 1st Cir. 1975), writ refused May 30, 1975. In the instant case, fraud has not been alleged or proved. There was no evidence of defendant’s status as a shareholder. Hence, the alter ego theory is equally inapplicable. See Hughes Realty Company v. Pfister, 245 So.2d 757 (La.App. 4th Cir. 1971).


author: GARRISON, Judge.

text:
    Diana ADAMSKI v. John N. BURDELL and the American Road Insurance Co.
    No. 9403.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Philip S. Brooks, City Atty., Anita Con-nick, Asst. City Atty., for defendant-appellant, City of New Orleans.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for defendant-appellee United Services Auto. Assn.
    Klein & Rouse, Henry L. Klein, New Orleans, for plaintiff-appellee Diana Adamski.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   GARRISON, Judge.

This lawsuit arose out of a two-car collision between a vehicle driven by plaintiff, Diana Adamski, and owned by Delbert Hale, and a vehicle driven by defendant John Burdell. The accident occurred between 5:30 and 6:00 p. m., April 5, 1975, on Barracks Street near its intersection with North Peters Street in New Orleans.

Barracks is a one-way street, beginning at North Peters and heading in the direction of the lake. Plaintiff Adamski was proceeding along North Peters toward Esplanade and turned left onto Barracks when she was struck by Burdell’s vehicle, which was traveling the wrong way on Barracks. Burdell denied any negligence, on the ground that Barracks Street was not properly marked as a one-way street at that point.

Neither vehicle suffered serious damage, but Ms. Adamski claimed severe whiplash injuries, which had not cleared up by the time of trial (two full years after the accident) and which may have resulted in a degenerative disc requiring surgery.

Plaintiff Adamski originally sued both Burdell and American Road Insurance Company as his insurer. When it was determined that Burdell was an uninsured motorist, United Services Automobile Association, the uninsured motorist carrier for Delbert Hale’s automobile, was added as defendant. In a subsequent amended petition the City of New Orleans was named as a defendant for failure to sign Barracks Street properly as a one-way street in that area. The City of New Orleans then third-partied U.S.A.A. for indemnification or, alternatively, contribution in the event that it was found liable.

After a trial on the merits, the court below found that where Mr. Burdell entered Barracks Street, at French Market Place, there was no sign indicating that Barracks was a one-way street, and under the circumstances there was no way that he could have been aware that he should not turn right onto Barracks Street and proceed toward the river. Conversely, Ms. Adamski was familiar with the area and knew that Barracks Street was one-way, so she had no reason to believe that she would encounter a vehicle coming out of Barracks Street the wrong way. As a result, the trial court held that both Adamski and Burdell were exercising reasonable care, and that neither one was guilty of negligence causing the accident. The judge concluded that the failure of the City of New Orleans to sign Barracks Street properly so as to designate it as a one-way street was the proximate cause of the accident. Accordingly, judgment was rendered in favor of the plaintiff against the City of New Orleans, in the amount of $25,000 general damages, $4,000 loss of income, and $808.49 in medical expenses. All other claims were dismissed.

This appeal was lodged by the City of New Orleans alone, urging that the trial court erred in concluding that the City breached its duty to erect a one-way street sign at the intersection of Barracks Street and French Market Place. The City further argues that even assuming that it breached a duty, that duty was not such that its breach would render the City liable in damages. In addition, the City appeals the trial judge’s award of damages on the ground that it was excessive and an abuse of his discretion.

Other than the extent of the injuries claimed by plaintiff, the facts in this case are not really in dispute. There was some disagreement as to the precise point of impact: whether Adamski was making or had completed her turn when the accident occurred. If the turn had been completed,then conceivably either driver could have had time to avoid the accident. However, the trial judge found, and there is more than sufficient evidence in the record to support his conclusion, that the accident occurred before Adamski had completed her turn. Therefore, neither driver was found negligent in that respect and, in the absence of manifest error, that finding will be sustained. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The legal questions presented are more perplexing. Was defendant Burdell guilty of negligence for travelling the wrong way on a one-way street, even though he could not reasonably have known of the one-way designation due to the absence of a sign at the intersection of Barracks and French Market Place? Should the rule that “ignorance of the law is no defense” be applicable here? Under the circumstances, was the City of New Orleans negligent for failing to erect a one-way sign at the crucial intersection here, or was the placement of a one-way sign there purely discretionary? Even if the City was negligent in performance of its duty, was there a duty owed directly to these individuals, or to the public in general?

The evidence established that the Bur-dells were in the area to shop at the Flea Market. They had driven down North Peters toward Esplanade until they reached Barracks Street and turned left. There were no signs at this intersection that would have indicated that Barracks was a one-way street. They made another left turn at the first opportunity, at French Market Place. There were no one-way signs at this intersection to indicate that either Barracks or French Market Place was a one-way street. They did not go more than a car-length or two on French Market Place before finding a perpendicular parking place on the lake side of French Market Place.

When the Burdells finished shopping, they returned to their car, backed out of their parking place onto French Market Place, heading back toward Barracks. When they reached the intersection they discussed which way to turn. There were no signs indicating Barracks as a one-way street, so they decided to turn right, partially due to the presence of a “no through traffic” sign on the corner of French Market Place and Barracks Street, which indicated to the Burdells that they should not proceed further toward the lake on Barracks Street.

The City argued at trial that because Barracks was one-way beginning at North Peters and French Market Place was one-way beginning at Barracks, no one-way signs were necessary at those intersections. According to City policy, it is purely discretionary to erect one-way signs at the beginning of a one-way street because at that point drivers do not have the choice of proceeding in the opposite direction. Mr. Eugene Trayhan, Traffic Engineer for the City of New Orleans, testified that only about one-half the one-way streets are signed at their beginnings.

Each of the two streets in question, Barracks and French Market Place, is designated as one-way, and signed as such, at its first intersection where drivers would have a choice. Because no traffic should be proceeding on French Market Place toward Barracks, it was argued that no one-way sign was required at that point. This argument, however, overlooks the possibility and great likelihood of a driver unfamiliar with the area doing precisely what the Burdells did. If one parks in the first block of French Market Place, where parking is provided, one has had no opportunity to discover that either French Market Place or Barracks Street is a one-way street.

At this point, it is also important to note that French Market Place is not listed as a one-way street in the New Orleans City Code. See New Orleans City Code, 1956, § 38 — 277. Even if it is properly signed as such further down the street, the failure to designate it as such in the City Code section in which all one-way streets in the City are listed appears to be a gross oversight, and it further highlights the need for a one-way sign at the intersection of Barracks and French Market Place.

The City argues additionally that Mr. Burdell was negligent for failing to determine in which direction the traffic flowed. It is true that motorists have the duty to determine that it is safe to proceed before doing so, but it is undisputed that Burdell stopped and debated which way to turn. No other traffic which would give an indication of the proper direction was passing at the time. As the trial judge found, Mr. Burdell was not negligent in the manner in which he proceeded.

Further, John Burdell was not guilty of violation of the City Code (§ 37-277) for proceeding the wrong way on a one-way street. The City argues the rule that ignorance of the law is no defense, which would impute knowledge of all the City’s one-way streets listed in § 38-277 upon motorists, regardless of the presence of one-way signs. This might be true if it were not for the specific language found in §§ 38-93(a) and 38-94 of the City Code, which read as follows:

“(a) Whenever any law of the city designates any one-way street or alley, the City Traffic Engineer shall place and maintain signs giving notice thereof, and no such regulations shall be effective unless such signs are in place. Signs indicating the direction of lawful traffic movements shall be placed at every intersection where movement of traffic in the opposite direction is prohibited.” (Emphasis added.) New Orleans City Code, 1956, § 38-93 (as amended 6-6-68).
“Upon those streets and parts of streets and in those alleys described in Schedule I, Section 38 — 277 contained in this chapter and made a part thereof, vehicular traffic shall move only in the indicated direction when signs indicating the direction of traffic movement are erected and maintained at every intersection where movement in the opposite direction is prohibited.” (Emphasis added.)

The above ordinances specifically require notice, by means of one-way signs, to motorists, before any violation can occur.

It is the same ordinance cited above, § 38 — 93(a), which requires that liability be imposed upon the City of New Orleans. The City states that the placing of signs is a discretionary function of the City, not a duty for which the City may be held liable in the event of an accident which may have been prevented by the proper placement of a sign. This is correct as a general proposition. This general discretion is clearly set out in § 38-38 of the City Code, and it has been reiterated in numerous cases in the courts. See Cangiamilla v. Brindell-Bruno, 210 So.2d 534 (La.App. 4th Cir. 1968); Pick ering v. Washington, 260 So.2d 340 (La.App. 1st Cir. 1972), writs refused May 25, 1972.

However, in the case of one-way-street signs, the broad discretion given the Traffic Engineer in § 38-38 is countermanded by the specific and mandatory language found in § 38-93(a): “[T]he City Traffic Engineer shall place and maintain signs . . . (Emphasis added.) This mandatory language places an affirmative duty on the City much more onerous than the purely discretionary language of § 38-38 which is generally applicable.

This conclusion makes sense for application to the erection of one-way-street signs, as it is easily analogous to the general duty with respect to the erection and maintenance of street signs. As was pointed out in Cangiamilla v. Brindell-Bruno, supra, at 537:

“The City urges that no negligence can be implied when in the lawful exercise of its police power, the City or its agents declines to erect specific traffic controls or even re-establish one that has been accidentally knocked down. It is further argued that the judiciary cannot superimpose its authority on the City’s police power to establish traffic controls. With this assertion we agree, but we do not think the City chose to leave the intersection uncontrolled as it may lawfully do within its police power.”

The City has no duty to erect signs or other traffic controls, but once it has undertaken such a duty and erected a traffic control, it has assumed the duty to maintain such control and may be held liable for its failure to do so.

In this case the City has chosen to designate Barracks Street as a one-way street, but has failed to adequately sign it at its intersection with French Market Place, so as to notify the public. The City had no duty to designate Barracks or any other street as a one-way street, but once so designated, the City has an affirmative duty to properly maintain it as one. Once this analogy is used and this duty is established, the principles of municipal liability espoused in Dufrene v. Guarino, 343 So.2d 1097 (La.App. 4th Cir. 1977), are not applicable.

With regard to whether U.S.A.A., the uninsured motorist carrier, should be held liable, the above conclusions of fact and law make it clear that it should not be. An uninsured motorist carrier cannot be held liable unless the uninsured motorist in question was, in fact, at fault, through negligence or otherwise. Since it has been determined that defendant Burdell was not negligent in the manner in which he was proceeding on Barracks Street as a matter of fact, and was not guilty of violation of a City ordinance as a matter of law, U.S.A.A. cannot be held liable to plaintiff Adamski.

The plaintiff has not appealed from the dismissal of defendants Burdell and U.S. A.A. by the trial court. Thus, because that judgment cannot be disturbed by this appeal, the only question presented is whether U.S.A.A. might be liable to the City of New Orleans for contribution. Under the law applicable to uninsured motorists, even if Burdell was found negligent in addition to the City, such a result is impossible.

As is well-supported in the brief filed by appellee U.S.A.A., an uninsured motorist carrier cannot be held liable to co-defendant tortfeasors for contribution. This principle, and the relationship between an uninsured motorist carrier, the insured, and the uninsured motorist, was first defined by our Supreme Court in Booth v. Fireman’s Fund Insurance Co., 253 La. 521, 218 So.2d 580 (1968). Following Booth, the Fourth Circuit found in 1977 that the uninsured motorist carrier is not the insurer of the uninsured motorist, and therefore cannot be liable for contribution to joint tort-feasors.

“The liability of an uninsured motorist carrier is based solely on the contract of insurance between the carrier and its insured, and the insured is the only party possessing the right to make a claim under his uninsured motorist provision. To hold otherwise would have the effect of converting the uninsured motorist provision into liability insurance covering the uninsured motorist. .
“Here, since the original plaintiff is the only party who may seek benefits from Hartford under the uninsured motorist coverage of his policy, Hartford is not obliged to contribute to plaintiff along with third party tort feasors, one or more of whom may be uninsured motorists. This result is dictated by LSA-R.S. 22:1406 D(4), which gives a carrier the right to recover payments made under the uninsured motorist provisions of its policy from the proceeds of any judgment ‘resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.’ If, as argued by third party plaintiffs, Hartford could be held for contribution among the third party defendants to satisfy a judgment in favor of the original plaintiff, Hartford would have a right to be reimbursed from the proceeds of that very judgment to the extent of the amount of its contribution.” Youngs v. Champagne, 348 So.2d 126, 127—128 (La.App. 4th Cir. 1977), writ refused Oct. 26, 1977.

Thus, it seems clear that since the determination of John Burdell’s freedom from fault has not been appealed by plaintiff, and particularly if the City of New Orleans is found liable, U.S.A.A.’s liability is no longer at issue in any way.

Turning to the question of quantum raised by the City on appeal, it is submitted that the amounts awarded by the trial judge were supported by the evidence. Although the award of $25,000 in general damages might be considered to be on the high end of the scale, it is not outside the limits of the trial judge’s great discretion. C.C. 1934(3).

Likewise, the award of $4,000 for lost wages and loss of earning capacity, in addition to the $808.49 for medical expenses, is not excessive. Plaintiff produced sufficient evidence of her income both before and after the accident to support an award for this loss.

The judgment in favor of plaintiff, Diana Adamski, and against defendant, the City of New Orleans, is affirmed.

AFFIRMED.

      . That section reads as follows:
      “The City Traffic Engineer shall place and maintain traffic-control signs, signals and devices when and as required under the traffic laws of the city to make effective the provisions of said laws, and may place and maintain such additional traffic-control devices as he may deem necessary to regulate traffic under the traffic laws of the city or under state law, or to guide or warn traffic.” (Emphasis added). New Orleans City Code, 1956, § 38-38 (as amended 6-6-68).

      . In that case, it was held that the City was not liable for injuries sustained in a fire as a result of a negligent fire inspection by the City. The reasoning was the fire inspections were part of a duty to the public in general, not to any given individual. Although the erection of one-way-street signs might be considered a duty to the public in general, rather than to the individuals involved here, the Court of Appeal also stated that the City had no duty in that case to protect citizens from the negligence of others. When it is remembered that there was no negligence on the part of anyone else here, only the negligence of the City, the cases can be distinguished.


text:
    Mary Etta WOLVERTON, guardian and adult next friend of the minor, Judy Elaine Wolverton, Age 11 v. CITY STORES COMPANY et al.
    No. 9432.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Charles R. Maloney, New Orleans, for plaintiffs-appellants-appellees Mary Etta Wolverton, etc.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for defendant-appellee-appel-lant Otis Elevator Co.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Basser, New Orleans, for defendant-appellee City Stores Co.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   GARRISON, Judge.

This suit was originally brought by Mary Etta Wolverton, individually and on behalf of her daughter Judy Elaine Wolverton, who was eleven years old in August 1968 when she was injured by a fall on the “up” escalator in the Maison Blanche store on Canal Street in New Orleans. By the time of the trial in 1977, Judy Wolverton was 19 years old and was substituted as party plaintiff on her own behalf by oral motion. Her mother, however, remained a party plaintiff to recover the special damages incurred by her.

Suit was originally brought in the U.S. District Court for the Eastern District of Louisiana under diversity jurisdiction, inasmuch as the Wolvertons are residents of Hattiesburg, Mississippi. Made defendants were City Stores Company (of which Mai-son Blanche is a subdivision) and Otis Elevator Company (as manufacturer and maintenance contractor for the escalator in question). The claims against both defendant were dismissed for lack of jurisdictional amount.

The instant suit was filed originally against City Stores alone. Otis was added some three years later in a supplemental and amended petition. In addition, City Stores filed a third-party petition against Otis for indemnification or contribution. A subsequent amendment added the City of New Orleans as a defendant; however, as an exception of no cause of action was maintained in favor of the City, and no one has complained of that judgment, that issue is not before us.

The matter was tried on September 26, 1977, and judgment was rendered on September 30, 1977 against defendant Otis alone, in favor of Judy Wolverton in the amount of $6,000, and in favor of her mother for $224. Plaintiffs’ suit against City Stores was dismissed, as was the third-party demand of City Stores against Otis. Defendant Otis has appealed from the judgment against it, and plaintiffs have appealed the dismissal of defendant City Stores.

With regard to the appeal by the defendant Otis, based upon the claim that prescription accrued on the claim against it, it is noted that its exception of prescription was filed in the trial court, but the record does not reflect what, if any, ruling was ever made on the exception. On its face this exception would appear to have merit since Otis was not joined as a defendant until some three years after the suit was originally filed, and no joint liability between Otis and City Stores was found by the trial court. Nonetheless, prescription was never reurged by Otis until the week before oral argument in this Court. After consideration of the entire case, however, we have concluded that the matter of prescription is not a viable issue here. In the final analysis — as is indicated later in this opinion — it is the conclusion of this Court that any liability on the part of Otis would be joint liability coordinately with City Stores, so that the filing of the suit against City Stores interrupted prescription as to Otis.

The appeal of plaintiffs with regard to the dismissal of defendant City Stores — • while ultimately resolving itself into an issue of law — necessarily requires initially a review of the facts of the case.

The evidence produced at trial was not particularly enlightening as to what actually occurred. The facts are still in dispute, not as to whether plaintiff Judy Wolverton fell and injured herself on the escalator (which is admitted), but as to the cause of the fall. Plaintiffs’ major contention is that, while Judy was riding on the escalator, the escalator made a sudden jerk or jolt, causing Judy to lose her balance, fall and gouge her right knee on the edge of one of the steps. Both defendants, on the other hand, maintain that the escalator could not jerk as plaintiffs claim; rather, they contend, Judy’s fall was the result of her own carelessness.

In support of plaintiffs’ version is their own testimony that a jerk occurred, as well as the testimony by deposition of two young girls who were with them, who testified that they were also on the escalator when it jerked, but that Judy was the only one who lost her balance and fell. Mrs. Wolverton’s testimony differed, in parts, from her deposition some seven years before, particularly as to where she was at the time of the alleged jerk. In her deposition she stated that she was standing slightly behind Judy on the escalator and felt the jolt herself. In contrast, at trial she testified that she had already reached the top of the escalator and was waiting on the floor above for the others to get there, when she saw everyone rock when the escalator jerked. However, other than this discrepancy, her testimony was substantially the same at trial as it had been in her deposition. Both times she was positive about the fact of a jerk in the escalator’s motion which threw everyone off-balance.

Similarly, Judy’s testimony at trial was, for the most part, the same as in her 1970 deposition. There was an understandable effort at trial by counsel for Otis to underscore a seeming contradiction between her deposition and her testimony at trial, by focusing on Judy’s description of the escalator movement. In her deposition she had described what occurred as a brief stop in the escalator’s motion, “and then it kept on going.” However, at trial she stated that the escalator did not stop, but jerked. However, as she stated at the trial, any inconsistency in her statements would appear to have been merely a marginal variation in the description of the word “jerk.”

In rebuttal, the defense offered three elevator maintenance experts who testified as to the maintenance procedures employed for the escalators at Maison Blanche. Routine inspections were performed at least once a week and the inspector asked the store maintenance personnel if any problems with the equipment had appeared or had been reported. Mr. Morel, the Otis inspector for the Maison Blanche escalators, stated that he had received no special call complaining of a malfunction in this escalator, and he observed no evidence of any jerking or stopping problem when he inspected it on the Monday following this accident.

Mr. Morel and the other escalator expert witnesses all testified that a jerk, as claimed by plaintiffs, could not occur; however, it was not really considered as a total impossibility (e. g., Morel testified that a small piece of metal caught in an escalator might cause it to jerk). Much was made also of the fact that if the escalator stops for any reason, it will not start up again on its own, but must be specially restarted by the use of a' key. This, of course, presumes that the escalator actually stopped and did not “jerk” as alleged.

However, in any case, there was no adequate proof that a “jerk” could not have occurred. There clearly were no reports of any complaints of jerking made to Otis by Maison Blanche on the day in question, but this alone does not prove that the escalator did not, in fact, jerk. It proves only that no report of the incident was made to Otis.

Defendants also rely heavily on the deposition of Mrs. Katherine Eicke, the staff nurse at Maison Blanche who administered first aid to Judy’s injured knee. She testified, and her Report of Injury form reflects, that Mrs. Wolverton told her that her daughter had fallen on the escalator when she turned around to speak to her friends. This report, obviously, is the reason no report of malfunction was made to Otis. The plaintiffs strenuously deny this version of the fall, and Mrs. Wolverton stated that she gave the nurse no details of the accident whatsoever (just that Judy had fallen on the escalator), because no one asked her.

Neither side produced any truly independent-witnesses, and under the circumstances it is difficult to say that the trial judge committed manifest error when he concluded, as a finding of fact, that the escalator had made some sort of jerk which caused Judy to fall and injure her knee. Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

It does appear that the trial judge erred, as a matter of law, in dismissing plaintiffs’ claim against City Stores and City Stores’ third-party demand against Otis. However, the latter question is not before us, inasmuch as it was not appealed by City Stores. Once plaintiff’s right to recover has been established, both defendants must be held liable under these facts.

Plaintiffs’ allegation against defendant City Stores, as owner and operator of the escalator in question, which was within its custody and control, included negligence in the maintenance of the escalator and responsibility for a defective escalator. Because defendant Otis was the manufacturer of the escalator, as well as the party responsible for its maintenance under the maintenance contract with Maison Blanche, they are jointly, if not primarily, liable for any damages resulting from an escalator malfunction.

With regard to the liability of City Stores, under the recent interpretations of Articles 2317 and 2322 of the Civil Code in Loescher v. Parr, 324 So.2d 441 (La.1975), its liability seems almost inescapable. The issue is essentially the same as in Loescher: whether the owner of a building in which an escalator is located should be held liable for an injury resulting from some defect in the escalator, in the absence of any actual negligence or inattention on the owner’s part. The Supreme Court answered that question affirmatively in the Loescher case, in which a tree limb fell on a neighbor’s car and damaged it. The reasoning focused on the strict liability concepts previously applied under Articles 2318, 2320, 2321 and 2322, to the effect that all that the plaintiff need prove is the existence of some vice in the thing causing damage, and that the damages were the result of this vice. See Loescher v. Parr, supra, at 446-447. These principles were extended to cover Article 2317 as well.

It must be emphasized that it is not intended that the store become regarded as the insurer of its customers, as might be the effect of applying concepts of strict liability in the absence of an “unusual occurrence.” However, there was proof of such an occurrence, namely the “jerk” by the escalator. Even though that evidence might be described as moderate in weight, the trial judge specifically concluded in his reasons for judgment that such a jerk had occurred. Consequently, the concept of liability under C.C. Article 2317 is applicable here.

Inasmuch as City Stores, through the Maison Blanche store, had the escalator in its “custody” as per Article 2317 and, under the facts as found by the court below, an unexplained jerk occurred, the requirements for liability without fault (as set out in Loescher, supra) are met. As long ago as 1964, the United States Fifth Circuit Court of Appeals found the following to be a correct statement of Louisiana law:

“The law states that while the owner of a passenger elevator operated in a business building for carrying passengers up and down may not be a carrier of passengers in the sense that he is bound to serve the public, yet this duty as to protecting the passengers in his elevator from danger is the same as that applicable for the carrier of passengers by other means, and he is bound to do all that human care, vigilance and foresight can reasonably suggest under the circumstances and, in view of the character of the mode of conveyance adopted, to guard against accidents and injuries resulting therefrom; and a failure to exercise such reasonable care will constitute negligence rendering him liable. . . . ” Otis Elevator Company v. Seale, 334 F.2d 928, 929 (5th Cir. 1964).

Although that case concerned an elevator, the same principles are applicable to escalators.

Accordingly, the judgment dismissing the plaintiff’s demand against City Stores is reversed, with judgment to be entered in favor of plaintiff. The judgment in favor of the plaintiff against defendant Otis Elevator Company is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The Wolvertons came to New Orleans from Hattiesburg with three other young girls (about the same age as Judy) and an older girl as chaperone with Mrs. Wolverton. They were on a weekend trip with their church youth group.

      . There is nothing in the maintenance contract that would relieve either City Stores or Otis from liability.

      . “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.” C.C. Art. 2317.

      .“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.” C.C. Art. 2322.


author: GARRISON, Judge. STOULIG, Judge,

text:
    In the Interest of Frankie Jo Angel LaROCCA.
    No. 9470.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.

      Occhipinti, Grace, Berger & Dunford, Christopher T. Grace, Jr., New Orleans, for defendant-appellant, Frankie Jo Angel LaRocca.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   GARRISON, Judge.

Frankie Jo Angel LaRocca was adjudicated a juvenile delinquent in proceedings in the Juvenile Court for the Parish of Jefferson on November 2, 1977. This judgment was based on a finding that Frankie Jo Angel LaRocca was guilty of simple criminal damage to property in violation of R.S. 14:56. She was placed on active probation for an indefinite period, and she has appealed.

Frankie was a thirteen-year-old white female in November 1976, when she was charged with writing obscenities on the bathroom walls at Mount Carmel Academy, where she was a student in the ninth grade. During November 1976, a series of detailed accounts of a sexual relationship between a male teacher at the school and the author began to appear on the bathroom walls of Mount Carmel. The police were contacted by Sister Mary Grace, Principal of Mount Carmel Academy, and were requested to investigate the matter.

The first writings, dated “11-5 — 75,” were discovered on November 8, 1976, and more were discovered on the 9th. Two detectives from the Juvenile Division, Detectives Johnston and Jackson, went to Mount Car-mel on the morning of November 12th, to view the writings and to begin the investigation. Some of the writings had already been removed from the walls by the cleaning crew, but color Polaroid pictures had been taken of all the walls before cleaning, and these photographs were made available to the police. After examining these writings, the conclusion of the police was that all the writing appeared to be by the same author, even though it was a combination of block printing and script.

A list of possible suspects was drawn up from names supplied by various students and teachers, but no conclusions about the author could be drawn by the officers by a comparison with writing samples. The teacher who was the subject of most of these writings was unable to come up with the names of any students who might have a grudge against him, or otherwise want to make him look bad.

No new writings appeared until the morning of November 19th, on the walls of the first-floor restroom. Photographs were taken, and although more students were questioned, no new information was obtained as to the authorship. On the same day, various writings were discovered on the outside walls of the gym and on a statue outside the school, but these were found to have no relationship to the bathroom writings.

Later on the same day more new writings appeared between 1:10 p. m. and 2:15 p. m. in the third-floor bathroom. After coming out to Mount Carmel again to observe these new writings, the detectives asked Sister Mary Grace to get handwriting samples from the prime suspects, and they would get a handwriting expert to examine the writings on November 22nd. Detective Mol-ligan, an expert in handwriting analysis, along with several other detectives, went to Mount Carmel on the 22nd to attempt identification. When Detective Molligan saw Frankie LaRocca’s handwriting on her school enrollment application, he noted the similarity to the writings in the bathrooms and asked for additional examples of Frankie’s handwriting.

Sister Mary Grace contacted Mrs. LaRoc-ca and, after being advised as to what was going on, Frankie’s mother agreed to accompany Frankie to Mount Carmel for questioning. When they arrived at Mount Carmel, the police report that Frankie was advised of her rights by Detective Molligan, and they received permission from her and from her mother prior to questioning. Frankie testified that she remembers hearing them tell her and her mother about having an attorney, but she thought that was mentioned after the questioning and was in reference to an attorney for a court appearance. She did not remember being told of her right to remain silent. Mrs. LaRocca testified that she did not remember being advised of any rights, but that she did consent to Frankie’s being questioned alone. She gave her permission for the handwriting analysis, but said the police told her they were convinced that Frankie was responsible for these writings and led her to believe that if things were settled they wouldn’t have to go to court.

Frankie was first questioned in the presence of her mother and Sister Mary Grace, but when this questioning led nowhere, the officers felt that Frankie might speak more freely outside the presence of her mother and the nun, and questioned her alone. Finally, in the presence of Detectives Molli-gan and Johnston, Frankie orally admitted to having written the obscenities on the bathroom walls. According to the police, she withdrew her admission after she found out that her mother would be informed of the exact contents of the writings, and said that she had confessed only because she was afraid. However, Frankie testified that she confessed only because the officer kept telling her that he was an expert, that he knew she had done it, and that if she would admit it, it would all be over and she would not have to go to court. She said that they kept after her, she got tired, so she finally screamed that she had done it to make them stop.

Frankie never made a written confession, and she denied her oral confession shortly after having made it. She did, however, consent to giving a handwriting sample to the police. After examination and comparison of the samples with the wall writings, Detective Molligan decided that Frankie was the author of the writings based on significant similarities without unexplainable differences.

It was upon this evidence (the oral confession and the handwriting analysis opinion), essentially, that the judge adjudicated Frankie a delinquent. However, there are serious problems with accepting any of this evidence. A juvenile is entitled to the protection of the due process clause of the 14th Amendment to the United States Constitution, and to all the attendant safeguards guaranteed to anyone accused of a crime. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Likewise, the burden of proving the charges against a juvenile is no less than against an adult:

“[All elements of the offense] which would be criminal if he were an adult, must be based on admissible evidence constituting proof beyond a reasonable doubt. LSA-R.S. 13:1579.1; In re State in Interest of Taylor, 255 So.2d 361 (La. App. 1 Cir. 1971); State in Interest of Ogletree, 244 So.2d 288 (La.App. 4 Cir. 1971); State in Interest of Simon, 295 So.2d 473 (La.App. 3 Cir. 1974).” State in Interest of Simmons, 299 So.2d 906, 908 (La.App. 3rd Cir. 1974).

See also, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State in Interest of Hampton, 257 So.2d 459 (La. App. 1st Cir. 1972).

It appears that the proof offered in support of the guilt of Frankie Jo Angel La-Rocca does not meet the above-stated requirements of the law.

Considering the oral confession of Frankie, there appear to be sufficient facts surrounding the circumstances under which it was obtained to render its admissibility doubtful. It was obtained from a thirteen-year-old girl, outside the presence of her mother, and both before and after this private interrogation she denied the truth of it. According to her testimony, she was harassed into admitting guilt, which makes the voluntariness of the confession more questionable.

As a general rule, a juvenile’s confession, outside the presence of his parents, friends, or an attorney, is to be carefully scrutinized for any signs of coercion. See State in Interest of Campbell, 344 So.2d 711 (La.App. 2nd Cir. 1977); State in Interest of Wesley, 285 So.2d 308 (La.App. 4th Cir. 1973); In re Garland, 160 So.2d 340 (La. App. 4th Cir. 1964); In re White, 160 So.2d 344 (La.App. 4th Cir. 1964). Although the circumstances in this instance were not as extreme as in most of the cases cited, it is not at all clear that Frankie, or her mother, fully understood her rights, or that her statement was not given in response to threats, harassment, coercion, or promises that this would be the end of the matter.

Without Frankie’s confession, all that is left of the evidence is the handwriting analysis. Attorney for the defendant attempted to have all evidence pertaining to the handwriting analysis suppressed because of defendant’s denial of compulsory process. The State failed to bring forth any other tangible evidence of the commission of the crime. State in Interest of Emerson, 250 So.2d 439 (La.App. 4th Cir. 1971). Understandably, the bathroom walls at Mount Carmel were cleaned off soon after the writings had been examined by the police; however, photographs admittedly were taken and used, in part, by Detective Molligan in his analysis. These photographs mysteriously disappeared while in the custody of the District Attorney’s office, so that defendant was unable to inspect them or have her own expert conduct a handwriting analysis. Clearly defendant would have been entitled to this had the photographs been available.

Consequently, having been denied this right, defendant’s counsel sought to exclude all reference to Molligan’s handwriting analysis report. This was denied, and although defendant further attempted to have Molligan’s testimony excluded on these grounds, this issue became moot when Molligan failed to appear to testify at the trial. This, however, further prejudiced defendant’s case because Molligan’s report was made part of the record, and was undoubtedly considered by the judge (despite his remarks that all this would be weighed in his judgment), and yet defendant had no opportunity to cross-examine Molligan to challenge his expert opinion.

Further, the police report filed by Detectives Johnston and Jackson was filed into the record as the basis for the complaint. This report is full of hearsay and opinions, which both are inadmissible evidence. In addition, both officers testified at trial to essentially the same effect, over the objections of defendant’s counsel. Without any indication otherwise, it must be assumed that these things were considered by the judge, in spite of any efforts he may have made not to do so. See State in Interest of Simmons, supra.

The fundamentals of fairness and due process which are required to be accorded to adults were not accorded to this juvenile. Furthermore, the State failed to sustain its burden of proof with regard to the evidence presented.

For these reasons, the adjudication of Frankie Jo Angel LaRocca as a delinquent is reversed.

REVERSED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I concur.

The petition to declare Frankie Jo Angel LaRocca a juvenile delinquent is based upon the commission of the offense of simple criminal damage to property (R.S. 14:56).

The adjudgment of delinquency was based upon evidence insufficient to meet the standard of proof required to establish all of the statutory elements of the offense and to prove beyond a reasonable doubt that the juvenile had in fact committed it.

It is now well established that due process mandates a juvenile be accorded the same constitutional safeguards, including the degree of proof, as that afforded adults. The disputed inculpatory oral statement of the juvenile, uncorroborated by other admissible evidence, lacks the certainty necessary to establish beyond a reasonable doubt that this minor did in fact commit a simple criminal damage to property.

While the evidence strongly indicates that Frankie Jo Angel LaRocca in all probability was the author of the obscene writings, nonetheless the State failed to bear the burden of proof necessary to establish this fact beyond a reasonable doubt.


text:
    SOUTHERN SHIPBUILDING CORPORATION and Continental Insurance Company v. Jeri Lynn RICHARDSON, Individually and in Her Capacity as Natural Tutrix of Her Minor Children, Shane Marie Richardson and Brandi Lynn Richardson, Milton Brener, John Robbert, and Garon, Brener & McNeely.
    No. 9472.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Barry R. Geraghty, New Orleans, for defendant-appellant, Jeri Lynn Richardson.
    Garon, Brener & McNeely, Milton E. Brener, John F. Robbert, New Orleans, for defendants-appellees, Milton Brener, John Robbert and Garon, Brener & McNeely.
    Before GULOTTA, STOULIG, and GARRISON, JJ.
   GARRISON, Judge.

This suit is an appeal from a concursus proceeding arising out of litigation between Jeri Lynn Richardson, individually and as natural tutrix of her minor children, against Southern Shipbuilding Corporation and its insurer for the wrongful death of Brand Richardson, her husband. Mrs. Richardson’s suit was settled prior to trial for the amount of $275,000. However, a dispute arose between her and her attorneys (Milton Brener, John Robbert, and Garon, Brener & McNeely) as to the amount of attorney’s fees to be deducted from the settlement funds. Accordingly, Southern Shipbuilding filed this concursus proceeding and deposited the settlement funds in the registry of the court.

The defendant attorneys answered the petition for concursus, alleging that they had a contract and agreement with Mrs. Richardson on behalf of herself and her minor children to pursue the wrongful death claim and that the agreed fee was to be one-third of the recovery ($275,000 X V3 = $91,666.67) whether by settlement or by judgment after trial, costs to be paid by Mrs. Richardson.

Mrs. Richardson’s answer to the concur-sus petition, on the other hand, set forth a claim against the defendant attorneys, alleging that there was never a mutual understanding or meeting of the minds between Mrs. Richardson and the attorneys concerning the fee for representing her; that at the time of execution of the alleged contract she did not have legal authority to contract a fee agreement on behalf of her minor children, and that she never contracted such an agreement on their behalf; that the defendant attorneys are entitled to quantum meruit fee only, in an amount not to exceed $10,000, from Mrs. Richardson’s portion of the settlement funds, and are not entitled to any fee from the children’s portions of the settlement funds (alternatively, that if the attorneys are entitled to a fee from the children’s portions of the settlement funds, that the fees should be based on quantum meruit, not to exceed $5,000 per child).

Subsequently, Mrs. Richardson was allowed to withdraw the settlement funds above the disputed amount, leaving the amount of $92,403.33 on deposit, which was the amount of the fee claimed by the attorneys ($91,666.67) plus costs expended by them ($736.76).

The attorneys filed a motion for summary judgment, which was denied, and the matter proceeded to trial.

After trial on the merits, judgment was rendered in favor of the attorneys in the amount of $91,667.00. Mrs. Richardson moved for a new trial, as did the defendant attorneys (who contended that the judgment in their favor should have been in the amount of $92,403.76, the amount of their fee plus costs expended by them). The motions were denied, and Mrs. Richardson filed an appeal. The defendant attorneys have answered the appeal, claiming that the judgment of the lower court should be amended to include the amount of the costs expended by them.

Mrs. Richardson specifies the following errors on appeal:

(1) That the court erred in finding that the contingent fee contract was valid on behalf of the two minor children;

(2) That the court erred in finding the contract valid as to Mrs. Richardson individually, because the contract was vague and ambiguous, did not conform with R.S. 37— 218, and there was no “meeting of the minds”; and

(3) That the court erred in allowing the defendant attorneys to introduce evidence as to quantum meruit when they failed to plead the same specifically.

First, as to Mrs. Richardson’s right to sign the contract on behalf of the children, Mrs. Richardson cites Code of Civil Procedure Articles 4061 and 4171 as the bases for her contention that she had no authority to sign the contract because she had not yet taken an oath as tutrix. It should be noted that neither of these articles, nor C.C.P. Art. 4271, upon which she also relies, makes any specific reference to the entering into of binding contracts on behalf of a minor. On the contrary, only references to “official duties,” in the broadest sense, are made. She further cites several cases in support of her contention.

Assuming, arguendo, that an unconfirmed natural tutrix does not have the authority to sign such a contract on behalf of her minor children, we must look at the practical as well as the legal aspects of the matter. According to the expert witnesses, Mr. Russ Herman and Mr. Wilfred Bou-dreaux, because the law requires court approval of all actions affecting a minor’s interest, the usual procedure in settling claims on behalf of minors is to include a stipulation in the court’s judgment regarding the amount of the attorney’s fee. At the same time, apparently it is seldom that an attorney prosecuting a wrongful death claim such as this one will have the surviving parent judicially confirmed as natural tutor/tutrix until immediately preceding settlement of the case, unless such confirmation is necessary for other purposes. Thus, the situation in this case is common to a very large number of similar cases: that is, a surviving spouse prosecutes a claim on behalf of his or her minor children by signing a contingent fee contract with an attorney, for a usual fee of one-third of recovery, without that parent having been legally authorized as the minor’s tutor as required by Articles 4061 and 4171 of the Code of Civil Procedure.

The question is whether, considering the exigencies of the situation, a natural tutor/tutrix is required to be judicially confirmed prior to signing a contingent fee contract on behalf of a minor. If the natural tutor may sign such a contract only after his confirmation by the court, this requirement would have a far-reaching effect on present practices of attorneys in this locale regarding their employment on wrongful death claims. Further, it creates a tension between the mandates of the Civil Code and Code of Civil Procedure provisions regarding tutorship (the clear intent of which is to insure that all actions on a minor’s behalf be taken under color of court authority) and the holding in Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1974), which emphasizes the natural obligation of a mother to administer the minor’s estate until she causes the appointment of a tutor. However, as the court in Cacibauda stated,

“The spirit of this [C.C.P. Art. 4061] and other laws governing the rights of minors have for their purpose the conservation of the minor’s estate and the establishment of a form of security from which he can be reimbursed if his assets have been dissipated before he attains majority.” 305 So.2d at 583.

Thus, it seems clear that the mother’s obligation to conserve the minor’s estate should prevail over the technical requirements of the Code of Civil Procedure, except in cases of clear abuse. See also, Caruthers v. U. S. Safety Deposit & Savings Bank, 8 Orl.App. 93 (1910).

Furthermore, as noted above, neither the Civil Code nor the Code of Civil Procedure contains any specific requirement that a natural tutor must obtain prior judicial approval of any contract, including those for attorneys’ services. The only law that appellant has been able to cite in support of this position is the case of Garden Hill Land Corp. v. Succession of Cambre, 306 So.2d 718 (La.1975). However, the issue was never confronted in that case, and mere dicta indicates the possible wisdom of obtaining prior court approval of a contingent fee contract with an attorney.

It can be strongly argued that Mrs. Richardson’s subsequent judicial confirmation as natural tutrix, and her acceptance of the benefits of Mr. Robbert’s work (that is, acceptance of the $275,000 settlement), ratified the earlier technically unauthorized contingent fee contract. There was no need for separate court approval of the contract, since the court later approved the actual compromise (as was required by C.C.P. Art. 4271).

An interesting point is raised here, but, as in the Garden Hill Land Corp. case, supra, it need not necessarily be faced. Mrs. Richardson ratified the contract she made with the attorneys by accepting the benefits of their services for herself and on her children’s behalf. Her acceptance of the settlement took place after she had been judicially qualified by a proper court as natural tutrix, and she acted in that capacity. Having accepted the benefits of the contract, she cannot now repudiate it. Brock v. Town of Kentwood, 196 La. 318, 199 So. 133 (1940); Reconstruction Finance Corp. v. Tangipahoa Parish, 192 La. 1059, 190 So. 217 (1939).

As to Mrs. Richardson’s contention that the contract cannot be upheld because it does not follow the form prescribed by R.S. 37:218, this statute does not prescribe any form for a contingent fee contract, other than that it be in writing. Rather, the statute provides an option to include in the contingent fee contract an agreement that neither the attorney nor the client shall compromise, settle or release the claim without the written consent of the other. The contract in this case did not include this provision, but that does not affect its validity otherwise.

“The only effect which a contingent fee contract entered into in compliance with LSA-R.S. 37:218 has is to limit to such extent as may be stipulated therein the client’s otherwise ever-existing right to settle or otherwise dispose of his suit or claim at will.” Succession of Vlaho, 140 So.2d 226, 231 (La.App. 4th Cir. 1962), cert. denied, June 20, 1962.

With regard to Mrs. Richardson’s contention that the contract was vague and ambiguous and that there was no “meeting of the minds,” it is true that Mr. Robbert’s letter of July 21, 1975, which contained the contingent fee contract, was vague and ambiguous. It contained no specific reference to the claim on which he is being retained, nor does it mention that he is to represent the minor children as well as Mrs. Richardson. Nonetheless, it is clear from the testimony that all parties understood the substance of the agreement. The only area really in contest is whether “one-third-of-recovery” applied (and was understood to apply) to settlement as well as to judgment after prolonged litigation.

This was hardly an artfully-drawn contract, and perhaps it should have made it clear that “recovery” meant recovery by settlement as well as recovery after trial. However, it appears likely from the testimony — and apparently it was believed by the trial judge — that both Mrs. Richardson and her brother-in-law (who acted as her advisor and who was subsequently appointed as undertutor for the children) understood that the one-third-of-recovery fee would apply in case of settlement, but that neither of them envisioned a resolution of this case by settlement. Mrs. Richardson’s contention that she did not understand “recovery” to apply to the possibility of settlement is basically a factual determination. In the absence of manifest error, the findings of fact in favor of the defendant attorneys must be affirmed. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Particularly telling on this point is the fact that during the time Mr. Robbert was handling this wrongful death action for Mrs. Richardson, she engaged his services to represent her on an automobile accident claim. That claim was quickly settled and no objection was made to his one-third-of-recovery fee for its settlement. Granted that Mr. Robbert did not need to expend as much time and effort for the settlement of this wrongful death action as he would have needed had it gone to trial; however, a speedy and just resolution is to his credit. The very nature of a contingent fee contract is that the attorney “earns” his one-third-of-recovery by obtaining a high recovery. Conversely, he “earns” nothing if he is not successful in obtaining a recovery.

Consequently, the award of $91,-667.00 appears justified. However, it also should have included the out-of-pocket expenses ($736.00) of the defendants-appel-lees.

For the foregoing reasons, the judgment below is affirmed, and it is amended as indicated in the preceding paragraph so as to provide a total award of $92,403.00 to defendants-appellees for their legal services and their costs.

AFFIRMED AND AMENDED.

      . C.C.P. Art. 4061 reads as follows:
      “Before a natural tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office, cause an inventory to be taken, and cause a legal mortgage in favor of the minor to be inscribed, or furnish security, in the manner provided by law.”

      . C.C.P. Art. 4171 reads as follows:
      “Before the person appointed as tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office. A natural tutor shall include in his oath a list of the parishes in which he owns immovable property.”

      .C.C.P. Art. 4271 reads as follows:
      “The tutor shall file a petition setting forth the subject matter to be determined affecting the minor’s interest, with his recommendation and the reasons therefor, and with a written concurrence by the undertutor. If the court approves the recommendations, it shall render a judgment of homologation. The court may require evidence prior to approving the recommendations.
      “If the undertutor fails to concur in the tutor’s recommendations, the tutor shall proceed by contradictory motion against him. After such hearing and evidence as the court may require, the court shall decide the issues summarily and render judgment.”

      . “And where a minor child is without a tutor, but has rights to assert, or property to be administered within the jurisdiction of the court, a parent vested with the care of such child may take all necessary steps to have its claims liquidated and to preserve and administer its property through the medium of the courts even though such parent may not be vested with the full authority of a duly qualified tutor.” 8 Orl.App. at 95.

      . At the time the contract was signed, R.S. 37:218 read as follows:
      “By written contracts signed by the client, attorneys at law may acquire as their fee an interest in the subject matter of the suit, proposed suit, or claim in the prosecution or defense of which they are employed, whether the suit or claim be for money or for property. In such a contract for employment, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file it with the clerk of the district court in which the suit is pending or is to be brought and have an original or certified copy made and served by registered mail on the opposing party. After such service, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client without the written consent of the other is null and void and the suit or claim shall be proceeded with as if no such settlement or discontinuance has been made.”
      R.S. 37:218 was amended by Act 670 of 1975, which was not effective until September 12, 1975. However, the changes made are not material to the issues in this case.


author: GUIDRY, Judge.

text:
    Mary Godwin McCLURE, Plaintiff-Appellant, v. Douglas McCLURE, Defendant-Appellee.
    No. 6554.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Jim W. Wiley, Winnfield, for plaintiff-appellant.
    Griffing & Scott by Hal J. Scott, Jones-ville, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

In this action plaintiff seeks by rule to obtain judgment against defendant, her former husband, for the amount of alleged arrearages in alimony and child support; finding him in contempt of court for failure to pay alimony and child support as ordered; and, condemning him to pay her a reasonable attorney’s fee for his alleged arbitrary and capricious refusal to pay alimony and child support when due. The defendant filed a counter rule seeking a reduction in the amount of his child support payments. The rules were consolidated and tried and resulted in a judgment fixing arrearages due plaintiff, Mary Godwin McClure, at the sum of $1878.50; denying attorney’s fees; dismissing plaintiff’s rule for contempt; and, reducing child support payments from $260.00 monthly to $180.00 monthly. Plaintiff, Mary Godwin McClure, appealed.

The issues presented on appeal are: (1) did the trial judge correctly compute the amount of arrearages due plaintiff; (2) did the trial court err in his refusal to award attorney’s fees; (3) did the trial court err in dismissing plaintiff’s rule for contempt; and, (4) did the trial court err in ordering a reduction in child support payments.

The facts are not in dispute. By virtue of a judgment read and signed February 4, 1974, Douglas McClure was ordered to pay to Mary Godwin McClure $100.00 per month alimony pendente lite and $600.00 per month child support. The monthly payments were ordered to be made on the 1st day of each month beginning February 1, 1974. In a later judgment rendered March 7, 1974, the previous alimony award was terminated and the amount of defendant’s child support payment was reduced to $260.00 monthly, the effective date of the latter reduction being fixed as March 5, 1974 with a payment due on the latter date and on the 5th of each month thereafter. A later divorce decree dated June 27, 1974, awarded plaintiff permanent custody of her three minor children and continued child support payments at the sum of $260.00 monthly. Beginning in May of 1976, defendant unilaterally reduced his child support payments by one-third when one of his three children was emancipated by marriage. In April of 1977 defendant further unilaterally reduced his child support payments by an additional one-third in an attempt to induce Mrs. McClure to have one of the minor children remain in school. However, in July of 1977, prior to trial of the rules, defendant voluntarily made up for the latter reduction. Between February 1, 1974 through October 4, 1977, defendant paid to plaintiff, the sum of $100.00 alimony and $9901.50 in child support.

CORRECTNESS OF THE TRIAL COURT’S CALCULATION OF THE ARREARAGES

The trial court correctly held that defendant was without right to unilaterally reduce his child support payments upon the judicial emancipation of one of his minor children and/or to induce his wife to keep one of the children in school.

In speaking to the binding effect of a judgment awarding alimony and/or child support and its inviolability to alteration or change without judicial intervention, our Supreme Court in Halcomb v. Halcomb, 852 So.2d 1013 (La.1977) stated:

". . . However, unless automatic reduction, modification or termination is provided for by operation of law, the award remains enforceable notwithstanding that a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction. Support for this rule is found in a proper regard for integrity of judgments. Such a regard does not condone a practice which would allow those cast in judgment to invoke self-help and unilaterally relieve themselves of the obligation to comply. Any other rule of law would greatly impair the sanctity of judgments and the orderly processes of law. To condone such a practice would deprive the party, in whose favor the judgment has been rendered, of an opportunity to present countervailing evidence, and at the same time deny the judge an opportunity to review the award in light of the alleged mitigating cause which had developed since its rendition.”

Appellant contends on appeal that the trial judge erred in calculating the arrear-ages in that he did not allow plaintiff the sum of $600.00 in child support and $100.00 in alimony pendente lite allegedly due March 1, 1974, but rather allowed only the sum of $260.00 as child support for the month of March 1974. Stated another way appellant argues that on March 1, 1974 these sums were due and could not be changed by a later judgment made retroactive.

We agree with appellant that a later judgment reducing support payments cannot be made retroactive so as to nullify or reduce accumulated alimony. Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir. 1975). However, we disagree with appellant’s contention that a correct calculation of the arrearages due her should include the total sum of $700.00 for the month of March 1974. The earlier judgment of February 4, 1974 awarded plaintiff $100.00 monthly as alimony pendente lite and $600.00 monthly as child support, the initial awards being made retroactive to February 1, 1974. It is within the discretion of the trial judge as to when a support award shall begin. Vetter v. Vetter, 299 So.2d 899 (La. App. 2nd Cir. 1974); Gayle v. Gayle, 191 So.2d 158 (La.App. 3rd Cir. 1966). By judgment rendered March 7, 1974 the alimony award was terminated and the child support award reduced to $260.00 monthly, the latter amount being made payable on the 5th of March 1974 and on the 5th day of each succeeding month. Under settled law plaintiff had a vested right to all alimony and child support accumulated under the earlier judgment to March 7, 1974. On the latter date the earlier judgment was amended terminating her right to further alimony payments and reducing her future child support payments. Considering the above we conclude that a correct computation of the arrearages due plaintiff is as follows:

ALIMONY
2/1/74 thru 2/28/74 .$ 100.00
3/1/74 thru 3/6/74
(6 days @ $3.33) . 19.98
CHILD SUPPORT
2/1/74 thru 2/28/74 . 600.00
3/1/74 thru 3/6/74 (6 days @ $20.00) . 120.00
3/7/74 thru 10/4/77 43 mos. @ $260.00 .$11180.00
Total alimony and child support due to 10/4/77. $12019.98
Less amount paid. 10001.50
Total arrearages due. $ 2018.48
As aforestated, the trial court awarded arrearages in the total sum of $1878.50. We will amend the trial court judgment so as to increase the amount of the award to the total sum above set forth.

IS PLAINTIFF ENTITLED TO AN AWARD OF ATTORNEY’S FEES?

The basic well established rule is that attorney’s fees are not allowed in the absence of a statute or contract providing for same. LSA-R.S. 9:305, added by Act 462 of 1977, provides as follows:

“When the court renders an executory judgment incorporating the payment of child support or alimony in arrears, the court may award reasonable attorney fees in favor of the prevailing party.”

The instant rule was tried and judgment rendered after the effective date of the cited act.

Although the record in the instant case does not indicate that the trial court considered the provisions of LSA-R.S. 9:305, there is a clear indication in the record that, in denying attorney’s fees, the trial judge did so because he found defendant was not arbitrary or capricious in failing to make payment. The trial judge reasoned that until rendition of the decision in Halcomb v. Halcomb, supra, the question concerning proportionate automatic reduction of a child support award without judicial intervention, when a cause for reduction occurs, remained unsettled.

The cited section of the revised statutes makes an award of attorney’s fees discretionary with the trial court. Considering the trial court’s reasons, although he may not have considered the applicability of LSA-R.S. 9:305, we cannot say that the trial judge abused his much discretion in refusing to award plaintiff attorney’s fees.

THE REMAINING ISSUES

The remaining issues concern correctness of the trial court’s judgment insofar as it orders a reduction in child support payments and insofar as it dismissed plaintiff’s rule for contempt. Both of these issues involve factual determinations in which the trial court is allowed a great amount of discretion. The trial court’s resolution of such issues should not and will not be interfered with on appeal unless there has been a clear abuse of discretion. Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976); Lockwood v. Lockwood, 175 So.2d 313 (La.App. 2nd Cir. 1965). Our review of the record in this case failed to reveal any manifest abuse of discretion in the resolution of either of these issues.

For the above and foregoing reasons the judgment appealed from is amended so as to increase the amount of judgment in plaintiff’s favor from the sum of $1878.50 to the sum of $2018.48. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be borne one-half by appellant and one-half by appellee.

AMENDED AND AFFIRMED.

      . Plaintiffs exhibit 4 admits receipt of the $100.00 alimony payment and the sum of $9701.50 in child support payments. On the basis of defendant’s testimony the trial court found that he had paid the additional sum of $200.00 in child support in the month of February 1974, such amount not being reflected on plaintiffs records. We find no error in this determination.