text:
    Robert V. PALMER v. ANCHOR MARINE, INC. and ATV Manufacturing Company.
    No. 10680.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Bailey E. Chaney, Baton Rouge, for appellant.
    John W. deGravelles, Baton Rouge, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit for the rescission of the sale of an all-terrain pleasure vehicle. The plaintiff, Robert V. Palmer, purchased the vehicle from defendant, Anchor Marine, Inc.; the vehicle was manufactured by the other defendant, ATV Manufacturing Company. The Trial Court awarded judgment in favor of plaintiff, rescinding the sale and awarding damages in the sum of $1,774.92 which included $1,113.00 representing the purchase price; $161.92, the sum expended by plaintiff for parts and repairs for the vehicle; and $500.00 for attorney fees. The defendant, Anchor Marine, Inc., has appealed, and plaintiff has answered the appeal seeking a modification of the judgment so as to award him $1,000.00 as damages for inconvenience, embarrassment, humiliation and annoyance, and an additional amount of $1,000.00 for attorney fees occasioned by the appeal.

The record points out that on May 24, 1972, the plaintiff purchased a 1972 model 252 Attex All-Terrain Vehicle manufactured by ATV Manufacturing Company from Anchor Marine, Inc. The plaintiff encountered many difficulties with this vehicle and on December 14, 1972, he agreed with defendant, Anchor Marine, Inc., to accept a replacement vehicle. Some six days later the replacement vehicle was driven for the first time, and after one or two hours use, the vehicle failed to start. Mr. Palmer testified that the difficulty was caused by a faulty fuel pump. Subsequently, an outer axle bearing and seal had to be replaced on April 14, 1973; a recoil starter was replaced on March 26, 1973; and on May 1, 1973, a complete tune-up and overhaul, involving new piston rings, cylinders, and wrist-pins, was performed as well as repair to the recoil starter. On the same date new axle bearings and seals were installed on three wheels. On May 28, outer and inner wheel bearings were replaced, the carburetor and throttle were adjusted as well as the drive chains. On June 16, 1973, the carburetor was torn down, checked, cleaned and put back, a shorted ignition wire was replaced, the points were filed, the fuel filter was replaced and the chains oiled and adjusted. On July 12, 1973, the front inside and outside axle bearings were replaced. Much of the testimony points out that this particular vehicle as well as all of the other similar vehicles received in the same shipment had a sealed axle bearing, and the grease contained therein was too light and would leak out, thus causing the axle bearing to be without grease, and finally causing excessive wear and failure. Finally, Anchor Marine suggested the replacement of the axle bearings for those with fittings that would allow the greasing of the axle, all at plaintiff’s cost. Plaintiff refused, demanded his money back, left the vehicle with the dealer, Anchor Marine, Inc., and filed this law suit.

In his reasons for judgment, the Trial Judge said:

“The Court needs to look no further than the axle bearings to find a ‘vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that is [sic] must be supposed that the buyer would not have purchased it, had he known of the vice.’ The Courts finds, too, that the defect, absence of grease fittings, was of such a nature as to be apparent to the dealer and distributor, Anchor Marine, on simple inspection. The Court also finds that rescission of the sale rather than a reduction in price to be the appropriate remedy.”

The defendant-appellant, Anchor Marine, Inc., contends the Trial Court erred in:

(1) Ignoring plaintiff’s testimony that the machines were kept out in the open, subject' to the elements, especially the second ATV, when the testimony of all mechanics (plaintiff’s as well as defendant’s) clearly showed deterioration would occur and cause plaintiff’s complaints, when the owner’s manual specifically stated that covered inside storage of the vehicle was required;
(2) Ignoring certain maintenance procedures required to be done by the user of the equipment, which, if not done, or done improperly, could have caused plaintiff’s complaints;
(3) Confusing “hidden” and “apparent” defects;
(4) Basing rescission on axle bearing problems, a “hidden” defect, when the problem did not arise until four months after delivery, and at the same time held lack of grease fittings was an “apparent” defect;
(5) Treating appellant, Anchor Marine, Inc., to the same standard of notice of the hidden defect as the law treats a manufacturer, and awarded attorney fees in the judgment against Anchor Marine, Inc.;
(6) Awarding attorney fees when there was neither proof of the amount of attorney fees nor even any proof that any attorney fees had been incurred at all;
(7) Rescinding the sale rather than reducing the price.

The Louisiana Civil Code provides that a sale can be set aside because of a defect in the object purchased, where the defect is of such a nature as to render the article either absolutely useless, or its use so inconvenient and imperfect that it would not have been purchased if the defect would have been known; but if the defect could have been discovered by the buyer by simple inspection, or if the defect was made known prior to or at the time of the sale by the seller, then the sale cannot be voided. Of course, the buyer in order to set aside a sale, must prove the defect existed prior to the sale to him, and a presumption exists if it appears within three days of the sale.

We are in agreement with the decision of the Trial Court in holding that the plaintiff would not have purchased the all-terrain vehicle had he known of the multitude of trouble he would have encountered. Nor, do we feel that the vices above mentioned were such that they could have been discovered by the plaintiff by his simple inspection of the vehicle at the time of purchase.

It is argued by defendant that if the defects complained of were hidden and non-apparent as to the plaintiff, then they cannot be apparent as to the defendant. It is further argued by the defendant-appellant that the only way he could have known of the condition of each axle bearing was to break the seal on it, which he contends he was not required to do, citing Baughman v. Quality Mobile Homes, Inc., 289 So.2d 376 (La.App. 1st Cir. 1973), rehearing denied (1974).

The Baughman case dealt with a mobile home that had a leak in a window when it rained. This Court held that the dealer-seller could not be expected to know of such a defect without taking the window apart, and this we held he was not required to do. There we found judgment against the manufacturer. But in this case, as above noted, an employee and former employees of the defendant-appellant testified of prior history of defective axle bearings, and thus even though the defect would have been hidden and non-apparent as to the purchaser, once this knowledge was acquired by the seller, we are of the opinion that it then became an apparent defect as to the seller. We therefore feel that the Trial Judge was justified in awarding the plaintiff attorney fees under the provisions of LSA-C.C. art. 2545 which provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.”

Certainly, if the dealer did not know, as a matter of fact, the various vices and defects in this vehicle, he did, at least have constructive knowledge and, in Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975), this Court said:

“To recover attorney’s fees the buyer must prove knowledge of the defect by the seller. He need not prove wilful misrepresentation. It is sufficient for the buyer to prove actual or constructive knowledge by the seller. Thus, if the seller knew or should have known of the defect and failed to declare it to the buyer, the seller is liable additionally for reasonable attorney’s fees.”

The defendant-appellant argues that when the plaintiff accepted the second ATV in replacement of the first, that novation occurred, and any question of redhibition as to the first ATV was not before the Court, and the only question before the Court, and only question before the Court was whether or not redhibition is possible as to the second ATV. The law of course is clear that he who pleads the affirmative defense of novation must establish it by positive proof. Crescent Cigarette Vending Corp. v. Toca, 271 So.2d 53 (La.App. 4th Cir. 1972). We are of the opinion that redhibition will certainly apply to the second ATV, otherwise, it would be very easy for dealers to trade off or exchange a new vehicle, just as defective as the first, for the first defective vehicle, and thus escape liability. The buyer pays for a vehicle, and it is the purpose of the red-hibition law to give to him a unit defect free for his use, or in lieu thereof, the return of the purchase price.

In answering the appeal, plaintiff requests a modification in the judgment so as to award him damages for inconvenience, embarrassment, humiliation and annoyance as well as additional damages for attorney fees occasioned by this appeal. We note that the Trial Judge did not award plaintiff any damages for inconvenience, and can find no error in his judgment denying same. However, as to the plaintiff’s answer to the appeal seeking additional attorney fees occasioned by this appeal, we do feel he has a valid argument. Therefore, this Court will amend the judgment of the Trial Court to award an additional amount of $450.00 as attorney fees against the appellant, Anchor Marine, Inc. Meaux v. Hoffpauir, 219 So.2d 551 (La.App. 3rd Cir. 1969), rehearing denied (1969), writ refused, 253 La. 1096, 221 So.2d 522 (1969).

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is amended to provide for additional damages in the amount of $450.00 against defendant-appellant, Anchor Marine, Inc., only, and as amended, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendant-appellant, Anchor Marine, Inc.

AMENDED AND AFFIRMED.

      . LSA-C.C. art. 2520 provides:

        “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
      LSA-C.C. art. 2521 provides:
      “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”
      LSA-C.C. art. 2522 provides:
      “The buyer can not institute the redhibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received.”
      LSA-C.C. art. 2530 provides:
      “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”


source: Caselaw Access Project

author: MORIAL, Judge. LEMMON, Judge REDMANN, Judge

license: Public Domain

text:
    Mrs. Virginia West KARMGARD v. SOUTHLAND MORTGAGE AND TITLE COMPANY.
    No. 7232.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Granted July 1, 1976.

      Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for plaintiff-appellant.
    Jackson & Hess, Leonard A, Washofsky, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and MORIAL, JJ.
   MORIAL, Judge.

On October 31, 1972 plaintiff, Mrs. Virginia West Karmgard, was advanced the sum of $35,000 by defendant, Southland Mortgage and Title Company. Pursuant to this advance plaintiff executed a promissory note to defendant’s order in the amount of $41,300 with interest from maturity until paid at the rate of 8% per an-num payable in 12 consecutive monthly installments. The first installment was to commence one month after date of the note and payments were to be monthly thereafter until paid. Installments 1 through 5 were to be in the amount of $700 each; installment 6 in the amount of $18,200; installments 7 through 11 in the amount of $350 each; and the twelfth and final installment in the amount of $17,850.

Mrs. Karmgard made the first four payments when they became due. She failed, however, to make the next two payments as scheduled. Defendant, though did not exercise its rights under the acceleration clause of the note. The payment schedule apparently was renegotiated to substitute a $700 payment for the sixth installment with $700 to be paid every month thereafter. Plaintiff then remitted seven additional $700 payments as they became due.

Plaintiff alleges that pursuant to the renegotiation they also agreed all payments would be attributed to interest, not principal, and the principal would remain constant at $35,000; and any time she could make a $35,000 payment the note would be paid off in full. The trial judge ruled that evidence of this agreement was violative of the parol evidence rule and allowed evidence of it only by way of proffer.

At the maturity of the note, plaintiff was unable to pay the remaining balance of $33,600. Accordingly, on October 31, 1973 she executed a second note in the amount of $43,400 with interest from maturity until paid at the rate of 8% per an-num. That note provided for 12 consecutive monthly payments, the first beginning one month after date. There were to be 11 monthly payments of $700 and a twelfth monthly payment of $43,400. The trial court held this twelfth payment to be a mutual error and reformed the figure to read $35,700.

Plaintiff made ten monthly payments of $700 on this note. On or about August 28, 1974 plaintiff paid the note in full with the sum of $35,700 (remaining balance minus a $700 rebate for early payment).

Plaintiff brought this suit seeking the forfeiture by defendant of the sum of $15,400—the total of all payments made over and above the $35,000 originally advanced—claiming that the interest charged exceeded the percentage allowed by law. LSA-R.C.C. Art. 2924, LSA-R.S. 9:3501. The trial court dismissed plaintiff’s suit at her cost holding she had failed to prove the interest charged was other than discounted or capitalized interest. Plaintiff appeals. We affirm.

Plaintiff alleges the trial court erred in excluding testimony of the oral modification of the first note, and in reforming the final payment of the second note on the ground of mutual error.

Louisiana law permits the recovery of discounted and/or capitalized interest (regardless of amount) included within the face amount of a note, provided such obligation shall not bear interest at more than 8% per annum after maturity until paid. LSA-R.C.C. Art. 2924; Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973). Accordingly, on its face the first note is not usurious because the law considers the entire amount (interest and principal) as principal.

Plaintiff contends that under the subsequent oral modification of the note all monthly payments were to be treated as interest. We find no merit to this contention. We believe though the trial judge erred in excluding evidence as to the oral modification. The provisions of LSA-R. C.C. Art. 2924 do not act as an absolute bar to the admission of all parol testimony tending to vary the terms of a note. Converse v. Dicks, 173 La. 707, 138 So. 515 (1931). A subsequent agreement which modifies an earlier written agreement may by proved by parol testimony. Lawson v. Donahue, 313 So.2d 263 (La.App. 4 Cir. 1975).

A careful examination of the proffered evidence reveals no agreement by defendant to treat payments as plaintiff suggests. Such an agreement by defendant would be totally unrealistic and impractical in the business world. Plaintiff bases her argument mainly upon a ledger sheet kept by defendant. This sheet lists all of plaintiff’s payments as interest and states “no principal payments made.” The trial judge explained the reason for this categorization as being a bookkeeping method of the mortgage company. We agree. Although capitalized interest is treated as principal under LSA-R.C.C. Art. 2924, it retains its character as interest (taxable income) to the recipient. 26 U.S.C.A. § 61(a)(4); LSA-R.S. 47:42, subd. A. We believe that such a bookkeeping procedure is acceptable in this type of business and does not evidence in any manner the alleged agreement to alter the application of payments on the note.

Plaintiff next contends the second note was usurious on its face and that the trial court erred in its reformation. We do not agree for it is quite obvious that the note’s final payment of $43,400 was in error. The twelfth installment alone could not equal the entire face amount of the note.

The face amount of this note was $43,400 and its terms called for 11 monthly payments of $700. A simple mathematical computation results in an intended final payment of $35,700. Plaintiff herself admitted that she understood the final payment was to be $35,700 (although she stated she was never informed of any error) and in fact that amount was actually paid in liquidation of the note. Courts may reform contracts to make them comply with what the parties intended where, because of error, the written contract does not set forth the intention of the parties. Branch v. Acme Homestead Ass’n, 169 So. 129 (Orl.App.1936). Clearly, the contract here did not set forth the will of the parties. Accordingly, the trial judge was correct in reforming the instrument.

For the foregoing reasons, the judgment of the district court is hereby affirmed.

AFFIRMED.

LEMMON, J., concurring.

REDMANN, J., dissenting.

LEMMON, Judge

(concurring).

The first note, dated October 31, 1972, was not usurious on its face (at least not under Supreme Court decisions relating to the discounting of capitalized interest). The note provided for interest only after maturity, and then at a non-usurious rate.

Mathematical analysis of the note, however, in the light of the fact that the sum of $35,000.00 was disbursed, leads to the conclusion that $700.00 per month was charged for the use of the money for the first six months, at which point in time one-half of the amount borrowed became due (in addition to the $700.00 monthly payment), and that $350.00 per month was charged thereafter for the use of the money for the last six months, at which point in time the other half of the amount borrowed became due. Defendant’s records support that analysis, as does the disclosure statement given to plaintiff.

Had the note been paid in accordance with these terms, plaintiff would have no cause of action based on usury. However, payments were made and accepted in the amount of $700.00 * per month for 11 months. Thus, at maturity on October 31, 1972 the note balance should have been $33,600.00 [$41,300.00-$7,700.00 ($700.00 Xll)].

Plaintiff’s entire case (as to the first note) is based on the assertion that the principal balance at that time was $35,000.00. If plaintiff had proved this assertion, then the $700.00 monthly payments were interest at a usurious rate and forfeitable. In my opinion, however, plaintiff failed to sustain her burden of proof on this point.

Plaintiff attempted to prove this point by using (1) her own testimony as to oral agreement; (2) testimony of the notary who passed a later act of mortgage; and (3) defendant’s records.

As to the subsequent oral agreement, I agree that parol evidence was admissible. However, plaintiff’s testimony (submitted under an offer of proof) did not prove a verbal contract for usury. Her testimony in substance was that she was told at the inception of the loan that she could pay off the note in full at any time for $35,000.00 or that she could pay $17,600.00 at the end of six months. She further testified that when she encountered difficulty (at about four or five months), she was told she could “go ahead and pay the interest payments of Seven Hundred Dollars each month”, rather than the amounts stipulated in the note, and that the note could be paid off for $35,000.00 at any time. Defendant’s officer denied plaintiff’s statements in this regard. Furthermore, even if plaintiff’s testimony were accepted, a payoff figure of $35,000.00 would have amounted to usury only after the loan balance went below that figure—that is, after nine months of $700.00 payments, at which time the loan balance was exactly $35,000.-00.

The evidence does not show that defendant contracted for or attempted to collect $35,000,00 after the loan balance went below that amount. Defendant’s ledger card shows the balance was $34,300.00 after the tenth payment and $33,600.00 after the eleventh.

Moreover, the record contains no evidence that when the loan was renewed at maturity, the new loan was based on the $35,000.00 figure rather than $33,600.00. Significantly, no disclosure statement was introduced relative to this transaction. And since the second note in the face amount of $43,400.00 could have been con-fected under the jurisprudence on any amount of loan proceeds, this vital element of proof is lacking.

Secondly, plaintiff tried to supply this proof with the testimony of the notary who passed the mortgage to pay off the second loan. While the notary testified he had the impression from conversations with defendant’s officer that the principal balance on the second loan was $35,000.00, he could only state with certainty that he was told the pay-off figure of $35,700.00 included all principal and interest due.

Finally, defendant’s accounting records cannot reasonably be construed to supply the needed proof. These were merely bookkeeping entries, kept for tax purposes, and do not prove defendant failed to play the game of observing all formalities required to validate a contract for interest in excess of the maximum rate.

REDMANN, Judge

(dissenting).

The evidence, including defendant’s own accounting record and defendant’s prior statement to the independent notary, supports plaintiff’s position that she was charged 2% per month for an extension of time to pay the first $17,500 instalment of the first note. Because not provided in the face amount of the note, that 2% was usurious, C.C. 2924; therefore all interest on that note should be forfeited, R.S. 9:3501, Thrift Funds of Baton Rouge, Inc. v. Jones, La.1973, 274 So.2d 150, cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53.


author: GULOTTA, Judge. LEMMON, Judge

text:
    Marshall BATES v. Margaret Theresa BATES.
    No. 7408.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Marshall Bates, in pro. per.
    James G. Kambur, New Orleans, David M. Smill, Harahan, for defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Defendant-wife appeals from a judgment in which the trial court declined to consider a transfer of custody matter for the reason that, at the time of the trial, the child did not physically reside in the state, We reverse and remand.

Defendant-wife was granted custody of the minor child in separation proceedings in Jefferson Parish. Subsequently, a divorce was obtained by the husband in Colorado. The Colorado decree is silent on custody. With the exception of a four-month period during which time the child resided with the maternal grandparents in New Iberia, Louisiana, the child remained in the physical custody of and resided with the wife in New Orleans.

Upon petition of the husband in Orleans Parish, a default judgment of custody of the minor child was granted to the husband on December 9, 1974. On the same date, the husband, armed with the custody judgment, took the child from Louisiana to his home in Denver, Colorado, where the child is presently residing. Upon motion for new trial by the wife, filed December 11, 1974, the trial judge in Orleans Parish, on January 21, 1975, granted a new trial.

On the date of the new trial, June 10, 1975, the trial judge, ex proprio motu, concluded that since the child was living and residing in Colorado, the Louisiana court was without jurisdiction to hear the custody matter. The trial judge then dismissed the rule for custody. After expressing his opinion that he was without jurisdiction to hear the custody matter, the trial judge permitted testimony to be taken and made a part of the record for consideration by him, in the event the matter was remanded.

According to the wife, when the plaintiff-husband sought custody in a Louisiana court, he submitted himself to the jurisdiction of that court. The wife points out that at the time the rule for custody was filed by the husband in Orleans Parish, the child resided with her in New Orleans.

The wife relies on LSA-C.C.P. art. 6 which provides, in pertinent part, as follows:

“Art. 6. Jurisdiction over the person
“Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
“(3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.”

Also relied on by the wife is LSA-C.C. P. art. 10(A) which provides:

“Art. 10. Jurisdiction over status
“A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
******
(5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state

It is the wife’s position that when LSA-C.C.P. arts. 6 and 10 are read together, jurisdiction is conferred on the Louisiana court by the acquiescence of the husband in filing a rule for custody while the child resided in the state. We agree.

When the husband filed the petition for transfer of custody, he submitted himself to the jurisdiction of the Louisiana courts. See LSA-C.C.P. arts. 6, 7 and 10. Moreover, once jurisdiction has attached, jurisdiction cannot be defeated, in a custody case, by the removal of the child or children from the state of Louisiana. See Pattison v. Pattison, 208 So.2d 395 (La.App. 4th Cir. 1968), writ refused, 252 La. 168, 210 So.2d 52 (1968); see also, Lu kianoff v. Lukianoff, 166 La. 219, 116 So. 890 (1928); Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Graves v. Graves, 122 So.2d 350 (La.App.2d Cir. 1960). Accordingly, we conclude the trial judge erred when he, ex proprio motu, concluded the Louisiana court was deprived of jurisdiction to hear the transfer of custody matter.

Having so concluded, we are next confronted with the question of whether we are required to render judgment on the merits, or to remand the matter to the trial court for rendition of judgment on the custody question. In the recent case of Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), the trial court, after a jury trial, had dismissed plaintiff’s suit. The Court of Appeal, finding reversible error in the trial court’s refusal to grant a requested special jury charge, remanded the case to the trial court for a new trial. Our Supreme Court granted writs and reversed that portion of the Court of Appeal judgment which remanded the case to the district court for a new trial. In doing so, it indicated that when the entire record is before the appellate court, rather than remand the case to the trial court, judicial economy dictates that the Court of Appeal review the facts and render a decision.

In Gonzales, supra, unlike the instant case, the trial judge had passed on the merits of the matter. In the instant case, the trial judge, having concluded ex proprio motu that he had no jurisdiction to hear the case, did not render a judgment on the merits.

When a trial judge has not rendered a judgment, the appellate court has nothing before it for review. Under the circumstances, determination of the custody question in the appellate court would result in a usurpation of the responsibility of the trial judge by the appellate tribunal.

Accordingly, the ex proprio motu judgment of the trial court, decreeing that the Louisiana court is deprived of jurisdiction ratione personae over the husband to hear the petition for transfer of custody, is reversed and set aside. The matter is now remanded for a determination of the custody question on its merits, based upon the evidence heretofore elicited and for any additional evidence which the trial court might deem proper.

REVERSED, SET ASIDE AND REMANDED.

LEMMON, Judge

(concurring).

As to jurisdiction

When this litigation began on July 11, 1974 by the father’s filing a petition for change of custody, the Louisiana court was the only court with jurisdiction to adjudicate the issue, because the minor was domiciled here. That adjudication (by default judgment on December 9, 1974) did not ever become definitive; in fact, inasmuch as a new trial was granted upon timely application (filed December 11, 1974) there is no viable judgment in this case, and the father’s petition for change of custody is still pending.

The jurisdiction of the Louisiana court was not defeated when the child was removed from the state under the authority of a default judgment which was immediately vacated. Furthermore, the minor is still domiciled in Louisiana, where the custodial parent (mother) is domiciled. Therefore, the Louisiana court is still the only court which has jurisdiction to determine change of custody, regardless of where the father is domiciled and regardless of whether he submitted to the jurisdiction of this court.

As to whether to remand or to render judgment on the merits

The case of Gonzales v. Xerox Corp., supra, held that when a judgment of the district court has been set aside and the entire record is before the intermediate appellate court, the latter court (constitutionally authorized to review both facts and law) should review the record and render a judgment. Implicit in this holding, however, is the condition that the record is one which is appropriate for fact finding by a reviewing court.

The present case involves no conflicting testimony and thus would be appropriate for disposition by the reviewing court on the record; however, since the father can bring another action for change of custody at any time and our judgment would have no value as a definitive judgment, a remand to the trial court (to await further action to bring the matter of change of custody to trial) is equally appropriate.

      . No separation decree is included in the record ; however, the husband stated the wife was granted custody.

      . Jurisdiction in Pattison was conferred upon the Louisiana court by plaintiff’s institution of suit for divorce. In the instant case, jurisdiction attached in the Louisiana court by the former husband’s filing in Orleans Parish of a rule for a permanent change of custody. Certainly, this factual distinction does not alter our conclusion in the instant case.

      . The husband, after misrepresenting facts to the court in confirming the default judgment, obtained police assistance in removing the child from nursery school under the authority of the judgment.

      . In this regard the present case is different from those eases in which jurisdiction over the status (divorce) was originally vested in more than one state and the forum state had “continuing jurisdiction” over ancillary matters (custody) because the nonresident had originally submitted himself to the jurisdiction of that state.

      . Of course, in those cases which involve purely factual questions determined by resolution of conflicting testimony (such as the question as to which motorist crossed on the green light), the appellate court normally is not in a position to resolve conflicting testimony, and a remand is necessary. But when the case does not turn on a resolution of conflicting testimony (as apparently was the situation in the Gonzales case), the appellate court should review the facts, apply the proper law, and render judgment based on the record.


author: DOMENGEAUX, Judge.

text:
    R. A. McQUILLIN, Plaintiff-Appellee, v. Edgar EZERNACK, Defendant-Appellant.
    No. 5508.
    Court of Appeal of Louisiana, Third Circuit.
    April 21, 1976.
    Rehearing Denied May 19, 1976.
    Andrew S. Vallien, Natchitoches, for defendant-appellant.
    Watson, Murchison, Crews & Arthur by Daniel T. Murchison, Natchitoches, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   ON MOTION TO DISMISS APPEAL

DOMENGEAUX, Judge.

The plaintiff-appellee, R. A. McQuillin, moves to dismiss the appeal of the defendant-appellant, Edgar Ezernack, on the grounds that the appellant failed to perfect his appeal by timely posting his appeal bond.

We dismiss defendant-appellant’s appeal.

The pertinent facts, briefly stated, are as follows: this is a suit filed by the plaintiff-appellee against the defendant-appellant for a sum of money alleged to be due to the plaintiff from the defendant. The case was tried on September 16, 1975, and taken under advisement. On October 30, 1975 judgment was rendered in favor of the plaintiff, and notice of judgment was mailed to all parties on that date. On November 7, 1975 the defendant-appellant moved for a suspensive and/or devolutive appeal, and on November 10, 1975 the trial court signed an alternate order of appeal in favor of the defendant. The devolutive appeal bond was set at $300.00, and the suspensive appeal bond according to law. The return date was fixed at January 10, 1976.

On November 21, 1975 the defendant filed a Motion for a New Trial, which motion was denied on December 9,1975.

Beginning on January 5, 1976, the clerk filed three motions requesting an extension of the January 10 return date, which date was ultimately extended to April 9, 1975. The record was finally filed with this court on March 24, 1976.

The defendant-appellant did not file his appeal bond until March 3, 1976.

Considering the time of filing, and the amount of the bond, it is evident that the appellant herein was not attempting to perfect a suspensive appeal. Article 2087(2), LSA-C.C.P. provides that a de-volutive appeal must be taken and security therefor furnished within 90 days of the timely application for a new trial, as provided for by LSA-C.C.P. art. 1974. If an appellant’s application for a new trial is not timely filed, then he must perfect his appeal within the same delay as if no application for a new trial had been filed. Bielkiewics v. Insurance Company of North America, 201 So.2d 130 (La.App. 3rd Cir. 1967) and case cited therein.

Under LSA-C.C.P. art. 1974 the appellant’s time for applying for a new trial began on October 31, 1975, the day after the clerk mailed the notice of judgment, and expired on November 11, 1975. The appellant’s motion for a new trial having not been made until November 21, 1975, his application was not timely, and hence, his time in which to perfect a devolutive appeal began to run on November 12, 1975, and expired on February 9, 1975. LSA-C.C.P. art. 2087(2).

Since appellant’s bond was not filed until March 3, 1976, his appeal was not timely perfected, and must be dismissed, for it is well settled that an appellate court does not acquire jurisdiction of a devolu-tive appeal unless the bond is filed within the time prescribed. Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and cases cited therein; Frank v. Travelers Insurance Company, 322 So.2d 834 (La.App. 3rd Cir. 1975); Freeman v. Liberty Mutual Insurance Company, 289 So.2d 875 (La.App. 3rd Cir. 1975).

APPEAL DISMISSED.


author: PAVY, Judge.

text:
    John R. ANCELET, Plaintiff-Appellant, v. MORENO’S AIR CONDITIONING, INC., and the Travelers Insurance Company, Defendants-Appellees.
    No. 5427.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for plaintiff-appellant.
    Don L. Broussard, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMEN-GEAUX and PAVY, JJ.
   PAVY, Judge.

On January 30, 1970, plaintiff sustained injuries in the course and scope of his employment. He has been paid compensation disability benefits continuously from that time until trial in September, 1975. After extensive initial treatment, he underwent a period in which no further treatment was indicated. The last medical bill for this initial treatment was paid by the insurer on December 17, 1971. After that, more than a year elapsed without any medical expenses being incurred or paid. In April, 1973, plaintiff incurred a $10 bill with Dr. Jerome Ambrister. In June, 1974, he filed the present suit. Subsequent to suit and prior to trial, he incurred an additional $1,921.36 in medical expenses which were duly shown on trial. Defendants (the employer and its insurer) pleaded the one-year time limitation provided by R.S. 23:-1209 against the medical expense claim on the ground that more than one year had elapsed from the last payment of medical expenses until the filing of suit. The trial court awarded compensation for total and permanent disability but upheld the plea of prescription and denied the claim for medical expenses. Plaintiff has appealed.

The prescription or peremption provision of the Louisiana Workmen’s Compensation Act is. found at R.S. 23:1209 which in pertinent part, provides as follows:

“In case of personal injury (including death resulting therefrom) all claims for payment shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chaper or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment.”

Plaintiff argues the medical expense claim is not prescribed or perempted because he has been paid disability benefits continuously and that the cases cited by his opponent are factually distinguishable from the instant case. Defendants rely mainly on the cases of Landreneau v. Liberty Mutual Insurance Company, 295 So.2d 459 (La.App.); Brown v. Travelers Insurance Company, 247 La. 7, 169 So.2d 540 (1964); Blanchard v. Liberty Mutual Insurance Company, 280 So.2d 592 (La.App. 3 Cir. 1973); Rowley v. Lumbermens Mutual Casualty Company, 247 So.2d 135 (La.App. 4 Cir.1971); Prejean v. Travelers Insurance Company, 234 So.2d 527 (La.App. 3 Cir. 1970).

In Brown, plaintiff had been paid the 400th (last) week of disability benefits on September 14, 1961. A payment for medical expenses was made November 6, 1961. Plaintiff incurred further medical expenses in early 1962 and sued for those in August of that year. Defendants sought to defeat recovery by claiming that no liability existed for medical expenses incurred after the 400th week of disability. The court rejected such claim. The ruling is not controlling herein.

In Prejean, roughly the same factual situation existed as in Brown and the court followed the Brown ruling. This decision is not favorable to defendants. If anything, the language of that case is against defendants. The court stated:

“The only recovery being sought is for medical expenses, thus the “payment” necessary to interrupt prescription under LSA-R.S. 23:1209 is a medical payment. The suit was filed less than a year from the last medical payment and therefore was timely.”

Unlike the plaintiff in Prejean, plaintiff herein is suing not only for medical expenses but for disability benefits which are clearly not prescribed.

In Rowley, plaintiff sued for both disability benefits and medical expenses after a year from the last disability benefit payment but within a year of the last medical expense payment. The court rejected the prescription plea as to the medical expense claim but sustained it as to the disability benefit claim. It observed:

“It has long been held that a payment of medical expenses will not serve to interrupt prescription as to a compensation claim. Devillier v. Hartford Accident & Indemnity Co., La.App., 219 So.2d 338 (1st Cir. 1969); writ refused 253 La. 1087, 221 So.2d 519. Davis v. Brown’s Velvet Dairy Products, La.App., 43 So.2d 266 (Orleans Appeals 1949). There are various reasons for such a holding. R.S. 23:1203' requires the employer to furnish medical care to the employee. However, 23:1204 provides:
‘Neither the furnishing of medical services or payment by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.’
The reasons for these requirements are as enunciated and Mr. Wex Malone in his treatise states: ‘This is probably for the purpose of encouraging the employer to furnish medical assistance in all cases without fear that by so doing he may prejudice his position with respect to a possible compensation claim.’ Malone, Louisiana Workmen’s Compensation, Section 384, page 500.”

The rationale of that holding, this is, that a payment of medical expenses cannot constitute an admission (acknowledgment sufficient to interrupt prescription) of liability does not apply to the facts of the instant case because the statutory provision regarding nonadmission deals with a medical expense payment in relation to the claim for disability benefits and not the opposite as exists in this case.

That case also relied on certain language in the Brown case that the medical expense claim and the disability claim are different. To the extent that such reliance would be applicable to the facts of this case, we do not choose to follow such interpretation of the Brown case for it (the Brown case) made the “separate entity” finding regarding a medical expense claim and a' disability claim to preserve the claim for medical expenses beyond the 400 weeks and not to deny it during said period of disability.

In Blanchard, payment of disability benefits ceased on July 3, 1967. A medical expense payment was made February 4, 1969. There was a resumption of disability payments in December, 1969, and a medical payment in March, 1970. The suit was filed in October, 1970. The court held that the time limitation provided by R.S. 23:1209 was one of peremption and not prescription and that all claims perempted one year from July 3, 1967, and the action taken thereafter could not revive the claims. It is true that the court stated that a medical expense payment is necessary to interrupt prescription on the medical expense claim but that statement was not necessary to that decision and it is not applicable to the facts herein.

Landreneau dealt with the question of reopening a compensation case under R.S. 23:1124 after a judgment fixing disability had been obtained. The ruling therein is not applicable here.

On grounds of policy, the language of the compensation act, and the purposes to be served by the prescription provision, we must hold that plaintiff’s claim to medical expenses is not lost by the prescription or peremption provided in R.S. 23 :1209. Even if a payment oí medical expenses may not interrupt the time period with regard to the claim for disability benefits, the converse of such (that payment of compensation benefits does not interrupt as to the medical expense claim) is not necessarily true. The tendency in the jurisprudence to hold that payment of medical expenses does not interrupt as to disability benefits is to encourage an employer or insurer in paying medical expenses without indefinitely extending its exposure to liability.

In Harris v. Traders & General Insurance Company, 200 La. 445, 8 So.2d 289 (S.Ct.1942) it was said:

“The author of the dissenting opinion filed in this case made the following appropriate comment upon the provision requiring the claimant for Workmen’s Compensation to file suit on the claim within one year, viz:
‘ * * * The purpose of the requirement that a suit be brought by the claimant within one year after the accident under the penalty of barring his recovery is of a three fold nature; (1) to enable the employer to determine when his potential liability for an accident would cease; (2) as a matter of public policy to prevent suits based on stale claims where the evidence might be destroyed or difficult to produce; (3) to fix a statute of repose giving rise to a conclusive presumption of waiver of his claim on the part of an employee where he fails to bring his suit within the fixed period.”

In this case, none of those purposes would be served by applying the said prescriptive period. Upon considering the policy that the Workmens’ Compensation Act be liberally construed in favor of the claimant, we do not apply the time limitation in this case.

Accordingly, for reasons assigned the judgment of the district court is amended so as to overrule the plea of prescription and to award plaintiff all medical expenses incurred and attributable to the accident of January 30, 1970, including the $1,931.35 shown at trial herein, with credit for all payments previously made and subject to the statutory maximum provided by R.S. 23:1203 and as thus amended said judgment is affirmed.

Appellees are to bear all costs of this appeal.

AMENDED AND AFFIRMED.


text:
    Robert Bruce GREMILLION, Plaintiff-Appellant, v. STATE FARM MUTUAL INSURANCE CO. et al., Defendants-Appellees.
    No. 5423.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.

      Alfred B. Shapiro, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Gold, Hall, Hammill & Little by Leo Gold, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

Robert “Rob” Gremillion, Jr., a minor 9 years and 3 months of age, sustained serious injuries when hit in the face by the head of a golf club in the hands of Kenny Brechtel, a minor 10 years and 8 months of age, living with his father. Suit was brought by Robert Gremillion, Sr., individually and on behalf of the child, against the liability insurer of the Brechtel family, and John Brechtel, Kenny’s father. Although it appears that, technically, John Brechtel was initially joined only in his capacity as administrator of the estate of his minor son, he did not answer in that limited capacity. Apparently, the case has been tried and, certainly, briefed before this court, on the theory that the father is a defendant in his individual capacity. Because the parties have so treated the matter and because of the disposition we will make on the question of liability, we do not deem it necessary to decide whether the father is in fact a party defendant.

The defendants denied the alleged negligence of the Brechtel child and set up contributory negligence of both Rob Gremil-lion and his father. Certain incidental demands were filed but need not be detailed for a proper discussion of the issues on which we decide the case. The trial judge denied recovery and dismissed the suit. No reasons for his decision appear in the record. Plaintiffs have appealed.

Plaintiffs claim that, by the rule in Turner v. Bucher, 308 So.2d 270 (S.Ct.1975), the only serious issue is that of the contributory negligence of Rob Gremillion, arguing that the holding of that case attaches liability to the father if his child is negligent by adult standards and by such measurement Kenny Brechtel must be found careless. Defendant contends the Turner case is distinguishable factually because of the age and the injury-causing activity of the offending child in that case, that the accident was unavoidable as far as Kenny was concerned and, alternatively, that the Gremillion child was contributorily negligent.

In Turner, the Supreme Court overruled prior jurisprudence and interpreted Civil Code Article 2318 to impose liability on a father for the action of his 6-year-old child in running a bicycle into a sidewalk pedestrian from the rear. The court stated:

“We conclude that although a child of tender years may be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resides is legally at fault and, therefore, liable for the damage occasioned by the child’s act. This legal fault is determined without regard to whether the parent could or could not have prevented the act of the child, i. e., without regard to the parent’s negligence. It is legally imposed strict liability. This liability may be escaped when a parent shows the harm was caused by the fault of the victim, by the fault of a third person, or by a fortuitous event.
Having made the threshold determination that a father is responsible for the delicts of his minor child whether or not the child is of sufficient age'to be capable of discerning the consequences of his acts, we need not determine whether this particular child, Gregory Bucher, was possessed of the requisite age and capacity to know the consequences of his act. Such an inquiry would be irrelevant and immaterial in answering the issue before us. The fact that the conduct was tor-tious when measured by normal standards is enough to render the father liable therefor.”

We are unable to agree with the contention of counsel for plaintiff regarding the Turner case. That case dealt with the liability of a parent for the acts of a child below the age of discernment. The child in that case was 6 years of age. Here, the child who committed the alleged tortious conduct was 10 years old and above the age of discernment. The precise holding of the Turner case does not bear on our approach to the question of negligence herein. Accordingly, we proceed in the ordinary fashion to determine whether young Brechtel was negligent.

The accident happened in the Gremil-lion’s backyard. The two children (Rob and Kenny) and several others were playing near a building which was detached from the residence and served as a workshop and storage shed. The storage shed was open on one end. The club belonged to Mr. Gremillion and was regularly kept in a golf bag in the open-ended shed. There was some suggestion in the evidence that several of the clubs had lain about the yard from the previous day. Kenny Brechtel testified that he found the club lying on the ground.

There is a question from the evidence as to precisely how the accident happened. Rob Gremillion testified that Kenny was swinging the club golf-fashion on one side of the shop-shed and about 10 feet from that building. Rob stated that he went to the other side of the shed and played with other children for a few minutes, after which he started chasing one of them. The chase led him around to the side at which Kenny was swinging the club and as he (Rob) came around to that side he was hit by the swinging club.

Peter Maddox, one of the children, testified that Kenny was “chopping” a stick with the club on the side of the building as previously described and that Rob was pushing or riding a “Big Wheel” (a type of tricycle toy) which had lost its front wheel; that the “Big Wheel” stuck or caught on something and Rob was thrown off balance and into the path of the club as it was on the backstroke.

Kenny himself did not see Rob immediately before the accident and could not relate just how Rob got in the position to be hit. He did confirm that he was swinging the club golf-fashion and that previously Rob had been on that side of the building but had gone to the other side.

The testimony of these three youngsters constitutes the only evidence as to precisely how Rob came to be in the path of the club. It is childlike, vague and suggestive of general unreliability. We think there is no question (1) that the accident occurred near the building (all children testified to this), (2) that the club was being used by Kenny with considerable force (the serious fractures to Rob’s face confirm this). We further think that the preponderance of the evidence is that the club was being swung golf-fashion instead of in a chopping motion (this was confirmed by both Rob and Kenny and Maddox’s statement that it was being used in a chopping motion is not consistent with the force of the blow) and (3) that Rob ran (instead of fell from loss of balance) into the path of the club because Rob would more accurately know and remember this matter rather than Maddox and Rob’s testimony on this issue is more plausible and explicit than that of Maddox.

It is well settled that in determining whether a child is negligent due regard must be given to his age, maturity, intelligence and knowledge, generally and as to the particular situation involved, as well as all the facts and the circumstances of the case including the particular risk that produced the injury. See Simmons v. Beauregard Parish School Board, 315 So.2d 883, (La.App., 3rd Cir. 1975) and authorities cited therein.

Although he was 10 years of age, there is nothing to show that Kenny Brechtel was advanced in maturity, knowledge or intelligence. Actually, he had failed one grade. It is probably true that a child of his age should realize that a swinging club hitting a human being would cause damage. However, that is not the key consideration herein. The crucial issue is whether he ought to have anticipated that Rob would suddenly and without warning place himself in the path of the swing. This requires a knowledge of children which is peculiar to adults. Children themselves are not cognizant of each other’s rash, impetuous and careless acts. The very fact that Rob, knowing that Kenny was swinging the club around the side of the shed, ran to that spot evidences a child’s natural failure to anticipate or foresee consequences and convinces us that we should not find that Kenny Brechtel was careless when gauged by standards applicable to children of his age, maturity, experience and knowledge.

Having concluded that the Brechtel child was not negligent, we do not reach the question of whether the father of Brechtel would be exonerated from liability because of the fault of the victim or fault of a third person as set out in the quoted language from the Turner case.

Accordingly, for reasons assigned the judgment of the district court is affirmed. Appellants are to bear all costs of this appeal.

AFFIRMED.


author: HOOD, Judge.

text:
    Lester L. DUCOTE, Jr., Plaintiff-Appellant, v. Neva S. DUCOTE, Defendant-Appellee.
    No. 5410.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearings Denied May 19, 1976.
    Writ Granted July 1, 1976.

      Lewis & Lewis by Seth Lewis, Jr., Ope-lousas, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe by James E. Diaz, Lafayette, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

Plaintiff, Dr. Lester L. Ducote, Jr., instituted proceedings against his former wife seeking to have the amount of alimony and child support payments which he previously had been ordered to pay decreased from $800.00 to $600.00 per month. Defendant, Mrs. Neva Ducote, reconvened praying that the amount of alimony and child support payments be increased to $1,-465.50 per month.

Judgment was rendered by the trial court on October 21, 1975, increasing the award of alimony and child support from $800.00 to $1,000.00 per month. Dr. Ducote appealed. Mrs. Ducote answered the appeal, praying that the award be increased to the amount claimed in her reconventional demand.

The sole issue presented is whether the award of alimony and child support made by the trial court should be maintained or increased or reduced.

Dr. and Mrs. Ducote were married in 1957, and of that union five children were born. One of the children is now deceased, but four of them are living, a son and three daughters. All of the surviving children are minors. The parties separated in 1968, and judgment decreeing a separation from bed and board between them was rendered the next year. A judgment of final divorce was rendered on September 17, 1970, and in that judgment the permanent custody of the four minor children was awarded to Mrs. Ducote. In the above proceedings, plaintiff was ordered to pay alimony and child support to Mrs. Ducote in the amount of $900.00 per month.

About two years later, Dr. Ducote filed pleadings seeking to reduce the alimony and support payments from $900.00 to $400.00 per month, alleging that he had discontinued practicing medicine in Lafayette, Louisiana, that he had moved to Houston, Texas, where he was engaged in studies to further specialize in his profession, and that his income thus had been drastically reduced. The parties thereafter entered into a stipulation that the amount of alimony and support payments would be reduced to $800.00 per month, beginning June 1, 1973, reserving to the parties the right to apply for modification of such an award. Following that stipulation, judgment was rendered by the trial court on May 30, 1973, reducing the amount of alimony and support payments which Dr. Ducote was required to pay from $900.00 to $800.00 per month, beginning June 1, 1973,

Dr. Ducote returned to Lafayette in 1974, and he has been engaged in the practice of medicine there since July 1 of that year. During the last week in June, 1974, his oldest child, Lester J. Ducote, left Mrs. Ducote’s home and he has been living with his father, Dr. Ducote, continuously since that time.

In 1975, Dr. Ducote filed pleadings in which he seeks a judgment decreeing among other things (1) that he be awarded the permanent custody of his minor son, Lester J. Ducote, and (2) that the amount of alimony and support which he previously had been ordered to pay be reduced. Mrs. Ducote answered and she filed a counter claim praying that the amount of alimony and support be increased to $1,465.50. She did not contest the transfer of custody of her oldest son to the father. A hearing was held first on the issues relating to custody, and a separate hearing was held later on the issue relating to alimony and child support.

After the first hearing, judgment was rendered in the trial court on March 31, 1975, transferring the custody of the oldest child, Lester J. Ducote, to plaintiff, Dr. Ducote, and decreeing that Mrs. Du-cote continue to have custody of the three minor daughters of the parties. No appeal has been taken from that judgment. Following the second hearing, judgment was rendered by the trial court on October 21, 1975, ordering that Dr. Ducote pay to his wife the sum of $1,000.00 per month, to be divided $600.00 for child support, and $400.00 for alimony. Dr. Ducote appealed from the last mentioned judgment, rendered on October 21, 1975, and it is that appeal which is before us now. As already noted, Mrs. Ducote answered the appeal, praying that the award of alimony and support be increased to $1,465.50.

Dr. Ducote has been engaged in practice as a cardiologist in Lafayette, since July 1, 1974. He has been the only cardiologist in that city since that date. His income has been substantial after his return to Lafayette, and he stipulated that he is able to pay the full amount claimed by Mrs. Ducote as alimony and child support in the event the court orders him to do so, although he contends that she is not entitled to the increases which she seeks. It is unnecessary for us to discuss the amount of his earnings, since he has stipulated that he is able to pay the full amount claimed.

Plaintiff remarried after his divorce from defendant, and he lives in a comfortable, five bedroom home in Lafayette with his second wife. Living in that home with him and his second wife are the latter’s four children, issue of her prior marriage, a new born child born of the marriage of Dr. Ducote and his second wife, and Dr. Ducote’s oldest child, Lester J. Ducote. The second Mrs. Ducote receives payments from her former husband for the support of her children. Dr. Ducote owns four automobiles and a boat, and he purchased a motorcycle for his son who has been living with him since June, 1974.

Dr. Ducote contends that since the custody of his oldest child has been transferred to him, his former wife now has to support only three children, instead of four, and that the amount of child support which he heretofore has been required to pay to defendant should be reduced. He points out that defendant and her children live in a nice neighborhood, that the children attend very acceptable schools, that they have been adequately fed and clothed, and that their needs have been met by the payments of $800.00 per month which heretofore have been made to defendant. He argues that since defendant has demonstrated that she can live on that amount per month, she is not entitled to an increase in alimony and child support, but on the contrary, that the amount of support should be reduced since she has one less child to support now.

Mrs. Ducote contends that she needs at least $1,465.50 per month to provide for her needs and for those of her three minor daughters. She argues that inflation and the ages of her daughters require greater expenditures for education, food, clothing, transportation, medical and dental bills, and entertainment, than have been required heretofore. She concedes that she has cared for herself and her children on a budget of $800.00 per month since May, 1973, but she points out that that was all she was able to get, and she stated that it was because of her inability to provide for all of their needs on such a budget that her oldest child left her home and went to live with his father in 1974.

Defendant executed and filed in the record an affidavit in which she itemizes the amounts she needs each month to provide for herself and her three daughters. She indicates in that affidavit that an award of $1,475.50 per month is necessary to enable her to meet those needs. She testified that to make ends meet she must obtain an award of the amount shown in the above affidavit, plus the additional sum of approximately $120.00 per month to cover the expense of painting her home, of paying additional insurance premiums and of enabling her daughters to resume the dancing lessons which were discontinued in 1973.

Mrs. Ducote produced her income tax returns for 1973 and 1974, and all of her cancelled checks issued during a period of more than a year prior to the trial. Plaintiff contends that those returns and cancelled checks show that defendant’s demands are excessive. After analyzing all of those checks, Dr. Ducote concedes that defendant actually needs $754.55 per month in order to meet her needs and those of her children, and he argues that the award made by the trial court should be reduced to the sum of $755.00.

One of the items of expense claimed by Mrs. Ducote, and listed in the above affidavit, is $400.00 per month for food for herself and her three daughters. Dr. Du-cote separated all of the checks which were issued by defendant in 1974 and during a part of 1975, and which were payable to food stores, and from those checks he computed that she had spent an average of only $125.91 per month for food for herself and her family during that time. He used that figure in concluding that she needs only $755.00 per month as alimony and support. Mrs. Ducote explained that she also spent cash for food items, and she maintains that her food bill averaged more nearly $400.00 per month, rather than the amount suggested by plaintiff. We think Dr. Ducote’s proposed allowance for food is totally unrealistic, and that Mrs. Ducote’s estimate of her food bill comes nearer being correct. Assuming, however, that Mrs. Ducote has managed to feed a family of four, and for a time five, on $125.91 per month, we do not feel that she should be compelled to do so any longer. In our view, she is entitled to an allowance of substantially more than the sum urged by plaintiff to provide food for herself and her three children.

Mrs. Ducote also includes as a necessary expense, the sum of $150.00 per month for a “car note.” Plaintiff points out, correctly, that defendant does not owe an indebtedness on the car she now owns. Defendant explained, however, that her car is a 1969 model Ford, it is more than six years old, and it has been driven more than 50,000 miles. She feels that it is necessary for her to replace the car, and she seeks to obtain an allowance of $150.00 per month to enable her to do so. Dr. Ducote contends that she is not entitled to an allowance for that purpose. We feel that she is. She must provide transportation for herself and her children, and considering the age of her present automobile, we agree that a reasonable allowance should be made to allow her to replace it with a newer and more dependable vehicle.

We cannot accept Dr. Ducote’s argument that defendant needs only $755.00 per month as alimony and support, primarily because the figure suggested by him does not include an allowance enabling her to obtain a better car and because his proposed allowance for food is grossly inadequate. Considering the aggregate amount which Dr. Ducote admits should be allowed, plus the additional amounts which we find should be included in the award, we conclude that defendant is entitled to at least the amount awarded by the trial court, that is $1,000.00 per month, as alimony and child support.

Dr. Ducote argues, however, that under our law “the amount of alimony paid to the wife as permanent alimony should cover only food, clothing and shelter, these items alone,” and that the wife “is not entitled to be supported in the manner to which she had been accustomed during the marriage.” He cites several cases to support that argument, the most recent ones being Leavines v. Leavines, 224 So.2d 26 (La.App. 4 Cir. 1969), and Guarisco v. Guarisco, 271 So.2d 553 (La.App. 1 Cir. 1972).

We are aware of the line of cases which hold that the alimony provided in Article 160 of the Civil Code is regarded as a pure gratuity, and that the amount thereof is to be fixed so as to provide the wife with sufficient means for her maintenance, and that “maintenance” has been interpreted to include primarily food, shelter and clothing. In the recent case of Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973), our Supreme Court held that although the term “maintenance” means primarily food, clothing and shelter, it also includes other reasonable necessities. In that case the Supreme Court said:

“We are convinced that the Court of Appeal’s award of $650.00 per month alimony for Mrs. Bernhardt is not excessive but is in fact justified. This amount has been proven necessary for her maintenance. Common sense dictates that the term ‘maintenance’, while meaning primarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife. Both courts below determined that Mrs. Bernhardt had borne the burden of proving her necessary expenses and established her entitlement to at least the $650.00 amount fixed by the Court of Appeal. We agree with those findings by the courts below.”

In the instant suit, the trial court allowed Mrs. Ducote $400.00 per month as alimony. The evidence shows, and plaintiff concedes, that it is necessary for her to pay $208.50 per month as payments on the home in which she lives. Considering that expenditure alone, we hold that an award of $400.00 per month as alimony is not excessive even under the jurisprudence relied on by plaintiff. We reject plaintiff’s argument that the trial court abused its discretion in allowing Mrs. Ducote that amount as alimony.

The trial court also allowed Mrs. Du-cote $600.00 per month as support for her three minor daughters. Plaintiff contends that in determining the amount of child support to be awarded, the court must take into consideration the “needs” • of the children and the circumstances of those obligated to pay the support. He argues that the amount of support which he should be required to pay should be based on their needs, as distinguished from their desires, and he contends that the award made by the trial court is in excess of their needs.

In this case, the evidence shows that the “circumstances” are such that Dr. Ducote is financially able to pay the amount awarded by the trial court. He, in fact, has stipulated that he is able to pay more than that amount. Our concern here, therefore, relates solely to the needs of the children.

Parents are obligated to support, to maintain and to educate their children according to their station in life. LSA-C.C. art. 224. The term “alimony” means that which is necessary for the nourishment, lodging and support of the person who claims it. It includes the education, when the person to whom the alimony is due is a minor. LSA-C.C. art. 230.

It has been held that the father’s obligation to support his children may be greater than just to supply the bare necessities of life. The children are entitled to be maintained in the same standard of living as would be their custom if living with the father. Pettitt v. Pettitt, 261 So.2d 687 (La.App. 2 Cir. 1972); Gay v. Gay, 226 So.2d 926 (La.App. 2 Cir. 1969); Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Bernhardt v. Bernhardt, supra.

The trial court is vested with wide discretion in fixing child support, and it is only where there is a clear abuse of that discretion that appellate courts will disturb the awards of support made by the trial judge. Fellows v. Fellows, 267 So.2d 572 (La.App. 3 Cir. 1972); Gay v. Gay, supra, and Pettitt v. Pettitt, supra.

After reviewing the record carefully, we find that the award of $600.00 per month made by the trial court for child support is not excessive. Our conclusion is that plaintiff is not entitled to have the award made by the trial court as alimony and child support reduced.

We turn now to defendant’s contention that she is entitled to have the award made by the trial court increased. Although we feel that she is entitled to at least the amount awarded by the trial court, we believe that some of her claims are inflated and we cannot say that the trial court abused its discretion in limiting the amount of the award to the aggregate sum of $1,000.00 per month. We thus reject defendant’s argument that the award of alimony and child support made by the trial court should be increased.

Plaintiff argues, finally, that Mrs. Du-cote is jointly obligated with him for the support of the children, and that she should be compelled to contribute to their support. He points out, correctly, that Mrs. Ducote is a licensed and qualified practical nurse, and that she probably can obtain employment which would provide her with an income. Mrs. Ducote has not worked at any time since she married plaintiff, except for a period of about two weeks while they were living together when she worked as a substitute nurse. She has not been employed at any time since they separated in 1968. She has no income, other than the alimony and support which she receives from plaintiff.

We agree that the father and mother are jointly obligated to support, maintain and educate their children. See LSA-C.C. art. 227; Porter v. Cooley, 293 So.2d 258 (La.App. 3 Cir. 1974); Marcus v. Burnett, 282 So.2d 122 (La.1973); La. Const., Art. I, Sec. 3. In the instant suit, however, we believe that Mrs. Ducote is justified in remaining at home to care for her three young daughters. It is necessary for her to provide transportation for at least some of her children to and from school, to care for them at home and to provide supervision for them. Considering those facts and the ages of the children, we find that under the circumstances presented here she should not be compelled to seek employment to enable her to contribute to their support.

Our ultimate conclusion is that there is no error in the judgment of the trial court which condemns Dr. Ducote to pay to defendant the aggregate sum of $1,000.00 per month as alimony and child support.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    Willie BARBER et al., Plaintiffs-Appellants, v. Louis TESTA, Defendant-Appellee.
    No. 5403.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Gerald P. Aurillo, Metairie, for plaintiffs-appellants.
    Hebert & Moss by David Donnell Moss, Baton Rouge, and Burton L. Wade, St. Joseph, for defendant-appellee.

      Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This is a suit for nullity of a judgment. In 1954, Willie Barber, who with -his children are plaintiffs herein, signed a purported cash sale in favor of Louis Testa, defendant, pertaining to 44 acres of land. In 1960 Barber filed a first suit to annul the sale which was dismissed for failure to prosecute. This suit is mentioned only for general background as it bears no direct and real pertinence to the present litigation. In 1971, Barber filed a second suit to recover the property. It culminated in a judgment, dated May 15, 1973, decreeing the sale to be a security device in the form of a sale with right of redemption and conditioning his right to recover the property on payment by him to defendant of certain listed indebtednesses within two months. Apparently the redemption or payoff was never effected.

In this suit, filed in April, 1975, the plaintiffs seek to annul the judgment of May 15, 1973, on the ground of fraud or ill practices as provided by Code of Civil Procedure Article 2004. The district court sustained exceptions of res judicata and of the prescription of one year as provided by said article and dismissed the suit. Plaintiffs have appealed.

MOTION TO OBTAIN THE RECORD

In this court, plaintiffs have filed a pleading entitled “Motion to Obtain the Record” in which they seek an order to the trial court to send up, for incorporation as part of the appellate record, the trial court records in the two previous suits. Although some of the documents in the second suit were filed in evidence in this nullity suit, the whole records in those first two suits were not put in evidence in this case. For this court to now receive those records would constitute the taking of evidence and the exercise of original jurisdiction with which we are not vested. See Sec. 10, Art. V, La.Const. of 1974. The proposal by appellant does not come within the language of Code of Civil Procedure Article 2132 which deals with correcting erroneous records or supplementing records which are deficient as to matters actually introduced in evidence. Accordingly, the motion to supplement is denied.

EXCEPTIONS

Plaintiffs contend that the one-year prescription is not applicable because the use of the word “discovery” in Code of Civil Procedure Article 2004 indicates actual knowledge is necessary to commence the running of that time limitation and that they only learned of the alleged fraud or ill practices within the year prior to the filing of this suit. In support of this contention, all but one of plaintiffs testified on trial of the plea of prescription that they were not aware of the judgment or the events leading up to it until they consulted their present attorney in September, 1974. Throughout the second suit, the judgment of which is sought to be annulled herein, plaintiffs were represented by counsel. The law is well settled that notice to an attorney of record is notice to the client. We do not think the “discovery” language used in Article 2004 affects that rule. Even if actual notice is required by that article, plaintiffs’ attorney had actual notice and they are chargeable with the same notice.

In Martin v. White, 219 So.2d 219 (La.App. 1st Cir. 1969), the plaintiff sought to annul a judgment because of fraud or ill practices in the form of perjury committed during a hearing at which plaintiff was represented by counsel but not present herself. In ruling that the plea of prescription was properly maintained, the court stated:

“It is settled that the knowledge of an attorney is imputable to his client. Allen v. Frank Janes Co., 142 La. 1056, 78 So. 115 (1918); Solomon v. First National Life Insurance Co., 5 So.2d 589 (La.App. Orl.1942). Since plaintiff’s attorney was aware of defendant’s testimony at the time it was given, plaintiff is charged with knowledge thereof as of that time. That testimony was given more than one year before this suit was filed, and plaintiff testified that it forms the basis of her suit. The district court properly maintained the exception of prescription.”

By our following discussion, we do not in any way mean to suggest that the attorney who represented defendant in the second suit committed any fraud or ill practice. That issue is not before us for determination. The record as made up deals mainly with the question of notice to plaintiffs’ counsel in that second suit and barely, if at all, touches the question of whether there was in fact any fraud or ill practice.

The fraud or ill practices alleged are that the judgment of May 15, 1973, was obtained without approval of opposing counsel and that it was not in conformity with the judge’s prior reasons for judgment in that the judgment reforms the document of 1954 from an outright sale to one with right of redemption whereas it ought to have been reformed to an outright mortgage.

The record does not contain the judge’s reasons for judgment. The preamble in the judgment refers to the reasons for judgment dated May 1, 1973. On May 9, 1973, defendant’s attorney wrote plaintiffs’ attorney a letter in which he enclosed the proposed judgment, discussed some of the details of it and requested that it be approved and returned for signing the following week.

Defendant’s attorney testified that, on May 14, he called plaintiffs’ attorney regarding approval of the previously forwarded judgment and was told by plaintiffs’ attorney that the judgment was all right. The judgment was signed on May 15. On May 16, plaintiff’s attorney wrote defendant’s attorney a letter, the first two paragraphs of which stated:

“When you called last Monday I had not studied your judgment, only Judge Boyd’s. I guess I was a little confused. I sent a copy of your judgment to the Barbers and asked them to comment on the exclusions. To date I have nothing and ask you to favor me with a little more time.”

We think it is a reasonable conclusion that the reference to “Judge Boyd’s” meant his reasons for judgment.

On May 18, notice of judgment was served on plaintiffs’ counsel. No motion for new trial was filed. In September, 1973, plaintiffs, through their same attorney, filed a summary proceeding entitled “Rule for Payment of Past Due Debt” in which they sought to establish certain debts by defendant arising from his receipt of proceeds of sell-offs of, or revenues from, the property. On November 2, 1973, this rule was dismissed under an exception levelled at improper use of summary procedure. In January, 1974, plaintiffs’ same attorney obtained an order of appeal from the “final judgment” rendered November 2, 1973. The briefs indicate this appeal was never perfected.

The above events clearly show that the Barbers’ attorney had full knowledge of the judgment of May 15, 1973, its contents and all events leading up to its rendition including any fraud or ill practices alleged in the petition in the instant suit. Therefore, we hold that plaintiffs, through their counsel, had notice of the alleged fraud or ill practices for more than a year prior to suit and it is barred by the one year prescription.

Plaintiffs further contend that the judgment attacked is unconscionable and ask us to exercise a discretion so as to overrule the plea of prescription. As authority, he cites the third paragraph under Comment (b) to Code of Civil Procedure Article 2004. The language quoted and the cases cited in that comment deal with the merits of the nullity claim and not with the applicability of the one year time limitation provided by that article. We know of no jurisprudence that vests any discretion in determining whether the one year prescription should be applied. The argument is without merit.

The lower court sustained the exception of res judicata and dismissed the suit on that basis also. The judgment of May 15, 1973, was the foundation for the plea of res judicata. The judgment subject to attack in the nullity action cannot be urged as res judicata against the nullity claim itself. See Powell v. Treat, 265 So. 2d 678 (1972, La.App.2d Circuit) and authorities therein.

Accordingly, the judgment of the lower court sustaining the exception of res judi-cata and thereby dismissing plaintiffs’ suit is reversed and said exception is overruled. The judgment of the lower court sustaining the exception of prescription and thereby dismissing the action is affirmed. All costs of this appeal are to be borne by appellants.

REVERSED AND RENDERED IN PART AND AFFIRMED IN PART.


author: PETERS, Judge ad hoc.

text:
    Lloyd J. THIBODEAUX, Jr., Plaintiff-Appellee, v. HOME INDEMNITY COMPANY, Defendant-Appellant.
    No. 5402.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 2, 1976.
    Allen, Gooch and Bourgeois by Arthur Robison, Lafayette, for defendant-appellant.

      Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellee.
    Before HOOD, GUIDRY, and PETERS, JJ.
   PETERS, Judge ad hoc.

This appeal is from a judgment awarding plaintiff benefits for total permanent disability and awarding plaintiff penalties and attorney’s fees under LSA-R.S. 23:1201.2. Defendant appealed from the judgment only insofar as it awarded penalties and attorney’s fees and assessed all costs against defendant. Plaintiff answered the appeal asking that the award for attorney’s fees be increased in view of the additional legal work required by the appeal.

Plaintiff injured his arm on October 19, 1973, while working for T & H Well Service, Incorporated, defendant’s insured. He was treated by Dr. Robert Luke Bordelon, an orthopedic surgeon. Dr. Bordelon found when he treated plaintiff on October 19 that plaintiff had an open fracture of the ulna of the left arm. Dr. Bordelon inserted a small pin into the arm to stabilize the ulna. Dr. Bordelon examined plaintiff from time to time thereafter and by January, 1974, had come to suspect that the portions of bone separated by the fracture were not rejoining. In an attempt to remedy this situation, Dr. Bordelon did a bone graft on February 14, 1974. In April of 1974 plaintiff was having trouble with the pin which had been inserted at the fracture site on the day of the accident so the pin was removed. By June of 1974 it began to appear that the first bone graft had not taken so a second bone graft was done on June 28, 1974. In August of 1974 plaintiff was examined by Dr. William Louis Meuleman, another orthopedic surgeon. Dr. Meuleman suggested a resection, or surgical removal, of the distal end of the ulna. On October 10, 1974, Dr. L. Lazaro III, also an orthopedic surgeon, performed a Darrach procedure, which is a resection of the distal end of the ulna back to the fracture site. Plaintiff was left with a permanent skeletal instability of the wrist due to the removal of part of the ulna. The ulna is no longer tied to the radius by ligaments. Dr. Lazaro tied the free end óf the ulna to a tendon to stabilize it somewhat, but the ulna is still quite unstable. Dr. Lazaro testified by deposition that plaintiff is disabled from doing heavy manual labor. Dr. Bordelon testified by deposition to the same effect. Plaintiff had worked as a roughneck before the accident. Drs. Bordelon and Lazaro submitted progress reports to defendant during the course of treatment. The last report was submitted by Dr. Lazaro on December 12, 1974. In this final report, Dr. Lazaro stated plaintiff had some instability around the wrist due to the resection and had about a 35% physical impairment to the function of the hand as a whole.

On February 12, 1975, plaintiff was reexamined by Dr. Meuleman at the request of defendant. Dr. Meuleman sent defendant a report in which, after setting out the patient’s medical history and the extent of examination, he expressed the following opinion:

“The writer feels that the disability to this extremity is as previously expressed, fifteen (15%) percent and this will remain permanent. As far as the patient’s complaints of loss of strength as (sic) concerned, the writer has no argument with this and fully appreciates that an individual who has not been able to use the extremity effectively for better than one year does have muscle wasting and the strength loss. The only way that it can of course be brought back is by return to work and the writer feels that the patient can return to work at this time without undue risk. Certainly pain fact- or of any consequence does not exist and in view of the fact that the patient’s only problem is. to regain strength and there is only one solution to the problem and that is to return to work and he will be able to function quite satisfactorily in the future.”

Upon receipt of this report defendant ceased compensation payments.

The trial court held that Dr. Meule-man’s report did not establish plaintiff was able to resume the duties of his former employment and therefore defendant was not justified in terminating compensation payments based upon this report. We agree with this conclusion. The report indicates there was a permanent disability of fifteen percent to the extremity and that plaintiff was suffering from a loss of strength. It further indicates plaintiff will be able to “function quite satisfactorily in the future.” (Emphasis ours.) The report as a whole recommends work as the proper therapy for recovery of strength. Although it indicates plaintiff may return to work, it says he may do so “without undue risk”; it does not say he was able at the time of the report to accomplish his former duties.

Because defendant had no definite expression from Dr. Meuleman or from either of the other physicians that plaintiff’s disability had ended, it was incumbent upon defendant to inquire further to determine plaintiff’s true condition. Chavis v. Maryland Casualty Company, La.App. 3rd Cir., 1975, 307 So.2d 663; McClelland v. Liberty Mutual Insurance Company, La.App.2d Cir., 1965, 180 So.2d 19.

As previously stated, plaintiff answered the appeal asking for an increase in attorney’s fees. The trial court awarded $3282.00 and we think this amount sufficient compensation for all legal work done in the lower court and on appeal.

For the reasons assigned, the judgment of the lower court is affirmed at defendant-appellant’s costs.

Affirmed.