text:
    John MARMOLEJO v. FAIRMONT ROOSEVELT HOTEL COMPANY, INC., et al.
    No. 7820.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    J. Robert Ates, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-appellee.

      R. K. Christovich, Christovich & Kearney, New Orleans, for defendants-appellants.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Defendant’s appeal in this workmen’s compensation case questions the sufficiency of proof that an inguinal hernia was work-caused. Plaintiff’s answer seeks penalties and attorney’s fees. We affirm.

Although we have previously ruled on this point, La.App., 301 So.2d 375, defendant would re-urge that notice of the hernia was not timely within La. R.S. 23:1221(4)(q)(l). Because of the “law of the case” policy (see Day v. Campbell-Grosjean Roofing & Sh. M. Corp., 1971, 260 La. 325, 256 So.2d 105), we decline to reconsider our prior ruling.

On the question of causation, we find the evidence sufficient to sustain the trial judge’s conclusion. Plaintiff had often been found hernia-free in pre-employment medical examinations, including one about five months before the accident. The accident “very probably” could have caused the hernia, one expert opined: plaintiff was removing a 40-pound swinging door from a bathroom stall when he dropped it (on his toe), and his straining to hold or catch it could, it was opined, have caused sufficient intra-abdominal pressure for herniation through an already weak inguinal ring. Plaintiff testified that he had no other accident and one could reasonably infer—despite the possibility that herniation through weakened rings could result from non-traumatic strain such as in coughing—that the strain at the accident was the most probable cause. The pain from herniation through stretching a congenitally weak ring is not so great as that from tearing through; and the pain from and pain medication for plaintiff’s broken toe could have somewhat masked what immediate hernia pain there was, so that plaintiff might not have noticed the hernia until a month after the accident, when it was discovered in another pre-employment physical.

There is strong contrary medical testimony which would have supported the opposite result: but we cannot hold the trial judge’s inference insupportable. The contrary testimony does, however, justify defendants’ insistence on judicial determination of causation, and penalties and attorney’s fees were therefore properly refused.

Affirmed.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Mrs. Joan Rulis, wife of Ernest J. MITTLEBRONN, III v. Ernest J. MITTLEBRONN, III.
    No. 7844.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      Tucker, Schonekas & Garrison, Arthur S. Mann, III, New Orleans, for plaintiff-appellant.
    Philip R. Riegel, Jr., and Sydney J. Par-longue, New Orleans, for defendant-appel-lee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

The wife has appealed from a judgment suspending the payment of any child support. In May, 1974, appellee, a dentist, had been ordered to pay $500 for the support of his four minor children.

In support of his rule the appellee produced a letter from Charity Hospital terminating his employment there as of July 15, 1975, and a number of letters he wrote seeking employment. He testified that he maintained a private office for the practice of dentistry but earned only $50 per week from this source, although he had earned as much as $17,000 per year from his practice until 1972. He also testified that the community between him and appellant, not yet partitioned, owned “properties,” but he gave no details as to the value. He did say the property was mortgaged but there was nothing in the record to show the community’s probable net worth.

Appellant testified that she earned $650 as an instructor of student nurses, she was paying the mortgage notes on the home owned by the community, and occupied by her and the children, but she could not meet all of the expenses of rearing her children without some contribution from her husband. When appellant was asked about the financial needs of her children, appellee’s attorney objected and stipulated that “the lady needs everything that she can get.”

We cannot condone a suspension of child support payments on the basis of this record. The best that can be said for Dr. Mittlebronn is that having lost his job on July 15 he had not found a dental position suitable to him by the time the rule was tried on August 11. The sum total of his demonstrated efforts to locate a new position consisted of some ten letters he wrote to different institutions around the country and in Canada. However, Dr. Mittlebronn’s children still require food, clothing, shelter, education and the other necessities of life. Dr. Mittlebronn did not show that he is unemployable, as we pointed out was necessary in Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir. 1975), in order for a father to excuse himself from the obligation to provide some minimal financial assistance to his children.

Furthermore, appellee’s evidence was confined to his lack of income. But in determining child support under LSA-C.C. Art. 227 the Court may consider the assets of the father, as well as his income. Sanders v. Sanders, 250 La. 588, 197 So.2d 635 (1967). Appellee’s admission that he had an interest in a community which owned property militates against his position that child support payments should be suspended. For him to prevail he would have to prove that he had no assets as well as no income and that he was unemployable.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of Mrs. Joan Rulis Mittle-bronn and against Dr. Ernest J. Mittle-bronn, III, dismissing his rule to suspend child support payments for the support of his four minor children.

REVERSED AND RENDERED.


author: SAMUEL, Judge.

text:
    Jules TASSARA v. PAYNE COMPANY et al.
    No. 7383.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    Rehearing Denied Oct. 13, 1976.

      Garon, Brener & McNeely, John F. Rob-bert, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for defendant-appellee.
    Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer, New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against three defendants, The Payne Company, James W. Knobloch, d/b/a Help!!! Service Company, and Charles T. Genovese, d/b/a Buddy’s Air Conditioning, Heating and Refrigeration, for damages allegedly arising from redhibi-tory defects and breach of contract involving the repair and restoration of plaintiff’s central air conditioning system.

After a trial on the merits, there was judgment in favor of plaintiff and against only Genovese in the sum of $2,220.60. The judgment dismisses the suit against the other two defendants. Genovese has appealed. Plaintiff has answered the appeal seeking an increased award of $5,489.76.

On April 30, 1965 plaintiff had a three-ton Chrysler central air conditioning and heating system installed in his residence for the sum of $1,332. For approximately seven years no service or maintenance work was performed on the system. Some time in April, 1972 it appears a leak had developed in either the liquid or suction line between the house and the compressor-condenser unit outside. A friend unsuccessfully attempted to solder the line. In May, 1972 appellant came to plaintiff’s home and remedied that situation.

In April, 1973, plaintiff again called appellant because the air conditioning system was not performing adequately. After a discussion of the problem, appellant installed a three-ton Payne compressor-condenser unit on the slab outside plaintiff’s home to replace the then improperly functioning three-ton Chrysler unit. Defendant charged plaintiff $597.60 for the new unit and his services. In addition, plaintiff paid defendant the sum of $30 for a “Service Contract”. This $30 service contract forms the basis for most of their dispute.

The next week plaintiff again called appellant because water was leaking down the living room walls. Appellant found the emergency drain in the attic had been displaced by someone. He remedied that situation and he acknowledges he could have dislodged the emergency drain himself. Approximately ten days after appellant’s installation, the system’s main drain became clogged, but appellant refused to perform any service or make any repairs in connection therewith. He advised plaintiff his service contract was restricted to the compressor-condenser unit and did not cover service to the remainder of the system.

Plaintiff then called the manufacturer, The Payne Company, who recommended Help!! ! Service Company. On August 6, 1973, Help!! ! -Service Company inspected the system and replaced a liquid line, installed a new motor and cleaned the blower and the evaporator coils. According to plaintiff, the system still did not cool his home. At plaintiff’s request, on August 18, 1973 a representative of Berner’s performed an inspection and found the evaporator coil still dirty, excessive refrigerant in the system, and blocked tubes. Berner’s performed some repairs in order to make the system work and made recommendations for additional repairs. No further repair was made until May, 1975, approximately two weeks prior to trial. At that time Berner’s replaced the coil in plaintiff’s system.

The record establishes, and plaintiff’s counsel stipulates, this case does not involve a redhibitory defect. On the contrary, the only questions for our decision are: (1) the nature of the service contract between plaintiff and appellant; and (2) whether there was any breach of that contract by the appellant.

Plaintiff takes the position that on his first service visit appellant agreed to inspect the entire system, ascertain the nature of all needed repairs to it, and perform whatever work was necessary to make the system function. Plaintiff further contends the service contract purchased by him for $30 covered the entire air conditioning system and not merely the unit sold and installed by appellant.

Appellant’s position is that in response to plaintiff’s call for service he ascertained the original condenser was not functioning and agreed only to sell and install the new unit. He further contends the service contract only covered labor for that unit.

The only written evidence is the service contract. It was written by appellant on a form intended for use in connection with the sale or service of television equipment, and the printed portions of the form are meaningless. The handwritten portion merely describes the condenser unit sold and contains a receipt for $30 for a one year service contract. Hence, there is nothing in the written evidence to establish plaintiff’s claim that appellant inspected and diagnosed his entire system and agreed to service it for one year.

The testimony shows applicant went into plaintiff’s attic and remained there for only a brief period of time. Appellant explains he went into the attic solely to ascertain the tonnage capacity of the coils to match the new condenser unit and did not enter the attic in order to inspect the entire system. Plaintiff’s testimony is that appellant went into the attic for only a short period and failed to diagnose the problems in plaintiff’s air conditioning system because of the brevity of the inspection. Taking the evidence as a whole, we do not believe appellant, an experienced air conditioning installer, would guarantee maintenance on an entire system for one year for $30 without a complete inspection of the entire system, including the components inside plaintiff’s attic. We thus conclude the $30 fee was for plaintiff to service only the condenser for one year and the short inspection was only for the purpose of matching the new unit with existing coils.

This finding is supported by the other warranty provisions implicit in the transaction. The unit installed carried a five-year guarantee on the compressor and a one-year warranty on the condenser. The one-year warranty covered parts only and, in the absence of a service contract, after thirty days the owner was responsible for the cost of any labor in repairing the condenser. The service contract between the parties to this unit was intended to fill this gap.

In short, we are satisfied appellant did not inspect or agree to inspect the entire system. His work was limited to the condenser-compressor unit and he did not contract to service the entire system. If he had inspected the entire system and worked thereon, he could be held responsible only for his fault in connection with the inspection and work. Since appellant made no inspection and performed no work on the entire system, his responsibility is confined to the compressor-condenser and does not extend to the whole system. In Dreyfus v. Lourd & Company. The Supreme Court stated the rule that a contractor who installs equipment and provides a warranty in connection with the installation does not warrant the entire system into which that part is placed if he did not install, modify, or otherwise affect the entire system; when a contractor furnishes both the equipment and the work called for by his contract, his warranty is limited thereto and goes no further.

The question presented is whether appellant is in breach of his one-year service contract. The record contains much discussion of four areas of appellant’s alleged irresponsible and unworkmanlike performance in the installation of the unit. Plaintiff contends appellant: (1) mismatched the unit with the coils; (2) improperly connected the unit with the central system by means of a 5/i6 inch line instead of a % inch line; (3) failed to obtain an acceptable temperature differential between air entering and leaving the system; and (4) failed to establish an acceptable head or back pressure through the lines.

Testimony on these matters is voluminous, and a technical discussion thereof would be needlessly lengthy. There is no doubt several problems occurred in plaintiff’s system after defendant installed the compressor-condenser unit. However, the air conditioning contractors, who worked on these problems and who were experts in this matter, testified the problems were in no way connected with appellant’s installation. Hence, appellant performed his service contract duties without problems and defects in the system obviously cannot be imputed to appellant’s workmanship.

Finally, we consider the claim for damages. Had appellant performed the services eventually performed by other air conditioning contractors on the problems in the attic portion of the system, he would have been entitled to further compensation. Consequently, even if he had agreed to survey and correct the defects in the entire system, his failure to perform such services did not cause any economic damage to plaintiff.

Nor does the evidence warrant an award to plaintiff for any inconvenience resulting from being deprived of a properly functioning air conditioning system. Proof of such inconvenience appears only in plaintiff’s own testimony, which was somewhat cryptic. He made several conclusionary statements regarding “aggravation”, “the problem we have sleeping” and “frustration” in trying to locate someone who would place the unit in operating condition. When asked if the unit caused him any inconvenience, plaintiff’s only answer was “quite a bit”. There was no indication or enumeration of specific instances of inconvenience or any corroboration by other witnesses, including plaintiff’s wife. Standing alone, his testimony is not sufficient evidence upon which to base a damage judgment and, of greater importance, as has been pointed out, whatever damage plaintiff may have suffered was not caused by the appellant.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the defendant-appellant, Charles T. Ge-novese, d/b/a Buddy’s Air Conditioning, Heating & Refrigeration, and against the plaintiff-appellee, Jules Tassara, dismissing said plaintiff-appellee’s suit. Costs in both courts are to be paid by the plaintiff-appel-lee.

REVERSED.

      . 111 La. 21, 35 So. 369.


text:
    MEDICORPORATION v. Anna Burglass DUNKER.
    No. 7415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    Rehearing Denied Oct 13, 1976.

      Christovich & Kearney, Robert E. Peyton, New Orleans, for plaintiff-defendant in re-convention-appellee.
    Anna Burglass Dunker, in pro. per.
    Before SAMUEL, BOUTALL and BEER, JJ.
   SAMUEL, Judge.

This is a suit on a $5,487.05 promissory note executed by the defendant as co-maker. The note bore interest at the rate of 7% per annum and provided for 25% attorney’s fees. The suit seeks the full amount of principal, together with interest and attorney’s fees.

The defendant’s answer admits the existence of the note, but denies liability thereon. The defendant also filed a reconven-tional demand seeking damages in the amount of $10,000 allegedly resulting from harassment and mistreatment of her mother in that plaintiff had allowed sheriff’s deputies to serve legal process on her while she was a patient in plaintiff’s institution and had required her to sit for more than an hour with opposing counsel, a court reporter and the plaintiff’s administrator for the purpose of taking her deposition.

Following a trial on the merits, there was judgment on the main demand in favor of plaintiff as prayed. The reconventional demand was dismissed. Defendant has appealed from that judgment.

The record reveals defendant’s mother was a patient in plaintiff’s convalescent home in New Orleans and the promissory note in suit was in payment of the amount due therefor. The note was executed by the patient and by the defendant as comakers. With regard to the main demand, it suffices to say the record supports that portion of the trial court judgment. More than adequate evidence was adduced to prove defendant’s liability on the note and the record contains no competent evidence to the contrary.

Regarding the reconventional demand, the record shows defendant’s mother, a heart patient, was confined in the convalescent home for some time prior to her death. During that time she, the mother, was involved as a plaintiff in a suit against a local savings and loan association over a real estate matter, and she was served at the home with a subpoena to have her deposition taken. Since her physician was out of town at the time of that service, plaintiff’s administrator wrote a letter, addressed “To Whom It May Concern”, stating her physician was out of town and her condition would not allow her to leave the institution without that physician’s authorization. The letter further stated that, in the absence of such authorization from her doctor, she would not be allowed to leave the institution without written assumption by her and her family of any responsibility for adverse consequences.

Defendant’s mother was represented by an attorney who arranged with the attorneys for the defendant savings and loan association to have the deposition taken at plaintiff’s institution. Attorneys for the savings and loan association appeared there at the designated time, and plaintiff’s administrator, Charles R. • Trufant, had defendant’s mother wheeled into a sun room or sitting room to await her attorney for the taking of the deposition. At the same time, in order to protect her privacy, Tru-fant cleared the room of other patients, but remained with her during the entire period she, the association’s attorneys and a reporter waited for her attorney. After approximately an hour and a half, when no appearance had been made by her attorney, and after telephone calls apparently had been made to the absent attorney’s office, a proces verbal of the happening was dictated by an association attorney to the reporter and the incident came to an end.

There is no evidence in the record connecting these happenings or the service of any subpoenas on defendant’s mother with that lady’s subsequent death. In addition, testimony by a nurse at plaintiff’s institution is to the effect there was no marked decline in her condition after the unsuccessful attempt to take her deposition, and in a letter to the nurse defendant admitted the administrator acted to “protect her mother.” In part, the letter stated: “Mr. Tru-fant did come to her rescue and did not allow them to question her.”

Hence, the record shows Trufant acted in a reasonable manner by: (1) having the patient wheeled into a comfortable room; (2) clearing the room in order to assure privacy for her in her personal matters; and (3) remaining with her constantly during the time she waited for her attorney. No questioning took place during the waiting period. While there is no proof as to his motivation in remaining, it can be inferred he intended to protect her from any possible harassment or upset and it appears to us he acted properly under the circumstances, a conclusion also reached by the trial judge. In addition, in the absence of any competent evidence connecting the episode with the patient’s death or with an adverse effect on her condition, and we find no such evidence, there is no justification in the record for an award on the reconventional demand.

Defendant assigns several specifications of error based on the manner the trial was conducted by the trial judge, all of which are without merit. She complains the trial judge did not allow her to cross examine Trufant with regard to his signature on the proces verbal of the aborted deposition. Defense counsel objected to such examination on the ground that since Trufant did not sign the proces verbal (and he did not), he could not identify the signature of the court reporter who signed the document out of his presence after it had been reduced to typewritten form. The trial judge properly maintained the objection. Moreover, the proces verbal is in evidence and the facts stated in it have never been denied by anyone.

Defendant further complains of prejudice because she was not given the opportunity to testify by introducing her deposition into evidence. She acted as her own counsel, was present during the entire trial, and chose not to take the stand. Since she was in the courtroom throughout the trial, there was no reason for introducing her deposition into evidence and the trial court did not commit error by refusing to allow her to do so.

Finally, defendant contends the trial judge hurried her to the extent that she was not afforded a proper opportunity to present her evidence. This contention is totally without substance. On the contrary, we find the trial judge showed such exceptional patience in the face of extremely difficult circumstances, primarily resulting from the fact the defendant tried the case in proper person, that he is to be commended on the manner in which he conducted himself and the trial.

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

AFFIRMED.


text:
    Frederick C. GOTTSABEND and John Lambert v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 7493.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    Frank S. Bruno, New Orleans, for plaintiffs-appellees.
    Beard, Blue, Schmitt & Mathes, Robert M. Johnston, New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   SAMUEL, Judge.

This matter is before us for the second time. It was here originally on certiorari to determine the validity of an October 27, 1972 judgment which dismissed a motion to quash filed by two of the defendants, Air Products & Chemicals, Inc., and Hartford Accident & Indemnity Company, and granted a plaintiff application for a new trial from a July 28, 1972 judgment. The July 28, 1972 judgment dismissed plaintiffs’ suit for failure to amend their petition following servings on an exception of vagueness filed by two of the defendants, A. A. Rabalais, Inc., and Aetna Casualty and Surety Company. (The other two defendants, Air Products and Hartford did not file exceptions; they had filed only an answer to the suit.) This court held the application for new trial had not been timely filed, annulled and set aside the October 27, 1972 judgment and remanded the matter to the trial court “for additional proceedings not inconsistent with the views expressed herein.”

Following remand, the trial court set a trial date and sent out notices of trial and for a pretrial conference to the four defendants, all of whom then filed a motion to dismiss the suit. The motion to dismiss was based on the fact that this court had annulled the October 27,1972 judgment which granted plaintiffs a new trial. The trial judge refused to dismiss the suit as to all defendants, rendered judgment dismissing the rule for a new trial, and reinstated the July 28, 1972 judgment which dismissed plaintiffs’ suit. However, the court took the position that the July 28, 1972 judgment of dismissal referred only to those defendants who had filed the exception of vagueness, Rabalais and Aetna, and that the suit was still viable against the other defendants, Air Products and Hartford, thus requiring the latter two defendants to go to trial. Air Products and Hartford have appealed.

The following is a chronological review of the pertinent segments of the proceedings material to the adjudication of the matter:

1/27/70 - Petition for damages filed.
9/24/71 - Exception of vagueness filed by Rabalais and Aetna.
10/ 1/71 - Answer filed by Air Products and Hartford.
2/18/72 - Judgment overruling exception of vagueness.
2/23/72 - Ex Proprio Motu order for a new trial on exception of vagueness.
3/10/72 - Exception of vagueness maintained with leave to amend within 20 days.
7/12/72 - Motion by Aetna and Rabalais to dismiss for failure to comply with court order to amend within 20 days.
7/20/72 - Judgment (on hearing for failure to amend within 20 days) ordering plaintiffs to file an amended petition in 7 days in default of which the suit is dismissed.
7/28/72 - Judgment dismissing plaintiffs’ suit for failure to comply with court order contained in judgment of July 20 to amend within 7 days.
8/ 9/72 - Plaintiffs file motion for a new trial.
8/17/72 - Motion to quash motion for a new trial filed by Aetna and Rabalais.
10/27/72 - Judgment on above two motions dismissing the motion to quash, ordering a new trial, and recalling the judgment of 7/28/72 dismissing plaintiffs’ suit. Reason for judgment given as “Equity”.
12/12/72 - Writ of Certiorari.
3/13/73 - This court’s judgment on writ holding application for new trial was untimely, annulling and setting aside the 10/27/72 judgment, and remanding the case to the trial court for “additional proceedings not inconsistent with the views expressed herein.”
5/27/75 - Notices of pretrial conference and trial set for 9/17/75 sent to all defendants.
7/22/75 - Notice of trial set for 10/20/75 sent to all defendants.
9/18/75 - All defendants file motion to dismiss. Trial judge refused to dismiss as to all defendants.
9/18/75 - Trial judge signs judgment (on rule for a new trial filed 8/9/72) dismissing rule and reinstates judgment of 2/28/72 (which dismissed plaintiffs’ suit at its cost following two contradictory hearings between plaintiffs and Raba-lais and Aetna on the exception of vagueness).
9/18/75 - Reasons for Judgment — The court was of the opinion that the appellate court judgment applied only to Rabalais and Aetna.
10/ 9/75 - Petition for appeal filed by Air Products and Hartford.

Also pertinent to such adjudication is the July 28, 1972 judgment of dismissal, which reads:

“JUDGMENT
“It having been brought to the Court’s attention that the plaintiffs after due notice and two contradictory hearings, have failed to comply with this Court’s orders as contained in Judgment of July 20, 1972;
“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that plaintiffs’ suit be dismissed at plaintiffs’ costs.
“New Orleans, Louisiana, this 28th day of July, 1972.”

Appellants contend: (1) the July 28, 1972 judgment dismissed the suit as to all defendants, including themselves; and (2) as no appeal has been taken from that judgment, it is now final and definitive and cannot be altered as to substance, citing LSA-C.C.P. art. 1951. As we do not agree with the first contention, a discussion of the second is unnecessary.

The trial judge’s conclusion that our prior judgment in this matter referred only to Rabalais and Aetna was correct. If we have concluded the suit had been dismissed as to all four defendants, our remand would have been pointless. In our opinion, the July 28, 1972 judgment dismisses plaintiffs’ suit only as to the two defendants-excep-tors, Rabalais and Aetna. It could have no other effect. The two contradictory hearings on the exception of vagueness filed only by Rabalais and Aetna, which hearings resulted in the July 28, 1972 judgment of dismissal, involved only those two defendants and the plaintiffs and did not involve appellants in any way. Insofar as those hearings and the resulting judgment of dismissal were concerned, there was no issue between plaintiffs and appellants.

Accordingly, we hold the July 28, 1972 judgment dismissed plaintiffs’ suit only as to the two defendants-exceptors, Rabalais and Aetna, and did not dismiss the suit as to appellants, Air Products and Hartford.

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

AFFIRMED.

      . Gottsabend v. Aetna Casualty and Surety Company, La.App., 273 So.2d 637.


text:
    SUBDIVISION PLANNING ENGINEERS, INC. v. MANOR DEVELOPMENT CORPORATION and Trinity Universal Insurance Company.
    No. 7530.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    Rehearing Denied Oct. 13, 1976.

      Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiff-appellee.
    Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   SAMUEL, Judge.

This matter is before this court for the second time. In our original opinion, we concluded plaintiff did not fully perform the services for which the defendant developer contracted and we limited its recovery to quantum meruit for services rendered on the developer’s entire tract of 1,129 lots, even though title was taken to only 534 lots. We also concluded plaintiff’s lien only encompassed the 534 lots owned by the developer and that the second defendant, Trinity Universal Insurance Company, was liable only for whatever amounts were due by the defendant-developer to plaintiff on the 534 lots subject to plaintiff’s lien. As additional evidence was needed for a determination of quantum meruit, we remanded for the taking of further evidence relative to the value of plaintiff’s services.

Following a hearing on remand, there was judgment in favor of plaintiff for $22,-098.44. The defendants have prosecuted this appeal from that judgment.

At the outset of the trial on remand, it was stipulated by the litigants that plaintiff’s recovery would be limited to the 534 lots included in its lien. The trial judge concluded plaintiff’s work under the contract on 250 of the lots had been completed and awarded a sum equal to the original contract price of $60 per lot. He further concluded the remaining 284 lots subject to the lien were 95% complete and as to those lots awarded 95% of the $60 contract price or $16,188. Finally, the trial judge made an award of $1,410.44 for additional services for the closing of ditches and work on rollover curbings, this work being necessary because of changes made in the developer’s plans. From the total award of $32,598.44, the trial judge subtracted $10,500 previously paid by defendants, thus reaching the final total award of $22,098.44. Even accepting as correct these conclusions concerning the value of services performed, we reverse.

Defendants raise a new issue which first appeared on remand by virtue of testimony given by Ralph Davenport, one of the principals of the plaintiff corporation. Davenport testified he and his co-principal, Don Mitchell, performed engineering services on the lots subject to plaintiff’s lien for at least six months prior to the completion of the subdivision plan and the beginning of the construction work. He stated at least 85% of the work had been performed prior to completion of the plan.

The subdivision plan was completed on March 16, 1959 and plaintiff began its corporate existence on March 24, 1959. Defendants therefore filed exceptions of no right and no cause of action based on the ground that only those performing the work have a right to a lien under the lien statute. The trial court overruled the exceptions because they were filed too late and recognized plaintiff’s lien, assigning Oliver v. Home Service Ice Co., as authority. We must disagree with this ruling.

The exceptions were filed following Davenport’s testimony showing the services were performed before the plaintiff corporation came into existence, and this issue had not been raised previously in this proceeding. The peremptory exceptions of no right and no cause of action go to the heart of the case, can be filed at any stage of the proceeding, including appeal, and may be noticed by either the trial or appellate court of its own motion.

Plaintiff relies on an estoppel argument as a basis for recovery. Plans executed by plaintiff’s principals contained the corporate name, and the contract referred to in the previous opinion, dated June 22, 1959, was addressed to plaintiff in its corporate name. Plaintiff attempted to prove the existence of an assignment of the rights of Mitchell and Davenport to the corporation in an offer of proof because the document could not be located. In its offer of proof plaintiff did introduce its corporate ratification of the alleged assignment and a copy of a pledge of the account by the plaintiff corporation to a local bank as security for a debt.

Neither the equitable principles referred to in the Oliver case nor the estop-pel argument made by plaintiff are sufficient to mitigate the long established rule that the lien statutes, R.S. 9:4801 et seq., which allow recovery by a furnisher of services against a party having no contractual privity, are considered stricti juris and must be rigidly construed. Being in derogation of normal contractual relationships, the lien statutes are to be so construed against the parties in whose favor liens are created; they are to be liberally construed in favor of third persons whose rights are thereby affected. Because defendants in this case are the original contracting party and the surety which bonded out the lien claim, the rule that liens cannot be defended or enlarged by implication or through equitable considerations assumes greater importance.

The success or failure of plaintiff is not particularly affected by defendants being “strangers” to the construction. The actual contractor was Mercury Construction Company, Inc., and its construction bond was furnished by Trinity. While Mercury is a separate corporation, it is one of three business entities formed by the individual developers in order to develop the subdivision. Moreover, the developer’s corporation signed the letter agreement of June 22, 1959 by which Engineering Services were engaged. Trinity voluntarily bonded out the claims. Therefore, defendants had substantial contact with the transaction and knowledge of the transaction prior to the time the liability arose, and consequently the argument that liens affect innocent third parties assumes no particular importance under the facts of this case. What is important is the question of whether the judgment extended or enlarged the remedies afforded by the lien statute by implication or through equitable considerations.

There is no doubt a substantial portion of the work was performed by the partnership which existed between Davenport and Mitchell. This partnership existed previous to the incorporation of plaintiff and, according to Davenport’s testimony, 85% of the work was performed prior to the effective date of that incorporation. On the face of the matter, the lien should have been filed by the partnership and/or the individual partners, Davenport and Mitchell.

Plaintiff argues the lien was transferred to it as an accessory to the transfer of partner’s rights under the contract for engineering services. However, it is clear plaintiff has failed to prove the existence of an assignment of the contract by the partners and/or partnership in favor of the corporation; the record contains no such evidence. There being no transfer of the credit to the corporation, it follows that the accessory privilege or lien likewise was not transferred to it. We conclude that plaintiff, being non-existent at the time 85% of the work was performed, had no right to file a lien to secure payment for those services. Such a lien must be filed by those who performed the work.

The Oliver case is not applicable for two reasons: (1) the lien statute was not involved and, accordingly, the Oliver court was free to base its conclusion on estoppel, an equitable consideration; and (2) it involves an attempt by a corporation to deny liability under a contract executed for its benefit prior to its actual corporate existence and thus free itself from an obligation, while the present case involves the attempted use of nonexistence as a corporate entity in order to gain a right.

As 15% of $32,598.44, the total amount of the trial court award, is less than the $10,-500 previously paid to the plaintiff by the defendants, plaintiff is entitled to no award at all and its suit must be dismissed.

For the reasons assigned, the judgment appealed from is reversed, the exception of no right of action is maintained and plaintiff’s suit is dismissed at its cost in both courts.

REVERSED.

      . La.App., 290 So.2d 375.

      . Trinity had filed a lien bond to remove the encumbrances from defendant’s property and thereby become obligated under the lien.

      . La.App., 161 So. 766.

      . Code of Civil Procedure Articles 927 and 928.

      . Lumber Products, Inc. v. Crochet, 244 La. 1060, 156 So.2d 438; Courshon v. Mauroner-Craddock, Inc., La.App., 219 So.2d 258.

      . Gauguin, Inc. v. Addison, La.App., 288 So.2d 893; Pringle Associated Mortgage Corporation v. Eanes, La.App., 208 So.2d 346; Construction Eng. Co. of La. v. Village Shop. Ctr., La.App., 168 So.2d 826.

      . Subdivision Plan. Eng., Inc. v. Manor Develop. Corp., La.App., 290 So.2d 375, at 377.

      . Plaintiffs cite C.C. Art. 2245; National Collection Service, Inc. v. Woodard, La.App., 111 So.2d 189. These authorities stand for the proposition that the transfer of a credit includes everything which is accessory to it, including a privilege.


text:
    PIERCE ENTERPRISES OF LA., INC. v. John M. MAMOULIDES, D.A. for the Parish of Jefferson and Alwynn J. Cronvich, Sheriff for the Parish of Jefferson.
    No. 7554.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    Rehearing Denied Oct. 13, 1976.

      Garland R. Rolling, Metairie, for plaintiff-appellant.
    Piasconaro & Piasconaro, Paul S. Piasco-naro, New Orleans, for defendants-appel-lees.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for the return of a 1972 pick-up truck impounded by the Louisiana State Police and ordered towed to Tuck’s Garden Road Shell Service Station, where it has remained since March 28, 1974. Defendants are The American Road Insurance Company and Yeachel Tucker d/b/a Tuck’s Garden Road Shell Service Station.

Following trial on the merits, there was judgment recognizing The American Road as the sole owner of the truck and dismissing plaintiff’s suit. Plaintiff has appealed.

The record establishes the following facts:

On December 1, 1972 Roger Maggard of Gulfport, Mississippi purchased the Ford pick-up truck in that city. The purchase was financed through the Ford Credit Company and the truck was insured by The American Road. On or about January 7, 1973 the truck was stolen. Subsequently, The American Road paid Maggard and Ford Credit $3,597 for the loss and appellant has stipulated that the former thus acquired whatever title or claim the latter two had in and to the truck.

On February 25, 1974 plaintiff purchased the truck from one James E. Purvis for $1,275 and secured a Louisiana title. When purchased, the truck had expired Alabama license plates. On March 28, 1974 the vehicle was involved in an accident in Jefferson Parish. At that time the Louisiana State Police investigating the accident determined the vehicle was stolen and ordered it towed to Tuck’s and impounded. Appellant was unable to secure the release of the truck and filed this suit for its return.

In this court appellant contends: (1) it is entitled to return of the truck under the doctrine of equitable estoppel which is applicable; and, alternatively, (2) appellant is entitled to indemnification for repairs and the expense of preserving the truck.

We find no merit in appellant’s first contention relative to equitable estoppel. Under our express law appellant has no title to the truck, cannot hold against the true owner, The American Road, and there can be no resort to equity where there is express law. The Supreme Court case of Packard Florida Motors Co. v. Malone, 208 La. 1058, 24 So.2d 75, which involved theft of an automobile in Florida and subsequent sales in Louisiana, is controlling on both issues of ownership and equitable estoppel. In that case, the court said:

* * * * * *
“Under the general rule announced in Article 2452 of the Civil Code no one can be divested of his property without his consent, and, consequently, an innocent third person under a defective title can not hold against the true owner. We have not been furnished with any authority which would justify us in taking the present case out of the general rule imposing upon the transferee the hazard of his author’s title, which required the owner’s consent to the divesture of his title. Although acting in good faith neither Burns [who purchased from the thief], Smith [who purchased from Burns] nor defendant [who purchased from Burns], as we have shown, actually ever had title to the automobile.
“It appears that the principal defense set up by defendant is embraced in the plea of equitable estoppel, resting upon the well known legal principle that where one of two innocent parties must suffer loss through the fraud of another the burden of the loss should be imposed upon him who most contributed to it. But equitable considerations can not be permitted to prevail when in conflict with positive written law. Civ.Code, Art. 21; Lancaster v. Dunn, 153 La. 15, 95 So. 385; Federal Land Bank v. Rester, 164 La. 926, 114 So. 839.
“Our positive written law declares that the sale of a thing belonging to another is null, and that the ownership of movable property can not be acquired by possession unless that possession has been maintained for a period of ten years if the thing was stolen or lost. Civ.Code, Arts. 2452, 3506, 3509. That is the express law regulating the rights of the parties, and according to which they were properly determined by the judge of the district court.”
* * * * * *

Nor do we agree with appellant’s second contention, which is based on Civil Code Articles 2314 and 2452, relative to indemnification for repairs and the expense of preserving the vehicle. In response to this contention, appellee argues that the question of reimbursement cannot be considered by us because no such request was made in the pleadings or in the trial court and consequently the judgment of the trial court does not include a consideration of the question, citing Mayo v. Stoessell, La.App., 277 So.2d 520.

We find it unnecessary to consider appel-lee’s argument for the reason that, even if that argument is incorrect and we must consider the second contention, the record contains either no evidence or insufficient evidence upon which we could base the awards sought by appellant. Although there is some appellant testimony to the effect that some repairs were made to the truck, the record is devoid of any evidence of the cost or value thereof. Nor does the record contain any evidence of any amounts expended by the appellant for the purpose of preserving the truck or that any preservation was necessary, and we note that under Civil Code Article 2314 such amounts must have been “necessarily” expended for the preservation of the property.

For the reasons assigned, the judgment appealed from is affirmed; costs in this court to be paid by the appellant.

AFFIRMED.

      . The original defendants, Jefferson Parish district attorney and sheriff, were dismissed from the suit by the plaintiff.

      . LSA-C.C. Art. 2452 reads:
      “The sale of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.”

      . LSA-C.C. Art. 21 reads:
      “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.” (emphasis ours)

      . See also Overland Texarkana Co. v. Bickley, 152 La. 622, 94 So. 138; Port Finance Co., Inc. v. Ber, La.App., 45 So.2d 404.

      . LSA-C.C. Art. 2314 reads:
      “He to whom property is restored must refund to the person who possessed it, even in bad faith, all he had necessarily expended for the preservation of the property.”
      LSA-C.C. Art. 2452 is quoted in footnote 2, supra.


text:
    Hanfred LACHNEY and the Travelers Insurance Company v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANIES.
    No. 7736.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    Rehearing Denied Oct. 13, 1976.
    Leach, Grossel-Rossi & Paysse, Michael A. Britt, Richard N. Dicharry, New Orleans, for Travelers Ins. Co., plaintiff-appellant-appellee.
    Drury, Lozes & Curry, Madison C. Moseley, James H. Drury, New Orleans, for Northern Assurance Company of America, defendant-appellant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

This is a suit for a declaratory judgment. Plaintiffs allege a dispute has arisen as to which of two insurers, The Travelers Insurance Company, a petitioner herein, or Northern Assurance Company of America, the defendant, is responsible for workmen’s compensation benefits which may be due to Lachney as a result of injuries sustained in the course and scope of his employment with Sidney Prats Sheet Metal Works. The prayer is for judgment declaring which insurer (or both) is liable.

Following trial, there was judgment holding both insurers liable in the proportion of 50% each for compensation and medical benefits due or to become due as a result of an accident which occurred on August 21, 1974. Both insurers have appealed.

Lachney, a sheet metal worker, was injured while in the course and scope of his employment on March 27, 1974, at which time Travelers was the compensation insurer of his employer, Prats. He suffered either a reoccurrence of the first injury or a new injury while in the course and scope of his employment on August 21, 1974, at which time Northern Assurance was compensation insurer of his same employer, Prats.

Testimony relative to the injuries in suit was given by Lachney, Dr. J. Browne La-Rose, Jr., a general practitioner, and Dr. Claude S. Williams, an orthopedic specialist.

Lachney testified: While moving a scaffold on Thursday, March 27, 1974, he heard his spine “pop”. He continued to work until the following Monday when he consulted Dr. LaRose, who treated him for three weeks, during which time he was sore, but continued to improve. After his last visit on April 1, he went to work for another employer for five weeks. He returned to Prats in June, doing the same work he had done prior to the March 27 injury but with some constant “soreness”. On August 21, 1974 he felt a “bone rubbing” and hot flash in his back while assisting two other men lift and move a 75 pound duct. The next day he went back to Dr. LaRose who referred him to Dr. Williams. He was hospitalized at that time and an operation was performed on September 6. On May 27, 1975 he returned to work doing the same type of work he had previously performed, but in pain.

Lachney stated the pain in August was different from that he experienced in March. There had been no hot flash or rubbing of bones associated with the first incident, nor had he previously had pain, as he had following the August incident, in the muscles of his legs and thigh.

Dr. LaRose testified: He first saw Lach-ney on April 1,1974 for injuries to his lower back sustained on March 27. A routine examination revealed a marked degree of muscle spasm, but plaintiff was too tender and painful to be examined completely. His injury was diagnosed as acute lumbo-sacral strain. He was given analgesics and muscle relaxants, and started on daily physiotherapy. He was seen on April 4 at which time he still had muscle spasms, but was improving and continued to improve when examined on April 9 and 19. On the latter date, his last visit, he had a full range of motion, no complaints of pain and no muscle spasms. He was given postural exercises for his back and advised to return to work, and to return to the doctor for further evaluation the following week. When he did not return Dr. LaRose assumed he was doing well. At no time during this entire period did he have any complaints relative to his arms or his legs, and there was no evidence of a ruptured disc. No x-rays were taken. Lachney returned on August 22 with complaints of back pain. He did not describe any new incident or injury. Examination on that date revealed spasms not as marked as those in March and forward flexion to only 50%. He was referred to Dr. Williams.

Given his history of continued back soreness over the entire period beginning in March, Dr. LaRose was of the opinion that Lachney’s later back problems related to the March incident. Although a disc syndrome would not be expected to improve within a three week period, the fact that Lachney continued to have pain after returning to work reinforced this doctor’s opinion that the disc condition resulted from the March accident. He indicated that after a lumbosacral strain a patient is prone to get a reoccurrence even from a relatively minor injury, such as a twist, or even a sneeze. He also stated there is a close line of demarcation between a diagnosis of an acute lumbosacral strain and a lumbar disc condition.

Dr. Williams testified: When first examined on August 22, 1974 Lachney complained of pain in his lower back and discomfort extending into his right leg. He told this doctor he was injured in March while picking up a heavy object and that the pain had never resolved itself even after his return to work, but it was much improved until August 21. On that date he noted a sudden pain in his right lower back and numbness in his right leg. Examination disclosed a list to the left of plaintiff’s trunk, limitation of lateral bending to the right, and limitation of flexion at his waist. X-rays indicated a ruptured lumbar disc.

He was hospitalized, placed in traction for two weeks, and then surgery was performed for the ruptured disc. Dr. Williams was of the opinion the second incident on August 21 either aggravated or actually caused the ruptured disc, since the pain in the lower right extremities was not present prior to that time. From his examination and surgery it was apparent to him that Lachney’s condition had been present for some time, but he was unable to say for how long. However, the rupture itself looked relatively recent. He was of the opinion the disc problem was not present in April or May because, if it had been present, he felt Lachney could not have been able to do much work, or even any “walking around”, following his return to work during the period between the March and August incidents.

Dr. Williams found a small piece of bone attached to the disc, which is unusual. It was a large fragment completely extruding out of the disc, pinching the nerve. This was probably of a few weeks duration and he did not think it had been present four months prior to the September operation. This doctor felt it possible the March incident could have mashed the disc or caused the central part of the disc to extrude, but as long as the disc was not pressing on the nerve the chances are that the patient would not have pain in his leg.

From Lachney’s history, it appeared to Dr. Williams that the disc did not extrude in March and that this likely happened on August 21. Although continued complaints of soreness in the back following the March incident could be indicative of something more severe than lumbosacral strain, it appeared unlikely that the work Lachney performed following the March incident could have been done with a disc involvement, since any activity of daily living, even tying shoes or lifting a suit case, could be enough pressure to cause the disc to rupture while it was sitting in a precarious position.

It is Travelers’ position that any compensation benefits due are the obligation of the defendant, since the back condition is due to the incident of August 21, 1974. The defendant’s position is that any compensation due is the responsibility of Travelers, since the back problems are due to the incident of March 21. We do not agree with either contention.

While an employer takes an employee as he finds him for purposes of the Workmen’s Compensation Act, our settled jurisprudence is that where two or more accidents are contributing causes of the disability, the employers and their insurers at the times of those accidents are solidarily liable for the payment of compensation.

In the instant case the trial judge found that both the March and the August accidents contributed to Lachney’s present condition. We agree with that finding. Accordingly, we affirm but amend to the extent of making the insurers solidarily liable.

For the reasons assigned, the judgment appealed from is amended and affirmed and recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that, only insofar as the injuries in suit and the present dispute between The Travelers Insurance Company and Northern Assurance Company of America are concerned, there be judgment declaring Travelers Insurance Company and Northern Assurance Company of America liable in solido for whatever compensation and medical benefits may have been due and may continue to become due to plaintiff, Hanfred Laehney, from and after August 21, 1974. All costs in both courts are to be paid by Northern Assurance Company of America.

AMENDED AND AFFIRMED.

      . The defendant originally named was Employers Commercial Union Insurance Companies. However, the proper defendant later was determined to be Northern Assurance Company of America.

      . Lachney also testified Travelers has paid all medical and compensation benefits due from March 27, 1974 until May, 1975 (apparently not as an admission of liability, but to -protect itself from penalties and attorney’s fees).

      . Roberson v. Liberty Mutual Insurance Co., 316 So.2d 22; Carter v. Avondale Shipyards, Inc., La.App., 308 So.2d 472; Bordelon v. Tulane Industrial Laundry, Inc., La.App., 275 So.2d 878.

      . Scott v. Hartford Accident & Indemnity Company, La.App., 302 So.2d 641, and Carter v. Tri-State Insurance Company, La.App., 259 So.2d 433, and cases cited therein.


author: CULPEPPER, Judge.

text:
    Mr. and Mrs. Carrol CONQUES, Plaintiffs and Appellants, v. John M. HARDY, Defendant and Appellee.
    No. 5580.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1976.

      Walter J. Landry, Lafayette, for plaintiffs and appellants.
    J. Burton Willis, St. Martinville, for defendant and appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Plaintiffs seek damages resulting from the issuance of an unlawful warrant for the arrest of their 9 year old son. Defendant is the justice of the peace who issued the warrant. The trial judge rejected plaintiffs’ demands. Plaintiffs appealed. Defendant answered the appeal, seeking damages for frivolous appeal.

The decisive issue is whether the defendant is protected by the rule of judicial immunity.

On suggestion of the trial judge, counsel for all parties requested that no written record be made of the evidence introduced at trial. After the appeal, the parties could not agree on a narrative of facts, so the trial judge wrote a narrative, which is conclusive under the provisions of LSA-C.C.P. Article 2131.

The facts disclosed by the trial judge’s written narrative of facts are as follows: The actions giving rise to this lawsuit began during a recess at a Breaux Bridge Elementary School. One of a group of boys on the playground tapped or slapped the back of Edward Conques’ head. In response, Edward turned and hit Joseph Be-noit in the stomach, thinking it was Joseph who had slapped him. A minor scuffle ensued between the two 9 year old boys. They were separated immediately. Neither was injured.

The parents of each child filed an affidavit for the arrest of the other. Edward Conques’ father, Carrol, first made a complaint to the defendant that Joseph Benoit had hit his son, Edward, “in the head with his fist”. Defendant accepted this complaint, with the understanding that Carrol Conques would file an affidavit later to form the basis for a warrant of arrest. Four days later, Conques did file an affidavit against Joseph Benoit, which resulted in Joseph’s arrest. Defendant did not even know Mr. Conques before this incident.

After his arrest, Joseph was taken to the parish jail, booked, charged and finally released after several hours to the custody of his parents. When Joseph returned home, his father, Harold, asked him how the altercation between him and Edward occurred. Subsequently, Harold Benoit went to defendant, explained the incident again and executed an affidavit that Edward had hit his son, Joseph, “in the stomach with his fist.” In response to the filing of this affidavit, defendant issued a warrant for the arrest of Edward Conques. A deputy sheriff executed this warrant by taking Edward and his parents to jail where Edward was booked, charged, and released within a half hour to the custody of his parents. The record does not show the nature of the crime with which either boy was charged.

There are minor differences between the facts stated in the trial judge’s narrative and the facts developed at a trial of plaintiff’s earlier suit against the sheriff of St. Martin Parish for damages resulting from the arrest. See Conques v. Fuselier, 327 So.2d 180 (La.App. 3rd Cir. 1976). The record of the earlier trial was not introduced into evidence in this case, however, so our review is limited to the trial judge’s conclusive narrative of facts.

The alleged tortious conduct in this case is the issuance of an unlawful arrest warrant. LSA-R.S. 14:13 provides that “Those who have not reached the age of ten years are exempt from criminal responsibility.” Plaintiffs argue their nine year old son was exempt. They also argue that since a justice of the peace has no juvenile jurisdiction, the defendant had no jurisdiction to issue the arrest warrant.

One of the judicial functions of justices of the peace is the issuance of arrest warrants in cases where it is believed that an offense has been committed. LSA-C.Cr.P. Articles 202 and 931. Since the conduct complained of is a judicial function, the doctrine of judicial immunity is relevant. The immunity issue must be decided before we address the merits of plaintiffs’ claim.

Plaintiffs argue that defendant cannot now raise a judicial immunity defense because he failed to plead it specially as an affirmative defense in his answer, which was in the form of a general denial. Judicial immunity is not one of the affirmative defenses enumerated in Article 1005 of our Code of Civil Procedure Article 1005. Other affirmative defenses are identified on a case by case basis. Plaintiffs cite no Louisiana cases, and we found none, specifically declaring judicial immunity to be an affirmative defense. Based on the following test, however, we have concluded that judicial immunity is an affirmative defense:

“An affirmative defense raises new matter, which, assuming the allegations of the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So.2d 111 (La.1975).

In practice, judicial immunity has been pleaded as an affirmative defense. See Bore v. Bush, 6 Mart.(N.S.) 1 (1827); Buque v. Watkins, 1 La. 131 (1830).

If the rule requiring special pleading of affirmative defenses admitted of no exceptions, defendant’s failure to plead judicial immunity could prevent our considering the issue. It is now well established, however, that “notwithstanding LSA-C.C.P. Article 1003 and 1005, pleadings may be enlarged to include an affirmative defense not specifically plead[ed], where evidence supporting such a defense is introduced without objection.” Edwards v. Edwards, 282 So.2d 858 (La.App. 1st Cir. 1973), writ refused, 284 So.2d 777 (La.1973); LSA-C. C.P. Article 1154.

We have no written trial record to determine whether evidence supporting the defense of judicial immunity was admitted without objection. However, any doubt that such evidence was admitted is dispelled by the trial judge’s written reasons for judgment, which state that the evidence shows defendant is shielded from liability by judicial immunity. In cases where there is no evidence to review, or, similarly, where the judge’s written narrative of facts is not specific, the presumption is that the judgment of the trial court is supported by sufficient competent evidence. See Hutcherson v. Welch, 316 So.2d 144 (La.App.1975). For these reasons we find that defendant’s answer has been enlarged to include the affirmative defense of judicial immunity.

The rule of pleading affirmative defense especially is designed to give fair notice of the nature of the defense to prevent surprise. As a practical matter, plaintiff had abundant notice of defendant’s intent to base his defense on judicial immunity. A pretrial exception of “No Cause Or Right Of Action”, which was pretermitted by the trial judge, alleged judicial immunity.

Having disposed of the procedural point, we now address the merits of the issue of judicial immunity. Plaintiff’s principal argument against immunity for Justice of the Peace Hardy is that he was acting beyond his jurisdiction when he issued the warrant of arrest for young Con-ques. In plaintiff’s earlier suit against the sheriff of St. Martin Parish (Conques v. Fuselier, supra), we said: “Justice of the Peace Hardy improperly issued a warrant for young Conques’ arrest without jurisdiction over the minor. . . . ” Our authority for this conclusion is LSA-R.S. 13:1569 and 13:1570, which exclude justices of the peace from the enumeration of courts and judges having jurisdiction over juveniles. We noted, however, that Article 931 of our Code of Criminal Procedure authorizes the issuance of warrants by justices of the peace. The question is, was defendant’s act of issuing a warrant for Edward Conques’ arrest an act so far beyond his general warrant authority as to make him liable for resultant damages? In our opinion, it was not.

We believe the definitive case on an inferior magistrate’s liability for damages resulting from acts exceeding his jurisdiction is Berry v. Bass, 157 La. 81, 102 So. 76 (1924). In that case, the sheriff and mayor were sued for false arrest and false imprisonment. The court disposed of the false arrest charge by holding that there simply was no arrest. The court then held that the magistrate-mayor had exceeded his jurisdiction by imprisoning plaintiff instead of giving him the right to pay a fine. The court explained:

“But in one sense the mayor exceeded his jurisdiction; that is to say, he imposed a penalty unauthorized by the ordinance, and therefore in excess of his powers. But it is none the less true that in imposing that sentence he was acting judicially and without malice.”

An exhaustive discussion of previous jurisprudence on the point of liability of judges and justices of the peace for acts in excess of their jurisdiction followed. Justice St. Paul, writing for the Berry court, summarized prior jurisprudence this way: “In all of the foregoing (cases) it will be observed that our court has laid no special stress upon any distinction between inferior magistrates and judges of superior jurisdiction . ; but the cause of action (against the judges) has been laid principally upon malice and corruption. It is true it was twice laid on want of jurisdiction, Bore v. Bush, 6 Mart.(N.S.) 1, and Lafon v. Dufroque, et al., 9 La.Ann. 350; but in Buque v. Watkins, 1 La. 131, the court (Porter, J.) was not prepared to say that the mere imposition (in good faith) of a penalty beyond that provided for by law was such acting out of the jurisdiction of the court as to authorize the infliction of damages . . .."

According to the Berry court, the trend was to hold inferior magistrates, including justices of the peace, to the same accountability in the exercise of their functions as the judges of superior courts. In the opinion, malice is recognized as an element of an action against the magistrate who has exceeded his jurisdiction by imprisoning a defendant. The court explained:

“Where they (i. e., judges) have exercised their function in good faith, without malice and corruption, they should not be held liable for errors of judgment, even in respect to the extent of their jurisdiction, or of their powers under the laws which they are called upon to enforce.”

Plaintiffs do not even allege in their petition that defendant acted maliciously or in bad faith in exceeding his jurisdiction. The trial judge states in his written narrative that defendant was in good faith and was free of malice or corruption. Therefore, according to the rule of Berry, defendant is immune from liability.

Plaintiff would distinguish Berry from the instant case on the grounds that it does not deal with a false arrest but instead with a false imprisonment. The rule of law of Berry is a general one, which applies to both arrests and imprisonments. In fact, the rule appears to be one of general application to all cases where judges in good faith and without malice exceed their jurisdiction. The Berry opinion recognizes that the determination of jurisdiction is a judicial duty, and that an honest good faith error in such a determination is within the rule of immunity of judges from damages resulting from acts performed in their judicial capacity.

We conclude, therefore, that judicial immunity will protect defendant from his honest error of judgment in this case.

We feel that this is an appropriate occasion to recall the purpose of judicial immunity. Prosser justifies the rules’ existence with this explanation:

“Even though a cynic might be forgiven for pointing out just who made this rule, the reason is of course not a desire to protect the corrupt, malicious, misbehaving official, but rather the necessity of preserving an independent judiciary who will not be deterred by the fear of vexatious suits and personal liability, together with the manifest unfairness of placing any man in a position where his judgment is required, and at the same time, holding him responsible according to the judgment of others. Prosser, Law of Torts, 4th Ed. 1971, 1987-88.”

The United States Supreme Court echoed the same sentiment in Pierson v. Ray, 387 U.S. 457, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

The only issue remaining is disposition of defendant’s demand for damages for frivolous appeal. Article 2164 of the Code of Civil Procedure authorizes such a claim, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and damages for frivolous appeal are allowed only where the appeal was taken solely for purposes of delay or where counsel did not seriously believe in the legal arguments he was advancing. Guidry v. Carmouche, 320 So.2d 267 (La.App. 3rd Cir. 1973).

This ease presents a substantial legal question on the issue of judicial immunity as it applies to justices of the peace. The appeal is not frivolous. Therefore, we reject plaintiffs’ demand for damages for frivolous appeal.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.


author: WATSON, Judge.

text:
    J. C. VALLERY, Plaintiff-Appellant, v. OLIN CORPORATION et al., Defendants-Appellees.
    No. 5587.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.

      Alvis J. Roche, Lake Charles, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard by Richard E. Gerard, Jr., Lake Charles, for defendants-appellees.
    Before MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

This case was consolidated for appeal with docket no. 5588, Howard K. Davis v. Olin Corporation, et al., La.App., 337 So.2d 634, although the two were severed for trial. A separate opinion has been rendered this date in docket no. 5588.

Plaintiff, J. C. Vallery, has appealed from a summary judgment granted by the trial court in favor of defendants, Olin Corporation and Insurance Company of North America, hereafter “INA.”

Plaintiffs-appellants contend that the trial court erred: (1) in granting summary judgments, which prevented a jury trial of factual issues; and (2) in entering orders protecting Olin from answering plaintiffs’ interrogatories and producing documents.

Both Vallery and Davis were employees of Augenstein Construction Company who allege injury by a discharge of phosgene and/or TDI gas while they were working on the premises of Olin Corporation. This suit in tort was filed against Olin Corporation and its liability insurer, INA. Others subsequently named as defendants are not parties to these appeals.

Olin and INA filed an exception of no right of action, asserting that plaintiffs’ claims, if any, are exclusively under the Louisiana Workmen’s Compensation Act and an exception of misjoinder of parties plaintiff.

Plaintiffs then propounded 31 interrogatories to Olin, several touching on the nature of the work in which plaintiffs were engaged on the dates of their alleged accidents. (The answers to the several interrogatories would be relevant to the factual question of whether the work was new construction or repair.)

Olin and INA then moved for a protective order against answering the interrogatories and also moved for a summary judgment.

The exceptions of no right (cause) of action, the motions for summary judgment, and the motions for protective orders as to both plaintiffs were heard together; the exceptions were overruled; the motions for summary judgment were maintained, dismissing the suits of both plaintiffs; and the motions for protective orders were granted.

The trial court granted the motions for summary judgment, stating it was adopting the trial court’s reasons (assigned in another division of the same court) for judgment in Kelly v. Blount Brothers Corporation, 326 So.2d 906 (La.App. 3 Cir. 1976); writ not considered, La., 329 So.2d 756. In Kelly, which arose from a similar gassing on the premises of Olin, a five-judge panel of this court reversed a summary judgment by the trial court and remanded for trial on the merits, finding that the movers for summary judgment had not clearly demonstrated absence of a genuine issue of material fact. This court’s decision in Kelly was rendered subsequent to the summary judgments now on appeal.

The trial court found in Kelly that Olin was a statutory employer under LSA-R.S. 23:1061 and, as such, immune from tort liability under LSA-R.S. 23:1032, stating that:

“The fact that plaintiff was working on new construction as well as doing repair work is of no significance.”

This court reversed, holding that the question of repair work versus new construction was critical to the decision as to whether Olin was a statutory employer.

Olin and INA contend that Kelly can be distinguished from the instant cases, because the record in Kelly included the deposition of Robert Holden, project manager at Olin for Augenstein, which deposition raised a factual question as to whether the work of Augenstein was new construction rather than repairs and maintenance.

The unanswered interrogatories propounded by plaintiffs in these cases are pertinent to the question of the nature of the work at Olin by Augenstein. LSA-C. C.P. art. 1491 provides that the trial court in connection with interrogatories:

“ . . . may render such protective order as justice may require.”

LSA-C.C.P. arts. 966 and 967 were amended in 1966 to provide that answers to interrogatories may be considered in determining whether there is a genuine issue of material fact. LSA-C.C.P. art. 967 states in pertinent part:

“The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.” (Emphasis supplied)

The official revision comment under LSA-C.C.P. art. 966 states:

“This and the succeeding article were amended on the recommendation of the Louisiana State Law Institute to accord with the amendment of Rule 56(c) and (e), the source provisions of these two articles, by the United States Supreme Court on January 21, 1963. See 83 S.Ct. 19, 29, 30 (1963). The amendments of these two articles were adopted to: (1) permit the trial judge to consider answers to interrogatories when deciding the motion for a summary judgment; and (2) require the adverse party against whom a motion for summary judgment had been taken to file counter affidavits and not permit him to rely on the bare allegations of his pleading.”

Plaintiffs in these cases produced no affidavits or other evidence in opposition to defendants’ motions for summary judgment, the latter based on the respective depositions of the two plaintiffs and four affidavits identical in substance by four employees of Olin. The affidavits state that the respective plaintiffs were engaged at the time of these accidents in routine maintenance work falling within the ambit of the trade, business and occupation of Olin; that the particular work being done had been performed by Olin employees on other occasions; and that the plant area where the accident occurred was not in the construction phase but was in production at the time of these accidents.

It is well established that one asking for summary judgment has the burden of showing that there is no genuine issue of fact; any doubt must be resolved against the mover. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

Duplechin v. Pittsburgh Plate Glass Company, 265 So.2d 787 (La.App. 3 Cir. 1972), distinguishes between maintenance and repairs which are part of the principal’s regular trade, business and occupation and the construction of a new facility or the complete reconstruction of an existing facility which is not. Also see Hudson v. Aetna Casualty Insurance Company, 299 So.2d 499 (La.App. 4 Cir. 1974); writ denied La., 302 So.2d 20.

The trial court must recognize this distinction and make a determination that there is no genuine issue of material fact on this point before granting summary judgment. See Kelly v. Blount Brothers Corporation, supra.

The general rule is that protective orders by the trial court should not be set aside by the reviewing court; the trial court has broad discretion in controlling the scope of interrogatories. Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975). In Madison, the Louisiana Supreme Court states in regard to discovery procedures that:

“ . . . we may look for guidance from the federal decisions which have interpreted identical provisions.” 308 So.2d 786.

The federal decisions provide that the appellate courts’ function is limited in such cases to inquiring whether the order under appeal was made under an error of law. Here, the record shows, the protective orders were made under an error of law. If the trial court has abused its discretion or committed prejudicial error in denying production of documents or in disallowing interrogatories, its action will be set aside on appeal only when the substantial rights of the parties are affected. Sher v. De Haven, 91 App.D.C. 257, 199 F.2d 777, 36 A.L.R.2d 937, cert. den. 345 U.S. 936, 73 S.Ct. 979, 97 L.Ed. 1363. Here, there has been substantial prejudice to plaintiffs’ rights since summary judgments have been rendered and the parties are entitled to have the answers to interrogatories considered by the trial court in determining whether there is a genuine issue of material fact.

We conclude that the trial court erred in not requiring Olin to answer plaintiffs’ interrogatories which are relevant to the issue of whether plaintiffs were involved in maintenance and repairs or in new construction or complete reconstruction, prior to granting these summary judgments.

For the foregoing reasons, the summary judgment rendered by the trial court herein in favor of defendants, Olin Corporation and Insurance Company of North America, is reversed and the matter is remanded for further proceedings, to include the answering of interrogatories previously propounded which relate to the question of whether there is a genuine issue of material fact. The right is reserved to Olin Corporation and Insurance Company of North America to re-urge thereafter their motion for summary judgment. All costs are assessed against defendants-appellees, Olin Corporation and Insurance Company of North America.

REVERSED AND REMANDED.

      . Probably properly denominated no cause of action.

      . The exception of misjoinder became moot when an order was entered without objection severing the two plaintiffs’ cases.


text:
    Howard K. DAVIS, Plaintiff-Appellant, v. OLIN CORPORATION et al., Defendants-Appellees.
    No. 5588.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.
    Alvis J. Roche, Lake Charles, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard by Richard E. Gerard, Jr., Lake Charles, for defendants-appellees.
    Before MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

This matter was severed for trial but consolidated for appeal with docket no. 5587, J. C. Vallery v. Olin Corporation et al., La.App., 337 So.2d 631, in which a separate opinion has been rendered this date.

Plaintiff, Howard K. Davis, has appealed from a summary judgment granted by the trial court in favor of defendants, Olin Corporation and Insurance Company of North America, hereafter “INA”.

Both Vallery and Davis were allegedly injured by discharges of phosgene and/or TDI gas, Vallery around September 12, 1973, and Davis around October 19, 1973. The records of the two cases are identical except for the depositions of the two plaintiffs.

Although there are factual differences between the depositions in these cases, the same interrogatories were propounded in both. The trial court, for the reasons stated in no. 5587, erred in granting protective orders to Olin and not requiring answers to interrogatories prior to decision of the motions for summary judgment.

Therefore, the summary judgment rendered by the trial court herein in favor of defendants, Olin Corporation and INA, is reversed and the matter is remanded for further proceedings in accordance with the judgment rendered in the companion case of no. 5587, J. C. Vallery v. Olin Corporation et al., La.App., 337 So.2d 631. All costs of this appeal are assessed to defendants-ap-pellees, Olin Corporation and INA.

REVERSED AND REMANDED.


text:
    Samuel W. JOYNER, Plaintiff-Appellant-Appellee, v. Herman L. WEAVER et al., Defendants-Appellees-Appellants.
    No. 5591.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.

      Makar & Whitaker, by John B. Whitaker, Natchitoches, for plaintiff-appellant.
    Edwin Dunahoe, Natchitoches, for defendant-appellee.
    Before MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

Plaintiff, Samuel W. Joyner, sued defendant, Herman L. Weaver, and his wife, Ethyl Raehal Weaver, for damages resulting from malicious prosecution and was awarded $500 by the trial court. Plaintiff has appealed, contending that the award is inadequate; defendants have appealed, contending that the trial court erred in finding liability, and, in the alternative, that the award is excessive.

Joyner holds a contractor’s license for the city of Natchitoches, although he now resides in Sabine Parish.

On November 6, 1975, Mrs. Weaver, acting on behalf of her husband, signed a written contract with Joyner to replace the walls in both bathrooms of the Weaver home and to install a basin and closet in one of the baths. The agreed contract price was $735; Mrs. Weaver gave Joyner $250 by check at the time the contract was signed; the balance was to be paid upon completion of the job. Mrs. Weaver called Joyner the same evening and said she was thinking of stopping payment on the check, but it had been cashed. The following day, Joyner and his father-in-law, Bonneville, worked at the Weaver residence about seven hours on one of the bathrooms. Joyner did not return to the Weavers’ to complete the job because of difficulties he said he had in obtaining materials. Mrs. Weaver testified that, after Joyner claimed difficulty getting materials, she ordered materials from the Natchitoches Lumber Yard (where Joyner could not obtain credit), which were delivered on November 13. Mrs. Weaver, according to her testimony, instituted several telephone calls to Joyner urging him to complete the work but received no satisfaction. Finally, on November 17, the operator informed her that Joyner’s telephone had been disconnected.

Mrs. Weaver then spoke to the city mar-shall, a deputy sheriff and an assistant district attorney, either in person or by telephone. She learned through the deputy that Joyner had moved to the adjoining parish. On November 21 (15 days after the contract was made) Mrs. Weaver signed an affidavit charging Joyner with theft and a district judge issued a warrant for his arrest.

Joyner was arrested in Sabine Parish on Saturday morning and was transferred to Natchitoches Parish where he remained in jail until Monday. He was released when his wife and father-in-law borrowed $250 and paid Herman Weaver that amount at the Natchitoches Parish Courthouse. They also gave Weaver a paid receipt for $51 worth of materials Joyner had purchased in Many for the job. Mr. Weaver gave Mrs. Joyner $25, which he stated was a fair amount for the materials.

Following the payment, Mr. Weaver advised the Natchitoches Parish Sheriff that he had completed his business with Joyner and Joyner was released immediately from jail. The record does not reflect the disposition of the warrant but there is no dispute that the criminal prosecution was terminated at that juncture.

The issues are whether: (1) the defendants wrongfully instituted criminal proceedings against plaintiff in order to recover their money; and (2) the trial court abused its discretion in the award of damages.

We have reviewed the issue of liability in the light of LSA-C.C. art. 2315 and the Louisiana jurisprudence on the tort of malicious prosecution.

The Louisiana jurisprudence is uniform in requiring three elements to be proved in an action for malicious prosecution: (1) termination of -the proceedings in favor of the plaintiff; (2) want of probable cause; and (3) malice. Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App. 2 Cir. 1974). Some dissatisfaction has been expressed by Louisiana courts with the application of the common law strictures, and in particular, the necessity of finding “malice”, which is said to be inconsistent with the civil law principle of liability for damages caused by fault. Jones v. Simonson, 292 So.2d 251 (La.App. 4 Cir. 1974). The problem seems to lie with the necessity in most cases to cast about for some basis on which to impute malice.

In the present case, it is necessary to impute malice. There was, it could be said, a reckless disregard of Joyner’s rights. Certainly, the record does not reflect that Mr. and Mrs. Weaver harbored any hatred, anger, or contempt toward Joyner; it was not a personal grudge or vendetta with them. All they wanted was to get back their money and they took the direct route of having Joyner thrown in jail until his wife came up with the $250. Wanton and reckless disregard of rights is indicative of malice. Robinson v. Goudchaux’s, 307 So.2d 287 (La., 1975).

There is no doubt that the proceedings terminated favorably to the plaintiff. Defendant, Herman L. Weaver, was present at the jail when, immediately following payment of the $250 to him by Joyner’s wife, Joyner was released by the sheriff.

There is absent any probable cause for the institution of the criminal charges against Joyner; it is apparent that defendants’ only motive in filing the criminal complaint was recovery of their money. The trial court found as a matter of fact that the charges were filed absolutely without cause.

We find no manifest error in the trial court’s placing of liability on the Weavers. They wrongfully instituted criminal proceedings against Joyner and are liable to him in damages. The trial court awarded the sum of $500 for general damages which impresses us as modest under the circumstances. However, the only evidence on the subject of damages is that presented by defendants to the effect that Joyner’s credit standing, at least in Natchi-toches, was weak. The award of $500 for general damages to Joyner is within the much discretion allowed the trial court and is affirmed. LSA-C.C. art. 1934.

Joyner alleged in his petition that he was not paid for the work performed and was paid only $25 of the $51.66 in materials purchased for the Weaver job. The trial court made no ruling oh this claim for what may be called special damages, and there is no indication that the $500 award includes these amounts.

The record supports the contention by Joyner that he is entitled to $50 for the work and $26.66 for materials.

Therefore, it is ordered, adjudged and decreed that Samuel Joyner is awarded an additional $76.66 against defendants, Mr. and Mrs. Herman L. Weaver, as special damages.

Costs are taxed against Mr. and Mrs. Herman L. Weaver.

AMENDED AND AFFIRMED.


author: HOOD, Judge. MILLER, Judge

text:
    STATE of Louisiana in the Interest of Monica Lynn PURCELL et al., Plaintiff-Appellee, Kenneth L. Purcell, Appellant, Mrs. Barbara Quebodeaux Leonpacher, Appellee.
    No. 5641.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.

      L. E. Hawsey, III, Baton Rouge, for in-tervenor-appellant.
    Bares & Placer by Michael Placer, Lafayette, for intervenor-appellee.
    Frances M. Gilfoil and David F. Hutchins, Lafayette, for plaintiff-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

This child abuse and neglect proceeding was instituted in the Juvenile Court for the Parish of Lafayette under the provisions of LSA-R.S. 14:403.

Upon request of the LaFayette Child Protection Center an instanter order was issued by the juvenile court on June 2, 1976, placing four children, Monica Lynn Purcell, Mark Patrick Purcell, John Eric Purcell and Gregory Louis Purcell, in the temporary custody of their father, Dr. Kenneth Louis Purcell. An investigation of the complaint was made, a written report of that investigation was submitted to the district attorney, a petition then was filed in the juvenile court by the district attorney, and a hearing was held, all in accordance with the provisions of LSA-R.S. 14:403 G.

Following that hearing, judgment was rendered by the juvenile court decreeing that:

“I. Monica Lynn Purcell remain in the custody of her father, Kenneth L. Purcell, M. D., until further orders of the Court; and
“II. Mark Patrick Purcell, John Eric Purcell, and Gregory Louis Purcell be remanded to the custody of their mother, Barbara Ann Quebodeaux, wife of Robert J. Leonpacher.”

Dr. Purcell, the father of the children appealed. Mrs. Barbara Quebodeaux Leon-pacher, the mother, answered the appeal praying that the judgment be amended so as to remand to her the custody of Monica Lynn Purcell.

The following issues are presented: (1) Whether the Juvenile Court had jurisdiction to “remand” the custody of the three boys to their mother, Mrs. Leonpacher, after determining that the evidence failed to establish abuse or neglect of those three children; and (2) whether that portion of the judgment which orders that Monica Lynn Purcell remain in the custody of her father is adequately supported by the evidence.

The record shows that Dr. Purcell and his first wife (now Mrs. Leonpacher) were divorced on June 26, 1972. The custody of their four minor children, Monica Lynn, Mark Patrick, John Eric and Gregory Louis Purcell, was awarded to the mother, subject to reasonable visitation by the father. Both Dr. Purcell and Mrs. Leonpacher later remarried.

In May, 1976, the four children visited their father, and when the visitation period expired, Dr. Purcell refused to return the children to the Leonpacher household. Instead, he filed a motion in the divorce proceedings in the district court seeking a change of custody. Mrs. Leonpacher thereupon petitioned the district court for a writ of habeas corpus to compel appellant to return the four children to her custody, and she also filed pleadings in that court seeking other types of relief.

While those matters were pending in the district court, the present proceeding was instituted in the Juvenile Court for the Parish of Lafayette. The application for a writ of habeas corpus was voluntarily dismissed by Mrs. Leonpacher, but some of the other proceedings instituted by the parties are still pending in the district court. The only judgment which is before us for review on this appeal, however, is the one which was rendered by the juvenile court.

We agree with the' trial judge that the evidence fails to establish abuse or neglect of the three boys, Mark Patrick, John Eric, and Gregory Louis Purcell.

The Juvenile Court for the Parish of Lafayette is a court of special or limited jurisdiction, and as such, it has only such authority as is granted to such a court by constitutional and legislative enactments. Louisiana Const.1974, article 5, §§ 18 and 19; LSA-R.S. 13:1561.1; State v. Alexander, 320 So.2d 610 (La.App. 4 Cir. 1975).

The law grants to juvenile courts exclusive original jurisdiction in proceedings concerning any child, domiciled in or found within the parish, who has been determined to be abused or neglected under LSA-R.S. 14:403. See LSA-R.S. 13:1570, et seq.; In Re Cruse, 203 So.2d 893 (La.App. 4 Cir. 1967). If the evidence does not establish that the child has been abused or neglected in such a proceeding, the juvenile court has no jurisdiction or authority to determine the custody of the child or to render any other judgment relating to custody. State In Interest of King, 310 So.2d 614 (La.1975); Mertens v. Mertens, 308 So.2d 508 (La.App. 3 Cir. 1975).

Since the evidence in the proceeding now before us does not show abuse or neglect of any of the three Purcell boys, we conclude that the Juvenile Court for the Parish of Lafayette had no jurisdiction or authority to render a judgment relating to the custody of those children.

The judgment appealed from decrees that the three boys “be remanded to the custody of their mother.” Appellant, Dr. Purcell, contends that the word “remanded,” as used in that judgment, conceivably could be construed as meaning that the custody of the three boys has been transferred to or reinstated in the mother by the juvenile court. He argues that since that court had no jurisdiction to award custody of the children to anyone, all orders of the juvenile court pertaining to the three Purcell boys are null, and the judgment appealed from thus should be amended to decree only that the juvenile proceedings should be dismissed insofar as they relate to the three boys.

Mrs. Leonpacher, the mother, contends that the judgment appealed from does not “grant” custody of the three boys to her, but that it simply “restores” to her the custody which had previously been ordered by the district court. She argues that the judgment appealed from should be affirmed insofar as it relates to the three boys.

We do not believe that the juvenile judge intended to award or to order the transfer of custody of the three boys to their mother. We agree with appellant, however, that the use of the term “remanded”. in that judgment conceivably could be misinterpreted as an award of custody. For that reason, we have decided to amend the judgment of the trial court by deleting that part which orders that Mark Patrick, John Eric and Gregory Louis Purcell be remanded to the custody of their mother, and to decree only that these proceedings are dismissed insofar as they relate to those three children.

Turning now to the second issue presented on this appeal, Mrs. Leonpacher takes the position that “the juvenile judge did not find that Monica Lynn Purcell had been abused,” but that he merely found that it was “within the best interest of this juvenile” that she remain with Dr. Purcell. She argues that since the court did not find Monica Lynn to be abused, the juvenile court was without jurisdiction to award custody to the father.

The trial judge did not state specifically in his reasons for judgment that he found Monica Lynn to have been abused or neglected. Considering the reasons for judgment as a whole and the decree which was signed in this case, however, it is apparent that the juvenile judge found that Monica Lynn had been abused or neglected, and on the basis of that finding he decreed that she should remain in the custody of her father.

Mrs. Leonpacher argues that the evidence fails to support a finding that Monica Lynn had been abused or neglected. Our review of the record convinces us that there is sufficient evidence to support the judgment of the juvenile judge relating to that child. Since we agree with the trial judge that the evidence establishes abuse or neglect of Monica Lynn, it follows that the juvenile court had jurisdiction or authority to determine the custody of that child.

The law is settled that the determination of the trial judge in child custody matters is entitled to great weight, and that his discretion in those matters will not be disturbed on review in the absence of a clear showing of abuse thereof. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

We find no abuse of discretion on the part of the trial court in rendering judgment decreeing that Monica Lynn should remain in the custody of her father, Dr. Purcell, until further orders of the court.

For the reasons assigned, that part of the judgment appealed from which decrees that Mark Patrick Purcell, John Eric Purcell, and Gregory Louis Purcell, be remanded to the custody of their mother, Mrs. Leonpaeher, is amended to decree simply that these juvenile proceedings are dismissed insofar as they relate to the above named three children. The judgment appealed from is affirmed in all other respects, and it particularly is affirmed insofar as it decrees that Monica Lynn Purcell will remain-in the custody of her father, Kenneth L. Purcell, M.D., until further orders of the court. One-half the costs of this appeal are assessed to appellant, Dr. Kenneth L. Purcell, and the remaining costs are assessed to appellee, Mrs. Barbara Ann Leonpacher.

AMENDED and AFFIRMED.

MILLER, J., concurs and assigns written reasons.

MILLER, Judge

(concurring).

While I agree to the modification of the trial court judgment, I respectfully submit the trial court also understood and applied the law set forth in our opinion.

Although the record does not contain judgments granting custody of the four children to the mother, pleadings in the record and arguments of counsel leave no doubt that both the judicial separation and divorce judgments granted custody of all four children to the mother, subject to specified visitation rights granted the father.

When the trial court set aside its ex parte order granting temporary custody of the three boys to the father, he “remanded” custody of these boys to the mother. This is precisely what we accomplish by setting aside the ex parte order granting the father temporary custody of the three boys.

One other phase of this case bears discussion. As noted in our majority opinion, both mother and father have contested custody of their children on prior occasions. Furthermore, the father has a custody claim pending in the proper forum at this time. Trial courts should not allow child abuse and neglect proceedings under LSA-R.S. 14:403 to be used to change child custody to the other parent. To prevent abuse of the use of this harsh remedy, the ex parte custody order granted in this case should have placed the children with the Child Welfare Division of the Department of Public Welfare rather than with one parent. On finding child abuse, the trial court should have awarded temporary custody of Monica to the same department pending trial of the father’s attempt to get custody — that hearing is scheduled to commence the day these opinions are being handed down.

I respectfully concur in the decree.