text:
    Carolyn Carter COLLINS, Plaintiff-Appellant, v. William M. COLLINS, Jr., Defendant-Appellee.
    No. 11578.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      James A. Gray, II, Baton Rouge, of counsel for plaintiff-appellant, Carolyn Carter Collins.
    Etta Kay Hearn, Baton Rouge, of counsel for defendant-appellee, William M. Collins, Jr.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Carolyn Carter Collins, appeals from a judgment sustaining defendant’s declinatory exception and dismissing her rule for lack of jurisdiction. Plaintiff obtained a judgment of divorce in 1971 from William M. Collins, Jr., the defendant herein. The divorce judgment included an award of seventy-five dollars per month child support. Although he was at the time domiciled in California, the defendant personally submitted to the jurisdiction of the court.

After William Collins, Jr. failed to comply with the alimony provisions of the judgment, Carolyn Collins brought the present rule to obtain a judgment for arrearages and to increase the amount of alimony. She requested that an attorney be appointed to represent her absent ex-husband. The attorney so appointed filed an exception of no jurisdiction over the person. The trial court sustained the exception.

We believe that the trial court was in error. It had continuing jurisdiction over the defendant. The case of Imperial v. Hardy, 302 So.2d 5 (La.1974) is almost exactly in point. There the first action was to make a foreign arrearages judgment execu-tory and to fix child support in accord with the foreign decree. The husband submitted to the jurisdiction and judgment was rendered against him.

Five years later the wife filed a rule to make past due payments executory and to increase the child support. The rule was served on the attorney of record for the husband. The husband excepted to the jurisdiction over him and also to the service of process. The Supreme Court sustained the trial court’s overruling of the exceptions. The court stated, “When a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of the State to bind him by every subsequent order in the cause.” Imperial, supra, at 8. This is exactly the situation we have here.

The only difference in the two cases is that here an attorney was appointed to represent the absent husband whereas in Imperial service was made on his attorney of record. This is no reason for a different result. Under Imperial, the trial court had jurisdiction over Mr. Collins. Whenever a court has jurisdiction over an unrepresented absent defendant, it can appoint an attorney to represent him. C.C.P. Art. 5091. The appointment of an attorney was unnecessary in Imperial because the court found that the husband was still represented by his attorney of record. Here, Mr. Collins proceeded in proper person in the divorce action so he had no attorney of record. The procedure of appointing an attorney was correct.

The defendant relies on the case of Smith v. Smith, 257 So.2d 446 (La.App. 1st Cir. 1972). We agree that the decision there supports defendant’s position. However, we believe Smith to have been overruled by our Supreme Court in Imperial.

For the above reasons, the judgment of the Family Court is reversed and this matter is remanded. All costs pertaining to this appeal are assessed against appellee. All other costs are to await a final determination on the merits.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    John TORREGANO v. The HOME INSURANCE COMPANY.
    No. 11580.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Meyer Sabludowsky, New Orleans, for plaintiff, appellant.
    James C. Murphy, Jr., New Orleans, for defendant, appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for workmen’s compensation benefits in which plaintiff John Torregano claims to be permanently and totally disabled as the result of an injury to his back suffered while employed at the Holiday Inn of Slidell. Defendant is the Home Insurance Company, workmen’s compensation insurer of the employer. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and he has appealed.

The record shows that plaintiff injured his back on January 9, 1975, in the course and scope of his employment. He consulted his personal physician, Dr. Jack R. Diamond, who diagnosed a lumbar strain. He was treated daily with heat, traction, muscle relaxants and analgesics. On January 27, 1975, his condition was essentially unchanged and plaintiff was admitted to Sli-dell Memorial Hospital and a consultation was obtained with Dr. Charles W. Krieger, an orthopedist, who recommended bed rest, heat and exercise.

On his discharge from the hospital on February 10, 1975, plaintiff was sent to Dr. Robert E. Ruel, an orthopedist. Dr. Ruel felt that plaintiff had sustained a sprain of the lower lumbar spine, but was unable to make any objective clinical findings of injury at the time of his examination on February 14, 1975. On March 10, 1975, plaintiff was examined, at the request of his attorney, by Dr. Robert L. Applebaum, a neurosurgeon. His examination produced “minimal mechanical findings and no neurologic deficit.” He recommended no diagnostic or therapeutic procedures.

Dr. Diamond continued plaintiff on therapy. By March 31, 1975, he was unable to elicit any physical findings to account for plaintiff’s complaints of pain, and suggested a psychiatric consultation, which plaintiff declined. On April 9, 1975, plaintiff related a “bizarre” set of symptoms, none of which Dr. Diamond could relate to his injury. Plaintiff was then sent to Dr. Rae-burn C. Llewellyn, a neurosurgeon; who saw him on April 18, 1975. Dr. Llewellyn felt that plaintiff had improved to the point that he could benefit from returning to his regular work on a trial basis. He found no neurological problems.

Dr. Diamond testified that he suggested that plaintiff return to work. Plaintiff stated that he returned and requested light work, but was told that none was available. He did not attempt his regular duties. Dr. Diamond put him on a new medication on May 9, 1975. On May 16, 1975, Dr. Diamond examined plaintiff again, and as of that date was of the opinion that he could return to his regular work. Dr. Diamond continued to see plaintiff thereafter, and to treat him for other complaints, but found no reason to change his opinion relative to plaintiff’s condition. He last saw plaintiff on February 13, 1976.

Dr. Byron M. UnKauf, an orthopedist, saw plaintiff for the first time on March 6, 1976, at which time he felt plaintiff was suffering from “mild residuals of a low back strain”. He continued to see plaintiff during 1976, the last visit being December 13, during which time plaintiff was taking medication and therapy prescribed by Dr. UnKauf. Throughout that period Dr. Un-Kauf was of the opinion that plaintiff was unable to return to his employment with Holiday Inn.

Plaintiff testified that he was not able to work because of his back. He admitted having drawn unemployment compensation benefits from August, 1975, until April, 1976. In order to draw these benefits, the employee must be able to work and be available for work. R.S. 23:1600. Plaintiff testified that he was unaware of this legal requirement, although it was set forth in the pamphlets given him when he was drawing the compensation.

Plaintiff was paid workmen’s compensation by defendant through May 18, 1975, when the benefits were discontinued.' As of that time, Dr. Diamond was of the opinion that plaintiff was fully recovered from his accident and able to return to his work.

The trial judge was of the opinion that' plaintiff had failed to carry the burden of proving himself disabled. After reviewing the record, we find that only factual issues are involved, and that there is no manifest error in the conclusion of the trial judge.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: ELLIS, Judge.

text:
    Samuel CILANO v. DEPARTMENT OF EMPLOYMENT SECURITY.
    No. 11583.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Samuel Cilano, in pro per.
    James A. Piper, Baton Rouge, for appel-lee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is an appeal by Samuel Cilano from an opinion of the State Civil Service Commission affirming his dismissal from his position as Clerk II in the Louisiana Department of Employment Security.

The letter from the appointing authority dated July 2, 1976, gives the following cause for his dismissal:

“For the period ending March 31, 1976, you received an unsatisfactory service rating with specific reasons therefor being assigned in your official service rating. Pursuant to Rule 10.8(a) you were given a re-rating for the period ending June 30, 1976. For the reasons assigned in your official service rating you were again rated unsatisfactory based on your performance.
“Since, during the re-rating period, your performance remained unsatisfactory, in accordance with Civil Service Rule 10.8(b) and Rule 12.1, I have concluded that it is in the best interest of this Agency that your services be terminated. The two service ratings previously referred to herein, which contain the specific reasons for the action taken are attached to, and made part of this notice.”

On July 16, 1976, Mr. Cilano timely appealed his dismissal, giving the following as the basis for his appeal:

“Mr. Cilano claims that he has been discriminated against in his termination from employment. Mr. Cilano feels that his termination has been based upon:
“A. Personality conflicts between Mr. Cilano and immediate supervisors;
“B. Unfair subjective appraisals by Mr. Cilano’s supervisors of his work performance;
“C. That fact that Mr. Cilano has appealed to this board because of denial of an annual salary increase; and
“D. An assertion by Mr. Cilano’s supervisors that he is generally disliked.”

Prior to the hearing before the Commission, Mr. Cilano filed a motion for summary disposition, based on the alleged inadequacy of the notice of dismissal, in that it does not give a clear and detailed cause for the dismissal and does not state that Mr. Cilano’s conduct impairs the efficiency of the public service.

After the hearing, the Commission rendered its opinion, denying the motion for summary disposition, finding that Mr. Cila-no failed to bear the burden of proving that he was discriminated against or that his discharge was based on non-merit factors. It further found the appointing authority had proven the inadequacy of Mr. Cilano’s work performance.

Mr. Cilano’s appeal places at issue the failure of the Commission to sustain his motion for summary disposition, and its failure to find that his termination was based on discrimination and non-merit factors.

The Commission based its denial of the motion for summary disposition on the following Civil Service Rules:

“Rule 10.8 Effect of ‘Unsatisfactory’ Rating.
“(a) When an employee receives an ‘Unsatisfactory’ service rating, he becomes ineligible for promotion or salary increases until he receives a ‘Satisfactory’ rating. On or after June 30 but not later than September 30 of each rating year the appointing authority shall cause each employee who has an ‘Unsatisfactory’ rating to be rerated and shall notify the Director of the new rating.
“(b) In addition to the penalties provided in Subsection (a) hereof an employee with an ‘Unsatisfactory’ rating may be subjected to any of the penalties set forth in Rule 12.1.”
“Rule 12.1 Disciplinary Actions.
“An appointing authority may take appropriate action to remove, suspend, demote, reduce in pay, reassign or reprimand an employee for cause.”

In its opinion, the Commission said:

“It is clear that the letter of termination specified that appellant was being terminated due to an unsatisfactory service rating in which reasons therefor were specified and, further, an unsatisfactory rerating. Civil Service Rules 10.8(b) and 12.1 provide the authority for such action. To hold otherwise would be to deprive an appointing authority of the power of dismissing employees who were simply not doing their jobs. It is not alleged that appellant committed any one specific act for which he was terminated. It is simply alleged in the letter of termination that appellant was not doing the job for which he was employed, and the specifics of the failure are listed in the service ratings attached to and made part of the letter of dismissal.”

We cannot agree with the Commission in its holding that an allegation of an unsatisfactory service rating alone gives a sufficient cause for disciplinary action. The circumstances which give rise to the rating, rather than the rating itself, are the real cause for the action, and should be alleged in detail, giving the employee the opportunity to defend against specific charges of misconduct. However, since the ratings were attached to and made part of the notice, we think the appointing authority has given the detailed notice required. The motion for summary disposition was therefore properly overruled.

The other assignment of error is that the Commission erred in not finding that Mr. Cilano was discharged “due to discrimination and due to non-merit factors.” Mr. Cilano testified to a number of circumstances which are alleged to show discrimination against him. He testified that Robert Rule, one of his supervisors, said that he hated Italians; that the people in the office disliked him because of his personality; that his supervisors would send messages with their eyes to his coworkers to be mean to him; and that he was the victim of mental cruelty and harassment by his supervisors.

Mr. Cilano’s charges were denied by Randal Strother, his immediate supervisor, who testified that the action taken against Mr. Cilano was not based on any factor other than his job performance. Other witnesses testified to substandard work on Mr. Cila-no’s part.

Our review of the record fails to reveal any manifest error on the part of the Commission in rejecting the testimony of Mr. Cilano, or in finding that he failed to prove that his dismissal was due to discrimination or non-merit factors.

The opinion of the Commission is therefore affirmed, at Mr. Cilano’s cost.

AFFIRMED.


text:
    Joe (Joseph) GUIDRY v. LOUISA SUGAR COOPERATIVE, INC., et al.
    No. 11586.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Harold L. Savoie, Lafayette, for appellant.
    M. J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for appel-lees.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit by Joe (Joseph) Guidry for damages for personal injuries and property damage suffered when his tractor-trailer rig overturned. Defendants are Louisa Sugar Cooperative, Inc. and United States Fidelity and Guaranty Company, its insurer. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and he has appealed.

According to the testimony of plaintiff and his witnesses, the accident happened because plaintiff was told to drive his truck around to re-enter the unloading area while it was partly unloaded and badly out of balance. As he drove off the concrete slab at the unloading area, they testified that one of his wheels went into a hole, causing the truck to turn over.

Defendants’ witnesses testified that plaintiff was not told to drive around, but only to pull up a few feet; that he drove off on his own initiative; and that the truck turned over while on a black top public highway adjacent to the unloading area and entirely off the defendants’ property.

The trial judge accepted the testimony of defendants’ witnesses as more believable and reasonable, and found no negligence on the part of Louisa Sugar Cooperative or its employees. He found that the accident happened because plaintiff drove an unstable tractor-trailer rig without proper caution.

This appeal presents only questions of fact. After reviewing the evidence, we find the conclusions of the trial judge to be fully supported by the record.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: BLANCHE, Judge.

text:
    George J. WILLIAMS v. ALCOHOLIC BEVERAGE CONTROL BOARD FOR the CITY OF BATON ROUGE et al.
    No. 11594.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Joseph P. Brantley, IV, Baton Rouge, of counsel, for plaintiff-appellee, George J. Williams.
    Samuel R. Cicero, Baton Rouge, of counsel, for defendant-appellant Alcoholic Beverage Control Bd. for the City of Baton Rouge, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

The Alcoholic Beverage Control Board, defendant-appellant, appeals from a decision under a rule nisi enjoining the Board from suspending or revoking the liquor license of George J. Williams, d/b/a Place Duplantier Club.

Following the receipt of a petition from numerous residents of Burgin Street and College Hill Place in Baton Rouge objecting to the continued operation of the Place Du-plantier Club, the Board held a public hearing on November 1, 1976, and revoked the license stating the licensed premises were being operated in a manner contrary to the general public welfare.

The same day the district court granted Williams’ petition for a temporary restraining order, and on November 19, 1976, a hearing on a rule nisi was conducted. Judge Eugene W. McGehee, in written reasons, commented that the court did not question the authority of the City of Baton Rouge to regulate businesses generally to insure they are operated in a manner not contrary to the general good, that authority being inherent under the police power of a municipality. He based his decision to enjoin the Board on his conclusion that the evidence adduced at the hearing failed to establish that Williams operated his business contrary to the general public welfare.

Although “contrary to the general public welfare” in such cases has not been defined by ordinance, statute or otherwise, the trial court did find that the evidence failed to support a finding that Williams was in violation of either local ordinances found in Title 9, Sections 9 and 11, of the City Code or state statutes found in LSA-R.S. 26:88 and 89. There is no error in this finding.

The testimony of the citizens in the area at the district court hearing leads us to believe that the tranquility of their lives was disturbed as a result of the noise created in the general vicinity of the Place Du-plantier Club. However, the evidence fails to establish that this inconvenience could be imputed to the manner in which Williams operated the business. Thus, we believe their inconvenience finds its source in the nature of the business which is licensed there rather than from the manner in which it was operated.

Accordingly, the judgment of the trial court is affirmed, defendant-appellant to pay all costs of these proceedings.

AFFIRMED.


text:
    C. B. SMITH, d/b/a CBS Builders v. Paul WESTERVELT, Jr.
    No. 11595.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Richard L. Muller, Mandeville, for plaintiff-appellee.
    Harold B. Carter, Jr., New Orleans, for defendant-appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Paul Westervelt, Jr., defendant-appellant, is appealing from a judgment for $1,174.60, representing the balance due the plaintiff-appellee under an oral cost-plus construction contract.

Defendant-appellant questions the right of the contractor, C. B. Smith, d/b/a CBS Builders, to include as costs the charges for his own labor and to include $601.20 as 10 percent over-head cost in addition to the oral agreement of “cost plus ten percent.”

Regarding the item which the contractor included for his own labor, we follow Foster v. Soule, 310 So.2d 170 (La.App. 4th Cir. 1975), writ denied, 313 So.2d 827 (1975), wherein it states that though a contractor working on a “cost-plus” basis can perform actual labor on one of his own “cost-plus” jobs, any claim for such must be subject to strong scrutiny. The record includes an exhibit itemizing the dates and hours of the carpentry and miscellaneous labor that the contractor performed on the Westervelt job. Relying on Exhibit P-6, introduced in evidence, miscellaneous labor between June 7 and June 14,1973, is shown as $20.00; and on nineteen days between June 15, 1973, and July 12, 1973, there is shown a total of 79 hours of work performed at $7.00 per hour for a total of $553.00, which sum, together with the $20.00 miscellaneous labor, reaches the sum of $573.00 in question. At the trial Smith testified that he prepared the information on the exhibit from his records and that the work he performed included “all the framing, the removing of the beams in the ceiling, removing the garage door, installing the glass door, removing the sheetrock on the walls, rehanging the sheetrock.” We would rely on the trial judge giving weight to his testimony in this regard and finding that his labor was sufficiently proven. Therefore, we will affirm this portion of the judgment in the sum of $573.00 for his labor.

The item of $601.20 arose from Smith adding 10 percent of his costs as a charge for overhead to include, as he expressed at the trial “your insurance, your taxes, your withholding, and all of this stuff will amount to approximately ten percent of your basic contract.” If Smith’s contention were sustained, however, it would have the effect of converting the contract into a cost plus 20 percent contract rather than a cost plus 10 percent. Smith took the position that it was “customary” to include an overhead item as costs. No proof of the actual cost of overhead was submitted. Smith, also, was equivocal concerning whether he had discussed with Westervelt the inclusion of an additional 10 percent for overhead as an item of costs, stating that he would not swear that he discussed it with Westervelt. Absent evidence of consent by Westervelt, whom the record shows to be inexperienced in the building trade, we follow Osyka Mercantile Co. v. W. F. Klumpp & Co., 7 Or.App. 194 (1910), which concluded that custom could not be invoked against a party not in the same trade; and, therefore, he cannot be presumed to have contracted in reference to it. This is in accord with LSA-C.C. art. 1964:

“Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”

In the factual situation before us, West-ervelt could not be imputed with the knowledge of the cost plus 10 percent overhead usage in a trade to which he did not belong or was not familiar. Supporting our holding is this statement:

“ * * * [T]he ensuing doubt concerning the meaning of the contract must be resolved in favor of the debtor and against the creditor. * * * (Aubry and Rau, Civil Law Translations — Obligations, § 347[3], p. 350)

Therefore, we hold that plaintiff is hot entitled to the sum of $601.20 as 10 percent overhead cost, and it should be deducted from the judgment.

For the reasons stated above, we amend the judgment of the trial court so as to reduce the award to plaintiff to $573.40. In awarding this $573.40, we are aware that it is forty cents more than the arithmetic would allow by reducing the trial court judgment by $601.20 for the overhead cost, but this forty cents is de minimis and we allow it to the plaintiff. In all other respects the judgment is affirmed: All costs are to be shared equally by the parties.

AMENDED, AND AS AMENDED, AFFIRMED.


author: COVINGTON, Judge.

text:
    Benjamin HAYNES v. Carl DAVIS et al.
    No. 11598.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Roy M. Maughan, Baton Rouge, of counsel, for plaintiff-appellee Benjamin Haynes.
    Jos. F. Keogh, John T. Caskey, Jr., Robert L. Kleinpeter, Baton Rouge, of counsel, for defendants-appellants Carl Davis, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment in favor of plaintiff, Benjamin Haynes, and against defendants, Joseph Bryan Clem-mons and Catherine L. Clemmons, heirs of the deceased defendant, Sheriff Bryan Clemmons, in the sum of $6,000.00.

In this Court, for the first time, the appellants have filed a peremptory exception of prescription. The basis for the exception is that the date on which the alleged tort occurred was November 22, 1967, instead of November 29, 1968, as alleged, so that under the one-year prescriptive period provided by LSA-C.C. art. 3536, the suit has prescribed. The record shows unquestionably that the date of the stabbing incident was November 22, 1967. Plaintiff, Haynes, testified to the occurrence on that date. The hospital records reflect that date. The investigative report gives the date of the stabbing as November 22, 1967. The pre-trial order fixes that day as the date of plaintiff’s injury. In addition, the plaintiff concedes in his brief filed in this Court that that is the correct date.

The record further clearly shows that the instant suit was not filed until November 27, 1968, more than one year after the stabbing incident. In the suit, the plaintiff named Carl Davis, the inmate who allegedly stabbed Haynes, Sheriff Bryan Clemmons, the City of Baton Rouge and the Parish of East Baton Rouge as parties defendant. The City and Parish were subsequently dismissed on exceptions of no cause of action.

On this appeal, the appellants contend that they are permitted to file the exception of prescription on appeal as long as they plead the exception prior to submission to us for decision; the appellee submits that it is discretionary with the appellate court to consider, or not consider, a peremptory exception when it was not pleaded in the trial court and is first filed in the appellate court.

Article 2163 of the Code of Civil Procedure provides, in pant, as follows:

“The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
“If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court [for the purposes of having a trial on the exception of prescription].”

While it is true that Article 2163 is written in permissive, rather than mandatory, language, we believe this means that we are directed to exercise our sound discretion in deciding whether or not to consider the peremptory exception which was first filed in this Court. We are not permitted to arbitrarily decline to consider such a plea when the record shows clearly that the action has prescribed. In this case “the proof of the ground of the exception” does definitely appear of record.

The plaintiff has not demanded that the case be remanded so the exception could be tried. See Louisiana Bank and Trust Company v. Boutte, 286 So.2d 143 (La.App. 3 Cir. 1973). There is convincing proof in the record of the date of the tort and the date of the institution of the action; consequently, we render judgment decreeing that the action has prescribed, and dismiss plaintiff’s suit.

Since we feel that neither plaintiff-appel-lee nor defendants-appellants are entirely blameless for the posture of this suit, we decree that each party is to pay his own costs, and the costs of this appeal are divided equally between appellants and appellee.

SUIT DISMISSED.

      . Judgment was rendered on February 25, 1976, against Sheriff Clemmons. After the trial and prior to the decision, Bryan Clemmons died, and his widow and only child were substituted as parties defendant.

      . The record reflects that defendant Sheriff filed a motion for summary judgment, which was denied; however, he did not file an exception of prescription prior to the signing of the judgment, nor did the defendant raise the question of prescription in his motion for a new trial.

      .Obviously the plaintiff intended that the date reflect November 29, 1967, as suit was filed two days prior to the date of the incident as alleged in the petition.

      . The record does not show what disposition was made of the suit against Davis.


text:
    Floyd D. TIDWELL v. OCEAN SYSTEMS, INC., et al.
    No. 11600.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Harold J. Lamy, New Orleans, for plaintiff and appellant.
    Donald T. Carmouche, Donaldson, Huntington B. Downer, Jr., Houma, for defendants and appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Plaintiff, Floyd D. Tidwell, brought this action for personal injuries resulting from a motor vehicle accident which occurred on U. S. Highway 90, in Assumption Parish, Louisiana, on November 12,1974, at about 3 o’clock P. M. Plaintiff’s automobile collided with a tractor-trailer driven by Wilbur Francis, an employee of Ocean Systems, Inc.

Ocean Systems, Inc., and its insurer, Home Indemnity Co., was sued for damages. The plaintiff also joined J. B. Talley and Co., Inc., which was constructing the highway on which the accident occurred, and its insurer, Chicago Insurance Company.

After trial by jury, there was a verdict adverse to the plaintiff, with the jury answering interrogatories to the effect that the proximate cause of the collision was the negligence of the plaintiff. Thereafter, the trial judge rendered judgment on the verdict in favor of defendants, Ocean Systems, Inc., and Home Indemnity Co. The plaintiff has appealed this judgment. We affirm.

The accident in question occurred as both of the vehicles involved were proceeding in an Easterly direction. The Tidwell automobile had been following the tractor-trailer for about two miles. Just prior to the accident, plaintiff said, he was going 30-40 M. P. H. and about three car lengths behind the tractor-trailer. Plaintiff’s version of the accident was that the driver of the tractor-trailer suddenly lost control of his vehicle, and that the trailer truck struck the left front bumper of Mr. Tidwell’s automobile in the following manner: the tractor-trailer began to stop because the van truck in front of him stopped; and as it was stopping, it jack-knifed, with the tractor going off on the right side of the road, and the trailer first going into the opposite lane of traffic, and then whipping back into plaintiff’s lane, striking plaintiff’s automobile after plaintiff had stopped, with the right rear wheel of the tractor-trailer hitting plaintiff’s car.

Defendant Ocean Systems’s version is that its employee, Francis, was in the process of stopping his vehicle because the vehicle in front of him was stopping, and that he would have successfully stopped if plaintiff’s automobile had not run into the right rear of the trailer.

From the jury’s verdict and its response to the interrogatories, it is apparent that the jury accepted the defendant’s version that the Tidwell automobile struck the rear of the trailer as its driver was bringing his vehicle to a stop behind a preceding vehicle which had stopped.

The findings of the trier of fact are not to be disturbed on appeal in the absence of manifest error. Under the evidence reasonably found credible by it, the trial jury could properly find that plaintiff struck the rear of the defendant’s vehicle, because he was following the preceding tractor-trailer too closely. As a general rule, when a following vehicle collides with the rear of the preceding vehicle, the following motorist is presumed to be at fault, and he bears the burden of exculpating himself from the inference of negligence. See LSA-R.S. 32:81.

After a careful review of the records and a study of the applicable law, we conclude that the jury’s verdict is reasonably supported by the credible evidence in the record. We find no manifest error.

For the foregoing reasons, the trial jury’s verdict and trial court’s judgment in accordance therewith are affirmed, at appellant’s cost.

AFFIRMED.

      . Leslie Schoenstein was joined in the suit as a party plaintiff; however, he had also filed a suit against Floyd D. Tidwell and Tidwell’s insurer in Terrebonne Parish. When the suit came on for trial, Schoenstein was deleted as a plaintiff in this suit and the suit proceeded with Tidwell as the only plaintiff, and the consolidated cases were severed.

      . The suit was originally filed in Assumption Parish; on joint motion of all parties, it was transferred to the Thirty-Second Judicial District Court, Parish of Terrebonne, for consolidation with Schoenstein’s suit.

      . Prior to submission of the case to the jury, the plaintiff dismissed his suit against defendant Talley and its insurer, with prejudice.

      . The defendants had filed third-party demands and they were dismissed in the trial court’s judgments.


text:
    JAHNCKE SERVICE, INC. v. Mrs. Beatrice Michel COLEMAN et al.
    No. 11603.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    E. Howard McCaleb, III, New Orleans, for plaintiff-appellant.
    William R. Forrester, Jr., Stanley A. Mil-lan, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appel-lees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal from the judgment, of the trial court sustaining the exception of lis pendens filed by the defendants, Mrs. Beatrice Michel Coleman and Halter Marine Service, Inc., to the suit brought by Jahncke Service, Inc., for recognition of a material-man’s lien and privilege on described immovable property owned by defendant Coleman and leased by defendant Halter. In the suit Paul Celeste was also sued as a defendant on an open account.

The basis for the exception was that in the same court there was then pending a suit entitled, “Mrs. Beatrice Michel Coleman versus Roland J. Marquette, Clerk of Court, Parish of Assumption and Jahncke Service, Inc.”, No. 11,418 on the docket of said court, which involved the same parties and the same facts and circumstances as the instant suit.

LSA-C.C.P. arts. 531 and 532 authorize the exception of lis pendens when the suit to which the exception is directed is brought on the same cause of action, having the same object, and is between the same parties in the same capacities as the pending suit.

The facts giving rise to the instant action are that on November 14, 1974, Mrs. Coleman filed a mandamus suit in the district court against the clerk of court and Jahncke Service, the plaintiff in this action, to have a materialman’s lien filed by Jahncke Service against her immovable property in Assumption Parish cancelled on the ground that said lien was invalid. The lien had been filed by Jahncke Service because it had not received payment for a certain shipment of shell which had been used on Mrs. Coleman’s property by Halter Marine Services, Inc., which had bought the shell from Paul Celeste who had bought the shell from Jahncke Service. The mandamus suit was tried on November 19, 1974, and the trial judge took the matter under advisement.

While the trial judge had that matter under advisement, Jahncke Service brought the instant action, asserting that Celeste was indebted on open account for the price of the above mentioned shipment of shell, and asserting its materialman’s lien against Mrs. Coleman and Halter.

The elements essential to sustain an exception of lis pendens are set forth in LSA-C.C.P. art. 925, i. e., pendency of another action between the same parties, in the same capacities, on the same cause of action, and having the same object.

A decision in the suit by Mrs. Coleman, referred to in the second paragraph above, would not result in a determination of any of the issues in the case before us except the validity of the lien against her. It would not affect the open account suit or the question of whether Jahncke is entitled to a lien against her lessee, Halter.

Therefore, the judgment of the trial court, in the case before us, is affirmed only insofar as it releases Mrs. Coleman from a determination of the validity of the lien filed against her. In all other respects, it is reversed and remanded for trial.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


text:
    Clarence JOHNSON v. Marie C. WICKS et al.
    No. 11606.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Timothy Ellender, Houma, for plaintiff and appellee.
    Robert D. Morvant, Paul Batiza, Thibo-daux, for defendant and appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an action for damages for personal injuries resulting from an intersectional collision, involving the motor vehicles of the plaintiff, Clarence Johnson, and the defendant, Marie C. Wicks. Defendant Wicks has appealed the judgment against her.

The evidence supports the finding of the trial court that the defendant, Marie C. Wicks, while traveling south on Canal Street, ran a stop sign at the intersection of Bond and Canal Streets in the City of Hou-ma, Louisiana, and collided with the vehicle of the plaintiff, Clarence Johnson, who was traveling west on the favored street, Bond. The trial judge concluded from the testimony and other evidence that “the fault of this accident was that of the Defendant, Mrs. Wicks. She ran a stop sign. As a matter of fact she, on the witness stand didn’t try to defend her actions, so I don’t believe that anybody can seriously contend that the sole and proximate cause of this accident was anything other than Mrs. Wicks’ negligence in running that stop sign, failing to see what she should have seen, and failing to do what she should have done, and in failing to accord the right of way to the Plaintiff, Mr. Johnson, who was on a right-of-way street proceeding in a safe and legal rate of speed when the accident occurred. So, as far as I’m concerned, the sole and proximate cause of the accident was the negligence of Mrs. Wicks, and I specifically find that that was the cause of the accident; that there was no contributory negligence or any negligence whatsoever on the part of Mr. Johnson.”

The only issue regarding liability is whether the finding of the trial court was manifestly erroneous. Our review of the record convinces us that the trial judge’s conclusions, both regarding the negligence of defendant Wicks as constituting the sole proximate cause of this collision and finding that plaintiff Johnson was not guilty of any negligence contributing to the cause of the collision, are amply supported by the evidence. We find no manifest error.

The defendant-appellant also raises the issue of an excessive award to the plaintiff-appellee in view of Mrs. Wicks ability, vel non, to respond to the award granted.

The trial court awarded the plaintiff the sum of $113,024.44, of which sum the defendant’s liability carrier was required to pay $10,000.00. The record supports the trial judge’s finding that the plaintiff sustained “a herniated disc at the L-5, S-l level primarily on the right side and minimal posterior bulging at the L-4, 5 and L-5, S-l levels,” and the trial judge’s conclusion that the plaintiff “has suffered a serious, painful and disabling injury which will affect him permanently.” On August 24, 1976, six months after the accident, Johnson had surgery involving a three-level fusion, spanning from L-3 to the sacrum. The operating physician estimated plaintiff’s permanent physical impairment to be approximately 30 per cent of the body as a whole.

We find the award within the minimum-maximum range of the “much discretion” granted triers of fact by our laws. LSA-C.C. art. 1934(3). We also find that the trial judge considered the ability of Mrs. Wicks to respond to the award in fixing the quantum in his judgment; contrary to appellant’s contention, his finding on this question in no way conflicts with the holding by this Court in Williams v. Garner, 268 So.2d 56 (La.App. 1 Cir. 1972).

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Judgment was also rendered in favor of the plaintiff against two insurers: United States Fidelity and Guaranty Insurance Company, the liability insurer of defendant Wicks, and plaintiffs uninsured motorist insurer, Hartford Accident and Indemnity Company. The judgments against the insurers were limited to their policy limits, and they have not appealed.

      . The plaintiffs uninsured motor carrier was also required to pay $10,000, but it was granted a judgment for this sum against Mrs. Wicks, subordinate to the judgment of the plaintiff.


author: LOTTINGER, Judge.

text:
    Herby BRASSEAUX v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 11609.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Nelson A. Moak, Denham Springs, for plaintiff and appellee.
    Johnie E. Branch, Jr., Bryan Miller, Baton Rouge, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by Herby Brasseaux against the State of Louisiana, through the Department of Highways (Department) for property damages suffered when plaintiff’s boat trailer struck a hole in a highway. From a judgment in favor of plaintiff, defendant has appealed.

The Trial Judge in his written reasons for judgment found:

“On July 6, 1973, at approximately 12:45 p. m. Herby Brasseaux, the plaintiff, was driving his 1968 Ford truck on North Bayou Drive (La. Highway No. 1) in the town of Golden Meadow, Parish of La-fourche, State of Louisiana, in the vicinity of St. Pierre’s Gulf Service Station while towing an 18 foot trailer with his 24 foot boat thereon when he struck a hole which was partially on the roadway and partially on the shoulder which caused the axle to be separated from the trailer thereby causing an accident which resulted in the total loss of the boat and trailer which were valued at $3,500.”

In appealing, the Department contends that the Trial Judge erred (1) in failing to distinguish between the purpose of .the responsibility for the shoulder as contrasted to the purpose of the responsibility for the roadway in concluding that the state had responsibility over the roadway and shoulder of the road at the site of this incident, (2) in its findings as to the dimensions and situation of the so called “hole”, (3) in its findings that dimensions and magnitude of the so called “hole” made it inherently dangerous, (4) in its finding that actual knowledge of the existence of the defect in the roadway was communicated to the Department several days prior to the incident, (5) in its findings that the Department had constructive knowledge of the existence of the condition, and (6) in failing to find that the plaintiff was contributorily negligent.

ERROR NO. 1

The Department does not argue that it does not have responsibility for the maintenance of both the roadway and the shoulder. It argues, however, that the purpose of its responsibility as to the shoulders is to protect the lives and property of motorist entering or leaving the roadway by way of the shoulder in a normal manner, whereas, the responsibility for the roadway is to protect the lives and property of motorist traveling on the roadway itself. The basis of the Department’s argument and the importance of the distinction between the responsibilities for the roadway and the shoulder is that the Department basically argues that the so called “hole” was more on the shoulder than it was on the roadway, and thus the Trial Judge was distracted in the direction of his attention to the location of the hole. A thorough analysis of the Trial Judge’s written reasons for judgment clearly shows that he was not confused as to this responsibility, that his attention was not distracted as to the location of the hole, and that he made no error.

ERRORS NOS. 2 AND 3

The appellant contends that the Trial Judge was in error in finding that the depression or “hole” was only 6 to 8 inches wide. In his written reasons for judgment the Trial Judge found “that the hole which the plaintiff’s trailer struck was present before the accident, ran generally parallel to the highway and partially in the highway and was approximately 6 feet in length, 6 to 8 inches in width and Pk inches in depth at its deepest part.” The Department contends that it was manifest error not to find that the hole was “ ‘more in the nature of a depression’ with smooth sides, gradually running down to 7V2 inches deep over about 3 feet length-wise and being at least 12 inches wide.”

The Trial Judge after reviewing the cases of Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writs refused, 303 So.2d 182 (1974); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir. 1973) concluded that the dimensions and the magnitude of the hole or depression in this case made it inherently dangerous, especially in view of the fact that impact with this hole by a trailer going 25 miles per hour caused the axle to separate from the trailer. We find no error.

ERROR NO. 4

The then Chief of Police for the town of Golden Meadow testified that he called the Department in Houma. Though he could not remember exactly how long prior to this incident his telephone call was made, nor could he recall to whom he spoke, he was certain that it was prior to the accident, and that he did speak to someone with the Department. The only dispute as to this testimony is that neither Mr. Noah Gaudet the then superintendent for the Highway Department in Lafourche Parish, nor Mr. Antoine Orgeron, a highway crewman at the time of the incident, received any report from the Houma office of such a telephone call. The Trial Judge concluded “that there was actual knowledge of the existence of the defect in the roadway communicated to the Department of Highways several days prior to the incident”, and we find no error in his conclusion. Maggio v. Parish of East Baton Rouge, 262 So.2d 72 (La.App. 1st Cir. 1972).

ERROR NO. 5

The Trial Judge also concluded that the Department had constructive knowledge of the existence of the condition, but considering that we find no error on the part of the Trial Judge in finding actual knowledge, there is no need for us to discuss this specification of error.

ERROR NO. 6

The Department argues in support of specification of error number 6 that the boat trailer was not sufficiently constructed for the size boat which it was intended to transport, and that if the depression in the roadway was so dangerous as to cause this accident, that plaintiff was negligent in failing to see what he should have seen.

As to the second argument, the Trial Judge found that the plaintiff was traveling only 25 miles per hour, and following another vehicle, and thus there was no negligence on the part of the plaintiff. We agree.

The boat trailer in question is what is termed as a “home made” trailer, approximately 2 years old. Contributory negligence is an affirmative defense, and he who pleads contributory negligence as a defense has the burden of proving same. There was no proof put on by the Department to show that this trailer was not sufficiently constructed, nor that the trailer was of such insufficient size vis-a-vis the boat as to constitute contributory negligence. Therefore, we find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed; all costs of this appeal as are permitted by law are to be paid by defendant-appellant.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Anthony A. BORDELON v. METROPOLITAN LIFE INSURANCE COMPANY.
    No. 11615.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Leo J. Berggreen, Baton Rouge, of counsel, for plaintiff-appellant Anthony A. Bor-delon.
    W. Luther Wilson, Baton Rouge, of counsel, for defendant-appellee Metropolitan Life Ins. Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff, Anthony A. Bordelon, appeals a judgment denying his claim for medical benefits under a group insurance policy issued by the defendant, Metropolitan Life Insurance Company. Defendant has neither appealed nor filed an answer to this appeal.

The insurance policy was issued to Borde-lon as an employee of Singer Sewing Machine Company. Bordelon filed suit under Section C of the Extended Coverage provisions of the policy seeking to recover medical expenses incurred on May 5, 1976, as a result of surgery for a recurrent right inguinal hernia.

Section C provides:

“If at the date of cessation of the insurance on account of the Employee or on account of a Dependent, the Employee or Dependent is then under the care of a physician or surgeon for treatment of an injury or a sickness, the Insurance Company shall pay benefits as if the insurance on the Employee or on the Dependent, as the case may be, had continued in force, provided that
(a) no benefits shall be paid on account of any Covered Medical Expenses incurred after the date three months following the date of cessation of insurance or after the date of recovery from the injury or sickness for which the Employee or Dependent was being treated at the date of cessation of insurance, whichever first occurs, . . ”

Section E provides:

“The insurance referred to herein shall automatically cease on whichever of the following dates first occurs:
(1) The date of termination of the Employee’s employment . . . ”

According to the stipulations of the parties, Bordelon had been an employee of the Singer Sewing Machine Company for a period of twenty-two years until February 7, 1976, at which time his employment was terminated. According to medical reports attached to the stipulation, Dr. S. J. Desho-tels of Opelousas performed a bilateral repair on Bordelon in 1963. Bordelon was seen by Dr. Deshotels in 1964, 1965, on six separate occasions in 1966, and again on April 14, 1976. Dr. Deshotels reported that during each of these visits the patient was examined and found to have a recurrent right inguinal hernia and that he was advised to have it corrected surgically. Bor-delon was also seen by Dr. Fritz LaCour of Lake Charles between February, 1971 and February, 1976, who treated him for several other minor problems, which were unrelated to the hernia. On February 25, 1976, he was admitted to St. Patrick Hospital for treatment of an enzyme deficiency, and, during the course of his examination on this occasion, it was discovered by Dr. LaCour that plaintiff had a prominent right inguinal hernia. Dr. LaCour then consulted with Dr. Jack Welsh who was of the opinion that the abnormality should be reduced surgically as soon as his other problems were corrected.

Thereafter, on May 5, 1976, the surgical repair of the hernia was performed and plaintiff incurred medical expenses in the amount of $1,236.75 for which he seeks reimbursement from the defendant.

Plaintiff contends that the trial court erred in concluding that he was not entitled to recover under Section C of the insurance policy. He asserts that the surgery of May 5, 1976, was “treatment” prior to cessation of the insurance, and therefore the policy’s coverage includes the operation and medical expenses in connection therewith. A reading of Section E, however, readily reveals that coverage automatically ceases on the date of termination of the employee’s employment. Consequently, for the employee to continue to receive benefits as provided under Section C he must have been receiving “treatment” at the time of cessation of the insurance, that is, on the date that his employment was terminated.

As pointed out by the trial court, the courts have granted the broadest possible application to what constitutes “treatment” including “all steps taken to effect a cure of the injury or disease” such as examination and diagnosis as well as application of remedies. Baque v. Pan-American Life Insurance Company, 313 So.2d 293 (La.App. 3rd Cir. 1975). Where it appears that a patient is having his condition monitored by occasional examination and/or consultation, although no surgery is performed, this would constitute a “steps taken to effect a cure of the injury or disease.” However, in the instant case, the policy under consideration requires that the insured be “ . under the care of a physician or surgeon for treatment . . . ” “ . . . at the date of cessation of the insurance . . ” The date of cessation of the insurance was on February 7, 1976, coincident with the termination of employment. Since Mr. Bordelon’s last examination relating to the inguinal hernia was in 1966, some ten years prior to the date of cessation of the insurance, it cannot be said that he was being “treated” for the hernia as of February 7, 1976.

For the above reasons, the judgment of the trial court dismissing plaintiff’s suit at his costs is affirmed.

AFFIRMED.


text:
    Don CHRISTY, Sr., Individually and as natural tutor of his minor son, Whitney J. Christy v. Thomas J. BENNETT, Ascension Parish School Board and Horace Mann Insurance Company.
    No. 11616.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Paul Valteau, Jr., New Orleans, for plaintiff and appellant.
    Donald T. Phelps, Baton Rouge, Gordon Crawford, Gonzales, Sidney Marchand, III, Donaldsonville, for defendants and appel-lees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff, individually and on behalf of his minor son, Whitney J. Christy, appeals a judgment denying his claim for damages for personal injuries suffered by Whitney when he fell in his sixth grade math class on February 22, 1973. The defendants are Thomas J. Bennett, teacher, the Ascension Parish School Board, and Horace Mann Insurance Company. The defendants have neither appealed nor have they answered this appeal.

The facts giving rise to this litigation are as follows: Whitney was a pupil in the class to which Mr. Bennett was assigned. On the morning of the day in question Whitney alleges that Mr. Bennett pushed him without provocation causing him to fall and hurt his right hip. Mr. Bennett is about 5'9y2" in height and weighs 126 pounds. Whitney is about four inches shorter and of stocky build. Mr. Bennett is physically handicapped, having broken his neck in a diving accident, which resulted in his having poor co-ordination in his right leg and arm, causing him to walk with a limp.

Students testified that on the morning in question, just prior to the incident, many of the students were standing and almost all were “clowning around,” telling jokes and generally not attentive. None could describe the alleged pushing and could only testify as to the pupil striking the front desk and falling to the floor. All of plaintiff’s witnesses had conveniently looked away between the time Whitney walked up to the teacher and the time of the fall.

In his written reasons the trial judge held that Whitney’s injuries were a direct result of his own misbehavior. We affirm.

Whitney’s version is that he walked up to the teacher and tapped him on the shoulder, whereupon the teacher turned, collared him with both hands, and pushed him very hard; that he was traveling backwards as a result of the shove, struck the corner of Mr. Bennett’s desk, continued between the desk and the front wall of the classroom and hit the side window wall, then traveled in a semicircle around the other side of the teacher’s desk, striking and falling next to the first student’s desk on the row of desks next to the window wall.

Bennett’s version of the incident is that when he turned around and first saw Whitney standing next to him, he told him, “Why don’t you go sit down;” that when he turned back Whitney was still there so he put his right hand on Whitney’s shoulder and nudged him, telling him to go sit down; Whitney then pushed him and Bennett again pushed Whitney in the direction of his student desk saying, “Go sit down;” that the push was not hard enough to knock Whitney down, and instead of being propelled in the direction of his seat, Whitney traveled in a straight line in front of his desk to the window wall of the room and then back toward the inside of the room, moving the front student desk and then falling to the floor; the other kids started laughing, but when Whitney started crying, everybody became quiet.

Under Whitney’s version, he traveled a distance of some twelve to fourteen feet and changed directions at an angle of almost ninety degrees. Considering Bennett’s small stature and disability, the improbability of the incident occurring in accordance with Whitney’s version, and the general atmosphere that existed at the time of the incident, it is reasonable to conclude that Whitney’s injuries were the result of his dramatizations of the shove, and/or of his own style of acrobatic “clowning around.” The trial judge was not in error in so concluding.

Having concluded that Whitney’s injuries were due solely to his own fault, the question of reasonableness of any corporal punishment that may have been administered by Mr. Bennett is of no consequence, even if it is assumed that the push administered by the teacher was some form of corporal punishment.

As to plaintiff’s contention that the trial court erred in finding that Whitney was guilty of contributory negligence, we need only say that such a finding was not essential to support the trial court’s decision.

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Lillian M. ROBINSON et al. v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY, State of Louisiana and Louisiana Association of School Superintendents and Louisiana School Board Association.
    No. 11619.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      William R. D’Armond, Baton Rouge, of counsel for plaintiffs-appellants, Lillian M. Robinson, et al.
    Marion Weimer, Baton Rouge, of counsel for defendants-appellees, Administrator, Dept, of Employment Sec., State of La. and Louisiana Association of School Superintendents and Louisiana School Bd. Ass’n.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiffs, a group of 130 teachers employed in Louisiana, appeal a judgment of the district court which affirmed the decisions of the Board of Review for the Department of Employment Security of the State of Louisiana (Board of Review), denying their claims for unemployment compensation benefits under the Emergency Jobs and Unemployment Assistance Act of 1974. Pub.L. 93-567, Title II, §§ 201-210, 88 Stat. 1850-1853, as amended by Pub.L. 94-45, Title II, §§ 201-203, June 30, 1975, 89 Stat. 240-242.

LSA-R.S. 23:1634 provides for judicial review of final decisions of the Board of Review. The defendant, Administrator, Department of Employment Security, State of Louisiana, is designated by R.S. 23:1634 as a party to actions for judicial review. The defendants have neither answered nor filed an appeal.

The parties made the following stipulations of facts and issues:

* * * * * *
“4. All plaintiffs were not working during the summer of 1975, between the school term ending May, 1975 and the next school term commencing September, 1975;
“5. Each of the plaintiffs filed claims for unemployment compensation benefits with the Department of Employment Security with respect to their weeks of unemployment during the summer of 1975. The Appeals Referee of the Department of Employment Security ruled that the plaintiffs were ineligible for benefits. All of the decisions of the Appeals Referee are identical in form; .
“6. Subsequent to the decision of the Appeals Referee, plaintiffs filed an appeal to the Board of Review, the highest administrative tribunal within the Department of Employment Security. The Board of Review affirmed the decisions of the Appeals Referee. All of the decisions are identical in form; .
“7. The plaintiffs’ claims were filed to seek benefits under the Emergency Jobs and Unemployment Assistance Act of 1974 (Pub.L. 93-567, Title II, Sections 201-210) effective December 31, 1974 (herein called ‘the Act’). The Act established ‘a temporary federal program of special unemployment assistance for workers who are unemployed during a period of aggravated unemployment and who are not otherwise eligible for unemployment allowances under any other law.’ Section 201; .
“8. The payment of benefits to claimants under the Act is administered by the various state unemployment compensation agencies in accordance with state statutory procedures. In Louisiana, the Department of Employment Security is the agency administering payment of benefits under the Act;
“9. As originally enacted, the Act contained no express provision dealing with the eligibility for benefits of school employees who were unemployed between school years, and employees in such position were ruled eligible for such benefits; “10. By means of the Second Supplemental Appropriations Act, 1975, Pub.L. 94-32, Title 1, Section 101, effective June 12, 1975 . . . , the Act was amended by adding what is now Section 203(b) of the Act, which provides:
“ ‘(b) An individual who performs services in an instructional, research, or principal administrative capacity for an educational institution or agency shall not be eligible to receive a payment of assistance or a waiting period credit with respect to any week commencing during the period between two successive academic years (or, when the contract provides instead for a similar period between two regular but not successive terms, during such similar period) if—
“ ‘(1) such individual performed services in any such capacity for any educational institution or agency in the first of such academic years or terms; and “ ‘(2) such individual has a contract to perform services in any such capacity for any educational institution or agency for the later of such academic years or terms.’ ”
******
“13. . . . Plaintiffs also filled out questionnaires, . . . , indicating the facts applicable to each plaintiff, and these questionnaires were received in evidence at the administrative hearing; .
“14. It is the position of plaintiffs that the statute prohibits payment of benefits only to those teachers who have contracts to teach in the next school year, and that any teacher without a contract is eligible for benefits. It is the position of the Department of Employment Security that no written contract is required, and that a teacher is ineligible for benefits if he ‘has, by written, verbal, implied or through usual hiring practices, contracted to return to any school system for the 1975-76 school year; . . .
“15. The plaintiffs are categorized, based on their signing of a written contract, as follows:
(a) 54 plaintiffs never signed a contract. .
(b) 71 plaintiffs signed contracts. . Some signed prior to the summer; some signed during the summer; some did not sign until the new school year began. . . . ”

The decision of the Appeals Referee held that the intent of Section 203(b) is that no individual who has, by written, verbal, implied, or through usual hiring practice, contracted to return to any school system for the 1975-76 school year, shall be eligible to receive supplemental unemployment assistance benefits and that because the teachers were employed in such capacity under Louisiana Law, R.S. 17:413, they were not eligible for further benefits beginning June 15, 1975.

Plaintiffs contend that the Board of Review, and hence the trial court in affirming the Board’s decision, erred in construing the Act to prohibit payment of benefits to plaintiffs. They assert that those teachers who had no written contract to teach in the school year beginning in Fall, 1975, but who enjoyed only tenure rights under R.S. 17:413 and R.S. 17:441-444 were without any legally enforceable rights to insure their jobs for the coming Fall. Therefore, it is argued, they have no contract of employment either written, verbal, implied or otherwise and hence, they are entitled to unemployment compensation under the amendment to the Supplemental Unemployment Assistance Act of 1975.

In the case of Glenn Swetman, et al. v. Joseph Gerace, Administrator of the Department of Employment Security, et al., 349 So.2d 977, this court recently considered the availability of unemployment compensation benefits to tenured teachers (professors at Nicholls State University) for the summer of 1976 who had no written contract of employment for the 1976-77 academic year. They filed claims under Louisiana’s unemployment compensation statute, Section 6 of LSA-R.S. 23:1600, which also denies benefits to those working in institutions of higher education if the individual has a contract of employment with the institution for the coming academic years. In that case, the trial court reversed the decisions of the Appeals Referee and the Board of Review. It granted the recovery of unemployment compensation benefits on the ground that in the absence of legislative funding for teachers’ salaries (i. e. a certain and definite price for the lease of the labor), the tenure system could not serve as a valid contract. This court reversed stating:

“We disagree. Contracts can be express or implied, LSA-C.C. Art. 1780. Silence or inaction may in some instances show an assent that creates an obligation, LSA C.C. Art. 1817. It seems quite clear to us that there was a contract between plaintiffs and Nicholls. Plaintiffs fully expected to teach during the fall semester. Nicholls fully expected them to. Plaintiffs had tenure as teachers; had the university failed to employ them without legal cause, the university would have been liable. We therefore believe there was a contract.
. . and it is immaterial that it was subject to the conditions, either sus-pensive or resolutory, of availability of finances and approval of the proper officials. The fact that either party may not have had to perform an obligation under the contract because of the failure of the condition does not result in the conclusion that there was never a contract. The contract had existence and validity at the time; .
“The statute we are construing does not require an unconditional contract; the court is not justified in adding that requirement.
* * % * * *
“In the absence of unequivocal words requiring that result, we doubt that there was legislative intent to afford unemployment benefits to teachers after their normal work year when both employer and employee expect the resumption of the employment relationship and when legal liability would result from a refusal to perform, once the conditions, if any, have been satisfied.”

We adhere to the rationale of the Swetman decision in its construction of the tenure system as being the equivalent of legally binding and enforceable contract rights. Furthermore, we see no distinction between ineligibility for benefits on the basis of an employment contract under R.S. 23:1600(6) of the Louisiana unemployment provisions and ineligibility on the basis of an employment contract under Section 203(b) of the Supplemental Unemployment Assistance Act. Consequently, we hold that the plaintiff teachers who are tenured had contracts of employment for the next academic year, and for that reason are ineligible for compensation benefits from the time of the effective date of the amendment to the Act (June 15, 1975) to Fall, 1975.

For the same reasons, we hold that those teachers who were non-tenured but who had an expectation of continued employment, likewise had a contract of employment and are likewise ineligible to receive unemployment compensation benefits for the abovementioned time period. In the recent case of Holmes v. State Department of Employment Security, 353 So.2d 737, also decided by this court, the rationale of Swet-man was extended to include non-tenured teachers. There we stated:

“. . . Both the non-tenured teachers and the school expected resumption of the employment relationship; and, legal liability would result from a refusal to perform once the conditions, if any, were satisfied. We find the rationale of the Swetman case equally applicable to nontenured as to tenured teachers; and, consequently, we find that the non-tenured teachers in the instant case are also ineligible for the unemployment benefits sought herein.”

Plaintiffs contend that the Act is viola-tive of the due process clause insofar as it purports to disallow benefits to school teachers and at the same time allow benefits to other school employees similarly situated, such as bus drivers, clerical employees, lunchroom employees and janitorial employees, who, like school teachers, do not work for the school system during the summer months. They assert that such other employees are all hired for a nine month period and as a practical matter all have the same expectation of employment during the following year as have teachers, but that the Act singles out school teachers and administrators for the denial of benefits for which discrimination there is no reasonable basis.

Statutes which are applicable to all persons under like circumstances and which do not subject any individual to an arbitrary exercise of power, do not violate the due process or equal protection clauses of the state and federal constitutions. It is clear that plaintiffs herein are treated in the same manner as other teachers identically situated.

Differences and distinctions in the treatment of classifications offend the constitutional guarantees only when the variations are arbitrary and without rational basis. Standard Homestead Ass’n v. Horvath, 205 La. 520, 17 So.2d 811 (1944); State v. Pebworth, 260 La. 647, 257 So.2d 136 (1972); Koppenol v. St. Tammany Parish Hospital, 341 So.2d 1242 (La.App. 1st Cir. 1976), writ refused. However, differences in character, condition or situation can justify a distinction among classifications, without violating the due process guarantees as long as those belonging to the same class are treated alike. Cunningham v. United States, 5th Cir., 256 F.2d 467 (1968); State v. Pebworth, supra.

In the instant case, we agree that many of the same characteristics which are incident to employment as a school teacher are also incident to other non-teaching school-related employment. The two categories of employment are alike in many respects: their working days and holidays are generally the same; bus drivers, like school teachers have tenure, R.S. 17:491-493; they have the same employers and those to whom they must report are the same; and, bus drivers, clerical employees, lunchroom employees and janitorial employees in practice have an expectation of re-employment for the next school year equal to that of teachers. These likenesses, however, are a necessary consequence of the normal routine functioning of an orderly school system. Beyond that, they cease.

Teachers must have a “teacher certificate” and are employed as educators to perform the primary function of any learning institution. They have been classified, alone and separate from other school employees, for the purpose of establishment of a minimum salary schedule, which is based on their education and years of experience. La.R.S. 17:421. Other school employees do not share in this benefit. The school bus drivers are alone in a classification to set up their minimum salary schedule which is quite different from that of the teachers. La.R.S. 17:497.

Because of the different functions and characteristics between teachers and other employees of the school system, we hold that Congress had a rational basis for classifying teachers, researchers, and administrators in one group, separate and apart from the other employees of the school system. The Congressional Act is therefore constitutional.

The judgment of the trial court is affirmed at plaintiffs’ cost.

AFFIRMED.

      . The plaintiffs’ names are listed in Exhibit 1 attached to the petition for judicial review.


text:
    Joseph ALEXIA, Individually and on behalf of his minor daughter, Heather Renea Alexia v. William R. STAFFORD, Tangipahoa Parish and Travelers Insurance Company.
    No. 11620.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      William J. Mora, III, Metairie, for Joseph Alexia, et al.
    Jesse P. Lagarde, Amite, for Tangipahoa Parish Police Jury.
    France W. Watts, Franklinton, for Travelers Ins. Co.
    William R. Stafford, in pro per.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by Joseph Alexia, individually and on behalf of his minor daughter, Heather Renea Alexia, for damages received as the result of the death of Iris P. Alexia, wife and mother. Named defendants are William R. Stafford, Tangipahoa Parish and its insurer, Travelers Insurance Company.

The petition alleges that Mrs. Alexia was a guest passenger in a car being driven by Stafford when he ran through the dead end of South Ben Jackson Road and struck the embankment on the shoulder of 1-12 in Tangipahoa Parish. In addition to alleging negligence on the part of Stafford, plaintiffs contend the parish was negligent in:

“a) Not having appropriate signs and markings indicating that South Ben Jackson Road is a dead end;
b) Not having appropriate signs and markings to indicate that South Ben Jackson Road runs into the shoulder of 1-12;
c) Not barricading South Ben Jackson Road and preventing any vehicular traffic from travelling down South Ben Jackson Road to the shoulder of 1-12;
d) Not having appropriate lighting on South Ben Jackson Road;
e) Petitioners further plead any and all acts of negligence of defendants which may be revealed on the trial of this case, or between now and the trial of this case;
f) Permitting a road which the Tangipa-hoa Parish is responsible for the maintenance and repair to run into the shoulder of 1-12.”

Defendant, Travelers Insurance Company, moved for summary judgment contending that there was no coverage afforded the cars complained of because the policy issued the police jury contained the following exclusion:

“It is agreed that such insurance as is afforded by this policy does not apply to the accidents arising out of the existence of streets, roads, bridges, culverts, sidewalks, parking meters, street lights and stop lights.”

From a judgment granting the motion and dismissing suit against Travelers, plaintiffs have appealed.

In support of its motion for summary judgment Travelers cited to the Trial Court as well as to this Court the cases of Foreman v. Maryland Casualty Company, 224 So.2d 553 (La.App. 3rd Cir. 1969) and LaBruzza v. Boston Insurance Company, 198 So.2d 436 (La.App. 4th Cir. 1967).

In Foreman, plaintiff as a result of a two car collision at an intersection because of an alleged lack of a stop sign sued the city of Lafayette contending it was negligent in failing to post stop signs as well as other acts of negligence. An exclusionary clause to the policy provided that there was no coverage as “to the existence or use of or the existence of any condition in any street, sidewalk, road, or bridge or other public way.” The Court concluded that coverage had been excluded.

Earlier in LaBruzza., the Fourth Circuit held there to be no coverage when it went outside the policy to define the term “sidewalk” which coverage had been excluded from the policy.

Our brethren on the Fourth Circuit again in Snell v. Stein, 244 So.2d 647 (La.App. 4th Cir. 1971) in following Foreman and La-Bruzza concluded that an intersectional collision allegedly caused by inadequately or improperly installed traffic signals was not covered where the policy excluded “streets and sidewalks”.

However, the Louisiana Supreme Court reversed this decision at Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972). In holding that there was coverage, Justice Tate at 259 So.2d 878 said:

“The principles applicable to construction of insurance policies are not disputed. In case of ambiguity, the policy provisions are construed most favorably to the insured and against the insurer. Of the permissible constructions, the courts adopt that which effectuates the insurance over that which defeats it. [Citations omitted].
“On the other hand, in the absence of conflict with statute or public policy, insurers have the same right as individuals to limit their liability and to impose whatever conditions they please upon their obligations. In such event, unambiguous provisions limiting liability must be given effect. [Citations omitted].
“I. The Streets and Sidewalk Exclusion Clause.
“The exclusionary endorsement relied upon provides, Tr. 156:
‘STREETS AND SIDEWALKS
‘Such insurance as is afforded under Division I of the Definitions of Hazard does not apply to the existence of streets and sidewalks of the named insured, and the definition of premises does not include such streets and sidewalks.’ (Italics ours.)
“As the dissenting opinion of the court of appeal notes, 244 So.2d 651, this exclusion clause is ambiguous in the context of the policy as a whole. The policy itself contains no ‘definitions of Hazard’ and no ‘definition of premises’. [Footnote omitted] Further, even if we attempt to stretch these terms to fit what the insurer asks us to assume are the present policy’s equivalents, nevertheless we are unable to ascribe to this clause any clear intent to exclude from coverage the negligent installation or maintenance of a traffic control system at an intersection. “The negligence alleged consists of the installation and maintenance of three traffic control lights at an intersection, two of them overhead on wires up above the street and one on a utility pole to the left of the intersection. Construing the exclusionary clause strictly, as we must, Salomon v. Equitable Life Assur. Society, 202 La. 1001, 13 So.2d 329 (1943), we cannot conclude it applies here:
“The liability sought to be enforced does not arise from the ‘existence of streets' or from a street premise-defect. It is not the negligent maintenance or installation of streets or sidewalks (alone excluded from coverage by the clause), it is the negligent control of traffic upon such streets that is here complained of.”

Though the exclusionary clause in the instant case is broader than that found in Snell and Foreman, the only reference in the exclusionary clause to traffic control signals or devices is the terminology “stop lights”. We must conclude that if it was intended that all traffic control devices be excluded from coverage, that same could have very easily been written in as “traffic control devices” vis-a-vis “stop lights”. Therefore, we find that the terminology “stop lights” is ambiguous and as such it must be construed most favorably to the insured and against the insurer, thus allowing coverage.

We do note, however, that one allegation of negligence has reference to the parish “not having appropriate lighting on South Ben Jackson Road”, however, we find that this coverage was excluded by this exclusionary clause in that terminology “street lights”.

We find, therefore, that the Trial Judge was in error in granting the motion for summary judgment and dismissing the suit as against Travelers Insurance Company in all respects except as to that allegation making reference to not having appropriate lighting on South Ben Jackson Road.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is reversed in part, affirmed in part, and remanded for further proceedings in accordance with the views expressed herein. Ap-pellees are to pay all costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


text:
    Malak ABOU-HARGAH and Ahmed Elariny v. MILLER TERRELL, INC. and General Motors Corporation. Malak ABOU-HARGAH and Ahmed Elariny v. MILLER TERRELL, INC.
    Nos. 11622 and 11623.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Leo Berggreen, Ben F. Day, Baton Rouge, of counsel for plaintiff-appellant, Malak Abou-Hargah and Ahmed Elariny.
    E. Wade Shows, Baton Rouge, of counsel for defendant and third party plaintiff-ap-pellee, Miller Terrell, Inc.
    Henry Salassi, Baton Rouge, of counsel for defendant and third party defendant-appellee, General Motors Corp.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants, Malak Abou-Har-gah and Ahmed Elariny, husband and wife, purchased a 1976 Buick Century automobile on November 19, 1975, from defendant Miller Terrell, Inc. (dealer), which had been manufactured by defendant General Motors Corporation. Plaintiffs filed suit for rescission of the sales contract and for damages on February 26, 1976 against both defendants and another suit seeking the same relief against defendant Miller Terrell, Inc., only, on September 17, 1976. Both suits were consolidated for trial and judgments were rendered dismissing these actions.

Plaintiffs alleged that the automobile contained vices and defects on the day of the sale consisting of:

1. Body vibration and rattles;
2. Wind comes in through windshield and right door;
3. Engine malfunction on several occasions;
4. Brakes are defective.

Plaintiffs assignment of errors are:

“(1) The Honorable Trial Court erred in failing to find redhibitory defects present in the vehicle sued upon on the date of purchase.
“(2) The Honorable Trial Court erred in holding testimony as to the condition of the vehicle on a particular day, i. e., April 29, 1976, by defendants’ witnesses, negated the preponderance of evidence that the vehicle had redhibitory defects on its date of purchase.”

Plaintiffs, Mrs. Abou-Hargah, testimony is that she noticed the vibration on the date of purchase as soon as she drove the automobile on the road. About four weeks later she noticed rattles in the car, the windshield wiper malfunctioned, and the four doors were not properly aligned. On December 18, 1975, she brought the car to the dealer for repairs of these complaints. She thereafter went on a long trip for about ten days and still had the same complaints. On February 4, 1976, she brought the car back to the dealer with complaints that the windshield wiper was not operating properly, the right door, rattled, the brakes were not working properly, wind noise in the windshield and a heating problem. On February 9, 1976, she was involved in a noncollision accident on a wet day. At trial she stated that the accident was caused by defective brakes. Immediately after the accident she took the car to the dealer for an estimate as to the cost of repairs and to have the brakes checked. This was her last visit to the dealer.

Plaintiff also had an expert examine her car who testified at the trial. This expert examined the subject vehicle on February 4, 1977 and March 24, 1977, some fifteen months from the date of sale and after 30,620 miles had elapsed on the vehicle’s odometer.

Defendants, on the other hand, contend that the vehicle was repaired on the two occasions when it was brought in for repairs and that the vibration or rattle was no more than normal for a V-6 engine. Defendants had conducted a road test of the vehicle on April 29, 1976, and the four participants therein all testified at the trial and were in general agreement with defendants’ positions.

Defendants never did find the brakes to be defective. Immediately after the accident plaintiff drove the automobile to the dealer.

Factual findings of the trier of facts are entitled to great weight on appellate review. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact made by the trier of facts should not be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The trial judge weighed all the facts, testimony and evidence and found that the plaintiffs had failed to prove “by a preponderance of the evidence that there were defects that existed at the time of the sale or manifested themselves within three days thereafter that would render this car completely useless for the purposes for which it was purchased.” We find no manifest error in this conclusion which is amply supported by the record herein.

The judgments are affirmed at plaintiffs’ cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Jacquelyn C. STARKS v. RICHARD’S FORD, INC., et al.
    No. 11625.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Raymond L. Simmons, Baton Route, of counsel for plain tiff-appellant, Jacquelyn C. Starks.
    E. Drew McKinnis, Baton Rouge, of counsel for defendants-appellees, Richard’s Ford, Inc., et al.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Jacquelyn C. Starks, sues the defendants, Richard’s Ford, Inc., Ken Barker, and Tom Floyd, for damages resulting from an unsuccessful purchase/sale of a new ear. The trial court rendered judgment in favor of plaintiff in the amount of $896.76, representing plaintiff’s $500.00 down payment and $396.76 as the value of plaintiff’s trade-in which had been sold by the defendants. Plaintiff appeals seeking additional damages.

FACTS:

On Saturday, March 27, 1976, plaintiff went to Richard’s Ford, an automobile dealership in Baton Rouge, and spoke with defendant Barker, a salesman, concerning the purchase of a new car. Plaintiff selected a 1976 Mustang and proceeded to strike a deal which resulted in the signing of a Retail Buyer’s Order. Plaintiff informed Barker that she wished to trade-in her old car and would need to finance the balance of the purchase price.

Barker had plaintiff’s trade-in appraised and learned that its cash value was $500.00, but that $896.76 was still owed on it to G.M.A.C. Barker told plaintiff that she would get a $1,000.00 trade-in allowance and that her obligation to G.M.A.C. would be paid. Plaintiff then signed a transfer of title to Richard’s Ford on the old car and surrendered the keys to Barker.

Barker had plaintiff write two checks for the $800.00 down payment and fill out a credit application with Ford Motor Credit for the financing. Since it was a Saturday, it was not possible to obtain approval of plaintiff’s credit application until Monday morning. However, defendant Floyd, the sales manager, approved immediate delivery of the new car based on plaintiff’s application and down payment.

On the following Monday, it learned that Ford Motor Credit would not finance the car for plaintiff. Barker informed plaintiff of this rejection later that day. Thereafter, plaintiff with the help of Barker tried, unsuccessfully, to obtain financing from other sources. Meanwhile, plaintiff remained in possession of the new car.

After about two weeks of trying to arrange her own financing for the car, plaintiff returned to Richard’s Ford and spoke to Floyd. She gave him $500.00 in cash to partly redeem her checks which had been returned N.S.F. and informed him that she could not secure financing. At this point, Floyd demanded the return of the car.

In the interim period while plaintiff was trying to secure her own financing, her old car was sold by Richard’s Ford for $300.00 to a wholesaler on April 1, 1976.

Plaintiff instituted the present suit to recover her $500.00 down payment and to recover the value of her old car and also damages resulting from the sale of that car.

The trial court refused plaintiff’s claim for damages because it found that plaintiff never did comply with the terms of the agreement to purchase, i. e. she was never able to post the full down payment or to secure financing.

Plaintiff contends that the trial court erred:

1) by admitting evidence of an offer to settle; and
2) by refusing to award damages for embarrassment, humiliation and loss of use resulting from the sale of her old car.

We do not reach plaintiff’s first contention as we find no evidence of an offer to settle in the record.

On the issue of damages, we find the numerous cases cited by appellant inappo-site.

While we agree with the trial court that Richard’s Ford acted improvidently in selling plaintiff’s trade-in before financing was secured for the new car, we find that plaintiff’s difficulties all resulted from her financial inability to post the full $800.00 down payment and secure financing for the balance of the purchase price of the car. Accordingly, we reject, as did the trial court, plaintiff’s claim for damages.

We also reject plaintiff’s claim for attorney’s fees.

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

AFFIRMED.


text:
    Arthur L. CARTER v. Emily Fisher CARTER.
    No. 11630.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Robert R. Rainer, Baton Rouge, of counsel for defendant-appellee, Emily Fisher Carter.
    C. Emitte Core, Baton Rouge, of counsel for plaintiff-appellant, Arthur L. Carter.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Arthur L. Carter, appeals the dismissal of his divorce suit against the defendant, Emily Fisher Carter.

Plaintiff obtained a separation from the defendant on February 6, 1975. On April 23, 1976, plaintiff filed a petition for a divorce based on LSA-R.S. 9:302, alleging that more than one year had passed since the date of the signing of the judgment of separation without reconciliation of the spouses. Defendant answered and pleaded reconciliation as an affirmative defense.

The trial court found that the parties reached a reconciliation after the judgment of separation and dismissed plaintiff’s suit.

The issue of reconciliation is a question of fact to be determined considering all the circumstances surrounding the actions of the parties involved. Garrett v. Garrett, 324 So.2d 494 (La.App. 2nd Cir. 1975), writ denied, 326 So.2d 372 (La.1976).

The record in the instant case indicates that plaintiff and defendant remained on the most amicable of terms following their separation. Defendant testified that she frequently visited plaintiffs apartment in Baton Rouge and that plaintiff frequently visited her at their farm in Denham Springs. Defendant further testified that they would often engage in sexual intercourse during these visits. Defendant detailed numerous specific occasions when they had marital relations.

The defendant’s assertions were corroborated by the testimony of two other witnesses, a neighbor and the defendant’s nephew. Both witnesses stated that they observed plaintiff at the farm, under circumstances which led each to believe that plaintiff was “spending the night” with defendant at the farm house.

Additionally, defendant offered evidence concerning various real estate transactions conducted by plaintiff and defendant with various third parties. During one such transaction on April 17, 1975, the issue of marital status was raised because the act of sale stated that plaintiff and defendant were legally separated and living separate and apart from each other. Defendant testified that plaintiff conceded that they had reconciled and consequently had the act of sale retyped to show that the parties were married to and living with each other.

Another real estate sale passed the following day likewise showed that the parties were married to and living with each other. Similarly, the language in a mineral deed executed by the parties which stated that the parties were legally separated was stricken out and initialed by both parties.

We find that these circumstances, words and actions of the parties support the trial court’s conclusion. Garrett, supra; McVay v. McVay, 276 So.2d 926 (La.App. 3rd Cir. 1973).

For the above reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Carter JENKINS v. HARTFORD ACCIDENT AND INDEMNITY CO., INC., and Mrs. Sherry N. Neil, wife of/and Herdis Neil, and the City of Houma.
    No. 11631.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Gordon Hackman, Boutte, for plaintiff and appellant.
    Walter T. Gamard, II, Metairie, Huntington B. Downer, Jr., Houma, for defendants and appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Carter Jenkins, appeals a judgment of the district court which dismissed “with prejudice” his demand against the defendant, the City of Houma. The dismissal was based on plaintiff’s failure to amend his petition within the time allowed by the court in its ruling sustaining defendant’s exception of vagueness.

Plaintiff filed suit against four defendants on October 22, 1976, to recover damages for injuries sustained in an automobile accident. On December 16,1976, one of the defendants, the City of Houma, filed a dilatory exception of vagueness. The trial court sustained the exception on January 31, 1977 and ordered plaintiff to amend his petition within fifteen days subject to dismissal for failure to amend timely. The petition was not amended within the fifteen days, and on March 1, 1977 the trial court rendered judgment dismissing with prejudice plaintiff’s suit against the City of Hou-ma.

Plaintiff claims that the trial court’s judgment is too harsh.

We have examined plaintiff’s petition and conclude that the trial court properly sustained the defendant’s dilatory exception and properly ordered the plaintiff to amend his petition. LSA-C.C.P. art. 933.

When the plaintiff failed to amend his petition as ordered by the court, it was within the discretionary power of the trial court in enforcing its lawful orders to dismiss plaintiff’s suit against the City of Houma. LSA-C.C.P. art. 933; Prejean v. Ortego, 262 So.2d 402 (La.App. 3rd Cir. 1972). Cf. Lawrence v. Williams, 330 So.2d 121 (La.App. 2nd Cir. 1976), writ denied, 333 So.2d 247 (La.1976).

However, our appellate courts have consistently held that the dismissal of a suit for failure to correct a defect in the pleadings should be without prejudice. Prejean, supra, and cases cited therein.

For the above reasons, the judgment of the trial court is amended to decree that the suit is dismissed without prejudice; and affirmed in all other respects. All costs are to be borne by the appellant.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    Noelie Matulich McCARSTLE v. Louis Henry McCARSTLE.
    No. 11641.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Michael A. Cavanaugh, Baton Rouge, of counsel, for plaintiff-appellant.
    Fred H. Belcher, Jr., Baton Rouge, of counsel, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed the denial of a change of custody of a minor child.

The issues presented are:

(1) Jurisdiction;
(2) Error in maintaining the father in custody as being “in the best interest of the child.”

We affirm.

In his brief filed in this court plaintiff for the first time raises the question of jurisdiction on the basis of Odom v. Odom, La., 345 So.2d 1154 (1977). There are several reasons we must hold we and the lower court have jurisdiction. First, the question has been raised only in brief. Second, La. C.C.P. Art. 10 bases jurisdiction of custody cases upon domicile or presence of minor in this state. It is clear that the domicile is outside the state, but there is no evidence that the child was not in the state.

Plaintiff contends that the court’s holding of refusal to change custody resulted from both legal error and from abuse of its discretion.

She asserts that the trial court erred in shifting to the “best interest of that child” test after using the “double burden” test in analyzing the case.

One who seeks change in a custody award that resulted from a considered decree bears a heavy burden to show the welfare of the child is better served by the change. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972). In Monsour v. Monsour, La., 347 So.2d 203 (1977), the Supreme Court stated:

“In the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) we agreed with a trial judge who found that the child’s mother had reformed, and that awarding custody to the reformed mother was in the child’s best interest. There we reaffirmed the rule that when an award of custody has been made, the party seeking the change must prove ‘that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.’ ” (Emphasis added)

A mechanical application of the “double burden” test is not required; the best interest of a child is the main consideration.

In his Reasons for Judgment, the trial judge expressly denied application of the “double burden” test, but proceeded to make an express finding of fact that the environment and circumstances of the father’s home were not “. ... deleterious to the child . . . ”. He then expressed his reluctance to change the custody from the father to the mother after almost two years. This consideration, although not conclusive, is a relevant factor, State v. Courtney (1st Cir., 1965), 178 So.2d 489. We find no error in applying legal principles.

Plaintiff also asserts that the trial judge abused his discretion. Wide discretion is given the trial judge because of the very difficult decision involved in custody challenges. Stevens v. Stevens, (1st Cir., 1976), 340 So.2d 584. While there were serious problems concerning the mother’s visitation rights, there was very little evidence of any damaging conditions existing in the environment and surroundings of the child. Instead, there was ample evidence that the present surroundings are at least as good as the plaintiff could provide. The plaintiff’s emotional stability and standard of living has improved dramatically from the time of the custody decree in favor of the father. However, the law requires more than a showing of improvement by the party seeking custody.

Abuse resulted, too, so plaintiff contends, in giving insufficient weight to the testimony of the psychiatrist. Expert testimony is to be weighed by the trier of fact in the same manner as other evidence. Galloway v. Gaspard, 340 So.2d 579 (1st Cir. 1976) and cases cited therein. We find no error.

We cannot say that the lower court abused its discretion.

The judgment is affirmed. Plaintiff-appellant is cast with the costs of this appeal.

AFFIRMED.

      . . . it is incumbent upon the party requesting the modification to prove that the conditions under which the children are living are detrimental to their interests and further that the applicant can and will provide a good home and better environment if given their custody.” Decker v. Landry, 227 La. 603, 80 So .2d 91, 92 (1955).


author: LANDRY, Judge.

text:
    Jessie GUITREAUX et ux. v. John L. HINCHEN et al.
    No. 11646.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Writ Granted Feb. 10, 1978.
    Karl W. Cavanaugh, Denham Springs, for Jessie Guitreaux, plaintiff appellant.
    Joseph H. Simpson, Amite, for John L. Kinchen, defendant appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Appellants neither filed a brief herein nor appeared when this matter was called for oral argument.

Pursuant to Uniform Rules, Courts of Appeal, Rule VII, Section 5, the appeal is dismissed as abandoned.

Appeal dismissed.