author: WATSON, Judge.

text:
    Verjie Wheat THERIOT, Individually, etc., Plaintiff-Appellant, v. Robert CASTLE et al., Defendants-Appellees.
    No. 5762.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Reuven N. Rougeau, Lake Charles, for plaintiff-appellant.
    Woodley, Fenet & Ranier by Drew Rani-er, Lake Charles, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Plaintiff has appealed, principally contending that the quantum of damages awarded by a jury is insufficient, and defendants have answered the appeal. However, a motion to dismiss has been filed by defendants which is dispositive of the appeal.

MOTION TO DISMISS

Defendants herein, Robert Castle, and his insurer, The Travelers Insurance Company, have filed a motion to dismiss the appeal on the basis that plaintiff, Verjie Wheat Theri-ot, individually, and on behalf of Terry E. Theriot and Ann and Bobby Wheat, has voluntarily and unconditionally acquiesced in the trial court judgment and therefore is not entitled to appeal under the provisions of LSA-C.C.P. art. 2085:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

A motion to remand the appeal on the same ground is also before the court.

An authentic instrument executed by plaintiff and entitled “Satisfaction of Judgment”, which acknowledges receipt of $15,-469.88 in payment of the judgment rendered, was filed into evidence March 26, 1976. It also recites:

“That the Clerk of Court in and for Cal-casieu Parish, Louisiana, is hereby authorized to file this instrument in the above styled suit record and to erase and cancel said judgment as having been fuly [sic] paid and-satisfied.” (TR. 80)

Plaintiff’s motion for appeal was made on May 27, 1976, some two months following the filing of this document.

Generally, a party may accept payment of a judgment without acquiescing in it unconditionally and forfeiting the right of appeal under LSA-C.C.P. art. 2085. Several cases standing for this proposition are distinguishable on their facts from the instant situation. In Jackson v. Ed’s Cab Company, 323 So.2d 874 (La.App. 4 Cir. 1975), there was specific reservation of the right to appeal and the devolutive appeal was granted prior to payment of the judgment. Charles C. Cloy Gen. Con., Inc. v. DiVincenti Bros., Inc., 308 So.2d 493 (La. App. 1 Cir. 1974) is a case where a motion for appeal had been made, and an appeal bond posted prior to payment of the judgment. First Nat. Bk., Jefferson Par. v. Louisiana Pur. Corp., 328 So.2d 727 (La. App. 4 Cir. 1976) holds that verbal notice of intention to appeal is sufficient to show non-acquiescence in a judgment even when payment is made. Major v. Louisiana Department of Highways, 327 So.2d 515 (La. App. 1 Cir. 1976) states that acquiescence in a judgment is never presumed and must be established by evidence which leaves no doubt of the required intent. In Henry Waters Truck & Tractor Co., Inc. v. Relan, 277 So.2d 463 (La.App. 1 Cir. 1973) writ denied La., 279 So.2d 206, it was stipulated that plaintiff’s counsel advised defendant’s counsel plaintiff might appeal.

The Satisfaction of Judgment herein not only acknowledges payment but specifically authorizes cancellation and erasure of the trial court judgment. The latter feature is not found in any of the cases cited above.

In the instant case, as in Lambert v. Brucker, 323 So.2d 894 (La.App. 4 Cir. 1975), the judgment was in favor of, rather than against, plaintiff-appellant. However, no appeal can be taken from a cancelled and erased judgment. Ponder v. Pechon, 169 So.2d 671 (La.App. 1 Cir. 1964), writ application not considered 247 La. 353, 170 So.2d 868. The Code of Civil Procedure defines appeal as follows:

“Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” LSA-C.C.P. art. 2082.

Plaintiff has no right of appeal from a judgment which has been cancelled and erased, and the appeal is therefore dismissed at plaintiff’s cost.

APPEAL DISMISSED.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Ben O. MUSQUEZ et al., Plaintiffs-Appellees, v. BARKSDALE FEDERAL CREDIT UNION, Defendant-Appellant.
    No. 5767.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Skeels, Baker & Coleman by Donald L. Baker, Shreveport, for defendant-appellant.
    Leach & Cabra by Edwin L. Cabra, Lees-ville, for plaintiffs-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

This suit was instituted against Barks-dale Federal Credit Union to recover benefits alleged to be due under the provisions of a credit life insurance policy. Plaintiffs are the surviving father, mother, brothers and sisters of Ruben Musquez, deceased. Judgment was rendered by the trial court in favor of plaintiffs. Defendant appealed.

The principal issues presented are whether Barksdale Federal Credit Union obligated itself to loan Ruben Musquez a sum of money prior to the death of the latter, and whether a credit life insurance policy insuring the life of the decedent for the amount of that loan was in effect at the time of his death.

Ruben Musquez died on March 9, 1975, as the result of injuries which he sustained in an automobile accident the preceding day. Plaintiffs are his sole surviving heirs. For some time prior to his death he and his father, Ben Musquez, were in the armed forces of the United States and were stationed at Fort Polk, Louisiana. Both of them were members of the Barksdale Federal Credit Union, which has its main office in Shreveport and operates a branch office at Fort Polk.

In February, 1975, Ruben negotiated with a saleslady at Gray’s Sales and Service, the Datsun automobile distributor in DeRidder, for the purchase of a Datsun automobile. While conducting those negotiations, he submitted an application to the defendant credit union for a loan to finance the purchase of that vehicle. The application was discussed with and submitted to Warren Davis, a loan counselor employed by defendant, who informed Ruben that it would be necessary for him to have someone else sign the promissory note with him as a co-maker of that note. Ruben’s father, Ben Musquez, thereupon agreed to sign, and he in fact did sign, the note as a co-maker with his son.

The application for the loan was approved by the Board of Directors of the credit union, and Davis then promptly contacted the saleslady at Gray’s Sales and Service by telephone and informed her of that approval. The parties were not able to complete the sale of that automobile, however, because Ruben had failed to make a deposit on it, and the dealer sold that vehicle to someone else before Ruben’s application for a loan was approved.

Ruben then selected another Datsun automobile to purchase, and on March 3, 1975, he executed a written sales agreement prepared by Gray’s Sales and Service for the purchase of that car. On the following day, March 4, he deposited $50.00 with the dealer so that the car would be held until another loan could be obtained. The automobile he selected on that occasion was a little more expensive than was the first one, and it became necessary for him to borrow about $200.00 more than he had originally planned to borrow. Davis informed Ruben that since he was purchasing a different automobile for a different price he would have to make an entirely new application to the credit union for a loan in the increased amount. All of the documents which had been completed in connection with the first loan application were destroyed. Ruben then completed and submitted to the credit union a new application for a loan and all of the documents required by the union at that time. The following documents were completed and submitted by Ruben: (1) An application for a loan; (2) a promissory note signed by Ruben and his father, Ben Mus-quez, the latter signing as a co-maker; (3) three chattel mortgage forms; (4) an application for a certificate of title; (5) a consumer credit disclosure form; and (6) a letter asking the insurer to change the loss payee clause on the policy making it payable to Barksdale Federal Credit Union, at Fort Polk.

The total purchase price of the car was $4,249.46. Ruben planned to pay $612.00 of that purchase price in cash, and to borrow the remaining balance of $3,637.46 from the credit union. The note which he and his father executed, made payable to defendant, was for the last mentioned amount.

The application of Ruben for a loan in the increased amount was approved by all of the proper officials of the credit union. On the afternoon of Friday, March 7, 1975, Davis contacted the saleslady at the Datsun dealership by telephone and informed her that the loan had been approved, and that all that remained to be done was for the buyer to bring to the credit union a slip of paper showing that he had insurance on the car. Davis then informed Ruben that afternoon that “everything was approved and ready,” but that Ruben couldn’t pick up the car until he furnished proof that he had insurance on the vehicle. Davis also called Ruben’s father, Ben Musquez, by telephone on March 7, and informed him that the loan had been approved. He didn’t mention to Ben, however, that it would be necessary for Ruben to furnish evidence of insurance before he could take possession of the car.

Ruben was involved in a motor vehicle collision on the next day, March 8, and he died on Sunday, March 9. He had not picked up the car and the proceeds of the loan had not been disbursed by that time. Plaintiff, Ben Musquez, completed the purchase of the automobile after his son’s death. He obtained a loan from a bank in DeRidder, however, and he used the proceeds of that loan to pay the purchase price.

The by-laws of the Barksdale Federal Credit Union provide that in connection with each loan made by that institution, credit life insurance is provided the borrower, that is, the life of the borrower is insured for the amount due on the loan. That life insurance coverage is provided by the credit union at no cost to the borrower. No formal or written life insurance policy, however, is ever issued to the borrower. All that is required of a qualified borrower to obtain credit life insurance is for him to sign a statement on the loan application to the effect that he is not presently restricted in full time employment by reason of his health. Ruben signed that statement in his application for the above loan.

Harold Hansen, the administrative manager of the defendant credit union, testified that the life insurance coverage which the union provides for each borrower becomes effective on the first day interest on the loan is incurred. He explained that interest begins to run “when the check is cut and the loan is booked and placed into the records.” In the instant suit a check for the amount of the loan had not been “cut,” or issued, by the time of Ruben’s death. The evidence does not show whether the loan had been “booked” or “placed into the records” by that time. It does show, however, that it was customary for a dealer to deliver an automobile to the purchaser upon being informed by the defendant credit union that the purchaser’s application for a loan had been “approved,” although a check for the proceeds of the loan would not be cut or issued until several days later.

Mr. Davis, loan counselor for the defendant credit union, testified that it was the standard policy of that institution to require the borrower to furnish proof of the fact that he had comprehensive and collision insurance coverage affecting the mortgaged automobile. He stated that ordinarily the credit union would inform the dealer that the financing of the car had been arranged, but that in a case where proof of insurance had not been supplied, it would instruct the dealer to not release the ear to the borrower until proof of the required insurance had been furnished. Some of his testimony to that effect is as follows:

“. . . We will inform the dealer that this financing has been arranged, that we are waiting for proof of insurance on that particular vehicle before the release of the vehicle by the dealer can be made.”
SjC * Sfc ^ Jfi #
“. . . Before a — a loan must be approved first, then proof of insurance must be obtained before the vehicle can be released.”

The evidence shows that Davis explained to Ruben that it would be necessary for him to furnish proof of insurance on the car before he could pick up the automobile at the dealer’s place of business. No such explanation was ever made to plaintiff, Ben Musquez.

The promissory note executed by Ruben and his father was payable in 36 monthly installments. The chattel mortgage executed by Ruben to secure that note contains the following provision relating to insurance coverage on the automobile:

“. . . Mortgagor agrees to furnish insurance as required by Mortgagee and failure to furnish such insurance shall authorize Mortgagee, at its option, to obtain such insurance at Mortgagor’s expense, the premiums advanced therefore to be secured by this mortgage and to bear interest at the rate stipulated in the note. It is understood and agreed that Mortgagee is not in any way obligated to obtain such insurance and it will not be liable for any loss incurred by reason of not obtaining such insurance.”

There is no provision in the application for a loan or in any of the documents furnished by Ruben, other than that quoted above, which relates to the mortgagor’s obligation to furnish insurance coverage on the mortgaged automobile. We find nothing in any written instrument relating to the loan sought by Ruben which indicates that the commitment of defendant to make the loan was conditioned on Ruben’s furnishing proof of insurance coverage on the car.

Defendant contends that its obligation to make the loan to Ruben was subject to a suspensive condition, that being that the borrower must furnish proof of insurance coverage on the mortgaged automobile before the contract became complete. It argues that since the borrower never furnished proof of that insurance coverage, the suspensive condition never took place and the contract thus never came into existence. To support that argument, defendant relies on Blaushild v. Rockhold, 7 La.App. 709 (1927); Mire v. Haas, 174 So. 374 (La.App. 1937); and Wagenvoord Broadcasting Company v. LeBlanc, 221 So.2d 282 (La.App. 4 Cir. 1969).

The judgments rendered in the cited cases indicate that a written contract can be made the subject of a suspensive condition, even though the condition is not expressed in the written instrument itself, provided that the condition is implied from the nature of the contract and the presumed intent of the parties.

The trial judge concluded that the requirement of the defendant credit union that Ruben furnish proof of insurance coverage on the mortgaged automobile did not constitute a suspensive condition of the contract, and that a suspensive condition could not be implied from the nature of the contract. He held that “the contract was fully consummated and in effect before Ruben Musquez met his untimely death,” and that “the credit life insurance was also in effect.” We agree with those conclusions.

Prior to his death Ruben signed a sales agreement obligating himself to purchase an automobile from the dealer, and he made a small deposit on the purchase price of that car. He applied to the credit union for a loan to enable him to pay the remaining balance of the purchase price, and the credit union formally approved his application and agreed to make the loan. Ruben and his father executed a promissory note for the amount of the loan. The credit union notified the makers of the note and the dealer that the loan would be made. Ruben then became obligated to purchase the car and to repay the loan, and we believe that the contract to consummate the loan and to provide credit life insurance to the borrower became effective at that time. The trial judge observed, correctly we think, that “Ruben and his father would both have been bound by the agreement, whether or not Ruben ever secured insurance of his own or not,” and that “it would be inequitable to say that the obligor would be bound to the contract but the obligee is not.”

We find no merit to defendant’s argument that the credit life insurance coverage which it agreed to provide for Ruben did not become effective before the latter’s death, and that it would not become effective under any circumstances until the first day interest began to accrue on the loan. We find nothing in the documentary evidence or in the law which tends to support that argument, or to support the legal conclusion expressed by Mr. Hansen to that effect. Ruben and his father were never told that there would be such a delay in making the insurance effective, and we find nothing in the record which would justify a conclusion that the parties agreed or understood that the life insurance coverage would not become effective until interest began to accrue on the loan.

Article 2021 of the Louisiana Civil Code provides that “if the obligation is not to take effect until the event happened, it is a suspensive condition.” LSA-C.C. art. 2026 provides:

“Conditions are either express or implied. They are express, when they appear in the contract; they are implied, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties.”

In the instant suit there was no express agreement that the loan contract was subject to a suspensive condition. No implication can be drawn from the operation of law, from the nature of the contract or from the presumed intent of the parties, that the obligation was subject to such a condition. The testimony of defendant’s loan counselor indicates that the borrower’s delay in furnishing proof of insurance coverage may delay him in obtaining delivery of the automobile, but that it would not relieve him of his obligation to pay the note, nor would it suspend the effectiveness of the loan agreement. The chattel mortgage securing the promissory note provides that the credit union itself may obtain that insurance, if it sees fit to do so, and it may add the cost of the premiums to the mortgage indebtedness.

Our conclusion is that the credit life insurance coverage which the defendant credit union agreed to furnish to Ruben in connection with the loan became effective on March 7, 1975, and that that insurance was in effect at the time of the latter’s death. We thus find no error in the judgment rendered by the trial court.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    St. Cyr ROMERO, Plaintiff-Appellee, v. OTIS INTERNATIONAL and Travelers Insurance Company, Defendants-Appellants.
    No. 5784.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Caffery, Duhe & Davis by J. Louis Gib-bens, New Iberia, for defendants-appellants.
    William R. Collins, New Iberia, for plaintiff-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by St. Cyr Romero against Otis International and its insurer, Travelers Insurance Company. Judgment was rendered by the trial court in favor of plaintiff, awarding him compensation benefits at the maximum rate during his disability, not to exceed 500 weeks. Defendants appealed.

The issues presented are (1) whether plaintiff’s disability resulted from an accident as that term is used in the workmen’s compensation statute, (2) whether there was a causal relationship between plaintiff’s employment and his present disability, and (3) whether plaintiff is totally and permanently disabled.

Plaintiff contends that he sustained an injury, consisting of a hearing loss caused by acoustic trauma, on February 17, 1975, while working for Otis International, and that as a result of that accident he is now totally and permanently disabled.

Romero was about 61 years of age at the time of his injury. He had worked as a finishing carpenter for Otis International for a period of about 18 months before the alleged accident occurred. Otis at that time was engaged in constructing modular living quarters for the United States Air Force. These living quarters were self-contained units, each of which was designed to house two men. Plaintiff’s primary job was to do finishing carpentry work on the units, which included the installation of sheet rock, windows, doors and other trim work. The construction work was performed inside of a large building where it was estimated that as many as 50 units were worked on at one time. The finishing carpentry work took place in a different part of the building from that in which the units were assembled.

On or about February 2, 1975, plaintiff was directed by his supervisors to discontinue his finishing carpentry work on the modular units and to begin assisting other employees in the assembly of those units, which included making the frames and attaching the floors and walls to the frames. His new duties required him to move to a different place in the building and to use an air hammer, a mechanical device which shoots nails into wood by the use of air pressure generated by an electric motor. When an air hammer is operated it makes a loud noise which sounds like the firing of a shotgun. The evidence indicates that the noise is not as loud as that made by the firing of a shotgun, but it is greater than the noise made by the firing of a .22 rifle.

Prior to February 2, plaintiff was required only occasionally to use an air hammer, and his work did not require him to be in the immediate vicinity of places where that type of tool was used. At his new position, however, he was required to use air hammers a substantial part of every day, and it was necessary for him to work inside the modular units with others who also were using the same type tools. The units which were being assembled were located about 4 feet apart inside the large building, and plaintiff was required to do most of his assembly work inside the relatively small units. The working conditions and the close proximity of the units being assembled were such that the noise from the use of the air hammers was very loud. From February 2 until February 17, 1975, plaintiff worked about 12 hours per day at this new position.

Romero reported to work as usual on the morning of February 17,1975, and at about 9:00 A.M. on that date, while working with an air hammer on the above units, he suddenly began to feel ill, nauseated and dizzy, and he developed a headache. He reported his condition to a plant supervisor who gave him two aspirins and directed him to leave work and to go to a doctor for a medical examination. Plaintiff thereupon consulted his family physician, and thereafter he was examined and treated by other doctors.

Plaintiff testified that prior to February 17, 1975, he had always worked regularly, working long hours almost every day. He stated that he had never had any trouble with his hearing or with dizziness, that he was never bothered with noises or the sound of electric saws, and that he had never experienced difficulty in climbing ladders or working at heights. He testified that from and after February 17, he has had difficulty in hearing, that he cannot stand loud noises or the sound of electric saws, that he experiences dizzy spells frequently and particularly when he hears loud noises, and that he is unable to climb on ladders or to work at heights because of his frequent dizzy spells. He stated that he has tried to resume carpentry work on five or six occasions, but that he has been unable to do so, and that he has not been employed at any time since February 17, 1975.

The lay evidence establishes that Romero was a good worker prior to February 17, 1975, that he worked regularly up to that time, and that he never complained of any trouble with his hearing or with dizziness or loud noises. Since that time, he has complained frequently of noises and dizziness, he appears to get very irritated when loud noises occur, and he often gets dizzy spells. He has not worked since the last mentioned date.

Plaintiff was examined by his family physician, Dr. Burleigh, on February 17, the day on which he first experienced the above symptoms. Dr. Burleigh suspected that plaintiff had a heart condition, and he thereupon referred him to Dr. Burt Bujard, a heart specialist. Dr. Bujard determined that plaintiff’s condition resulted from an abnormal condition of his ears, rather than from a heart ailment, and he thereupon referred plaintiff to Dr. Clyde Landrum, an ear, nose and throat surgeon. Neither Dr. Burleigh nor Dr. Bujard testified at the trial.

Dr. Landrum examined Romero on February 24, one week after plaintiff allegedly became disabled. He found that plaintiff had sustained an acoustic trauma, resulting in a nerve damage to the inner ear and a sensory neural hearing loss in both ears. He felt, however, that plaintiff’s hearing loss was not of recent origin, but that instead it had developed over a period of months or years. He conceded that it was “entirely possible” that Romero sustained the hearing loss on his job with Otis, but that “the likelihood of sustaining something in two weeks is not very great.” Plaintiff did not complain to the doctor of dizziness at the time of the above examination. As we interpret Dr. Landrum’s testimony, he feels that there was no causal relationship between plaintiff’s employment and his present disability, although he agrees that there is a slight possibility that such a relationship could exist.

Dr. Lee J. Sonnier, an eye, ear, nose and throat specialist, examined and treated Romero from February 26 until May 10, 1975. He diagnosed plaintiff’s condition as “bilateral sensori-neural hearing loss, caused by acoustic trauma.” He felt that plaintiff had some acoustic hearing loss before February 17, 1975, but that the noise to which he was subjected during his employment by Otis aggravated his prior condition. The injury, according to Dr. Sonnier, caused plaintiff’s loss of hearing and the dizziness he experiences. He felt that as of the last day he examined plaintiff, the latter could return to carpentry work, provided that he worked only “on the outside, but not confined inside (a building),” .and that he “should stay away from noise as much as he can.” The doctor was not able to determine whether plaintiff’s dizziness was caused by inner ear trouble, but assuming that it was he felt that plaintiff could not work safely at any height above the floor or ground. In Dr. Sonnier’s opinion, plaintiff’s present disability occurred gradually, over a period of at least two months, and that the injury was caused by the noise at his place of employment.

Dr. Sonnier referred plaintiff to Dr. Thomas Graves, an ear, nose and throat specialist, because of the latter’s wide experience and his sophisticated testing equipment. Dr. Graves examined plaintiff on March 7, November 10 and 19, and on December 17, 1975. He concluded that plaintiff had a “severe bilateral sensori-neural hearing loss,” or a severe hearing loss in both ears, more severe in the left ear, and that the hearing loss was permanent. He also found that plaintiff had some dizziness, but he was unable to complete all of his tests because of plaintiff’s complaints of pain, and for that reason he was not able to determine whether his dizziness resulted from inner ear trouble or from a central nervous system disorder. Based on his findings, he felt that plaintiff should find some other type of work which would not require him to be around loud noises, such as that made by air hammers and electric saws. He stated that if plaintiff should be subjected to such noises without some protection his condition would get progressively worse. In response to a hypothetical question in which we think the facts were correctly set out, Dr. Graves expressed the opinion that there was a causal relationship between plaintiff’s present disabling condition and the loud noises he was subjected to from February 2 to February 17, 1975.

The trial court concluded that plaintiff is totally and permanently disabled, and that his disability resulted from an accident which occurred in the course of his employment. In his reasons for judgment, the trial judge said:

“ . . . I am convinced that Mr. Romero did in fact suffer an accident within the meaning of the Workmen’s Compensation law, that culminated on February 17,1975 because of his exposure to the excessive noise in an enclosed place with the use of the air hammers. I further feel that the testimony supports Mr. Romero’s claim that he is totally and permanently disabled within the meaning of the law.”

The factual findings of the trial judge, and particularly those which involve a determination of the credibility of witnesses, are entitled to great weight, and those findings will not be disturbed unless found to be clearly erroneous. Blazier v. Georgia-Pacific Corporation, 301 So.2d 701 (La.App. 3 Cir. 1974).

A workmen’s compensation claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterward, provided that the medical evidence shows that there is a reasonable possibility of causal connection between the accident and the disability. Broussard v. Acadia Industries, Inc., 339 So.2d 48 (La.App. 3 Cir. 1976).

•The facts in Comoletti v. Ideal Cement Company, 147 So.2d 711 (La.App. 1 Cir. 1962), are similar to those presented here. In Comoletti plaintiff was subjected to a series of loud noises, similar to those made by the firing of shotgun shells, as he assisted in “shooting the kilns” to clean out some large ovens where the ingredients of cement were mixed. The court held that he sustained permanent hearing loss caused by acoustic trauma, and that that trauma resulted from the above loud noises.

In the instant suit, we cannot say that the trial judge clearly erred in finding that plaintiff has been totally disabled since February 17, 1975, and that his disability is permanent. Romero worked as a carpenter for at least 10 or 12 years before the above date, and we agree with the trial judge that he was a “semi-skilled” employee. Since he can no longer work with or around electric saws, or other tools which make loud noises, nor can he climb ladders or work at heights because of dizzy spells, we agree that he is totally disabled from doing the type of work he has been performing. The medical experts agree that his condition is permanent. We affirm that part of the trial court’s judgment, therefore, which decrees that plaintiff has been totally and permanently disabled since February 17, 1975.

The evidence convinces us, as it did the trial court, that a causal relationship exists between plaintiff’s present disability and his employment. Prior to February 17,' 1975, plaintiff experienced no difficulty in hearing, no inability to tolerate loud noises and no dizziness. Since the above date, however, he has had a severe hearing loss, and he has experienced dizziness and an inability to cope with loud noises or to work at any appreciable height. The onset of the above symptoms occurred when he suddenly became ill, nauseated and dizzy during the course of his employment on February 17, 1975. The medical evidence shows not only a reasonable possibility, but we think it establishes a strong probability, that there is a causal relationship between plaintiff’s present disability and the loud noises to which he was subjected in the course of his employment on and immediately prior to February 17, 1975. Under those circumstances a presumption arises that his present disability resulted from the accident which occurred on the above date. We find that the evidence does not offset or overcome that presumption.

Defendants contend, finally, that plaintiff is not entitled to recover compensation benefits because of his failure to establish the occurrence of an “accident,” as that term is used in the workmen’s compensation act. They point out, correctly, that the noises to which plaintiff was subjected on the morning of February 17, 1975, were no different from the noises to which he had been subjected during the previous two weeks. The evidence shows that air hammers were being used by plaintiff, and by other employees in that immediate vicinity, when Romero’s disabling symptoms first appeared. Defendants argue, however, that no event happened suddenly or violently, and no violence to the physical structure of plaintiff’s body took place on the above date. They take the position that plaintiff is not entitled to recover because he did not sustain a “personal injury by accident,” as provided in LSA-R.S. 23:1031.

An “accident” is defined in the workmen’s compensation act as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” LSA-R.S. 23:1021(1). The act provides that the term “injury” includes only “injuries by violence to the physical structure of the body . . . ” LSA-R.S. 23:1021(7).

In construing the above statutory provisions, our courts have held consistently that under some circumstances, when the work of the employee requires physical effort and exertion, it is not necessary that the disabling injury be sustained as the result of a violent trauma.

To constitute an accident within the meaning of the workmen’s compensation law, in cases where the work of the employee requires physical effort and exertion, it is not necessary that the injury from which disability follows be the result of a violent trauma. An accident may be said to have occurred if a diseased organ or part of the body gives way suddenly while the employee is discharging his usual and customary duties, provided that there was a causal relationship between the sudden giving way of that part of his body, his employment and his resulting disability. Blazier v. Georgia-Pacific Corporation, 301 So.2d 701 (La.App. 3 Cir. 1974); Satterwhite v. Zurich Insurance Company, 199 So.2d 429 (La.App. 1 Cir. 1967); Griffin v. Employer's Liability Insurance Company, 186 So.2d 349 (La.App. 1966); Gotte v. Cities Service Oil Company, 298 So.2d 920 (La.App. 1974); Prater v. Liberty Mutual Insurance Company, 182 So.2d 805 (La.App. 1966).

In the instant suit, the work which plaintiff was performing when he suddenly became ill and disabled required considerable physical effort and exertion. He was operating an air hammer, which required a great amount of physical effort, and he was working about 12 hours per day. A part of his body, his inner ear, suddenly gave way while he was discharging his usual and customary duties. We have found that there was a causal relationship between the sudden giving way of that part of his body, his employment and his resulting disability. It appears to us, therefore, that the above rule is applicable here.

Defendants, however, rely on and refer us to Gaspard v. PetroService, Inc., 266 So.2d 463 (La.App. 3 Cir. 1972), and Warnke v. Owens-Illinois, Inc., 326 So.2d 881 (La. App. 4 Cir. 1976). We distinguish both of those cases. In Gaspard, the plaintiff was unable to point out any single event which caused his disability or any particular time when a diseased organ or part of his body gave way. He argued only that each vibration of the screening machine which he operated for a period of several months constituted a separate accident. The machine vibrated at the rate of 1750 times per minute. We held that his exposure to those vibrations for several months during the course of his employment did not constitute an accident. In Warnke, supra, the plaintiff was unable to say when her back trouble started. She acknowledged that her alleged disability was not accident related, and her treating physician described her discomfort as a gradual worsening, without any specific onset. In the instant suit, unlike either of the cited cases, plaintiff’s injury manifested itself suddenly and unexpectedly during the course of his employment. A part of his body gave way at a specific time, and the evidence shows a specific event which marked the onset of his injury and disability.

Our ultimate conclusion is that plaintiff is totally and permanently disabled, that his disability resulted from an accident as that term is used in LSA-R.S. 23:1031, and that there is or was a causal relationship between his employment and his disability. We thus find no error in the judgment rendered by the trial court.

The judgment appealed from is affirmed. The costs of this appeal are assessed to the defendants-appellants,

AFFIRMED.


text:
    DEPARTMENT OF HIGHWAYS of the State of Louisiana, Plaintiff-Appellant, v. Dewey Glen TRICHEL, Defendant-Appellee.
    No. 5791.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Marshall W. Wroten, Robert J. Jones, Sharon P. Frazier, David K. Balfour by David K. Balfour, Baton Rouge, for plaintiff-appellant.
    Donald G. Kelly, Kelly & Ware, Natchi-toches, for defendant-appellee.
    Before HOOD, GUIDRY and FORET, JJ.
   HOOD, Judge.

The Department of Highways of the State of Louisiana instituted this action for judgment ordering defendant, Dewey Glen Trichel, to remove a fence from a state highway right-of-way. The trial court rendered judgment for defendant, dismissing the suit. Plaintiff appealed.

The issues presented are (1) whether this is a petitory action, requiring the Department of Highways to make out its title to the right-of-way, and (2) whether defendant was authorized by the Department of Highways to construct the fence at its present location.

On October 13, 1931, Sarah Beabers sold and conveyed to the State of Louisiana and the Louisiana Highway Commission a right-of-way on and across a tract of land owned by the vendor in Natchitoches Parish. The servitude conveyed by that deed was to be used for the construction of State Highway Route No. 606, which was later redesigna-ted as State Highway Route No. 480. A part of the right-of-way conveyed by that deed was 60 feet wide (that is, 30 feet on each side of the center line of the highway), and the remaining part of that right-of-way, being a strip of land 345.6 feet long, was 80 feet wide (that is 40 feet on each side of the center line of the highway).

A highway was built on and over that-right-of-way in 1936, and at that time concrete markers were placed on the ground at relatively close intervals marking the outside boundaries of the right-of-way. Each such marker consisted of a concrete post, six inches square at the top and five feet long. Three feet of each marker was in the ground, and two feet of it was visible above the ground. The letters “LHC” were imprinted on the upper part of each marker, indicating that it marked the right-of-way of the “Louisiana Highway Commission.” At the places where the highway right-of-way was 60 feet wide as it crossed the Beabers property, markers were placed 30 feet north of the center line of the Highway. Along the 345.6 foot stretch of that right-of-way which was 80 feet wide, however, the markers were installed 40 feet north of the center line of the highway. The boundary line between the Trichel property and the highway right-of-way was somewhat irregular, therefore, since a part of the right-of-way at that point was 60 feet wide and the rest of it was 80 feet wide.

On July 21, 1971, defendant Trichel purchased from Lucille Waldrup an 11 acre tract of land, described in part as being “Lot Four (4) of the division of the Sarah Babers property. . . .” The evidence indicates, and the parties seem to agree, that the tract acquired by Trichel at that time was a portion of the property which Sarah Beabers owned originally, and that a part of the tract acquired by defendant was located adjacent to and immediately north of the right-of-way which Mrs. Beabers granted to the Highway Commission in 1931.

A few weeks after Trichel acquired the above tract of land he constructed a fence along the south side of his property, near the north boundary of the highway right-of-way, on a line which he apparently considered to be the boundary between his property and the highway servitude. The evidence, including a plat of survey made by a registered surveyor, shows that the fence was constructed along a relatively straight line, although the north boundary of the right-of-way was not straight, and that a substantial part of the fence was located on the right-of-way, that is, within the boundaries of that servitude. The concrete markers indicating the boundaries of the right-of-way were in place when the fence was built, and they plainly marked the north line of that right-of-way. Despite these markers, however, the fence was constructed several feet south of some of those markers. At one point the fence was about 15 feet south of a marker which indicated the north boundary of the servitude.

Defendant Trichel testified that before he constructed the fence he telephoned someone at the Highway Department substation, at Campti, Louisiana, and informed him that he intended to build the fence, and he stated that he was told by that person to build the fence 30 feet from the center line of the highway. The person at the sub-station also informed Trichel that he would have two men at the site the next day to tell him exactly where to start the fence. Defendant does not know who he talked to at the sub-station, or what position that person held with the Highway Department. Trichel also did not go to the place where the fence was to be built the next day, and he thus did not see or talk to the two men who were to meet him there. Defendant stated, however, that the fence actually was constructed 30 feet from the center line of the existing highway. He concedes that he saw the concrete markers along the north side of the highway, but he said that he ignored them and built his fence 30 feet north of the center line, in spite of the fact that the fence line was between the markers and the road bed of the highway. A utility pole was located in that area, within the right-of-way, a few feet south of the above concrete markers. Defendant located his fence south of that utility pole, thereby enclosing that pole as well as several concrete boundary markers in his fenced-in enclosure.

Defendant’s mother and his uncle testified that two men came to the site on the day the construction of the fence was begun, and told them to locate the fence 30 feet from the center line of the highway. The witnesses did not know either of the men, although defendant’s uncle said that one identified himself simply as “Conlay.” There is nothing in the record to show who the men were, or what connection they had or may have had with the Highway Department.

On November 20, 1971, the District Engineer for the Department of Highways wrote to defendant Trichel, advising him that the fence which the latter was then in the process of constructing was within the limits of the highway right-of-way, as clearly defined by markers. The letter concluded with the following request and statement:

“I am requesting that you remove that portion of fence already constructed from within the limits of our right-of-way. If this is not done I will have no other alternative but to request our Parish Forces to remove the fence and bill you for the expense of labor and equipment involved.”

That letter was sent by certified mail and was received by defendant on November 22, 1971. Despite the request contained in that letter, Trichel completed the construction of his fence inside the right-of-way boundaries. He gave as his reasons for doing so that the construction of the fence was almost complete by that time, and that he had done some checking and had found that there were some right-of-way markers in that general area, where the highway abutted property owned by parties other than the defendant, which were less than 30 feet from the center line of the highway.

This suit was instituted by the Department of Highways on February 26, 1976. Plaintiff alleges and contends that the fence constitutes an encroachment on the highway right-of-way, in violation of LSA-R.S. 48:347, and that it is entitled to judgment ordering defendant to remove the encroachment from the right-of-way.

In response to plaintiff’s demand, a rule was issued directing defendant to show cause why he should not be required to remove the fence. The only defenses alleged by defendant are (1) that the Department has maintained and exercised the right-of-way only to the extent of 60 feet, (2) that defendant has not encroached on the right-of-way since the fence is located exactly 30 feet from the center line of the highway, (3) that since the fence was constructed in 1971 the Department of Highways is equitably estopped from pursuing its claim for encroachment, and (4) that the fence “was built and constructed in its location with the advice and consent of the highway department personnel, namely Mr. Conley.” We do not consider any of these pleadings as constituting an assertion of ownership of the right-of-way by defendant, or as contesting the ownership of plaintiff.

After trial, judgment was rendered by the trial court in favor of defendant, dismissing the suit. The trial court, after citing and quoting from Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), reasoned that the Department had failed to “make out its title” to the servitude, as required by LSA-C.C.P. art. 3653, and that it thus failed to carry its burden of proof. The court obviously regarded the action instituted by the Highway Department as being a petitory action. It is from that judgment of dismissal that the present appeal was taken.

On this appeal the only arguments made by defendant are (1) that the trial court correctly dismissed the suit because the Department of Highways failed to “make out its title,” as required by LSA-C.C.P. art. 3653 and Pure Oil Co. v. Skinner, supra, and (2) that the Highway Department expressly authorized defendant to construct the fence at its present location.

There is no dispute in the instant suit as to the ownership of the highway right-of-way. The Department of Highways does not seek a judgment recognizing it as owner of that servitude, and defendant does not claim the ownership of it, nor does it dispute the Department’s title to it. This is merely a summary proceeding, in the nature of an action for eviction or for trespass, instituted by the Department of Highways to compel the removal of structures or obstacles on the highway right-of-way, as specifically authorized by LSA-R.S. 48:347 and by LSA-R.S. 13:5035.

The pertinent parts of LSA-R.S. 48:347 provide:

“A. The department may apply to the court for any process necessary to prevent the installation of any structure, sign, obstacle, object, deposit, or thing within the limits of a highway contrary to this Chapter or any lawful regulation issued hereunder.
# sjs * % sf:
“C. Whenever any of the things described in subsection A of this Section are found to exist within the limits of a highway, the department may summarily remove and dispose of it at the expense of the person responsible therefor. If it retains apparent value, the owner shall be notified, orally or in writing, to remove it within five days or such other period as may be agreed upon. If the owner be unknown or cannot be found, a written notice shall be affixed to the object setting forth that it must be removed within a period not less than five days from the date specified. Failure to remove within the specified period operates as a forfeiture of all rights thereto and the department may remove the object for its own use, or dispose of it at private or public sale, or destroy it, or dispose of it in any manner. The owner and any other person responsible therefor remains liable for any damage to public property or expenditure of highways funds resulting from the installation or removal of such things. As amended Acts 1954, No. 126, § 1.”

LSA-R.S. 13:5035 provides:

“All suits for trespass, for damages, or for possession of real property, filed by the state against any person, firm or corporation, and all matters incidental thereto shall be heard and determined by the court in a summary manner, in term time, or vacation. Should' a trial by jury be demanded, a special panel shall be drawn for such purpose in accordance with the presently existing law. All judgments rendered in any of these causes shall also be tried summarily by the appellate court having jurisdiction.”

In Department of Highways v. Capone, 248 So.2d 62 (La.App. 1 Cir. 1971), the Department instituted a summary proceeding under the provisions of the above cited statutes, seeking a judgment requiring defendant to remove a canopy and sign which allegedly encroached on the highway right-of-way. The defendant filed exceptions contending, among other things, that the Department was attempting to appropriate defendant’s property, and further that the Department had no right to proceed under the above cited statutes because the canopy and sign had been in place before the Department acquired its rights. The trial court sustained exceptions of no right and no cause of action filed by the defendant. The First Circuit Court of Appeal reversed the trial court, however, holding that the suit could be maintained by the Highway Department as a summary proceeding under LSA-R.S. 48:347 and LSA-R.S. 13:5035.

A similar issue was presented in Giardina v. Marrero, 310 So.2d 607 (La.1975), although the suit was not instituted by the Highway Department. Our Supreme Court held, however, that the Highway Department could have instituted an action to remove the sign under LSA-R.S. 48:347, even though there was a dispute as to the ownership of the property on which the encroaching sign was located.

In both of the cited cases issues were presented as to the ownership of the property, and thus there were more reasons to treat those' cases as being petitory actions' than exist in the instant suit where no such issue is presented. In neither case, however, were the provisions of LSA-C.C.P. arts. 3653 or 3654 applied, and in neither was there a suggestion that the Department of Highways must “make out its title” before it could compel the removal of an obstacle on the highway right-of-way.

We think the rules applied in Capone and in Giardina, supra, are applicable here and that the Department of Highways may maintain a summary proceeding under LSA-R.S. 48:347 and LSA-R.S. 13:5035 to compel the removal of the fence which defendant constructed on the highway right-of-way. We hold that the instant suit is not a petitory action, nor is it in the nature of such an action, and that neither the provisions of LSA-C.C.P. art. 3653, nor the holding in Pure Oil Co. v. Skinner, supra, are applicable here.

The evidence shows that the Department of Highways owns the right-of-way, and that the fence constructed by defendant encroaches on that servitude. We believe that the Department of Highways is not required to “make out its title” in an action instituted under LSA-R.S. 48:347, and that the trial court erred in dismissing this suit because of the failure of plaintiff to meet that heavy burden of proof.

Defendant’s final argument is that the Department gave him express authority to build the fence 30 feet from the center line of the highway. There is no merit to that argument. The evidence does not show who gave defendant that permission, or whether the person giving it had authority to do so.

Our ultimate conclusion is that plaintiff is entitled to the relief which it seeks, and that the judgment of the trial court dismissing the suit must be reversed.

For the reasons herein assigned, the judgment appealed from is reversed, and the case is hereby remanded to the district court for the formation and rendition of a judgment in favor of plaintiff, Department of Highways of the State of Louisiana, and against defendant, Dewey Glen Trichel, ordering and compelling defendant to remove his fence from the highway right-of-way, specifying the time within which the removal is to be completed, and granting to plaintiff such other relief as may be appropriate consistent with the views herein expressed. The costs of the suit and of this appeal are assessed to defendant-appellee.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    TEXAS EASTERN TRANSMISSION CORPORATION, Plaintiff, v. Claude CAHANIN et al., Defendants-Appellants-Appellees.
    No. 5802.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Martin Petitjean, II, Petitjean & Petitje-an, Rayne, for plaintiff.
    Edwards, Stefanski & Barousse by Homer Ed Barousse, Jr., Crowley, for defendants-appellants-appellees.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.
   DOMENGEAUX, Judge.

On February 5, 1965, Texas Eastern Transmission Corporation invoked a concur-sus proceeding whereby it deposited the sum of $934.43 into the Registry of the Court, representing income due certain mineral royalty owners, the rights thereto claimed by different individuals, hereinafter referred to as the “Cahanin Group” and the “Lacombe Group”. After trial on the merits, the district court determined that the Lacombe Group were rightful owners of an entire 17.6 acre tract in dispute including the mineral rights attendant thereto. That decision was appealed to this Court wherein we partially reversed the trial court, finding the Lacombe Group to be owners of 14.43 acres and the Cahanin Group owners of 3.17 acres of the total 17.6 acre tract. See Texas Eastern Transmission Corporation v. Cahanin, 256 So.2d 147 (La.App. 3rd Cir. 1971), writ refused, 260 La. 1117, 258 So.2d 374. The case was remanded to the district court for a deter-initiation of the existence and location of the 3.17 acres vis-a-vis the 14.43 acres.

Upon remand, the trial court rendered a judgment which specifically provided:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the “Lacombe Group” of the following described property:
That certain tract of land containing fourteen and 43/100 (14.43) acres, more or less, lying in Section Fifty-four (54), Township Eight (8) South, Range Two (2) East and in Section Forty-four (44), Township Nine (9) South, Range Two (2) East, Acadia Parish, Louisiana, and bounded, now or formerly, as follows: On the Northeast by Marcial Broussard and Estate of Aurelien Cormier; on the Southeast by Bayou Wikoff and Whitney Brasseaux; on the Southwest by Whitney Brasseaux and on the Northwest by Whitney Brasseaux and Roy Andrus.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Judgment of this Court specifically limits the ownership of the “Lacombe Group” to the 14.43 acre tract of land and the “Ca-hanan Group” is recognized as owners of the S.17 acres described as lying within the above described tracts of land.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of Court of Acadia Parish, Louisiana, pay all funds deposited in the Registry of this Court to the parties as per this Judgment, and;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the members of the “Lacombe Group” return to the “Cahanan Group” all funds withdrawn by them from the Registry of the Court attributable to the 3.17 acre tract of land;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Texas Eastern Transmission Corporation pay all amounts due attributable to oil, gas and minerals produced from the 3.17 acre tract of land to the parties as stipulated in this Judgment;
. ” (Emphasis added)

This judgment was signed on February 21, 1975. Neither party appealed therefrom, and no motion for a new trial was made.

Subsequently, on November 6, 1975, the Cahanin Group instituted summary proceedings seeking to recover a money judgment equal to the amount due them by the Lacombe Group for royalty payments received by the latter on the 3.17 acre tract or, alternatively, the sum of $20,000.00. This latest action forms the basis for this appeal.

At the trial on the rule, the Lacombe Group introduced evidence, over objection, to show that the 3.17 acre tract either did not exist or was not actually contained in the 14.43 acre tract as above described in the judgment of February 21, 1975. The trial judge opined that he was powerless to amend the above referred to judgment since same had become final and definitive. Concerning monies due the Cahanin Group by the Lacombe Group the trial judge reiterated the February 21, 1975, judgment and again ordered:

. . . the ‘Lacombe Group’ to return to the ‘Cahanin Group’ any money received from the 3.17 acre tract of land particularly, any money withdrawn by the ‘Lacombe Group’ from the Registry of the Court attributable to the 3.17 acre tract of land;

The Cahanin Group’s alternative prayer for judgment in the sum of $20,000.00 was denied. The Lacombe Group has appealed seeking, in essence, an amendment of the February 21, 1975, judgment. The Cahanin Group has filed an exception of prescription with this court.

We note at the outset that the trial judge was correct in his appreciation of the law regarding his authority to amend the February 21, 1975, judgment. Once the delays for a new trial had expired pursuant to C.C.P. Article 1974 the District Judge was without authority to substantively modify his prior judgment.

Furthermore, C.C.P. Article 2089 requires that:

“All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.”

The Lacombe Group contends that the trial court description of the 3.17 acres in its February 21, 1975, judgment is inadequate and requests that we delete that judgment’s reference thereto. We are of the opinion that this court likewise lacks authority to modify the judgment complained of by the Lacombe Group. The delays for appeal provided for in C.C.P. Article 2087 have long since expired. Thus we are able to make no determinations concerning that judgment except that it is final and definitive. Accordingly, the judgment of the trial court must be affirmed.

It has been suggested that C.C.P. Article 2164 empowers this court to grant the La-eombe Group’s request to amend the complained of judgment. That article provides:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. (Emphasis added).”

We acknowledge the fact that since the inception of these proceedings there has yet to be a clear demonstration of exactly where the questionable 3.17 acres lie or even, if in fact, that property exists at all. We are aware that a high probability exists that the 3.17 acres are not contained within the 14.43 acre tract as found by the trial judge. However, as we have stated, no appeal was timely perfected, that act being necessary to vest jurisdiction with this court. For that reason, a ruling on our part affecting the February 21, 1975, judgment would not be “legal” within the scope of C.C.P. 2164. In short, even assuming ar-guendo that the February 21, 1975, judgment is incorrect, the Lacombe Group has simply waited too long to appeal to this court for remedy thereof.

In view of our decision herein, we determine it unnecessary to consider the Cahanin Group’s exception of prescription.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against defendants-appellants, the Lacombe Group.

AFFIRMED.

      . No issue is made as to the propriety of the utilization of summary proceedings for those purposes.

      . It should be noted that this litigation does not involve an action for nullity, the rules applicable thereto being contained in C.C.P.

      . The record indicates that the attorney representing the Lacombe Group withdrew as counsel of record on March 20, 1974. The proceedings which culminated in the February 21, 1975, judgment commenced on July 1, 1974. Apparently the Lacombe Group were unrepresented by counsel from March 20, 1974, until November of 1975, when these summary proceedings were instituted.


author: GUIDRY, Judge.

text:
    Mrs. Eva S. PARTIN, Plaintiff-Appellant, v. VERNON PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 5803.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Pharis & Pharis by James A. Pharis, Jr., Alexandria, for plaintiff-appellant-appellee.
    Gist, Methvin & Trimble, H. B. Gist, Jr., Alexandria, for third party defendants-ap-pellees-appellants.
    Bolen, Halcomb, Bolton & Erwin by Frank R. Bolton, Jr., Alexandria, Tillman & Mitchell by F. Clay Tillman, Leesville, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a personal injury action instituted by plaintiff wherein she seeks to recover, on her own behalf and on behalf of her minor son, Paul Corcoran Wagner II, hereafter referred to as Paul, damages sustained when Paul allegedly fell on the playground at Simpson Public School in Simpson, Louisiana. Suit was initially brought against the Vernon Parish School Board, however, by supplemental petition plaintiff also joined two teachers, Mrs. Betty J. Gordy and Miss Diana D. Hillman; the latter’s insurer, Horace Mann Insurance Company; and, Royal Globe Insurance Company, insurer of the school board. The school board and its insurer filed a third party demand seeking indemnity over against Gordy, Hill-man and the latter’s insurer. Miss Diana Hillman and her insurer likewise filed a third party demand seeking indemnity and/or contribution from the school board and its insurer. Thereafter the defendants, Gordy and Hillman filed exceptions of no cause and no right of action to the demands of plaintiff and third party plaintiffs which exceptions were referred to the merits.

The matter was tried and pursuant to written reasons assigned plaintiff’s demands were rejected and accordingly her suit and all third party demands were ordered dismissed with prejudice. Plaintiff appealed. Third party plaintiffs appealed solely to preserve their rights under their respective third party demands in the event the trial court judgment is reversed.

Plaintiff contends that Paul sustained a transverse laceration in the head and body region of the pancreas when he either fell upon, was pushed on or tried balancing on a small tree stump located on the playground at the Simpson Public School. Plaintiff contends that the two teachers were guilty of actionable negligence because they failed in their duty to properly supervise the children and that the school board is liable under the doctrine of respondeat superior. Plaintiff additionally contends that the school board is guilty of independent negligence for having allowed a dangerous condition, i. e., a pine tree stump, to exist on the school playground.

The facts leading up to and surrounding the alleged accident are not in dispute except in two particulars, i. e., how Paul’s body came into contact with the tree stump and whether the stump was relatively square and rounded on top or whether it was jagged and knife-like.

The accident happened at about 11:30 a. m. on the morning of September 9, 1974. The previous day, which was a Sunday, Simpson was hit by the fringe winds of a hurricane as a result of which a small dead pine tree located on the very edge of the school playground fell. The tree was described by all witnesses as being about six to ten inches in diameter. Mr. Willard Martin, the school janitor, arrived at the school on the day of the accident at about 7:00 a. m. Upon his arrival be noticed the fallen tree, which was lying partially in the road. He immediately removed the tree and large branches and generally cleaned up the area except for small branches, pine cones, etc. He did not remove the stump which was described by him as about twenty to twenty-four inches in height and almost square and rounded on top. Mr. Martin testified that he did not consider the stump as hazardous and did not report its presence to anyone.

According to the school schedule the first, second and third graders were allowed a noon recess which began about 11:20 a. m. The children, about ninety in number, were taken to the playground under the supervision of Mrs. Gordy, who was the teacher on duty. The playground was described by all witnesses as being about the size of a football field. Upon arrival at the playground Mrs. Gordy immediately saw the stump and the scattered debris, i. e., small branches, twigs, and pine cones, around it and cautioned the children as a group that they should not play there. Mrs. Gordy testified that she was not concerned about the stump, her description thereof being generally in agreement with that of Mr. Martin, however, she was concerned that the children might injure one another if they undertook to throw small twigs, pine cones, etc. Mrs. Gordy stationed herself about 30 or 40 feet away from the stump in the area of the see-saws and remained there during the entire recess. Following Mrs. Gordy’s general warning to the group as a whole, she noticed Paul, who was then 7 years old, in the vicinity of the stump and she again warned him that he should play elsewhere. Following this second warning Paul returned to the area and either fell on, was pushed, on, or layed his body over the stump. Mrs. Gordy was sitting near the see-saws, and while taking a rock out of her shoe, looked up and saw Paul on the stump with his hands and feet in the air. Mrs. Gordy assumed that Paul was trying to balance his body on the stump. Upon seeing this Mrs. Gordy immediately went to Paul and again scolded him for disobeying her. At this point we note that only Mrs. Gordy saw Paul on the stump, however, she did not see whether he fell on, was pushed on, or simply laid his body over the stump. The history given to Dr. Edgerton, Paul’s treating physician, was to the effect that a little boy pushed Paul and he fell across the stump. Paul testified that he was attempting to climb up on the stump when his foot slipped and he fell. The trial judge did not resolve this controversial fact concluding that regardless of the manner in which Paul’s body came into contact with the stump the defendants were not negligent.

Apparently, shortly after the last described incident, Miss Diana Hillman, who was a friend of Mrs. Gordy, went to the playground either to deliver a message or to simply visit with Mrs. Gordy. When she arrived Mrs. Gordy was standing by the see-saws. Miss Hillman testified that upon her arrival on the scene she noticed the stump and the debris surrounding it. Miss Hillman’s description of the stump coincided with that of Mr. Martin and Mrs. Gordy. She stated that Mrs. Gordy told her of her warning to the children and to Paul in particular that they should not play in the area of the stump. Both Miss Hillman and Mrs. Gordy testified that after the former had been there for about two or three minutes Paul approached them, in no particular distress, to show them his stomach which was slightly bruised and scratched. Neither considered the injury displayed to them to be serious or to require any attention. At this point we digress to note that the record clearly establishes that Miss Hill-man was not on duty during this particular recess and was under no obligation to supervise or help supervise the children on the playground. She testified, without contradiction, that she did not see Paul or any of the other children around the stump. The only time she actually saw Paul was when he came to the see-saws to show her his stomach.

During the afternoon Paul became sick, however, Miss Hillman concluded that he had a virus which was then going around. Upon his arrival home from school Paul became quite ill and he was then taken to the family doctor in Leesville who immediately referred him to Dr. Edgerton. Dr. Edgerton performed surgery on Paul that evening and determined that Paul was suffering from a lacerated pancreas.

On the following morning Mr. Douglas Williamson, assistant principal, was advised of Paul’s injury whereupon he dispatched one of the senior students at Simpson, John Nelson, to remove the stump. John, using an axe, cut the stump down and simply threw it down in the area. John Nelson’s description of the stump was similar to that of Mr. Martin, Miss Hillman and Mrs. Gor-dy. Some seventeen days later counsel for plaintiff ’called at the school seeking to find the stump. Mr. Williamson went to the area and retrieved a piece of pine wood which he found in the area and turned it over to plaintiff’s counsel. This piece of wood was introduced in evidence as plaintiff’s exhibit 8. The trial court described the exhibit as being a jagged piece of wood with a knife-like appearance.

As noted at the outset the evidence is conflicting as to the appearance of the stump on September 9, 1974. There is nothing in the record which would confirm that this piece of wood (exhibit P-8) was the stump which was cut down by John Nelson. Mr. Williamson testified that he had never seen the stump before or after it was cut down. He retrieved this piece of wood for plaintiff’s counsel because it was found lying in the area seventeen days post-accident. The exhibit does not conform with the description of the stump as testified to by Mr. Martin, Miss Hillman, Mrs. Gordy and John Nelson. Paul’s stepfather who viewed the stump in semi-darkness during the early morning hours on September 10th testified that the exhibit did not appear to resemble the stump he had seen standing. He stated:

“Well there seemed to be a little bit more up on it coming up in through there on the bridge part and through here maybe. I don’t believe it was quite that far down but its like I said it was late at night when I looked at it I just more or less glanced to see the stump and it was there and I looked at it . . . ”

In addition to the above the fact that Paul’s injury was not one which caused a penetration of the abdomen but rather simply a bruise corroborates the fact that the stump was not sharp and jagged. The trial court reached the following conclusion on this material issue of fact:

“. . . the Court is of the opinion that the preponderance of the evidence is that the stump, at the time of the alleged injury, was not jagged, but was more rounded and smooth across the top. The piece of wood introduced at the trial may have been some of the actual stump, but it was not the actual appearance of the stump at the time of the accident .
. This Court just cannot believe that the stump was this long and jagged, and the testimony of the people who actually saw the stump on September 7 (sic), 1974 enforces and preponderates this view .
This Court believes that at the time of this accident the appearance of the stump was rather rounded and more smooth than jagged. The evidence is to this effect ...”

It is well settled that where there is evidence before the trier of fact which, upon its reasonable evaluation as to credibility, furnishes a reasonable basis for the trial court’s finding same should not be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find no manifest error in this factual conclusion of the trial court.

On the basis of the above facts the trial court rejected plaintiff’s demands. Plaintiff contends on appeal that the trial court erred in (1) failing to find actionable negligence on the part of Mrs. Gordy; and, (2) in failing to find negligence on the part of the school board for permitting a hazardous and dangerous condition to exist in the playground area of the Simpson school.

We observe that plaintiff has apparently abandoned any claim against Miss Hillman and her insurer, Horace Mann Insurance Company, for no mention is made of Miss Hillman in her appellate brief. In spite of this, since the school board and its insurer did file a third party demand against Miss Hillman and argue on appeal that if the trial court judgment is reversed the board is entitled to indemnity over against Miss Hillman, we feel that the question of Miss Hillman’s liability or non-liability should be set at rest. We conclude that the trial court correctly determined that Miss Hillman was not guilty of any negligence and we are pleased to adopt as our own the trial court’s reasons in this regard. The trial judge stated:

“There has been no showing that Miss Hillman breached any duty she may have owed to the injured child. She was not ‘on duty’ nor did she see the child playing on or around the stump. She did not have actual or constructive knowledge of the child’s actions. Even if someone were negligent, to hold Miss Hillman liable for something she had no knowledge of, or duty towards, would be preposterous. To hold her liable would imply that every teacher in the school could also be responsible. . . . ”

We likewise find, as did the trial court, that Mrs. Gordy was not guilty of any negligence. There is nothing in the record which would even suggest that Mrs. Gordy was in any way remiss in her duty to supervise the many children under her care at this noon recess. It will be remembered that Mrs. Gordy was supervising the play of some 90 youngsters in an area the size of a football field. She cautioned the children as a group that they should not play in the area of the stump. She again cautioned Paul, himself, that he should play elsewhere. Mrs. Gordy had no reason to know or believe that Paul would not comply with her instructions. Even if Mrs. Gordy had seen Paul when he approached the stump for the second time there is no showing that from her position near the see-saws she could have prevented Paul’s contact with the tree stump. As we stated in Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3rd Cir. 1966):

“As is often the case, accidents such as this, involving school children at play, happen so quickly that unless there was direct supervision of every child (which we recognize as being impossible), the accident can be said to be almost impossible to prevent.”

We recognize that a school teacher charged with the duty of supervising the play of children must exercise a high degree of care toward the children, however, the teacher is not the absolute insurer of the safety of the children she supervises. Our law requires that the supervision be reasonable and commensurate with the age of the children and the attendant circumstances. There is no requirement that the supervisor, especially where the play of some ninety children is being monitored, have each child under constant and unremitting scrutiny. Nash v. Rapides Parish School Board, supra; Comeaux v. Commercial Union Insurance Company, 269 So.2d 500 (La.App. 4th Cir. 1972); Bourgeois v. Indemnity Insurance Company of North America, 60 So.2d 718 (La.App. Orleans 1952); Selleck v. Insurance Company of North America, 182 So.2d 547 (La.App. 1st Cir. 1966). Suffice it to say that we find no negligence on the part of Mrs. Gordy.

We turn finally to plaintiff’s contention that the school board permitted a hazardous and/or dangerous condition to exist on the school premises and is therefore guilty of negligence. We likewise find this contention to be without merit.

The trial court found that the stump in question did not constitute a hazardous or dangerous condition. In this connection the trial judge stated:

“A stump in itself is not of a hazardous or dangerous nature to warrant the concern which plaintiff would have the court believe. Neither Mrs. Gordy nor the School Board are unconditional insurers of the children . .. .
In a rural area such as Simpson, trees are predominant. Trees and their components are nearly everywhere. As such, children are going to play in and around them. In doing so, this doesn’t cause parents much concern. We then, as parents, should not expect more of others than we do of ourselves. We cannot insulate our children from all risks which they may or may not encounter.”

We agree with this conclusion of the trial judge. As aforestated the stump in question was found to be an ordinary stump, squared off on top with no jagged or knife-like protrusions. It was twenty to twenty-four inches in height and from eight to ten inches in diameter. It presented no more of a hazard than would a trash barrel, a bench, a water fountain, or any other of the many objects which are normally and usually found on school playgrounds. As stated in Whitfield v. East Baton Rouge Parish School Board, 43 So.2d 47 (La.App. 1st Cir. 1949):

. . the school board cannot foresee and guard against all the dangers incident to the rashness of children. It is not the insurer of the lives or safety of children.”

For the above and foregoing reasons the judgment of the trial court is affirmed, all costs of this appeal to be borne by plaintiff-appellant.

AFFIRMED.


text:
    Margaret Ann SCHRAMM, Plaintiff-Appellant, v. James Dawson SIMPSON, Defendant-Appellee.
    No. 5805.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Gravel, Roy & Burnes by Alfred B. Shapiro, Alexandria, for plaintiff-appellant.
    Holt, Wagner & Lee by Richard E. Lee, Pineville, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

This matter was initiated by the filing of a petition for a writ of habeas corpus by plaintiff, Margaret Ann Schramm, against the defendant, James Dawson Simpson, seeking custody of the 13-year-old boy born of their previously existing marriage. The child’s name is William Todd Simpson and he has three older siblings: J. D., age 15; Kerry, age 17; and Jamie, age 20 and a major. All of the minor children were placed in the custody of Mr. Simpson pursuant to a judgment in divorce proceedings between the parties on December 16, 1975.

Following the filing of the petition for writ of habeas corpus, the defendant, Simpson, filed a motion to dismiss which was taken up in limine.

The motion to dismiss was based on the contention that the previous custody award was a “considered decree” and that the habeas corpus proceeding was not the proper vehicle to pursue a change of custody.

The trial court denied the motion to dismiss, choosing to consider the petition filed as a petition for a change of custody and not as a petition for writ of habeas corpus.

The matter was then heard with both parties producing witnesses in support of their respective contentions. The plaintiff testified that she is now remarried to one Schramm; that she has a good home; that the grades of the child (who is referred to in the proceedings as “Todd”) have dropped; that he is left alone or in the custody of the 17-year-old; and that Todd has requested that he come and live with her. Her present husband, Marlin L. Schramm, testified that he is a retired chief master sergeant of the Air Force and that he is now working as service manager of K-Mart; that he is also divorced from his former wife, but that he would like for the child to come and live with him and the present Mrs. Schramm.

The plaintiff’s minister, Rev. Roy Re-mont, testified that the Schramms have a good home.

The child, William Todd Simpson, testified quite candidly that he would prefer to live with his mother; that he has been unhappy since the divorce proceedings; and that he has not been able to visit with his mother as often as he would like. He testified that the idea of changing his custody originated with him and not with his mother.

The defendant, James Dawson Simpson, testified that he works for Texas Gas Company as district manager, that he has been very active in the various parents’ organizations of the school which his children attend; that he is a member of a Baptist Church in Pineville, and that he, Todd and the other brother, J. D., have been very active in summer baseball programs. He testified that he wanted Todd to remain in his custody and that he was doing his best to make a good home.

J. D. Simpson, Jr., the older brother, testified that his father was seldom away from home unless he and Todd were along at baseball games. J. D. suggested that his mother had on one occasion beaten Todd severely because of poor grades. Jamie Simpson, the oldest sister who now attends LSU, testified that in her opinion her father was making a good home for the children and that he was doing the best he could under the circumstances.

The trial court denied the petition, holding that the only evidence in favor of the change of custody was the desire of Todd himself. Nothing in his present situation was found to be injurious to the youth’s welfare, and the court said his best interests would be served by keeping him with his brother and sister in the custody of Mr. Simpson. The trial court expressed reluctance to remove the child from his present school and his association with his acquaintances of several years and held, in effect, that plaintiff had failed to prove the welfare of the child would be best served by a change of custody.

On appeal, the issue is whether the trial court abused its discretion in denying the change of custody.

The record supports the observation of the trial court that the only factor in favor of changing the custody is the expressed desire of the youth. In Louisiana, the wishes of the child are not controlling as to custody or visitation rights but may be considered as a factor along with all other circumstances. Holley v. Holley, 158 So.2d 620 (La.App. 3 Cir. 1963).

It is better to keep siblings together than to split them between parents. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969).

Much of the argument in this court and in the trial court has centered on the question of whether the divorce judgment awarding Simpson the custody of Todd and the other children was a “considered decree” and the consequent legal effects. The attorneys are referring, of course, to the third of the four legal principles set forth in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), which the Supreme Court prescribed as governing child custody decisions. The four principles are as follows:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect). “(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving 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. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillo-ry, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).
“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).” 254 So.2d 605-606.

The ruling in the trial court, maintaining custody with the father, follows the principles of Fulco, and applies especially the first principle, finding that Todd’s best interests would be served by remaining with his siblings in the familiar environment of his father’s home. The second principle was not particularly applicable since Todd is not a child of tender years. As to the third principle, the trial court, as we understand the record, did not deem the divorce judgment of December 16, 1975 a considered decree. Therefore, the trial court did not place “a heavy burden” on the mother seeking the change of custody and she cannot complain on appeal. As to the fourth principle, there is no clear showing of an abuse of discretion by the trial court and the ruling will not be disturbed.

For the reasons assigned, the judgment is affirmed.

Costs are taxed against plaintiff-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Harold LEE, Plaintiff and Appellee, v. Helen M. LEE, Defendant and Appellant.
    No. 5806.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      John G. Williams, Natchitoches, for defendant and appellant.
    Gahagan & Gahagan by Marvin F. Gaha-gan, Natchitoches, for plaintiff and appel-lee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a companion case to Lee v. Lee, La.App., 343 So.2d 428, in which a separate decision is being rendered by us this date. The two eases were consolidated for trial and appeal.

In the present case, Harold Lee, a resident and domiciliary of Louisiana, filed suit against his wife, Helen M. Lee, a resident and domiciliary of Arkansas, for a divorce on the grounds of living separate and apart for two years and for custody of two minor daughters, ages 16 and 17 respectively, who were living with Mr. Lee at the time he filed suit. Mrs. Lee filed an answer and reconventional demand. She admitted living separate and apart for two years, but she alleged the separation was due to the fault of Mr. Lee. She prayed for judgment of divorce in her favor, for custody of the two children, for child support, for alimony after the divorce and for attorney’s fees.

The district court rendered judgment in favor of Mr. Lee granting him a divorce and custody of the two minor children. All demands by Mrs. Lee were rejected. She appealed, seeking only alimony after divorce. She does not seek custody of the children, nor has- she assigned as error the rejection of attorney’s fees.

The issues are: (1) Did the trial court err in refusing to allow evidence as to the issue of fault and refusing to decide that issue? (2) Did the trial court err in refusing to allow Mrs. Lee to testify as to her financial needs because she had failed to file, 24 hours before the trial, a sworn affidavit as to her needs, the affidavit being required by rule of the Tenth Judicial Court?

The record shows that during the trial of these two consolidated cases on the merits, the trial judge stated he would not allow Mrs. Lee to testify as to her financial needs because she had failed to comply with the court rule requiring that prior to trial an affidavit as to alimony needs be filed. The judge announced that the only issues he would consider were the divorce and custody of the two children. Under his ruling, no evidence was allowed during the trial as to fault or alimony after divorce. In reasons dictated into the record at the conclusion of the trial, the district judge refused to rule on the issues of fault and alimony, stating that they were not properly before the court.

LSA-C.G.P. Article 193 authorizes district courts to adopt local rules. The article provides in pertinent part:

“A court may adopt rules for the conduct of judicial business before it, including those governing matters of practice and procedure which are not contrary to the rules provided by law.”

No copy of the court rule in question is filed in the record. We have previously held the courts of appeal cannot take judicial notice of district court rules. Bordelon v. X-L Finance Co., La.App., 209 So.2d 752 (3rd Cir. 1968).

Nevertheless, assuming solely for purposes of this decision that the rule in question is correctly set forth in West’s Louisiana Court Rules — State and Federal — 1977, we find that Rule V of the Tenth Judicial District, which pertains to “Trial Of Rules, Exceptions, and Summary Matters” provides in Section 9, at pages 291-292, as follows:

“In all rules for alimony pendente lite, child support and alimony following separation or divorce; and in all rules and cases involving a motion for increase or decrease in alimony or child support, the procedure for hearing the rule will be as follows:
“Plaintiff and/or defendant, mover and/or movent, as the case may be, shall specify his or her fiscal needs and requirements, and/or wages and income, by sworn affidavit to the Court by filing with the Clerk of Court twenty-four (24) hours before the hearing set for the rule. “The affidavit shall set forth the expenses and/or income of the declarant with sufficient particularity to apprise the Court and opposing counsel of the declarant’s fiscal situation. The procedure at the hearing of the rule will be that the declarant will file the affidavit as evidence and be tendered for cross-examination. This will be effective as to both plaintiff-mover and defendant-mov-ent.”

It is apparent from the title of Rule V and from the provisions of Section 9 quoted above that the rule applies only to the trial of rules, exceptions and summary matters. The present case was not before the court on the trial of a rule or summary matter. The case was being tried on the merits of plaintiff’s principal demand and Mrs. Lee’s reconventional demand. Again assuming that the rules of the Tenth Judicial District Court are correctly set forth in West’s Court Rules — State and Federal— 1977, there is no court rule requiring the affidavit in question when the case is being tried on the merits.

Even if there is a rule of the Tenth Judicial District Court requiring such an affidavit, there could be a serious question as to whether the rule is invalid as being contrary to state statute or to constitutional rights of due process. See Rayborn v. Rayborn, La.App., 246 So.2d 400 (1st Cir. 1971), writ refused, 258 La. 775, 247 So.2d 868.

At the conclusion of the trial, the district judge stated that he was refusing to rule on the question of fault because Mr. Lee prayed for divorce on the grounds of two years separation and fault was not at issue. The judge stated that Mrs. Lee had not prayed for a divorce in her favor.

The answer filed by Mrs. Lee alleges in paragraph 4 “that the cause of the separation was due to plaintiff, Harold Lee, when he abandoned your defendant for no lawful cause.” In paragraph 9 of her reconven-tional demand, Mrs. Lee alleges that “the cause of the separation being the fault of the defendant in reconventional demand, Harold Lee, and your plaintiff in reconvention desires and is entitled to alimony for her support.” Mrs. Lee prays for judgment of divorce in her favor and for alimony after divorce.

Our jurisprudence has established the rule that where one spouse sues for divorce on the grounds of voluntary separation and proves the requisite separation, he or she is entitled to judgment of divorce, and the other spouse has no cause of action in a reconventional demand for judgment of divorce in his or her favor. Jones v. Floyd, La.App., 154 So.2d 604 (3rd Cir. 1963) and the cases cited therein. Therefore, Mrs. Lee has no cause of action for judgment of divorce in her favor in the present case. However, this does not defeat her right under her reconventional demand to have the question of fault determined and to seek alimony after divorce.

We find the allegations of Mrs. Lee’s answer and reconventional demand clearly put at issue the question of fault and the issue of alimony after divorce. The issue of fault has not been previously adjudicated in a suit for separation in a Louisiana court or otherwise, and thus we are not presented with a question of whether fault has been previously adjudicated. Nethken v. Nethken, La., 307 So.2d 563 (1975).

We conclude that the judgment appealed must be reversed insofar as it rejects Mrs. Lee’s reconventional demand for alimony after divorce. The case must be remanded for trial on the issues of fault and alimony. We also reserve to Mrs. Lee her right to demand attorney’s fees.

For the reasons assigned, the judgment appealed'is reversed and set aside insofar as it rejects the reconventional demand by Mrs. Lee for alimony after divorce and for attorney’s fees. This case is remanded to the district court for the limited purposes of trial on the issues of fault, alimony after divorce and attorney’s fees for Mrs. Lee. Otherwise than as herein reversed and remanded, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff, Mr. Lee.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.