author: LEMMON, Judge. BEER, Judge

text:
    Mrs. Lucien R. AUSTIN, Jr., et al. v. OTIS ELEVATOR COMPANY and Employers-Commercial Union Insurance Company.
    No. 6812.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Rehearing Denied Sept. 14, 1976.

      Burk & Burk, Maurice Burk, and Herman & Herman, Russ M. Herman, New Orleans, for plaintiffs-appellees.
    Drury, Lozes & Curry, James H. Drury and Madison C. Moseley, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

Otis Elevator Company and its insurer have appealed from a judgment which awarded damages to the widow and children of Lucien Austin, who was injured in an elevator accident. The principal issues on appeal are liability for the accident and the causal relationship between the accident and Austin’s death six weeks later.

Otis designed, manufactured and installed the six elevators in the Federal Building in New Orleans, which opened in 1961. In January, 1969 Montgomery Elevator Company took over the maintenance contract for the elevators. Otis nevertheless continued to perform occasional repairs when, because of the size of the job, the General Services Administration (G.S.A., an agency of the Federal Government) was required to award contracts through public bidding.

On September 10,1970 Austin and Wilkin Eden, while on the job with the Veterans Administration, entered elevator # 6 on the fourth floor. Austin pushed the button for the second floor, but the elevator passed the second floor and continued at a rapid rate of speed, finally hitting a buffer pit in the basement and causing injuries to the passengers.

Austin died six weeks later. Plaintiffs then filed this action against Otis and Montgomery, but compromised their claim against the maintenance contractor prior to trial.

LIABILITY

Charles Greene, a mechanical engineering technician for G.S.A., checked the elevator the morning after the accident with a representative from Montgomery. In going over the controller, he noticed that one of the auxiliary contacts in the OFR (one floor run) relay was loose and was making contact even though the switch was open. After examining the wiring diagram, however, Greene determined that the “contact being made up” had no effect on the elevator operation.

The close inspection of the OFR relay did reveal copper blisters on two of the three flexible braided leads, an indication that arcing had occurred. There was also evidence of arcing on the stud of the auxiliary contact.

Greene then simulated the suspected problem by placing a copper jumper between the two leads, and the elevator did not slow down for designated floor stops until the jumper was removed. Greene thus concluded that the arcing of the two leads to the auxiliary contact had caused a short circuiting of the general shunt field resistance, which prevented deceleration. He recommended that all braided leads on all controllers be covered with flexible insulation to prevent contact between leads.

Greene opined that the accident would not have occurred if the leads had been insulated at the time. He could not, however, determine the cause of the arcing, but observed that arcing would not occur under normal conditions between two leads spaced one inch apart or between one lead and the stud, spaced three-fourths of an inch apart; that the looseness of the auxiliary contact would not cause arcing; and that high humidity could have influenced the arcing. No previous arcing had been reported during his seven years of service with G.S.A.

Greene did find some carbon deposits on the panel (the maintenance contractor was responsible for cleaning this weekly) and admitted that a substantial carbon accumulation would lower the resistance between the components and support arcing. However he did not believe the accident was related to Montgomery’s failure to perform its maintenance contract properly, and he classified the failure to insulate the OFR relay as a design deficiency.

Charles Michel, Montgomery’s employee who accompanied Greene during the inspections and who regularly performed the maintenance work on the elevators, had died prior to trial, but Montgomery’s service manager’s report based on Michel’s information was admitted into evidence. The report stated that after the accident Michel had placed insulation on the leads of the OFR relay in all six elevators and had also found evidence of arcing on two of the other units.

The manager further opined that the looseness of the auxiliary contact would not cause the elevator to run at full speed into the pit, since that contact served “merely to short out a small amount of resistance to make a smoother approach on a one-floor run” and would have affected only the trip between the fourth and third floors. The manager also testified that a similar accident occurred, subsequent to the one in litigation, with the same elevator when an armature broke on a different relay and fell across two leads.

Leiland Walkup, Otis’ maintenance supervisor, listed the following possibilities as the cause of the arcing: (1) a metal conductor across the two leads, as perhaps a tool used by somebody working on the equipment, or a piece of equipment falling across the leads, or (2) an accumulation of dirt or carbon between two or more studs, which would enable an arc to form, or (3) contact between the two leads, as a result of being pushed together. Walkup also stated he was not cognizant before the accident that a short circuit between these leads would cause the elevator to continue into the pit without stopping.

Walkup further testified that the leads on the OFR relay of all elevators manufactured by Otis are uninsulated, but that Otis’ service department (at least since he assumed maintenance duties in 1968) has installed insulation on the leads of the OFR relay of every elevator on which Otis had a service contract (at least in this nine-state district). To his knowledge the owners of Otis elevators, which were not under maintenance contract with Otis, were not advised to take this precaution.

After measuring the distances between the two leads and between the leads and the stud of the auxiliary contact, and after determining the temperature and atmospheric pressure on the day of the accident, Walkup determined from reference data that a voltage of over 20,000 volts would have been required to produce an arc. He opined that spontaneous arcing was absolutely impossible over that distance with the 120 volts produced by the generator.

Otis' Liability

The evidence clearly established that the arcing caused the accident. What caused the arcing is a question which is not so clearly answered. It is clear, however, that plaintiff did not prove that any negligence on Otis’ part caused the arcing (although there was proof that insulation would have prevented the accident). Otis’ liability, if any, must therefore be grounded on its failure to insulate the leads.

Otis’ product, which had been designed, manufactured and installed ten years before the accident, did not have insulation on the braided leads of the OFR relay. The evidence demonstrated that if a short circuit occurred between the leads of this relay, the elevator would continue running at full speed into the pit. Nevertheless, Otis protected against this eventuality merely by separating the leads with a non-conductive separator, although all witnesses recognized that this measure would not protect against short circuiting caused by the leads being accidentally pushed together, or by a tool touching two leads, or by an armature falling across two of the leads, or by carbon accumulating because of poor maintenance.

Otis knew or should have known that the elevator would not stop if a short circuit occurred between the leads on the OFR relay. Otis knew or should have known that a mechanic’s touching two leads with tools or pushing two leads together accidentally could produce a short circuit which would cause an operating elevator to continue running. Otis knew or should have known that maintenance by human beings is not always perfectly performed and that uninsulated leads offered a fertile supply of accident opportunities to careless maintenance people. As designer and manufacturer of the elevator Otis should have insulated the leads to prevent this foreseeable negligence from producing the foreseeable result or should have warned the owners of its elevators of the necessity of doing so. (One of Otis’ maintenance mechanics stated that the company had been insulating the mechanism since he began employment in 1954, before the elevator at issue was installed by Otis.)

We therefore hold that Otis’ failure to insulate the leads on the OFR relay rendered the elevator unreasonably dangerous in normal usage, and this absence of insulation constituted a defect or unsafe condition for which Otis is liable as manufacturer to those who are injured as a result thereof.

Montgomery’s Liability

In order to recover against Montgomery, it was necessary for plaintiffs to prove (had they not compromised their claim) that Montgomery failed to exercise reasonable care in performing services under its maintenance contract and that Austin was injured as a result of this failure. Otis, in order to prevail in its third party demand for contribution, had to fulfill the same burden of proof. This proof, necessarily depending on circumstantial evidence, is sufficient to constitute a preponderance when the evidence taken as a whole shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

Evidence established that the leads and contacts on the control panel were properly spaced and that voltage in excess of 20,000 volts was required under normal conditions to produce an arc in the area where this arc occurred. Since the generator furnished only 120 volts, arcing would not occur in the absence of abnormal conditions. The only conditions suggested as possibilities by the experts all involved human intervention, and the only persons who had regular access to the control panel were Montgomery’s employees.

The circumstantial evidence points heavily to an inference of negligence by Montgomery’s employees. While the precise cause of the short circuiting has not been shown, the only plausible explanations advanced indicate that it was the negligence of this defendant rather than the negligence of others which caused the mishap. It is immaterial that the circumstances suggest several causes, since all inferences raised by the circumstances point to the negligence of the particular defendant.

We hold that Montgomery’s negligence was a concurrent cause of the accident, which would entitle Otis to judgment on its third party demand for contribution. Inasmuch as plaintiffs’ compromise with Montgomery deprived Otis of this right, the award of damages must be reduced by one-half. Harvey v. Travelers Ins. Co., 163 So.2d 915 (La.App. 3rd Cir. 1964).

QUANTUM

In the September 10, 1970 accident Austin braced himself on the handrail, but was thrown to his knees when the elevator struck the pit. He immediately experienced pain in the lumbosacral area.

A physician performed a complete physical examination and found tenderness in the lumbosacral area (but no other objective symptoms of back sprain), elevated diastolic blood pressure at 150/100, and mild tachycardia (accelerated heart beat). The doctor diagnosed a mild lumbosacral sprain and anxiety reaction, prescribed muscle relaxants and heat, and instructed Austin to resume work on Monday (after the Thursday accident) and to return to the clinic if problems developed.

X-rays taken at that visit and reported later indicated no fracture or dislocation, but did disclose the calcified edge of a massive abdominal aortic aneurysm, eight to nine centimeters in length. Unanimous medical opinion established that the aneurysm predated the accident (although never causing any previous symptoms) and was caused by Austin’s long standing arterio-sclerotic cardiovascular disease.

On September 21 Austin returned to the clinic, complaining that he could not straighten up after getting out of an automobile the previous day. The doctor found a positive straight leg raising test but no other objective signs of back injury. Unaware of the aneurysm, he diagnosed lum-bosacral sprain and referred Austin to the orthopedic clinic.

The September 30 orthopedic examination did not reveal any objective signs of back injury. Since lumbosacral pain may be caused by a symptomatic abdominal aortic aneurysm, the examining specialist related Austin’s complaints to the aneurysm and referred him to the surgical clinic.

On October 1 the examining surgeon found an enlarged aorta, but no tenderness of the abdomen. He advised Austin as to the seriousness of the massive aneurysm and strongly recommended surgical intervention. This doctor noted his opinion that the accident did not aggravate the pre-ex-isting aneurysm because the abdomen was not tender and the back pain appeared to be musculoskeletal in origin and related to motion.

The following day Austin- was admitted to the hospital on an emergency basis for surgery, but the admitting doctor noted that his diabetes was completely out of control and his blood pressure was still 158/98. On October 7 the surgery scheduled for the next day was cancelled, because the blood pressure was 200/100 and the diabetes was not controlled. The consulting physician increased the dosage of raudixin to control the blood pressure and began Austin on insulin, which he had never previously required. By October 13 Austin’s blood pressure was within the range of 140-160/80-90. On October 16 the doctors found Austin fit to undergo an aortágram, but the test was unsuccessful. On October 20 an aortagram was performed without difficulty, and the doctors considered Austin “in optimum condition for his surgery”, which was performed on October 23. The operating physician reported that the aneursym “balooned out massively to about softball size” and that he removed massive amounts of necrotic clots. The following day Austin developed back pain and loss of leg motion and sensation (diagnosed as an infarct of the spinal cord), then developed cardiac arrhythymia, and eventually died in cardiac arrest.

Causation

Four physicians reviewed the medical records and reports and testified as to the relationship between the elevator accident md Austin’s death. There was fairly gen-sral agreement that the aneurysm sustained some trauma in the accident, because of the mechanism of the occurrence. However, the doctors disagreed as to the probable extent and consequences of the trauma. Concededly, no rupture or leakage occurred.

Dr. Charles Menendez, a vascular surgeon, opined that some trauma to the aneurysm was unquestionably produced by the accident and that trauma to an aneurysm can produce pain without causing leakage. He further observed that pain can be caused by expansion of an aneurysm, although some people who have large aneurysms do not have pain.

Dr. Dennis Rosenberg, a cardiovascular surgeon, opined that an aneurysm causes pain only if it expands because of hemorrhage or erodes into the surrounding structures and that the unruptured aneurysm was not the cause of Austin’s back pain. While the doctor admitted trauma can cause diabetes to go out of control, he believed that factor did not contribute to Austin’s death, since the diabetes was under control at time of surgery. He further admitted that raudixin (given to control Austin’s blood . pressure) is a dangerous drug which can cause arrhythmia and drop in blood pressure in surgical patients.

Dr. Ted Bloch, an internist, opined that the absence of acute symptomatology of the abdomen, with only the presence of back paid reasonably attributable to sprain, indicated the aneurysm was not aggravated by the accident. He admitted, however, that there is a greater surgical risk when the aneurysm is symptomatic.

Dr. Alvin Cotlar, a vascular surgeon, opined that the back pain was caused by the traumatized aneurysm rather than a back injury, because there were no objective orthopedic findings and the pain continued for several weeks after the accident. He particularly noted that the normal course of an aneurysm is to have a sudden beginning of expansion upon blunt trauma. He further observed that the previously controlled diabetes became suddenly uncontrollable for no other apparent reason (changes in an aneurysm can produce that effect); that trauma to an aneurysm can cause emboli to move into the renal arteries and cause pain (he opined that, if the proper procedure was used in applying the tourniquet around the aorta distal to the renal arteries prior to surgery, trauma did cause the emboli that resulted in thrombosis); that when the aneurysm became symptomatic, the need for surgery became urgent; and that the problems with diabetes and hypertension necessitated the extensive use of drugs to bring these conditions under control, greatly increasing the mortality risk of surgery, since patients are normally taken off these particular medications several days before surgery. Dr. Cotlar concluded that Austin would have had a substantially greater chance of survival had he not sustained the trauma in the elevator accident.

The trial judge, observing that the more persuasive medical testimony concerning trauma to the aneurysm favored plaintiffs, found that the accident caused the aneurysm to enlarge and necessitated urgent surgery. He further found that the accident caused the previously controlled diabetes and hypertension to go out of control, which along with the drugs required to bring these conditions under control, substantially increased the risk of surgery and contributed to Austin’s death.

We find the record adequately supports these findings, although there is a wealth of impressive medical testimony that would support a contrary conclusion.

The mechanism of the accident almost certainly caused the aneurysm of that size in that location to sustain some trauma. Competent medical opinion established that trauma can cause an abdominal aortic aneurysm to expand without rupturing, to release emboli into the renal arteries, and to produce back pain without abdominal pain. We conclude the record thus established that the previously asymptomatic aneurysm became symptomatic at the time of the accident, and all experts agree that surgery for a symptomatic aneurysm involves a higher risk.

Furthermore, changes in an aneurysm not only make surgery more urgent, but also can cause diabetes to go out of control. Enlargement of the kidney can also cause an increase in blood pressure. The dilemma thus created in the face of an imminent rupture forced the doctors to administer otherwise ill-advised drugs in order to bring the previously controlled diabetes and hypertension back under control, and instead of discontinuing the dangerous drugs well in advance of surgery, it was necessary for the doctors to increase dosage.

Admittedly, surgical rescission of the aneurysm would have been necessary regardless of the accident, and Austin’s diabetes (borderline), hypertension (controlled) and long-standing arteriosclerosis made him a poorer surgical risk than a normally healthy person. Nevertheless, the accident caused the risk to become substantially higher, and the urgency of' the situation created by the trauma prevented use of precautionary measures which normally would have been taken to reduce these risks. We conclude in effect that, except for the accident, Austin would have had a substantial chance of survival, but the accident rendered his chances relatively insubstantial. Accordingly, we hold his failure to survive the surgical procedure was causally related to the effects of the accident.

Amount of Damages

Austin was 54 years old at the time of his death and had a life expectancy of over 17 years. Using Austin’s 1970 earnings of $12,700.00, an expert economist calculated that Austin would have earned $52,-000.00 between the date of death and of trial, at which time he still would have had a work life expectancy of 8.2 years. The expert additionally used several discounting methods, assuming various factors, and calculated that a conservatively invested sum of $82,000.00 to $100,000.00 would be required at time of trial to yield $12,700.00 per year over a period of 8.2 years, at which time the fund would be exhausted. This calculation did not consider income taxes, pension benefits, or a suggested 30% consumption factor, representing the amount the decedent would have spent on himself.

Austin was survived by his widow and three children. Two children were then married (one living in South America), and the third was in college. There was considerable evidence that Austin had been an exemplary husband and father and that the family maintained a very close relationship.

The trial judge awarded $100,000.00 to the widow, $12,500.00 to each of the local children, and $7,500.00 to the other child, in addition to medical expenses. Each side seeks a modification of the award.

All of the awards are adequately supported by the evidence. The most substantial attack is on the insufficiency of the award to Mrs. Austin, which counsel contends barely compensates her for loss of support, without regard to loss of love and affection or to her share of a separate award for Austin’s conscious suffering prior to his death.

While a higher award could have been supported by the evidence on these elements of damages, we cannot say that the trial judge did not consider each element in setting the lump sum award or that the amount awarded constitutes an abuse of the much discretion accorded by C.C. art. 1934(3).

The judgment, however, must be reduced by one-half on account of the compromise with Montgomery, discussed above.

Accordingly, the judgment of the trial court is amended to reduce each award by one-half. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

BEER, Judge

(concurring)

I concur in the result.

However, I find it difficult to conclude that Otis should have insulated the leads when the elevator in question was manufactured and installed some ten years prior to the accident. In my view, Otis’ joint accountability stems from their failure to take any steps to notify their former customer of their subsequent-to-manufacture realization of a need for (and the relative nominal cost of) providing insulators for the leads.

Otis, on its own volition, provided such installation of insulation in those instances where the company - maintained a service contract with its former sales customer. But, in those instances where the sales customer had not maintained a service contract with Otis, the benefit of being informed of Otis’ realization of the need for lead insulation — realization gleaned from a combination of experience, research and the acquiring of expanded technical knowledge apparently gained subsequent to the installation of the elevator involved in this litigation— was withheld.

I am of the view that an elevator falls into that category of instrumentality which, by the clear and present nature of its use, can require something more of the manufacturer than the sale and subsequent proper installation of the product.

If, through experience or expansion of knowledge or a combination thereof, the manufacturer of such an instrumentality should acquire technical or engineering or other related data which signals a need for, and, thereafter, provokes a change in, its manufacturing procedure and, likewise, provokes it to unilaterally augment such a change in existing items of manufacture which it continues to service, and yet that manufacturer does not at least attempt to advise such sales customers no longer having a contractual relationship with it through any sort of servicing agreement that such change is strongly recommended, then such oversight, when proximately related to an injury, constitutes conduct which I would describe as failure to perform a duty owed under the circumstances.

      . In his reports Green indicated that the combination of the described arcing and the looseness of the auxiliary contact caused the short circuiting. In his testimony, however, he insisted that the loose contact was insignificant except to draw his attention to the evidence of arcing.

      . In this respect we note that Montgomery’s maintenance man was in the building when the accident occurred.

      . This was determined to be the cause of the subsequent accident in the same elevator.

      . Walkup admitted that he had once caused a short circuit by accidentally touching two leads together.

      . The control panels were in enclosed cabinets, but the doors were seldom on the cabinets. However, only a few other people had access to the area and went there only on infrequent occasions.

      . Prior to the accident Austin had borderline diabetes and suffered from hypertension (also caused by arteriosclerosis), but both conditions had been controlled by medication. He had also suffered an angina attack in 1957. However, Austin led an extremely active life with almost daily participation in church, fraternal and family activities.

      . At trial this physician admitted in retrospect that the aneurysm was as likely a cause of lumbosacral pain as was a back injury. He also stated that the positive straight leg raising test could be attributed to the aneurysm and that elevated diastolic pressure is an indication of dilation of the aneurysm.

      - At trial this doctor testified that he would have recommended surgery for any person dis-Paying this large aneurysm, whether or not there had been a traumatic incident. He expressed his opinion that an aneurysm does not cause pain until it leaks, but admitted that diastolic pressure increases as an aneurysm expands.

      . The autopsy protocol showed Austin had old and recent infarcts of the kidney, and hospital records showed he had high blood pressure the night before surgery.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    LEONARD B. HEBERT, JR. & CO., INC. v. Honorable Edmond E. KINLER, Jr., Clerk of Court, and Capitol Steel, Inc.
    No. 7458.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Rehearing Denied Sept. 14, 1976.

      Wray & Robinson, Bert K. Robinson, Baton Rouge, for plaintiff-appellant.
    Cordell H. Haymon, Baton Rouge, for defendant-appellee.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff-in-rule, Leonard B. Hebert, Jr. & Co., Inc. (Hebert), has appealed a judgment maintaining the validity of a lien affidavit filed by defendant-in-rule, Capitol Steel, Inc. (Capitol), under the provisions of the Louisiana Private Works Contract statutes (L.R.S. 9:4801 et seq.).

These are the facts: Ralph M. Parson Company (Parson), acting as general contractor on an Agrico Chemical Company project constructed in St. James Parish, Louisiana, subcontracted the structural steel work to Hebert. Plaintiff was to furnish, fabricate and erect the steel at the building site. Hebert, in turn, contracted with Steel-Tek, Inc., to furnish, fabricate and deliver “structural steel, angle handrails, steel ladders, stair stringers, and erection bolts to the Agrico Chemical plant” as per specifications furnished. Steel-Tek did no work at the job site. Material was obtained from several suppliers, including Capitol, and was fabricated by Steel-Tek especially for this job.

Steel-Tek is now insolvent and Capitol has not been paid for all the steel it delivered that was incorporated in the Agrico job. The outstanding balance is $1,313.30.

Capitol filed a lien affidavit against the Agrico project in the St. James Parish mortgage records and plaintiff, seeking to avoid a damage claim by the owner, bonded out the inscription against Agrico. It then filed this rule to have the lien cancelled and has appealed from the trial court’s dismissal thereof.

At issue is whether the protection afforded to certain materialmen under L.R.S. 9:4801 is available to Capitol. The statute provides in part:

“A. Every contractor, subcontractor' * * * or furnisher of material, machinery or fixtures, exclusive of anyone who rents or leases movable property, who performs work or furnishes material for the erection, construction, repair or improvement of immovable property, or who furnishes material or supplies for use in machines used in or in connection with the erection, construction, repair or improvement of any building, structure or other immovable property, with the consent or at the request of the owner thereof, or his authorized agent or representative or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege, upon the land and improvements on which the work or labor has been done, or the materials, machinery or fixtures furnished.” (Emphasis added.)

Both litigants agree this lien privilege is limited to materialmen who supply subcontractors and cannot be extended to suppliers or materialmen who in turn furnish material to other materialmen. Appellant contends Steel-Tek was a materialman to the subcontractor Hebert, while Capitol claims Steel-Tek was a subcontractor because it was required to fabricate steel products that were designed specifically for use in the Agrico project.

Our jurisprudence has consistently stated a subcontractor is a worker who actually participates in the building or erection of the edifice. A materialman is one who supplies material either manufactured or fabricated for use in that building. If the fabricator of material does not engage in any process that incorporates the item furnished into the immovable under construction, he is a materialman. It matters not whether his product is procured from another manufacturer and delivered unchanged to the building site or if it is shaped by him from other materials before it is delivered to the job site. This principle was clearly stated in Jesse F. Heard & Sons v. Southwest Steel Products, 124 So.2d 211, 220 (La.App. 2d Cir. 1960) (quoting from written reasons assigned by the trial judge) as follows:

“ ‘It seems to this Court clear that as is indicated in Phillips on Mechanic’s Lien, as hereinabove referred to, that the question of determining whether the person is a subcontractor or simply a materialman depends upon the nature of his contract obligation. As stated in that work, there is a palpable distinction between a contract to erect or in being a sub-contractor and a contract to furnish toward the erection or being simply a furnisher of materials. And one who contracts to put up the building or one of its leading divisions, its brickwork, its woodwork or its steelwork is not a mere workman or ma-terialman, but is in fact, under the decision of law, a sub-contractor, whereas one who is simply employed to furnish materials, whether such materials be manufactured or not and whether he be required to transform or fabricate such materials into a condition where it meets the requirements of the contract, and the specifications, is nonetheless a materialman and is not employed in any way to erect or pub up any part of the building or of its primary divisions and is, therefore, simply a materialman. Under the settled law of this State, a materialman who furnishes material to a materialman, has no right to a lien. * * *

The Heard rationale was recently reaffirmed by the Supreme Court in Thurman v. Star Electric Supply, Inc. See also United States Plywood Corporation v. Caldwell for a similar result.

Appellee would distinguish these cases by pointing out they were decided under the public contract law (L.R.S. 38:2241 et seq.) as opposed to the private works statute. Admittedly the laws are not identical; however, the rationale for limiting the protection of the lien device to materialmen who furnish subcontractors and not extending its coverage ad infinitum applies to private as well as public contracts. Liens are stricti juris, in derogation of common rights and the laws creating them should be strictly construed. We see no reason for redefining the word “subcontractor” as appellant would have us do because the policy considerations are the same, whether the contract be public or private. This same result was reached in Refractory Const., Inc. v. Cities Service Oil Co.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that the Lien Affidavit recorded in Mortgage Book 82, Entry No. 39253 in the office of the Clerk of Court for the Parish of St. James, Louisiana, is hereby ordered erased and cancelled from the mortgage records and the bond filed in Mortgage Book 83, Entry No. 39400, is hereby ordered cancelled. Appellee is to pay all costs.

REVERSED AND RENDERED.

      . 307 So.2d 283 (La.1975).

      . 183 So.2d 130 (La.App. 1st Cir. 1966), writ refused.

      .278 So.2d 510 (La.App. 3d Cir. 1973).


author: MILLER, Judge. WATSON, Judge

text:
    Perry ELLIOTT, Plaintiff-Appellant, v. LOUISIANA INTRASTATE GAS CORPORATION, Defendant-Appellee.
    No. 5563.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    John L. Vidrine, Ville Platte, for defendant-appellee.
    Before MILLER, DOMENGEAUX and WATSON, JJ.
   MILLER, Judge.

Plaintiff Perry Elliott appeals the judgment denying a mandatory injunction which he sought to order defendant Louisiana Intrastate Gas Corporation to either remove or rebury its pipeline to the depth specified in the servitude agreement. Defendant answers the appeal, seeking a reduction of the $2,500 in damages awarded to Elliott. We reverse and issue a mandatory injunction.

On September 9, 1974 landowner Elliott granted a servitude to LIG on LIG’s servitude form; this agreement, at Elliott’s insistence, specifically required an amendment in typewritten language requiring LIG to bury its 16" pipeline “four feet” to be measured from ground level to the top of the pipe. This amendment was accepted by LIG. A week or two after the pipeline was laid across his property, Elliott discovered that almost all the line was buried at a shallower depth; a depth averaging 40 inches below the surface. Elliott sought counsel; his attorney corresponded with LIG to request they rebury the pipeline or remove it. On receiving no satisfaction, Elliott promptly filed suit, explicitly praying for a mandatory injunction to order defendant LIG to remove its pipeline or rebury it to the depth called for in its servitude agreement.

The trial court rejected Elliott’s prayer seeking nullity of the servitude agreement and, alternatively, a mandatory injunction. On finding Elliott failed to show that the 8 inch difference between the contracted and actual depths would cause Elliott irreparable injury, the court awarded him $2,500 in damages for “some mental anguish, frustration, etc.” Elliott appealed and now seeks the mandatory injunction to order LIG to either remove the pipeline or dig it up and rebury it at the proper depth.

Elliott testified that his reason for incorporating the “four foot depth provision” in the servitude agreement was in anticipation of possible future uses of part of his 97 acres; he anticipated one problem might arise when he could start farming rice on the land. It was anticipated that the government might change its policy which prohibited rice farming except on tracts previously farmed to rice, and he was correct. At Tr. 25, he anticipated a problem might arise should he desire to dig a canal.

LIG countered with testimony that irrigation canals could be constructed without digging to a depth of four feet; in addition, sub-soil plowing would disturb the earth surface to a depth of only 24 inches. At trial, Elliott’s land was in pasture and he admitted that the pipeline had not caused a problem other than his worry and frustration. LIG also established that there was a 30" minimum safety depth imposed by federal and state governments for low density housing areas such as the area where Elliott’s land is located.

The trial court committed error in requiring Elliott to show irreparable injury as a prerequisite to granting a mandatory injunction ordering LIG to either remove or rebury its pipeline to the contracted 48" depth.

In Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972), the Supreme Court affirmed the trial court’s award of a mandatory injunction which required defendants to remove obstacles erected to the drainage of waters from Poole’s dominant estate through Guste’s servient estate. The court there ordered defendant to remove levees and stated that the traditional common law doctrine of injunctive relief as an equitable remedy, available only where the damage remedy was inadequate, was not necessarily applicable to Louisiana, “with its different civilian procedural background, and where the injunction has historically been recognized as a remedy available to protect possession of property, cf. La.C.Civ.P. Art. 3663(2).” 261 La. 1110 at 1126-7, 262 So.2d 339 at 345.

That reasoning applies to this action for the removal or reburying of a pipeline. The shallow depth of this pipeline encroaches on Elliott’s ownership of his property and the mandatory injunction is available under LSA-C.C.P. art. 3663(2) to protect Elliott’s possession of his property. See Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3 Cir. 1972); Yiannopoulos, Work of the Louisiana Appellate Courts for the 1972-73 Term, Property, 34 La.L.Rev. 207 at 217 (1974).

LIG negotiated for this single pipeline servitude and was able to obtain it only by agreeing to bury its pipeline at least 48" below the surface measured from the top of the pipeline. Elliott discovered LIG’s violation immediately after the line was installed and made prompt demand that LIG comply with the condition under which LIG obtained the servitude. The servitude is for an indefinite period and Elliott anticipated that future uses, known and unknown, would be better accommodated if the line was buried at least 48" below the surface. LIG agreed to this request, then installed its line in total disregard of the condition.

Although Elliott’s present use of his land is not inconvenienced by a 40" deep pipeline, Elliott is entitled to enforce a reasonable condition for the grant of the servitude, one which within fifteen or fifty years might be immensely valuable to him or his successors in title. If he does not enforce his contract now, LIG will prescribe to the right to maintain its pipeline at the 40" depth. Cyr v. Louisiana Intrastate Gas Corporation, 273 So.2d 694 (La.App. 1 Cir. 1973). Should Elliott or his successors in title later have a use for the land down to the 48" level, he could expect expensive, and possibly impossible, conditions for getting the line placed to the 48" depth.

The Cyr case, supra, reinforces our conclusion that the remedy of mandatory injunction is properly available to Elliott. Although Elliott has not shown irreparable harm, nor indeed that the improper burial of the pipeline will interfere with his immediate plans for the property, he has only ten years from the date of the agreement to seek rescission or specific performance; should this pipeline cause him difficulty after the ten-year period, he will have no remedy against LIG or its successors, no matter how severe his injury. This is made clear by Cyr v. Louisiana Intrastate Gas Corporation, 273 So.2d 694 (La.App. 1 Cir. 1973), a case factually similar to the present one. There, landowner sought to rescind a servitude agreement because of a breach of the servitude provision to bury the lines so that they would not interfere with cultivation of the land. Since the agreement was entered into in 1942, and suit was filed in 1970, the court refused to grant rescission or specific performance on the basis of the LSA-C.C. art. 3544 ten-year prescription. This decision was made despite the fact that landowners’ lessee discovered the defect only when he decided to prepare the land for sugarcane farming in 1970. While there was an obvious breach of contract, the remedy was lost by prescription.

In Poole v. Guste, supra, the court recognized that the relief of the mandatory injunction could be denied where large sums of money would have to be spent disproportionately; that is, in exceptional situations, compensatory damages would be granted instead, based on a balancing of equities.

LIG has argued in brief that hardship would be imposed on the general public if a mandatory injunction issued because countless numbers of customers depend on this pipeline. However, this violation was called to their attention before the line was in service. There is no evidence in this record setting forth the cost involved in digging up the pipeline or reburying it to the required depth, nor is there evidence indicating inconvenience and/or hardship which may be imposed on the general public. We conclude that this is not a case where the “balancing of equities” requires only an award of compensatory damages.

LIG also contends that Elliott’s land is burdened by two other servitudes paralleling its own and suggests Elliott’s future uses will be inhibited by these other servi-tudes. One servitude was granted for an overhead electric line and one for a pipeline. Nothing in the record suggests that the first pipeline is buried to a depth of less than 48". And if it is buried to a lesser depth, nothing in the record suggests the servitude agreement was conditioned on burial of that line to a depth of 48".

If LIG intended to rely on these other lines as a basis for supporting its refusal to bury its line to a 48" depth, the time to confront that issue was at the negotiating table before they agreed to that condition. We will not permit LIG to contract for this reasonable condition, which was important to the landowner, and then allow them to take advantage of this landowner on the basis that landowner could not enforce his contract.

LIG is here required to do what it willingly undertook to do as a condition for obtaining the servitude.

Accordingly the judgment awarding $2500 in damages is set aside; Louisiana Intrastate Gas Corporation is ordered to remove the pipeline from landowner Elliott’s property or, in the alternative, to rebury the pipeline to the depth required by its servitude agreement. LIG is granted one year from the date this judgment becomes final to comply with this injunction. Costs of court both at trial and on appeal are taxed to defendant LIG.

REVERSED and RENDERED.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge

(concurring):

I concur in the result which requires the pipeline company to fully comply with the agreement between the parties, although I have reservations about whether the discrepancy (eight inches or less) is a serious detriment to the landowner, as a practical matter.


author: GUIDRY, Judge.

text:
    Brenda Gail COOPER, Plaintiff-Appellant, v. James William COOPER, Defendant-Appellee.
    No. 5564.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.

      Sturgeon & Gore by John Sturgeon, Fer-riday, for plaintiff-appellant.
    Glenn T. Cambre, of Long & Peters, Jena, for defendant-appellee.
    Parker & Parker by Elodie K. Parker, Jena, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Plaintiff, Brenda Gail Cooper appeals from a judgment of the trial court awarding her alimony in the amount of $70.00 monthly and reducing a previously fixed child support award of $210.00 per month to $140.00 per month. The defendant has not appealed nor answered the plaintiff’s appeal.

Plaintiff initially filed suit for separation on January 28,1974 alleging as grounds for the separation cruel treatment by her spouse James William Cooper, defendant herein. A judgment of separation was taken by default on the 16th of April 1974.

Plaintiff, on May 30,1975, filed a petition for divorce setting forth that she and the defendant had not reconciled and that more than one year had elapsed since the judgment of separation. The court rendered judgment dissolving the marriage and granting plaintiff the permanent care and custody of the two minor children, Todd and Brent Cooper. The court further decreed that defendant should pay to plaintiff the sum of $210.00 monthly “for the support and maintenance of the minor children”. Subsequently, on August 25, 1975 plaintiff filed a petition for alimony alleging in support of her demand her freedom from fault and lack of means. The trial court determined that the plaintiff was entitled to alimony under the provisions of R.C.C. Art. 160 finding plaintiff to be without fault (Fulmer v. Fulmer, 301 So.2d 622, Sup.Ct., 1974) and that she had not sufficient means for her support. Having so concluded the trial judge in fixing the amount of the award stated in his reasons for judgment:

“Under all circumstances present, the Court is of the opinion $210.00 a month is all defendant can afford to pay from his income, whether it is called child support or alimony or both. It had previously been suggested to the Court that it all be called child support. Now that there is a demand that alimony be allocated as such, the Court hereby fixes child support at seventy dollars ($70.00) per child per month and alimony for plaintiff at seventy ($70.00) per month, or an aggregate of $210.00 per month, in child support ($140.00) and alimony ($70.00).”

Plaintiff on appeal contends that the trial court erred in reducing the amount of child support as previously fixed by judgment of court dated July 28, 1975 when the only issue raised in the instant matter was the plaintiff’s entitlement to alimony for the support of herself. The plaintiff also contends that the trial court erred in finding that defendant was financially unable to pay the plaintiff no more than $70.00 per month in alimony.

The record reflects that the plaintiff was unemployed at the time of trial although she had recently been working temporarily as a waitress. The plaintiff indicated in her testimony that she is a trained beautician but unable to practice her trade due to an allergic reaction to hair spray. In short, the record reflects that plaintiff is without means of support.

In considering the defendant’s ability to pay alimony the trial court found that the defendant had net earnings during the first ten months of 1975 which amounted to $6,692.53 or an average monthly net income of $669.25. In 1974 the defendant had an average net monthly income of $820.07. The defendant is steadily employed by an oil field trucking firm.

The trial court evaluated all of the circumstances, together with the fact that defendant was presently paying child support, and determined that the plaintiff was entitled to alimony for herself in the amount of $70.00 per month. Finding however, that defendant was unable to pay more than $210.00 monthly in alimony and child support' the trial judge reduced the previously fixed child support award from $210.00 monthly to $140.00 monthly.

We find no manifest error in the trial court’s factual findings and conclusions that plaintiff is entitled to alimony; that an award of $70.00 is reasonable; and, that defendant is only able to pay $210.00 per month in both alimony and child support. We do find error, however, in the trial court’s reduction of the child support award ex proprio motu from $210.00 to $140.00.

Under the provisions of R.C.C. Art. 227 both parents have the obligation to support and maintain children bom of the marriage. This alimentary obligation, insofar as the father is concerned, is separate and distinct from his obligation as a husband to support his former wife. R.C.C. Art. 160.

Plaintiff’s petition for alimony makes no issue of child support. The pretrial order entered following filing of the petition and prior to a hearing on the merits specifically sets forth that the only issue to be considered was the petitioner’s entitlement to alimony. At the hearing on the merits counsel for plaintiff timely objected to any evidence regarding the issue of child support as being outside the scope of the pleadings. Under these circumstances the trial court was without authority to amend its previously fixed child support award, for a court has no jurisdiction to decide a controversy which the parties have not regularly brought before it. As enunciated in Patrick v. Patrick, 227 So.2d 162, 164 (La.App. 2nd Cir. 1969) writs refused 255 La. 238, 230 So.2d 91:

“When the court adjudicated matters not regularly before it, it exceeded its authority. Due process requires adequate notice to the parties of the matter which will be adjudicated.”

Although, as aforesaid, we find no manifest error in the trial court’s determination that defendant-appellee is unable to pay more then the sum of $210.00 monthly in both alimony and child support, we are without authority to amend the trial court’s award for alimony as defendant-appellee has neither appealed nor answered the appeal of plaintiff.

For the foregoing reasons we reverse the trial court judgment insofar as it reduces the child support award previously fixed by order of the trial court dated July 28, 1975 and affirm said judgment insofar as it awards to plaintiff-appellant alimony in the amount of $70.00 monthly. The costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART AND REVERSED IN PART.


author: BEER, Judge. LEMMON, Judge

text:
    LEAGUE CENTRAL CREDIT UNION v. Victor P. GAGLIANO.
    No. 7382.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Joseph A. Barreca, New Orleans, for plaintiff-appellant.
    Edward S. Bopp, Arabi, for defendant-ap-pellee.
    Before REDMANN, LEMMON, STOUL-IG, MORTAL, and BEER, JJ.
   BEER, Judge.

Victor P. Gagliano, defendant-appellee, instituted an action of nullity seeking to void a default judgment (on a promissory note) obtained against him by plaintiff-appellant, League Central Credit Union. From a judgment of nullity, League Central prosecutes this appeal. We reverse.

Gagliano urged two grounds for voiding League Central’s original judgment: (1) improper service of citation, and (2) inaction by his original attorney which precipitated the default judgment and thus constituted “ill practices.”

The testimony of Gagliano and his niece is, in our view, insufficient to support either of his contentions.

Though domiciliary service of the original petition was made on Mrs. Gagliano at 1008 Cougar Drive in Arabi on May 8, 1967, Gagliano claims to have separated from his wife on January 14, 1967 and never returned. He claims to have first learned of League Central’s suit against him from an unidentified third person who happened to see notice of it in a newspaper.

The return showing service is presumed to be correct and the burden rests on the one attacking service of process to establish otherwise by clear and convincing evidence. Spinks v. Caddo-Bossier Service, 270 So.2d 604 (La.App.2nd Cir., 1972). A return cannot be impeached by uncorroborated testimony. Guedry Finance Co., Inc. v. Breland, 192 So.2d 884 (La.App.4th Cir., 1966). As noted by Supreme Court in Canterberry v. Slade Bros., 232 La. 1081, 96 So.2d 4 (1957):

“ . . .a rule has developed which requires more than the uncorroborated evidence of a single witness to overcome the presumption attached to the correctness of the return on process made by a sworn officer.”

Gagliano further argues that he is entitled to relief from the original judgment because of certain actions (or inactions) on the part of his original attorney which he claims constitute “ill practices” under LSA-C.C.P. Article 2004.

The evidence does not, however, indicate the existence of circumstances constituting “ill practices.” Gagliano’s complaint that his first attorney failed to get the matter “straightened out” after being appraised by Gagliano of the relevant facts is rejected by us as constituting “ill practice.” Gagliano’s self-serving testimony on the issue is, at best, inconclusive and vague. What actions, if any, his original attorney took (or failed to take) in his behalf is not indicated in the record. His original attorney was not called to testify. Certainly, the mere fact of a default judgment does not necessarily indicate “ill practices” and we conclude that Gagliano failed to offer sufficient credible evidence to support his contention in this regard.

Accordingly, the judgment of the Twenty-Fifth Judicial District Court for the Parish of St. Bernard dated May 21, 1975 is reversed, nullified, and set aside. The judgment of the Twenty-Fifth Judicial District Court for the Parish of St. Bernard dated January 30, 1968 is reinstated and now becomes the judgment of this court.

Costs of this appeal are to be borne by defendant-appellee, Victor P. Gagliano.

REVERSED AND RENDERED.

REDMANN, J., dissents for the reasons assigned by LEMMON, J.

LEMMON, J., dissents with written reasons.

LEMMON, Judge

(dissenting).

Gagliano testified that he moved from 1008 Cougar Drive in Arabi in March, 1967 and that when domiciliary service was made there on his estranged wife two months later, he was living at 51 East Carolina in Chalmette. Thus, the place of domiciliary service was not his usual place of abode. C.C.P. art. 1234.

His niece completely corroborated this testimony, and their consistent and uncon-troverted testimony was apparently found credible by the trial judge. This evidence supports the conclusion that the defendant “has not been served with process as required by law”, and C.C.P. art. 2002 requires that the judgment “shall be annulled”.

Furthermore, it is insignificant that Gag-liano actually learned of the suit soon after filing and hired other counsel to defend it. Unless a general appearance is made, actual knowledge of the suit is not a substitute for the required service of process. See, by analogy, Nassau Realty Co. v. Brown, 332 So.2d 206 (La.1976), which held that actual knowledge of a judgment does not waive service of judgment required by C.C.P. art. 1913.

Finally, the record does not establish that Gagliano acquiesced in the judgment under C.C.P. art. 2003 by being in the parish at the time of execution without attempting to enjoin its enforcement. When the judgment creditor executed the judgment by filing garnishment proceedings, Gagliano immediately employed counsel, who filed the petition for nullity, which certainly constitutes an attempt to enjoin enforcement of the judgment. This affirmative action militates against any conclusion of acquiescence.

REDMANN, J., dissents for the reasons assigned by LEMMON, J.

      . Interestingly, Gagliano’s Petition in Bankruptcy (introduced by his attorney) shows that it was filed on August 24, 1967, some 3'/2 months after the May 8th service and some 7'A months after his alleged separation. It contains the following sworn information: “The petition of Victor Paul Gagliano, Sr., S.S.No. [ XXX-XX-XXXX ], residing at 1008 Cougar Street in Arabi, Louisiana . . . ” In that same pleading, Gagliano not only swears that he resides at 1008 Cougar Street in Arabi, La., but further represents that he has resided there during the six-month period immediately preceding the filing of the bankruptcy petition.

      . Also of interest is the fact that the attorney whom Gagliano now accuses of ill practice is the same attorney who Gagliano consulted shortly after the original petition was filed against him (notwithstanding his contention that he only heard about it from some acquaintance who had read about it in the newspaper).

      . Although Gagliano was served with the notice of the signing of the default judgment, the judgment had already been rendered, and since evidence was necessary to show lack of service of process, an appeal would not have availed Gagliano to urge this deficiency.
      The effect of service of the notice of judgment was simply to start the appeal time running. There was no effect on Gagliano’s right to urge the deficiency in a timely action for nullity.


author: SAMUEL, Judge. BEER, Judge

text:
    Lulu ROBINSON v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 7548.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.

      Steven F. Griffith, New Orleans, for plaintiff-appellee.
    C. B. Ogden, II, and James Maher, III, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

This is a suit for personal injuries allegedly resulting from a March 9,1973 accident involving an automobile and a New Orleans Public Service bus. Plaintiff was a fare paying passenger on the bus. The defendants are the bus driver, his employer, the driver of the automobile and the latter’s unknown liability insurer. Following a jury trial, there was judgment in favor of plaintiff and against New Orleans Public Service and its driver in the sum of $6,000. Plaintiff’s claim against the other driver was dismissed. The defendants cast have suspensively appealed. In this court they limit their appeal to the issue of quantum.

Appellants contend: (1) damages to the vehicles were slight, therefore plaintiff’s injuries were minimal; (2) any medical treatment beyond two weeks after the accident was unnecessary; and (3) the amount of the award should be reduced from the sum of $6,000 to $750.

Relative to appellants’ first contention, we reject the argument that the force of the collision impact was so slight it could not have caused the injuries of which plaintiff complains. It is true the force of the impact was slight. The evidence establishes the bus and the automobile merely brushed each other, causing no physical damage to the bus and only scraping the right front fender of the other vehicle. Photographs in evidence underscore the minor nature of the accident.

However, the record establishes' to our satisfaction that there was a collision in which the plaintiff was injured. The minimal force thereof is of no material importance as the same relates to the extent of the injuries; the degree of injuries sustained in a collision cannot be measured by the minimal force of the collision.

Nor do we agree with appellants’ second contention, that medical treatment beyond two weeks was unnecessary. Dr. C. W. Peterson, a general practitioner retained by New Orleans Public Service, examined plaintiff on March 13, 1973. He diagnosed her injuries as contusion and/or strain of the left lower posterior rib cage and left scapular area of the back. It was his opinion that plaintiff’s injuries would constitute a partial disability for about two to three weeks.

Plaintiff also was examined and treated by Dr. Joseph P. Braud on March 13. In his opinion she had sustained muscular contusions and strain of the left shoulder girdle and rib cage. He prescribed conservative therapy consisting of analgesics and physiotherapy. She was last seen on March 22, 1973. The doctor anticipated that plaintiff would not have any permanent disability and that she had an uneventful recovery.

Dr. Florence Jones, a general surgeon, saw plaintiff March 23, 1973 at which time she complained of pain in the back and left rib cage. Although objective findings of this doctor’s examination did not substantiate plaintiff’s subjective complaints of pain, plaintiff requested hospitalization and was admitted by Dr. Jones on March 23, 1973. Numerous tests were conducted in the hospital, all of which were normal. She was placed in traction until March 29 and received pain medication until her discharge on April 5, 1973. At that time she had no complaints of pain. Dr. Jones saw plaintiff on three occasions thereafter. As of the last visit, on May 24,1973 the doctor did not anticipate or expect any permanent disability.

Dr. Victor Chisesi, an orthopedic surgeon, was consulted by Dr. Jones about plaintiff while plaintiff was in the hospital. His examination on March 31, was essentially normal with the exception of a slight degree of muscle spasm in the low back and tenderness over the last joint of the low back region. It was his opinion that any injury to the upper left thorasic area had cleared by this time. Valium was prescribed. Dr. Chisesi was unable to state whether plaintiff’s complaints of pain in the low back area were related to the accident since they did not start until two weeks following the accident. In his opinion if the accident had caused any low back injury, the pain would have started within two or three days of the accident. He saw plaintiff on three additional occasions at his office. The last examination of April 12,1973 was completely normal although plaintiff continued to complain of pain.

Dr. Irving Redler, an orthopedic surgeon, saw plaintiff on August 21, 1973. His examination was normal and he was of the opinion there would be no residual disability-

We are impressed by the fact that upon her discharge, Dr. Jones gave plaintiff a note (presumably for her employer) stating she was unable to work at that time (April 24, 1973) and should be granted leave. We are also impressed by the fact that Dr. Chisesi found objective evidence on March 31 of muscle spasm.

While it does not appear that plaintiff was seriously injured in the accident, were it not for the accident plaintiff would not have had to seek medical treatment. We do not believe Dr. Jones would have hospitalized her if such hospitalization was unwarranted and plaintiff was entitled to have any necessary tests made to determine her medical condition which could have resulted from the accident.

Relative to appellants’ third contention, the blanket award of $6,000 was not itemized by the jury. However, the $6,000 award includes the following medical charges: Dr. Joseph Braud, $70; Dr. Florence Jones, $415; Dr. Victor Chisesi, $63; hospital charges, $1,036.55; total medical expenses, $1,584.55.

The record further reflects that plaintiff missed work from March 9, 1973 until July 12, 1973. She had written to her superior requesting six weeks’ leave without pay following her visit to Dr. Jones on April 13, at which time she was advised she would be unable to return to work. Plaintiff was reinstated at a lower rate of pay on July 12, 1973 because the employer was unable to hold open her original position. The total salary thus lost was nine pay periods of $173.54, for a total loss of $1,561.86. Special damages proven at the trial therefore were $3,146.41, leaving a balance from the $6,000 award of $2,863.59 for pain and suffering.

The ultimate question presented to us by this appeal is whether the jury abused the “much discretion” (with respect to assessment of damages in personal injury cases) given by Article 1934(3) of our Civil Code. It is now settled that the amount of such an award should not be disturbed unless the record establishes a clear abuse of that discretion. We find no such abuse here.

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

AFFIRMED.

BEER, Judge

(concurring).

I concur because I feel obliged to follow the guidelines set in Lomenick v. Schoeffler, supra.

In my view, the amount of the award signals a breach of discretion but for the highly questionable conclusion that Lulu Robinson’s hospitalization was necessary and related to the accident.

I cannot reach this conclusion. In my view, her hospitalization was not only unnecessary but contrived. It resulted, in my opinion, from a combination of the following non-medical factors: (1) It cost her virtually nothing out of pocket because of insurance, etc. (2) The doctor who ordered it (but who felt that it was not at all necessary) was far more concerned about the “malpractice picture” than about Lulu Robinson’s totally subjective complaints. (3) It materially increased the possibility of a higher award in her claim against New Orleans Public Service, Inc., et al.

I would very substantially reduce the amount of the award but for the previously noted mandate.

      . Harney v. Kountz, La.App., 218 So.2d 913; Seegers v. State Farm Mutual Automobile Ins. Co., La.App., 188 So.2d 166.

      . Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, and the long line of cases which follows that decision.


author: LEMMON, Judge.

text:
    Nathaniel BANKSTON et al. v. NATIONAL CORPORATION SERVICES, INC. et al.
    No. 7551.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.

      Harris, Stampley, McKee, Bernard & Broussard, Wilfret R. McKee, New Orleans, for plaintiffs-appellants.
    Stephen L. Huber, Metairie, for defendants-appellees, Garrard Chevrolet and Liberty Mutual Ins. Co.
    Christovich & Kearney, John J. Cooper, New Orleans, for defendants-appellees, National Corp. Service, Inc., and the Continental Ins. Co.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

This is a tort action against (1) Calvin Morgan, the driver of the truck which struck plaintiffs’ car from the rear, (2) National Corporation Service, Inc., Morgan’s employer, and (3) Garrard Chevrolet, Inc., the owner of the truck Morgan was driving. Plaintiffs have appealed from a judgment dismissing National and Garrard after a trial on the merits.

Morgan testified: On the night of the accident he had reported to work at 6:00 p. m. .as National’s security guard on Gar-rard’s premises. After midnight a wrecker towed in a station wagon, and the wrecker driver asked him to drive home the owner of the vehicle, who appeared to be shaken up. He did so in a truck owned by Garrard. On his return trip he detoured to pick up a key at his apartment and then, while heading back to Garrard’s premises, became involved in the accident in suit.

In the ensuing litigation plaintiffs asserted that Morgan, at the time of the accident, either was in the course and scope of his employment with National or was Garrard’s borrowed employee. Either theory, if legally acceptable, requires the factual acceptability of the events related by Morgan. The trial judge rejected his story, and we affirm.

The surrounding circumstances tend to contradict, rather than to corroborate, Morgan’s story. On the night of the accident he was the only security guard on the premises. Although he had telephone access to National supervisory personnel for assistance, he nevertheless left the premises completely unattended, rather than calling a supervisor, or a taxicab, or an ambulance. After the accident he did not tell the investigating officer or the plaintiffs where he had been. Neither did he mention the accident when he made his next hourly telephone report (late) to National. In fact, he never reported the accident either to National or to Garrard, who discovered the damaged truck on the premises, but were unaware of the cause of the damage until the company received a letter from plaintiffs’ attorney. Morgan’s security inspection report for the work shift indicated no “visitors”, no “rounds omitted”, and no “other conditions to report”. Although Garrard used only three wrecker services and Morgan stated the particular wrecker driver came to the premises once or twice a week, he was unable to identify the driver or the name of the wrecker service. Neither could he identify the injured person or the address to which he delivered him.

In his reasons for judgment the trial judge stated:

“The Court closely analyzed Calvin Morgan’s testimony and comes to the conclusion that his testimony is not trustworthy. The Court analyzed his demeanor, his actions, the expressions on his face, the Court concludes in its statements of reasons herein that Calvin Morgan left the Garrard Chevrolet that evening in a pickup truck to go get his keys at his apartment; the Court is convinced from all of the testimony that there was no wrecker that came into the yard, that there was no disabled car that was brought in.”

Great weight must be accorded to the factual findings of the trier of fact, whose reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Since our review of the record reveals no manifest error in the trial judge’s rejection of Morgan’s implausible story, we conclude plaintiffs have failed to prove Morgan either was in the course and scope of his employment with National or was Garrard’s borrowed employee.

Alternatively, plaintiffs contend Morgan was driving the truck with Gar-rard’s express or implied consent and was thus an omnibus insured under Garrard’s liability insurance policy. National had instructed Morgan not to use any of Gar-rard’s vehicles. Morgan stated, however, that he used this particular truck to make his rounds in inclement weather, with the knowledge of Garrard’s general manager. The manager denied this and pointed out that the particular truck belonged to the parts department and that when the department closed (before the guard came on duty), the truck was usually locked in an area to which the guard had no key. Furthermore, even Morgan conceded that he had never before left the premises with one of Garrard’s vehicles. Finally, Morgan’s driving the truck on that evening was not even an act in furtherance of Garrard’s business interest, since he left the premises completely unguarded against fire, theft or vandals.

We conclude plaintiffs failed to prove Morgan was driving the car with Garrard’s express or implied permission so as to provide coverage under the .policy.

The judgment is affirmed.

AFFIRMED.


text:
    Clarence WALKER et al. v. TRAVELERS INSURANCE COMPANY et al.
    No. 7568.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.

      John Edward Ruiz, Jr., New Orleans, for plaintiff s-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, David W. Oestreicher, II, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

In this slip and fall case plaintiffs, Clarence Walker and Chiquitta Toliver (Walker’s niece appearing through her natural tutrix), have appealed from a judgment dismissing their suit after a trial on the merits. The principal issue on appeal is whether plaintiffs proved the occurrence of the accident upon which this suit is based.

I

Walker testified: While pushing his infant niece in a shopping basket in a department store, he slipped in a puddle of shaving lotion and fell backwards to the floor. The basket kept going, out of control. The accumulation of liquid was in the aisle, coming from beneath a low display table located between two check-out counters. The right side of his pants and his shirt were wet after the fall.

In support of this version Walker offered the testimony of Falcon Lee, who was standing at the check-out counter, about six feet from the spot where Walker fell. Lee stated he heard a crash (probably the basket which hit a display case) but did not see Walker fall. He went over to assist Walker and noticed a puddle of clear liquid near Walker’s feet. He described the puddle as having a streak through it and having the appearance of drying up at the edges.

Walker’s mother and sister, who were walking in the aisle behind Walker, verified the streak and the drying appearance. The sister also stated she saw someone pick up a container from under the display table after the accident.

Defendant’s cashier supervisor, the first employee on the scene, didn’t see or smell anything until she returned from calling for assistance, when she saw the puddle and also saw on the side of the display table an unopened box containing a broken bottle of shaving lotion. She estimated the size of the puddle at about six inches in diameter, located next to the box, and she described the puddle as “undisturbed”, with no streaks or heel marks. She also noted that • the puddle was on the other side of the display table from the place where Walker slipped.

The security guard stated the puddle, which he estimated to be 12 to 18 inches in diameter, half of which was under the table, was “undisturbed”. He described the location as “opposite from where he fell”, explaining that the puddle was in front of the display table and Walker was on the side and that Walker would have had to slip and turn around the corner of the table before falling in the position in which he was found.

The guard pointed out to the assistant personnel manager that the soles of Walker’s shoes were dry, and the cashier supervisor had. earlier rioted this fact.

II

The decision in Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976), held that evidence in slip and fall cases as to the absence or insufficiency of inspection procedures is relevant to the issue of the storekeeper’s responsibility for foreign substances on the floor, since such evidence bears on the degree of probability that the storekeeper’s failure to discover and correct hazardous conditions contributed to the causation of the accident. However, such evidence is ultimately unimportant if a plaintiff fails to prove that he fell and was injured because of a hazardous condition on the premises.

In the present case there was considerable evidence that Walker fell and was injured because of shaving lotion on the floor. On the other hand, there were considerable circumstances indicating that Walker did not fall or that he fell for some reason other than the puddle of liquid on the floor. Therefore, there was evidence before the trial judge which furnished a reasonable factual basis for his apparent conclusion that Walker did not fall because of a hazardous condition on the premises. A reviewing court should not disturb a trial judge’s or jury’s reasonable evaluations of credibility or reasonable inferences of fact, even if a contrary inference from other evidence is equally reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Applying these principles of appellate review of fact, we decline to disturb the judgment below.

The judgment is affirmed.

AFFIRMED.

      . At the conclusion of the evidence the trial judge announced his finding that the storekeeper’s inspection procedures were inadequate, but he took the case under advisement to consider “whether or not the accident happened”, The judge thereafter rendered the judgment of dismissal without assigning reasons,

      . In addition to the testimonial proof of the fall, the medical officer reported finding a small swelling over the posterior aspect of Walker’s head and several discolored areas of the infant’s body,


author: BEER, Judge.

text:
    Hollis A. MAGEE v. ENGINEERED EQUIPMENT CO., INC., et al.
    No. 7730.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.

      Drury, Lozes & Curry, Robert H. Wood, Jr., and James H. Drury, New Orleans, for defendants-appellants.
    Salvador M. Cusimano, Charles A. Ver-derame, New Orleans, for plaintiff-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Hollis A. Magee, is an iron worker who sustained an on-the-job crushing injury to his right thumb on or about July 7, 1974. Defendant-appellant, Commercial Union Insurance Company, the workmen’s compensation insurer of his employer, Engineered Equipment Co., Inc., paid weekly benefits at the rate of $60.00 for 49 weeks (from July 7, 1974 to June 15, 1975) and medical expenses of $983.15. Thereafter, Magee instituted thi’s suit, seeking a judgment of total and permanent disability. The trial court awarded weekly payments for permanent and total disability, subject to a credit for prior payments, and Commercial Union Insurance Company appeals.

Magee is a 39-year-old iron worker injured while performing his duties in connection with the erection of a one-story building. Immediately following the accident, he was treated at West Jefferson Hospital by an unidentified physician. Two to three weeks after the accident, he consulted Dr. Courtney Russo, seeking relief of pain in his right thumb and restoration of its flexibility. He was later examined (but not treated) by Dr. Daniel Riordan in December, 1974, and Dr. Riordan’s reports of that examination and a follow-up examination in June, 1975, form an important part of the record before us. (The reports were introduced into evidence pursuant to a joint stipulation of counsel.)

At the trial, Magee testified that he continues to experience some pain and that, more importantly, he has little or no flexibility of movement in his thumb. He contends that much of his work “is in the air” which necessitates climbing and the ability, while aloft, to use tools weighing up to 12 pounds each. He professes inability to satisfactorily perform his duties because of his incapacities. He views his return to iron work as hazardous to himself and co-employees because the lack of gripping power in his right hand effectively prevents his full use of it to handle tools or hold on to a structural support while performing his duties. Since the nature of his job often necessitates the use of one hand to support himself and the other to grip a tool^ his alleged incapacity forecloses safe and effective job performance. For these reasons, he has not returned to his previous occupation.

Magee testified that he now drives a one ton truck with an average workday of 10 to 12 hours. He acknowledges that Dr. Rior-dan recommended surgical intervention for removal of a 'bone chip in his thumb tip that causes him some pain, but he refuses to authorize the operation since both Drs. Russo and Riordan indicate (according to him) that such procedure would not alleviate the flexibility problem. He also refuses to authorize a bone graft operation which could possibly restore some of the flexibility to his distal joint.

John R. Wellman, a former journeyman iron worker, who qualified as an expert in the field, generally corroborated Magee’s testimony as to the nature of his work. He admits that there are some ground jobs for iron workers but observed that 75% to 80% of the work available to iron workers involves climbing and working at various heights above the ground.

D. J. Rosa, a fellow iron worker and Financial-Security Treasurer of Iron Workers Local 58, testified he is in charge of dispatching iron workers to their jobs. He can’t say whether plaintiff can presently do his job, but observed that an added burden is imposed on the contractor if the union sends a worker who is not fully capable of doing his work at ground level as well as aloft.

Dr. Courtney Russo’s testimony is generally corroborative of Magee’s contentions. He states: “The man never has been able to really flex the tendon at all really. He never has had adequate function of the distal phalanges.” This bears directly upon Magee’s ability to grip with his right hand. The thumb, according to Dr. Russo, acts more or less as a stabilizer as compared with the actual gripping function provided by the fingers. Its function is, nonetheless, vital to one’s gripping ability. Because of his disability, Magee has insufficient stabilizing control over “recoil” which effectively inhibits his ability to use the tools of his trade while keeping himself safely aloft. In short, he does not have adequate control over his ability to grip with his right hand. Thus, while Dr. Russo is not familiar with Magee’s actual job description, he is, nevertheless, of the view that his condition impairs Magee’s work capabilities by causing him to run a greater risk of losing his balance if he should rely on his right hand for stability. Based on his examinations, Dr. Russo projected a 30% permanent disability of the hand.

With regard to the bone chip in the tip of Magee’s thumb, Dr. Russo observed that the problem has pretty much corrected itself. The chip has united with the main bone. Although this somewhat contradicts Dr. Riordan’s suggestion to remove same, both agree that removal of the bone chip would not alleviate the distal phalanx flexibility problem previously discussed.

Dr. Russo was of the view that the only alternatives to the distal joint inflexibility are: maintenance of the status quo or a free tendon graft. Dr. Russo believes that such an operation would have about a 50-50 chance of restoring motion in the joint. But, even if the operation was successful, a 50% function return was about the best that could be expected. He described the operation as intricate and difficult, but not dangerous. Magee declined the operation.

Dr. Riordan has not treated Magee. His examination, in December of 1974, disclosed a fracture of the tuft of the distal phalanx which had not united and resulted in a prognosis that Magee would not regain full motion because of the crushing type injury. The follow-up examination, in June of 1975, does not indicate any change in this basic finding with respect to loss of function. Dr. Riordan estimated permanent partial loss of function of the right hand at 10%.

An iron worker is a skilled employee. If he is injured during the course and scope of his employment so that he becomes unable to perform substantially all of his duties without endangering himself or his co-workers, he is totally and permanently disabled under the Workmen’s Compensation law. Mercer v. Coal Operators Casualty Co., 212 So.2d 431 (La.App. 2nd Cir., 1968). In Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969), an iron worker sought total and permanent benefits for an injury diagnosed as a mild compression fracture of the 11th and 12th dorsal vertebraes. He suffered back pain on performance of his usual duties. In granting total and permanent awards, the Supreme Court cited Mercer with approval and observed:

“Although he may be able to do a foreman’s job or erect metal sheeting and other work classified as light work, he will be unable to fill all the jobs an iron worker is called upon to fill and, as a result, in time, his steady employment will be seriously affected . . . His ability to compete in the open market with other iron workers will thus be impaired. For obvious reasons the employer who has a choice will employ the iron worker capable of performing both heavy and light work in preference to one who is only able to do light work.”

We believe that Magee’s description of his. present condition, generally confirmed by Dr. Russo and Dr. Riordan, supports the trial court’s award, particularly in view of the manifest error rule announced in Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Magee’s refusal to undergo the bone graft surgery is not, we believe, unreasonable. The operation cannot, apparently, be considered one which will clearly result in Magee being able to resume the type of work he was performing prior to the accident. Moreover, “this judicially-created defense . . . must be afforded restrictively rather than liberally, for it is in derogation of the employee’s legislatively created right to receive compensation during work-caused disability.” Bass v. Service Pipe Trucking Co., Inc., 289 So.2d 78 (La.1974). While there is, apparently, little danger involved in this operation, Dr. Russo’s testimony indicates the most optimistic probable result would be 50% increase in function. This factor must be considered conjointly with the probability of any success being estimated as a 50-50 proposition. Furthermore, there is no evidence in the record to indicate that a successful operation which restored only 50% of the flexibility would satisfactorily overcome his disability so as to permit Magee to resume his iron worker’s duties in safety.

We are able to understand and, to some degree, sympathize with the reactions of defendant-appellant. An award of permanent and total disability on these generally uncontested facts may seem somewhat harsh. However, the record indicates just enough clearly proven disability and just enough equivocation with respect to the probable outcome of the elective surgery to signal disability within the broad spectrum of the Act’s application when considered in light of the more or less intricate duties of an iron worker. Very recently, our brother, Judge St. Amant, sitting with us by assignment, wrote Duray v. Continental Insurance Company, 332 So.2d 312 (Court of Appeal, Fourth Circuit, 1976). The facts are somewhat different, but the general application of the provisions of the Act is essentially the same. For this reason, we make particular reference thereto.

Though not unmindful of the closeness of the call that must be made in this case, we find no compelling basis for upsetting the conclusions reached by the able trial judge and, accordingly, affirm. Costs of this appeal must be borne by defendant-appellant.

AFFIRMED.

      . Though now disabling within the Act’s application, the moderate nature and extent of Ma-gee’s injury and the financial lure of the iron worker’s trade, may, at some point in the future, combine to become a catalyst for Magee’s return to his former occupation. Certainly, it is possible that the compensating tendencies of our bodily functions are such that, with the passage of time, Magee’s ability and confidence will be regenerated to the extent that he can perform his former occupation with skill and safety. Should such, hopefully, come to pass, these proceedings can, of course, be reopened.


author: PRICE, Judge.

text:
    Kendrick RYAN d/b/a Ryan Construction Company, Plaintiff-Appellee, v. H. A. ALEXANDER, Defendant-Appellant.
    No. 12981.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    Campbell, Campbell & Johnson by Cecil P. Campbell, Minden, for defendant-appellant.
    Kitchens, Benton & Kitchens by Paul E. Kitchens, Minden, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Kendrick Ryan brought this action against H. A. Alexander to recover the balance owed under a contract to clear land and to dig stock ponds for Alexander.

The disputed issues concern the extent of performance of the work by Ryan in accord with the agreement and the right of Alexander to recover any cost of correcting or completing work covered by the contract not performed by Ryan.

On May 15, 1973, Ryan contracted with Alexander tó clear approximately eighteen acres of land described as the Palmetto Beach Annex, excluding Lot 10 which was not owned by Alexander at that time. Ryan was to be paid $1,000 for the work in addition to the amount he received from the sale of merchantable timber sold from the tract. He agreed to pile and burn the un-merchantable timber and to complete the work in forty-five working days. During the progress of this work, Alexander acquired Lot 10 and an agreement was made with Ryan to also clear this lot for an additional amount of $150. An additional agreement was made for Ryan to perform the excavation work for two stock ponds and one stock tank in accord with the specifications of the Soil Conservation Service of the U.S. Department of Agriculture. For this work Ryan was to receive $.45 per cubic yard of dirt handled.

Ryan contends he completed the clearing of the tract in the time frame of the agreement with the exception of a low boggy area containing between one and two acres which was too wet to support heavy equipment. He further contends he had substantially completed the digging of the larger stock pond, the stock tank, and had begun the second stock pond when his equipment broke down and caused a three week delay for delivery of parts for repairs. During the period his equipment was inoperative, Alexander engaged another contractor to complete the work.

Alexander refused to pay Ryan for any work performed contending the clearing was not properly done or completed, and that Ryan had abandoned the work on the stock ponds and tank causing him to incur additional expense in completing the work.

Ryan alleges $2,339.50 is owed to him for work performed prior to being forced to leave .the job. This amount represents $1,150 for clearing work, less a reduction of $300 for the acreage contained in the wet area where he was unable to work, and $1,489.50 for removal of 2,447 cubic yards of dirt in construction of the stock pond and tank.

Alexander reconvened for $3,265. He contends this is the total of the amount paid to other contractors and for work he performed with his own equipment in completing the clearing of land and digging the ponds.

The trial court found Ryan to have substantially completed the contract for clearing, piling, and burning, and that he had been prevented from completing the work on the ponds by the action of Alexander in engaging another contractor before Ryan could complete repairs on his equipment. For this reason, Ryan was awarded the amount claimed by him of $2,339.50. The court found Alexander was entitled to a part of the expense claimed by him in removing stumps and other cleanup work on the cleared acreage, and awarded him $980 for this purpose under his reconventional demand.

Alexander has appealed contending the trial court erred in limiting the award on his reconventional demand to the sum of $980 for expense related solely to completing the clearing work, and in not allowing any part of the cost of completing the work on the stock ponds.

The evidence supports the finding of the trial court that Ryan had substantially performed the clearing contract. He is, therefore, entitled to payment of the contract price for this work less any cost incurred by Alexander in correcting defective or incompleted work. Louisiana Civil Code Article 2756; Brady v. Jay. 111 La. 1071, 36 So. 132 (La.1904).

His right to recover for work performed on the stock ponds depends on whether he was prevented from completing this work by Alexander hiring another contractor. There was no specified time for the completion of the work on the stock ponds. Ryan began this work punctually, and had performed 95 per cent of the work on two of the stock ponds, and had done about 50 per cent of the work on the third when the equipment on the job broke down. He notified Alexander of the difficulty and estimated he would be shut down about ten days for repairs. The repairs actually took three weeks because of a delay in getting parts. During this time, Alexander engaged another contractor to move in his equipment and finish the work. No charge was made by Ryan for the portion of the work done on the third pond. Under these circumstances, Ryan had not abandoned the work, and the action of Alexander in directing Brown to move in and take over the work was unjustified. The trial court properly found Ryan was prevented from completing the work on the stock ponds and was entitled to be paid for the amount of work performed without any offset for the amount paid by Alexander to complete the work.

Alexander bears the burden of proving the amount spent in completing the clearing contract on the eighteen acres. Lillis v. Anderson, 21 So.2d 389 (La.App.Orl.1945). The evidence shows two contractors were engaged to perform some work on the eighteen acre tract as well as other adjacent lands of Alexander after Ryan removed his equipment from the job.

Neither contractor could testify specifically how much of their work related to the completion of the clearing which Ryan had contracted to perform.

The trial judge allowed approximately one-half of the amount charged by Loyd Brown who Alexander hired to complete the piling and burning of debris left by Ryan. The trial judge viewed the photographs of the area and could best judge how much timber or limbs was left undis-posed of after Ryan completed this phase of the contract. These photographs are not a part of the record on appeal, having been lost or misplaced prior to preparation of the transcript, and this court is not in a position to review this evidence.

The work performed by the other contractor, E. B. McDonald, was primarily to drain the wet area on which Ryan was unable to use his equipment during the course of the performance of his contract. Most of his work was beyond the scope of the work Ryan was engaged to do, and a proportionate reduction of the original contract price was made by Ryan to compensate for this one or two acre area. McDonald used a backhoe to remove stumps on several tracts belonging to Alexander in this area. The trial judge allowed the proportionate costs of this work attributable to the eighteen acre tract which is in accord with the evidence.

The judgment appealed is affirmed at appellant’s costs.


author: REDMANN, Judge.

text:
    John DELCHAMPS v. Mrs. Rita Clark, wife of John DELCHAMPS.
    No. 7404.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 1976.
    Richard A. Dowling, New Orleans, for plaintiff-appellee.
    Conrad Meyer, IV, Baldwin, Haspel, Mol-ony, Rainold & Meyer, New Orleans, for defendant-appellant.

      Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

An ex-wife appeals from a judgment which terminated $65 weekly child support and post-divorce alimony (the two children having reached majority a year or two earlier).

The $65 for wife and two children was fixed when the ex-husband earned $800 a month “take-home” pay, including $200 from a second job. Thus the original fixing cannot have been limited by the husband’s ability to pay. Despite having lost the second job, the husband now nets, judging from three weeks’ current pay, closer to $900 a month. His second wife nets an additional $170 a week (although she has a minor child to whose support she may be contributing). Thus the husband’s ability to pay has not decreased.

The wife’s expenses are unclear despite the usual recitals, owing to her admission that some of those expenses include amounts for the needs of the two major children (both employed). We cannot find any increase in the wife’s needs since that 1972 fixing, especially when she also testifies that — as one can well understand — the insufficiency of $65 a week has obliged her to work part-time (although the amount of work and earnings is unclear).

The correctness of the original fixing is not before us: however low it appear, Bernhardt v. Bernhardt, La.1973, 283 So.2d 226, obliges us to consider only changes in circumstances occurring since the prior fixing.

Because of the majority of the two children, any portion of the $65 attributable to them must be eliminated. We would attribute nothing to the son who was earning $130 a week, and $15 to the daughter for expenses exclusively hers, thus attributing $50 of the $65 weekly to the ex-wife. We would conclude that the wife has not proven any increase in need, and the husband has not proven any decease in the wife’s need or his ability to pay, although the wife’s earnings from her admitted employment require investigation to determine the proper amount of alimony.

The trial judge’s elimination of alimony was based on the wife’s having five months earlier received about $3,000 cash in a partial community settlement, all of which she spent (most of it on house repairs, she said), and on her owning a $16,000 house (on which she owed $9,500). The trial judge also alluded to the “two freeloaders,” the employed major children living with the ex-wife, but we understand his point to be merely that their absence — or a reasonable contribution by them to household expenses — would reduce the ex-wife’s need, and not that the children’s obligation to maintain a mother in need, C.C. art. 229, relieves the ex-husband of his obligation; see Matheny v. Matheny, 1944, 205 La. 869, 18 So.2d 324. The principal reason for judgment appears to have been the ex-wife’s $6,500 net interest in her house: “I can’t make the man pay alimony in order to let her maintain a $7,000 equity in the house.”

That view is inconsistent with cases decided by this court such as Mendoza v. Mendoza, La.App. 4 Cir. 1975, 310 So.2d 154, writ denied La., 313 So.2d 827 ($12,500 equity plus $2,200 automobile); and Wagner v. Wagner, La.App. 4 Cir. 1971, 248 So.2d 96 ($10,000 in stock plus $50,000 half-interest in undivided community). See also Gautreaux v. Cormier, La.App. 3 Cir. 1975, 315 So.2d 164, which cites several other cases.

That the wife had five months earlier received $3,000, which she during that period spent on house repairs and medical bills is also no bar; Faust v. Faust, La.App. 4 Cir. 1971, 254 So.2d 304; see also Rader v. Rader, La.App. 4 Cir. 1961, 126 So.2d 189.

It was error to refuse alimony on the grounds recited. Because, however, the record indicates that the wife may have earnings but does not show their amount, we remand so that alimony may be fixed with that factor considered.

Remanded at plaintiff’s cost.