text:
    Rolland LeBLANC, et ux., Plaintiffs-Appellees, v. MONTGOMERY WARD & COMPANY, INC., Defendant-Appellant.
    No. 82-200.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio, Lake Charles, for defendant-appellant.
    Robert W. Thomas, Lake Charles, for plaintiffs-appellees.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

This is a slip and fall — premises liability case wherein the only issue presented on appeal is damages. Were they established? If so, was the trial court’s award clearly excessive?

On Saturday, June 14, 1980, Mrs. Gertrude LeBlanc was shopping in the Prien Lake Mall in Lake Charles, La., whereat she decided to look at some linens on display during defendant’s “June White Sale”. As she walked down one of the aisles, she slipped on an open mesh wire rack laying on the floor and fell to the ground.

Immediately after the accident a representative of defendant-appellant, Montgomery Ward & Co., Inc., arrived at the scene and offered to take Mrs. LeBlanc to the hospital for examination and treatment if necessary. Although Mrs. LeBlanc complained of pain, she declined medical assistance, prefering to go home.

On the following Monday, June 16, 1980, a representative of Montgomery Ward called to inquire of the customer’s condition whereupon she again complained of pain and, accordingly, was referred to Dr. Ed Nagem, a local surgeon and company physician for Montgomery Ward. On the following day plaintiff reported to Dr. Nagem who saw her then and again one week later.

Subsequently, on August 26, 1980, Mrs. LeBlanc visited another physician, Dr. Gerald Litel, a neurosurgeon, due to the fact that her pain persisted.

Thereafter, plaintiff consulted Dr. George P. Schneider, an orthopedic surgeon of Lake Charles who treated her from December 1980, until the time of trial. On November 16, 1981, he had her hospitalized for further testing and she remained in the hospital until November 20, 1981. Dr. Schneider’s conclusion was that plaintiff was suffering from a spraining injury to her lower back which was superimposed upon a rather advanced degenerative process with secondary nerve root irritation into the lower left extremity. In his opinion, the fall was responsible for rendering the degenerative arthritic condition symptomatic.

At the request of the attorney for Montgomery Ward, Mrs. LeBlanc was seen again by Dr. Litel on December 14, 1981. His opinion was that there was no neurologic injury or disease.

At trial on the merits, the trial court heard the testimony of Drs. Litel, Nagem, and Schneider as well as that of numerous lay witnesses. At the conclusion of trial, on December 22, 1981, the trial judge ruled that Montgomery Ward was negligent, that Mrs. LeBlanc was free of negligence, and he awarded the sum of $5,000 to Mr. Le-Blanc, representing past and future medical expenses, and he awarded plaintiff the sum of $45,000.00, representing damages for pain and suffering.

Thereafter defendant filed an application for new trial limited to reargument only as to quantum. This reargument was made, however, the court adhered to its original position. From that judgment defendant has appealed, maintaining that said awards are excessive.

Our review of the record reveals that plaintiff indeed suffers serious back problems. Although part of her problems may be attributable in part to an arthritic condition present prior to the accident, it is well established that aggravation of a preexisting condition is compensable. Appellant’s contention that plaintiff did not establish the existence of damages is without merit. While her doctors differ as to the source of her problems and extent thereof, the trial judge apparently assigned greater weight to the testimony of the treating physician, Dr. Schneider, an orthopedic surgeon, whose testimony was most favorable to plaintiff. Assessment of the credibility of the witnesses is clearly the province of the trier of fact and his judgment will not be disturbed absent manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). We find no manifest error.

Dr. Schneider, who agreed with the other doctors that plaintiff sustained a back sprain superimposed upon a previously existing degenerative arthritic condition, testified that, in his opinion, Mrs. LeBlanc will continue to have back problems if she does not have surgery. Surgery would involve approximately 10 days hospitalization, require plaintiff’s placement in a body cast for eight to ten weeks, then rehospitalization would be required. Thereafter, a chair brace would be required for a period of six months to a year. The cost for the surgeon’s fee alone was estimated by Dr. Schneider to be $2,500.00. In all probability, additional medical expenses and costs of medication would be incurred.

The standard of appellate review vis-a-vis damage awards was set forth in Reck v. Stevens, 373 So.2d 498 (La.1979) as follows:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
With regard to appellate review of the much discretion of the trier of fact in the award of general damages, La.C.Civ.P. art. 1934(3), we stated (after exhaustive review of the facts, and reversing the appellate court for disturbing (on the basis of prior awards) the trier of fact’s award) in Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, 132 (1967) (Italics ours):
“The law is plain and means what it says, and it is the duty of all appellate courts to follow it. Under this rule the amount of damages assessed by the judge or jury should not be disturbed unless the appellate court’s examination of the facts reveals a clear abuse of the discretion vested in the trial court.... The facts and circumstances in the other neck injury awards, relied upon by respondent as showing that this award was all out of proportion with the previous awards for similar injuries, causes them to have little or no relevancy for purposes of demonstrating the excessiveness of this award.”
Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much3 discretion,” La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, see Coco at 341 So.2d [332,] 334.

Thus, in reviewing a trial court’s award of damages one cannot simply resort to seemingly analogous cases inasmuch as the damages must be determined on the basis of facts and circumstances peculiar to each case. Our review of. the record convinces us that the trial judge did not abuse his “much discretion” in the award of damages. LSA-C.C. Art. 1934(3).

There can be no serious dispute as to the propriety of the award for past and future medical expenses. The above mentioned facts indicate that, if anything, plaintiff’s medical expenditures will exceed the amount awarded. With respect to the award for pain and suffering, the record discloses that since the fall Mrs. LeBlanc has been in constant pain and wears a backbrace prescribed by Dr. Schneider. She is taking medication three times daily. She cannot do her housework. Her back hurts if she sits or stands for too long of a period of time and she can’t lift or bend without enduring substantial pain. The testimony of Mrs. LeBlanc in this regard was substantiated by the testimony of her husband, daughter, and treating physician. Dr. Schneider stated “Her problem has been one of continuing pain complex. It varies in some degree. It’s aggravated by any attempt to increase activity but she continues to have a consistent picture of disability referrable to her back with this secondary involvement of the left lower extremity.” The surgeon was convinced that plaintiff’s pain is genuine and stated that she will remain on medication for an indefinite period of time.

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

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    FIREMEN’S PENSION AND RELIEF FUND FOR the CITY OF LAKE CHARLES, Plaintiff-Appellee, v. William E. BOYER, Mayor of the City of Lake Charles, and City of Lake Charles, Defendants-Appellants.
    No. 82-202.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Peter A. Ciambotti, Lake Charles, for defendants-appellants.
    Cox & Cox, James J. Cox, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and YELYERTON, JJ.
   DOMENGEAUX, Judge.

Plaintiff, the Firemen’s Pension and Relief Fund for the City of Lake Charles, brought suit against the defendants, Mayor William E. Boyer, Chairman of the Fund, and the City of Lake Charles, seeking a declaratory judgment directing the City to grant service credits to five Captains of the Lake Charles Fire Department for time in which they had been temporarily discharged from their jobs. The defendants filed a dilatory exception of vagueness which was denied by the trial judge. All pertinent facts were stipulated to by the parties in the action. It was also stipulated that Mayor Paul Savoie, the successor to Mayor Boyer as Chairman of the Fund, be substituted as a party defendant in the action. From a judgment rendered as prayed for in favor of the plaintiff, the defendants have appealed.

The facts established in the trial court are as follows: Captains Leland Johnson, Gerald Kibodeaux, Hulin Landry, John Fon-tenot, and Louis Champagne were discharged from the Lake Charles Fire Department due to a reduction of the force on August 15, 1956, and were re-employed by the Department on January 15, 1957. The men were re-employed in the same jobs they had held prior to their dismissal. When they were re-employed, they were given a credit pursuant to the provisions of the Firemen’s Pension and Relief Fund Statute (Act No. 186 of the Acts of Louisiana, 1944) for service rendered from the time of their initial employment until the point of their dismissal due to reduction of the force. However, they were not given a credit for that period of time in which they had been laid off from their jobs.

On August 24, 1977, the Board of Directors of the Firemen’s Pension and Relief Fund for the City of Lake Charles voted to grant credit to the five Captains for the period of their layoff, provided that they pay all contributions into the Fund that they otherwise would have been required to pay had they not been laid off from their jobs. However, Mayor Boyer subsequently refused to grant the credit and to appropriate the funds for the pension benefits. It was this decision that caused the Board of Directors to file this declaratory judgment action against the municipality.

Appellants contend that the trial court erred in overruling the City of Lake Charles’ exception of vagueness to the plaintiff’s petition. This judgment was an interlocutory one since it did not determine the merits of the controversy, but only dealt with preliminary matters in the course of the action. See La.C.C.P. Art. 1841.

It is well settled in our jurisprudence that although an interlocutory judgment may itself not be appealable, it is nevertheless subject to review by an appellate court when a judgment which is ap-pealable is rendered in the case. See Nich olson v. Holloway Planning Go., 262 So.2d 176 (La.App. 1st Cir.1972). We have reviewed the petition of the plaintiff and the dilatory exception filed by the City of Lake Charles, and find no error in the trial judge’s decision. Therefore, we affirm his dismissal of the dilatory exception of vagueness.

The appellants next contend that the trial court erred in holding that a party who is laid off for less than four years from the Lake Charles Fire Department is entitled to a service credit toward pension benefits which accrued during such period of discharge. They claim that Section 15 a of Act 186 of 1944, when read in pari materia with other portions of the Act and with applicable provisions in the Civil Service statute, require such credits only for periods of time in which persons were actually performing “services” for the Fire Department. They submit that this section allows fund participants to claim credits only for that time which accrued prior to their dismissal, and not for the period of layoff, when they were not actually working for the Fire Department.

Section 15 a of Act 186 provides:

“Section 15. a. If any member of the said Fire Department should be discharged from the service for reasons of economy or reduction in force due to no fault of said member, and later should be reemployed by the said Fire Department, his rights to the privileges and benefits of this Act shall continue as from the date of original employment without any loss to rights and privileges due to such period of absence from services; provided, however, that such period of absence from service does not exceed four years; in the event the period of absence exceeds said period of four years, all rights and privileges under this act shall terminate.”

We do not agree with appellants’ position. Contrary to their contention, we feel that Section 15 a of Act 186 was designed to constitute an exception to the general rule that actual service is necessary for pension benefits to accrue. The provisions of Section 15 a are clearly limited to the specific criteria delineated therein, and are designed to provide a remedy for those situations in which a person’s absence from his job cannot be attributed to his own personal fault, but results from the economic and policy decisions of those persons in positions of authority.

Article 13 of the Civil Code provides:

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

See also La.R.S. 1:4.

It is our considered opinion that Section 15 a of Act 186 of 1944 is clear and unambiguous in providing that any member of the Lake Charles Fire Department who is temporarily discharged from his/her job for reasons of economy or reduction in force due to no fault of that member for a period of time not exceeding four years is entitled to the privileges and benefits of the Act as from the date of original employment. This conclusion must follow from the plain meaning of the statute, since any contrary interpretation would force the “... without any loss to rights and privileges due to such period of absence from services ...” provision to be read out of the statute.

Because we feel that Section 15 a of Act 186 is subject to only one reasonable interpretation, we find it unnecessary to consider the legislative intent of the redactors. Only when a statute is ambiguous and subject to two reasonable interpretations can the legislative intent be considered. Adoption of Edwards, 369 So.2d 210 (La.App. 3rd Cir.1979).

It is evident that the Board of Directors of the Firemen’s Pension and Relief Fund had statutory authority to grant service credit to the five Captains, and that the Board could require the men to contribute that portion which they would otherwise have had to pay had they not been laid off. Section 7(1) of the Act clearly grants such authority:

“The Board of Directors shall have control and management of said Firemen’s Pension and Relief Fund and shall make rules and regulations for the proper administration of said Funds not in conflict with the provisions of this Act, shall hear and decide all applications for benefits under this Act; and its decisions on such applications shall not be subject to review or reversal except by said Board itself, or upon appeal of the courts.”

Furthermore, Section 18 of the Act gives the Board the power to determine periods of service:

“The methods of computing the periods of service and seniority under this Act shall be determined by the Board of Directors and rules shall be passed by it relative thereto.”

Because the Board of Directors had statutory authority to order the City of Lake Charles to grant service credits to the five firemen in this case, Mayor Boyer erred in refusing to grant the credits. The trial judge was correct in decreeing that the firemen were entitled to those benefits accruing during the period of their discharge.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs at trial and on appeal are assessed against the defendants.

AFFIRMED.

      . Art. 14, Sect. 15.1 of the Louisiana Constitution of 1921, carried forward in Art. 10, Sect. 18 of the Louisiana Constitution of 1974.


author: LABORDE, Judge.

text:
    Billy W. WALLACE, Plaintiff-Appellee, v. Ava Brown WALLACE, Defendant-Appellant.
    No. 82-206.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      D.G. Brunson, Jonesboro and Jim W. Wiley, Winnfield, for defendant-appellant.
    Davis & Murchison, James D. Davis, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal by the mother, Ava Brown Wallace, from a judgment dated January 21, 1982, granting permanent custody of the minor child, David Wayne Wallace, age five at the time of the hearing, to his father, Billy W. Wallace. The issue on appeal is whether the granting of permanent custody to the father is in accordance with the best interest of the child. From our review of the record, we conclude that the trial court did not abuse its discretion in granting custody of David Wayne to the father. Hence, we affirm.

The Wallaces were married in 1969. Two children, David Wayne and Adelle Lynn, were born of the marriage. Billy obtained a judgment of separation from Ava in October of 1980 on the grounds of abandonment. After a hearing on the rule for custody, the court awarded permanent custody of David Wayne to Billy. Custody of Adelle Lynn was awarded to Ava. On October 7, 1981, Ava filed suit for divorce on grounds of living separate and apart for one year. Ava included in her petition a prayer for permanent custody of David Wayne and Adelle Lynn. Billy reconvened seeking custody of both children. On January 21,1982, the trial judge, for reasons orally assigned, awarded Ava Brown Wallace a divorce from Billy Wallace. The judgment split the custody of the two children between the parents. Billy Wallace was awarded permanent custody of David Wayne and Adelle Lynn remained under the custody of Ava Brown Wallace. Ava appeals only the judgment of custody.

Louisiana Civil Code Article 157 provides the applicable law concerning an award of custody. That article, in pertinent part, provides:

“A. In all cases of separation and divorce, ... permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children ... no preference shall be given on the basis of the sex of the parent where custody is awarded to only one parent...”

The issue on appeal then, is whether the trial court’s judgment granting permanent custody to the father is in the best interest of the child.

The standard of appellate review of custody cases was discussed by our Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The court announced:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco, [259 La. 1122, 254 So.2d 603] supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conelusion that certain evidence establishes a fact.”

Armed with the above, we now proceed to review the record.

Ava argues that it would be to the best interest of David Wayne not to be separated from his sister. The separation of children of a family though sometimes necessary, is a custodial disposition which courts seek to avoid. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (La.1969), Rose v. Rose, 177 So.2d 659 (La.App. 3rd Cir.1965). But the paramount question to be considered and answered in determining to whom the custody of the child should be granted is: What would serve the best interest of the child?

The record shows that both parents are loving parents who shared the responsibilities of caring for the children and attending to their needs. The facts show that David Wayne has lived with his father almost continuously since the parties separated in 1980, that his father also is fit and able to give the child a good home, and that the child is happy and well adjusted with his father. A court should consider the prior history of the child’s custody when asked to change custody. This consideration is only one of the many factors to be considered. Bordelon v. Bordelon, supra.

Billy obtained the family home in the property settlement. This home is located next door to Billy’s parents who help look after David Wayne. The house supplies sufficient accommodations for a young boy. David Wayne has lived there almost all his life.

The record disclosed that the parties had an agreement, to share the custody of both children. This agreement was implemented after the court split the custody in the separation judgment. Under the agreement David Wayne stayed Monday nights at his mother and Adelle Lynn stayed Tuesday nights with her father. The children rotated staying at each parent’s house every other weekend. Also, the children upon request could stay at either parent’s house. Therefore, the children were together four (4)days out of every week.

From the above facts, the trial judge concluded it would be to the best interest of both children that David Wayne remain in the custody of his father and that Adelle Lynn remain in the custody of her mother. The trial judge in his reasons, orally assigned, stated he hoped this decision would cause the agreement of the parties to be continued. We find no abuse of discretion in this decision.

On appeal, counsel for Ava urges that since the court found Ava fit by giving her custody of Adelle Lynn, custody of David Wayne must be awarded to her. In essence, counsel seeks application of the maternal preference rule. Louisiana Civil Code Article 157, as amended, does away with the maternal preference rule and any presumption in favor of the mother in a custody dispute. The father and mother stand on equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability of the competing parents in all respects to care for the child. Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir.1979).

We agree with the trial court, that under the facts and circumstances presented the best interest of the child would be served by permitting David Wayne to remain in the custody of his father.

For the reasons herein assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant, Ava Brown Wallace.

AFFIRMED.


text:
    John S. SMITH, et al, Plaintiffs-Appellees, v. CITY OF ALEXANDRIA, Louisiana, et al, Defendants-Appellants.
    No. 82-212.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Gist, Methvin, Hughes & Munsterman, Howard B. Gist, Jr., Alexandria, for defendants-appellants.

      Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellees.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This case was consolidated for trial with those of James A. Gauthier, et al. v. City of Alexandria, Louisiana, et al., 420 So.2d 1332 (La.App. 3rd Cir.1982) and Thomas C. Cardwell, et al. v. City of Alexandria, Louisiana, et al., 420 So.2d 1333 (La.App. 3rd Cir.1982). The cases have remained consolidated on appeal, and, as the law and relevant facts are common to all three suits, our opinion herein is equally applicable to each. Additionally, we render separate judgments in the other two consolidated cases.

This is a suit for a preliminary and permanent injunction filed by plaintiffs — ap-pellees, John S. Smith, R.C. Thomas, Alfred Olidge, and Local 1848 of American Federation of State and County Municipal Employees, AFL-CIO, against defendants, City of Alexandria, Louisiana, and Mayor Carroll E. Lanier, to enjoin enforcement of an executive order issued by Mayor Lanier reducing the work week of municipal employees from forty (40) to thirty-two (32) hours per week.

Several exceptions were filed by the defendants prior to trial. All of the exceptions were referred to the merits for adjudication. After trial, the district judge held in favor of plaintiffs and against defendants granting plaintiffs a preliminary injunction enjoining defendants from reducing the work hours and/or pay of the individual plaintiffs. Defendants have devolu-tively appealed to this Court.

The prevailing issues before us on appeal are: (1) Whether or not Mayor Lanier lacked authority to unilaterally alter or void the labor contract between the City and its employees; (2) Whether or not the trial judge erred in granting plaintiffs a preliminary injunction; and (3) Whether or not the trial judge erred in overruling defendant’s exceptions?

On March 3,1982, Mayor Lanier issued an executive order which stated that he was reducing the work week of municipal employees from forty (40) to thirty-two (32) hours per week. Included among the affected employees were the plaintiffs in this case, members of the plaintiff union. This action was taken by Mayor Lanier without any notice, agreement, or acquiescence on the part of the employees or their respective unions, and without approval by the Alexandria City Council. According to Mayor Lanier, the action taken was necessary in order to reduce expenditures because it appeared that there would be a temporary shortage of funds due to declining utility revenues.

Subsequently, on March 18, 1982, plaintiffs filed suit for an injunction to halt enforcement of the executive order, alleging that the order violated valid contracts existing between the unions and the City; that the Mayor lacked authority to unilaterally breach those contracts; and that the breach caused irreparable harm to plaintiffs.

Defendants cite La.R.S. 33:2921, La.R.S. 39:1311, and Section 5~05(C) of the Alexandria City Charter as granting legal authority for the Mayor to take any remedial action which he may deem appropriate to assure that expenditures do not exceed revenues in any fiscal period.

La.R.S. 33:2921 governing deposits and expenditures of funds of municipal corporations provides:

“No police jury nor any municipal corporation shall, in any one year, make any appropriation of, approve any claim against, or make any expenditure from the annual revenue for that year, if the appropriation, approved claim, or expenditure, separately or together with other appropriations, approved claims, or expenditures, is in excess of the estimated revenue of that year.”

La.R.S. 39:1811 provides in pertinent part:

“During the fiscal year, no office, department, board, commission, or other spending agency shall expend or contract to expend any money, or incur any liability, or enter into any contract which, by its terms, involves the expenditure of money for any of the purposes for which provisions are made in the appropriation ordinance or resolution, in excess of the amounts appropriated in said ordinance or resolution for such office, department, board, commission, other expending agency, or purpose for such fiscal year. Any expenditure or contract, verbal or written, made in violation of this Section shall be void and no monies belonging thereto shall be paid thereon. Any official of a political subdivision who knowingly authorized or made such payment or incurred such obligation or caused such payment or disbursement to be authorized or made such obligation to be incurred also shall be liable to the political subdivision for any amount so paid.”

Section 5-05(C) of the Alexandria City Charter provides:

“If at any time during the fiscal year it appears to the Mayor that the revenues available will be insufficient to meet the amount appropriated, he shall report to the Council without delay, indicating the estimated amount of the deficit, any remedial action taken by him and his recommendations as to any other steps to be taken. The Council shall then take such further action as it deems necessary to prevent or minimize any deficit. The Council may, by ordinance, reduce any appropriation at any time.”

We view La.R.S. 33:2921, supra, to mean that no appropriation may be made during the year which is in excess of estimated revenues for that year. Likewise, La.R.S. 39:1311 merely bans spending or contracting to spend, by any agency, money in excess of that appropriated to it. At the time the budget for the fiscal year 1981-1982 was drafted, appropriations were made for the salaries of the city employees, and the appropriations made were not in excess of the estimated revenues for that period, nor did the City spend in salaries more than was appropriated to it.

Although Section 5-05(C) of the Alexandria City Charter, supra, appears to grant the Mayor authority to take remedial measures to prevent deficit spending, we find that the Mayor is not authorized to take remedial actions altering, or voiding city employees’ labor contracts.

The authority of the City to enter into labor contracts with municipal employees through union representatives is specifically recognized in Section 7-04 of the Alexandria City Charter.

This section provides in pertinent part:

“A. The right of City employees to be represented by union organization(s) for the purpose of collective bargaining with reference to wages or working conditions is hereby recognized.
“B. Any negotiations by the City with any such employee union representatives shall be by the Mayor or his designate. Final approval of any labor contracts with municipal employees shall rest with the City Council.”

A reading of the above cited provision clearly recognizes the City Council as the authorative body for entering into labor contracts with the city employees. The Mayor merely acts as the City representative in labor negotiations. Consequently, we agree with the district judge who found that the Mayor overstepped his authority when the remedial actions he unilaterally undertook affected areas beyond the perimeters of his domain. We do not hesitate, however, to state that Mayor Lanier acted in complete good faith in the action which he took, and was guided only by an honest attempt to alleviate a serious fiscal deficiency which existed in the City government which he headed.

Having concluded that the Mayor was without power to alter or avoid the city employees labor contract, was an injunction properly issued by the district court? We think so.

Defendants’ position, i.e., that the granting of the injunction was in error, rests upon the general proposition that an injunction should not issue unless irreparable injury can be shown. In this case, the court below based its grant of the injunction on two grounds. First, the trial judge found as a matter of fact that plaintiffs proved irreparable injury. Secondly, having found that the Mayor lacked authority to unilaterally violate the terms of the contract, the district judge granted the injunction to enjoin a violation of a prohibitive law.

Upon review of the record we feel that the court below erred in finding that plaintiffs faced irreparable injury. The record simply does not lend itself to finding that plaintiffs’ harm could not be adequately compensated in monetary damages. However, we agree with the trial judge’s findings that the Mayor’s conduct was not allowed by law.

As previously discussed, section 7-04 of the Alexandria City Charter places labor contracting authority in the City Council. Implicit in that provision is that the Mayor lacks power to alter, modify or terminate labor contracts, inasmuch as that authority rests solely in the City Council. Mayor Lanier admitted at trial that his actions were taken without prior approval of the City Council, contrary to the City Charter. In such a situation our jurisprudence does not require that a plaintiff in an action such as this prove irreparable injury. If a plaintiff can prove that defendant’s conduct is reprobated by law, (in this case the Mayor’s violation of the City’s Charter) then plaintiff is entitled to an injunction restraining the illegal acts of the defendant. Caffery v. Powell, 320 So.2d 223 (La.App. 3rd Cir.1975); Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir.1972).

Finally, the defendants contend that the trial court erred in overruling their dilatory exceptions of prematurity, lack of procedural capacity, vagueness, ambiguity, and unauthorized use of summary proceedings. We have reviewed the record as well as the reasons given by the district judge in conjunction therewith. We find no error in the judgment below overruling defendants’ exceptions.

For the above and foregoing reasons the judgment of the district court is affirmed.

Costs on appeal are to be assessed against defendants-appellants.

AFFIRMED.


text:
    James A. GAUTHIER, et al, Plaintiffs-Appellees, v. CITY OF ALEXANDRIA, Louisiana, et al., Defendants-Appellants.
    No. 82-213.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Gist, Methvin, Hughes & Munsterman, Howard B. Gist, Jr., Alexandria, for defendants-appellants.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellees.

      Before DOMENGEAUX, DOUCET and YÉLVERTON, JJ.
   DOMENGEAUX, Judge.

For the reasons assigned in the ease of John S. Smith, et al. v. City of Alexandria, Louisiana, et al., 420 So.2d 1329 (La.App. 3rd Cir.1982), the judgment of the district court is affirmed.

Costs on appeal are to be assessed against defendants-appellants.

AFFIRMED.


text:
    Thomas C. CARDWELL, et al., Plaintiffs-Appellees, v. CITY OF ALEXANDRIA, Louisiana, et al., Defendants-Appellants.
    No. 82-214.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Gist, Methvin, Hughes & Munsterman, Howard B. Gist, Jr., Alexandria, for defendants-appellants.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiffs-appellees.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

For the reasons assigned in the case of John S. Smith, et al. v. City of Alexandria, Louisiana, et al., 420 So.2d 1329 (La.App. 3rd Cir.1982), the judgment of the district court is affirmed.

Costs on appeal are to be assessed against defendants-appellants.

AFFIRMED.


author: YELVERTON, Judge.

text:
    Delores Faye Prejean VINCENT, Plaintiff-Appellee (Defendant in Rule), v. Cleveland Paul VINCENT, Defendant-Appellant (Plaintiff in Rule).
    No. 82-217.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Dean, Lomenick & Seemann, Gregory B. Dean, Lafayette, for plaintiff-appellee.
    Bennett LaPoint, Lake Arthur, for defendant-appellant.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Cleveland Paul Vincent appeals from the dismissal of his rule seeking custody of his two and a half year old child, Cody Allen Vincent.

Cleveland and Delores Vincent were married in 1978. In July of 1981 the trial court awarded a judgment of separation on the ground of mutual fault and granted the wife uncontested permanent custody of Cody. In February of 1982 the father filed a rule to change custody. That rule, the subject of the present appeal, was tried and dismissed on March 3, 1982.

The basic facts are not in dispute. At the time of the hearing Mrs. Vincent was engaged in an adulterous relationship with Donald Dugas. Both Mrs. Vincent and Du-gas testified that they were living together in a three bedroom apartment in an area known as “the projects” in Lake Arthur. Both testified that they slept together and engaged in sexual intercourse. Further testimony revealed that Cody slept in the same room with the couple, but the couple testified they made sure the child was asleep before engaging in any sexual activity. Mrs. Vincent stated that she did not think her relationship with Dugas was improper. Mr. Dugas stated that they had never discussed marriage but that he “guessed” they would marry when the time was right.

The record reveals that Mrs. Vincent has had a drinking problem which has caused her some difficulties with the law. In the summer of 1981 she attempted to take Cody into a local bar but was told to leave. In September of that year she was arrested for simple drunk and disturbing the peace. In November she was arrested for slashing a tire at a local bar. She testified that she was intoxicated at the time and that the child Cody was present. She was subsequently ordered by the criminal court to seek psychiatric help. Mrs. Vincent testified that she has sought treatment at Central Louisiana Hospital and the Mental Health Clinic in Lake Charles. She further testified that she now has her drinking problem under control.

As to Mr. Vincent’s circumstances, at the time of the hearing he was employed by International Mooring & Marine and worked offshore on a seven days on and seven days off shift. He was living in an apartment in Lake Arthur. However, he testified that if he were awarded custody of Cody he intended to reside with his mother and seek a regular land-based job. The paternal grandmother resides in Cameron Parish in a four bedroom house. She is 45 years old and has raised seven children; the youngest of whom (a 14 year old daughter) still resides with her. She testified that she is in full agreement with her son’s plans to move in with her. Mr. Vincent testified that when he has had visitation with Cody he has regularly taken him to the boy’s paternal grandmother’s home. The latter stated that her son does not drink around his child on these visits and has acted “wonderful”.

Other evidence regarding Mr. Vincent’s fitness as a father included testimony that he has also been seen in local bars in the Lake Arthur area. A month before the change of custody heai’ing he struck a man in the bathroom of the Nitecap Lounge. Mr. Vincent testified he did it because the man was smoking marijuana and refused to leave. Although the police investigated, Mr. Vincent was not arrested as a result of this incident. In November or December of 1981 he was engaged in a truck race with a friend, and got a ticket. The child was not with him on this occasion. There was some evidence that he had once taken Cody along on a trapping trip while the child had an ear infection.

The first issue presented on this appeal is whether the trial court erred as a matter of law in applying the “double burden” rule in determining whether a change of custody was warranted under the facts. In his reasons for judgment allowing the mother to retain custody, the trial court, relying on James v. Spears, 372 So.2d 617 (La.App. 1 Cir.1979) and Doyle v. Doyle, 371 So.2d 344 (La.App. 4 Cir.1979), applied the double burden standard. The trial court held the father to the burden of proving not only that the existing circumstances were harmful to the physical or moral welfare of the child, but also that the father could provide better and more advantageous living conditions. The trial court did not come to any firm conclusion as to whether the father had carried his burden of proof regarding whether conditions in the mother’s custody were deleterious to the child’s welfare. However, the trial court concluded that the father had failed in his burden of proving that a change of custody could provide a better environment. The rule was dismissed for this reason.

The rigid and inflexible “double burden” of proof in change of custody cases has been overruled statutorily and jurispruden-tially. La.C.C. Art. 157 and Bordelon v. Bordelon, 381 So.2d 871 (La.App. 3 Cir. 1980); affirmed, 390 So.2d 1325 (La.1980). Louisiana law now requires simply that custody, including a change of custody, be granted in accordance with “the best interest of the child”. La.C.C. Art. 157.

Since the trial court committed error of law in holding the father to an incorrect standard of proof, and since his decision herein was based upon the failure to meet that standard, the trial court’s decision to leave the child in the mother’s custody is not entitled to the great weight normally accorded custody decisions on appellate review. The legal error deprives the judgment of the presumption of factual correctness it would otherwise possess. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980). Under these circumstances where the record is complete and no purpose can be served by a remand, it is our responsibility to review the whole record and render judgment. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Our responsibility in the present case is to make a determination of custody in accordance with the best interest of the child.

Based on our review of the record, our general assessment of the parental credits possessed by these parties is that neither of them is a model parent. We agree with the trial court that as far as material values are concerned the circumstances of the child will not be improved by changing custody to the father. However, we consider that the immoral influence to which the child is exposed in the mother’s custody, demonstrated not only by the fact that the mother has continued to live in an open and public adulterous cohabitation with her paramour, but also by the mother’s attitude that there is nothing wrong with her conduct, is such a serious and damaging influence on the proper upbringing of the child that the mother should be declared unfit and custody changed to the father.

Louisiana courts have always adhered to the belief that a child learns by example from parents and that a parent’s utter disregard for moral guidance and social standards is certain to affect a child adversely. Applying this principle, the courts have consistently held that where a mother lives in open and public adultery with her paramour in total disregard of the moral principles of our society, she is morally unfit to maintain custody of her children. Shackleford v. Shackleford, 389 So.2d 825 (La.App. 3 Cir.1980). The Shackleford court observed, however, that our Supreme Court has tempered this general rule with its adoption of the “reformation rule”, citing Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Monsour v. Monsour, 347 So.2d 203 (La. 1977), and Atteberry v. Atteberry, 379 So.2d 18 (La.App, 3 Cir.1979), writ granted, 381 So.2d 1231 (La.1980). The “reformation rule” means simply that if the parent has reformed — changed a prior course of immoral conduct and attitudes to such an extent that the deleterious influence no longer exists — the parent is not unfit.

A case more recent than those cited above is Bonner v. Bonner, 408 So.2d 995 (La.App. 2 Cir.1981). It involved a factual situation not unlike the instant facts. The child was two and a half years old. The mother began an adulterous affair before the marriage broke up. Subsequently the couple and the child moved into the apartment. This arrangement continued for about six weeks until five days before the trial, when the paramour moved out in order to avoid prejudicing the mother’s chances of retaining custody. The couple testified that they had discussed the possibility of getting married once their divorces were final. The mother testified that she saw nothing wrong with living with her paramour but stated that in the future she would not allow him to remain overnight in the apartment. The trial court found the mother morally unfit and awarded custody to the father. The Second Circuit determined that the trial court did not abuse its discretion considering the mother’s attitude about her conduct. The court stated that “a child learns by example, and a mother’s disregard for moral guidance and social standards can but harm the child”, and noted that “the mother’s conduct discloses no basis to believe she has truly reformed and would give good moral guidance to her young daughter in the future”.

The latest case on the subject is Bagents v. Bagents, 419 So.2d 460 (La.1982) (No. 82-C-0183, September 7, 1982). There the mother in custody of a five year old child was living with another man in an apartment. A week before trial of the rule brought by the father to change custody, the mother moved out on the advice of counsel to help her case. She testified at the trial of the rule that she saw nothing wrong with her conduct. Based on the mother’s overall character and fitness, the trial judge granted a change of custody. The mother then immediately married her paramour and moved for a new trial. The trial judge refused to recall the change of custody because the marriage did not represent a change in the mother’s moral values or a desire to reform. The court of appeal affirmed, 408 So.2d 393 (La.App. 1 Cir.1981). The Supreme Court granted writs then affirmed being unable to say that the trial court erred as a matter of law in deciding that a change of custody was in the child’s best interests. Although the majority of the court affirmed the decision of the trial court and the court of appeal on the technical basis that there was no manifest error, it was explicit in the decision of the majority that the principles recited in the Shackleford case, supra, are still the law.

In the present case we have the facts of a mother living in open and public adultery with another man and the two and a half year old child sleeps in the same bedroom with them. This conduct was being carried on at the time of the trial of the rule to change custody. The mother testified that she sees nothing wrong with the relationship. The subject of her marriage to her paramour has not even been discussed. Thus here we have not only a continuation of the open and public immoral relationship in the very presence of the child, but the mother also indicates that she has no intent or desire to reform. Clearly, it is in the best interests of this child that it be removed from its mother’s custody.

For these reasons, the judgment of the trial court is reversed and judgment is rendered granting custody of Cody Allen Vincent to his father, Cleveland Paul Vincent, subject to reasonable rights of visitation with the mother, Delores Vincent. Judgment is further rendered that the award of child support to the mother is hereby terminated upon final judgment of this decision. All costs, at trial and on appeal, are assessed against appellee, Delores Vincent.

REVERSED and RENDERED.

DOMENGEAUX, J., concurs in the result.

      . La.C.C. Art. 157 states in pertinent part:
      “Art. 157 Custody and tutorship of children; visitation rights of grandparents
      “A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children; however, an award of joint custody may be granted only when the husband and wife are both domiciled in the state of Louisiana. If either parent changes his or her domicile to another state, the other may petition for sole custody. No preference shall be given on the basis of the sex of the parent in cases where custody is awarded to only one parent. Such custody hearing may be held in private chambers of the judge.”

        . In Fulco, the mother had terminated her adulterous relationship and was living with her parents at the time of the trial of the rule to change custody. In Monsour, at the time of trial of the rule to change custody the mother had married the man with whom she had formerly had an immoral relationship. The Supreme Court found in both these cases that the mother had reformed and was no longer morally unfit. In Atteberry, the Supreme Court remanded to the trial court for a determination of whether the mother and her paramour had married (there was evidence at the trial of the rule to change custody that they intended to marry), so that the trial judge could consider the case in light of the reformation rule.


text:
    Arvin L. DAILY, Plaintiff-Appellee, v. BECHTEL POWER CORPORATION, Defendant-Appellant.
    No. 82-153.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Stockwell & Associates, John S. Bradford, Lake Charles, for defendant-appellant.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

In this worker’s compensation case, the trial judge found that plaintiff Arvin L. Daily suffered a light stroke on August 14, 1980, while at work. Within an hour of the first incident and while he was in the hospital emergency room, he suffered a second light stroke. He never returned to work. Two weeks from the initial incident, he suffered a third, major stroke, which left him totally and permanently disabled. The trial court concluded that the circumstances were such that a causal relationship could be inferred because there was proof of an accident at work and ensuing disability with no intervening cause. He awarded benefits at the rate of $163 a week beginning August 14, 1980, during disability, Penalties and attorney’s fees were denied. Only the defendant appeals. We affirm.

The defendant questions the trial court’s conclusions as to: (1) the accident, (2) causation between the job/work stress and the accident, and (3) causation between the accident and disability. These are the three issues on appeal.

Since this case was decided in the trial court, our Supreme Court has rendered four important decisions refining the law as it bears on the subject matter issues presented by this appeal. These cases are Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982); Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1982); Guillory v. United States Fidelity & Guaranty Ins. Co., 420 So.2d 119 (La.1982), and Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982).

We will first narrate the basic facts, then we will take up the issues presented by this appeal. We will consider the impact of the above decisions on these facts as we discuss the issues.

Plaintiff, 59, a carpenter for Bechtel Power Corporation at its plant in Westlake, Calcasieu Parish, had been working several hours on August 14, 1980 moving and sawing boards, and shoring up an embankment. At mid-afternoon he and his co-worker, Richard McNabb, paused from their work and were standing beside the embankment. Suddenly plaintiff became faint and pale, began to stutter badly, and asked for help. He could not stand or walk unassisted. McNabb tried to support him to the shop, but plaintiffs legs were giving out and he wanted to go in the wrong direction. McNabb hailed a passing truck. Plaintiff was taken to the first aid station, given oxygen, then removed by ambulance to St. Patrick Hospital in Lake Charles. By the time he got to the emergency room, perhaps 30 minutes after the initial episode, he was all right. The emergency room nurse called Dr. Looney, telling him only that a patient was there who had had a fainting spell, but that the patient was then all right. The doctor told the nurse to release him to go home. Minutes later, the nurse called Dr. Looney again, telling him that the patient was unable to move his arm and leg and was exhibiting facial weakness and slurred speech. The nurse felt these symptoms indicated a classic ischemic attack. Based on what the nurse told him, Dr. Looney countermanded his order to send the patient home; instead, he ordered him put in intensive care.

The doctor then called in Dr. Woodard, an internist. In the intensive care unit these doctors saw plaintiff for the first time. He had returned to normal from the second attack by the time they actually saw him. The second attack was “pretty bad”, said Dr. Looney, according to their understanding of the symptoms, and the doctors were concerned about it. However, the physical examination performed at that time was normal except for mildly elevated blood pressure.

Plaintiff was kept in the hospital for three days. During that time further tests were run and an arteriogram revealed diffused arteriosclerotic changes (diffused hardening of the arteries) in the arteries on the right side of the brain supplying the area of the brain which controls the functions of the left side of the body. The formal name for this condition is arterio-sclerotic cerebral vascular disease. The tests also determined that he had suffered no permanent damage from the two events at work and in the hospital. The doctors described these events as transient ischemic attacks, in lay terms called light strokes or mini-strokes.

According to the medical testimony an ischemia occurs when there is insufficient oxygen to the brain. A transient attack will leave no damage because the oxygen supply has not been cut off long enough to cause damage. A person suffering a transient ischemic attack will be no worse off afterwards. Dr. Looney likened transient ischemia to angina pectoris. He said both were symptoms, transient ischemia manifesting itself in a temporary oxygen deficiency to the brain, caused by arteriosclerosis in the vessels leading to the brain and angina manifesting itself in temporary oxygen deficiency to the heart muscle, caused by arteriosclerosis in the vessels leading to the heart. Transient ischemia does not cause damage to the brain cells, and angina pectoris does not cause damage to heart muscle; hence, according to the medical testimony, the patient is no worse off after the attack than before. The incidents of attack are manifestations of a pre-existing disease. The doctors said that plaintiff’s arteriosclerotic cerebral vascular disease pre-existed the incident on the job. Plaintiff’s condition could not be corrected by surgery.

When plaintiff was discharged from the hospital three days after he was admitted, both doctors felt that he was a sure candidate for future strokes. It happened as they predicted; two weeks later he suffered a major stroke. He has been disabled ever since.

ACCIDENT

The first issue raised by defendant is whether the attack suffered by plaintiff was an accident.

An accident is defined in La.R.S. 23:1021(1) as

“... an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.”

In Guillory v. United States Fidelity & Guaranty Ins. Co., supra, plaintiff suffered a fainting spell related to the aortic valvular stenosis caused by a deficiency in the amount of blood reaching the brain, remaining unconscious for several minutes. This was an accident. In Adams v. New Orleans Public Service, Inc., supra, plaintiff suffered an attack of angina pectoris, or chest pain, caused by an insufficient supply of oxygen to the heart muscle. This was an accident. Likewise, in the instant case Daily suffered stuttering, weakness, faintness, paleness, disorientation and inability to stand and walk unassisted. The event was not gradual, but sudden, and plaintiff’s coworker could tell by looking at him that something had happened to him. He had an accident.

CAUSATION BETWEEN THE JOB/ WORK STRESS AND THE ACCIDENT

The second issue is whether work related stress or exertion preceding the initial is-chemic attack bears a causal relationship to that attack. In resolving this issue, the case of Guidry v. Sline Industrial Painters, Inc., supra, is instructive. In Guidry, the plaintiff performed physical and fairly strenuous work before lunch which included painting and bracing a ladder. After lunch he continued his work until 2:00 P.M. when he stopped for a smoke break. It was during the break while he was sitting down smoking a cigarette that he suffered a heart attack from which he later died. In concluding that a heart attack must be causally related in part, however slight, to the accident, the Supreme Court stated:

“There is admittedly real difficulty in proving or disproving work related causation in heart accidents because of the fact that a pre-existing vascular infirmity can produce disability irrespective of outside influences. Nonetheless, considering the often divergent and uncertain views of medical practitioners and the necessarily different perspectives of doctors and lawyers on this problem in compensation cases, (footnote omitted) we have decided in prior cases that work related stress or exertion preceding a heart attack bears a-causal relationship to that heart attack, at least in part, even where there is a pre-existing heart disease.
“There is no presumption, however, that a vascular accident occurring on the job is caused by the employment. There must be a causal link between the employment, or the work, and the accident. And of course, the law imposes upon the plaintiff in compensation cases, as it does in other civil cases, the burden of proving that causal link by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974).
“This burden of plaintiff’s is to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to the heart accident. Anything less and it can hardly be said that the accident arose out of the employment or that the employment in any measure contributed to the accident.”

The Supreme Court then concluded based upon the medical testimony that a causal relationship between the work and the heart attack had been established.

In the present case plaintiff had the burden to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to his accident at work. The trial court found such a relationship and we agree. We do not have a medical opinion in the record regarding causation between plaintiffs work/stress and the is-chemic attack on the job. This is because no doctor was made aware of the symptoms, other than dizziness, displayed by plaintiff at the job site.

The only testimony in the record which assists us in making this determination of causation is that of Dr. Looney. He was asked if he could establish some relationship between hard work and the plaintiff’s subsequent ischemic attack in the hospital. His response was prefaced by a gratuitous hypothetical: if plaintiff was on the job doing hard work and “developed slurred speech, inability to move his arm or leg, then I might be tempted to put some causal relationship ...” His response to the question was that since the emergency room ischemic attack happened in the hospital, estimated by him to be 45 minutes to an hour after he left the job, the doctor could not believe there was a causal relationship present. The inference is clear: had the doctor been aware of the symptoms exhibited at the job site, based on which an is-chemic attack must logically be deduced, and the close relationship in time between the attack and the work being performed, he would have found a direct relationship.

We conclude that there was a relationship between the work/stress and the episode suffered on the job.

CAUSATION BETWEEN THE ACCIDENT AND DISABILITY

The final issue is whether the job related accident caused or contributed to the disability.

It is undisputed that plaintiff is presently disabled. He was seen by Dr. Roy Harding on July 31, 1981 who found that he was indeed the victim of a major stroke. He is partially paralyzed on the left side. He drags his left foot when he walks. He has poor coordination. Plaintiff’s testimony was that when he returned to the Bechtel offices on August 29 to pick up his tools, he suffered the stroke that left him in his present condition. All three of his strokes occurred in the month of August, 1978. Dr. Looney had no notes but he testified that he remembered that plaintiff had suffered the major stroke, which did not surprise him at all. Lay witnesses testified that plaintiff’s present condition goes back to August of 1978.

Defendant does not seriously dispute plaintiff’s present condition or its duration. Defendant’s argument is that the ischemic attacks, whether one or two, suffered by plaintiff on August 14,1978 were transient, which by medical definition means that they passed without doing any damage, and that plaintiff was in exactly the same medical condition after the attacks as he was in before. Defendant argues that all that changed as a result of the ischemic attacks on August 14 is that afterwards plaintiff and the doctors knew that he had diffused arteriosclerosis in the vessels leading to the brain, whereas before the episode they did not know he suffered from that condition. In other words, defendant argues that a transient ischemic attack is but a symptom of the pre-existing arteriosclerosis and that a symptom cannot of itself be the cause of disability.

This argument was considered and rejected in Guillory v. United States Fidelity & Guaranty Ins. Co., supra, which involved an aortic stenosis situation, where work stress prompting an unsatisfied need for blood to the brain precipitated fainting. The same argument was also presented, and rejected, in the case of Adams v. New Orleans Public Service, Inc., supra, where angina pectoris, or heart pain, was precipitated by an unsatisfied need for blood into the heart.

Although Dr. Looney testified that he could not assign the on-the-job accident as the cause of plaintiff’s problems, it is clear when read in the context of his whole testimony that he was referring to a causation relationship between the work and hardening of the arteries. The law is clear that plaintiff is not required to prove that the employment caused his arteriosclerosis. See Adams v. New Orleans Public Service, Inc., supra.

The latest expression of the Supreme Court on this subject is Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982), where the court stated:

“The fact that a condition is pre-existing does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee’s disability is compensable if a pre-existing disease or condition is activated or precipitated into disabling manifestations as a result of a work accident.”

In the present case Daily was not disabled prior to the accident but he has been disabled since the accident. The accident was the first time plaintiff suffered from the symptoms of paralysis and slurred speech. Approximately an hour after the initial incident the plaintiff suffered a similar incident. At the hospital the plaintiff was diagnosed for the first time as having arteriosclerotic cerebral vascular disease. Two weeks later plaintiff suffered a stroke totally disabling him. It is clear from, these facts that plaintiff’s pre-existing disease was activated into disabling manifestations by the accident. Therefore we cannot state that the trial court was clearly wrong in finding that the accident caused the disability.

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

AFFIRMED.

      . The doctors were knowledgeable of only the one ischemic attack that occurred in the hospital. Their knowledge of this incident was based on what the emergency room nurse told them, as they were not present when it occurred. They were under the impression that the episode at work was accompanied only by symptoms of faintness which by itself, they said, would not suggest an ischemic attack. The actual description by his fellow worker of plaintiffs symptoms at the job site, as well as plaintiffs testimony that he felt the same on both occasions, indicate that plaintiff had an ischemic attack at the job site as well. The trial judge found that Daily exhibited basically the same symptoms on the job as in the hospital. From our review of the record, we cannot say that the trial court was clearly wrong in this factual finding.

      . Although Dr. Woodard testified that the dizziness and faintness at work was easily related to plaintiffs work, this opinion was formulated on the assumption that such accident was merely a dizzy spell.


author: CULPEPPER, Judge.

text:
    Judith Ann Hattaway ZEIGLER, Plaintiff & Appellee, v. Clyde W. ZEIGLER, Defendant & Appellant.
    No. 82-154.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Davis & Murchison, James D. Davis, Alexandria, for defendant and appellant.
    Michael H. Wahlder, Alexandria, for plaintiff and appellee.
    Before CULPEPPER, GUIDRY and LA-BORDE, JJ.
   CULPEPPER, Judge.

The husband seeks to annul the prior judgment of partition of the community insofar as it awarded the wife a portion of the husband’s military retirement pay. The trial court rejected the husband’s demand. From that judgment, the husband appeals.

FACTS

The parties to this suit were married on October 6,1962. They were judicially separated on September 22, 1978. Mrs. Zeigler subsequently filed suit for partition seeking a division of the community of acquets and gains formerly existing between the spouses. Judgment in that suit was signed July 16,1979 ordering partition of the community property in accordance with law, and further rendering judgment in favor of Mrs. Zeigler and against Mr. Zeigler, ordering Mr. Zeigler to pay to his wife a monthly sum representing her interest in his military retirement pay. Mrs. Zeigler’s community interest in the monthly pension was computed following the formula of Sims v. Sims, 358 So.2d 919 (La.1978). The defendant-appellant failed to apply for a new trial or to perfect an appeal.

On June 26, 1981, the United States Supreme Court rendered an opinion in the case of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, 1981 holding that federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws. Following this decision, Mr. Zeigler filed a pleading captioned “Petition To Modify Judgment,” praying that that portion of the judgment condemning him to divide his military retirement benefits with his former wife be declared a nullity. After a hearing on the matter, the trial court rendered judgment dismissing the demands of Mr. Zeigler, who now appeals, contending that the trial court committed manifest error in dismissing his suit.

ALTERATION OF FINAL JUDGMENT

The trial court dismissed the petition on the grounds that a final judgment, even if erroneous in law, must stand, and that there were no allegations or proof of fraud or ill practices to serve as a basis for annulment of the previous judgment. See Fidelity & Casualty Company of N.Y. v. Clemmons, 198 So.2d 695 (La.App. 1st Cir.1967), writ denied 202 So.2d 649 (La.1967); Levy v. Stelly, 254 So.2d 665 (La.App. 4th Cir. 1971), writ denied 260 La. 504,256 So.2d 289 (La.1971); LSA-C.C.P. article 2004. We affirm.

As the trial judge noted in his written reasons for judgment, in the absence of a timely application for a new trial, the trial court cannot alter the substance of its judgment after the delays for applying for a new trial. Moreover, no court can alter the substance of the judgment after the time for appeal has elapsed without an appeal having been taken. Mitchell v. Louisiana Power & Light Company, 380 So.2d 743 (La.App. 4th Cir.1980).

A final judgment may be modified pursuant to the authority of LSA-C.C.P. article 1951 which provides;

“Art. 1951. Amendment of judgment
A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.”

This article allows amendment of the judgment only where that amendment takes nothing away from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448 (La.1978).

The prayer of the petition asked that that portion of the judgment condemning Clyde Zeigler to divide his military retirement benefits with his former wife be declared a nullity. The grounds for annulment of a final judgment are stated in LSA-C.C.P. articles 2002 and 2004 as follows:

“Art. 2002. Annulment for vices of form; time for action
A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law;
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against- whom a valid judgment by default has not been taken; or
(3) By a court which does not have jurisdiction over the subject matter of the suit.
“Art. 2004. Annulment for vices of substance; peremption of action
A final judgment obtained by fraud or ill practices may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

None of the grounds for annulment of a judgment have been alleged or proven in the instant case. Furthermore, it is well settled that an action of nullity may not, by raising errors of law, serve as a substitute for an appeal. See Johnson v. Jones-Journet, 320 So.2d 533 (La.1975). Thus, there is no authority under which to nullify the judgment in question.

In his brief, appellant contends the effect of the trial court’s decision is that the prior judgment is res judicata as to the instant suit. He then argues that the prior judgment is not res judicata to the present suit since the “cause” is not the same in the two suits.

Res judicata is not an issue in the present suit to annul a portion of the prior judgment of partition. No exception of res judicata was filed by the wife in the present proceedings, and under LSA-C.C.P. article 927 the objection of res judicata must be specially pleaded and cannot be noted by either the trial or appellate court of its own motion. Moreover, even if the wife had filed an exception of res judicata it would probably have been overruled. The jurisprudence is established that in a suit to annul a prior judgment, such judgment itself cannot be urged as res judicata to itself. Powell v. Treat, 265 So.2d 678 (La.App. 2d Cir.1972) and the cases cited therein.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


text:
    Tracy SCOTT, Jr., Plaintiff-Appellant, v. BOLAN FORD, INC., Defendant-Appellee.
    No. 82-160.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for plaintiff-appellant.
    Cook, Yancey, King & Galloway, Steven H. Beadles, Shreveport, for defendant-ap-pellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This tort suit was instituted by plaintiff, Tracy Scott, Jr., against defendant, Bolán Ford, Inc., for damages arising out of a one-vehicle accident which occurred on March 21, 1980, just north of Campti, in Natchitoches Parish, Louisiana.

Prior to the date of the accident plaintiff had purchased an automobile from defendant, who operates his car dealership in Coushatta, Louisiana. Thereafter, on the date of the accident, plaintiff brought his automobile back to defendant for servicing and repairs, whereupon, defendant loaned plaintiff a 1975 Ford pickup truck. Plaintiff contends that while he was driving the loaned vehicle, the steering wheel suddenly and without warning began to “free-wheel” (i.e., spin freely without any control on the front tires) causing the truck to run off the highway through a ditch, and eventually run into a pine tree on the side of the road. Conversely, defendant contends that the sole cause of the accident resulted from plaintiff’s own negligence in driving while intoxicated. In response to defendant’s intoxication allegations, plaintiff claims that he was not intoxicated when the accident occurred, but rather he consumed one-half pint of whiskey given to him by his wife after the accident while in transit to the hospital in an ambulance. Trial was held in this matter on June 23rd and 24th, 1981. Two witnesses did not appear, and the trial was held open for their testimony through deposition. The district court rendered a written opinion on November 16, 1981, and on December 8, 1981, judgment was signed dismissing plaintiff’s demands at his cost. We affirm.

The issues posed by this appeal are primarily factual:

(1) Whether or not the pickup truck which plaintiff was driving was defective;

(2) Whether or not the trial court erred in finding that plaintiff’s wife had no opportunity, and did not administer whiskey to her husband during the ambulance ride from the scene of the accident to Shreveport; and

(3) Did the trial court err in deciding the case before it was submitted.

The district Judge in a written opinion addressed the issue of the parties’ negligence as follows:

“The trial of this case lasted two days and involved numerous witnesses, including three persons submitted as experts; namely Andy Anderson; Raymond Cooper, Criminologist at the Northwest Louisiana Crime Laboratory, and Ray Heard, Supervisor of the Crime Lab. Without having to review all of the testimony, the Court finds the plaintiff started drinking beer shortly after 7:00 A.M. on the date in question; that he continued drinking beer at a beer joint known as Smitty’s in Coushatta and at a place called Shavers in Campti, and the Court finds that the plaintiff was voluntarily intoxicated and that the sole and proximate cause of the accident was the negligence of the plaintiff in failing to maintain control of the defendant’s pickup truck; in driving a vehicle in an intoxicated condition, and the Court finds the defendant to be entirely free of negligence, and specifically holds that there was nothing wrong mechanically with the steering mechanism or any other part of the pickup truck loaned by defendant to the plaintiff.”

At trial defendant introduced evidence relative to the truck’s condition via the testimony of Roy Nolan, an automobile mechanic for over thirty years, Rodney Dowden, defendant’s service manager, and Herman Long, defendant’s parts manager. In essence these gentlemen testified that their post accident inspections of the truck showed no signs of a defect that would cause the steering wheel to spin freely. According to these witnesses, the only event which could cause such a condition would be the disconnection of the tire rods or pittman arm, however, all agreed that both were still intact upon their inspections. Plaintiff, on the other hand, failed to produce any evidence tending to establish a defect. Those who testified on his behalf merely described the post accident damage, and no one suggested that any of the damage necessarily predated the accident and caused it to happen. Consequently, we find no manifest error in the trial court’s conclusions that there was no defect.

Additionally the record reflects that the district judge found that plaintiff’s version of the mode of his intoxication to be without credence. Plaintiff claims that upon hearing of the accident his wife went to the scene of the accident as he was being placed in an ambulance. Mrs. Scott testified that this was a Friday afternoon and she always had a half pint of Old Charter bourbon whiskey in her purse on Friday afternoons. Mrs. Scott described her husband’s condition on the ride to the hospital, and stated that in her opinion (based on previous medical training several years back as a nurse’s aide at Huckaby’s Hospital) her husband was dying; that his skin was beginning to turn blue; that he had stopped breathing; and that he was in extreme pain. Mrs. Scott testified that in order to alleviate her husband’s suffering, she poured all but about one inch of the whiskey, which she had in her purse, into her husband. She stated that although two Natchitoches Parish employees were in the ambulance, no one saw her give the whiskey to her husband. Mr. Scott corroborated his wife’s testimony. The two ambulance attendants, however, testified that plaintiff was not left unattended, and that there was no way Mrs. Scott could have poured the whiskey into her husband without their seeing it. They both testified that they saw no bourbon administered to plaintiff by his wife.

In specifically addressing Mr. and Mrs. Scott’s version of the aforesaid events, the district judge concluded:

“The Court further finds the testimony of Mr. and Mrs. Scott concerning the imbibing of whiskey in the ambulance to be ludicrous, ridiculous, unbelievable, unreliable and, perhaps, the most classic case of mythomania which this Court has heard during nine years of hearing cases on the bench. There are numerous and serious discrepancies in the testimony, in the depositions and at the trial.”

We think the trial judge correctly evaluated the credibility of Mr. and Mrs. Scott, and disregarded their version of the events which took place that day accordingly. In so finding, we also agree that it was plaintiff’s intoxication, rather than any other cause, which proximately resulted in the accident in question.

Finally plaintiff contends that the district judge erred in deciding the case before it had been completed, and prior to its having been submitted. More particularly, plaintiff complains that the case was decided before the trial judge had an opportunity to review the depositions of Ken Taylor, one of the ambulance drivers, and State Trooper Kitchen. We find this contention to be without merit.

The trial court rendered a written opinion on November 16, 1981, and on December 8, 1981, the judgment was signed. Ken Taylor’s deposition was filed in the record on the same date that the trial judge dated his opinion, and Trooper Kitchen’s deposition was filed two days later, on November 18, 1981. It is obvious that the court considered Mr. Taylor’s testimony inasmuch as it is specifically referred to in the trial judge’s opinion. Although the court below does not specifically refer to the Trooper’s testimony, it was filed some three weeks before the final judgment was signed. There is no indication that this testimony was not considered before the signing of the judgment. Furthermore, we have reviewed the Trooper’s testimony on appeal, and find nothing in it supportive of plaintiff’s case. If it was overlooked by the trial court, we find such error, if any, was harmless.

For the above and foregoing reasons the judgment of the district court is affirmed at plaintiff’s costs.

AFFIRMED.

      . A blood sample was taken from plaintiff at the Shreveport Hospital which later measured a blood alcohol content of .17%. Furthermore, Doctor Moller, who treated plaintiff at the hospital in Shreveport on the date of the accident stated that upon plaintiff’s arrival at the hospital plaintiff was intoxicated, reeked of alcohol, and was quite boisterous.


author: FORET, Judge.

text:
    Archie J. CHANDLER, et ux., Plaintiffs-Appellants, v. J. W. FUQUA and Cicero E. Hines, Defendants-Appellees.
    No. 82-164.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Harrington & Harrington, Rodney Harrington, Natchitoches, for plaintiffs-appellants.
    Darrel D. Ryland, Marksville, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Archie Chandler and his wife, Betty Chandler, (plaintiffs) brought this action to recover damages for the alleged breach of a contract, entered into between themselves and defendants, for the construction of a swimming pool. Named defendants are J.W. Fuqua and Cicero E. Hines, d/b/a Hines and Fuqua Swimming Pools and/or Hines & Fuqua Construction Company.

Pursuant to the provisions of LSA-C.C.P. Article 1810(B), defendants moved for a directed verdict after plaintiffs had presented their evidence. The trial court granted defendants’ motion, finding’that plaintiffs had failed to prove their case by a preponderance of the evidence. The trial court then dismissed plaintiffs’ claims against defendants with prejudice.

Plaintiffs appeal the trial court’s judgment granting defendants’ motion for a directed verdict.

FACTS

Plaintiffs entered into a written contract on June 29, 1978, with defendants for the construction of a swimming pool, the price of which was set at $9,000. The specifications for construction of the pool were set forth in the contract. In essence, it was to be kidney-shaped, 18 feet in width and 36 feet in length, with the depth ranging from 3 feet to 8V2 feet. It was to be constructed of gunnite, which is a form of concrete that is applied under pressure around a re-enforcing steel structure. Actual construction of the pool began either on the 9th or 10th of July of 1978 and was completed some seven days later. The pool, as constructed, is bowl-shaped in that the sides gradually slope down to the bottom. The depth ranges from approximately 2V2 feet to 8V2 feet.

Plaintiffs instituted this action alleging that defendants breached the contract entered into by the parties. Plaintiffs listed numerous defects in the construction of the pool in their petition and claim that it will cost $35,000 to remove the existing pool and properly construct a new one. Under the provisions of the contract, defendants guaranteed their work to be free from defects in material and workmanship for one year from the date of completion of said work.

PROPRIETY OF DIRECTED VERDICT

Plaintiffs contend that the trial court committed manifest error in granting defendants’ motion for a directed verdict. They argue that, based on the evidence presented by them, reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions. This standard for determining whether or not a defendant’s motion for a directed verdict should be granted is inapplicable in cases such as this which are tried before a judge. It is used in those cases being tried before a jury. See Campbell v. Mouton, 373 So.2d 237 (La.App. 3 Cir.1979).

Sevin v. Shape Spa For Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4 Cir.1980), reasoned, at pages 1012 and 1013, that:

“Article 1810(B) basically tracts (sic) the language in the second sentence of F.R. C.P. Rule 41(b). We have no doubt this procedural innovation found its way into our state statutes via the conceptual origin in the federal system. One solution would be to utilize the logic in Madison v. Traveler’s Insurance Company, 308 So.2d 784 (La.1975) which held that when state rules of procedure are obtained from federal rules the state courts may look for guidance to federal decisions which have interpreted identical provisions. In Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir., 1970) the Fifth Circuit in referring to F.R.C.P. rule 41(b) said: “The Judge should now ordinarily evaluate the evidence without making special inferences in the Plaintiff’s favor. The Court should go ahead and resolve the ease on the basis of preponderance of the evidence.” 427 F.2d at 1086.
In civil cases, following a complete trial, the trial judge has the responsibility to weigh and evaluate all evidence and ultimately render a decision based upon a preponderance of evidence. Suppose here following the plaintiff’s case in chief the defendant rested without presenting any evidence. Then the trial court would render its decision based upon the same facts it had when plaintiff rested. The outcome in this example would be the same as we now have before us with the granting of a directed verdict. Realistically, this defendant would not offer any evidence if this case was remanded for further proceedings. The district judge must eventually render a decision and it is reasonable and logical for him to apply the same standard to evidence following a motion for directed verdict or following a completed trial. Despite the harsh re- suits of a directed verdict, we have no alternative but to apply the standard of preponderance of evidence under the provisions of Art. 1810(B).” (Emphasis ours.)

See also Preyan v. United States Fidelity & Guaranty Company, 408 So.2d 1162 (La. App. 4 Cir.1981); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4 Cir. 1981); Bryan v. Varnado, 394 So.2d 1321 (La.App. 1 Cir.1981); Gleason v. City of Shreveport, 393 So.2d 827 (La.App. 2 Cir. 1981), writ denied, 397 So.2d 806 (La.1981).

The evidence shows that plaintiffs were restricted as to the size of a pool that could be constructed on their property because of a large palm tree located thereon. We note that much of the testimony given by the witnesses at trial is diametrically opposed. Defendants testified that they were requested to reduce the depth of the shallow end of the pool to 2V2 feet by plaintiffs, while plaintiffs testified that they made no such request. Plaintiffs stated that they were led to believe that when the contract specified that the pool would have a width of 18 feet, that that would be its width at its narrowest point. Defendants testified that a specification of a width of 18 feet meant that the average width of the pool would be 18 feet. Plaintiffs testified that defendant, Hines, told them that the concrete surface of the pool would be as smooth as their Formica top counter. Hines denied telling plaintiffs this.

The evidence does show that it was some nine or ten months after their pool had been constructed before plaintiffs began to complain to defendants about alleged defects existing in it. Plaintiffs introduced some photographs of the pool in evidence in an attempt to show these defects. However, these photographs were taken approximately nine months after the pool was constructed and failed to show anything more than normal wear. The trial court found that some of the photographs show that some maintenance work is needed on the pool, but that plaintiffs had failed to prove that defendants were responsible for performing this work. The trial court also found that the evidence showed that defendants had complied with the terms of the contract. After reviewing the record, we cannot say that either of these findings is clearly wrong.

Under LSA-C.C.P. Article 1810, the trial judge has much discretion in determining whether or not a motion for a directed verdict should be granted. Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3 Cir.1979).

DECREE

It is our opinion that the trial court properly granted defendants’ motion for a directed verdict as plaintiffs failed to prove their case by a preponderance of the evidence.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . LSA-C.C.P. Article 1810(B) provides:
      “B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. Added by Acts 1977, No. 699, § 1. Amended by Acts 1978, No. 156, § 1.”