author: DOMENGEAUX, Judge.

text:
    Willie Maybelle Harrison JARVIS et al., Plaintiffs-Appellants, v. LAFAYETTE GENERAL HOSPITAL et al., Defendants-Appellees.
    No. 7089.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Baker, Culpepper & Brunson, J. Michael McDonald, Jonesboro, for plaiñtiffs-appel-lants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Henry C. Perret, Jr., Voorhies & Labbe, Marc W. Judice, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   ON REMAND

DOMENGEAUX, Judge.

This medical malpractice case is before us again, this time by remand of the Louisiana Supreme Court, 378 So.2d 430. See Jarvis, et al. v. Lafayette General Hospital, et al., 378 So.2d 430 (La.1979). Rehearing denied November 23, 1979, La., 378 So.2d 431.

Our original opinion appears at 373 So.2d 1000 (La.App. 3rd Cir. 1979). As shown therein, the District Court sustained exceptions filed by defendants Dr. Stephen Gold-ware and the Lafayette General Hospital, and dismissed plaintiffs’ suit without prejudice. The dismissals were based on the provisions of La.R.S. 40:1299.41, et seq. (Medical Malpractice Act), in that the plaintiffs had failed to present their claim to a medical review panel as required by La.R.S. 40:1299.47, and there was no waiver as allowed in subsection B thereof. We affirmed the trial court judgment.

Plaintiffs applied for writs to the Supreme Court, which were denied insofar as the dismissal pertained to Doctor Gold-ware. A writ was granted, however, as to the dismissal of Lafayette General Hospital, and read as follows:

“Writ granted as to Assignment 2, otherwise denied. An exception of no cause of action should not be sustained unless the exception affirmatively negatives the existence of a cause of action. Haskins v. Clary, 346 So.2d 193 (La.1977); Rebman v. Reed, 286 So.2d 341 (La.1973); West v. Ray, 210 La. 25, 26 So.2d 221 (1946); Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975). Court of appeal ruling on exception as to Lafayette General is set aside. Case remanded to the court of appeal for further proceedings as to this defendant.” []

Assignment of Error No. 2 contained in plaintiffs’ application for writs to the Supreme Court reads as follows:

“The Honorable Court of Appeal erred in holding that plaintiffs’ petition failed to state a cause of action under La.R.S.' 40:1299.47(B) because plaintiff failed to allege in his petition that the named defendant is not a qualified ‘health care provider.’ ”

The only remaining matter on remand is a consideration of plaintiffs’ contention that the record does not contain a certificate of enrollment showing that Lafayette General Hospital is a qualified “health care provider” as that term is used in the Medical Malpractice Act. Plaintiffs contend that without such evidence the trial judge erred in sustaining Lafayette General’s exception of prematurity. As shown in our original opinion, we did not reach that issue. We reach it now.

A health care provider who wishes to be covered by the Medical Malpractice Act must first qualify by filing with the Commissioner of Insurance proof of financial responsibility. La.R.S. 40:1299.42(A)(1). This proof can be in the form of a policy of malpractice liability insurance for a minimal amount of $100,000.00 per claim, or, if self-insured, proof of financial responsibility in excess of $100,000.00. La.R.S. 40:1299.-42(E). Everett v. Goldman, 359 So.2d 1256 (La.1978).

Plaintiffs argue on appeal for the first time that the record does not contain evidence that Lafayette General Hospital is a health care provider under the statute, and that accordingly we should reverse the decision of the District Court which sustained Lafayette General’s exception of prematurity.

Plaintiff does not argue that Lafayette General has not qualified as a health care provider under the Act, but only that the record does not contain evidence of this qualification. '

Our review of this very short and rather incomplete record discloses that it does not contain a certificate of enrollment showing that Lafayette General Hospital is a qualified health care provider under the Act. Nor is there other evidence on that subject. However, we note that at the trial court hearing plaintiffs did not raise the issue of Lafayette General’s failure to submit into evidence its certificate of enrollment as a health care provider, despite the fact that in its pleadings the Hospital alleged that it was a health care provider. Nor did the plaintiffs apply for a new trial after the adverse ruling by the trial judge.

The record in this case falls short of completeness and clarity as to exactly what occurred in the trial court concerning Lafayette General’s exception of prematurity. Although it was sustained, our review of the record indicates that at that time, the District Court’s consideration seemed to focus primarily on the exceptions filed by Doctor Goldware, and that Lafayette General’s exceptions were not considered to their fullest extent.

The indications are that it was taken for granted that Lafayette General was a health care provider.

Considering all aspects of this case, we feel that we should exercise our discretionary power to remand this case to the trial court for a more complete consideration of Lafayette General’s exception of prematurity, and to allow evidence as to Lafayette General’s status as a health care provider under the Medical Malpractice Act. La.C. C.P. Art. 2164; Hopkins v. Department of Highways, 350 So.2d 1271 (La.App. 3rd Cir. 1977); Mouledous v. State, Department of Highways, 281 So.2d 289 (La.App. 3rd Cir. 1973); Hamilton v. Hamilton, 258 So.2d 661 (La.App. 3rd Cir. 1972); First National Bank of Abbeville v. Leblanc, 217 So.2d 724 (La.App. 3rd Cir. 1969).

Accordingly, the judgment of the trial court, insofar as it sustained the exception of prematurity filed by Lafayette General Hospital is reversed, and the case is remanded to the trial court for additional evidence on that exception, and ultimate ruling thereon. Costs of this appeal on remand from the Supreme Court, if any, are assessed equally between plaintiffs and Lafayette General Hospital.

REVERSED IN PART, AND REMANDED.

      . We consider this writ grant to be made peremptory and specifically overrules our previous ruling that plaintiffs’ petition stated no cause of action against Lafayette General Hospital.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Yvonne S. MEYERS, Plaintiff-Appellant, v. Timothy Carlton ISTRE, Defendant-Appellee.
    No. 7280.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Cor kern, R. Raymond Arthur, Natchitoches, for defendant-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

This lawsuit arises out of an automobile accident which occurred on May 26, 1977, in Sabine Parish. An affidavit was filed with the clerk of court on May 26, 1978 which states:

“BEFORE ME, the undersigned authority, personally came and appeared Mrs. Yvonne S. Meyers who, after being duly sworn, deposes and says:
That Timmie Istre, Zwolle, La. is indebted unto her in the full amount of $300.00, and that same is past due and owing.”

On February 21, 1979, the plaintiff filed what she terms her “first amended petition”, wherein is set forth with some specificity a statement of her claim and the facts upon which her cause of action is based. The “amended petition” was filed well beyond the one year prescriptive period for a tort. Plaintiff argues that the affidavit filed on May 26, 1977, the last day of the prescriptive period, served to interrupt prescription.

In the “first amended petition”, Yvonne Meyers names as defendants, Timothy Istre, Ronald Istre, Carole Istre and Central Mutual Insurance Company.

Defendants filed an exception of prescription, which was sustained by the trial court, and plaintiff brings this appeal.

The defendant argues that the affidavit does not qualify as a petition, and that the amended petition does not relate back to the date of filing of the original affidavit. These are interrelated issues.

L.S.A. — R.S. 9:5801 states:

“All" prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

Article 421 of the Code of Civil Procedure states:

“A civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. Amicable demand is not a condition precedent to a civil action, unless specifically required by law.”

Article 891 of the Code of Civil Procedure states:

“The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.”

The affidavit filed by plaintiff does not, in our opinion, constitute a pleading, within the intendment of the cited articles, sufficient to interrupt prescription running against her tort claim. The affidavit fails to set forth a statement of the object of her demand or the material facts upon which her cause of action is based.

The question of whether the “first amended petition” relates back to the affidavit (“petition”) involves an interpretation of Article 1153 of the Code of Civil Procedure which states:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

In Callender v. Marks, 185 La. 948, 171 So. 86 (1936), the Supreme Court observed, at page 87:

“The law is clear that where a petition states a cause of action and is filed within the prescriptive period, prescription is interrupted by the filing or instituting of the suit.
The jurisprudence is well established that where a petition imperfectly states a cause of action due to insufficiency of allegations, but informs the defendant of the nature of the claim or demand, an amended petition supplying the deficiency may be filed even after an exception of vagueness or an exception of no right or cause of action has been sustained, and after the prescriptive period has elapsed, because the amendment does not set up a new, different, or separate cause of action, but merely clarifies and amplifies the allegations of the original petition or demand which interrupted prescription.” (citations omitted)

Basically, the Court is saying that an imperfect petition, one that imperfectly states a cause of action, but does inform the defendant of the claim or demand, may serve as an interruption of prescription.

In a more recent case Phoenix of Hartford Insurance Company v. United States Rubber Company, 245 So.2d 436 (La. App. 1st Cir. 1970) the First Circuit relying on Callender v. Marks, supra, stated at page 440:

“At the worst, plaintiff’s original petition can be said to have contained insufficient allegations of fact, and cannot be classified as a petition which failed to state any cause of action whatsoever. Accordingly the timely filing of the original petition even if subject to a peremptory exception urging no cause of action, nevertheless can be and was adequately amended so as to state a cause of action by virtue of plaintiff’s filing his ‘Supplemental and Amended Petition,’ and the filing of the original interrupted prescription.”

The implication of these two cases is that while an imperfect petition will interrupt prescription, a petition which completely fails to state any cause of action at all, should not be considered as interrupting prescription.

In an article entitled, Amendment of Pleading in Louisiana, 43 Tul.L.Rev. 211, former Justice Albert Tate, Jr., suggests the purpose of allowing amendments to relate back to the original filing as well as the requirements at page 233, wherein he writes:

“Like its federal counterpart, the article is designed to permit amendment despite a technical prescriptive bar to the matters alleged by the amendment — provided that the original pleading gives fair notice of the general fact situation out of which the amended claim or defense arises. The article deliberately adopts no test of identity of cause or legal theory between the original and amending petitions; the amendment’s thrust need only be based upon or factually relate to (“arise out of”) the “conduct, transaction, or occurrence” originally alleged. If the original timely pleading gives actual notice to a party that a formal claim or defense is being made based upon a particular factual situation, no essential protective purpose of a prescriptive statute is violated by permitting relation back of a postprescription amendment based on the same factual situation. Through the original pleading the opponent knows that judicial relief is sought arising from the general factual situation alleged, and he is put on notice that his evidence concerning it should be collected and preserved. The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and. from the loss of non-preservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the period. On the other hand, a party’s assertion of one claim or defense should not, by mere reason of the original filing, preserve indefinitely all other claims or defenses by him against his opponent. Essentially, there is no timely notification that, later, there may be non-connected assertions made. For the same reasons, a suit based on a set of facts does not interrupt prescription against claims of other parties arising independently out of the same set of facts, nor does timely filing against one defendant necessarily notify another that subsequently the claim may be asserted against him as well. There should be some factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, before the amendment is excepted from the interests intended to be protected by the prescriptive statute.”

From a reading of Justice Tate’s article, it seems that if an amendment is to relate back to the original pleading then the original pleading must give actual notice to the adverse party that a formal claim is made based upon a particular factual situation. The affidavit filed by the plaintiff in this case does not give actual notice as to what factual situation has been made the basis of the lawsuit. For this reason there should not be a relating back.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiff-appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Clarence H. CLINE, Sr., Plaintiff-Appellant, v. KROGER COMPANY, INC., Defendant-Appellee.
    No. 7284.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Garrett, Ryland & Nunnally by B. Dexter Ryland, Alexandria, for plaintiff-appellant.
    Scofield, Bergstedt & Gerard, Robert L. Hackett, Lake Charles, for defendant-appel-lee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Plaintiff, Clarence H. Cline, seventy-two years of age, brought suit for damages allegedly sustained as a result of a slip and fall accident in defendant Kroger’s supermarket in Alexandria, Louisiana, on July 15, 1976. The trial court found Kroger negligent and Mr. Cline free of contributory negligence. Plaintiff has appealed as to the issue of quantum only. Defendant has answered the appeal, asking that the judgment be reversed. We affirm.

The testimony reveals that on the morning of the accident, shortly before plaintiff entered the Kroger Store, a bottle of pine oil (a liquid cleaner) fell off one of the check-out counters, breaking and spilling on the floor in that check-out aisle. Mrs. Loretta Brown, the checker at this counter, saw the spill and asked a bag boy to clean it up.

Plaintiff entered the store, walked over to the check-out aisle and greeted Mrs. Brown. Although there is some discrepancy in their testimony as to exactly what was said and the length of time they talked, it is evident the plaintiff then proceeded to walk through the aisle from its exit toward the entrance without looking at the floor, stepped into the spill, slipped and fell and injured himself.

Unquestionably, plaintiff proved that: there was a spill of pine oil in the check-out aisle; he did not see the spill; he stepped into it; and was injured as a result. The law of this state is settled that under such circumstances the burden of proof shifts to the store owner to go forward with the evidence and rebut the inference of negligence on its part. Gonzales v. Winn Dixie, 326 So.2d 486 (La.1976), Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Mr. Vernon Stockton, the store manager, testified that Kroger’s policy (set forth in the employees’ training manual) required its employees, upon discovering a spill, to call for someone to clean it up and for the discoverer to stand by the spill to warn approaching customers of the hazard. Although Mrs. Brown stated she was familiar with it, she did not follow through with the policy. After calling for a cleanup, she said she remained behind the register to prevent more items from falling off the conveyor belt. And in doing so she did not see plaintiff approaching the spill in time to warn him of the hazard.

It was not uncommon for customers to enter the merchandise area of the store through the check-out aisles. We agree with the trial judge that Mrs. Brown had a duty at the time to remain watchful for any approach to her aisle and prevent persons from entering it. This she did not do. Consequently, the defendant has not borne its required burden of proof to exculpate its employees from negligence.

We are also in accord with the judge’s conclusion that the defendant has failed to establish by a preponderance of the evidence that the plaintiff was contrib-utorily negligent in failing to see the spill.

Normally, a plaintiff will not be allowed to recover where his injuries result from his failure to avoid obvious hazards. However, in this case no evidence has been introduced which indicates that the spill was an obvious or noticeable hazard. There was no testimony as to the color of the pine oil, the color of the floor, the size of the spill or its exact location. The plaintiff testified that he did not see the glass even after he had fallen and was sitting on it.

Although Mr. Cline did not say that he was distracted by any display of merchandise, gum, candy, razors and various other items were on display in each check-out aisle of the store. And, of course, our courts also have allowed damages in slip and fall cases where the accidents occurred in other than display areas of business establishments, but the hazard was not readily observable. Bolin v. National Tea Co., 359 So.2d 690 (La.App. 1 Cir. 1978); Hanzo v. Travelers Ins. Co., 357 So.2d 1346 (La. App. 4 Cir. 1978); Kavlich v. Kramer, supra.

We are not convinced from our review of the record that a reasonable man under similar circumstances would have observed the spill in this case.

Finally, the plaintiff contends he suffered a severe back injury, a loss of hearing and vertigo as a result of the accident. The trial court allowed him $1,633.00 in damages for the injury to his back which was symtomatic for three or four months before returning to its pre-accident condition. However, no damages were awarded for loss of hearing and vertigo, because it was not established that these conditions were related to the accident. The resolution of such issue was based not only on the physician who testified, but to a large extent on the credibility of the medical history related by the plaintiff which the trial judge questioned. Our review of the record reveals there is a reasonable factual basis for the finding of the trial judge on this issue and that his conclusion is not clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the reasons assigned, the judgment of the trial court is affirmed. All costs of the appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Doshie F. AINSWORTH et vir, Plaintiffs-Appellants, v. BITUMINOUS CASUALTY CORPORATION et al., Defendants-Appellees.
    No. 7285.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Writs Refused March 21, 1980.

      William Henry Sanders, J. P. Mauffray, Jr., Jena, for plaintiffs-appellants.
    Long & Peters, Speedy 0. Long, Jena, Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   STOKER, Judge.

This case, number 7285 on the docket of this court, involves a claim for personal injury sustained during an automobile collision. Plaintiffs-appellants, Doshie and D. W. Ainsworth, filed this suit to recover for the personal injury sustained by Doshie Ainsworth and for the medical expense of the marital regime of D. W. Ainsworth and Doshie Ainsworth. Doshie Ainsworth was driving one of the two cars involved in the accident.

The guest passengers in Doshie Ains-worth’s car at the time of the accident filed a compensation suit, civil action 101,299, Anita D. Ainsworth, Et Vir v. Bituminous Casualty Corporation, Et Al., number 7286 on the docket of this court, 379 So.2d 1192. In this case Anita Ainsworth and her husband Travis seek to recover damages for personal injury sustained by Anita Ains-worth and her minor children. In the trial court the above two cases were consolidated for trial and appeal, since the issues and the defendants are the same. These similar issues will be discussed herein, although opinions in this case are being rendered on this day.

The facts reveal that on the date of the accident, the plaintiff in suit 7286, Anita Ainsworth, and her minor children, Debra, Larry, and Mickey, were all guest passengers of Doshie Ainsworth, Anita’s sister-in-law, and were accompanying her on a shopping trip. Immediately prior to the accident, Doshie Ainsworth was driving her automobile in a southerly direction on Highway 165, a two-lane hard-topped highway. Defendant, Clyde Nichols, was following Doshie Ainsworth in his pickup truck. The accident occurred when Doshie Ainsworth, attempting to turn left into a driveway, was struck by defendant’s truck which was attempting to pass in the left lane. The present actions arise from the accident.

The trial jury found, in response to special interrogatories, that defendant was not negligent. The jury apparently accepted as true defendant-Nichols’ testimony as to the facts surrounding the occurrence of the accident. Although defendant’s testimony is contradicted by plaintiffs’ witnesses, the members of the jury were in a position to observe the witnesses’ demeanor and determine their credibility. An examination of the record does not reveal that the jury committed manifest error in accepting as credible defendant’s testimony as to the cause of the accident.

In Begnaud v. Texas & New Orleans Railroad Company, 136 So.2d 123 (La.App. 3rd Cir. 1961), this court stated, “It has been repeatedly held that the court will not set aside the verdict of a jury in a case where the testimony is conflicting, when the testimony of the witnesses, if accepted as credible, is sufficient to sustain the verdict.”

In the present case, Nichols’ testimony, if accepted as credible, placed before the jury sufficient evidence upon which it could base a conclusion that defendant was not negligent. Defendant stated that when he attempted to pass plaintiff’s car, the left lane was free of oncoming cars, and Doshie Ainsworth had slowed down and activated her right-turn signal. The record reveals that there was no yellow line prohibiting passing at the point where defendant attempted to pass plaintiff’s car. Faced with similar circumstances, this court believes reasonable persons could have concluded that it was safe to attempt to pass Mrs. Ainsworth’s car. Defendant was not negligent in attempting to pass Ainsworth’s car.

However, plaintiffs contend, citing LSA-R.S. 32:351, that defendant was negligent in failing to sound his horn prior to passing the Ainsworth automobile. In Soileau v. Hanover Insurance Company, 232 So.2d 128 (La.App. 3rd Cir. 1970), this court stated, in reference to that statute:

the purpose of requiring an overtaking motorist to sound his horn is to clear the roadway ahead of him when it is obstructed. When the preceding vehicle is occupying its own lane of traffic though traveling slowly, there is no duty on the part of an overtaking motorist to sound his horn.

In the instant action, the record reveals that when defendant attempted to pass, Ainsworth’s vehicle was occupying its own lane of traffic. Since Ainsworth’s vehicle was occupying its own lane when defendant attempted to pass, defendant was under no duty to sound his horn.

The jury’s finding that defendant was not negligent is amply supported by the record, which upon review, in its entirety, reveals no manifest error in their decision. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

LAST CLEAR CHANCE

Plaintiffs assign as error the court’s charge to the jury on the doctrine of last clear chance. The charge reads:

If you find that both Doshie Gennette Ainsworth and Clyde Nichols were negligent, then you must consider the doctrine of Last Clear Chance.
The elements of this doctrine which the plaintiffs must prove by a preponderance of the evidence are:
1) Doshie Gennette Ainsworth was in a position of peril of which she was unaware or from which she was unable to extricate herself;
* * * * * ' *
3) At the time Clyde Nichols could have, with the exercise of due care, avoided the accident.
However, the doctrine of Last Clear Chance applies to both parties involved in this accident . . . pardon me, to both parties involved in an accident. It is like a two-edged sword, applicable equally to the rights of the defendants and those of the plaintiffs. If you find that plaintiff, Doshie Gennette Ainsworth, actually discovered or should have discovered her peril in time to extricate herself from the danger, and then failed to do so, the plaintiffs may not recover under the Last Clear Chance Rule, because plaintiff, Doshie Gennette Ainsworth, also had a Last Clear Chance to avoid the accident and was contributorily negligent in failing to do so .

LSA-C.C.P. article 1792, which governs jury charges, provides:

In his charge to the jury the judge shall instruct the jurors on the law applicable to the cause submitted to them, but he shall not recapitulate or comment upon the evidence so as to exercise any influence upon their decision as to the facts.

Moreover, in Bush v. St. Paul Fire and Marine Ins. Co., 264 So.2d 717 (La.App. 1st Cir. 1972), the court stated, “A meaningful jury trial includes a proper instruction by the court. Adequate instructions are those instructions which fairly and reasonably point up the issues . . . and which provide correct principles of law for the jury’s application thereto.”

The question presented in the instant action is whether the judge’s charge on the doctrine of last clear chance accurately reflects the correct principles of law.

In Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978), the court stated:

The last clear phance doctrine was created to escape the harsh effects of the contributory negligence defense which operates, in its strict application, as an absolute bar to a plaintiff’s recovery.

Justice Dixon writing for the majority in Baumgartner (footnote 8, page 406) took the opportunity to express the court’s “disapproval of a concept first introduced into Louisiana jurisprudence by the court in Bergeron v. Department of Highways, 221 La. 595, 60 So.2d 4 (1952).” That concept, now looked upon by the court with disfavor, was quoted from American Jurisprudence in the Bergeron case. American Jurisprudence stated that the last clear chance doctrine was a “two-edged sword applicable equally to the rights of a defendant and those of a plaintiff. Justice Dixon made clear in the footnote that the “double-edged sword” concept is no longer proper in discussion of last clear chance in Louisiana.

The footnote states “Since the last clear chance doctrine was originally intended as an escape from the effect of contributory negligence on the part of plaintiff, it is doubtful that last clear chance was intended to be a weapon in the hands of defendant.”

These clear statements of the Supreme Court bring into question the trial judge’s charge that the last clear chance doctrine is like a “two-edged sword.” After Baum-gartner such a jury charge is at least unfavorable, and it may be totally in error.

To apply last clear chance both parties must be found negligent. Only if both are negligent is the doctrine of last clear chance an available tool of the plaintiff.

In the present case the special interrogatories were not in keeping with this proper negligence theory. The jury first answered that defendant Nichols was not negligent, then that plaintiff Doshie Ainswroth was negligent, then that Nichols did not have the last clear chance.

Plaintiffs object that these questions show the jury was confused. Certainly, it was superfluous for the jury to consider the question of whether the defendant, Nichols, had the last clear chance to avoid the accident after it had answered the first interrogatory directed to them to the effect that Nichols was not negligent. However, the two answers are consistent. Hence, no confusion is apparent on the fact of the answers to the interrogatories. The superfluous action of the jury could have been avoided if the interrogatories had been propounded with instructions not to proceed to answer any further interrogatories if the jury found the defendant not to have been guilty of negligence which was a cause of the accident. The failure to do so we consider of no moment and to be harmless error. Likewise, we consider the reference to the doctrine of last clear chance as a two-edged sword as harmless error.

DUTY TO SOUND HORN

Plaintiff Anita Ainsworth assigns as error the judge’s charge to the jury on the duty of an automobile driver to sound his horn.

LSA-R.S. 32:351(A), which governs a motorist’s duty to sound his horn, provides, in pertinent part:

A. Every motor vehicle when operated upon a highway of this state shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or whistle. The driver of a motor vehicle shall, when reasonably necessary to insure safe operation, give audible warning with his horn, but shall not otherwise use such horn when upon a highway of this state.

In Soileau v. Hanover Insurance Co., supra, this court, quoting from Hall v. Jackson, 215 So.2d 367 (La.App. 2nd Cir. 1968), stated, in reference to 32:351:

The above provisions merely require a vehicle be equipped with a horn in good working order and that a driver give audible warning when it is reasonably necessary to insure the safe operation of his automobile. There is no duty on the part of an overtaking motorist to sound his horn when there is no apparent necessity to do so. (emphasis added)

In the instant action, the judge’s charge reads as follows:

Plaintiff also contends the truck was negligent in failing to sound his horn before passing. LSA-R.S. 32:351(A) requires the motorist to sound his horn “When reasonably necessary to insure safe operation”. The overtaking motorist is not required to sound his horn before passing in every instance. It is only required when there is an apparent necessity to do so.

The judge’s instructions to the jury on the duty of a motorist to sound his horn reflects the correct principles of law. Plaintiffs’ assignment of error on this charge is without merit.

OTHER JURY CHARGES

Anita Ainsworth also assigns the following specifications of error on the judge’s charges to the jury:

The trial court erred.in charging the jury with the sudden emergency doctrine.
The trial court erred in failing to give proper charges on the duties of an overtaking motorist.
The trial court erred in failing to adequately charge the jury as to the guest passenger status of plaintiffs.

LSA-C.C.P. 1973 sets forth the time for objecting to jury charges. The article provides:

At the close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests pri- or to their arguments to the jury.
A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

The jurisprudence interpreting this article, has held that where a party fails to object to jury instructions before the jury retires to consider them, he waives the defects therein. Renz v. Texas & Pacific Railway Co., 138 So.2d 114 (La.App. 3rd Cir. 1962). An examination of the record reveals that plaintiff, Anita Ainsworth, failed to object to these charges before the jury retired to consider them. Since plaintiff failed to object to these charges, any defects therein were waived.

NEW TRIAL

Finally, plaintiff contends that the trial judge erred in failing to grant a new trial. Plaintiff alleges as grounds for a new trial that the jury was confused by the judge’s instructions and ignored the law charged to it.

The peremptory grounds for a new trial are provided by C.C.P. article 1972 which states:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
(3) In jury cases, as provided in Article 1814.

A review of the record reveals that the judgment does not appear clearly contrary to the law and the evidence. Also, plaintiff does not allege that she has discovered new evidence entitling her to a new trial. However, plaintiff additionally alleges that ground for a new trial exists under Article 1814.

Article 1814 provides that a new trial shall be granted if it is proven that the jury has bribed or behaved improperly so that impartial justice has not been done. Plaintiff alleges that the jury misbehaved by disregarding the judges instructions. However, a review of the record reveals that plaintiff did not prove, and in fact introduced no evidence, that the jury disregarded the instructions. Having failed to prove any misbehavior on the part of the jury, plaintiff has not established any mandatory grounds for a new trial.

Plaintiff contends that the jury was confused by the judge’s charges. This is not a peremptory ground for a new trial. However, LSA-C.C.P. article 1973 provides that a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. The jurisprudence has held that the trial court’s decision to grant or deny a new trial based on discretionary ground will not be disturbed unless there has been a clear abuse of discretion. Shows v. Williamson, 256 So.2d 688 (La.App. 2nd Cir. 1972).

In Thibeaux v. State Farm Mutual Automobile Insurance Company, 285 So.2d 363 (La.App. 3rd Cir. 1973), the court stated:

This court is not disposed to interfere with the deliberations and determinations of juries when conducted under such circumstances that it can be safely assumed that impartial justice was achieved.

In the present case, plaintiffs failed to establish good grounds for a new trial. Although the jury may have been confused on the law governing last clear chance, the judge’s jury charge, correctly setting forth the principles governing the determination of negligence, satisfy this court that impartial justice was achieved. The trial judge did not abuse his discretion in refusing to grant a new trial.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiffs’ claim against defendant is affirmed.

AFFIRMED.

      . The statute provides, in pertinent part:
      A. Every vehicle when operated upon a highway of this state shall be equipped with a hom in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound, or a whistle. The driver of a motor vehicle shall, when reasonably necessary to insure safe operation, give audible warning with his horn, but shall not otherwise use such horn when upon a highway of this state,

      . Dean Prosser has agreed with the conclusion of our Supreme Court. Commenting on the many variations of last clear chance in various jurisdictions he said,
      A few courts, with something resembling billiard-parlor reverse English, have even purported to recognize a “last clear chance” doctrine in favor of the defendant, to bar the plaintiffs recovery; but since this comes out at exactly the same place as the defense of contributory negligence without the doctrine at all, and is calculated only to bewilder the jury with incomprehensible instructions, most courts have rejected any such idea. Prosser, Law of Torts, 1971, page 429.


text:
    Anita D. AINSWORTH et vir., Plaintiffs-Appellants, v. BITUMINOUS CASUALTY CORPORATION et al., Defendants-Appellees.
    No. 7286.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    William Henry Sanders, J. P. Mauffray, Jr., Jena, for plaintiffs-appellants.

      Long & Peters, Speedy 0. Long, Jena, Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, McClure & McClure, John G. McClure, Alexandria, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   STOKER, Judge.

This is a companion case to the matter entitled “Doshie F. Ainsworth, et vir., versus Bituminous Casualty Corporation, et ah, Number 7285”, on the docket of this court, 379 So.2d 1187.

For the reasons assigned therein, the judgment in favor of defendant, Clyde Nichols, is affirmed.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Bobbie A. DOVE, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE CO. et al., Defendants-Appellants.
    No. 7300.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Bolen & Erwin, Gregory S. Erwin, Alexandria, for defendants-appellants.

      Whitaker & Doggett, John B. Whitaker, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Bobbie A. Dove, sued her employer, G. C. Murphy Company Inc., and its workmen’s compensation insurer, Liberty Mutual Insurance Company, seeking benefits for total and permanent disability, medical expenses, penalties and attorney’s fees. Defendants filed an exception of prematurity along with an answer. At the time of trial the parties stipulated that plaintiff has been paid and continues to be paid the maximum percent of wages to which she is entitled under the provisions of the workmen’s compensation act. The parties further stipulated that, although when suit was instituted there were certain medical and travel expenses which remained unpaid, all such claimed expenses totaling the sum of $597.45 had been paid to plaintiff. The trial court, although making no specific ruling with regard to the exception of prematurity, rendered judgment in favor of plaintiff for $2500.00 in attorney’s fees. Defendants have appealed. Plaintiff has answered the appeal asking that the trial court judgment be amended so as to award penalties and an increase in the amount of attorney’s fees.

Our examination of the record in this case prompts us to conclude that the trial court erred in failing to sustain the exception of prematurity filed by defendants. Accordingly, we reverse.

LSA-R.S. 23:1314 provides as follows: “Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer's medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.”

Plaintiff does not allege in her petition that she is not being paid the maximum compensation benefits to which she is entitled. Quite to the contrary, as afore-stated, it was stipulated that plaintiff has been and continues to be paid the maximum percent of wages to which she is entitled under the provisions of the act. Nor does plaintiff allege and the record does not support a finding that plaintiff has not been furnished “proper medical attention” or that defendants have failed to furnish her with copies of any medical reports. Plaintiff does allege in her petition that defendant has failed and refused to reimburse her for certain medical and travel expenses incurred in the treatment of her injuries. This latter factual circumstance, however, is not determinative of the issue of prematurity in a suit for workmen’s compensation benefits. As we stated in Andrus v. Employers Insurance of Wausau et al., 348 So.2d 1337 (La.App. 3rd Cir. 1977):

. . the test for prematurity in a suit for compensation benefits is not whether there are unpaid medical bills but whether the injured employee has been furnished proper medical attention. Moore v. American Motorist Insurance Company. 216 So.2d 674 (La.App. 3 Cir. 1969) writ refused 253 La. 629, 218 So.2d 902; Jack v. Fidelity & Casualty Company of New York. 306 So.2d 806 (La.App. 3 Cir. 1975). . . . However, medical expenses which have not been paid may be demanded in an independent action. Blanchard v. Liberty Mutual Insurance Co.. 280 So.2d 592 (La.App. 3 Cir. 1973).”

See also Cooley v. Liberty Mutual Insurance Company et al., 346 So.2d 1352 (La.App. 3rd Cir. 1977) writ refused 350 So.2d 903 (La.1977).

In the instant case there has been no showing of a failure to furnish proper medical attention. This being considered together with the fact that plaintiff continues to be paid all benefits to which she is entitled under the workmen’s compensation act it is axiomatic that her suit is premature. Accordingly, we conclude that the exception of prematurity should have been sustained and plaintiff’s suit dismissed.

Although unnecessary to our decision, we have carefully reviewed the record and have determined that defendants did not arbitrarily delay making payment for all medical and travel expenses due plaintiff.

The dispute between plaintiff and defendants centers around three items:

(a) The difference in cost of a private versus semi-private room in the amount of $78.00 due to Bossier City General Hospital.
(b) The cost of a home traction device in the amount of $114.45.
(c) Travel expense in the amount of $405.00 for 18 separate trips to either the doctor or medical facilities.

As to item (a) defendants refused initially to pay this sum because they were never furnished with any medical verification that it was necessary that plaintiff be housed in a private room as opposed to a semi-private room. Defendants considered that this additional expense was incurred solely for the convenience of plaintiff and was not medically necessary. Although defendants have reimbursed plaintiff for this expense we cannot conclude that their initial refusal to pay this expense was arbitrary as the employer is only responsible for necessary medical expenses on behalf of the claimant. LSA—R.S. 23:1203.

As to the cost of the home traction device the record clearly supports a finding that the delay in payment of this item of expense was occasioned by clerical error.

Finally, as to the reimbursement for travel expenses, the record clearly shows that the first demand for these expenses came in a letter from plaintiff’s attorney dated September 26, 1978. Defendants immediately made reply to this demand by letter dated October 3, 1978, requesting verification of the dates and purpose of travel and suggesting that upon the verification being submitted payment would follow. Plaintiff chose not to send the requested verification but rather instituted suit on October 17, 1978. After receipt of plaintiff’s petition, which set forth the dates of travel etc., defendants, on November 8, 1978, within sixty days of the initial demand, made payment.

Penalties and attorney’s fees are assessable against an employer or his insurer only when the refusal to pay or the delay in payment of benefits beyond sixty day notification is shown to be arbitrary, capricious or without probable cause. LSA-R.S. 23:1201.2. The record in this case does not support plaintiff’s assertion that the defendants acted arbitrarily and without probable cause.

For the above and foregoing reasons the judgment appealed from is reversed and plaintiff’s suit is ordered dismissed as of non-suit. Plaintiff-Appellee is cast with all costs at the trial level and on appeal.

REVERSED AND RENDERED.


text:
    Preston J. MAUBOULES, Plaintiff-Appellant, v. BROUSSARD RICE MILLS et al., defendant-appellee.
    No. 7308.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Writ Refused March 21, 1980.
    A. D. Barnes, Jr., New Orleans, for plaintiff-appellant.
    Privat & Regan, Kenneth 0. Privat, J. W. Landry, Jr. /and Philip J. Chappuis, II, Crowley, for defendants-appellees.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal from a judgment sustaining an exception of no cause of action which resulted in the dismissal of plaintiff’s suit. Plaintiff-appellant seeks a reversal of this judgment. Appellee, by answer to appeal, asks for damages for a frivolous appeal.

A brief background of previous litigation between some of the parties to the present suit will assist in an understanding of the present posture of this suit.

In 1977, Broussard Rice Mills, Inc, one of the defendants in this present suit, purchased a quantity of rice from the plaintiff-appellant, Preston J. Mauboules. Anticipating that a claim would be made for a portion of the proceeds by Mable Mauboules States, Preston J. Mauboules instructed Broussard Mills, Inc. to hold the money he expected Mrs. States to claim. It is essential to note that this first request to hold these funds due to a possibility of multiplicity of claims came from the defendant-appellant, Preston J. Mauboules.

Mrs. States, as expected, soon asserted her claim to the proceeds, represented by Kenneth O. Privat.

Mrs. States filed a declaratory judgment action against Preston J. Mauboules, her step-son, asserting ownership of the funds held by Broussard Rice Mills, Inc. In that suit, Preston J. Mauboules filed a declinato-ry exception of improper venue which was sustained by the trial judge on May 3,1978. Mrs. States failed to move for a change of venue to Jefferson Parish or take any immediate steps to continue her claim. Then Mr. Mauboules asked Broussard Rice Mills, Inc. to forward the funds which he had previously requested they hold. Broussard Rice Mills, Inc. turned down that request, apparently as a result of a request by Mrs. States’ attorney, Mr. Privat. Mr. Privat’s letter to Broussard Rice Mills, Inc. stated, in pertinent part:

“I represent Mrs. Mable Menard Mau-boules, presently married to Mr. Sweeney States. Mrs. States was granted the water rent by her late husband, Louis Mouboules. You are presently holding, or will shortly be holding, funds to which she is entitled as a result of this water rent. Mr. Preston Mauboules has made a claim to these funds, and this matter has been the subject of litigation, and you are to hold all funds until notified by the joint attorneys for Mrs. Stutes and Mr. Preston Mauboules and/or the Court as to the disposition of these funds.”

Mr. Privat, sent to counsel for Mr. Mau-boules, a letter outlining his position on the rice sale proceeds which stated, in pertinent part:

“I’ve discussed this matter at length with my client and we have taken a position that although our attempt to get a declaratory judgment on the ownership of the funds has been dismissed for lack of venue in the Fifteenth Judicial District Court for the Parish of Acadia, that the issue of the ownership and interest in the funds has not abated.
Since the Will leaving the interest to Mrs. Mauboules has been questioned by Mr. Preston J. Mauboules, we feel that it will be up to him to bring this matter to a head with some sort of judicial action. In the meantime, we will maintain our position that the Will grants us the right to the funds and we so instructed Brous-sard Rice Mills.”

It is quite apparent that both parties interested in the rice sale proceeds were dickering back and forth, each trying to force the other party to become the plaintiff and sue in the defendant’s venue.

Mr. Mauboules filed suit against Kenneth 0. Privat, the appellee, and against J. B. Broussard, and Broussard Rice Mills, Inc., praying for damages for the conversion of funds. The appellee, Mr. Privat, filed a peremptory exception of no cause of action which was sustained by the trial judge. From that judgment, plain tiff-appellant brings this appeal. Mr. Privat answers the appeal asking for an award of $3,000.00 in damages for a frivolous appeal.

A concise statement on the exception of no cause of action is found in Ford Motor Credit Co. v. Soileau, 357 So.2d 563 (La.App. 3rd Cir. 1978) wherein we said:

“The law in this area is clear.. The purpose of the exception of no cause of action is to test the legal sufficiency of the pleadings. Well pleaded facts alleged in the petition are taken as true. If any reasonable construction of the alleged facts could lead to possible legal recovery, the exception must be overruled. Normally, evidence may not be considered for the purposes of sustaining an exception of no cause of action. The exception can be sustained only when the allegations, as stated in the petition, affirmatively establish that no relief can be granted under the law.”

(Citations omitted)

The question becomes whether any reasonable construction of the alleged facts can lead to a legal recovery.

Appellee’s basic argument centers on agency principles. As an agent for Mrs. Stutes, Mr. Privat argues, his activities regarding the rice proceeds were in a representative capacity and as such he cannot be personally liable. For this proposition, ap-pellee cites Southwestern Sugar and Molasses Company v. Industrial Molasses Corporation, 135 So.2d 481 (La.App. 4th Cir. 1961), wherein the Court said:

“Agents are not liable to third persons for nonfeasance or mere omissions of duty. They are responsible to third parties only for the actual commission of those positive wrongs for which they would be otherwise accountable in their individual capacity under the obligations common to all other men.”

Appellant argues that appellee’s serving in a representative capacity does not make him immune from liability. He cites 89 C.J.S Trover and Conversion § 77 for the proposition that “every person is liable in trover who personally or by agent commits an act of conversion or who participates in the conversion by instigating, aiding, or assisting another . . . .”

This principle was adopted in Louisiana in Edwards v. Max Thieme Chevrolet, 191 So. 569 (La.App. 2nd Cir. 1939) wherein the Court adopted the following statement:

“One who aids and abets another in keeping property from its rightful owner is guilty of conversion, and the fact that he acted as agent for another is no excuse.”

It is our opinion that the issue is not so much whether or not an agent can be guilty of conversion, but did the actions of Mr. Privat as particularized in plaintiff’s petition aid an act of conversion in a tortious manner.

The Louisiana view of conversion is stated in Oge v. Resolute Insurance Company, 217 So.2d 738 (La.App. 3rd Cir. 1969) wherein this Court said:

“Under our jurisprudence, conversion is a tort consisting of wrongfully depriving a person of possession of his property. The fault may be either the original wrongful acquisition or the subsequent wrongful detention of possession. But, there must be either a wrongful taking or a wrongful detention.”

The Louisiana definition of conversion is consistent with the American Law Institute Restatement of Torts 2d, Section 222A which states:

“Section 222A. What Constitutes Conversion
(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
(a) the extent and duration of the actor’s exercise of dominion or control;
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting interference with the other’s right of control;
(e) the harm done to the chattel; and
(f) the inconvenience and expense caused to the other.”

It is our opinion that the decision of the trial court is correct. In order for Mr. Privat to be guilty of conversion, he must have aided or assisted in wrongly depriving the true owner of the property. Broussard Rice Mills, Inc., always had dominion over the money. The company was free to disburse the money as it chose, subject to possible claims of third parties, such as Mrs. Stutes.

Appellee, Mr. Privat, wrote the mill in an attempt to protect his client’s rights. He certainly did not wrongly detain any money or assist the mill in a tortious retention of the rice sale proceeds. It is quite apparent that the real issue is not a conversion of the rice proceeds, but the true ownership of the proceeds. Broussard Rice Mills, Inc., when sued in this matter, put the disputed proceeds into the registry of the Court and prayed that the real parties at interest, Preston J. Mauboules and Mrs. Stutes, assert their respective claims. Broussard Rice Mills, Inc. is not a party to this appeal, and we therefore express no opinion regarding the action taken by it.

Accepting the plaintiff-appellant’s position that Mr. Privat committed conversion would lead to an absurd result. Following plaintiff’s logic, if an attorney asserts a claim to disputed property on behalf of a client, he would be guilty of conversion and tortiously liable. The fact of putting the depository on notice of a claim of ownership does not fit the definition of conversion. It is not an exercise of dominion over property of another.

In summary, we believe that the trial court correctly sustained defendant’s exception of no cause of action, as accepting the facts and allegations of plaintiff’s petition as true, plaintiff has no legal remedy under the law.

Defendant-appellee asks for $3,000.00 in damages asserting that plaintiff’s appeal is frivolous. Article 2164 of C.G.P. states:

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

In a recent case, Moity v. Busch, 368 So.2d 1134 (La.App. 3rd Cir. 1979), cited approvingly Coleman Oldsmobile, Inc. v. Cobb, 366 So.2d 944 (La.App. 1st Cir. 1978), and Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977) we stated:

“Article 2164 of the Code of Civil Procedure authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Avondale Shipyard, Inc. v. LaRose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973); Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976), and Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976).” (348 So.2d at 741).

Although the appellant’s position is untenable, it is our opinion that it is not frivolous.

For the foregoing reasons, the request for damages for a frivolous appeal is denied. The judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    STATE of Louisiana, ex rel. William J. GUSTE, Jr., Attorney General, The Louisiana Stadium and Exposition District and Louisiana Division of Administration, Plaintiff & Appellant, v. CHEMICAL APPLICATORS OF LAFAYETTE, INC., Defendant & Appellee.
    No. 7325.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      George B. Recile, New Orleans, for plaintiffs & appellants.
    Mouton, Roy, Carmouche, Bivens & Kraft, Ralph E. Kraft, Lafayette, for defendant & appellee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit for damages for breach of contract. The Louisiana Stadium and Exposition District, hereafter LSED, alleges it contracted with the defendant, Chemical Applicators of Lafayette, Inc., to clean the No. 5 air-conditioning absorption chiller in the Louisiana Superdome in New Orleans, and that, during the cleaning process, defendant damaged the tubes in the chiller, requiring repairs which cost $47,060. Defendant filed an exception of prescription on the grounds that its contract to clean the chiller was with Building Engineer Services Company, hereafter BESCO, that defendant had no privity of contract with LSED, and therefore this suit is actually in tort and has prescribed by the liberative prescription of one year. The district judge sustained the exception of prescription. From a judgment dismissing its suit, plaintiff appealed.

The facts, as disclosed by the pleadings and evidence introduced at the hearing on the exception of prescription, show that on May 10, 1974 LSED entered into a contract with BESCO to operate and maintain certain facilities in the Louisiana Superdome. Under this agreement, LSED agreed to reimburse BESCO for all direct expenditures for tools, materials, services and supplies in connection with maintenance of the equipment. Prior to October 1, 1976, one of BESCO’s employees negotiated an oral contract with the defendant to clean Absorption Chiller No. 5 for the sum of not over $900. The work was performed by defendant on or about October 1, 1976.

After the work was completed, the Division of Administration of the State of Louisiana issued Purchase Order No. 12001 of date, October 12, 1976, to Chemical Applicators for the cost of cleaning No. 5 Chiller, not to exceed $900. In response to this purchase order, the defendant, Chemical Applicators of Lafayette, issued its Invoice No. 12621 to Louisiana Stadium and Exposition District of date, October 18, 1976 for services actually performed in cleaning the chiller, the total amount of the invoice being $615.80. The evidence shows this invoice by the defendant was never paid, because the engineers for BESCO discovered the damage to the chiller.

The record also contains an assignment dated March 2, 1979 by BESCO to LSED of any rights of BESCO against Chemical Applicators for damages arising out of the malperformance of the contract to clean Absorption Chiller No. 5, and in particular assigning any rights which BESCO had to the claim asserted by LSED in the present suit. Thus, if the contract was only with BESCO, as defendant contends, BESCO has assigned to plaintiff all of its rights to sue for breach of that contract.

We conclude there was a contract between LSED and Chemical Applicators for the cleaning of Absorption Chiller No. 5. Under the agreement between LSED and BESCO, the latter was acting as agent of the former in negotiating the contract with Chemical Applicators. This is clearly shown to be the understanding of the parties by the purchase order issued by the Division of Administration of the State of Louisiana on October 12, 1976 to Chemical Applicators for the cleaning of the chiller, and by the invoice issued by Chemical Applicators of date, October 18, 1976 directed to LSED for its charges in the sum of $615.80 for the services performed in cleaning the chiller.

Furthermore, if for any reason BESCO was not the agent of LSED in negotiating with Chemical Applicators the contract to clean the chiller, BESCO has assigned to the plaintiff, LSED, all of its rights to claim damages in this suit for breach of the contract.

The law is clear that where a party has been damaged by conduct arising out of a contract he may have a right to seek damages both in tort and for breach of contract. In this event, he has the option of pursuing either type of action. In this case, LSED has chosen to seek damages for breach of contract. See Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972) and the authorities cited therein. Plaintiff having chosen to seek damages for breach of contract, instead of tort, the applicable liberative prescription for this action is ten years under LSA-C.C. Article 3544. This suit was filed well within the ten-year period.

For the reasons assigned, the judgment appealed is reversed and set aside, it is now decreed that defendant’s exception of prescription is overruled. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant-appellee. Costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.


text:
    Melvin D. VALLERY, Plaintiff-Appellant, v. Winston W. BELGARD, Defendant-Appellee.
    No. 7328.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Pharis & Pharis, James A. Pharis, Alexandria, for plaintiff-appellant.
    Hickman & Toups, John R. Hickman, Alexandria, for defendant-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff-buyer, Melvin D. Vallery, and defendant-seller, Winston W. Belgard, executed a written contract to buy and sell certain immovable property. Plaintiff refused to complete the sale on the ground that defendant’s title to the property involved was unmerchantable and demanded the return of his deposit in the amount of $3000.00. Asserting he held a merchantable title, defendant rejected plaintiff’s demand and claimed plaintiff forfeited the deposit pursuant to their written contract. Thereafter, plaintiff filed suit seeking the return of his deposit plus an equal amount as a stipulated penalty and attorney’s fees. Defendant reconvened seeking forfeiture of the buyer’s deposit and attorney’s fees. After trial on the merits, the trial court found defendant’s title unmerchantable and rendered judgment ordering the buy and sell contract cancelled and a return of the deposit to plaintiff; all other demands were denied and court costs were divided equally between the plaintiff and defendant. From this judgment plaintiff appeals and asserts that an amount equaling the deposit and attorney’s fees are due him in addition to the return of the deposit as provided by the written agreement. Defendant answered the appeal seeking a reversal of the trial court’s decision.

The issues presented on appeal concern (1) the merchantability of the seller’s title; (2) the rights and obligations of the parties under the buy-sell agreement; and, (3) whether the trial court erred in assessing costs equally between defendant and plaintiff.

MERCHANTABLE TITLE

Plaintiff agreed to buy from defendant and the latter agreed to sell a fifteen acre tract situated in Rapides Parish, Louisiana. The parties signed a written contract to that effect on April 6, 1978. Pursuant to the terms of the contract, the sale was to be consummated on or prior to May 16, 1978, provided that if bona fide curative work in connection with the title was required, the time of sale was extended for a period of 30 days reckoning from the date of receipt by defendant of plaintiff’s attorney’s opinion. The contract also provided that defendant was to deliver to plaintiff a merchantable title and his inability to deliver such title within the time stipulated rendered the contract null and void, reserving, however, plaintiff’s right to demand the return of his deposit.

After the agreement was signed, an examination of title by plaintiff’s attorney revealed some uncertainty as to the location of the southwest boundary of the tract, the effect of which rendered questionable the title to .4738 acres of the property contracted to be bought and sold. In a title opinion dated May 11, 1978, prepared by plaintiff’s attorney, the defect in ancestral title was described as follows:

“In the Sale and Mortgage, Rubin M. O’Neal to W. R. Core, dated February 8, 1952, filed and recorded February 14, 1952 at Conveyance Book 425, page 265, the description of the property includes all property in Section 35, lying North of a projection of the North line of Sections 42, 43 and 44, less a portion of Section 35 lying South of Holloway Prairie Road according to the Plat of L. J. Daigre which is attached thereto.
The North line of Sections 42 and 43 are in a line, but the North line of Section 44 lies slightly southerly of the North line of Sections 42 and 43. This means there is a possibility of a dispute concerning an irregular shaped parcel that is 2.94 X 1.37 chains (194.04 X 90.42 feet) lying in the most southwesterly portion of the property. I can show you this on the Daigre Plat dated May 2, 1974.”

The defect in title referred to above is graphically illustrated by comparing the L. J. Daigre plat dated April 28, 1942 referred to supra in the O’Neal — Core conveyance and the Daigre plat dated May 2, 1974, which is attached to the , act conveying title to defendant. In the former, the southern boundary of the tract is along a projection of the north line of Section 42 and 43; while in the latter plat, the southern boundary is along a projection of the north line of Section 44.

Defendant was notified of the defect in title through his attorney by telephone and subsequently in a letter dated June 12, 1978. No curative measures were taken by the defendant in connection with the title prior to the date stipulated in the contract for execution of the sale, nor were any curative steps taken in the 30-day extension after communication of the defect.

The trial court was of the opinion that the defect, though relative to only a small portion of the property (.4738 acres), caused doubt as to the boundary line which could be litigious and concluded that the title was therefore unmerchantable as of the time stipulated for delivery in the written agreement.

The issue of merchantability of title to immovables has often been litigated before the courts of Louisiana. The established principles applicable in the present case were set forth in Young v. Stevens, 252 La. 69, 209 So.2d 25 (1968):

“. . . Property has a merchantable title when it can be readily sold or mortgaged in the ordinary course of business by reasonable persons familiar with the facts and questions involved. Roberts v. Medlock, 148 So. 474 (La.App.1983). ‘[0]ne should not be made to accept a title tendered as good, valid and binding unless it is entirely legal from every point of view.’ Bodcaw Lumber v. White, 121 La. 715, 721, 46 So. 782, 784 (1908). The promisee in a contract to sell is not called upon to accept a title which may reasonably suggest litigation. Marsh v. Lorimer, 164 La. 175, 113 So. 808 (1927). And while the amount involved may be small, ‘it cannot be said that because of this fact the danger of litigation is not serious. No one can be forced to buy a lawsuit * * * ’ Rodriguez v. Schroder, 77 So.2d 216, 224 (La.App.1955). See Patton on Titles § 46 et seq. (2d ed. 1957); 92 C.J.S. Vendor and Purchaser §§ 209, 211 (1955); 55 Am.Jur. Vendor and Purchaser §§ 252, 253, 254 (1946).”

Plaintiff in the present case was faced with the reasonable likelihood of future litigation concerning location of the southwest boundary of the tract he contracted to buy. In view of this prospect, plaintiff refused to perfect the sale. We share the trial judge’s opinion that the title was unmerchantable and by the very terms of the written agreement, plaintiff was within his rights to refuse to execute the sale.

RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT

The contract in part provides as follows:

“. . . The Seller shall deliver to Purchaser a merchantable title and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto Purchaser the right to demand the return of the deposit from the holder thereof.

In the event of the Seller defaulting, the Purchaser shall have the right either to demand the return of his deposit in full, plus an equal amount to be paid as penalty by the Seller; or the Purchaser may demand specific performance, at his option.
In the event the Purchaser fails to comply with this agreement within the time specified, the Seller shall have the right to declare the deposit, ipso facto, forfeited, without formality beyond tender of title to Purchaser; or the Seller may demand specific performance.
In the event the deposit is forfeited by Purchaser as above the Realtor’s commission shall be paid out of this deposit, reserving to the Seller the right to proceed against the Purchaser for the recovery of an amount equal to the commission paid.
Seller agrees to pay the Agent’s commission as per listing agreement which commission is earned by Agent when this agreement is signed by both parties and a mortgage loan commitment, if applicable, is obtained.
Either party hereto who becomes in default of the contract is obligated and agrees to pay the Agent’s commission and all fees and costs incurred in enforcing collection and damages.”

Plaintiff asserts that the failure of the trial court to award the stipulated penalty and attorney’s fees in accordance with the second and last paragraphs quoted above was error. We disagree.

The second paragraph of the contract quoted above, upon which plaintiff relies for double the deposit back, sets forth the rights of the buyer in the event the seller defaulted in his primary obligation, i.’ e., the seller held a merchantable title to the property and refused to deliver same to the purchaser at the designated time. Defendant in this case did not have a merchantable title to deliver to plaintiff for the reasons set forth above. The contract was voided by the provisions of the first unnumbered paragraph quoted above which effectively precluded either the seller or the buyer from being in default of their respective duties to sell and buy under the contract. There no longer was a contract to buy and sell. The provisions concerning the default of either party under such contract are inapplicable. The default provisions contained in the contract were simply secondary obligations undertaken to support the primary undertaking to buy and sell the specific property; once the primary obligations were voided by the terms of the contract, the secondary obligations likewise became ineffective. LSA-C.C. Article 2117 et seq.; Richmond v. Krushevski, 243 La. 777, 147 So.2d 212 (1962); Lake Forest, Inc. v. Bon Marche Homes, Inc., 356 So.2d 1133 (La.App. 4th Cir. 1978). Inasmuch as the contract to buy and sell became null by reason of the defendant’s inability to deliver a merchantable title, there was no authority for the trial court to award the penalty plaintiff demanded and the trial judge was correct in not doing so.

We likewise find plaintiff’s demand for payment of attorney’s fees under the provisions of the last unnumbered paragraph without merit. The clear meaning of the language set forth in the paragraph referred to is to cast a defaulting party with the obligation of paying “the Agent’s commission and all fees and costs incurred in enforcing collection and damages”. The effectiveness of the provision concerning attorney’s fees is predicated upon a party being “in default of the contract”. As previously demonstrated the contract was rendered null and void, pursuant to the express terms thereof, because of the inability of the seller to deliver a merchantable title. Under such circumstances neither party can be “in default of the contract” and the provision upon which plaintiff relies for an award of attorney’s fees is therefore without effect.

THE AWARDING OF COSTS

Plaintiff contends, finally, that the trial court erred in assessing a portion of the costs against him.

Although the general rule is that the party cast in judgment should pay all costs, the trial court has much discretion in assessing court costs. LSA-C.C.P. Article 1920. The appellate court also is authorized to tax costs as in its judgment may be considered equitable. LSA-C.C.P. Article 2164.

In the instant case, the trial court rendered a judgment intended “to place the parties back the way they were before they entered into the transaction”. Considering the case in its entirety, we conclude that the trial court did not abuse its discretion in dividing the court costs equally between the plaintiff and defendant. We will do likewise in assessing appellate costs.

Por the above and foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are to be divided equally between the plaintiff-appellant and the defendant-appellee.

AFFIRMED.

      . Although it appears from the record that the parties did engage in some negotiations as to the possibility of reducing the tract to be sold by the .4738 acres in question and a reduction in price, such negotiations were without success. In any event, both parties seek to enforce the particular written agreement entered into on April 16, 1978, and such extraneous negotiations were not “curative” nor relevant to the merchantability of the title under the terms of the written agreement.

      . At trial, plaintiff also argued that the property was an enclosed estate, therefore making title unmerchantable. The trial court did not feel that access to the property from a public road constituted an issue re merchantable title. We need not express an opinion on this question as it is not raised on appeal. However, in this regard, c. f., Solar Gen. Contractor v. Urban Redevelopments, 345 So.2d 558 (La.App. 4th Cir. 1977); Norgren v. Horwell, 172 So.2d 723 (La.App. 4th Cir. 1965).

      . We observe that our brethren of the Fourth Circuit have held, in a long line of cases the latest of which is Lanusse v. Gerrets, 357 So.2d 45 (La.App.1978), that the last quoted paragraph on page 6 of this opinion does not permit the recovery of attorney’s fees by the buyer or seller, but rather only by the agent. We neither approve nor disapprove of this interpretation of the clause in question preferring to rest our decision on the premise that the provision operates only against a party “in default of the contract”.


text:
    James O. MOSS, Jr., Plaintiff-Appellee, v. Sara Ann Bishop MOSS, Defendant-Appellant.
    No. 7406.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendant-appellant.
    Anderson, Leithead, Scott, Boudreau & Savoy, Richard L. Savoy, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   DOMENGEAUX, Judge.

From an adverse judgment rendered by the Fourteenth Judicial District Court, Sara Ann Bishop Moss has perfected this appeal to request (1) permanent alimony, and (2) an increase in the amount of child support awarded to her. No appeal has been taken from those portions of the judgment which granted James 0. Moss, Jr. a divorce based on living separate and apart from his former wife for at least one year from the date of their legal separation, and which awarded to Mrs. Moss the permanent care, custody, and control of the four minor children born of the marriage between Mr. and Mrs. Moss. The four children, all boys,, were aged 17, 16, 14, and 9 at the time of trial.

At the time of the separation, the Court ordered Mr. Moss to pay $400.00 per month as alimony pendente lite and $600.00 per month as child support at a time when all four of the children were residing with their mother. In the judgment of divorce Mrs. Moss was awarded no alimony and the child support was increased to $250.00 per month for each of the two children then residing with their mother, while it was decreased to $100.00 per month for each of the other two children whenever they resided with her.

POST-DIVORCE ALIMONY

Article 160 of the Louisiana Civil Code authorizes a judicial award of alimony after divorce to the spouse in need. When trial of this dispute was conducted, Article 160 read as follows:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
1. The wife obtains a divorce;
2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

By the terms of Article 160 Mrs. Moss might be eligible for alimony of up to one-third of her former husband’s income since she was without fault. However, she bears the burden of proving that she has insufficient means for her support. Bowman v. Bowman, 355 So.2d 564 (La.App. 3rd Cir. 1978); Pleasant v. Pleasant, 362 So.2d 1171 (La.App. 2nd Cir. 1978).

The term “support” or “maintenance” has been interpreted to include food, clothing, and shelter, the basic necessities of life, Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), as well as reasonable and necessary transportation expenses, utility expenses (such as gas and electricity), medical and drug expenses, household expenses, and income tax liability generated by the alimony payments, Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

The only evidence of Mrs. Moss’ monthly expenditures for her support is a handwritten list offered as evidence which Mrs. Moss read during her testimony. On the basis of the list Mrs. Moss calculated her monthly expenses to be about $2,000.00. Counsel for plaintiff objected to the introduction of the list since Mrs. Moss could produce no receipts or cancelled checks or other evidence which would have supported her claimed expenses. The Judge overruled the objection and allowed the list to be received in evidence as an estimate. We note here that the list included many expenses which are not within the scope of Article 160, such as pleasure trips, her college tuition (even though there is no evidence that she is still a student), bank overdrafts, church contributions, “special occasions” (such as Valentine’s Day or Mother’s Day), and others. Many of her other listed expenses would be more appropriately classified as child support expenses and should not be considered when determining whether alimony is due. Among these expenses would be children’s tuition and other school expenses, children’s medical bills, and the proportion of household expenses attributable to the children’s use.

When considering whether a spouse’s means are sufficient to support her (or his) needs, the Court must look to the income and property of the spouse requesting alimony before making its determination. Smith v. Smith, supra; White v. White, 356 So.2d 1023 (La.App. 1st Cir. 1977).

Mrs. Moss enjoyed an extensive education. Years before the trial she earned a degree in English and in May of 1978 she earned a Master’s degree in Guidance and Counseling. During the school year preceding the trial Mrs. Moss had taught classes at McNeese and at the Episcopal Day School. Nevertheless, she was unemployed at the time of trial, and her status as a member of the regular work force remained in doubt since none of her five job applications had borne any offers of employment. She did have a temporary job lined up with the McNeese State University Placement Office which was to begin June 6, 1979, shortly after trial. But this job was to last only two months and would result in income of only $300.00 per month.

Mrs. Moss had other property in addition to the prospective income. Her one-half interest in community owned stock was valued at $17,175.00, her share of a community savings account amounted to $2,890.24, and her checking account contained a balance of $2,000.00. Thus, her liquid assets totalled over $22,000.00.

In addition to her liquid assets Mrs. Moss owned a two-bedroom home located in Lake Charles, valued at $32,000.00. The $10,-000.00 down payment reflected her equity in the home. Funds for the down payment she received as her share of the sale of the former community home. She also owned a 1975 or 1976 model Chevrolet automobile of unknown value.

A community-owned pension and profit sharing plan with an estimated value of $38,000.00 remained undivided. The trial court correctly excluded this asset in determining whether Mrs. Moss had sufficient means for her support since her interest would not be available to her until Mr. Moss reached the age of 65, twenty-eight years after the trial.

In dispute is whether Mrs. Moss owned 13/aoths of 313 acres of land in Mississippi. The trial judge in his reasons for judgment said:

“The Court can do nothing other than take notes of the evidence in the record, demonstrated by deeds that Mrs. Moss owns 13/soths, undivided interest, in 313 acres of cotton-farming land in Mississippi. I do not know the value of that land, but I would equate it to the value of rice-farming land in this area, so far as monetary worth is concerned, and I believe that I can take judicial notice that such land presently has a market value of some $1,200.00 per acre, which would indicate that Mrs. Moss actually owns, as record title owner, an interest in that property, with a present market value of approximately $187,000.00. . . . ”

Counsel for Mrs. Moss claims the trial court erred (1) in considering the Mississippi property as property belonging to Mrs. Moss, and (2) in taking judicial notice of the relative value of cotton-farming and rice-farming land.

Our review of the record has produced no deed transferring the ownership of the property to Mrs. Moss. In fact, the record shows that the trial court denied admission of the deed into evidence. The testimony of Mrs. Moss indicates she was deeded the land but she claims she has never received any income from the property and was, in fact, unaware of the deed’s existence until it was shown to her at her deposition. Her understanding is that the land was deeded to her by her mother, who is still alive, so that Mrs. Moss’ inheritance tax liability, created when her mother dies, will not be so onerous. No evidence was presented to rebut her testimony.

Assuming the evidence did establish Mrs. Moss’ ownership of the property in Mississippi, the trial court erred by taking judicial notice of the value of that land. Judicial notice may be taken only of facts which may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence, and a court may not take judicial notice of a fact merely within the Judge’s individual knowledge. State, Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970). The value of neither rice-farming land nor cotton-farming land forms part of the common knowledge, hence the Judge erred in taking judicial notice of the value of such land. In the absence of evidence rebutting Mrs. Moss’ testimony or evidence tending to prove the value of the land in Mississippi, the trial court should not have considered the property at all in determining whether the means Mrs. Moss had at her disposal were sufficient to meet essential expenditures.

Even without considering Mrs. Moss’ apparent undivided interest in the Mississippi acreage, we conclude that Mrs. Moss has not overcome the burden of proving she has insufficient means for her support. We find that the means she has at her disposal —$22,000.00 worth of liquid assets, a temporary income of $300.00 per month, and other assets that she owns, such as her home and automobile, are adequate to meet her “maintenance” expenses as that term is defined in Smith and Bernhardt, supra. Other of her listed expenses which directly pertain to the support of her two younger sons are properly allocable to the child support payments she has been receiving and will continue to receive from her former husband.

Our finding that Mrs. Moss presently has sufficient means for her support under these circumstances is not without precedent. Other decisions have held that a former wife’s claim to permanent alimony will be defeated if she has liquid assets of $20,-000.00 or more. Paddison v. Paddison, 255 So.2d 504 (La.App. 4th Cir. 1971); Garrett v. Garrett, 229 So.2d 213 (La.App. 2nd Cir. 1969). The $20,000.00 figure is not sacrosanct. We recognize that the rate of asset depletion will be greater today because $20,000.00 will purchase fewer goods and services than it did when Paddison and Garrett were decided a decade ago. Yet, there is no other legislative or jurisprudential guideline establishing the percentage of asset depletion required before a spouse’s means will be held inadequate and alimony will be awarded. In the absence of more convincing proof of need, however, we decline to reverse the District Judge when it was within his great discretion to refuse alimony even without considering the Mississippi property. Should Mrs. Moss need to claim permanent alimony in the future because of changed circumstances, she has the right to do so. La.C.C. Art. 160.

CHILD SUPPORT

The judgment of the District Court awarded permanent custody of the four children to Mrs. Moss. However, the Judge found that only the two youngest sons lived with their mother in Lake Charles. The two older boys lived with their paternal grandmother in Ferriday, Louisiana, and attended private school there. Accordingly, the Judge awarded Mrs. Moss child support in the amount of $250.00 per month for each of the two children living with Mrs. Moss ($500.00 per month), and $200.00 per month whenever the two oldest sons are residing with their mother. Mrs. Moss has asked the Court to increase the child support to $250.00 per month per child.

Defense counsel argues that the Court cannot consider the children to be living anywhere other than with the parent who has obtained custody of the child. Some testimony of Mrs. Moss indicates that she requested that the two older boys return to the new home she had purchased to live with her in Lake Charles. However, when questioned by the Court, Mrs. Moss did not know where the children would be residing, and at the time of trial they were not residing with her.

It is true that the parent with custody controls the affairs and lifestyles of the children. deBoisblanc v. deBoisblanc, 337 So.2d 573 (La.App. 4th Cir. 1976). It is equally true, when calculating the amount of child support, that all of the varying facts and circumstances of each individual case must be taken into account in fixing the amount awarded. Fall v. Fontenot, 307 So.2d 779 (La.App. 3rd Cir. 1975). The trial court did not abuse its discretion by considering that the older sons actually lived with their paternal grandmother and not with their mother. It is clear from Mrs. Moss’ testimony that she expends nothing to provide for the support of her two older sons except when they visit her, and on those occasions her expenses are not increased substantially. We find no abuse in discretion in the award of $200.00 for child support for the two older boys whenever they are residing with their mother. Mrs. Moss, of course, has the right, in the future, to request an increase in child support in the event that the circumstances have changed. Finley v. Finley, 305 So.2d 654 (La.App. 1st Cir. 1974).

In support of her request for an increase in child support, Mrs. Moss suggests, through counsel, that the Judge “felt that for each child residing with Mrs. Moss, the child support should be fixed at $250.00 per month.” No rule of law requires that an equal amount of child support be awarded for each child, especially when some of the children are not residing with the parent awarded custody. We find the trial judge acted within the great discretion accorded him in matters of this kind. The judgment will be affirmed.

DECREE

For the above and foregoing reasons the judgment of the District Court is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.

      . Effective June 29, 1979, Act 72 of 1979 amended Article 160 by making it gender-neutral. Under the amended Article 160 either spouse in need may obtain alimony. In Lovell
        v. Lovell, 378 So.2d 418 (La.1979), the Louisiana Supreme Court declared Article 160, as written prior to its amendment by Act 72 of 1979, unconstitutional as violative of the equal protection clause of the state and federal constitutions. This holding was prompted by the decision of the United States Supreme Court in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which held unconstitutional an Alabama statute similar to Article 160 before its amendment in 1979. In the course of its decision in Lovell, the Supreme Court overruled Loyacano v. Loyacano, 358 So.2d 304 (La.1978), and further declared that all judgments awarding alimony prior to the effective date of the amendment (June 29, 1979), were not affected by the decision. Judgment in this case was signed June 8, 1979. Thus, neither Lovell nor Act 72 of 1979 affects the judgment of the District Court.

      . Her bank statements and cancelled checks had been subpoenaed but Mrs. Moss and her attorney neglected to bring them to trial.

      . Her one-half interest in the stock and in the savings account were tendered to her during the trial.

      . Mrs. Moss refused an offer of $15,000.00 for her share of the plan. Counsel for Mr. Moss contends that the offer was very reasonable. We opine that she was under no legal obligation to accept the settlement offer, despite its apparent reasonableness. See Meyer v. Meyer, 357 So.2d 832 (La.App. 4th Cir. 1978), for a similar holding.

      .We note that he did so because the deed was attached to Mrs. Moss’ deposition which was not allowed as evidence because Mrs. Moss was available for cross-examination. The Judge ruled that since she had identified the deed in her deposition, she could do so again during her testimony at trial. Also, the Judge could possibly have excluded the deed from the record because counsel for Mrs. Moss claimed it was inadmissible simply because it was not in proper form.

      . Simply to make the record complete, we note that Mr. Moss earns in excess of $40,000.00 per year as a petroleum engineer. The fact that he may be able to afford paying alimony is not important in deciding whether alimony should be awarded. The award is based solely on a showing by the wife that she was not at fault and that she does not have sufficient means for her support. The income of the husband is not considered until after the wife has proven she is in need of alimony.

      . This living arrangement was apparently mutually agreed upon. Mrs. Moss’ testimony indicates that the decision to leave the home in Lake Charles to reside with the grandmother in Ferriday lay with the older boys and not with Mr. Moss.

      .In his reasons for judgment the trial judge made the award of $200.00 per month whenever the two oldest sons visited with their mother. However, the signed judgment provides that the $200.00 per month award becomes effective whenever the two oldest sons are residing with their mother. It is not clear why the wording of the judgment is different from the wording of the reasons for judgment.