author: LEMMON, Justice. BLANCHE, Justice MARCUS, Justice

text:
    STATE of Louisiana v. Bennie JOHNSON.
    No. 81-K/A-3313.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Larry J. Radosta, Asst. Dist. Attys., for plaintiff-appellant.
    Walter L. Adams, Jr., New Orleans, for defendant-appellee.
   LEMMON, Justice.

This matter is before the court on an appeal by the state from a judgment declaring R.S. 46:236.1 unconstitutional because it conflicted with the discretion vested in the trial court by R.S. 14:74. We agree with the state that there was no conflict in this case and that the ruling on constitutionality was unnecessary, but we do not agree that the statute prohibits the discretionary ruling issued by the trial judge in this case.

Defendant had been convicted of criminal neglect of family, and the trial judge suspended imposition of sentence and ordered defendant to make support payments of $40 per week to the Office of Family Services. After, making payments for several months, defendant informed a clerk in the Child Support Division of the district attorney’s office that he had been laid off from work and would contact the officer and resume payments when he found another job.

When several weeks passed without further communication from defendant, the district attorney filed a rule for contempt. After several delays, the trial judge determined at a hearing that defendant had been unemployed and without income for about eight weeks during the interval between the last payment and the hearing on the rule. When the judge ordered that defendant be given credit against his support obligation for those eight weeks, the district attorney objected on the basis that R.S. 46:236.1 I prohibits cancellation of accrued arrearages unless the Department of Health and Human Resources determines there is no reasonable possibility of collecting the arrearages. Thereupon, the trial judge declared the statute unconstitutional. Hence this appeal.

The trial court held that R.S. 46:236.1 1 is unconstitutional because the statute conflicts with the trial judge’s authority to exercise discretion and increase or decrease from time to time the amount of the payments. The state argues that the trial judge has the authority to modify a judgment of support, but could not do so in this case because defendant never filed a motion to reduce or suspend support payments. In support of this argument, the state cited Snow v. Snow, 188 La. 660, 177 So. 793 (1937) and Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950), interpreting C.C. Arts. 227 and 232.

The state confuses defendant’s civil obligation to support his children with the criminal sanctions at issue in this case. Perhaps in the civil law the award of child support, once judicially determined, cannot be suspended or. decreased until the person under the order files a pleading seeking that relief. However, R.S. 14:74, which is the basis of the present action, requires intentional failure to comply with a support order as an element of the criminal offense. Therefore, an accused cannot be constitutionally convicted for failing to make support payments during a period when he did not have the financial means or ability to provide support. State v. Moran, 400 So.2d 1359 (La.1981).

The trial judge in the present ease found as a fact that defendant had no income during the eight weeks in question and recognized that he was not guilty of intentional nonsupport during that period. The judge’s ruling therefore did not cancel any valid arrearages, but simply decreed that no payments were validly due under the criminal statutes during that eight-week period, irrespective of defendant’s failure to file pleadings requesting suspension of payments. Accordingly, the trial judge’s ruling did not conflict with R.S. 46:236.1 I, and it was not necessary to declare the statute unconstitutional in order to remove any conflict.

For these reasons, that portion of the judgment of the trial court which declares R.S. 46:236.1 unconstitutional is reversed. However, the remainder of the judgment which effectively deletes eight weeks of payments from the calculated arrearage on defendant’s support obligation is affirmed.

DIXON, C. J., concurs.

DENNIS, J., concurs in part, dissents in part, for reasons assigned by BLANCHE, J.

BLANCHE, J., concurs in part, dissents in part and assigns reasons.

MARCUS, J., dissents and assigns reasons.

BLANCHE, Justice

(concurring in part and dissenting in part).

I concur that the statute is constitutional. I concur that the defendant was not in contempt of court.

I disagree that the defendant should be given credit against his support obligation for the eight weeks he did not make payment. According to the statute, the court may not cancel any accrued arrearages unless the Department has determined there is no reasonable possibility of collecting the arrearages. Giving the defendant credit is, in effect, cancelling the arrearages.

I therefore respectfully dissent from the opinion insofar as it gives credit for the accrued arrearages against the defendant’s support obligations.

MARCUS, Justice

(dissenting).

I agree that La.R.S. 46:236.1 is not unconstitutional. Also, I agree that the trial judge has discretion not to hold defendant in contempt for his failure to make support payments during the eight-week period when he was out of work. However, when the trial judge ordered defendant to be given credit against his support obligation for those eight weeks, it had the effect of cancelling “accrued arrearages” without the approval of the department contrary to the clear wording of La.R.S. 46:236.1. Accordingly, I respectfully dissent.

      . R.S. 46:236.1 I provides in part:
      “In all cases in which support rights have been assigned to the department as a condition of eligibility for AFDC, and in all civil or criminal or juvenile support proceedings initiated by the department in its own behalf or on behalf of a non-AFDC applicant to obtain an order, judgment, or agreement of support, or to recoup support payments against the responsible person, the court shall not cancel any accured arrearages unless the department, through the SES Administrator, has determined that there is no reasonable possibility of collecting the arrearages. ” (Emphasis supplied.)


source: Caselaw Access Project

license: Public Domain

text:
    In re Application of Jane DOE, a Minor.
    No. 82-0-0329.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Jane Doe, a minor, applying for an order, authorizing an abortion. Parish of St. John the Baptist. No. 387.

Granted, reversed and remanded. Ruling of trial judge declaring Act 774 of 1981 unconstitutional is reversed and set aside. Case remanded to district court with instructions to trial judge to conduct a hearing in accordance with La.R.S. 40:1229.35.5. Cf. Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); H. L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). See also In re Application of Jane Doe, 407 So.2d 1190 (La.1981).


text:
    STATE of Louisiana ex rel. Roderick W. PARKER v. Charles S. BECNEL, Judge, Roland Marquette, et al. (Clerk of Court) 23rd Judicial District Court, Parish of Assumption, State of Louisiana, Napoleonville, Louisiana.
    No. 81-KH-2652.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Roderick W. Parker, applying for writ of prohibition and mandamus. Parish of Assumption. No. 29447.

Granted. The trial judge is ordered to act on relator’s application.


text:
    STATE of Louisiana v. William B. TAYLOR.
    No. 82-K-0426.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re William B. Taylor, applying for writ of review. Parish of Terrebonne. No. 115681.

Granted. The trial court is ordered- to have the preliminary hearing transcribed.


text:
    STATE of Louisiana, ex rel. Freddie CLEMENTS v. STATE of Louisiana.
    No. 82-KH-0438.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Freddie Clements, applying for motion for bond reduction. Parish of Orleans. No. 279-959.

Granted. Relator’s motion is transferred to district court for action.


text:
    STATE of Louisiana, ex rel. William L. LALANNE v. STATE of Louisiana and Honorable Judge of the 31st Judicial District Court of Jefferson-Davis Parish.
    No. 82-KH-0544.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re William L. Lalanne, applying for writ of mandamus. Parish of Jefferson-Davis. No. CR-1767-80.

Granted. The trial court is directed to decide the speedy trial motion forthwith.


text:
    STATE of Louisiana v. Paul KNOWLES, Jr.
    No. 82-K-0412.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Paul Knowles, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 81-1135.

An out of time appeal is granted and relator is ordered returned to parish jail.


text:
    STATE of Louisiana ex rel. Arnold Franklin HORTON v. CLERK OF COURT, 14TH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU.
    No. 81-KH-3278.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Arnold Franklin Horton, applying for writ of mandamus. Parish of Calcasieu. Nos. 1859-77 and 1860-77.

Writ granted in part and denied in part. The trial court is ordered to furnish relator with a copy of his Boykin transcript. Relator’s request for a sentencing transcript is denied.


text:
    STATE of Louisiana ex rel. Benjamin DEDON v. CLERK OF COURT, 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 81-KH-3316.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Benjamin Dedon, applying for writ of mandamus, to the 19th Judicial District Court. Parish of East Baton Rouge. No. 77-194.

Writ granted in part and denied in part. The trial court is ordered to furnish relator with a copy of his Boykin transcript. Relator’s request for a sentencing transcript is denied.


text:
    STATE of Louisiana ex rel. John Charles STEIN, Jr. v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2922.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re John Charles Stein, Jr., applying for reconsideration of denied writ of February 12, 1982. Parish of Caddo. Nos. 94-047, 94-048 and 99-012 HC.

Denied.


text:
    STATE of Louisiana ex rel. Matthew HENDERSON v. STATE of Louisiana.
    No. 81-KH-2980.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Matthew Henderson, applying for reconsideration of denied writ of January 8, 1982. Parish of Orleans. No. 255-000.

Reconsideration denied. Moot.


text:
    STATE of Louisiana ex rel. Ruffin McShellum v. William M. JUSTICE and Patricia Larose.
    No. 81-KH-2156.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Ruffin McShellum, applying for writ of mandamus. Parish of Jefferson. Nos. 79-2218 and 81-120.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Reginald Ray HANDLEY v. Frank BLACKBURN, Warden.
    No. 81-KH-2668.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Reginald Ray Handley, applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of East Baton Rouge. No. 6-73-5034.

Denied.


text:
    STATE of Louisiana ex rel. Craig E. WHITT v. STATE of Louisiana, William Guste, Louis P. Trent, Robert Long and Charles C. Foti.
    No. 81-KH-2700.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Craig E. Whitt, applying for writs of certiorari and error. Parish of Orleans. No. 269-398.

Denied.


text:
    STATE of Louisiana ex rel. Larry PRICE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2701.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Larry Price, applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. Number unknown.

Writ denied.


text:
    STATE of Louisiana v. Gene LACHNEY.
    No. 81-K-2874.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Gene Lachney, applying for writs of certiorari, prohibition and mandamus. Parish of Avoyelles. No. 47-335.

Denied.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Michael R. SAVOY v. J. D. MIDDLEBROOKS.
    No. 81-KH-3013.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Michael R. Savoy, applying for supervisory and remedial writs. Parish of Pointe Coupee. Nos. 25957 and 25958.

Denied.


text:
    STATE of Louisiana ex rel. Clifford E. DAVIS, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3014.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Clifford E. Davis, Jr., applying for writ of habeas corpus. Parish of East Baton Rouge. No. 81-292.

Denied.


text:
    STATE of Louisiana ex rel. Henry ANDERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3044.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Henry Anderson, applying for writ of habeas corpus. Parish of Orleans. No. 260-387.

Denied.


text:
    STATE of Louisiana ex rel. John CLOUD v. N. Burl CAIN/Warden Dixon Correctional Institute.
    No. 81-KH-3076.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re John Cloud, applying for writs of certiorari. Parish of Evangeline. No. 23577.

Denied.


text:
    STATE of Louisiana ex rel. Richard A. LOTT v. Michael BEAUBOUEF, Sub Nomine Ross Maggio, Warden, Hunt Correctional Institute.
    No. 81-KH-3077.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Richard A. Lott, applying for writs of habeas corpus. Parish of St. Tammany. Number unknown.

Writ denied.


text:
    STATE of Louisiana, ex rel. Clarence COLLINS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3122.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Clarence Collins, applying for writ of habeas corpus and remedial writs. Parish of Orleans. No. 274-219.

Denied.


text:
    STATE of Louisiana, ex rel. Thomas E. SMITH v. Michael BEAUBOUEF, Warden Hunt Correctional Center.
    No. 81-KH-3127.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Thomas E. Smith, applying for remedial writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Jefferson-Davis. Nos. CR-1812-80 and CR-1813-80.

Denied.


text:
    STATE of Louisiana ex rel. Douglas MIX v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3148.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Douglas Mix, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans. No. 252-638.

Denied.


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Nason Gene SOILEAU v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 81-KH-3215.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Nason Gene Soileau, applying for writ of certiorari, prohibition, mandamus and habeas corpus. Parish of Acadia. No. 31276.

Denied.

CALOGERO, J.,

concurs in the denial. Relator has not sought or shown why he might be entitled to an out of time appeal.


text:
    STATE of Louisiana ex rel. Tyronne WRIGHT, Sr. v. Judge Rudolph BECKER, III.
    No. 81-KH-3218.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Tyronne Wright, Sr., applying for writ of mandamus. Parish of Orleans. No. 265-580.

Denied.


text:
    STATE of Louisiana ex rel. Lyman THOMPSON v. John JOYCE, Judge, Div. “E” 4th Judicial District Court.
    No. 81-KH-3223.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Lyman Thompson, applying for writ of certiorari, mandamus and prohibition, to the 4th Judicial District Court. Parish of Ouachita. No. 39175.

Denied.


text:
    STATE of Louisiana, ex rel. Robert Neal GREEN v. Acton HILLEBRANDT, Clerk, Fourteenth Judicial District Court, Parish of Calcasieu, et al.
    No. 81-KH-3276.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Robert Neal Green, applying for writ of certiorari. Parish of Calcasieu. No. 9266-79.

Writ denied.


text:
    STATE of Louisiana ex rel. Douglas R. GREMILLION v. Frank C. BLACKBURN.
    No. 81-KH-3280.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Douglas R. Gremillion, applying for remedial writs. Parish of Rapides. No. 170-975.

Denied.


text:
    STATE of Louisiana ex rel. Charles Mack GAY v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary and 3rd Judicial District.
    No. 81-KH-3305.
    Supreme Court of Louisiana.
    March 19, 1982.
   In re Charles Mack Gay, applying for remedial writ, to the Third Judicial District Court. Parish of Lincoln. No. 24095.

Denied.


text:
    STATE of Louisiana v. Anthony McCARTY.
    No. 82-K-0461.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re State of Louisiana, applying for writ of review, to the First Judicial District Court. Parish of Caddo. No. 116810.

Granted.

Consolidate with 81-KA-0377, State v. Shea.


author: COVINGTON, Judge.

text:
    Ross H. ROBERTSON, et al. v. Samuel TRAVIS, et al.
    No. 14986.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    L. B. Ponder, Jr., Amite, for plaintiff-appellant.
    Edward A. Griffis, Bogalusa, for defendant-appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS APPEAL

COVINGTON, Judge.

Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company) moved for dismissal of the appeal of the plaintiffs, Ross H. Robertson and Janice Dianne Robertson, on the ground that the appeal is moot.

This lawsuit was previously decided on the merits by this Court. See Robertson v. Travis, 393 So.2d 304 (La.App. 1 Cir. 1980), writs denied, 397 So.2d 805, 806 (La.1981). We reversed the trial court in part and cast Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company) for its $5,000.00 bodily injury liability limits.

The case presented a claim for only one bodily injury, namely to Janice Robertson; although Ross Robertson also sued for her medical expenses.

Plaintiffs’ counsel refused to accept the amount for which Employers Liability Assurance Corporation, Limited was cast; but instead demanded double the amount, claiming policy limits for each plaintiff, and attorney’s fees.

On April 27, 1981, the plaintiffs had a writ of garnishment served on the Commissioner of Insurance of the State of Louisiana, without notice to or service on Employers Liability. The Commissioner, through his counsel, answered the garnishment interrogatories on June 12,1981, denying any funds on hand, but indicating that the State Treasurer possessed a bond or security deposit of the insurance company. The plaintiffs, without serving a writ of fieri facias or seizure on the Treasurer of the State of Louisiana, ruled the Treasurer and the Commissioner of Insurance to show cause why there should not be a garnishment judgment. Even though the Commissioner of Insurance had denied having any funds on hand in his office, and the Treasurer was never served with the writ of fifa (nor was Employers Liability), the judge a quo signed a garnishment judgment on July 9, 1981, not only for the amount that Employers Liability was cast, but for the entire amount of the damages of the plaintiffs against all defendants, and included attorneys fees.

Subsequent to this, the Clerk of Court sent a notice of this garnishment judgment to Employers Liability through the Secretary of State. The record reflects that this was the insurer’s first notice of any seizure activity by the plaintiffs.

Employers Liability immediately made application for a new trial to set aside the garnishment judgment; and also deposited into the registry of the Court the sum of $12,723.78 (representing the $5,000 policy plus interest on that amount, interest on the amount of the judgment plus two-thirds of the court costs). The motion for new trial and to vacate the garnishment judgment was scheduled for hearing on August 4, 1981, before Honorable John D. Kopfler, City Judge, acting as Judge Pro Tempore in the District Court; and the motion and order requiring the plaintiffs to show cause why they should not accept the sum deposited in the registry of the court in full settlement and satisfaction of the judgment was set for hearing on September 21, 1981.

At the hearing on the motion for new trial and for an order vacating garnishment held on August 4, 1981, Judge Kopfler, after reviewing the record and permitting testimony and evidence on behalf of the plaintiffs, entered judgment vacating the garnishment judgment, and dismissing the writ of garnishment previously issued.

At the conclusion of the hearing, plaintiffs’ counsel notified the Court of intention to apply for writs and the judge set a return date.

On September 21, 1981, both counsel appeared in court before Honorable Gordon E. Causey, Judge, to be heard on the rule to show cause why plaintiffs should not be required to accept the amount deposited in the registry of the Court as full payment of the judgment. Plaintiffs’ counsel maintained he should recover double the limits (one limit for each plaintiff), plus attorney’s fees. After arguments had been made, the Clerk of Court mentioned that he had completed a record with the understanding that the plaintiffs had appealed the judgment of August 4, 1981, setting aside the garnishment. Plaintiffs’ counsel verbally indicated that he intended to go forward with the appeal, but that he would like to see what Judge Causey would rule. Counsel for the insurer pointed out that the trial court would be divested of jurisdiction if the plaintiffs had not abandoned the appeal. The judge a quo took the matter under advisement.

During the hearing, plaintiffs also submitted an ex parte order to the lower court to withdraw $10,000 of the funds deposited; and the trial court responded that plaintiffs would have the funds when the court decided how they should be disbursed. Subsequently, without counsel for the insurer present, the lower court signed the ex parte order; and the Clerk of Court wrote a check dated September 21, 1981, to plaintiffs’ counsel for the sum of $10,000.

On October 23,1981, Judge Causey signed a judgment, presented by plaintiffs’ counsel, which stated that the sum deposited in the registry of the court satisfied only the judgment of Janice Robertson (Hobbs), and which additionally cast Employers Liability for $1,133.80, with legal interest from June 30,1967, until paid and all costs, in favor of Ross Robertson for past medical expenses.

At about the same date, the clerk of the trial court completed the record for plaintiffs’ appeal of the August 4, 1981, judgment; and the record was lodged with this Court on October 28, 1981. This appeal is now pending on the docket of this Court, and is the subject of this motion to dismiss.

Employers Liability applied to this Court for a writ of mandamus, setting forth that it was prejudiced in that while plaintiffs continued to keep the matter in procedural suspense, Employers Liability had paid the judgment, the clerk of court had disbursed the deposited funds and the plaintiffs had accepted and received the same.

On November 16, 1981, this Court granted the writ application, docket number 15,-008 (La.App. 1 Cir. 1981), and issued a writ of mandamus, ordering the trial court to set aside the judgment of October 23, 1981, as null and void, and directing that court to render judgment recognizing that the judgment of plaintiffs against Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company) has been paid in full and directing the Clerk of St. Helena Parish to cancel from the mortgage records the judgment insofar as it relates to Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company).

Employers Liability has now moved this Court to dismiss the appeal concerning the garnishment judgment. The basis for dismissal is that the issue presented on appeal is moot.

As stated above, after appealing the judgment of August 4, 1981, (which set aside the garnishment judgment), plaintiffs applied to the trial court for withdrawal of $10,000 of the judgment funds on deposit, which withdrawal of said sum was made on September 21, 1981.

Furthermore, this Court has issued a writ of mandamus recognizing that the judgment against Employers Liability has been paid and satisfied in full. The trial court has complied with that order (Appendix A). Therefore, any issue concerning the garnishment judgment is moot.

In the case of Brannan v. Babin, 380 So.2d 163, 164 (La.App. 1 Cir. 1979), writ denied, 382 So.2d 165 (La.1980), this Court held that after the judgment had been satisfied, no practical result could follow from any action which the Court might take on appeal, stating:

“... It is well established that appellate courts do not give opinions on moot questions. Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968). Bradley and Braud, Inc. v. Canady, 342 So.2d 1184 (La.App. 1 Cir. 1977). Accordingly, the appeal is dismissed at appellant’s costs.”

Since the judgment which is the subject of this appeal is not a judgment on the merits of the case, but is in fact a judgment concerning a garnishment on a debt which has been paid, no practical result could follow from this appeal, hence, the issue presented on this appeal is moot.

Accordingly, the appeal is dismissed at appellants’ costs.

APPEAL DISMISSED.

APPENDIX A

ROSS H. ROBERTSON ET AL

VERSUS NO. 4629-B

SAMUEL. TRAVIS, ET AL

21ST JUDICIAL DISTRICT COURT

PARISH OF ST. HELENA

STATE OF LOUISIANA

JUDGMENT

Pursuant to the order of the Court of Appeal, First Circuit dated November 16, 1981 in the matter entitled “Ross H. Robertson, et al vs. Samuel Travis, et al" numbered 15,008 on the docket of the Court of Appeal, First Circuit granting writ of mandamus on the application of Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company) applying for supervisory writs:

IT IS ORDERED that the judgment of this Court dated October 23, 1981 be and the same is hereby set aside as being null and void:

IT IS FURTHER ORDERED that the judgment of the Court of Appeal, First Circuit dated December 15,1980 in the matter entitled “Ross H. Robertson, et al vs. Samuel Travis, et al” number 13,700 on the docket of the Court of Appeal, First Circuit easting Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company) herein be and the same is hereby recognized as paid in full and the Clerk of Court of the Parish of St. Helena, State of Louisiana is hereby authorized, directed and empowered to cancel from the mortgage records of this Parish the said judgment of the Court of Appeal, First Circuit dated December 15, 1980, and the judgment of this Court dated October 23, 1981, insofar as the said judgments relate to Employers Liability Assurance Corporation, Limited (now Commercial Union Insurance Company).

JUDGMENT RENDERED, READ AND SIGNED at Amite, Louisiana, this 13th day of January, 1982.

s/ Gordon E. Causey

Gordon E. Causey

Division “B”

      . It has been decided in the mandamus suit herein, Robertson v. Travis (La.App. 1 Cir. 1981), No. 15,008 on the Docket of this Court, writ denied, 409 So.2d 657 (La.1982), that a father cannot recover medical expenses if the personal injury claim has exhausted the policy limits. See Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972).


author: FRED W. JONES, Jr., Judge.

text:
    CONTINENTAL INSURANCE COMPANY, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellee.
    No. 14754.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.

      Davenport, Files, Kelly & Marsh by Thos. W. Davenport, Jr., Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for defendant-appellee.
    Before PRICE, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

The subrogated insurer of a cottonpicking machine sued the manufacturer for the amount plaintiff paid its insured following the loss by fire of the cotton picker because of an alleged manufacturing defect. From a judgment rejecting its demands, plaintiff appealed. We affirm.

On September 27, 1977 Eugene Stanley purchased from Scott Truck & Tractor Company of Delhi, Inc., a cottonpicking machine that had been manufactured by International Harvester Company. The cotton picker was insured against loss by fire under a policy issued by plaintiff.

Stanley, who had been in the business of picking cotton by machine for about two years, used his new machine to pick cotton on an 18 acre tract and then on a 200 acre tract. He next moved to the Hendrix farm to go back over a 75 acre tract which he had previously picked — an operation described as “scrapping”. In connection with this job the cotton picker was used “around the clock” — 24 hours a day.

At about 9:00 P.M. on October 28, 1977 Stanley had almost completed this job (lacking only two or three acres) when he noticed the cotton picker “lug down” or quit pulling momentarily. Reaching over to lift the “heads”, Stanley glanced down through a glass plate in the cab floor and observed a fire under the cab. He immediately stopped the machine, cut off the engine, exited the cab and jumped to the ground. Looking back, he saw fire going up into the cab and smoke billowing from the cotton picker, which was ultimately deemed a total loss due to the fire. This litigation ensued.

Rejecting plaintiff’s demands, the trial judge stated in oral reasons for judgment that plaintiff had failed to prove the existence of a manufacturing defect by a preponderance of the evidence.

Plaintiff’s principal complaints on appeal are that the trial judge erred in failing to find (1) that the fire itself was proof of a defect; (2) that the destruction of the machine was caused by a defectively manufactured or defectively installed fuel line; and (3) even if the cotton picker was free of defects, defendant was negligent in failing to warn of the fire hazard and to install fire suppression equipment on the cotton picker.

Media Production Consultants, Inc. v. Mercedes-Benz of North America, 262 La. 80, 262 So.2d 377 (1972) established a “consumer protection rule” in Louisiana, based upon the Civil Code redhibition articles, that imposed strict liability upon a manufacturer for the loss of the manufactured article due to a manufacturing defect, despite a lack of privity between the claimant consumer and the manufacturer.

This rule was adhered to in Rey v. Cuccia, 298 So.2d 840 (La.1974), which involved a consumer suit against the manufacturer and retail seller to recover the purchase price of a camper trailer that came apart after some 200 miles of use. Elaborating upon the method of proving a redhibitory defect in cases of this nature, the court explained:

“[e]ven where the defect appears more than three days after the sale ... if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale.
“The failure to prove inadequate welding to be the cause of the trailer break-up does not defeat the buyer’s cause of action. If the purchased vehicle breaks up soon after it is put into use, then this in itself (in the absence of other cause shown) may be evidence of a redhibitory defect, without the buyer being held to prove the specific cause of the vehicle’s break-up.”

In order to discharge its burden of proving a defect in the manufacture of the cotton picker, plaintiff offered the testimony of Norman Sachnik, a consulting engineer. Sachnik had considerable experience in the investigation of equipment loss due to fire, but conceded that his familiarity with mechanical cotton pickers was limited.

During the course of an intensive inspection of the engine compartment of the damaged cotton picker, Sachnik noticed distinctive burn patterns around one of the fuel lines and its injector, with evidence of particularly deep oxidation on the fuel line and a “hot spot” on the engine adjacent to that injector head: He surmised that there was possibly a fuel leak where the fuel line joined the injector.

Further testing led Sachnik to the conclusion that, in manufacturing this particular cotton picker, defendant’s employees had connected the fuel line in question to the injector at such an angle as to make it susceptible to fuel leakage over a period of time — as indicated by a dark, black color evidencing oxidation of the surface of the fuel line under extremely high temperature. Finally, it was Sachnik’s expert opinion that the fire started in the engine compartment of the cotton picker when either a “shorted” battery cable or heat from the manifold set fire to cotton lint which then worked its way around the engine to ignite fuel-soaked trash lying next to the defectively joined. fuel line and injector. Thereafter the fire spread simultaneously forward and backward under the cab.

To refute Sachnik’s theory concerning the origin of the fire, defendant offered the expert testimony of three of its employees.

Henry Dalloz, products performance engineer for defendant, explained that a mechanical cotton picker is a self-propelled implement with two drums or headers at the front end. Each header has 1120 spindles which turn on a plane, go into the cotton plant and selectively pick off the cotton, come back out and move around to a circular rubber pad called a “doffer”— which rubs the cotton off the spindles and drops it behind the header next to a rear door where the cotton is sucked up by an air system and dropped into a large basket. A hydraulic reservoir located adjacent to the engine firewall carries 15 gallons of oil that supplies the hydraulic system through rubber hoses.

Dalloz pointed out that, in the operation of a mechanical cotton picker, an accumulation of cotton and trash sometimes occurs in the rear doors of the headers. This choke might be severe enough at the beginning to activate a device which prevents the spindles from continuing to rotate. On the other hand, a less severe choke could lead to a gradual buildup of material back into the doffer area, where the doffers would spin it, causing friction and possibly a fire. The manufacturer had installed a glass plate in the cab floor to enable the machine operator to look down into the headers to see whether the material was flowing properly or whether a choke was developing.

Dalloz’s inspection revealed that there was more fire damage on the right side of the cotton picker than on the left. He observed that the right header appeared to have residue cotton and charred material at the bottom while the left header simply contained unburned cotton lint. He noted no fire damage to the battery cable inside the firewall near the battery nor any fire damage on the exhaust manifold side of the engine — tending to refute Sachnik’s theory concerning the possible ignition points of the fire.

It was Dalloz’s opinion that the fire resulted from a choke in the right header, consistent with the operator’s testimony that he looked down through the glass plate and saw fire concentrated to the rear of that header. Dalloz theorized that this fire would have spread through the hoses carrying fuel and would have been moved up and to the rear by the air conveyance system.

Dalloz explained that a choke was more likely to occur in a “scrapping” operation than in a regular one because the operator does not have to be as careful with the cotton plants (which have already been picked once), can operate his machine at a faster pace, and is more likely to pick up trash and sticks, which have a great potential for forming chokes.

D. G. Mittlestaedt, whose duties with defendant included failure analysis of diesel engines, examined the fuel line and fuel injector in question and testified that, contrary to Sachnik’s assertion, there was no defect in the joining of the two that caused a fuel leak. In fact, Mittlestaedt stated that the fuel line was so designed that it could be connected to the injector at a slight angle, without having to be perfectly seated, to form a seal.

Mittlestaedt tested fuel lines in three cotton pickers then in use, found that none leaked, removed and brought them to court and demonstrated that all had about the same angularity in the connection with their injectors as the fuel line in question.

Noting the testimony of the operator that his machine was running smoothly just pri- or to the fire, Mittlestaedt observed that if there had been a fuel leak the engine would “have missed like crazy.”

James M. Francis, a manager at defendant’s Memphis plant which manufactured the machine involved in this litigation, also found no evidence of a defective connection between the fuel line and fuel injector in this cotton picker — pointing out that the angularity of the seating line was insignificant. He agreed with Mittlestaedt that a fuel leak would have caused the engine to misfire or lose power before the fire — which the operator testified did not happen.

Francis pointed out to the trial court that the rubber covering on the battery end of the battery cable was intact and showed no heat damage — in refutation of Sachnik’s speculation that the fire might have started there.

Reasoning from the operator’s statement that he looked down through the glass plate in the cab floor and saw the fire, and photographic evidence showing fire damage through the entire duct work from the header up into the forward discharge area of the cotton-holding basket itself, Francis concluded that the fire originated in a choke behind the right header, caused by friction between the doffer and accumulated material which ignited flammable cotton in that area. He noted that the right rear outlet on the right header showed an accumulation of burned debris several inches thick — unlike the left header. If this right header had been operating in a normal manner, Francis said that the area containing the debris would have been cleaned by the air conveyor system.

Francis explained that a fire behind the right header would likely become extremely intense because of the forced draft imposed upon the material by the air current and the duct work itself. It was reasonable to assume, according to him, that the burning material was immediately drawn through the duct work up into the forward part of the basket designed to hold cotton. Francis postulated that the updraft of the fire also enveloped the cab and destroyed the windshield.

Under the Rey ruling plaintiff was not required to prove the specific cause of the fire that destroyed the cotton picker. The mere occurrence of a fire during routine operation of the machine some 30 days after its purchase could give rise to a reasonable inference that it resulted from a manufacturing defect — in the absence of “other explanation or intervening cause shown.” See Rey, supra, p. 843. However, here the trial judge found “another explanation” and we cannot say that he was clearly wrong in his fact-finding, based upon an evaluation of the evidence, that the fire started in the right header due to a choke rather than in the engine compartment because of a defective fuel line connection with the fuel injector. Since there was no evidence that the choke resulted from a manufacturing defect, the trial judge correctly held that plaintiff failed to prove an essential element of its case (the existence of a redhibitory defect) by a preponderance of the evidence.

Plaintiff’s alternative contention, that defendant was negligent in failing to warn that a small header fire could escalate into a conflagration and in failing to equip the machine with fire suppressing equipment, is without merit. It seems obvious that, because of various hoses carrying fuel to different parts of the cotton picker and because of the air current in the air convey- or system, any small fire would conceivably escalate into a larger one. With reference to the absence of fire suppressing equipment, there was no evidence of any device with which the cotton picker might have been fitted to prevent the ignition of choke fires. The manufacturer did recommend acquisition by machine operators of small portable fire extinguishers for use in suppressing fires in the engine compartments. This option, of course, would rest with the purchaser of the cotton picker.

On incidental issues, we do not find the trial judge abused his discretion in accepting Dalloz as an expert witness, in view of his professional qualifications, training and experience. See La.R.S. 15:466. Nor do we find that the trial judge abused his wide discretion in refusing to allow additional rebuttal testimony by Sach-nik, since the tendered evidence was largely cumulative.

For the reasons set forth, we affirm the judgment of the district court, at appellant’s cost.

      . Under La.C.C. Arts. 2475, 2476 and 2520 the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use.


author: SEXTON, Judge.

text:
    YOUNG OIL COMPANY OF LOUISIANA, INC., Plaintiff-Appellant/Appellee, v. Shirley DURBIN and Doyle Durbin, Defendants-Appellants/Appellees.
    No. 14756.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Bobby L. Culpepper, Jonesboro, for plaintiff-appellant/appellee.
    Brittain & Williams by Joseph Payne Williams, Natchitoches, for third party defendant-appellee.
    Broussard, Bolton & Halcomb by Roy S. Halcomb, Jr., Alexandria, for defendants-appellants/appellees.

      Before PRICE, FRED W. JONES, Jr., and SEXTON, JJ.
   SEXTON, Judge.

In April of 1977, Young Oil Company of Louisiana, Inc., with Roger Young as its president and majority stockholder, opened a self service gas station in Winnfield, Louisiana. About one year later Mr. Young hired Shirley Durbin as a cashier at the station under the supervision of Nancy McQuiddy, the general manager of the station. Late in 1978, Mrs. Durbin was put in charge of the day to day operation of the station. Her duties included opening the station, ordering all merchandise except gasoline, receiving money, closing down the station at night, keeping the car wash running and clean, reading the meters on the gasoline pumps and recording total sales. She was also responsible for inventorying and signing for orders of stock delivered to the station. Assisting Mrs. Durbin in her duties at the station was Bryan Howell, who quit sometime prior to October 1979, (the length of time involved is unclear), and Mrs. Durbin’s daughters, Janice and Karen, who worked during the period from January 1979 through October 16, 1979. Also, Becky Holmes, who worked there from late 1978 to early 1979. Although Mr. Young exercised ultimate control over the operations at Winnfield, he was not constantly at the station but rather would stop by randomly every two or three days to see how things were going. All employees as well as Mr. Young had access to the store room and other parts of the station where goods were kept.

Mr. Young had various business interests which kept him occupied. According to his testimony he did not closely supervise the operation of the Winnfield operation, but depended on his manager. However, in 1979 a drop in receipts spurred Mr. Young into more closely monitoring this station. By September 1979, Mr. Young and his wife began in earnest to compare invoices and sales, and Mr. Young spent more time at the station conducting daily inventories. After finding large discrepancies, Mr. Young confronted Mrs. Durbin on October 16, 1979, with the accusation of misappropriation. Mrs. Durbin denied any misappropriation and promptly quit her job with Mr. Young.

On the 8th of November 1979, based on results of inventories taken by Mr. Young, criminal charges were filed against Mrs. Durbin for the theft of $72.00 in cash or merchandise from Young Oil Company of Louisiana “on or about October 16, 1979.” Mrs. Durbin was arrested and released upon the posting of bond. She was arraigned and pled not guilty. The charges against her were ultimately dismissed by the District Attorney. The complaint against Mrs. Durbin was signed by “Roger D. Young.” His signature was not specified as having been made as president or agent of that corporation.

Mr. Young based his charges against Mrs. Durbin on shortages reflected when he compared the amount of goods purchased by him for resale with the amount listed by Mrs. Durbin on her daily sales computation and the amount remaining in the store. Based on these computations, there was an unexplained deficit of $72.00 for the days of October 12-16 (excluding Sunday, October 14). Similar comparisons from May of 1979 revealed a total discrepancy of at least $10,-000.

The receipts at this station when Mrs. Durbin took over as manager were approximately $1,600.00 a month. They consistently fell during her tenure to a low of approximately $900.00 during October 1979. In November, subsequent to her leaving, these receipts rose to approximately $1,250.

On March 18, 1980, Young Oil Company of Louisiana, Inc., filed suit against Shirley Durbin and her husband, Doyle Durbin, alleging that Shirley Durbin had misappropriated the sum of $10,000 and that Shirley Durbin had used the money for community purchases, and therefore Doyle Durbin, as her husband, either knew or should have known of the misappropriations.

The Durbins denied the allegations of Young Oil Company of Louisiana, Inc., and entered a third party demand against Gulf Insurance Company claiming that under a homeowner’s policy issued by Gulf to the Durbins, Gulf was obligated to defend the Durbins against the charges made by the plaintiff, and furthermore would be required to indemnify the defendants in the event judgment should be rendered in plaintiff’s favor. Additionally, the Durbins filed a reconventional demand against Young Oil Company of Louisiana, Inc., and against Young personally (claiming that in charging Mrs. Durbin with theft, he acted personally and not as the representative of Young Oil Company of Louisiana, Inc.). In so doing, they asserted three theories of recovery: malicious prosecution, defamation and fault. The Durbins also filed a third party demand against Young personally for full indemnification or in the alternative contribution for any sums which Mrs. Durbin might be held liable to Young Oil. This demand was in response to Young Oil’s alternative claim that if Mrs. Durbin did not actually take the money then she was responsible in her fiduciary capacity as manager for sums which were lost during her tenure — on the theory that Young was Mrs. Durbin’s immediate supervisor and therefore had the ultimate responsibility.

A jury trial was held in the case on March 9th and 10th, 1981, and resulted in the following finding on jury interrogatories: (1) there was no shortage, (2) Roger Young was found not to be liable to Shirley Durbin, and (3) Young Oil Company of Louisiana, Inc., and Roger Young were found to be liable to Doyle Durbin in the amount of $5,000. As a result, the trial judge signed a judgment on April 30, 1981, (1) in favor of defendants, Shirley and Doyle Durbin, and against Young Oil Company of Louisiana, Inc., dismissing all demands with prejudice (and likewise dismissing the third party demand against Roger Young), (2) dismissing the reconventional demand of Shirley Dur-bin against Roger Young and Young Oil Company of Louisiana, Inc., with prejudice, and (3) rendering judgment in favor of Doyle Durbin against Roger Young and Young Oil Company of Louisiana, Inc., in solido, in the amount of $5,000.

Prior to the jury’s rendering of judgment, the trial court had granted Gulf Insurance Company’s motion for summary judgment, dismissing the defendants’ claim against it. Defendants appeal the trial court’s ruling sustaining Gulf’s motion for summary judgment.

We reverse the judgment in favor of Mr. Durbin and affirm in all other respects, including the sustaining of Gulf Insurance Company’s motion for summary judgment.

MRS. DURBIN’S CLAIM FOR DAMAGES

First we consider the finding that Mrs. Durbin was not entitled to damages. Her initial theory of recovery is malicious prosecution. In addressing the question of the burden of proof in suits for malicious prosecution this court in McCoy v. Burns, 379 So.2d 1140 (La.App. 2nd Cir. 1980) cited with approval the following quotation from Robinson v. Rhodes, 300 So.2d 249 (La.App. 2nd Cir. 1974), writs refused 303 So.2d 178:

“. . . The burden ... is ordinarily upon plaintiff to prove both malice and the absence of probable cause. But the authorities have firmly established the rule that where a committing magistrate, without a trial, has discharged the accused, or the prosecution officer has dismissed the charge, or where a grand jury has returned a nobill, there is a presumption of want of probable cause with the result that, in a suit for malicious prosecution based on that discharge, the burden of showing that he acted on probable cause and without malice is upon the defendant.... ” (Emphasis ours).

The theory that a nolle prosequi provides a presumption of malice is one of long standing in our jurisprudence. See Barrios v. Yoars, 184 So.2d 212 (Orl.App.1938). However, we have some doubt that this action should still be given the same weight as a nobill or a directed verdict. Theoretically each of these should only occur for want of sufficient evidence. However, in this time of crowded dockets and overflowing jails, we are aware that District Attorneys often nolle prosequi for a number of reasons, to include successful diversion, rehabilitation, restitution, or more serious matters on the docket, without consideration by the District Attorney of the actual validity of the evidence. As here, Mr. Young testified he requested the nolle pros-equi because of the number of times he had to go to court.

Nevertheless the presumption afforded by a nolle prosequi is rebuttable, requiring a showing the defendant acted on probable cause or without malice. The evidence shows that the miscellaneous receipts dropped significantly during Mrs. Durbin’s tenure as manager. She was entirely responsible for all orders (except petroleum products) as well as having responsibility for filling out all daily reports of sales. The findings of shortage were verified by Mrs. Young, who had experience in bookkeeping. They were likewise verified by Mr. Cooper, a Certified Public Accountant.

Mrs. Durbin was charged with the theft of the specific amount of $72.00. This figure was determined after an analysis of inventory of sales records for the period October 12-16 by Mr. and Mrs. Young. The record shows that Mr. Young honestly believed this sum to be missing during this period of time. The record further indicates that in discussing the situation with the judge who issued the warrant Mr. Young discussed the entire history of the shortages and his full knowledge to that point. A criminal charge (either in a warrant or bill of information) often does not reflect the full loss in a theft ease for any number of reasons unimportant to this discussion. It is axiomatic that proof of a greater offense is also proof of any lesser and included responsive offense. Thus the inquiry as to probable cause should be based on the entire knowledge of Mr. Young and all of the information communicated to the magistrate. Hibernia Nat. Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980).

We therefore believe that the factors just enumerated render ample probable cause to believe that Mrs. Durbin committed the offense of theft such that the defendant-in-reconvention, Young Oil Company, has successfully rebutted any presumption afforded plaintiff-in-reconvention by the nolle prosequi.

With respect to Mrs. Durbin’s claim based on defamation, the essential elements are (1) defamatory words, (2) communication to someone other than the defamed, (3) falsity, (4) actual or implied malice, and (5) resulting injury. Defamation is presumed if one is accused of a crime. Malice is presumed if the statements are defamatory. Therefore the accusation of criminal conduct presumes malice. The burden of proof then shifts to the defendant to rebut this presumption. Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2nd Cir. 1975).

The evidence here indicates that Mr. Young discussed this matter with the City Judge prior to obtaining the arrest warrant, and the City Attorney thereafter. Likewise the deputies serving the warrant, as well as those coming in contact with Mrs. Durbin in the arrest process, were aware of the allegations. The statements to the Judge and City Attorney are privileged, constituting a defense. Carter, supra, at p. 522. Likewise, when the defamation results in an arrest, the slander relating to the knowledge of the arrest by those involved with it becomes merged with the arrest and is not actionable if the prosecution is not actionable. Roche v. Aetna Casualty & Surety Co., 303 So.2d 888 (La.App. 1st Cir. 1974).

The only other “communication” with respect to Mrs. Durbin’s alleged conduct was the vague evidence with respect to Mrs. McQuiddy’s knowledge of the matter, and a discussion Mr. Young had with a truck driver, Mr. Gilcrease. It will be recalled that Mrs. McQuiddy was the person who took over for Mrs. Durbin when she quit. The time and place of the discussion, if any, was not sought. Mrs. McQuiddy remembered nothing concerning an amount being missing. She was told some money had been missing and had the impression from the discussion that Mrs. Durbin had taken it. Similarly, the driver for the gas supplier inquired of Mr. Young where Mrs. Dúrbin was. Mr. Young responded that he had “let her go for stealing.” It appears that in each case the persons Mr. Young discussed the matter with were alone. It is abundantly apparent in the case of the truck driver that he brought the subject up, and it may be that Mrs. McQuiddy also first mentioned it. Both of these persons were familiar with the business. Their curiosity was natural — particularly Mrs. McQuiddy, who it can be argued, in taking over Mrs. Durbin’s position, had a need to know why Mrs. Durbin was no longer present. Considering these circumstances and our finding that Mr. Young had abundant probable cause, we find the presumption of malice has been successfully rebutted as to these two communications.

The final claim for Mrs. Durbin’s recovery is in fault. This theory, under these circumstances, is essentially synonymous with the concept of defamation, i.e. defamation is the term used to connote fault in the context of broadcasting an alleged insult. F. Stone, Tort Doctrine, § 172 et seq., in 12, Louisiana Civil Law Treatise (1977).

In summary we find that probable cause existed for the arrest of Mrs. Durbin precluding her recovery under malicious prosecution. We likewise find no recovery in defamation, as the communications involved were either privileged or without malice. Additionally, any claim of “fault” is synonymous with defamation. We therefore affirm the trial court’s judgment insofar as it denies recovery to Mrs. Durbin.

YOUNG OIL COMPANY’S CLAIM

Having found probable cause to believe Mrs. Durbin misappropriated, we next consider whether or not Mrs. Durbin is responsible to Young Oil Company for the alleged loss. On interrogatories of a limited nature the jury found there was not a shortage. However, our review of the evidence causes us to believe that the jury was clearly wrong in such a finding. We believe that the evidence is clear that a substantial shortage was shown to exist. Two competent bookkeepers, Mr. Young’s wife, as well as Mrs. Robinson, his accountant, testified as to the shortages. In addition Mr. Cooper, a Certified Public Accountant, also found shortages. This testimony is not rebutted.

Thus we have a shortage and probable cause to believe that Mrs. Durbin was responsible therefor. As this is a civil case, plaintiff must prove her responsibility by a “preponderance of the evidence.” We are narrowly of the view that the evidence does not reach that standard. Probable cause is not synonymous with “preponderance,” being somewhere between “preponderance” and “suspicion.” The case against Mrs. Durbin is circumstantial, there being no direct evidence to connect her with a loss or misappropriation. In considering the fashion in which the station was operated there are other explanations for the shortages, which are as plausible as that advanced by the plaintiff. See Charles A. Kaufman Co. v. Gregory, 178 So.2d 300 (La.App. 4th Cir. 1965). The plaintiff has not satisfactorily discharged its burden of proof in this regard.

In addition, there is no conflict with finding that Young Oil Company had probable cause to prosecute, and at the same time finding that Young Oil Company had not proven its claim by a “preponderance of the evidence.” Probable cause focuses as much on the reasonable state of mind of Young in bringing the charge as the actual fact. Hibernia Nat. Bank of New Orleans, supra. On the other hand “preponderance” addresses itself to facts actually proven at the trial.

Young Oil Company in a supplemental petition asserted the alternative position that- Mrs. Durbin was liable by virtue of her fiduciary capacity as manager of the service station.

Mrs. Durbin was employed to perform specific tasks with her work hours being established by Mr. Young. He exercised ultimate control over her duties. These duties were to operate a cash register, order small amounts of miscellaneous candy, cigarettes, etc., record daily sales, record gasoline sales, receive and sign for orders of goods, and to keep the car wash clean and operating. She did not have the capacity nor authority to set prices, to order petroleum products or to change station operating policy. Mr. Young retained the general and ultimate control of the operation of the service station.

“It is the right of control of the time and physical activities and the existence of a close relationship between the parties which determines if one is a servant.” Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), at p. 905. Mrs. Durbin was not sufficiently independent to be the agent/mandatary of Young Oil Company. As his employee (rather than mandatary) the obligations of mandatary for fault or negligence, LSA-C.C.Art. 3003, and the duty to account, LSA-C.C.Art. 3004, do not attach.

However, considering any general fiduciary responsibility as the managerial employee, we view the relationship as very similar to that of the comptroller in Kaufman, supra, who was sued for funds found to be missing after an audit. The shortage was generally accepted and a significant amount of control over proceeds and reports was likewise shown on the part of the defendant. The Court of Appeal adopted the trial court’s analysis that in cases of this type the plaintiff’s burden is to prove its case by a preponderance of the evidence and found other reasonable hypotheses for a shortage — as we likewise just found in this case. See also Crescent Riverboat Pilots' Association v. Heuer, 193 So.2d 276 (La.App. 4th Cir. 1966).

We therefore find that Mrs. Durbin is not responsible for any loss. As an employee rather than an agent/mandatary plaintiff must prove her responsibility by a preponderance of the evidence whether proceeding on a theory of theft or general fiduciary responsibility.

Therefore the trial court judgment dismissing the demands of Young Oil Company against Mrs. Durbin (and correspondingly Mr. Durbin) is affirmed.

AWARD TO MR. DURBIN

Mr. Durbin’s judgment of $5,000 is grounded in his claim for defamation. Mr. Durbin was not prosecuted and thus his only claim must be based on the allegations of the petition and the interrogatories of Young Oil Company. These judicial allegations enjoy a qualified privilege, LSA-R.S. 13:3415, which privilege has been limited substantially by Jones v. Davis, 233 So.2d 310 (La.App. 2nd Cir. 1970), writ refused 256 La. 80, 235 So.2d 101. Likewise Mr. Durbin was sued by Young Oil Company only and not by Mr. Young personally, but his judgment is against both, as he reconvened against both. However, one may not reconvene against a party who is not a plaintiff. LSA-C.C.P. Art. 1061. While these factors are damaging to Mr. Durbin’s judgment, the concept that an action in defamation based on a plaintiff’s petition will not lie until the determination of the original suit is fatal. Lees v. Smith, 363 So.2d 974 (La.App. 3rd Cir. 1978). We supply and sustain an exception of no cause of action as to Mr. Durbin’s demands against Mr. Young personally and Young Oil Company. The judgment in favor of Mr. Dur-bin is therefore reversed.

DUTY OF GULF INSURANCE COMPANY TO DEFEND

The final issue is whether or not Gulf Insurance Company has breached its obligation under the Durbins’ homeowner’s policy to defend them in this action. It will be recalled that the trial court sustained Gulf Insurance Company’s motion for summary judgment.

The insurer’s duty to defend is determined by examination of the allegations of the injured plaintiff’s petition. If, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy, and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). See also Lees, supra.

Here, the plaintiff’s original petition alleges that the defendant Mrs. Durbin is guilty of misappropriation, and that her husband, Doyle Durbin, by virtue of the community of the acquets and gains that existed between them, knew or should have known that the money, which allegedly was spent for community purposes was stolen. Mr. Durbin’s only connection to the suit is by virtue of his interest in the community. The allegation is that the funds, if taken by Mrs. Durbin, must have been used for community purposes. Thus this allegation is connected with and inseparable from the allegation of Mrs. Durbin’s misappropriation.

For coverage to be found to exist as to the alleged misappropriation, the incident which forms the cause of action for the suit must be one of the defined “occurrences” against which the insured is protected, as enumerated in the policy. The intentional misappropriation is not an “occurrence” against which the insured was protected. See Thibodeaux v. Western World Insurance Co., 391 So.2d 24 (La.App. 3rd Cir. 1980).

Considering Mrs. Durbin’s alleged alternative responsibility on a fiduciary basis, this policy contains the usual business pursuit exclusion. Any alleged actions of Mrs. Durbin based on her fiduciary responsibility as a manager (or even as a mandatary/agent) causing a loss to her employer would be in furtherance of a business pursuit and therefore excluded. See Pitre v. Pennsylvania Millers Mutual Insurance Co., 236 So.2d 920 (La.App. 3rd Cir. 1970).

Therefore Gulf Insurance Company owed no duty to defend Mr. or Mrs. Durbin. We affirm the trial court’s granting of Gulf Insurance Company’s motion for summary judgment, dismissing the Durbins’ claim against that company.

CONCLUSION

Finally the Durbins complain that the trial judge erroneously assessed one-half of the trial costs to them, particularly where Mr. Durbin had been successful in his reconvention demand. The trial court has great discretion in the assessment of costs. LSA-C.C.P. Art. 1920. The equal division of costs is particularly appropriate here in view of our action which denies recovery to both the plaintiff and the plaintiffs-in-re-convention.

In summary, the judgment of the trial court sustaining the motion for summary judgment of Gulf Insurance Company is affirmed; the judgment of the trial court rejecting the demands of the plaintiff, Young Oil Company, against Mr. and Mrs. Durbin is affirmed (and likewise the judgment dismissing the Durbins’ third party demand against Mr. Young personally); the trial court judgment dismissing the demands of Shirley Durbin as plaintiff-in-re-convention against Young Oil Company and Roger Young personally is affirmed; and the trial court judgment in favor of Doyle Durbin as plaintiff-in-reconvention against Young Oil Company and Roger Young personally in the amount of $5,000, in solido, is reversed and there is judgment dismissing that claim; costs of the appeal and the trial court to be divided equally between Young Oil Company on the one hand, and Shirley and Doyle Durbin on the other.

Reversed in part and affirmed in part.

      . Though probable cause is sometimes discussed in the jurisprudence in terms of “more likely than not,” this case excellently illustrates why probable cause does not equal “preponderance.” Here, Mrs. Durbin ordered the merchandise and made out the daily sales reports and there were indeed shortages. However, others had access to the merchandise and she was not present on a full-time basis. The case against her is circumstantial — there being other reasonable explanations for the loss not precluded by the evidence.
      The best definition of probable cause and discussion thereof of which the author is aware is that advanced in Chapter 1 of J. Shane Creamer’s The Law of Arrest, Search and Seizure. There probable cause for arrest is defined as a “combination of facts or apparent facts, viewed through the eyes of an experienced police officer, which would lead a man of reasonable caution to believe that a crime is being or has been committed.” (p. 11) The view of the “experienced” or cynical police officer is central to this definition. Surely such an officer would have sufficient reason to believe that Mrs. Durbin committed an offense. Yet, all of the evidence does not reach the “more likely than not” standard of “preponderance.”

        . “[This liability coverage] ... Does not apply: (A)(1) to any business pui suits of an insured, except .. . activities which are ordinarily incident to non business pursuits ...”


text:
    John W. WOMACK, et al., Plaintiffs-Appellants, v. WILLIS-KNIGHTON CLINIC, et al., Defendants-Appellees.
    No. 14765.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Writ Denied April 21, 1982.
    Richie & Richie by C. Vernon Richie, Shreveport, for. plaintiffs-appellants.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for defendants-appellees.
    Before MARVIN, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The plaintiffs, Mr. and Mrs. John Wom-ack, appeal a trial court judgment denying their claim for damages against the defendant hospital. This claim arose when Mrs. Womack slipped and fell on a sidewalk owned and maintained by the defendant, Willis-Knighton Memorial Hospital. (Willis-Knighton Clinic, a lessee of property from Willis-Knighton Memorial Hospital, was released from the suit when it was shown that under the lease agreement, Willis-Knighton Memorial Hospital was responsible for maintenance of the sidewalks leased by the clinic.)

The incident occurred on the morning of October 1,1977, while Mrs. Womack was on her way to visit a sick relative. Mrs. Wom-ack, in recounting the events of the morning, stated that she first went to the clinic which adjoins the hospital, thinking that she could gain entrance to the hospital via the clinic. She found the door locked and proceeded down the sidewalk. Upon coming to the junction where the sidewalk from the clinic joined the sidewalk leading to the hospital, Mrs. Womack testified that she stepped on something and began to slip. She looked down and saw that she had stepped upon a stack of “two or three” trash bags of a “greenish putty color.” She was unable to regain her balance and fell to the ground, landing on her right hip.

At the emergency room of the defendant hospital it was discovered that she had suffered a fracture of the neck of the femoral bone in her right leg. Surgery was performed on October 3, 1977 to replace the right femoral head with a prosthetic device. The surgery was successful but Mrs. Wom-ack alleges partial disability and continuing pain. Mr. and Mrs. Womack sued Willis-Knighton Clinic (which was dismissed as noted, supra), Willis-Knighton Memorial Hospital and St. Paul Fire & Marine Insurance Company, liability insurer of the hospital, alleging that" her injuries resulted from the negligence of the hospital and its employees.

The trial court heard testimony that at the time of Mrs. Womack’s fall Mr. Frank Bell and two employees of his were engaged in yardwork on the defendant’s grounds. Mr. Bell testified that trash bags, such as those described by Mrs. Womack, were being used by his employees. However, Mr. Bell testified that at no time were any trash bags placed on the sidewalk. His employee, Dexter Samuels, who was using the bags, testified to the same effect. Mr. Samuels did state that he placed some bags on the grass near the sidewalk. Mrs. Wom-ack testified that she saw the men working on the lawn but did not see any trash bags until she had stepped on them.

The trial court pretermitted any discussion of any possible negligence on the part of the hospital and also on the issue of whether the yardmen were employees of the hospital or independent contractors by finding Mrs. Womack contributorily negligent in the following terms:

“Mrs. Womack testified that she was looking out in front of her as she walked, but not looking down. She candidly stated that if she had looked down she would have seen the bags. She repeated this and said, ‘If the bags had been out in front of me, I would have seen them as they would have been in my line of vision.’ Further, she said, ‘When I stepped on them they scattered.’ She was able to observe this, she said, because she looked down after she had started to fall.”

We find the record amply supports this holding and thus there was no manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La. 5th Cir. 1978).

Mrs. Womack seems to contend that she should be relieved from her duty to observe because she was rounding a corner or curve. However, on this bright October morning there were no impediments to her view. She was not rounding a corner of a building. She was simply negotiating a turn in the sidewalk of something less than 90 degrees in an area that was wide open to view.

Plaintiffs further contend that in finding the plaintiff contributorily negligent, the trial judge must by definition find the yardmen negligent, thus leaving as the only question the responsibility of the hospital for the actions of the yardmen. We disagree. We note parenthetically that a fair reading of the trial court’s opinion causes us to believe that the trial court was more inclined to the yardmen’s version of the location of the bags than that of Mrs. Womack. However, a finding of contributory negligence by the trial court without reference to negligence does not require the reviewing court to accept the proposition that the defendant was negligent, nor does it require our review of the issue where we agree there was obvious contributory negligence. Smith v. U. S. Fidelity and Guaranty Company, 351 So.2d 1261 (La.App. 1st Cir. 1977). Andry v. Kinberger, 364 So.2d 613 (La.App. 4th Cir. 1978).

Plaintiffs make a scholarly argument urging a duty-risk analysis to the circumstances here presented to avoid the attachment of contributory negligence to the plaintiff. In so doing the plaintiff principally attempts to anologize Outlaw v. Bituminous Insurance Company, 357 So.2d 1350 (La.App. 4th Cir. 1978). In that case a nine year old child emerged from the protective cover of a golf bag and was hit in the eye with a poor drive. The court there held that the child’s contributory negligence would not bar his recovery because a mature golfer has a duty not to strike a golf ball in the vicinity of even a hidden child. The plaintiffs argue that an institution such as a hospital has a high duty to the persons attending due to the nature of its mission, particularly to persons of Mrs. Womack’s age who are likely to be present. Said another way, the likelihood of the aged or infirmed using these premises, and their particular susceptibility to objects on walks, creates a duty on the hospital’s part not to place such objects on a walk; so that if such objects are placed thereon by the hospital’s agents those falling over them are excused from the applicability of contributory negligence.

Though 67 years of age this plaintiff was an active person with no demonstrated infirmities. She had worked a good portion of her life until very recently. She quit work because of the poor business climate rather than for reasons of health. We see a clear distinction between the facts in Outlaw and those here presented. There is a difference between a mature golfer hitting a ball near a child and an institution allegedly placing bags on a walk in plain view of an active individual. We do not agree that the defendant’s duty to this plaintiff under these circumstances was such as to excuse her from her duty to maintain a proper lookout and see what she should have seen. Youngblood v. Newspaper Production Co., 158 So.2d 432 (La.App. 2nd Cir. 1963).

The final issue is the assessment of costs by the trial court. The court found that plaintiffs were entitled to $1,000 for medical expenses under the medical payments coverage of the insurance policy the defendant hospital had with St. Paul Fire & Marine Insurance Company and rendered judgment accordingly. The court then divided the costs equally between the plaintiffs and defendants. The plaintiffs complain that since a judgment was obtained defendants should bear all of the costs. The trial court has great latitude in the assessment of costs which will only be disturbed where clearly erroneous. LSA-C. C.P. Art. 1920, Gatheright v. State Farm Auto. Ins. Co., 352 So.2d 428 (La.App. 3rd Cir. 1977). We find no abuse in the assessment of costs by the trial court.

Accordingly, the judgment appealed from is affirmed and all costs of this appeal are assessed to plaintiffs.

AFFIRMED.

      . Johnson, “Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions” 37 La.L.R. 1 (1976), at pp. 43—45. See, Robertson, “Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc." 34 La.L.R. 1 (1973).


text:
    Elijah MARTIN and Gerthia Mae Jackson Martin, Plaintiffs-Appellants, v. HOWARD BROTHERS DISCOUNT STORES, INC., et al., Defendants-Appellees.
    No. 14767.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Donnie G. Brunson, Jonesboro, for plaintiffs-appellants.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for defendants-appellees.
    Before MARVIN, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The plaintiffs, husband and wife, appeal a judgment in which their demands for damages for personal injuries were rejected. In this slip and fall case the trial court found that neither of the defendants, Howard Brothers Discount Stores, Inc., or Mid-South Linen and Uniform Service, was negligent. The trial court further held that plaintiff-wife’s contributory negligence barred her recovery. We affirm.

On February 21, 1976 appellant, Gerthia Mae Martin, entered the Howard Brothers Discount Store in Columbia, Louisiana. Just inside the threshold the appellant fell and injured her knee, contending that she tripped over a wrinkled rug or mat located just inside the entrance of the store. Howard Brothers kept a rug near the entrance to increase the safety of the entrance by removing moisture and debris from the shoes of customers as they entered the store. The defendant, Mid-South Linen and Uniform Service, was the supplier of the rug. Plaintiff alleges that the defendants created a hazard by allowing wrinkles or folds to exist in the mat. It should be noted that appellant testified that she did not see any wrinkles or even the rug prior to the fall. She testified that she was not looking down but rather, was looking ahead, her thoughts transfixed on her intended purchases. Only her ten year old daughter saw the appellant fall. Further, the appellant bolsters her account of the incident by stating that her daughter removed the appellant’s shoe from under the rug after the fall. The daughter who was 12 years old at the time of trial was not called as a witness.

This is our second occasion to review this cause. Originally the case was heard as a bifurcated trial by agreement between the parties and the trial court. The trial court found the defendants not negligent and the plaintiff guilty of contributory negligence, therefore the issue of damages was not reached. On appeal this court concluded that such a procedure was inappropriate and remanded the cause without reaching the merits of the trial court’s determination on the issue of liability.

The trial court on remand heard testimony as to damages but adhered to its original findings. The plaintiffs now appeal this finding.

In its written reasons for judgment, the trial court stated:

“. .. plaintiffs have failed to establish by a preponderance of the evidence a wrinkle in the floor mat that would have created a dangerous condition, thus shifting the burden of proof to the defendants. On the contrary, I am of the belief that there was no actionable negligence on the part of either defendant and that were this the ease the plaintiff, Mrs. Martin, by her own actions and inattentiveness, would have been held to be guilty of contributory negligence.”

The trial judge based his findings on (1) the failure of the plaintiff to call plaintiff’s daughter who was the only witness to the fall and the condition of the rug, (2) a showing by defendant that had the rug been wrinkled the door would not have opened over it, (3) the plaintiff’s own statement that she did not see the rug or any wrinkles in it before her fall, and (4) the increased duty to be observant that one owes when entering doorways and crossing over thresholds due to common knowledge that at such places uneven floors are often encountered.

Plaintiffs rely heavily on Molaison v. West Brothers of Thibodeaux, 338 So.2d 726 (La.App. 1st Cir. 1976), contending that it is directly on point. However, important differences exist. In Molaison a customer tripped on a rug at the entrance of the store injuring herself. No witness could be found as to the condition of the rug immediately prior to the plaintiff’s fall. In an opinion issued without recorded reasons, the trial court found the defendant store negligent and dismissed the store’s third party demand against the supplier of the mats. The Court of Appeal reviewed this record and applying the standards of manifest error espoused in Canter v. Koehring Co., 283 So.2d 716 (La.1973), found that the decision of the trial court was based upon its reasonable evaluation of the evidence produced at the trial and that the court’s findings in light of the evidence was not manifest error. In Molaison the plaintiff established that the high traffic of customers and carts through the entranceway could cause this rug to wrinkle and that on occasion the rug did become dislodged. Further plaintiffs showed that the lack of reasonable precaution against such wrinkles of the rug constituted negligence on the part of the defendant store.

In the case presently before us the plaintiffs did not produce any such evidence. Defendant’s employees, however, testified that the rug was not wrinkled before or after the incident and that the door would not open if the rug had been wrinkled. A further consideration by the trial court was the failure of the plaintiff to call her only witness to the incident, the plaintiff’s 12 year old daughter. Such failure to produce a witness who has special knowledge essential to that party’s cause when such witness is available and under the party’s control raises the presumption that the witness’ testimony would be detrimental to this party’s cause. Veillon v. Sylvester, 174 So.2d 189 (La.App. 3rd Cir. 1965).

The trial court’s conclusions on the issue of negligence are supported by competent evidence and are not shown to be manifestly erroneous. Absent such a showing, this .court will not disturb those findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Canter, supra.

For the reasons assigned the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: MARVIN, Judge.

text:
    William McAdoo ROBINSON, Plaintiff-Appellee, v. Fay Burton ROBINSON, Defendant-Appellant.
    No. 14771.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.

      Jack, Jack, Cary & Cary by Wellborn Jack, Jr., Shreveport, for defendant-appellant.
    Whitmeyer, Thomas & Glassell by Stephen A. Glassell, Shreveport, for plaintiff-appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

Mrs. Robinson appeals, seeking to increase permanent alimony awarded her in a judgment of divorce. C.C. Art. 160. We amend to increase and affirm.

These litigants, now more than 65 years of age, were legally separated in 1976 after nearly 40 years of marriage in which Mr. Robinson was the only wage earner. From his gross weekly earnings of approximately $230, Mr. Robinson paid Mrs. Robinson $175 monthly alimony pendente lite as ordered in the separation judgment. Her modest needs were shown to be $475 monthly. She subsisted by depleting capital derived from the sale of the former family home she received in the community partition and by obtaining some welfare and food stamp benefits, inconsequential earnings from a church nursery and other sources, and donations from her children.

Mr. Robinson retired in 1981 from gainful employment and his monthly income is now $723, derived from social security ($617), retirement pension ($65), and interest on savings ($41).

Mrs. Robinson’s monthly income is $325, all from social security except for about $10 per month from leases on Arkansas property in which she inherited a fractional interest.

The trial court found that “.. . Mrs. Robinson’s needs are sufficient that she should be entitled to more than what the Social Security Administration is giving her ... that she is entitled to the alimony award requested of $175, [but] that the Social Security benefits received as a spouse will be deemed to satisfy same ... [and] if there are changes in Mr. Robinson’s situation which would tend to reduce her benefits below the sum awarded, then Mr. Robinson will have the responsibility of making up same accordingly.” In addition, the trial court ordered Mr. Robinson to pay xh of his $65 retirement pension, or $21.66, to Mrs. Robinson as permanent alimony.

The trial court effectively recognized that Mrs. Robinson had minimal needs of $475 a month, or $160 more than the $316 social security benefit, but apparently declined to consider Mr. Robinson’s social security benefit as providing him with the means to pay her needs. The trial court “interpreted” the social security benefit, not as income, but as a property right of each spouse.

We construe Congressional policy, however, to allow the social security benefit received by each spouse to be considered in determining the amount of permanent alimony, whatever the legal categorization of the benefit. See Social Security Act, 42 U.S.C.A. 301, et seq. 42 U.S.C.A. 659, 662(c), (f), expressly provides that the benefit shall be subject to legal process brought to enforce the recipient’s obligation to make alimony payments. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). See also “Annotation: Alimony—Pension as a Resource”, 22 A.L.R.2d 1421, and other annotations at 1 A.L.R.3d 6 and 123, and 51 A.L.R.3d 461. Compare Litton v. Litton, 342 So.2d 1222 (La.App. 2d Cir. 1977).

La.C.C. Art. 160 provides in part that the court may allow a spouse, not at fault, “... out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income .. . [and that] in determining the . .. amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses.” Emphasis supplied. Once the amount of the need of the spouse for alimony after divorce is determined, the only limitation is that the amount the other spouse is obligated to pay shall not be more than one-third of that spouse’s income, and that the amount shall be determined by the other spouse’s means or ability to pay. The word income in C.C. 160 should be fairly construed in light of its context in the statute, the purpose of the statute, and with other language of the statute (such as property, means, and assets). C.C. 160 income is not synonymous with income under federal or state tax law, but includes such things as disability insurance payments and bookkeeping losses or deductions for depreciation. See Stolier v. Stolier, 357 So.2d 1334, 1336 (La.App. 4th Cir. 1978), writ refused, and annotations, cited supra.

Here, Mrs. Robinson does not have sufficient means for her support. She needs approximately $160 more than she is receiving from social security and other sources. Mr. Robinson has C.C. 160 income of $723, and $160 does not exceed one-third of this C.C. 160 income. The trial court did not base its award of $21.66 alimony on Mr. Robinson’s lack of C.C. 160 means or ability to pay more than that amount. In determining the increase of the award, we must consider the directions of C.C. 160.

Mr. Robinson is shown to have lived industriously and frugally, moonlighting at other jobs and saving his money. After the 1976 separation and transfer of most of the community to Mrs. Robinson, he managed to save $7,500 which he used sometime before the divorce to purchase 3Vs acres about 15 miles distance from his rented apartment. He is clearing this land by his own hands to plant peas and other truck crops to provide himself with food. His automobile expenses are justifiably greater than Mrs. Robinson’s because of his trips to the garden site. His expenses for food are also greater than Mrs. Robinson’s because he occasionally eats out. He estimates he spends about $40 per month for this purpose. He shows that his needs total $711 per month, but this monthly figure includes $60 for vacation, $35 for gifts (primarily cash wedding and birthday gifts to family members) and $30 for clothing. He spends less than Mrs. Robinson on rent and drugs but more on utilities, clothing, gifts, travel and food. It is not the function of a court to equalize the respective financial situation of the litigants in determining alimony, but to provide the spouse in need with the basic necessities of life. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

Weighing Mr. Robinson’s means against Mrs. Robinson’s need, we conclude that the trial court erred in determining the award of permanent alimony and in not treating social security benefits received by each litigant simply as C.C. 160 income to each. Permanent alimony is not permanent in the sense that it cannot be modified as the circumstances, including social security benefits, of the parties might change. See Willis v. Willis, 355 So.2d 999 (La.App. 4th Cir. 1978), writ refused.

Accordingly, the judgment appealed is amended to delete all references to and conditions of social security benefits and to increase the monthly permanent alimony award from $21.66 to $120, effective the first day of the month following the date that this opinion becomes final. C.C.P. 2164.

At appellee’s cost, the judgment, as amended, is AFFIRMED.

      . Trial counsel understood, as we understand, that the trial court was attempting to protect Mrs. Robinson in the event her social security income was reduced by Mr. Robinson earning more than the $5,500 annual minimum allowed by social security “... then he has got to pay her the difference between that social security check less than $175 and $175.”

      . In the 1976 partition of the community, Mrs. Robinson received:
      Full ownership of the matrimonial home located at 2931 Amherst Street, Shreveport, Louisiana
      One 1973 Rambler Matador 4-door sedan All furniture, furnishings, and appliances located in the former family home

        All money presently in Mrs. Robinson’s name, and the federal income tax refund check payable to Mr. and Mrs. Robinson in the sum of $135.
      All of her personal belongings and possessions
      Any other community property not specifically enumerated by this community property settlement.
      Mr. Robinson received:
      One 1965 Rambler Classic automobile
      His tools, electric motor, paint equipment, etc.
      All F. M. Robinson family pictures located in the former family home
      All of his personal possessions and belongings which are already in his possession.
      In addition, Mr. Robinson agreed to pay the mortgage payments on the former family home for the first six months following the date of the judgment of legal separation.


author: HALL, Judge.

text:
    DAIRYLAND INSURANCE COMPANY, Plaintiff-Defendant-In-Reconvention-Appellee, v. John W. JOSEPH, et al., Defendants-Plaintiff-In-Reconvention-Appellant.
    No. 14772.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Young & Burson, Ltd. by I. Jackson Bur-son, Jr., and M. Terrance Hoychick, Eunice, for defendant-in-reconvention-appellant, John W. Joseph.
    Bodenheimer, Jones, Klotz & Simmons by Frank H. Thaxton, III, Shreveport, for plaintiff - defendant - in -reconvention - appel-lee, Dairyland Ins. Co. and defendant-in-re-convention-appellee, Kyle P. Bagley.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff (Dairyland Insurance Company) filed suit against the defendants to recover the amount paid to its insured (Bagley) for damage to his automobile sustained in an automobile accident which occurred on June 30, 1979. Defendants, the driver of the other vehicle (Bullard), the owner (Joseph), and his insurer (Safeway), answered the suit with a general denial of plaintiff’s allegations and the defendant owner, Joseph, reconvened against Dairyland and Bagley alleging that the negligence of Bagley was the sole cause of the accident. Joseph sought to recover the sum of $500 for property damage and $1,000 for loss of use of his vehicle and for his personal inconvenience. After trial on the merits, the trial court found that both drivers were at fault in causing the accident and rejected plaintiff’s demands. The trial court also dismissed defendant Joseph’s reconventional demand holding that the negligence of the driver of Joseph’s vehicle was to be imputed to Joseph under the circumstances presented. Defendant Joseph appealed from the portion of the trial court’s judgment dismissing his reconventional demand. Finding that there is no basis to impute the driver’s negligence to Joseph, the owner of the car, we reverse the portion of the trial court judgment dismissing Joseph’s recon-ventional demand and award him damages.

The accident giving rise to this suit occurred around the noon hour on Hearne Avenue, a four-lane thoroughfare located in Shreveport, Louisiana. Plaintiff’s insured, Bagley, was traveling in the southbound outside lane of Hearne Avenue. Theophilus Bullard, Joseph’s son-in-law, accompanied by several of his family members, including Joseph, were traveling south on Hearne Avenue toward a restaurant south of town where the family was to have lunch. All the passengers in defendant’s vehicle testified that the vehicle was traveling in the outer southbound lane when it slowed to allow a preceding motorist to effect a turn. At that point, Bagley’s vehicle, also in the outer southbound lane, rear ended the defendant’s vehicle. An eyewitness produced on behalf of the plaintiff testified that the defendant vehicle was traveling in the inner southbound lane, pulled suddenly into the outer lane, sideswiping Bagley’s vehicle and then stopped suddenly causing. Bagley to run into the back of the defendant’s vehicle. The police officer first on the scene testified that he questioned Bagley about what had happened and Bagley told him that he simply was not paying attention, he glanced away for a moment, and that when he looked back traffic had stopped and he did not have time to stop his vehicle before it hit defendant’s vehicle. Based on this testimony, the trial court found that the drivers of both vehicles were at fault in causing the accident. Additionally, the trial court found that Joseph and his son-in-law were on a joint mission, i.e., they were on a family outing going to lunch at a local restaurant, and that because Joseph was present in the vehicle at the time of the accident, the son-in-law’s negligence should be imputed to Joseph.

On appeal, Joseph argues that the trial court erred (1) in finding the driver of the Joseph automobile at fault; (2) in applying the doctrine of contributory negligence where it was not affirmatively pled by the defendant; and (3) in ruling that the negligence of the son-in-law should be imputed to Joseph; the owner of the automobile.

Plaintiff did not appeal nor answer the appeal, therefore, the judgment rejecting plaintiff’s demands is final. For the reasons which follow we find that the negligence, if any, of the driver of Joseph’s car cannot be imputed to Joseph, therefore, it is unnecessary to consider whether the son-in-law was negligent in the operation of defendant Joseph’s vehicle.

The evidence discloses that Joseph gave his son-in-law permission to drive his vehicle because Joseph was from out of town and the son-in-law was more familiar with the city. The record does not show that Joseph attempted to exercise any control of the vehicle on this occasion and it is clear that Joseph was not independently guilty of any negligent conduct. The trial court imputed to Joseph the negligence of his son-in-law on the basis that the two were on a joint mission and since Joseph was present in the vehicle at the time of the accident, Joseph had a theoretical right of control over the actions of his son-in-law.

Under the applicable law as enunciated in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), the trial court was in error in imputing the negligence of the son-in-law to Joseph. In Gaspard, the court disapproved the concept of theoretical right of control holding that a mother passenger who had the theoretical right of control over the son’s operation of the family automobile was not barred from recovery by imputation of the son’s negligence. The following passage is pertinent:

“ ‘As a general rule, it may be said that in order to impute the negligence of one person to another, there must exist between them some relation of master or superior and servant or subordinate or other relation akin thereto. The relation between them must be one invoking the principles of agency, or the persons must be co-operating in a common or joint enterprise, or the relation between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person actually negligent. As the rule is stated by American Law Institute, the relation between the plaintiff and the third person must be such as to make the plaintiff responsible at common law for the negligent conduct of such third person.’ (Emphasis ours).
“We are in accord with the views expressed by the American Law Institute Restatement and we hold that unless a plaintiff could be held responsible, as a matter of law, for the torts of the person whose negligence is sought to be charged to him the doctrine of imputed negligence cannot be applied.... ” (Emphasis in the original).

In the present case there was no showing that Joseph and his son-in-law were engaged in a joint enterprise as that term is construed in Gaspard, supra. It is clear that Joseph and his son-in-law were not acting in a venture for their mutual profit. Nor does the record reveal that the son-in-law was Joseph’s agent. See Farmer v. Hartford Acc. & Indem. Co., 368 So.2d 487 (La.App. 3d Cir. 1979); Umbehagen v. Liberty Mut. Ins. Co., 348 So.2d 122 (La.App. 4th Cir. 1977), writ denied 350 So.2d 1209 (La.1977); Hicks v. Alphonse, 294 So.2d 602 (La.App. 4th Cir. 1974); Williams v. State Farm Insurance Company, 273 So.2d 680 (La.App. 1st Cir. 1973). In Umbehagen, the court held that the negligence of the driver of a vehicle should not be imputed to the owner — passenger so as to bar the owner— passenger’s recovery where the parties were traveling together for a night of entertainment at a racetrack.

Therefore, we reverse that part of the trial court’s judgment dismissing defendant Joseph’s reconventional demand and award him $500 as prayed for, being the amount of his collision insurance deductible.

Defendant Joseph also seeks damages in the sum of $1,000 as compensation for his personal inconvenience in not having the use of his automobile for four days. Joseph failed to prove any legally compen-sable degree of inconvenience. The duty not to negligently cause damage to another’s property does not protect against the risk of causing minimal and normal worry and inconvenience to the owner of the property as a consequence of the property damage. Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir. 1975), application for certiorari not considered 310 So.2d 854 (La.1975), 315 So.2d 143 (La.1975).

For the reasons assigned, the judgment of the trial court dismissing defendant Joseph’s reconventional demand is reversed and judgment is rendered in favor of John Joseph and against Dairyland Insurance Company and Kyle P. Bagley in solido for $500, together with legal interest thereon from date of judicial demand until paid. Costs of this appeal are assessed to the defendants-in-reconvention.

Reversed and rendered.