text:
    Anthony L. NOTO v. Anna Triola NOTO.
    No. 11736.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Floyd J. Reed, J. D., Reed & Reed, New Orleans, for plaintiff-appellant.
    Walter L. Sentenn, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This appeal is by a divorced husband from an alimony award of $260 per month. The issue is whether the award was proper considering the circumstances of appellee and the provisions of Act 72 of 1979 amending LSA C.C. Art. 160, requiring the court to consider appellee’s earning capacity in making the award.

The parties were divorced after 31 years of marriage and the community was settled with appellee receiving a mortgage free house containing four apartments, one of which she occupies and another of which produces $200 per month rent. The other two apartments are unrented because of, their run-down condition and, according to appellee, she is unable to improve the property because of her limited income. She is 63 years of age, has a 5th grade education and has a $300 per month part-time job wrapping gifts at a department store. Appellant earns about $2,000 a month as a self-employed contractor and from rental property.

The amended version of C.C. Art. 160 requires the trial judge to consider the earning capacity of the spouses along with other circumstances, but the amount of the award is left to the ultimate discretion of the trial judge. We are not persuaded that he abused his discretion considering the age of appellee and her limited education and work experience. It is reasonable to conclude that she is earning her full capacity at the part-time job she has found.

Next, appellant argues that appellee is not entitled to alimony because she owns the house where she resides, and he contends that this is a $125,000 asset readily available to her. Aside from the fact that the evidence does not necessarily show that the building is worth that much, she is not obliged to deplete her assets in order to be entitled to alimony. In Loyacano v. Loya-cano, 358 So.2d 304 (La.1978) the court held that a rule of reasonableness was to be applied to the question of asset depletion in the light of all of the facts and circumstances relevant to the litigation. From our reading of the record it appears that the trial judge considered those facts and circumstances which are mentioned in the Loyacano case and reached a conclusion which was within his discretion.

The same reasoning applies to appellant’s argument that appellee’s financial problems were contributed to by her furnishing free room and board to her two grown children. We are not convinced that the trial judge did not take this into consideration when he made his award of $260 per month.

Accordingly, the judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Kenneth WILLIAMS and Gerald Williams v. Leon John SCHOMMER.
    No. 11749.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Abbott J. Reeves, Gretna, for plaintiffs-appellees.
    Ford T. Hardy, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   GULOTTA, Judge.

We find no error in the trial court’s judgment awarding plaintiff $1,356.00 in an automobile damage suit and dismissing defendant’s reconventional demand.

Plaintiff’s version of the accident is as follows. At about midnight on September 2, 1977, Gerald Williams, the plaintiff, was driving in a westerly direction in the left lane, the one nearer the median, on the up-ramp of the North Claiborne Avenue Industrial Canal bridge. An automobile traveling ahead of him in the left lane suddenly veered to the right to avoid striking defendant’s automobile which was stopped in the left lane. Plaintiff, who was traveling approximately 25 miles per hour, also attempted to veer to the right but could not do so because of following traffic. He applied his brakes but rear-ended defendant’s vehicle. According to plaintiff and his guest passenger, the lighting on the bridge was not very good and defendant had no brake or warning lights in operation at the time of the collision.

Leon Schommer, on the other hand, testified that his car had stalled in the left lane after it had stopped in front of the crossbar when the drawbridge was in the “up” position to allow marine traffic to pass in the canal. When the bridge came down and traffic resumed, defendant tried unsuccessfully for a few minutes to start his car before being rear-ended by plaintiff. He stated that he had not left his vehicle at any time and, although his headlights were out, he had kept his foot on the brake pedal to illuminate his brake light as he attempted to start the vehicle. According to Schommer, the lighting on the bridge was good and several cars had passed him safely prior to the collision.

Although reasons for judgment were not assigned by the trial judge, it is clear that he accepted plaintiff’s version of the accident and rejected defendant’s version. From our consideration of the record we cannot say the trial judge erred. Plaintiff’s testimony that defendant’s automobile had no lights on was corroborated, to some extent, by a stipulated police report indicating that shortly before the collision an off-duty police officer had observed defendant’s vehicle abandoned in the left lane, unattended and without lights. According to the police report, the vehicle “was in a very dangerous position and hard to see.” A tow wagon was requested by this officer but the accident occurred before its arrival. This report contradicts defendant’s testimony that his brake lights were operating and he had never left his vehicle. Plaintiff’s guest passenger also corroborated Williams’ testimony that the defendant’s vehicle had no brake or warning lights on at the time of the accident.

Although there is a presumption that a rear-ending motorist is negligent, we conclude as apparently did the trial judge, that plaintiff overcame the presumption. Accepting plaintiff’s version, corroborated, to some extent, by the police report and the testimony of the guest passenger in plaintiff’s car, Williams was confronted with a sudden emergency. After unsuccessfully attempting to veer into the right lane to avoid hitting the stopped vehicle, plaintiff was unable to avoid hitting the unlit Schommer vehicle. Under these circumstances we cannot conclude that plaintiff’s actions were unreasonable or that he failed to do that which he should have done. We conclude therefore that plaintiff was not guilty of failing to avail himself of the last clear chance to avoid the accident.

While the primary thrust of defendant’s argument in this appeal is directed against the court’s liability determination, Schommer complains of the awards made to plaintiff other than the award for damage to the vehicle in the sum of $834.50. We reject this contention. Plaintiff testified that he injured his knee in the accident and it was a “little sore the next day.” Williams testified also that he was deprived of the use of the automobile for approximately three days. He described the inconvenience resulting from having the automobile repaired. Furthermore, the testimony regarding the depreciation of an automobile after it has been wrecked and the appraisal fee cost were uncontradicted. Under these circumstances we cannot say that the general damage award in the sum of $200.00, the inconvenience and loss of use award in the sum of $100.00, the depreciation award in the sum of $200.00, and the $22.50 appraisal fee constituted an abuse of the trial court’s discretion.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . The $1,356.00 award comprised the following: $200.00 in general damages; $834.50 in damage to vehicle; $100.00 for inconvenience due to/and loss of use of vehicle; $200.00 for depreciation of vehicle; and $22.50 for an appraisal fee.

      . This draw bridge, known as the Judge Seeber Bridge, consists of four lanes, two in either direction separated by a median.

      . A tow-truck arrived on the accident scene before an investigating officer. It is undisputed that defendant was in his vehicle at the time of the collision.

      . LSA-R.S. 32:81 provides:
      “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”
      Jurisprudence interpreting this statute has established a presumption of negligence or breach of the statute when a motorist strikes the rear of a preceding vehicle. Eubanks v. Brasseal, 310 So.2d 550 (La.1975); Jones v. Meinke, 357 So.2d 838 (La.App. 4th Cir. 1978); Leftwich v. Molony, 322 So.2d 438 (La.App. 4th Cir. 1975).


author: KLIEBERT, Judge.

text:
    Katherine MARCHESE v. STATE FARM FIRE AND CASUALTY COMPANY et al.
    No. 11754.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Roger J. Larue, Jr., Metairie, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for defendants-appellees.
    Before SCHOTT, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On May 10, 1978, a fire occurred in the home of Michael and Katherine Márchese, resulting in the death of their son, Michael Márchese, Jr. Katherine Márchese filed suit against State Farm claiming damages for her son’s death and her own mental anguish. State Farm had issued a homeowners’ policy which included liability coverage to Michael Márchese, Sr. as the named insured covering the house in which the fire occurred. State Farm filed a motion for summary judgment based upon an express exclusionary clause contained in the insurance policy. The motion for summary judgment was granted. This appeal followed:

The exclusion on which State Farm relied is found under Section II (Liability Coverage) of the homeowners’ policy, and reads as follows:

“THIS POLICY DOES NOT APPLY:
1. Under Coverage E — Personal Liability ...
(g) TO BODILY INJURY TO ANY INSURED WITHIN THE MEANING OF PARTS (1) AND (2) OF DEFINITION OF INSURED.”

The definitions of bodily injury and insured applicable to Section II (Liability Coverage) found in the definitions portion of the policy are as follows:

When used in this policy the following definitions apply:
(a) ‘INSURED’ means
(1) the Named Insured stated in the Declaration of this policy;
(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any insured ...”
“Bodily ‘injury’ means bodily injury, sickness or disease, including care, loss of services and death resulting therefrom.”

There is no question the child, the mother and the father were all residing together in the house covered by the policy, hence, all three are “insured” as the term is defined in the policy. Clearly, under the exclusionary clause, above quoted, neither the mother, the child, nor the father is entitled to recover under the policy for bodily injury. Guy v. Egano, 236 So.2d 542 (La.App. 4th Cir. 1970), writ refused 259 So.2d 354.

Plaintiff-appellant now argues, however, that her damages were not for “Bodily Injury”, but rather for the “anticipated support” she would receive from her child. The “anticipated support” claim for damages has no basis in law, since compensation for such a claim requires the claimant show actual prior monetary support. Walker v. St. Paul Insurance Companies, 339 So.2d 441 (La.App. 1st Cir., 1977), writ granted 341 So.2d 554, amended and reaffirmed 343 So.2d 251, writ denied 345 So.2d 61; Ogaard v. Wiley, 325 So.2d 642 (La.App.3d Cir., 1975). Since the decedent was only eight years of age at the time of his demise, any claim for “anticipated support” would be highly speculative and conjecture and thus not recoverable.

The plaintiff-appellant also contends her claim for “loss of love and affection ... and enjoyment of Michael Márchese, Jr.” are not included within the meaning of bodily injury as the term is defined in the policy, hence, the exclusion does not apply to these claims. She argues that the damages she sustained were caused by bodily injury to her son, not because of bodily injury to Katherine Márchese as an insured. For that reason, she contends her damages are not excluded under the policy i. e., the bodily injury of an insured and, hence, are recoverable.

In Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975), writs denied 328 So.2d 887; 328 So.2d 888, the question presented to the court was whether the term “bodily injury” included mental anguish, pain and suffering. At page 10 of the opinion the writer said:

“We attach significance to the fact that the policy defines bodily injury to mean ‘sickness or disease’ in the instant case. These broad terms must include mental distress which persists over a period of time and necessitates the taking of some medication and interferes with one’s performance at work ...
We are unable to separate a person’s nerves and tensions from his body. It is common knowledge that worry and anxiety can and often do have a direct effect on other bodily functions .. . We have concluded that plaintiff’s humiliation, mental anguish, pain and suffering were within the purview of coverage against bodily injury and defendants, as third-party defendants, are entitled to indemnity under the policy.”

The policy in question here defines “bodily injury” as “bodily injury, sickness or disease, including care, loss of services and death resulting therefrom.” It is substantially the same definition as the one at issue in Levy, supra. We see no basis on which the Levy case, supra can be distinguished here.

Appellant next argues that the exclusion of bodily injury of the insured from the insurance contract is violative of the public policy of this state. Basically, appellant contends the exclusion violates the provisions of the Louisiana Direct Action Statute (LSA-R.S. 22:655), stating “it is also the intent of this section that all liability policies within the terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable ...” Appellant argues there is no provision in Louisiana law which allows an insurer to limit the protection afforded to injured parties and, therefore, asks this Court to exclude from the policy those provisions excluding coverage to the insureds under the policy.

In Guy v. Egano, 236 So.2d 542 (La.App. 4th Cir. 1970), the issue presented was whether an exclusionary clause similar to the one in this case (but contained in an automobile policy) was in contravention of the public policy of this state. The Court stated at page 547:

“The right to bring a direct action is one conferred by Louisiana statutory law. Insurance contracts prohibiting the direct action contravene our statute and for that reason the policy provision prohibiting a direct action will not be recognized in our courts. But in the instant case the Insurance Commissioner’s regulation as to how foreign insurers write business in this state is not tantamount to a statutory prohibition against including such an exclusionary provision in a policy. It is an established principle of our jurisprudence that the insurer and the insured may agree to limit liability in any manner, in the absence of a statutory provision to the contrary.” (Citations omitted) (emphasis ours)

There being no statutory provision prohibiting the limitation of liability complained of here, the plaintiff’s contention must fall.

Lastly, counsel for appellant cites error because the trial court dismissed the petition by summary judgment when there was a genuine issue of material fact still in question.

In support of the motion for summary judgment, an affidavit certifying to the validity of the insurance policy was submitted. The particular policy attached to the affidavit showed an effective date of 10/9/75 through 10/9/76. Since the fire occurred on May 10, 1978, appellant contends this was not the policy in force at the time of the occurrence; hence, there is a genuine issue of material fact still unresolved because the proper policy is not in evidence.

Appellant has apparently overlooked the renewal clause of the policy which was introduced, which stated:

“This policy will be renewed automatically, subject to provisions of the forms then current, for each succeeding policy period thereafter and is subject to termination by this company only after written notice to insured and mortgagee in compliance with policy provisions. The premiums for succeeding policy periods will be computed at this company’s rates then current.”

No countervailing affidavits were introduced to support appellant’s contention that the policy introduced was not the policy in effect at the time of the occurrence. Plaintiff does not contend that the policy was not renewed according to its terms, nor does plaintiff contend that it was terminated by written notice to the insured. We agree with the district court’s dismissal of the suit on motion for a summary judgment.

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

AFFIRMED.

      . A certified copy of the homeowners’ policy was admitted in support of the motion for summary judgment.


author: CHEHARDY, Judge.

text:
    Matthew CARDERARA v. John TARANTO.
    No. 11755.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Stephen R. Perez, Chalmette, for plaintiff-appellant.
    Turner & Young, Emile L. Turner, Jr., New Orleans, for defendant-appellee.
    Before SCHOTT, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Matthew Carderara, appeals a district court judgment in his favor and against defendant, John Taranto, in the sum of $250, together with judicial interest from date of demand, and for all costs. The judgment also dismissed the third party demand filed by Taranto against Linda Romano Garner.

The record reflects that on April 7, 1977 an exchange of properties, consisting of two side-by-side residential lots of identical value ($10,000), was executed by notarial act between John Taranto and Carolyn Gau-threaux, wife of/and Matthew J. Carder-ara. The record further establishes that on April 6,1977 the Carderaras’ application for a $21,500 loan from Fidelity Homestead Association (Fidelity), for the purpose of constructing a home on the lot they had received from Taranto, was approved, to be completed on the direct reduction plan at an interest rate of 8V<i% per annum, for a term of 20 years, with monthly payments of interest and principal to be $183.21.

The Carderaras subsequently received a letter dated July 13, 1977 from Fidelity informing them that examination of the title to the property had been completed. The letter also stated, however, that because John Taranto had acquired the lot in question while he was married to and living and residing with Linda Marie Garner (from whom he was later divorced), and because, in Taranto’s transfer to the Car-deraras, this prior wife, who had a presumptive community interest, did not appear, Fidelity required that she divest herself of whatever interest she may have in and to this property.

Subsequently Mrs. Garner executed an authentic act, signed by herself and all of the parties to the subject litigation by which she assigned all of her rights, title and interest in the Carderaras’ property to them in consideration that all of her claims of community interest be reserved, by mutual consent of herself and John Taranto, against the property which Taranto had received from the Carderaras in the exchange. This act was dated January 24, 1978.

On December 22, 1977, the Carderaras received another letter from Fidelity reciting that their application for a loan on the subject property had been approved for $21,700 at an interest rate of 8%% per an-num for a term of 20 years, monthly payments of interest and principal to be $191.77.

Matthew Carderara subsequently filed suit against Taranto, claiming that the cloud on the piece of property received from him in the exchange constituted a breach of warranty guaranteed by the defendant in the exchange, and claiming damages of $189.87 (extra interest costs resulting from interim financing), $272.50 (closing fees for interim financing), and $1,680 (additional interest involved in personal finance as a result of delay in obtaining clear title.

At the trial on the merits of the case Mrs. Carderara testified she also obtained interim financing in order to cover indebtedness to their contractor and she identified a disclosure statement of loan from the First National Bank of St. Bernard Parish (St. Bernard) which indicated that a loan, consisting of a collateral mortgage and note, was made by the Carderaras on September 15, 1977 for $21,715 and that the interest paid at maturity, on December 14, 1977, would be $537.50. Although plaintiffs had only asked for interest on this loan of $189.37, at trial Mrs. Carderara further testified that she thought the 90-day loan had been renewed three times. She also identified a receipt from her attorney in the amount of $250 for loan closing legal fees on the collateral mortgage.

Mrs. Carderara additionally stated at trial that her contractor had only been paid' a down payment for construction of the house and her agreement with him was that, upon completion of the house and receipt of the loan from Fidelity, he would be paid the balance owed to him. She admitted that she would have also had to pay interest to Fidelity during the delay period, had she timely received the loan from that bank, but she maintained that the rate would have been lower. She was unable to explain, however, how the difference between the two interest rates was calculated by her attorney, and no receipts were produced by the Carderaras of interest actually paid on the collateral mortgage note.

Both Mr. and Mrs. Carderara testified that after they received notice of the higher interest rate being charged by Fidelity, they did not seek financing from any other lending institution to see if a lower rate of interest could be obtained.

In his written reasons for judgment, the district court judge stated in part:

“The plaintiff introduced documents into evidence showing that they first applied for a loan at a lessor interest rate than what they finally received, and the basis of this suit was the difference in said rate. However, there was no calculations, no witnesses, no experts who testified between the mathematical differences of the rate of interest. In fact, no one at all testified from First National Bank of St. Bernard as an element of damages or losses. No other receipts for any expenses were introduced into evidence with the exception of the $250.00 bill paid to Stephen Perez, Attorney, for his services.
“Therefore, although the Court finds that the plaintiff was aggrieved by the act of exchange through no fault of his own, it must'render judgment only for the damages that they actually proved, to-wit, the sum of $250.00.”

We agree. A plaintiff must prove with legal certainty every item of damages claimed. Craig v. Burch, 228 So.2d 723 (La.App. 1st Cir. 1969). In the present case, any damages awarded to the Carderaras for the V2% difference in the interest rates on the 20-year loan from Fidelity would be speculative without the aid of an expert witness to establish how the difference should be calculated; in fact, no method of calculation was even suggested in plaintiffs’ testimony at the trial on the merits. Although counsel for plaintiffs states in his brief to this court that the difference can be calculated by “simple mathematics,” this is simply not the case without the aid of expert testimony.

Regarding the collateral mortgage loan from St. Bernard, any damages due and, owing would only be the difference between the interest actually paid to that lending institution and what interest would have been paid on the loan,from Fidelity had it been granted at the time the money became due and owing to the contractor. Once again, without the aid of expert testimony or receipts indicating interest actually paid on the note, this is an amount impossible to calculate accurately or with any certainty.

For the reasons assigned, the district court judgment is affirmed in all respects.

AFFIRMED.

      . “Carderara” is also spelled “Carderera” in the trial court judgment and other parts of the record.


text:
    COLISEUM HOUSE HOSPITAL v. Walter F. BONIS, Jr. and Olga Rita Bonis.
    No. 11757.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Malcolm B. Robinson, Jr., Metairie, for plaintiff-appellant.
    Olga Rita Bonis and Walter F. Bonis, Jr. in pro. per.
    Before CHEHARDY, KLIEBERT and HUGHES, JJ.
   KLIEBERT, Judge.

Olga Rita Bonis, defendant, was having severe psychiatric problems with suicidal tendencies. Her doctors recommended immediate hospitalization and she was admitted into Coliseum House Hospital, a private psychiatric hospital, on February 1, 1978. Upon admission, both Olga Bonis and her husband, Walter F. Bonis, Jr., signed an agreement entitled “Conditions of Admission,” wherein defendants agreed to pay all charges incurred during the hospital stay, as well as delinquent charges and attorney fees if they failed to make payment. Mrs. Bonis remained in Coliseum House until February 23, 1978, when she left the hospital without a medical discharge. The hospital presented a bill for the hospital stay and treatment of $2,399.07. Of this amount, $1,000.40 has been paid by Blue Cross, defendants’ hospital insurer. Defendants refused to pay the bill. Plaintiff filed suit. After trial on the merits, the district court dismissed plaintiff’s suit. The basis for dismissal was the failure to prove the case by a preponderance of the evidence. Plaintiff appeals.

Defendant, Olga Bonis, admitted she was a patient at Coliseum House from February 1 — February 23, 1978. She also admitted approximately $2,300.00 in charges were incurred during the hospitalization and an outstanding balance of $1,399.07 was due and owing. Further, Mrs. Bonis admitted executing the “Conditions of Admission” agreement. Mr. Bonis admitted his wife’s hospitalization, his signature on the “Condition of Admission” agreement, and the unpaid balance of the bill. He further admitted the detailed statement of Coliseum House was correct and that he had no complaints with the treatment rendered by Coliseum House to his wife. The patient account supervisor for the plaintiff testified the amount due on the Bonis’ account was $1,399.07.

Louisiana Civil Code Article 2277 provides as follows:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

Louisiana jurisprudence has consistently held that the plaintiff can serve as the credible witness required by C.C. Art. 2277. See, generally, Olinde v. Seghers, 280 So.2d 657 (La.App. 4th Cir. 1973); Great Marine Corporation v. Vinet, 217 So.2d 480 (La. App. 1st Cir. 1968), writ refused La., 219 So.2d 515. Plaintiff herein is a corporation. The credible witness was the patient account supervisor employed by plaintiff who was in charge of patient accounts. Therefore, she was the logical witness for plaintiff to call to testify.

The “other corroborating circumstances” requirement has been fulfilled by the testimony of both defendants who admitted the hospital stay, the amount due and owing, and the fact that they both signed the “Conditions of Admission” form.

In defénse of the claim, Mr. Bonis contended that plaintiff misinformed him about Blue Cross coverage and, therefore, he left his wife in the hospital thinking she had insurance coverage. He testified that Coliseum House had given him a copy of a Blue Cross form which indicated that his wife had been approved by Blue Cross until March 9, 1978. However, subsequent review by Blue Cross stated that Mrs. Bonis did not need hospitalization and Blue Cross, therefore, only paid $1,000.40.

While we fully appreciate and sympathize with defendants’ plight with Blue Cross, plaintiff correctly points out that the Bonis’ quarrel with their hospitalization carrier is no defense to this suit on an open account. Defendants’ remedy would be either a separate legal proceeding against Blue Cross or would have been to file a third party demand against Blue Cross in the proceedings below.

For the foregoing reasons, the judgment of the district court is reversed, and Judgment is hereby rendered in favor of Coliseum House Hospital against Olga Rita Bonis and Walter F. Bonis, Jr., in solido, in the full and true sum of One Thousand Three Hundred Ninety-nine and 07/100 ($1,399.07) Dollars, plus interest, 25% attorney fees and costs.

REVERSED AND RENDERED.


text:
    Joseph Lawrence INGARGIOLA v. Marilyn CLESI, wife of Joseph Lawrence Ingargiola.
    No. 12035.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Stephen R. Perez, Chalmette, for appel-lee.
    Young & Mars, Theodore A. Mars, Jr., W. W. Young, III, New Orleans, for appellant.
    Before CHEHARDY, KLIEBERT and HUGHES, JJ.
   CHEHARDY, Judge.

Marilyn Clesi Ingargiola, former wife of Joseph Lawrence Ingargiola, appeals a July 9, 1980 trial court decision dismissing the rule to change custody of her minor children, Lisa, Joseph Lawrence, Michael and Stephen Ingargiola, from their paternal grandparents, Mr. and Mrs. Joseph Ingargi-ola, to her. Temporary custody had been given to the grandparents at a hearing on May 18, 1979, when the judge found Marilyn Clesi Ingargiola not able to take custody of her children.

At the April 18,1980 hearing on the rule, the district judge stated in part:

“* * * The Court states that since the amendment of the law in regard to Article 157 of the Code of Civil Procedure, that is custody of children in 1979, the regular legislature provided that in cases such as these the Court no longer had the alternative to place the children in the hands of the grandparents or any other parties, that the Court must choose between the mother and father. Previous to that and at the time of the initial granting of custody of these children that restriction was not placed on the Court. So, that is the first problem [of] the Court. * * *”

In stating his finds of fact from the bench at the end of the proceedings, the trial court judge also observed:

“* * * I don’t find anything in either one of the children which would make the Court either deny the father, the grandparents, or the mother custody.
“The only finding I see as far as I’m concerned is that I make the finding of fact that Mrs. Ingargiola is now well and able to care for her children. * * *

In the oft-cited case of Wood v. Beard, 290 So.2d 675 (La.1974), the court stated at page 677:

“When the parent competes with non-parents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. State ex rel Martin v. Garza, 217 La. 532, 46 So.2d 760 (1950); State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163 (1947); State ex rel Martin v. Talbot, 161 La. 192, 108 So. 411 (1926); Ex parte Lincoln, 128 La. 278, 54 So. 818 (1911). See also State ex rel. Lombardo v. Miller, 232 La. 617, 94 So.2d 888 (1957). No such forfeiture has been found by either court below, and the evidence will not support such a finding. Nor will the evidence support a conclusion that custody in the parent will be inimical to the welfare of the child.” ?

The court also said in the recent case of Neal v. White, 362 So.2d 1148 (La.App.2d Cir. 1978), at page 1149:

“Although a mother has a superior right to her child over third persons, this right must yield to the superior right of the state to deprive her of care and custody of the child in the event the physical, mental and moral welfare of the child requires it. State v. Watson, 219 La. 265, 26 So.2d 740 (1946). When the parent competes with nonparents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. Wood v. Beard, 290 So.2d 675 (La.1974). The ‘best interest rule’ applies whether the child is legitimate or illegitimate. Creppel v. Thornton, 230 So.2d 644 (La.App. 4th Cir. 1970).”

In the present case, the effect of the trial court judge’s dismissal of Mrs. Ingargiola’s rule to change custody was to retain custody of the children in the paternal grandparents, pursuant to an agreement to stipulated custody in the paternal grandparents, as made by both the parents of the children at a hearing on a rule to show cause on May 18, 1979. At that hearing, however, the district court judge noted that based on the testimony of Mrs. Ingargiola’s physician, he did not feel she was, at that time, able to take custody of the children. At the April 18, 1980 hearing, however, as noted supra, the trial judge found that the mother of the children was “now well and able to care for her children.” In view of that finding, therefore, we can only hold that the court’s denial to her of custody in favor of the paternal grandparents was, under the jurisprudence of Wood v. Beard, supra, and Neil v. White, supra, contrary to the applicable law and an abuse of the trial court judge’s discretion.

In the case of Hall v. Hall, 367 So.2d 162 (La.App.2d Cir. 1979), the court did not find a forfeiture of parental rights through unfitness or incapacity of maintaining custody, and, therefore, reversed a trial court’s award of permanent custody to maternal grandparents in preference to both the parents who were competing for custody. That case is distinguishable from the present one, however, in view of the fact that in that case neither party had prayed for custody to the grandparents, whereas in the present situation custody in the grandparents is supported by the children’s father in his testimony at the hearing. In Hall, moreover, the court maintained that temporary custody has been awarded to grandparents pending determination of permanent custody, even though their being awarded custody had not been prayed for by either parent, citing Broeato v. Brocato, 364 So.2d 152 (La.App. 1st Cir. 1978).

In the present case, however, the district court judge gave no reasons for maintenance of temporary custody in the paternal grandparents, rather than deciding the issue of permanent custody and in spite of finding that the mother of the children was fit to care for them.

For the foregoing reasons the judgment of the trial court dismissing Mrs. Ingargio-la’s rule for change of custody is reversed and we render judgment in favor of Mrs. Marilyn Clesi Ingargiola granting to her the care, custody and control of the minors, Lisa, Joseph Lawrence, Michael and Stephen Ingargiola. Each party is to bear his own costs of the proceedings.

REVERSED AND RENDERED.

      . At the April 18, 1980 hearing the father of the children did not ask the court to formally grant him custody of the children.


text:
    Succession of Arthur ACOSTA.
    No. 12189.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Max Nathan, Jr., Carole Cukell Neff, New Orleans, for appellant Mrs. Albertha Acosta.
    Elmer R. Tapper, Chalmette, for Estate of Arthur Acosta, appellee.
    Tom W. Thornhill, Slidell, for appellees.
    George J. Dowd, New Orleans, for appel-lee John Martinez.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   GULOTTA, Judge.

Appealing from a judgment on a rule to traverse the inventory of her husband’s succession, Mrs. Albertha Acosta, the widow of Arthur Acosta, complains that the trial court erroneously characterized contracts with Exxon for distribution of oil products as community property. It is Mrs. Acosta’s contention that she entered into the contracts after the death of her husband and that they are, therefore, her separate property and not an asset of the Acosta succession. We agree.

In 1942, Arthur Acosta, sole proprietor, commenced business as a distributor of Exxon gasoline and petroleum products. In operating the business, Arthur entered into successive annual distribution or sales agreements with Exxon Corporation, which set forth the quantities of gasoline, oil, and other products that would be delivered to Acosta. The contract was re-negotiated each year and each annual agreement was signed by Arthur.

In 1977, Arthur incorporated his business with an initial cash capitalization of $12,-000.00. The two principal shareholders were Arthur and one John Martinez, who earlier had worked in Arthur’s business part time. It was Arthur’s intention in incorporating that Exxon would enter into the annual distribution and sales contracts with the corporation rather than Arthur individually. Exxon refused to do so, however, and required that Arthur continue to sign the agreement individually.

When Arthur died on December 24,1978, a distribution agreement dated May 18, 1978 between Exxon Company, U. S. A. and Arthur Acosta was in effect. It continued until expiration on March 31, 1979.

On April 24,1979, Exxon and Mrs. Acosta entered into a new sales agreement effective April 1, 1979 and running through March 31, 1980. This one year contract, although similar to the prior contracts signed by Arthur in many respects, set forth different quantities of fuel, new prices, payment and terms of delivery of petroleum products.

On December 4, 1979, Albertha entered into a new distributor agreement with Exxon effective from April 1,1979 until March 31,1980. According to the testimony of the Exxon representative, this contract, while having the same effective date as the previous one signed by Albertha, reflected new Exxon policies. This third contract likewise set forth the rights and obligations of the parties and contained attached schedules setting forth the price, quantity and terms of delivery of petroleum products.

On April 10,1979, John Martinez filed an intervention in the succession proceedings and alleged that he was one-half owner of Arthur Acosta, Inc., the Exxon distribution business. On July 17, 1979, an inventory of Arthur’s assets and liabilities was filed. Concerning the succession’s interest in the business, the inventory stated:

“VII. BUSINESS
Arthur Acosta or Arthur Acosta, Inc., Exxon Distributorship (the ownership of this business is in contest and, therefore, the value of the interest of the estate has not been put in this inventory pending the decision of the court as to the division of the interest.)”

On October 9, 1979, Albertha in a rule to traverse the inventory alleged that the Exxon distributorship was her separate property, not part of the community that had existed between Arthur and her, and that John Martinez had no interest in it.

The trial judge held that the corporation was in existence; that John Martinez was an owner of a one-half interest in the corporation; and, that the Exxon contracts were not a corporate asset but were the community property of Arthur and Albertha.

No appeal has been taken by John Martinez from that part of the decree which holds that the contracts are not corporate assets. Accordingly, this holding is final.

The issue confronting us is whether contracts entered into by a decedent’s widow subsequent to decedent’s death are community assets and as such form a part of the succession or constitute the separate property of the decedent’s widow. The trial judge concluded that these contracts are community assets. We reverse.

Well settled is the rule that the community of acquets and gains existing between the spouses terminates on the death of one of them. See LSA-C.C. art. 136, 2402,2405 and 2406. See also, Succession of Butler, 147 So.2d 684 (La.App. 4th Cir. 1962), application denied, 244 La. 117, 150 So.2d 584 (1963); Golding v. Golding, 43 La.Ann. 555, 9 So. 638 (1891).

The distribution contract signed by Arthur in the year prior to his death came into being during the existence of the community. The rights flowing from that agreement are assets of the community. The obligations under the agreement, likewise, are community responsibilities. On the other hand, the two contracts signed by Albertha and Exxon came into existence after Arthur’s death. These were signed by Albertha individually subsequent to the termination of the community. Albertha is designated as “buyer” in these two distribution agreements which set forth quantities of product, prices, and other provisions differing from the previous agreements signed by Arthur. They are separate contracts, each with a definitive term of duration; they are not merely modifications or continuations of Arthur’s prior agreement.

Exxon’s sales representative, Edwin Simmons, testified that Exxon exercised a corporate preference of dealing with a distributor’s widow rather than some other individual, and did not choose to contract with Arthur Acosta, Inc. Clearly the two distribution agreements signed by Albertha create obligations and rights in favor of her as an individual, not in favor of the community that had ceased to exist upon Arthur’s death. Although they are not exactly on point, we find support for our conclusion in two old cases. See Succession of Blancand, 48 La.Ann. 578,19 So. 683 (1896), and Stehr Auto Sheet Metal Works v. Pacholik, 148 So. 482 (La.App. 2nd Cir. 1933).

We reject the arguments of the estate and the legatees of Arthur Acosta that because Mrs. Acosta, after decedent’s death, used her husband’s equipment and availed herself of her husband’s customers, goodwill and reputation, the succession is entitled to benefits from the rewards flowing from the two contracts entered into by Mrs. Acosta with Exxon subsequent to Arthur’s death. We have no quarrel with the succession’s argument that the marital community has fictious existence for the purpose of liquidation and settlement of community debts after the dissolution by death of one of the spouses, however, this contention relates to the settlement of the community’s obligation and debt prior to the termination of the community. This fictious existence of the matrimonial community does not extend into contracts and obligations executed by one of the spouses after the termination of the community.

A conclusion that the contracts entered into by Mrs. Acosta with Exxon subsequent to Arthur’s death are her separate property does not deprive the decedent’s estate or the corporation from asserting a claim against Mrs. Acosta for the use of the corporate or estate’s equipment or other assets. The corporate stock is a community asset. The succession or the corporation may or may not have some claim against Mrs. Acosta for use of the equipment or anything of value belonging to the corporation or the community that has been used by her, subsequent to Arthur’s death, in carrying out the Exxon contracts or in any other business enterprise. These questions, however, are not before us in this appeal.

We hold that the contracts entered into by Mrs. Albertha Acosta subsequent to the death of Arthur Acosta are the separate property of the wife and form no part of the Succession of Acosta. Accordingly, the judgment of the trial court decreeing that the contracts are community property is reversed and set aside. Judgment is now rendered in favor of Albertha Acosta and against the Succession of Acosta decreeing that the Exxon contracts executed by Mrs. Acosta subsequent to the date of death of the decedent are the separate property of Mrs. Acosta. In all other respects the judgment appealed from is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . The August 21, 1980 judgment stated that Arthur’s estate and Martinez each owned a one-half interest in the corporation. On September 18, 1980, the trial court amended its judgment to state that Martinez had a one-half interest, that Arthur’s estate owned a one-fourth interest, and that Albertha owned a one-fourth interest.

      . LSA-C.C. art. 2356, effective January 1, 1980, now provides, inter alia, that the legal regime of community property terminates by the death of a spouse.

      . See LSA-C.C. art. 2409 and Demoruelle v. Alien, 218 La. 603, 50 So.2d 208 (1950); Washington v. Palmer, 213 La. 79, 34 So.2d 382 (1948).


text:
    The BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF the ORLEANS LEVEE DISTRICT (Including Particularly the Citizens of the Parish of Orleans, and Parish of St. Bernard) and Nonresidents Owning Property or Subject To Taxation Therein, and All Other Persons Interested In or Affected In Any Other Way By the Issuance of Marina Bonds, Series 1986A of the Orleans Levee District.
    No. 12213.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Writ Denied May 6, 1981.

      Chaffe, McCall Phillips, Toler & Sarpy, Jarrell E. Godfrey, Jr., Bond Counsel, New Orleans, and McGinity & McGinity, Richard J. McGinity, Gen. Counsel, New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Fred L. Chevalier, Richard M. Troy, Asst. Attys. Gen., Louisiana Dept, of Justice, Baton Rouge, for the State of Louisiana, defendant-appellee.
    Philip R. Johnson, Metairie, and Luke Fontana, New Orleans, for Save Our Wetlands, Inc., intervenor-appellee.
    Before CHEHARDY, KLIEBERT and HUGHES, JJ.
   CHEHARDY, Judge.

Plaintiff, Board of Commissioners of the Orleans Levee District (Levee Board), appeals a December 9, 1980 trial court judgment decreeing that plaintiff’s motion for judgment was denied and further declaring the sale of Marina Bonds, Series 1980A invalid, all at the plaintiff’s costs. Interve-nors, The State of Louisiana, Save Our Wetlands, Inc., and Arthur Nead, had opposed the Levee Board’s motion for judgment on various legal grounds.

It is uncontested that on August 20,1980 the Levee Board passed a resolution authorizing the issuance of the aforementioned bonds in the amount of $31,080,000 to provide the funds necessary for the development and construction of a marina to be located on Lake Pontchartrain adjacent to the Orleans Lakefront Airport. The ordinance stated that the interest to be charged on the bonds was to be fixed at a rate, not to exceed 12%, to be set at the time of sale. It was also established that the bonds were to be sold at one time or in blocks from time to time by sealed bids or by negotiation at the discretion of the Levee Board’s president. The ordinance also authorized the Levee Board to obtain bond insurance and to pay the premiums for this insurance from the proceeds of the sale. It is undisputed that the bonds were to be payable from the revenues of the proposed marina together with the proceeds of taxes to the extent they are available after payment of all prior issued bonds also secured by those taxes.

The judgment of the trial court should be affirmed. We find that the reasons for judgment set forth by Judge Plotkin are well stated and parallel our reasons for affirming.

Accordingly, we adopt the trial court’s Reasons for Judgment as our own:

“The Board of Commissioners of the Orleans Levee District, a political subdivision of the State of Louisiana created by the Louisiana Constitution, brings this motion for judgment to establish the validity of Marina Bonds, Series 1980 A, in the principal sum of $31,080,000.00.

“The Board purposes to raise this sum by issuing ‘General Obligation Bonds’, payable out of revenues from the marina and from ad valorem tax proceeds. The entire issue is to be insured guaranteeing AAA bond rating and payment.

“Intervenors, the State of Louisiana, Save Our Wetlands, Inc., and Arthur Nead, oppose the motion for judgment upon numerous legal grounds.

“The Levee Board does have the authority to develop, operate and maintain a marina. In 1970 the Louisiana Legislature enacted R.S. 38:281, entitled ‘Public Works & Improvements’, clearly conferring on the Levee Board the power to construct a marina.

“‘C. The levee boards of this state * * * may perform recreational functions and use therefor any funds made available to them for such purpose. * * * [T]he boards may develop, operate and maintain recreational areas and for such purposes * * * may construct, operate and repair buildings, ramps, marinas and other facilities and equipment common to a recreational area. * * *’ (Emphasis ours).

“This specific authority is conferred by the Legislature upon the Orleans Levee Board in Part XIX R.S. 38:1235.1(C) which states:

‘In the planning, designing, and executing of a project, the board shall have jurisdiction, power, and authority, within the territorial limits of the project, to dedicate to public use and to lay out, construct, embellish, and maintain a system of parks, beaches, tracts of lands, and streets, with the necessary and related or unrelated buildings, and the usual adjuncts to the kind of development contemplated hereunder; to construct and equip and maintain playgrounds, places of amusement, and entertainment, golf links, gymnasiums, swimming pools, bathing beaches, aviation fields, and other like places.’

“The Levee Board claims the authority to issue bonds as stated in Art. VI, Part III, Section 40 of the 1974 Louisiana Constitution:

‘(A) Authorization. Subject to approval by the State Bond Commission or its successor, the governing authority of a levee district may fund the proceeds of its taxes or other revenues into bonds or other evidences of indebtedness. Proceeds thus derived shall be used for the purposes mentioned in Part III of this Article or for the funding or payment of any outstanding indebtedness.
‘(B) Sale. Bonds issued under the authority of Paragraph (A) shall be sold as provided by law concerning the issuance of bonds by levee districts.’

“The above article authorizes the Board to issue bonds without the necessity of any Legislative Act in order to fund its purposes.

“The Board has designed these bonds so that the revenues from the proposed marina will amortize the bonds when they become due. They propose a secondary pledge of the proceeds of the tax provided by Section 39, Article VI, of the Louisiana 1974 Constitution:

‘(A) District Tax; Millage Limit. For the purpose of constructing and maintaining levees, levee drainage, flood protection, hurricane flood protection, and for all other purposes incidental thereto, the governing authority of a levee district may levy annually a tax not to exceed five mills, except the Board of Levee Commissioners of the Orleans Levee District which may levy annually a tax not to exceed two and one-half mills, on the dollar of the assessed valuation of all taxable property situated within the alluvial portions of the district subject to overflow.
‘(B) Millage Increase. If the necessity to raise additional funds arises in any levee district for any purpose set forth in Paragraph (A), or for any other purpose related to its authorized powers and functions as specified by law, the tax may be increased. However, the necessity and the rate of the increase shall be submitted to the electors of the district, and the tax increase shall take effect only if approved by a majority of the electors voting thereon in an election held for that purpose.’

“The primary function of the Orleans Levee Board is the protection of the residents of New Orleans by constructing and maintaining levees, levee drainage, flood and hurricane protection. To this end, the Board is constitutionally permitted to issue bonds without voter approval, and pledge their taxes.

“The authority to construct and operate a marina is a secondary function of the Orleans Levee Board, authorized by the Louisiana Legislature. The ‘any other purpose related to its authorized powers’, does not include marinas. This secondary purpose, being recreational in nature, does not allow the Board, as their authority for a bond issue, to use Sections 39 and 40 of Article VI of the Louisiana Constitution.

“Therefore, the Board must look to Part II, Financing of Local Governments, Sections 26 through 37, for the authority to issue these bonds.

“Article VI, Section 37 of Part II, entitled, ‘Revenue-Producing Property’, reads as follows:

‘(A) Authorization. The legislature by law may authorize political subdivisions to issue bonds or other debt obligations to construct, acquire, extend, or improve any revenue-producing public utility or work of public improvement. The bonds or other debt obligations may be secured by mortgage on the lands, buildings, machinery, and equipment or by the pledge of the income and revenues of the public utility or work of public improvement. They shall not be a charge upon the other income and revenues of the political subdivision.
‘(B) Exception. This Section shall not apply to a school board.’ (Emphasis ours).

“The bonds proposed in this case, although silent in the pleadings, are a combination revenue bonds and General Obligation Bonds. General Obligation Bonds are defined in Article VI, Section 44(6) of the 1974 Constitution as follows:

‘ “General obligation bonds” means those bonds, the principal and interest of which are secured by and payable from ad valorem taxes levied without limitation as to rate or amount.’

“The Constitution clearly provides that General Obligation Bonds may be issued only after majority voter approval.

“‘(A) Authorization. Subject to approval by the State Bond Commission or its successor, general obligation bonds may be issued only after authorization by a majority of the electors voting on the proposition at an election in the political subdivision issuing the bonds. * * *’ [Article VI, Section 33.]

“The Louisiana Constitution clearly intended electoral approval of General Obligation Bonds by any political subdivision because payment is through the ad valorem taxes levied against its citizens. Since the citizens have not consented by vote, the Board does not have the legal authority under this section of the Constitution to issue this type of bond.

“Even if the Board had authority in the Constitution, to issue these bonds, their method of proposed repayment violates the Louisiana Constitution. The Board’s formula for repayment is as follows:

These bonds are to be secured solely from the pledge of the following revenues:
a. Revenues of the proposed Marina;
b. Proceeds of the tax authorized by Section 39, Article 6 of the Constitution of Louisiana of 1974 as increased by Section 23, Article 7 of said Constitution and as implemented by Acts of the Louisiana Legislature Number 617 of 1977 and 614 of 1978, to the extent available after payment of all prior issued bonds also secured by said tax.

“Article VI, Section 37 of the Constitution, and Title 38:1235.3(A), clearly limit what may be pledged as security for the payment of the bonds.

“Article VI, Section 37, states in pertinent part:

‘ * * * The bonds or other debt obligations may be secured by mortgage on the lands, buildings, machinery, and equipment or by the pledge of the income and revenues of the public utility or work of public improvement. They shall not be a charge upon the other income and revenues of the political subdivision.’ (Emphasis ours)

“This provision would allow the Board to issue Bonds for any ‘revenue producing public utility or work of public improvement’ subject to the restrictions in the last sentence.

“The Louisiana Supreme Court in Bd. of Comm, of La. (LAMPCO) v. All Taxpayers, 360 So.2d 863 (La.1978) interpreted this Constitutional provision. In LAMPCO, supra, the Louisiana Supreme Court reversed a Court of Appeal decision which held that the particular bonds issued did not comply with the authorizing statute and were in contravention of Section 37(A). In reversing, the Supreme Court held that the revenue bonds were not a charge upon the other income and revenues of the political subdivisions, but were factually payable solely from the revenues derived from the operation of the public project, and thus were clearly in accordance with Article VI Section 37(A). The apparent fear of the Appellate Court was that the bonded indebtedness would create a binding obligation upon the cities involved which could be enforced against a member city’s entire revenues and assets, and this would clearly have violated the provisions of Section 37(A). The Supreme Court denied this result, stating that Section 37(A) ‘specifically provides that the bonds may be secured “by the income and revenues of the public utility” ’ and that the limitation in Section 37(A), ‘ “shall not be a charge upon the other income and revenues of the political sub-division” ’ * * * quite obviously means that the bonds shall not be a charge upon the income and revenues of the political subdivision other than utility revenues * * *’ (Emphasis in original).

“The bonds here would result in a binding obligation of the Levee Board. To pledge revenues or taxes not derived from the operation of the project would result in a ‘charge upon other income and revenues of the political subdivision’ and a clear violation of Article VI, Section 37 of the 1974 Louisiana Constitution. The section clearly prohibits a revenue bond being secured by any pledge of other income of the Levee Board.

“Furthermore, the Board concedes that this limitation applies to legislatively authorized bonds. As stated previously, the Board’s authority to issue bonds, if any, is legislative and, therefore, this restriction applies and the bonds are prohibited..

“In 1975 the Legislature granted specific authority and limitations to the Orleans Levee District in R.S. 38:1235.1 et seq. The ‘funds made available to them for such purpose’, are clearly limited not only by the Constitutional provision but also by R.S. 38:1235.3, which states:

‘A. In order to carry out the objects and purposes of this Part and to enable the board to finance and carry on the work * * * herein authorized or otherwise authorized by law, the board may issue * * * bonds * * * to be payable at such times and at such place or places, and to be issued under all such terms and conditions, not inconsistent herewith, as the board determines to secure such bonds * * * the board may mortgage and pledge:
(1) any and all lands reclaimed or to be reclaimed, or otherwise acquired by the board as part of the development, except such part of such land as is required by the provisions hereof to be reserved and dedicated for public parks, parkways, boulevards, playgrounds and/or places of amusement, and/or beach purposes, together with all buildings and improvements made or constructed or to be made or constructed thereon, and all rights, ways, privileges, servitudes, or appurtenances thereunto belonging or in anywise appertaining, and
(2) cash, notes and/or other evidences of indebtedness received or to be received by the board in consideration for the sale or sales of any lands, lots, and improvements forming part of the development; and
(3) any lease or leases, and the rents, incomes, and other advantages arising out of any lease or leases made or granted by the board in connection with the development; and
(4) generally, any and all rights of the board in and to any lands, property, incomes, revenues, claims, and other choses in action, forming part of and/or arising out of the development.’ (Emphasis ours)

“The clear intent of both the Constitutional provision and the statute being that the bonds must be essentially self-sustaining. This leads to the conclusion that ad valorem taxes cannot be pledged to secure payment of these bonds as they do not arise out of the development being financed.

“R.S. 38:1235.3 and Constitutional Article VI, Section 37, authorises the issuance of bonds to finance these projects but limits the funding of the bonds to revenues and income arising out of the particular development. R.S. 38:1235.3(A) also clearly places another restriction on the bonded indebtedness: the amount of the bonds is limited to ‘the sum of $15,000,000 in principal amount at any one time outstanding * * *.’ And again, the statute states in subsection D:

‘ * * * Anything herein contained to the contrary notwithstanding, the aggregate principal amount of all bonds, notes, and certificates of indebtedness issued hereunder at any time outstanding, together with the total maximum liability, whether or not due then unpaid on all contracts for any work and/or material in connection with the project herein authorized, shall never exceed the sum of fifteen million dollars and any contract made or any bond, note, or certificate of indebtedness issued in violation of this provision shall be null and void.’ (Emphasis ours)

“The statute is clearly applicable to the Orleans Levee district and unequivocably restricts the amount of bonds issued under this part to fifteen million dollars in aggregate amount at any one time outstanding. The request to exceed the authorized legal limit renders this proposal invalid.

“Therefore, the Board is permitted by the Legislature to issue revenue producing bonds which must be self-sustaining by the project. Becuse the proposed bonds are not self-sustaining, they violate the Legislative authority granted to the Board.

“The State of Louisiana claims the Board does not own the water bottoms where the marina is to be constructed. The Louisiana Supreme Court in their interpretation of R.S. 38:1235.2, has granted to the Levee Board, with certain restrictions, the right of use over the navigable water bottoms in this case. Arnold v. The Board of Levee Commissioners of the Orleans Levee District, 366 So.2d 1321 (La.Sup.Ct. 1978).

“Finally, the Levee Board has proposed to insure the bond issue for a AAA rating and privately place this insurance policy.

“R.S. 38:1235.1(1) states:

‘The work of reclamation, construction, and improvement herein and heretofore authorized and provided for shall be accomplished by letting out contracts therefor from time to time in accordance with law at the time of the letting of the contracts.’

“The Public Bid Law, R.S. 38:2212 requires:

‘A. (1) All public work exceeding the sum of ten thousand dollars including both labor and materials and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder * * *’

“Unquestionably, the letting of this insurance contract without public bidding violates the public bid laws and is not a permissible function of the Levee Board.

“At trial, the Board offered to stipulate that the insurance contract would conform to the Public Bid Law. That offer comes too late in order to cure this defect.

“In matters of this nature, a political subdivision must comply with the strict letter and spirit of our laws prior to Court approval.

“Accordingly, the Board of Commissioners of the Orleans Levee Board does not have the authority to issue $31,080,000.00 of Marina Bonds, Series 1980 A.”

For the reasons assigned the judgment of the trial court is affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    Jules Frederick WEBB, Individually et al., Plaintiffs-Appellees, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellants.
    No. 8081.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Scofield, Bergstedt, Gerard, Hackett & Mount, Robert L. Hackett, Lake Charles, for defendants-appellants.
    Salter, Streete & Hale, Frank T. Salter, Jr., Lake Charles, for plaintiffs-appellees.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This suit arose from a vehicular collision in which the plaintiff’s van was struck from the rear by a truck driven by Terry Richard. The plaintiff, with his two minor daughters as passengers, had stopped in a line of traffic in the eastbound land of Interstate 10 near Lake Charles. A jury awarded plaintiff, Jules Frederick Webb, $279,000.00 individually for his own personal injuries and $1,000.00 as administrator of the estates of his two minor daughters for personal injuries suffered by them. Named as defendants are Terry Richard, driver of the truck, Church Point Wholesale Grocery, Inc., Richard’s employer and owner of the truck, and their insurer, Insurance Company of North America. It is undisputed that Richard was acting in the scope of his employment at the time of the accident. Defendants appealed. We affirm.

The issues raised on appeal are: (1) Whether the jury was properly charged in order to decide the question of liability; (2) whether the defendants were deprived of effective discovery; and (3) whether the award of $279,000.00 for plaintiff’s injuries is excessive.

The facts presented by the record are:

On February 22, 1979, at about 4:30 P. M., plaintiff, with his two minor daughters, was proceeding east on the interstate highway when, due to a traffic jam, he had to stop. He was stopped in the righthand lane of traffic on the down side of the Columbia Southern Railroad overpass. The plaintiff testified that the incline of the roadway at that point was very gradual. Plaintiff also testified that he had been traveling between 50 and 55 miles per hour as he approached the overpass. He stated that he had seen the line of traffic stopped ahead of him in ample time to stop. It was not necessary that he make a sudden stop. The evidence reflects that it was raining at the time of the accident.

Shortly after plaintiff stopped, his van was struck from the rear by a delivery truck. The right front of the truck struck the left rear of plaintiff’s van. Plaintiff described the impact as a terrific jolt and said he thought he had broken his neck.

The driver of the truck, Richard, immediately approached plaintiff and apologized. He told plaintiff that he thought he could have avoided the accident but that the steering in the truck was bad. He also stated to the plaintiff that he was going about 40 miles per hour when he struck the van.

Plaintiff received serious injuries to his cervical region and the two children received minor injuries.

Plaintiff, at the time of the accident, was employed by Continental Oil Company as a welder. He did not return to his employment after the accident.

REQUESTED JURY CHARGES

The defendants contend that the trial court erred in failing to give certain jury instructions and that the jury was therefore not adequately charged in order for them to decide the question of liability.

The trial court is not required to give requested instructions simply because such instructions state correct principles of law. The requests are properly refused when the subject matter is irrelevant or sufficiently covered elsewhere in the charge. Darbonne v. Southern Farm Bureau Cas. Ins. Co., 300 So.2d 506 (La.App. 3rd Cir. 1974).

With these principles in mind we examine the defendants’ claim that the trial court erroneously refused certain proposed charges. The defendants sought additional instructions to the effect (1) that a following driver is only liable for his failure to avoid foreseeable danger, Flowers v. St. Paul Companies, 336 So.2d 1018 (La.App. 2nd Cir. 1976); (2) that as long as a motorist is traveling within the legal speed limit he is not required to slow his vehicle as he approaches an incline, curve or other natural obstruction which impairs his vision, Hightower v. Dixie Auto Insurance Company, 247 So.2d 912 (La.App. 2nd Cir. 1971); and finally, (3) that the plaintiff had a duty to remove his vehicle from the roadway if at all possible, LSA-R.S. 32:141.

We find that the requested charge relating to the foreseeability of the danger was adequately covered by the general charges given. The trial judge explained that recovery under our Civil Code article 2315 is based on fault. He charged that “fault” is conduct which falls below the standard of behavior which the law deems applicable to a particular activity. He stated that the standard is ordinarily care, and further stated:

“... it follows that ordinary care may require more or less caution, depending upon the danger which might reasonably be anticipated at the particular locality or under particular circumstances.”

Under this charge it follows that a person cannot be held liable for failing to take precautions against danger which could not be anticipated, or was not foreseeable.

The requested charge, that the driver of the following vehicle had no duty to slow his vehicle because of the overpass, was not relevant. There is no testimony indicating that the grade of the overpass kept Richard from seeing the plaintiff’s vehicle in time to stop. Richard’s deposition, which was erroneously excluded from evidence by the trial court, indicates that Richard saw the traffic jam before he crossed the overpass at a speed of 55 miles per hour. Richard also stated that he felt that there was no way the plaintiff could have avoided the accident and that he, Richard, could have avoided the accident if there had not been excessive play in the steering wheel. Richard stated that he had been having steering problems with the truck for quite a while. He notified his superior of the condition several times but Richard was told to keep operating it in that condition.

Further, Trooper Kershaw ticketed Richard upon his arrival at the scene because, in his opinion, Richard had probably been traveling too fast considering the weather conditions. Plaintiff testified that the grade of the overpass was very gradual and that he had no trouble stopping behind the car ahead of him.

Finally, we find that the requested charge, concerning LSA-R.S. 32:141, is not applicable, to the case at hand. That statute requires the removal of a parked vehicle from the road if practicable. This statute is not applicable to a vehicle in a line of traffic that is moving slowly, stopping temporarily at times.

Even if the refusal of any or all of these instructions had been erroneous, an affirmance is still clearly appropriate since the evidence amply supports the jury’s finding of liability.

It is well settled that if errors are made in jury charges an appellate court has the duty to review the facts in the record and affirm the verdict if it is consistent with the evidence. Andry v. Kinberger, 364 So.2d 613 (La.App. 4th Cir. 1978); Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir. 1975).

It is unnecessary to cite authority for the long-standing general rules that a driver should at all times be on the alert. He should steadily watch road conditions ahead as they are revealed and he should keep his vehicle under such control and maintain such speed as is commensurate with the circumstances. The greater the known hazard the greater should be the degree of care exercised.

Richard testified that he approached the overpass at a speed of 55 miles per hour. He stated that it was raining at the time. He does not contend that he didn’t see the line of traffic in time to bring his vehicle under control. The only explanation that he gave for the collision was that his steering mechanism was defective which kept him from going into the other lane in time to avoid striking plaintiff’s vehicle. Richard’s testimony clearly reflects that he operated the truck in a negligent manner as he violated the rules stated above. Also, he was operating a truck with a known defective steering mechanism which contributed to the occurrence of the accident. Whether the accident was caused by the negligence of Richard or whether it was caused by the known defective steering, or a combination of both of these causes, Church Point Wholesale Grocery, Inc., would incur liability. It was the owner of the defective vehicle which was being operated by its employee, Richard.

DENIAL OF DISCOVERY AND MOTION FOR CONTINUANCE

Defendants next urge that they were denied rehabilitation discovery and, because of this, are entitled to a new trial. Initially counsel argues that the trial court should have compelled the plaintiff to undergo examination by rehabilitation counselors to check plaintiff’s disability. Defendants rely on LSA-C.C.P. art. 1493 for their assertion of the right to this mode of discovery. That article clearly refers only to examination by physicians. There has been no showing that such rehabilitation counselors were physicians. Article 1493 is inapplicable.

After the trial court’s refusal to compel plaintiff to undergo the aforesaid examination, defendants filed extensive rehabilitation interrogatories. Defendants did not receive answers to the interrogatories until the day before trial began. Defendants then moved for a continuance. Defendants contend that they were unable to obtain evidence material to their case despite the exercise of due diligence and that they are therefore entitled to a continuance under LSA-C.C.P. art. 1602. LSA-C.C.P. art. 1458 allows fifteen days after service of interrogatories for answers to be filed. The interrogatories were filed on May 1, 1980, and plaintiff’s responses were timely filed on May 16, 1980.

This suit was filed July 18,1980. At the instance of the defendants, the trial had been continued twice previously. Trial was held on May 21,1980. The filing of rehabilitation interrogatories on May 1, 1980, over nine months after suit was filed, cannot be said to be the due diligence that is contemplated by LSA-C.C.P. art. 1602.

Furthermore, the defendants received the answers prior to trial and have made no showing of additional material evidence which they have not been able to obtain. Thus, the defendants lack grounds for a continuance.

The trial court has wide discretion in acting on a motion for continuance. Sauce v. Bussell, 298 So.2d 832 (La.1974). We find no abuse of that discretion here.

QUANTUM

Finally, we must consider the question of quantum. The defendants question the existence of plaintiff’s disability.

Plaintiff was a welder for Continental Oil Company. The testimony of plaintiff and his fellow workers indicates that welders at Continental Oil Company also function as boilermakers. The work requires heavy lifting and a considerable amount of climbing and awkward positioning of the body.

Dr. Roger Gimbell, a general practitioner of Sulphur, was the first to see plaintiff after the accident. He stated that the day following the accident, February 23, 1979, plaintiff complained of pain radiating into the left shoulder and arm. Reflexes were normal. He recommended conservative treatment and that plaintiff see a neurosurgeon.

Plaintiff consulted Dr. Dean Moore, a neurosurgeon, on April 2, 1979. Dr. Moore testified that neurological findings per se were not present. Due to the fact that plaintiff’s complaints had been persistent and he had not responded favorably to conservative treatment, Dr. Moore recommended that plaintiff undergo a myelo-gram. The myelogram was performed April 19th. Complications resulted from this test. A blood patch had to be done a few days later to stop the leakage of spinal fluid which had occurred following the mye-logram. The myelogram demonstrated a herniated disc. Dr. Moore recommended an anterior cervical fusion. Plaintiff sought another opinion.

Dr. Harry Starr, a neurosurgeon from Beaumont, Texas, testified that he saw plaintiff on April 30, 1979. He found that plaintiff had a fairly typical cervical disc syndrome, or a herniated disc in the neck, which was pinching a nerve going down his left arm. Dr. Starr was cognizant of plaintiff’s previous cervical injury which occurred in 1975. He testified that the deterioration and the spur he found to be causing plaintiff’s problem had obviously been there before the accident of May 22, 1979, that it may have dated back to his original injury, or even before that. Dr. Starr stated that the trauma of the accident of February 22, 1979, resulted in a jar to the existing deteriorated condition of the disc causing the nerve to swell. Under these circumstances, the swelling of the nerve persisted and would not respond to conservative treatment. As a result of the accident, plaintiff was suffering weakness in his wrist, weakness of his triceps muscles, diminished triceps reflex, and numbness to his index, middle and ring fingers. He also had pain, stiffness and muscle spasms in his neck.

Conservative treatment proved to be a failure. Dr. Starr consequently performed an interlaminar dissection of the C-6, C-7 level, left, with decompressive forminotomy over a hard spur. After the operation plaintiff felt improved sensation and immediately showed increased strength in his left arm. Pain, spasm and soreness in the neck muscles remained. Four months after surgery the patient was still complaining of pain, particularly of soreness in his neck and upper back and still had a certain amount of spasm in the neck muscles. However, he had no further signs of impaired nerve supply to the upper left extremity.

Seven and one-half months after surgery plaintiff was still complaining of some symptoms. He complained that he did some work on his car and as a result got very sore, had a lot of pain on the left side of his neck, aching and numbness in his left arm, and headaches. These increased symptoms lasted some two weeks. Dr. Starr testified that if plaintiff avoided heavy work he would get along fine, with very little pain. He did not recommend that plaintiff undergo a second operation in the hope of returning to heavy work. Starr testified that he would not recommend that plaintiff return to his regular occupation or any type of heavy work that would require lifting, straining, or getting in awkward positions. He said that plaintiff could not return to the heavy work of a welder or boilermaker and might not be able to ever return to such work.

Dr. Moore saw plaintiff again after the operation by Dr. Starr. Due to plaintiff’s continued complaints of pain radiating into his left arm, Dr. Moore suggested a repeat myelogram to determine if further surgery could be helpful. Plaintiff refused. His refusal does not seem unreasonable in light of the complications that arose after his previous myelogram and Dr. Starr’s recommendation against further surgery. Dr. Moore also indicated that plaintiff could not return, to work as a welder-boilermaker.

Plaintiff saw Dr. Gerald Litel, a neurosurgeon, before and after the operation. Dr. Litel testified that even with a good recovery from the operation nothing over fifty pounds should be lifted by a person who has had a cervical laminectomy. Dr. Litel further stated that plaintiff could not assume any awkward positioning of the body.

In summary, the medical testimony reflects that the trauma to plaintiff’s neck suffered in the accident, super-imposed upon an existing deteriorated disc condition, resulted in an operation, all of which left plaintiff in a condition that would permanently disable him from performing his usual work as a welder or boilermaker.

As to the loss of future wages, Dr. John Chisholm testified as an expert in the field of economics. Using plaintiff’s tax returns for the past three years he computed his average annual income to be $23,350.03. He computed plaintiff’s lost earnings at the time of trial to be $26,657.36.

Dr. Chisholm testified that plaintiff, 35 years old at the time of the accident, had a work life expectancy of 27.6 years. By using plaintiff’s gross annual income of $23,350.23, plus a 2.6% per annum increase representing the average annual increase in productivity for the average American worker, plus a 6% annual increase representing the inflation factor, Dr. Chisholm calculated plaintiff’s loss of future earnings to be $2,241,342.70. Calculating how much present recovery invested at 5% per annum would be necessary for plaintiff to receive each year what he would have made, if he had not been injured, over the remainder of his work life expectancy, Dr. Chisholm arrived at the figure of $957,781.82. ■ Discounting at 7%, rather than 5%, the present value would be $714,432.70. Those figures were based on total disability.

Dr. Chisholm testified that, assuming plaintiff could return to some sort of employment and earn minimum wage, plaintiff would still incur a loss of $1,403,097.14 over his expected work life. Discounted at 5% this would yield a present recovery of $672,435.65.

The defendants point out that the plaintiff has completed 65% of the requirements for a business management degree and has a well above average capacity for learning. Thus they argue that $279,000.00 is an abuse of discretion in that it does not reflect that earning potential which the plaintiff still has.

There is no “right” formula for establishing the loss of future earnings. Lute v. The City of Lake Charles, 394 So.2d 737 (La. App. 3rd Cir. 1981), docket number 8039. Future loss of earnings cannot be calculated with absolute certainty. Lute v. The City of Lake Charles, supra; Robinson v. Graves, 343 So.2d 147 (La.1977).

The jury verdict does not assign specific amounts of the recovery for medical expenses, pain and suffering, and lost past and future wages, but simply awards one lump sum.

The loss of future earnings is only one element of the damages suffered by plaintiff. He has lost over $26,000.00 in past wages. The evidence indicates that medical expenses of approximately $7,000.00 were incurred. He endured substantial pain and suffering as a result of the accident. His testimony, as well as that of his family and friends, indicates that he has had to give up many of his former activities, such as weight lifting, coaching baseball and working on automobiles.

Considering these factors, in conjunction with the medical testimony, we find that the jury’s award of $279,000.00 is clearly within its discretion. We find no error in this award.

For the above reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.

      . Richard was dismissed from the lawsuit by stipulation of counsel and no judgment was rendered against him.

      . That deposition should have been admitted into evidence pursuant to LSA-C.C.P. art. 1450 since the party offering the deposition was unable to procure Richard’s attendance by subpoena.