text:
    Frank J. PASQUA v. LAFOURCHE PARISH SCHOOL BOARD.
    No. 14509.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Ralph D. Hillman, Thibodaux, for plaintiff-appellee Frank J. Pasqua.
    Randolph H. Parro, Thibodaux, for defendant-appellant Lafourche Parish School Bd.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Frank J. Pasqua, filed this civil action against defendant, Lafourche Parish School Board, alleging a violation of the Louisiana Teacher Tenure Act, Louisiana Revised Statutes 17:441-445. Plaintiff contends that defendant violated the act by transferring him from his tenured position as an assistant principal of a junior high school to a position as an assistant principal of an elementary school, without maintaining his salary at the higher rate for the junior high school position. He seeks reinstatement of his former salary scale plus back pay.

Defendant answered the petition, after which plaintiff filed a motion for summary judgment with a supporting affidavit and exhibits. Defendant opposed the motion and offered the affidavit of the Superintendent of Schools for Lafourche Parish. After a hearing on the motion, the trial court granted it and rendered judgment in favor of plaintiff, ordering that plaintiff be compensated at the rate for an assistant principal of a junior high school and for pay shortages to date.

Defendant appealed suspensively. Plaintiff neither appealed nor answered the appeal but, nevertheless, requests in brief judicial interest on the pay shortages for 1980-81 plus damages and attorney’s fees for frivolous appeal. The Louisiana Association of Educators (LAE) was granted permission to, and did, file an amicus curiae brief.

Defendant’s two specifications of error on appeal are, first, that genuine issues of material fact are present, which preclude summary judgment, and, second, plaintiff is not entitled to summary judgment as a matter of law under the Louisiana Teacher Tenure Act.

The record before us indicates that prior to June 1, 1980, plaintiff was employed as an assistant principal of various junior high schools in Lafourche Parish for four years. The junior high school to which plaintiff was assigned as an assistant principal was closed for economic reasons in May of 1979. Thereafter, plaintiff was assigned to another junior high school for one year, after which he was transferred to and is presently assistant principal of an elementary school. These transfers were for administrative purposes and none were for disciplinary reasons. Plaintiff presently earns more money than he did during his last assignment as an assistant principal of a junior high school. The salary plaintiff would receive as an assistant principal of a junior high school is the salary he would receive as a teacher multiplied by an index of 1.21. The salary he receives as an assistant principal of an elementary school is his teacher’s salary multiplied by an index of 1.16.

Defendant’s affidavit in opposition to the motion for summary judgment established that plaintiff is now being paid more than he had been paid during his last service as assistant principal of a junior high school. However, in response to specific questions by the court during oral argument on the motion, defense counsel admitted that the reason for this higher salary was a general pay raise for all teachers. He also stated that plaintiff’s earnings would presently be higher if he were assistant principal of a junior high school rather than of an elementary school.

Defendant first argues that various genuine issues of material fact exist, which should preclude summary judgment. Specifically defendant cites the following issues:

1. Was plaintiff’s salary reduced?
2. What is the appropriate salary schedule for plaintiff?
3. Does plaintiff have tenure as an administrator?
4. Is South Thibodaux Junior High School actually a junior high school?
5. At which schools has plaintiff served?
6. When was South Thibodaux Junior High School closed?
7. Was the proper procedure followed for reducing plaintiff’s salary?

Defendant contends that the salary was not actually reduced and argues that no reduction was shown. However, plaintiff is not alleging an actual reduction but, rather, that application of the improper salary index results in a lesser increase of salary.

It is obvious that the general teacher pay raise granted by the legislature (Act 11 of the 1980 Regular Session) caused an actual increase in plaintiff’s salary, but that the increase would have been greater were he paid according to the salary index for a junior high school position as opposed to the index for an elementary school position.

As to the appropriate salary schedule, plaintiff’s affidavit and exhibits establish it as his teacher’s pay multiplied by an index of 1.21.

As to tenure as an administrator, defendant admits in its answer that plaintiff was employed as an assistant principal of various junior high schools for four years prior to June 1, 1980. Under LSA-R.S. 17:444, three years of service in such a position vests tenure.

It cannot seriously be contended that South Thibodaux Junior High School is not actually a junior high school. In any event, defendant itself has classified the school as such and thereby admitted its status.

While the record is somewhat confused as to the question of which schools plaintiff has served at, the identity of the particular schools is irrelevant. Defendant itself has admitted that plaintiff served for four years prior to June of 1980 as an assistant principal of junior high schools in Lafourche Parish.

Defendant’s answer establishes that South Thibodaux Junior High School was closed in May of 1979.

In raising the issue of the proper procedure for reducing salary, defendant is apparently referring to the procedure set forth in LSA-R.S. 17:443. This procedure, however, refers to disciplinary actions, and defendant has admitted in its answer and supporting affidavit that plaintiff’s transfer was not for disciplinary purposes. See also R.S. 17:444.

The standard for summary judgment was recently set forth in White v. Baker Manor Nursing Home, Inc., 400 So.2d 1168 (La.App. 1st Cir., 1981) writ denied 403 So.2d 68 (La.1981).

“Summary judgment is proper if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The movant has the burden of affirmatively showing the absence of any genuine issue of material fact. La.Code Civ.P. arts. 966 and 967; Mashburn v. Collin, 355 So.2d 879 (La.1977). Any doubt as to the existence of a genuine issue of material fact is to be resolved against granting the motion. Bonnette v. Century Ready-Mix Corp., 369 So.2d 1201 (La.App. 2nd Cir. 1979), writ denied, 373 So.2d 525 (La.1979); Acme Refrigeration of Baton Rouge v. Caljoan, Inc., 346 So .2d 743 (La.App. 1st Cir. 1977).”

In Aydell v. Charles Carter & Company, Inc., 388 So.2d 404 (La.App. 1st Cir., 1980) writ denied 391 So.2d 460 (La.1980), we stated:

“To determine whether there is a genuine issue of fact, a trial court must of necessity examine the merits. Despite the presence of disputed facts, summary judgment as a matter of law will be granted if the disputed issues of fact are so patently insubstantial as to present no genuine issues. Merely formal allegations without substance will not preclude summary judgment. City of Baton Rouge v. Cannon, [376 So.2d 994 (La.App. 1st Cir. 1979)]; Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179 (La.App. 4th Cir. 1972), writ refused 261 La. 462, 259 So.2d 914 (1972).”

All factual issues alleged by defendant have either been actually removed from issue or are irrelevant. We therefore agree with the trial court that no genuine issue of material fact exists.

Defendant next argues that plaintiff is not entitled to summary judgment as a matter of law. It submits that plaintiff was and is an assistant principal and that he was merely transferred to another school. Hence, he was not demoted to a lower position, according to defendant.

In conjunction with this argument, defendant submits that Louisiana Revised Statute 17:444 is the applicable statutory provision. LAE argues that the applicable statute is 17:443.

R.S. 17:443 deals with removal of permanent teachers from office. Contrary to LAE’s argument, R.S. 17:444 does in fact deal with demotion of a tenured employee. It provides, inter alia:

“At the expiration of the probationary period in the higher position, a teacher, unless removed or demoted in accordance with R.S. 17:442, shall automatically acquire permanent status in the higher position and thereafter may not be disciplined, removed or demoted from such higher position except in compliance with the provisions of R.S. 17:443.”

Defendant’s argument that transfer of plaintiff as assistant principal of a junior high school to assistant principal of an elementary school is not a transfer to a lower position is without merit. R.S. 17:444 uses the terms “lower position” and “higher position” with reference to salary. The first paragraph of that statute clearly refers to “moving [a] teacher from a position of lower salary to one of higher salary . . . .” (Emphasis added.) This statement must be read in conjunction with that portion of the second paragraph of the statute quoted above. Obviously, “higher position” refers to one of higher salary.

Although plaintiff was and still is an assistant principal, his position at a junior high school was a higher salaried one than his position at an elementary school. Hence, he was transferred to a lower position after having acquired tenure in the higher position. Since the transfer was not for disciplinary reasons, the procedures set forth in R.S. 17:443 were obviously not followed. The result is a clear violation of the Teacher Tenure Act, specifically, R.S. 17:444.

The fact that the initial transfer of plaintiff from South Thibodaux Junior High School was made because the school was closed for economic reasons is irrelevant. Even if the transfer was made in good faith, plaintiff is still entitled to the emoluments accompanying that position. Dugas v. Ascension Parish School Board, 228 La. 80, 81 So.2d 817 (1955).

Plaintiff neither appealed nor answered the appeal. Nevertheless, in brief he requests interest on the money judgment for pay shortages and also damages and attorney’s fees for frivolous appeal.

Plaintiff did not request interest in his petition, and the judgment of the trial court did not award interest. Plaintiff’s request that we modify the judgment of the trial court to include interest must be denied, because a request for interest may not be presented for the first time on appeal. Schoeffner v. Schoeffner, 167 La. 208, 118 So. 890 (1928); Evans v. Dudley Lumber Co., 164 La. 472, 114 So. 101 (1927). Also, an appellate court may not modify a judgment in favor of a party who neither appealed nor answered the appeal. La.C.C.P. art. 2133; Powell v. Avondale Shipyards, Inc., 388 So.2d 425 (La.App. 4th Cir., 1980); Barksdale v. Southern Airways, Inc., 365 So.2d 493, on rehearing, (La.App. 1st Cir., 1978); Prado v. Hydrocarbon Testers, Inc., 332 So.2d 514 (La.App. 3rd Cir., 1976); Shirley v. Aetna Casualty & Surety Company, 256 So.2d 462 (La.App. 2nd Cir., 1972). In an older case, the Fourth Circuit so held specifically with regard to a request for judicial interest. Vogt v. Del-Mar Homes, Inc., 131 So.2d 926 (La.App. 4th Cir., 1961). While Vogt was decided under the old Code of Practice, Article 907, rather than under the new Louisiana Code of Civil Procedure Article 2133, the theory is still valid.

Likewise, in order to obtain damages and attorney’s fees for a frivolous appeal, the appellee must either appeal or answer the appeal. Morial v. Orleans Parish School Board, 332 So.2d 503 (La.App. 4th Cir.), writ denied, 337 So.2d 530 (La.1976); Young v. Warner, 283 So.2d 547 (La.App. 1st Cir., 1973).

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by defendant-appellant, Lafourche Parish School Board.

AFFIRMED.

      . Many of the alleged factual issues, as previously noted, were removed from issue by defendant’s own pleadings. An admission in a pleading falls within the scope of a judicial confession and is full proof against the party making it. La.C.C. art. 2291; Smith v. Board of Trustees of Louisiana School Employees Retirement System, 398 So.2d 1045 (La.1981).


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Gloria Powers THOMAS v. James Alexander THOM, IV.
    No. 14510.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Writ Denied Feb. 19, 1982.

      Patsy Jo McDowell, Baton Rouge, for plaintiff-appellant.
    Jennifer Luse, Baton Rouge, for defendant-appellee.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

This is an appeal from a judgment determining custody of two children.

PROCEDURAL BACKGROUND

Plaintiff-appellant, Gloria Powers Thomas, and defendant-appellee, James Alexander Thom, IV, were divorced on June 28, 1972 and custody of the two children was granted to plaintiff. On December 20, 1972, custody of their two children, Tiffany and Ashley, was awarded to their paternal grandparents. On November 30, 1973, plaintiff was awarded custody of the children pursuant to her rule for change of custody.

In February of 1979, custody of the two children was changed again. On this occasion defendant was awarded a change of custody based primarily upon plaintiff’s living in concubinage while maintaining custody of Ashley and Tiffany. That change of custody judgment was ultimately affirmed by this court. See Bride v. Thom, 378 So.2d 152 (La.App. 1st Cir. 1979).

Two months after her remarriage to her present husband, Scott Thomas, plaintiff filed this rule for change of custody against her former husband, James Alexander Thom, IV, on August 19, 1980, seeking to regain custody of two children born of their marriage. Trial of the rule for change of custody was held on September 18, 1980. At the close of plaintiff’s evidence, the trial court granted a directed verdict pursuant to defendant’s motion.

Plaintiff then applied for writs of mandamus, certiorari and prohibition to this court. We denied the application on the ground that she had an adequate remedy by appeal. See Thomas v. Thom, No. 14,051 (La.App. 1st Cir., October 2, 1980). Subsequently, plaintiff sought the issuance of a writ from the Louisiana Supreme Court which was granted at 396 So.2d 881 (La.1981). The Supreme Court remanded the case to the district court “for reconsideration in light of Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).”

After remand, the trial court vacated the judgment which granted the directed verdict and reconsidered the case in light of the Bordelon, supra, decision. The trial court then issued written reasons for judgment, again granting defendant’s motion for directed verdict. Prom that judgment, plaintiff has perfected the instant appeal.

FACTS

As can be seen from the procedural background of the case, there has been much instability in the children’s lives. The children were initially awarded to plaintiff. However, in December of 1972, about six months after the original award, custody was transferred to the paternal grandparents. Then, in November of 1973, custody of the children was returned to plaintiff. From that point until February of 1979, plaintiff had uninterrupted legal custody of the children. In February of 1979, however, defendant was granted a change of custody pursuant to his rule therefor. The reasons for this change, as can be seen from our prior opinion in the case, were that plaintiff had brought the children into an immoral relationship between another man and herself, and she expressed the belief that there was nothing wrong with such a relationship.

Plaintiff attempted to show at trial and now argues on appeal that she has purged herself of her immoral behavior and instability, and, hence, should again (for the third time) be granted custody of the children. The evidence presented by plaintiff in support of the requested change shows that she terminated her illicit relationship shortly before the custody hearing held in February of 1979. In the interim she met her present husband, Scott Thomas, and they were married in June of 1980. Plaintiff filed the instant rule for change of custody on August 19, 1980.

The record further shows that plaintiff and her present husband live in New Orleans, together with plaintiff’s seven year old daughter, by her second marriage, Jessica Bride. Plaintiff is employed as an associate editor for New Orleans Internacional Magazine ; and her husband is a musician, who operates his own recording studio. Mrs. Thomas also does public relations work for several businesses in the New Orleans area. Their home in New Orleans is of adequate dimensions to accommodate Ashley and Tiffany, if their custody was awarded to their mother.

The evidence upon which plaintiff relies heaviest is the testimony of both children to the effect that they would prefer to live with their mother. At the time of trial, Tiffany was fourteen years of age and Ashley was twelve years old. Each of the children indicated that they preferred to live with their mother because they were able to enjoy more activities with her. They also testified that they were able to discuss their problems and other matters more frequently with their mother than with their father. Each of them indicated they were fond of Mr. Thomas, plaintiff’s present husband. While both children testified that they liked Mr. Thom’s wife, Lynn, Tiffany stated that she had had some disagreements with her.

The testimony at trial also showed that the children would get to see their mother more often than their father, since she performed her work in her home. Both children testified that they enjoyed their visits to New Orleans very much. Plaintiff testified that the children would continue to go to church if they were transferred to her custody.

Plaintiff also called several witnesses for the purpose of showing the good character of herself and Mr. Thomas. These witnesses generally stated that both plaintiff and her husband were good parents to Jessica. It was also indicated that the relationship among the children and plaintiff and her husband was a good one.

Contrasted with the evidence favorable to plaintiff is the previously mentioned instability created by the numerous change of custody orders. The record manifests that defendant and his current wife are providing a very stable and healthy environment for the children. Defendant is very adamant about the children attending church. Both children are doing very well in school. Moreover, defendant testified, and the children confirmed, that he does spend time with them and accompanies them to certain events. Defendant testified that it is generally on those occasions when they have returned from New Orleans that the children express a desire to live with their mother.

MERITS

On appeal plaintiff complains that the trial court failed to reexamine the instant case in light of the Bordelon decision.

In its reasons for initially granting the directed verdict, the trial court applied the “double burden” rule formulated by our Supreme Court in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). In applying the double burden rule, the trial court found that plaintiff had not proved by a preponderance of the evidence one of the Fulco requirements for a change of custody, i.e., that the present custody is deleterious to the children. However, the court in Borde-lon interpreted the 1977 amendment to Louisiana Civil Code Article 157 as abrogating the jurisprudentially created requirement of the possibility of harm to the child and left as the sole criterion the best interests of the child. Hence, it is obvious that, when the instant case was remanded for reconsideration in light of Bordelon, the trial court was to reevaluate the evidence without requiring proof of the possibility of harm to the children if they remained in defendant’s custody. The trial court did meticulously analyze the case, applying Bordelon, and concluded that plaintiff had not carried her burden of proving that a change of custody would be in the best interests of the child.

Plaintiff next complains that the trial judge erred in granting a directed verdict when the preponderance of evidence showed it was to the best interests of the minors to be with their mother.

In non-jury cases, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on her case-in-chief to establish her claim by a preponderance of the evidence. Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir. 1981); Sevin v. Shape Spa for Health & Beauty Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980). In making its determination on such a motion, the trial court is not required to review the evidence in the light most favorable to plaintiff but may instead render judgment based upon a preponderance of the evidence. Bryan v. Varnado, supra. Moreover, the directed verdict in a non-jury case should not be reversed in the absence of manifest error. Littles v. Southeastern Fidelity Insurance Co., 398 So.2d 575 (La. App. 1st Cir. 1980).

The “manifest error” doctrine applied to civil cases in general is substantially equivalent to the procedure for appellate review in custody cases, i.e., the determination of the trial court is entitled to great weight and should only be overturned if it is a clear abuse of discretion. Bordelon v. Bordelon, supra.

Analyzing the instant case in light of the above-cited legal principles, we find no error in the trial court’s holding that the preponderance of the evidence is in favor of the father. While Bordelon obviates the requirement of proving the possibility of harm to the child, the court continues to recognize stability as an important factor in deciding a change of custody case. Here, stability seems to be of overriding importance. Custody of Ashley and Tiffany has already been shifted four times in the nine years since plaintiff and defendant were divorced. The record indicates that the children have finally settled down in a healthy environment and are doing very well in their educational, familial, and social lives. It seems that another change of custody would only serve to rob them of this security.

Plaintiff finally complains that the trial judge did not take into consideration the desire of the children to live with her. It is well-established that the preference of children of the ages of Ashley and Tiffany, twelve and fourteen respectively at the time of the trial of the rule, is entitled to some weight in a custody contest. Johnston v. McCullough, 401 So.2d 509 (La.App. 2nd Cir. 1981); and Sharpe v. Sharpe, 328 So.2d 893 (La.App. 1st Cir. 1976). However, the trial court has much discretion in the weight to be assigned to the child’s preference. Johnston v. McCullough, supra; and State In Interest of Galvan, 384 So.2d 1000 (La.App. 4th Cir. 1980). Here, the trial court carefully analyzed the reasons for the children’s preference and was of the opinion that it would still be in their best interests to remain with their father. We find no abuse of discretion in this ruling.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: LEAR, Judge.

text:
    Julius L. BEASLEY v. Chester P. MOUTON. Chester P. MOUTON v. Jerry BEASLEY, et al.
    Nos. 14512, 14513.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Ronald W. Wall, Bradley & Wall, Baker, for plaintiff/appellant.
    Walton J. Barnes, II, Zachary, for defendant/appellee.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

These appeals concern two suits which were consolidated and tried together. Chester P. Mouton (Mouton) had leased certain real property to Mike Clark (Clark). Thereafter, in an action entitled “Chester Paul Mouton v. Mike Clark”, No. 844 on the docket of the Baker City Court, Mouton sued Clark for past due rent, and seized certain movable property located on the leased premises. These seized movables included a welding machine, which was located under a tree on the leased premises. Judgment was rendered in favor of Mouton and against Clark in the above referred to suit on March 10, 1980. On April 30, 1980, Julius L. Beasley (Beasley) filed suit against Mouton, alleging that he was the owner of the seized welding machine, that the seizure was improper and that the judgment confirming the seizure should be annulled. He obtained a temporary restraining order preventing the sale of the welder. After a hearing, a preliminary injunction was denied and the previously issued restraining order was recalled. Beasley’s petition was then amended to substitute B & U Dozer and Equipment Company (B & U) as plaintiff, and the wrongful seizure and nullity actions continued.

On May 14, 1980, Mouton filed a trespass action against Beasley and his son, Jerry Beasley (Jerry). Mouton alleged that, after he had seized the welding machine, Jerry, acting for and on the instructions of his father, entered his (Mouton’s) premises and removed the welding machine. After the machine had been removed from Mouton’s premises, the police were summoned and found the machine in Jerry’s possession. Jerry was then instructed to return the machine to Mouton’s premises, which he did.

After a trial on these consolidated suits, judgment was rendered in the nullity action against Beasley and in favor of Mouton, and Beasley’s suit was dismissed. In Mouton’s trespass action, judgment was rendered in his favor and against Beasley and his son Jerry, in the amount of $750.00.

In the nullity action, it was alleged that B & U was the owner of the welding machine, that the seizure was improper and unlawful and that the judgment confirming the seizure was not “legally obtained and should be annulled.” Without addressing Beasley’s right to seek to nullify a judgment in an action in which he was not a party, and allowing, for the sake of argument, that the seizure and sale of property of which he claims ownership could be an “ill practice”, ownership of the seized property must at least be proven in order to nullify the judgment.

Testimony concerning ownership of the welding machine at issue was extremely contradictory. Beasley and his son Jerry testified that B & U owned the welding machine and that it had been rented to Clark. However, Beasley, who had allegedly entered into the rental arrangement with Clark, was unable to give the details of the rental, such as the length of the rental or even the amount of the rental fee. While Jerry testified that he at one time heard Beasley and Clark discuss the welding machine, he did not hear any of the details of the alleged rental agreement. Two other witnesses testified concerning Beasley’s ownership of the machine; however, their testimony shows that they had no personal knowledge of its ownership and that their testimony was merely an assumption of this fact. Mouton, on the other hand, testified that the welding machine was on Clark’s property prior to the time it was supposedly rented to Clark by Beasley. Mouton also testified that Clark had told him, at least three times, that he (Clark) owned the welding machine.

In the case of Foreman v. Kent, 336 So.2d 271 (La.App. 1st Cir., 1976), citing Canter v. Koehring Co., 283 So.2d 716 (La.1973), we stated that:

“. .. [Wjhere, as here, the decision rests primarily on the determination of credibility, the trial judge is peculiarly better able than we to separate the facts from the fluff. It is a well recognized principle of appellate review that we apply.”

The issue of ownership in this case rests on widely conflicting testimony. Thus, it was necessary for the trial court to consider the credibility of each witness and determine for itself which testimony was to be accepted and which rejected. Under these circumstances, and after reviewing this entire record, we do not find that the trial court erred in holding that plaintiff Beasley failed to carry his burden of proof on the issue of ownership of the welding machine. It is apparent that the trial court accepted Mouton’s version of the facts.

Accepting the trial court’s finding on the issue of ownership, we find that the trial court’s rejection of Beasley’s (B & U’s) claim of nullity and the claim for illegal seizure and for loss of rentals was correct.

With regard to Mouton’s action for trespass, the evidence is clear that Beasley became aware of Mouton’s claim of privilege on and the seizure of the welding machine on or about August 10, 1979. The evidence further indicates that thereafter Beasley instructed his son Jerry to enter Mouton’s premises and remove the welding machine, which he (Jerry) did. It is undisputed that Beasley was not authorized by Mouton or otherwise to enter Mouton’s premises, nor was it lawful for him to remove or instruct others to remove this welding machine. Both Beasley and his son Jerry are clearly liable to Mouton for this trespass.

We have recognized the right of one wronged by trespass to recover damages for mental anguish, humiliation and embarrassment. Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir., 1959). With regard to the amount of damages to be assessed against a trespasser, both for the invasion of the plaintiff’s property right and the resulting mental anguish, humiliation and embarrassment, the trial court is afforded much discretion. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978). In this case, the trial court determined that the amount of $750.00 was an appropriate award in order to compensate Mouton for the trespass.

The record indicates that the welding machine removed from Mouton’s property was being held by him, as custodian, under a writ of seizure. The evidence indicates that Mouton took this responsibility seriously and that he was distressed by this removal. He was further inconvenienced by the necessity of summoning the police in order to stop the removal and cause the property to be returned, and testified that the police cars and the commotion which took place at his house caused him to be embarrassed and humiliated. There was also the fact of the trespass itself, for which compensation is due.

This evidence was undisputed, and properly accepted by the trial court. We do not find that the trial judge abused his discretion in assessing damages and awarding Mouton the amount of $750.00.

For the foregoing reasons, the judgments of the trial court in both suits (Appeal No. 14,512 and Appeal No. 14,513) are affirmed. Appellants are to pay all costs.

IN APPEAL NO. 14,512: AFFIRMED.

IN APPEAL NO. 14,513: AFFIRMED.


text:
    Rayford Earl DUNCAN v. Patricia Warner DUNCAN.
    No. 14514.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      M. Reggie Simmons, Franklinton, for plaintiff.
    R. Bradley Lewis, of The Law Firm of Talley, Anthony, Hughes & Knight, Bogalu-sa, for defendant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Patricia W. Duncan, defendant-appellant, appeals the judgment of the trial court dismissing her demands for permanent alimony and attorney fees and denying her an increase in child support. Appellant’s demands were incidental to a divorce action. The trial court granted a divorce judgment in favor of Rayford Earl Duncan, plaintiff-appellee, based on the parties living separate and apart for more than one year after the rendition of a judgment of separation on the ground of mutual fault.

Appellant contends the trial court erred in holding that proof of a separation based on mutual fault was sufficient ground for denying the wife alimony after divorce when no proof of fault was introduced on the trial of the divorce action. Appellant argues that the case of Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978) has changed prior jurisprudence barring the relitigation of the issue of fault in a divorce action based on nonreconciliation after separation. See Fulmer v. Fulmer, 301 So.2d 622 (La.1974).

In Welch, supra, the Supreme Court held that “collateral estoppel”, a device which precludes the relitigation of issues actually decided in a prior suit between the parties on a different cause of action, is a doctrine of issue preclusion alien to Louisiana law. Appellant therefore argues that because the cause of action and the thing demanded in a divorce proceeding are different from the cause of action and the thing demanded in a separation suit, res judicata under Louisiana law does not apply and that, in absence of proof of fault in the divorce proceeding, she is entitled to permanent alimony. Appellant’s reasoning is that sino,e the holding in Fulmer, supra, is not based on res judicata and that since Welch, supra, “clearly stated that collateral estoppel and all other forms of preclusion issue devices other than res judicata as limited by Article 2286 do not exist in Louisiana, it is clear that the decision in Fulmer is no longer valid.”

However, the facts of this case are controlled by Civil Code Article 141, which provides:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.” (Underscoring ours).

Appellant argues in brief the unconstitutionality of La.C.C. art. 141. The question of whether the Civil Code Article is unconstitutional is not properly before this court since it is a well-established rule that a litigant who fails to specially plead the unconstitutionality of a statute in the trial court cannot raise the constitutional issue for the first time in the appellate court. Johnson v. Welsh, 334 So.2d 395 (La.1976); Thornhill v. Black, Sivalls & Bryson, Inc., 391 So.2d 1256 (La.App. 1st Cir. 1980).

The trial court was correct in its ruling.

Appellant next contends the trial judge abused his discretion in ordering Mr. Duncan to pay $59.82 per week in child support instead of the requested $150.00 per week. It is argued that the trial judge did not require Mr. Duncan to support the minor child in the same manner he would be supported if he was living with his father. Ducote v. Ducote, 339 So.2d 835 (La.1976). The trial court’s award of child support is in the same amount which was granted in the judgment of separation.

Louisiana Civil Code Article 231 provides, as follows:

“Art. 231. Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.”

Although Mrs. Duncan did show the court the financial status of Mr. Duncan, she did not bear the burden of proving that the child was in actual need of more monetary support. The only evidence introduced in support of her demand was an affidavit of the child’s expenses prepared by Mrs. Duncan. The trial court apparently rejected the affidavit, which appears inflated and exaggerated in some areas.

The trial judge has great discretion in determining the amount of child support. Ducote, supra; Ward v. Ward, 339 So.2d 839 (La.1976). From the record before us, the trial judge did not abuse his discretion in dismissing Mrs. Duncan’s unsubstantiated claim for an increase in child support. Further, there was no evidence presented to show that the child is subjected to a lower standard of living than that which would be afforded him had he been living with his father.

We find no merit in this assignment of error.

Finally, appellant contends that the trial court erred in not allowing her attorney fees in connection with a rule for contempt and arrearages. The rule for contempt was based on Mr. Duncan’s allegedly unreasonable refusal to sign insurance forms and allegedly causing his hospitalization insurance carrier not to pay the medical bills of his wife and child in violation of a court order.

La.R.S. 9:305 provides, as follows:

“When the court renders judgment in an action to make past due alimony or child support executory, except for good cause, the court shall award attorney fees and court costs to the prevailing party.”

Testimony of Mr. Duncan indicates that he did sign the insurance forms in question, (although he was possibly a little late in doing so) and that he did everything possible to keep his insurance in effect, but was unable to do so since the insurance company does not cover the separated spouse.

The trial judge ordered Mr. Duncan to pay any previous medical bills due and owing, and more particularly, $160.00 to appellant herein.

Under the pertinent circumstances of this case, the trial court did not abuse its discretion in not granting attorney fees in connection with the rule for contempt since “good cause” was clearly shown. La.R.S. 9:305.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Louisiana Civil Code Article 2286 provides:
      “Art. 2286. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”


author: EDWARDS, Judge.

text:
    Lee R. DARBONNE v. LOUISIANA STATE POLICE RETIREMENT BOARD.
    No. 14515.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    James T. Genovese, Opelousas, for plaintiff-appellant Lee R. Darbonne.
    William J. Guste, Jr., Atty. Gen., William C. Toadvin, Staff Atty., Baton Rouge, for defendant-appellee La. State Police Retirement Bd.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This case presents the question of whether the disability of Lee R. Darbonne, a state police officer, is the result of an “injury received in the line of duty” under LSA-R.S. 40:1428(B)(2) or a “continued illness” under LSA-R.S. 40:1428(B)(3). Application of (B)(3) will result in retirement benefits fixed at 50% of average salary whereas (B)(2) provides benefits of 75% of average salary. The State Police Retirement Board and the district court both concluded that the retired officer’s disability was covered by the provisions of (B)(3). We affirm.

Appellant retired from his job as a Louisiana State Trooper with over fifteen years of service credit. Darbonne is a thirty-six year old male, standing approximately six feet tall and weighing approximately 244 pounds. He suffers from a hiatal hernia, gout, modest hypertensive vascular disease, and has a history of nervousness. Appellant has had a history of obesity for several years and underwent an intestinal bypass operation in November of 1977.

On December 6, 1979, appellant filed an application with the Board of Trustees of the Louisiana State Police Retirement System (“Board”). Appellant sought disability retirement benefits of 75% of his average salary, pursuant to LSA-R.S. 40:1428(B)(2). On February 21, 1980, the Board granted appellant a disability retirement based on LSA-R.S. 40:1428(B)(3). An appeal of this decision was taken by appellant on March 10, 1980. The Board acting on appellant’s appeal, affirmed its original decision.

Appellant then filed suit in the Nineteenth Judicial District Court, seeking judicial review of the Board’s decision pursuant to LSA-R.S. 49:964. After a hearing on the matter, the trial court affirmed the Board’s action. Appellant now appeals the judgment of the district court.

On February 4, 1980, appellant was examined by the Board’s physician, Dr. Guy H. Riché, Jr. In his report, Dr. Riché concluded that while appellant was not totally disabled for all types of work, he was totally disabled from performing his normal duties as a state trooper. With regard to the cause of Darbonne’s condition, Dr. Riché’s report stated: “I do not feel that he has any injury and further, that none of his diagnoses are due to or caused by his employment.” Dr. Riché also noted that appellant’s job “seems to create a degree of stress which aggravates his symptoms... . ”

Additionally, Dr. D. J. Leblanc, appellant’s personal physician, submitted a letter to the Board, in which he expressed his opinion that appellant, mostly due to stress, was physically unable to perform the duties associated with his job.

After the Board’s initial decision on the matter, appellant was examined by a second Board physician, Dr. Hulon Lott. Dr. Lott concluded that appellant was not physically disabled from performing his normal duties but that job stress had made him emotionally unstable.

Appellant’s disability is not at issue. The Board concedes that appellant is totally disabled for purposes of LSA-R.S. 40:1428. What is disputed is whether appellant’s disability is the result of an “injury received in the line of duty” or a “continued illness” as those terms are used in the statute.

Since appellant’s application for disability retirement benefits was filed on December 6, 1979, the version of LSA-R.S. 40:1428 as enacted by Act 727 of 1978 governs the present case. Guillory v. State Police Retirement Board, 402 So.2d 161 (La.App. 1st Cir. 1981), writs refused, 404 So.2d 1260 (La.1981). This statute provides, in pertinent part, as follows:

“B. The board of trustees shall award disability benefits to eligible members who have been officially certified as disabled by the State Medical Disability Board. The disability benefit shall be determined as follows:
(1) In cases of partial disability from injury received in the line of duty, a monthly pension in the discretion of the board of trustees of not less than the amount the officer would have received, disregarding age and years of service requirements, a pro rata portion of the minimum benefit if the years of service are less than the minimum required for retirement, had he retired under authority of R.S. 40:1426 or the date of this disability retirement, and of not more than seventy-five percent of his average salary, shall be paid to the disabled officer under the provisions of this Subpart.
(2) In case of total disability resulting from injury received in the line of duty, a monthly pension of seventy-five percent of his average salary shall be paid to the disabled employee under the provisions of this Subpart.”
(8) Any sworn, commissioned, law enforcement officer of the division of state police who is a member of the system who has become totally disabled or incapacitated because of continued illness or as a result of an injury received, even though not in the line of duty, but is not eligible for retirement under the provisions of R.S. 40:1426 may apply for retirement under the provisions of this Subsection. The employee shall be retired at thirty percent of his average salary for five or more years but less than ten years of service credit, forty percent of his average salary for ten or more years but less than fifteen years service credit, fifty percent of his average salary for fifteen or more years but less than twenty years service credit, and sixty percent of his average salary for twenty years and over service credit.”

Subsection (B)(2) provides disability benefits of seventy-five percent of the average salary whenever the disability results from an injury received in the line of duty. Subsection (B)(3) provides disability benefits in a lesser amount, based upon length of service (fifty percent of average salary in Dar-bonne’s case), whenever the disability results from a continued illness or injury received, even though not in the line of duty.

LSA-R.S. 40:1428 provides no definition of the terms “injury” and “continued illness.” In Guillory v. State Police Retirement Board, supra, this court considered the meaning of these terms as used in the statute:

“There must be a cut-off point, however, at which an injury is so ^substantially, slowly or imperceptibly received or sustained as a result of the employment, that it is not an ‘injury’ in and of itself, but a ‘continued illness.’ An aggravation of a preexisting condition in cases of more precipitous development of the illness falls under (B)(2) as an ‘injury’, and in cases in which the development was more gradual and less directly related to employment (or not related at all) falls under (B)(3) as a ‘continued illness’. We need not say precisely when (B)(3) begins to apply. Suffice it to say that a serious heart disease (accompanied by other serious medical conditions) which is aggravated over a period of many years partly as a result of the performance of one’s work as a state police officer, falls under (B)(3), not (B)(2).”

Applying this standard to the instant case, appellant’s disability is a result of “continued illness” rather than an “injury.” The medical evidence in the record indicates that appellant’s disability is a result of an assortment of diseases and medical problems (hiatal hernia, obesity, gout, modest hypertensive vascular and nervousness) which have developed and been present over a period of time. Appellant’s general health gradually worsened to the point that he became disabled from performing his duties.

Appellant argues that he sustained a mental injury as a result of on the job stress which in turn caused his physical disability. He argues that this alleged mental injury should be included within the meaning of “injury” in Subsection (B)(2). Regardless of whether or not appellant’s mental condition contributed to it, the development of his physical disability was such that it is to be considered a “continued illness” under the standards set forth in Guillory, supra.

The provisions of the Administrative Procedure Act, LSA-R.S. 49:951 et seq. govern all adjudication proceedings held by the Board, because it is an “agency” as defined by LSA-R.S. 49:951(2). Buras v. Board of Trustees of the Police Pension Fund of the City of New Orleans, 367 So.2d 849 (La.1979). The Administrative Procedure Act also governs the scope of judicial review by the district court and of appeals to the appropriate circuit court of appeal. LSA-R.S. 49:964 & 965.

LSA-R.S. 49:964 G specifically defines the scope of review of judicial decisions:

“G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”

In the instant case, the Board concluded, as a matter of law, that appellant’s total disability is due to and caused by his continued illness as that term is used in LSA-R.S. 40:1428(B)(3). The decision of the Board is not affected by error of law nor is it manifestly erroneous. The trial court committed no error in affirming the Board’s decision.

For the foregoing reasons, the judgment of the district court, affirming the decision of the Louisiana State Police Retirement Board, is affirmed. Costs of this appeal are assessed against appellant, Lee R. Dar-bonne.

AFFIRMED.

      . LSA-R.S. 49:951(2) provides:
      “(2) ‘Agency’ means each state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof, and the courts.”


text:
    FIRST STATE BANK & TRUST COMPANY OF EAST BATON ROUGE PARISH v. DALTON’S HEATING & AIR CONDITIONING CO., INC., et als.
    No. 14517.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    William C. Bradley, Baker, for plaintiff-appellee First State Bank & Trust Co. of East Baton Rouge Parish.
    Thomas D. Benoit, Baker, for defendants-appellants Dalton Abshire and Delia Landry Abshire.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellee, First State Bank and Trust Company of East Baton Rouge Parish (formerly Baker Bank and Trust Company), seeks recognition and enforcement of its collateral mortgage on certain immovable property belonging to defendants-appellants, Mr. Dalton Abshire and his wife, Mrs. Delia Landry Abshire. Plaintiff filed suit on two hand notes which are alleged to be secured by the pledge and delivery of a collateral mortgage note signed by Mr. and Mrs. Dalton Abshire. One hand note is signed by Dalton Abshire as president of Dalton’s Heating & Air Conditioning Co., Inc., and the other note is signed by Dalton Abshire individually.

Appellants do not deny the execution of the hand notes, but they do deny that any indebtedness to appellee is secured by property described in the collateral mortgage. Appellants contend the notations of pledge on the face of the hand notes were placed thereon after the execution of the notes and without their knowledge or consent.

The trial court held that the notations evidencing the pledge on the hand notes were there before the execution of the notes and recognized appellee’s mortgage on the property described in the collateral mortgage.

Mr. and Mrs. Abshire appeal the judgment of the trial court and their only assignment of error is that the trial court erred in its factual findings.

Appellants’ contention in this court is simply that the trial judge improperly evaluated the credibility of the two witnesses who testified in open court. Appellee filed the notes and the collateral mortgage in evidence as well as the testimony of its loan officer to the effect that the notations of pledge were on the notes prior to their execution. Appellants only presented the testimony of Mr. Abshire to the effect that the notations were not on the hand notes prior to their execution.

Credibility evaluations of conflicting testimony are the task of the trial judge which should not be overturned by an appellate court in the absence of manifest error. Rahm v. Exxon Corp., 399 So.2d 676 (La.App. 1st Cir. 1981); Dundy v. Louisiana State University in Baton Rouge, 394 So.2d 650 (La.App. 1st Cir. 1980).

After carefully reviewing the entire record, we cannot say the trial court’s determination (that the notations of pledge were on the notes at the time of their execution) is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The judgment of the trial court is therefore affirmed at appellants’ costs.

AFFIRMED.


text:
    The STANDARD FIRE INSURANCE CO. v. M. L. MAPES.
    No. 14518.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      John W. Perry, Jr., Baton Rouge, for plaintiff-appellant, The Standard Fire Ins. Co.
    Herschel C. Adcock, Baton Rouge, for defendant-appellee, M. L. Mapes.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This case involves a determination of the cause of a fire which occurred at LaBelle Fontaine Apartments in Baton Rouge, Louisiana. Appellant, Standard Fire Insurance Co., sued M. L. Mapes seeking to recover $24,632.41 which it paid to its insured as a result of the fire damage. The district court granted defendant’s motion for a directed verdict and dismissed plaintiff’s suit. Plaintiff appeals. We affirm.

Standard was the insurer of LaBelle Fon-taine Apartments under a policy which covered loss due to fire. Defendant, M. L. Mapes, rented an apartment for use as a business office. He often slept at the apartment and allowed others to do the same. On the day of the fire, however, Mapes was alone at the apartment.

On October 12, 1977, sometime prior to 6:00 p. m., Mapes started a fire in the apartment’s fireplace and sometime thereafter added additional logs to the fire. Mapes did not recall how he positioned the logs in the fireplace. At about 9:45 p. m. Mapes received a phone call from an associate and went to meet him at a local restaurant. At approximately 10:45 p. m. the apartment complex manager, Jeffery Gregory, discovered that Mapes’ apartment was on fire. The fire department was called, came and put out the fire.

Standard paid its insured $24,632.41 to cover the damage from the fire and was subrogated to any. claims which the insured might have. Standard then filed suit against Mapes, alleging negligence. In his answer, the defendant generally denied the allegations of plaintiff’s petition. At the close of plaintiff’s case, the defendant moved for a directed verdict.’

The trial court granted defendant’s motion for a directed verdict and rendered judgment dismissing plaintiff’s action. In his oral reasons for judgment, the trial judge noted that “it is incumbent upon plaintiff or petitioner in such a case to preclude all other hypothets (sic) that might have taken place that caused the fire to have occurred.” The court then held that plaintiff had failed to make such proof by a preponderance of the evidence.

Standard asserts that the district court erred in holding that it did not prove by a preponderance of the evidence that the fire started as a result of a log in the unattended fireplace falling forward and setting fire to the surrounding paneling.

We have carefully reviewed the record. There is no doubt that plaintiff established by a preponderance of the evidence that the apartment fire spread from the fireplace area. Jeffery Gregory, the apartment complex manager, was the first person on the scene when he entered Mapes’ apartment to attempt to extinguish the fire. Gregory testified that the fireplace paneling was burned out in an inverted “V” formation and that a log was standing up leaning toward the front of the fireplace but still within the firebox. Additionally, two expert witnesses testified at trial that the fire started in the fireplace area.

In Blanchard v. Sotile, 394 So.2d 633 (La.App. 1st Cir. 1981), this court was presented with a similar issue — determining the cause of a fire. The court in Blanchard made the following observation:

“The general rule is that negligence is not presumed, and the burden of proving negligence by a preponderance of the evidence rests on the party alleging it. The proof of negligence may be by direct or circumstantial evidence; however, a party relying upon circumstantial evidence has borne his burden of proof only if the evidence taken as a whole shows that the defendant’s fault was the most plausible cause of the fire and no other factor can as reasonably be ascribed as the cause. The probability of the fire having been caused by the defendant’s fault must preponderate over the probability of causation from any other factor. Myers v. Morrow, 367 So.2d 1297 (La.App. 4 Cir. 1979); Romero v. Butcher Air Conditioning Company, 255 So.2d 132 (La.App. 3 Cir. 1971).

“As the Court started in Morales v. Houston Fire and Casualty Company, Inc., 342 So.2d 1248, 1250 (La.App. 4 Cir. 1977), writ denied, 345 So.2d 49 (La.1977):

‘Although the circumstances surrounding the occurrence of a fire may give rise to an inference that a particular defendant was negligent, that negligence is not presumed from the mere happening of the fire, because there can be many causes of fires. The determination of preponderance depends on whether the evidence taken as a whole shows that the particular defendant’s negligence was the most plausible or likely cause of the fire.’ ”

In the instant case, the trial court determined that plaintiff did not establish that the defendant’s conduct was the most plausible cause of the fire. Such a finding is a finding of fact which may not be disturbed absent a finding of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

After a thorough review of the record, we are unable to say that the trial court was manifestly erroneous. Plaintiff’s own witness, Richard Green, an insurance adjustor, admitted that there was a possibility that the fire could have started at the top of the fireplace rather than in the firebox. J. D. Parsons, a deputy chief with the Baton Rouge Fire Department, testified that the fire could have started in a number of ways other than from the leaning log.

Even more importantly, however, is the testimony which indicates that plaintiff failed to exclude the possibility that the fire was caused by a defect in design and construction of the fireplace. Jeffery Gregory testified that the wood paneling over the fireplace was only about IV2 inches away from the edge of the firebox. Willard Du-gas, who was qualified at trial as an expert in the field of installation and maintenance of fireplaces, testified that if the wood paneling came that close to the fireplace, it constituted an “unsafe installation.” Furthermore, it is important to note Jeffery Gregory’s testimony that the “leaning log,” which plaintiff asserts was the cause of the fire, was within the confines of the firebox.

In light of this evidence the trial court could have concluded that defective installation of the fireplace was an equally plausible cause of the fire. Concluding that Mapes was not negligent was not clearly wrong.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of 'this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The trial was conducted before a judge alone. Thus, what both parties refer to as a “motion for directed verdict” is more properly referred to as a “motion for dismissal of the action.” See LSA-C.C.P. art. 1810.


text:
    Georgia Wilson JOHNSTON v. Bernard K. JOHNSTON.
    No. 14519.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Thomas R. Elkins, Baton Rouge, for plaintiff-appellee, Georgia Wilson Johnston.
    Glenn T. Cambre, Gonzales, for defendant-appellant Bernard K. Johnston.
    Before COVINGTON, LEAR and COLE, JJ.
   LEAR, Judge.

This is a rule for the termination of permanent alimony and child support filed by a former husband, Bernard K. Johnston, against his former wife, Georgia Wilson Johnston. The trial court dismissed the rule after hearing.

The parties were divorced by judgment dated August 26, 1975. Mr. Johnston was ordered to pay alimony in the sum of $400.00 per month to Mrs. Johnston, and to pay child support in the amount of $237.50 per month for their two minor children, Laurie Ann Johnston, and Robert Marlin Johnston.

To obtain a reduction or termination of permanent alimony, a former spouse must show a change in circumstances between the time of the granting of permanent alimony and the time of the rule to reduce or terminate alimony. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir. 1980).

The trial court found that a change in circumstances had not been proven. We agree. Mr. Johnston has a railroad job from which he received a net annual income (after taxes and railroad retirement) of $25,080.00 in 1980. However, he testified he did not bother to look at his federal income tax forms to determine his income at the time the divorce decree was signed. Mr. Johnston has since remarried, and the remarriage entails expenses. However, we do not know Mr. Johnston’s expenses when the divorce was granted. We likewise do not have available Mrs. Johnston’s expenses at the time of divorce. Mr. Johnston testified that he would have to undergo an operation to remove a spot from his lung within the next year, and Mrs. Johnston testified she would have to undergo an operation to remove a kidney stone within that time. However, no medical testimony was introduced to-prove the illness or loss of time from work by either party.

The record considered, we cannot say that the trial court was clearly wrong in arriving at its determination that a change in circumstances as to alimony had not been proven. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The judgment of the trial court did not allude to that portion of the rule asking for termination of child support. The children are now over the age of 18 years and support themselves; therefore, termination should have been ordered. Where the judgment is silent, there is a presumption that the relief is denied.

Therefore, we affirm the judgment of the trial court as to alimony, and reverse the court to formally terminate child support, all costs to be paid by appellant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    Mrs. Lollie Mae MARCUM v. INTER-OCEAN INSURANCE COMPANY.
    No. 14521.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Robert J. Mack, Hammond, for plaintiff-appellee.
    Alton Lewis, and Tom Matheny, Hammond, for defendant-appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

This appeal arises from a suit by the beneficiary of a policy of insurance providing coverage for accidental bodily injury or death of the insured, Ronny F. Marcum. The policy was issued by defendant, Inter-Ocean Insurance Company (Inter-Ocean), and named plaintiff, Mrs. Lollie Mae Mar-cum, the insured’s mother, as the death beneficiary.

The policy was issued to Marcum on April 24, 1974, as a group policy available to members of the Louisiana Automobile Association, Inc. The policy insures against loss which results from accidental bodily injury or death sustained by the insured, which occurs in the manner described in the policy. At issue here is the coverage provided under Part 3, entitled “AUTOMOBILE, TRUCK, TAXICAB, SCHOOL BUS, PEDESTRIAN AND AIRPLANE ACCIDENTS”, which provides, in pertinent part, that:

“If such injury shall be sustained:
“(c) By being struck or run over, while a pedestrian, by a moving automobile, truck, public passenger bus or trackless trolley;
the company will pay the indemnity provided in Column 3 of Section One . . . . ”

The indemnity provided for loss of life under such circumstances is $1,000.00. However, after the policy has been in effect for a minimum period of one year, it provides for an “Accumulative Benefit”, under which ten percent of the indemnity is added for each consecutive annual renewal until one hundred percent has been added to the original sum.

The evidence, which was introduced under a joint stipulation, shows that on September 7,1976, the insured was engaged in his regular employment with the Louisiana Department of Highways in Baton Rouge, Louisiana. The crew with whom Mr. Mar-cum was working had stretched a cable, approximately eighteen inches above the surface of the roadway, across Evangeline Avenue at its intersection with Plank Road. While Marcum was standing in the roadway, a westbound vehicle on Evangeline, without seeing the cable or being warned of its presence, struck the cable, which became entangled in its bumper. As the vehicle proceeded, the cable wrapped around Mar-cum’s feet, and he was dragged along the roadway and died.

Plaintiff filed a claim under the policy and defendant thereafter denied the claim on the basis that the injuries were not covered under the terms and conditions of the policy. After a trial on the merits, the court rendered judgment for plaintiff in the amount of $5,000.00, together with legal interest from date of judicial demand until paid. Written reasons were not issued by the court, and the judgment does not specify what amount was awarded under the policy and what amount, if any, was awarded as penalties and/or attorney’s fees.

On appeal, defendant contends that the trial court erred in finding coverage and holding defendant liable under the terms and conditions of the policy of insurance, and also as to the amount of the award.

Although it does not contest the fact that the insured died while a pedestrian, defendant contends that this did not occur by the insured’s “being struck or run over ... by [a] moving vehicle . . .”, and therefore no coverage is provided under the terms of the policy. While no Louisiana case has dealt with this exact factual situation, defendant cites a number of Louisiana cases in support of its position.

The first case cited by defendant is that of Brown v. Life & Casualty Ins. Co. of Tennessee, 146 So. 332 (La.App. 2nd Cir., 1933). In that case, a pedestrian standing on a street corner was struck by a wire which was attached to a load of pipe on a truck. The court found that the wire was in no way attached or necessary to the truck and disallowed recovery under the insurance policy. Its decision was based on the clear language of the policy, which provided coverage, “if insured shall be struck by actually coming in physical contact with a vehicle itself.” The policy provisions in Brown are distinguishable from those in the instant case.

The next case cited by defendant is Patin v. Life & Casualty Ins. Co. of Tennessee, 45 So.2d 218 (La.App. 1st Cir., 1950). In that case, the insured was working in a ditch and was killed when a heavy truck drove close to the edge of the ditch, causing it to cave in on him. While finding no coverage, this decision was again based on the clear language of the policy, which provided coverage “if the injured shall be struck by actually coming in physical contact with a vehicle itself and not coming in contact with some object loaded on or attached thereto, or some object struck and propelled against the person by said vehicle .. .. ”

In another case cited by defendant, Bowab v. St. Paul Fire & Marine Insurance Company, 152 So.2d 66 (La.App. 3rd Cir., 1963), the insured was injured when a tire, which he had removed from the trailer and placed on a workbench, exploded, causing the tire and part of the wheel to strike him. The policy provided for coverage for injury “through being struck by an automobile.” While the court found that the trailer was included in the term “automobile” the court, in denying coverage, noted that:

“. .. In all of the cases which we found where recovery has been allowed on the ground that the claimant was ‘struck’ by a vehicle, the vehicle itself was moving, its wheels were turning, or in some manner its momentum or power provided the force for the blow. [Emphasis added.]
“. .. We conclude ... that there was no intent to provide coverage for the unusual type of accident which occurred here, where the trailer did not in any way participate in causing the blow." [Emphasis added.]

We find the cases relied upon by defendant to be factually distinguishable from this instant case. Defendant has cited no Louisiana case which interprets the phrase “struck by an automobile” to require that there be physical contact between the insured and the vehicle, in the absence of specific policy language to that effect.

In the case of Blanchard v. Hanover Insurance Company, 250 So.2d 484 (La.App. 1st Cir., 1971), we had occasion to interpret the phrase “struck by an automobile”. In Blanchard, plaintiff was injured while driving a pickup truck, which was involved in a collision with another vehicle. The policy provided for the payment of medical expenses if the insured sustained injuries “through being struck by an automobile .... ” In finding coverage, we held that this phrase does not require that there be physical contact between the insured and the other vehicle involved in the accident.

Following this same rule, and even more similar to the facts of this instant case, is the decision in Easley v. Firemen’s Insurance Company of Newark, New Jersey, 372 So.2d 1067 (La.App. 3rd Cir., 1979). In Easley, the medical payments provisions of the policy required payment to an insured who was injured “through being struck by an automobile or by a trailer of any type.” The accident occurred when a trailer of a tractor-trailer rig was struck by a railroad train as it crossed the tracks. The collision derailed the train and caused the explosion of a tank car carrying combustible materials. Plaintiff, a pedestrian-bystander, was burned by the fireball which erupted from the damaged tank car. In allowing recovery the court interpreted this phrase as not requiring the insured to be actually physically struck by the motor vehicle (trailer) itself.

It is well settled that, in the interpretation of insurance contracts, any ambiguity is construed against the insurer who prepared the policy, Zurich Insurance Company v. Bouler, 198 So.2d 129 (La.App. 1st Cir., 1967); Blanchard v. Hanover Insurance Company, supra, and that policy exclusions are to be strictly construed and any ambiguity in such respect is to be resolved in favor of coverage. Bezue v. Hartford Accident & Indemnity Co., Hartford, Conn., 224 So.2d 76 (La.App. 1st Cir., 1969); Blanchard v. Hanover Insurance Company, supra. If defendant had intended to exclude coverage unless the insured was injured by actually coming into physical contact with the automobile itself, it could have easily done so. We find that this is not the case here, and that a common understanding of the phrase “struck by an automobile” encompasses the factual situation in this instant case. Thus, plaintiff should recover in this case.

The next issue is what amount should have been awarded to plaintiff under the terms of the policy. The insured was killed by an automobile, and the policy provides that in such cases “the company will pay the indemnity provided in Column 3 of Section One.” This amount is clearly $1,000.00. Under the “Accumulative Benefit” provision, however, since the policy had been in effect for the minimum period of one year, and there had been two consecutive annual renewals of the policy, an additional twenty percent of the death benefit should be added. Thus, the amount payable to plaintiff under the terms of the policy is $1,200.00.

Plaintiff has pointed out no other provisions of the policy which would increase this amount, and we therefore find that the death benefit recoverable by plaintiff under the policy is in the amount of $1,200.00 only.

Plaintiff contends that the additional amount of $3,800.00 was properly awarded by the trial court as penalties and attorney’s fees. We do not agree.

The insurance policy at issue here is an accident policy, which is covered by the provisions of LSA-R.S. 22:657. Claims for accidental death arising under such policies are governed by Subsection B, which provides that:

“All claims for accidental death .. . shall be settled by the insurer within sixty days of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six percent per annum from date of receipt of due proof of death by the insurer until paid.”

In awarding an amount beyond that recoverable under the policy, the trial court apparently found that defendant had failed to pay the claim without just cause. While we agree with the trial court in this regard, we note that Subsection B makes no provision for the payment of attorney’s fees in any case.

For the foregoing reasons, the judgment of the trial court is amended and judgment is hereby rendered in favor of plaintiff, Lollie Mae Marcum, and against defendant, Inter-Ocean Insurance Company, in the amount of One Thousand Two Hundred and No/100 (1,200.00) Dollars, together with interest on said amount at the rate of six (6%) percent per annum from October 8, 1976, until paid, plus legal interest on all amounts due from the date of judicial demand until paid.

AMENDED, AND AS AMENDED, AFFIRMED.