author: FORET, Judge.

text:
    Mary Diana MARTIN, Plaintiff-Appellee, v. Ernest Louis BRASSEAUX, Defendant-Appellant.
    No. 8732.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Gauthier & Cedars, Stanford B. Gauthier, II, Breaux Bridge, for defendant-appellant.
    Mary Diana Martin, in pro per.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Mary Diana Martin (plaintiff) brought a rule to show cause why she should not be granted the permanent care, custody and control of her minor child, Paula James Brasseaux (Paula), born during her marriage to defendant, Ernest Louis Brasseaux, and why defendant should not be ordered to pay her child support for Paula.

The trial court, after hearing plaintiffs rule, rendered judgment ordering defendant to pay plaintiff $8,100 for child support representing an award of $100 per month for 81 months commencing July 12, 1974, and ending April 12, 1981. The trial court further ordered defendant to pay plaintiff $116 per month for child support commencing April 12, 1981.

Defendant appeals and raises the following issues:

(1) Whether the trial court erred in awarding plaintiff child support for the time period commencing July 12, 1974 and ending April 12,1981, and if not,
(2) Whether the trial court erred in making that award effective beginning on July 12, 1974.

Defendant takes no appeal from that portion of the trial court’s judgment ordering him to pay plaintiff $116 per month for child support, nor has plaintiff appealed or answered the appeal. Thus, that portion of the trial court’s judgment is final. Because of our decision herein, we will pretermit any discussion of the second issue raised by defendant.

FACTS

Plaintiff and defendant were married in St. Martin Parish on January 15, 1966, and Paula, who is presently 14 years old, was the only child born of this marriage. Plaintiff filed a “PETITION FOR SEPARATION” on July 12, 1974, alleging that she was entitled to a judicial separation as she and defendant had voluntarily lived separate and apart for more than a year. Plaintiff further alleged that she was entitled to the permanent custody of Paula, and that defendant should be ordered to pay her alimony and child support. However, in her petition, plaintiff recognized that defendant was unable to pay alimony or child support as he was disabled (see Footnote # 1). But, she expressly reserved her rights to collect these items whenever defendant became financially able to pay them. A curator ad hoc was appointed to represent defendant. However, the record shows that this action was never tried nor was any judgment on the merits rendered therein.

Plaintiff filed a “PETITION FOR DIVORCE” on October 24, 1977, alleging that she was entitled to a judgment decreeing an absolute divorce between herself and defendant as they had voluntarily lived separate and apart for more than two years. Plaintiff again sought the permanent custody of Paula and an award for child support. She alleged that, in accordance with an order issued by the trial court, approximately $215,000 belonging to defendant had been deposited in the registry of the court. Defendant had obtained these funds as a result of a settlement of his claims arising out of the accident that had disabled him. It was from these funds that plaintiff sought a lump sum award of $39,600 in satisfaction of defendant’s child support obligation. Plaintiff’s action for a divorce was uncontested, and was submitted to the trial court on January 16, 1978. A formal judgment decreeing an absolute divorce between the parties was signed by the trial court on January 8, 1979. However, that judgment states that:

“The question of permanent care, custody and control of the minor child, Paula James Brasseaux, and the amount of child support to be paid by defendant to petitioner is relegated to further proceedings.”

Plaintiff filed a rule to show cause on July 28, 1978, after the date on which her divorce action was submitted, but prior to the date on which judgment was rendered and signed therein. In her rule, plaintiff alleged that the parties had reached an agreement as to the amount of child support defendant would pay, and she sought judicial enforcement of that agreement. The “MINUTES OF COURT” show that a partial hearing was held on plaintiff’s rule on October 13, 1978, and submitted. On joint motion of counsel, the matter was continued without date.

Finally, plaintiff filed a rule to show cause, which resulted in the judgment with which we are concerned, on July 20, 1979, once again alleging that she was entitled to the permanent custody of Paula. Further, plaintiff again alleged that the parties had entered into an agreement setting forth the amount of child support that defendant would pay, but that defendant refused to comply with the terms of that agreement. However, in the event that the trial court found that the alleged agreement was not legally binding on the parties, plaintiff alleged that defendant owed her $20,700 for child support from November of 1973, to the present, and that defendant should be ordered to pay her $400 per month for child support in the future.

The “MINUTES OF COURT” show that a hearing was held on plaintiff’s second rule on September 7, 1979. At that hearing, a stipulation was entered into by the parties awarding plaintiff permanent custody of Paula, subject to certain visitation rights granted defendant. The trial court ordered judgment in accordance with the stipulation. On joint motion of counsel, it was further ordered that the hearing on the issue of child support be continued without date. The record shows that no formal judgment to this effect was submitted to the trial court for signing.

A hearing on the issue of child support was finally held on March 25, 1981, when the trial court rendered judgment as noted at the beginning of this opinion.

TRIAL COURT’S AWARD TO PLAINTIFF OF $8,100 FOR CHILD SUPPORT

Defendant contends that the trial court erred in awarding plaintiff $8,100 for past child support. Defendant’s contention is based on a number of arguments, one of which is that plaintiff failed to prove that Paula’s needs in the past were insufficiently met by the social security benefits she was receiving as a result of his disability. (The evidence shows that Paula was determined to be eligible for such benefits beginning April 1, 1974.) There was testimony to the effect that these benefits amounted to less than $100 per month when Paula began receiving them. However, the benefits were increased: to $142.10 per month in June of 1975; to $152.00 per month in June of 1976; to $161.70 per month in June of 1977; to $173.00 per month in June of 1978; to $246.50 per month in March of 1979; to $270.90 per month in June of 1979; and, to $309.60 per month in June of 1980. Paula was still receiving social security benefits of $309.60 per month when the hearing on the issue of child support was held.

LSA-C.C. Article 227 provides:

“Art. 227. Parental support and education of children
Art. 227. Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”
LSA-C.C. Article 231 provides:
“Art. 231. Basis for granting alimony
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.”

LSA-C.C. Article 227 imposes on parents a mutual obligation of support, maintenance, and education of their children. The degree of support is determined by the needs of the child, as well as the circumstances of those who are obligated to pay it. Guinn v. Guinn, 405 So.2d 620 (La.App. 3 Cir.1981); Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3 Cir.1980), writ denied, 383 So.2d 782 (La.1980); Marcus v. Burnett, 282 So.2d 122 (La.1973).

A parent seeking an award for child support from his (her) former spouse has the burden of proving, by a preponderance of the evidence, the actual needs of the child (children) for whom such support is sought, and that the former spouse has the ability to pay the amount sought. Naquin v. Naquin, 405 So.2d 1171 (La.App. 1 Cir.1981); Scacciaferro v. Hymel, 206 La. 973, 20 So.2d 284 (1944); Poydras v. Poydras, 155 So.2d 221 (La.App. 1 Cir.1963); Moreau v. Moreau, 142 So.2d 423 (La.App. 3 Cir.1962).

Plaintiff introduced in evidence an affidavit setting forth various expenditures, alleged to be necessary for Paula’s support, totaling $631.00 per month. However, plaintiff testified that Paula had not lived with her for the preceding four years. Instead, she preferred to live with her maternal grandparents. Further, plaintiff stated that the expenses listed in her affidavit are what she and her mother “thought” would be necessary for Paula’s support, and did not reflect what was actually being expended for that purpose. Plaintiff was unable to estimate how much she and her mother had spent in supporting Paula from 1973 to the present. Plaintiff admitted that she had contributed nothing toward Paula’s support since 1979.

Yola P. Martin, Paula’s maternal grandmother, testified that Paula had been living with her for at least eight years. Yola stated that Paula’s social security benefits had been the sole source of funds for her support, and that these benefits were inadequate for this purpose. However, she was unable to estimate the amount of the alleged deficiency. At one point in her testimony, Yola stated that it cost an average of $150 per month to support Paula.

Paula testified that she had lived with her maternal grandparents: “Ever since I can remember”. She was asked if there was anything she didn’t presently have because of defendant’s failure to provide her with funds over and above those she was receiving from social security. She replied that she was unable to attend a modeling school for teenagers, but admitted that she had not asked defendant for the money to do so. She also stated that she had been unable to purchase clothing (she failed to indicate whether she was referring to clothing that was necessary, or that she simply desired to have), but admitted that defendant had bought clothes for her on several occasions. Paula could think of nothing else that she had been deprived of as a result of defendant’s alleged failure to adequately support her.

We think it important to note here that there were six individuals, including Paula, living in her maternal grandparents’ home. Two of these individuals were adult children of the grandparents, while one of the others was a minor child of theirs. Paula’s maternal grandmother would pay the household expenses out of her checking account. She testified that she would place all of Paula’s social security benefits in this account. The contributions of the other members of the household toward household expenses were shown by the evidence to be: over $400.00 per month from Paula’s maternal grandfather; $151.00 per month from her maternal grandmother; approximately $130.00 per month from Thomas (an adult son of the grandparents); $100.00 per month from Druscilla (an adult daughter of the grandparents); and $61.10 per month from Mary Ann (a minor daughter of the grandparents). Thus, it can be seen that, while there were six people living in the household, Paula’s social security benefits were being used to pay in excess of one-sixth of the household expenses.

There was testimony indicating that Paula is currently receiving psychiatric counseling at the Acadiana Mental Health Clinic in Lafayette. However, there is no charge for these services. There was also evidence suggesting that Paula suffers from asthma, allergies, and dental problems, and that she has been unable to obtain adequate medical and dental care because of a lack of funds. This is practically the only evidence adduced by plaintiff to show that Paula’s social security benefits were inadequate to cover her actual needs in the past. However, as noted above, Paula’s social security benefits were not used exclusively for her care.

The trial court recognized that this case was unusual because of the extensive lapse of time between the date of plaintiff’s judicial demand for child support (which it determined to be July 12, 1974, the date on which plaintiff filed her “PETITION FOR SEPARATION”), and March 25, 1981, that date on which the hearing on plaintiff’s last rule was held. The trial court also recognized that very little evidence had been presented by plaintiff to show what Paula’s needs had been in the past. The trial court stated in its oral reasons for judgment that:

“Now, it is true that there’s a social security benefit paid to Paula in Mr. Brasseaux’s behalf of three hundred and nine dollars and sixty cents ($309.60) a month at this time. That was not always the case, as was offered into evidence. At the beginning, it was a much more modest sum, and with increases for cost of living — increases, naturally, social security ups that every summer. That’s been the experience in this ease. For whatever it’s worth, I consider that the social security benefit paid to Paula is a payment made by Mr. Brasseaux for support. It’s attributable to his social security taxes. It’s something that his dependents are entitled to as a result of what he earned. I consider it, then, a payment made on his behalf, you can say, by him. The question is — is that sufficient? I consider that it’s not. It’s awful difficult, considering the circumstances of this case and the evidence presented to determine what would have been a proper amount over the years. Mr. Gauthier makes a good point when he says that there is no hard and fast evidence adduced here today as to what month — month by — what month-by-month over the years would have been sufficient The testimony has been, however, that the benefits paid by social security have not been sufficient, that that is not enough and it had to be supplemented by other money. Or, if that couldn’t be done, then Paula had to do without. I think personally that this is the problem and this is a problem that an appelate [sic] court may not agree with my resolution of. But, to me, I can take judicial notice almost of what it costs today to support a child, maybe not when you add — when you superimpose on that requirement the rules we have about the same standard of living as the child was accustomed to and all of that. But, it’s hard to go through life today and work and earn a living and pay bills without knowing what it costs to keep a human being alive and clothed and with a roof over their head, and other expenses that are attendant today in this area of our state and I’ve looked at the social security benefits that were paid over the years up ’til now. I feel that justice would be served if I added another hundred dollars a month during that period of time. I compute that from July the 12th of 1974 to April 12th of 1981 to be eighty-one hundred dollars ($8100). Now, that’s what I feel that Paula’s needs would have been, and I feel that Mr. Brasseaux can pay it.” (Emphasis ours.)

The amount which a parent is ordered to pay in fulfillment of his obligation to support his child must be determined in light of the totality of the circumstances. Dugas v. Dugas, 374 So.2d 1278 (La.App. 3 Cir.1979); Cowen v. Cowen, 375 So.2d 118 (La.App. 3 Cir.1979); Marcus v. Burnett, supra. However, it must be borne in mind that the parents’ primary obligation is to support, maintain, and educate his child. LSA-C.C. Article 227; Dugas v. Dugas, supra; Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959).

We find that the record clearly shows that plaintiff failed to prove, by a preponderance of the evidence, that Paula’s needs exceeded the amount of social security benefits she received. Both plaintiff and Paula’s grandmother were unable to give even an estimate as to her needs in the past. Paula herself testified that virtually all of her needs were taken care of. Our learned Brother of the trial court’s finding, that Paula’s social security benefits were insufficient to cover her needs, is clearly wrong.

There is another basis for finding error in the lower court’s award of $8,100 to plaintiff for child support. It is obvious from a reading of the trial court’s oral reasons for judgment that it erroneously placed the entire burden of furnishing Paula support, maintenance and education on defendant, while requiring plaintiff to contribute nothing for these items. The evidence shows that, in fact, plaintiff has contributed little towards Paula’s support in the past. She did admit that there was room for Paula to live in her present home.

A mutual obligation of support, maintenance and education of children is imposed by our law on both parents. The degree of support required of each is determined by the needs of the children and the circumstances of those who are obliged to pay it. (Emphasis ours.) LSA-C.C. Articles 227, 230 and 231; Prudhomme v. Prudhomme, supra; Graval v. Graval, 355 So.2d 1057 (La.App. 4 Cir.1978); Marcus v. Burnett, supra; Strickland v. Strickland, 377 So.2d 537 (La.App. 3 Cir.1979).

Further, in instances where one or both of the parties have remarried, the earnings of their respective spouses is to be considered in making an award for child support. Prudhomme v. Prudhomme, supra; Marcus v. Burnett, supra; Fazzio v. Krieger, 76 So.2d 713 (La.1954). The evidence shows that plaintiff remarried in 1979. However, the trial court erroneously refused to consider the earnings of plaintiff’s second husband in making its award for child support stating that:

“I don’t see how it can be said that he has to use his income to support her child.”

DECREE

For the above and foregoing reasons, that portion of the trial court’s judgment ordering defendant to pay plaintiff the sum of $8,100 for child support for the time period commencing July 12,1974, and ending April 12, 1981, is reversed. In all other respects, the judgment of the trial court is affirmed.

All costs of this appeal, and in the trial court, are assessed in the proportions of one-half against plaintiff-appellee and one-half against defendant-appellant.

REVERSED IN PART AND AFFIRMED IN PART.

      . Defendant suffered severe brain damage in an oilfield accident on October 3, 1973. Defendant’s brother, Curley Brasseaux, filed a “PETITION FOR INTERDICTION” on January 14, 1977, instituting the action of In Re Interdiction of Ernest Louis Brasseaux, Docket # 29577, 16th Judicial District Court, Parish of St. Martin, State of Louisiana. The trial court rendered judgment in this action on March 14, 1977, “... decreeing Ernest Louis Brasseaux to be incapable of taking care of his person and of administering his affairs, and pronouncing his interdiction ... ”, The trial court further rendered judgment confirming Curley Brasseaux as defendant’s Curator, and Witness Brasseaux as Under-Curator.
      Defendant filed a “PETITION TO REVOKE INTERDICTION AND APPOINT PROVISIONAL CURATOR” on August 18, 1980. The trial court, after holding a contradictory hearing with the Provisional Curator, rendered judgment on October 15, 1980, revoking the interdiction of defendant. Curley Brasseaux had been named as a defendant to plaintiff’s rule as Ernest Louis Brasseaux was interdicted at the time the rule was filed. However, at the time of the hearing on the rule on March 25, 1981, Ernest Louis Brasseaux was the only remaining defendant as the judgment pronouncing his interdiction had been revoked.

      . A review of the record discloses that no formal judgment awarding custody of Paula to either of the parties has been signed by the trial court. However, as noted, the parties did stipulate that plaintiff would have custody of the child. Further, in his answer to the “PETITION FOR DIVORCE”, defendant admitted that plaintiff was entitled to said custody.

       There is no authority whatsoever to support the proposition that a trial court may take judicial notice of the costs of supporting a child. As noted above, plaintiff, in an action for child support, has the burden of proving what the needs of the child are by a preponderance of the evidence.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    UNIVERSAL DYNAMICS, Plaintiff-Appellee, v. LOFTON (LOFTIN) CONSTRUCTION COMPANY, INC. OF WESTLAKE, et al., Defendants-Appellants.
    No. 82-66.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      Codings & Codings, R. Williams Codings, Lake Charles, for plaintiff-appellee.
    Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Lake Charles, for defendants-appellants.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.

      . “Lofton” is incorrectly spelled and should read “Loftin”.

   DOMENGEAUX, Judge.

This case arose out of a breach of an oral contract entered into between plaintiff-ap-pellee, Universal Dynamics, and defendants-appellants, Loftin Construction Company, Inc. of Westlake, and Walter Loftin, for the excavation of dirt by defendants from plaintiff’s property. After trial the district judge found in favor of the plaintiff and against defendant, Loftin Construction Company, Inc., and awarded plaintiff judgment in the sum of $65,702.90, plus interest and costs. From that judgment Loftin Construction Company, Inc. appeals.

The only substantial issue presented on appeal is whether the trial court erred in its determination of the amount of dirt removed from plaintiff’s property.

In reasons orally assigned and transcribed into the record, the district judge stated the facts fairly, and gave reasons for his decision as follows:

“This suit comes before the Court on the petition of the plaintiff, Universal Dynamics, a Louisiana Corporation domiciled in Lake Charles, Calcasieu Parish, Louisiana, hereinafter sometimes referred to as Universal, seeking judgment on an open account against the defendant, Loftin Construction Company, Incorporated of Westlake, a Louisiana corporation domiciled in Lake Charles, Calcasieu Parish, Louisiana, hereinafter sometimes referred to as Loftin Construction, and/or Walter Loftin, individually, hereinafter sometimes referred to as Loftin, in the sum of $258,000.00, together with legal interest thereon from date of judicial demand until paid, reasonable attorney fees in an amount of not less than $500.00 and all costs of the proceeding.
The defendants filed an answer of general denial and an affirmative defense that Loftin had not purchased dirt, sand and clay from the plaintiff, Universal, and that any such purchases by construction were made in different amounts and for different prices than alleged in plaintiff, Universal’s petition. Evidence was adduced at the trial of the matter consisting of testimony or witnesses and other documentary evidence. In this case, as in all civil cases, the plaintiff bears the burden of proof by a preponderance of the evidence of all competent facts upon which plaintiff relies for judgment. From the evidence presented, the Court finds that the plaintiff, Universal, owned a 40-acre tract of land described as the Southeast Quarter of the Southeast Quarter of Section 26, Township 10 South, Range 10 West, located in Calcasieu Parish, Louisiana. The Court further finds from the evidence that Mr. Ed Nelson, the person who had formerly owned the tract of land and who had sold the tract of land to the plaintiff, Universal, acted as an undisclosed agent for his principal, Universal, in entering into an oral contract for the sale of dirt, sand or clay to the defendant, Loftin Construction, from the tract of land then owned by the plaintiff, Universal, to be used by defendant, Loftin Construction, as fill material. The Court further finds from the evidence that the oral contract was entered into during the early part of the year 1978 and that the terms of the oral contract were that the defendant, Loftin Construction, would pay the plaintiff, Universal, one dollar per cubic yard for all material removed from the tract of land. The Court further finds from the evidence that the fill material removed from the tract was to be computed or measured by cross-sectioning the tract of land after the fill material had been removed. From the evidence, the Court finds that Mr. Edward W. Nelson, Mr. Lee Fogle-man, and Mr. David Mike Trahan were present at the time the oral contract was entered into. Plaintiff, Universal, does not dispute the fact that Edward W. Nelson was acting as it’s undisclosed agent on it’s behalf and has acquiesced and ratified the oral contract he made on their behalf by their subsequent actions. Mr. Trahan was the secretary-treasurer of Loftin Construction and was acting on behalf of Loftin Construction as was Lee Fogleman who was the supervisor for Loftin Construction at the* time the oral contract was entered into. Loftin Construction has acquiesced and ratified the oral contract by it’s subsequent actions. Mr. Nelson testified, and his testimony was confirmed by both Mr. Trahan and Mr. Fogleman, that the agreed upon price was one dollar per cubic yard for all fill material removed from the property of the plaintiff, Universal. Mr. Nelson affirmatively testified that the fill material removed from the property of the plaintiff, Universal, was to be measured at the completion of the removal of all fill material by cross-sectioning the property of the plaintiff, Universal, from which the fill material was removed. Mr. Trahan had no independent recollection of that agreement and Mr. Ellender (sic) at the time of the trial, denied that agreement, but did admit that he had previously testified by deposition that he recalled the meeting and the terms of the contract and that the measurement of the material removed was to be done by cross-sectioning the plaintiff’s, Universal’s, property at the conclusion of the removal of fill materials. From the evidence presented, the Court finds that the plaintiff, Universal, has proven by a preponderance of the evidence that the fill material removed from the plaintiff, Universal’s, property was to be computed by cross-sectioning the plaintiff, Universal’s property after the conclusion of the removal of all fill materials.
Both plaintiff, Universal, and defendant, Loftin Construction, presented evidence concerning the amount of fill material removed from the plaintiff, Universal’s property by cross-sectioning of the property after the conclusion of the removal of the fill material.
Plaintiff, Universal, employed the services of a registered civil engineer and registered surveyor, Mr. Gary Todd. Mr. Todd’s cross-section of the property was based on a survey, made on a 50-yard grid of the property in question, and after deducting an area to the western part of the property where a ditch had been located prior to the defendant, Loftin Construction, removing any fill material and after adding a stock pile of fill material which defendant, Loftin Construction, had left remaining on the plaintiff, Universal’s, property at the completion of it’s operation. Mr. Todd had obtained a computation for the stock piled fill material by computing it’s area and had deducted for any material removed by the ditch on the western most portion of the property after a cross-section of the ditch area. Defendants, Loftin Construction, had cross-sectioned the property on the basis of a 100-yard grid and conceded that the measurements for the cross-section were taken by a person who was not. at the time the measurements were made either a graduate engineer or a registered surveyor. Mr. Todd further testified that a cross-section based on a 100-yard grid rather than a 50-yard grid would be less accurate and more inclined to deviations because of the fact that material could have been removed or piled up in a 100-yard area and that this would not be reflected on such a grid.
From the evidence presented, the Court concludes that the survey and the cross-section made by Mr. Todd is more accurate and representative of an accurate cross-section of the property showing the amount of fill material removed rather than that made by the defendant, Loftin Construction.
Defendants had previously admitted removing 26,462.93 cubic yards of material, and after filing their answer of general denial had deposited that sum in the Registry of the Court in this suit on March 1, 1980. At the time of the trial of this matter, the defendant, Loftin Construction, through Mr. Trahan, admitted that Loftin Construction had removed at least 35,000 cubic yards of material from plaintiff, Universal’s property. Defendant, Loftin Construction, further contends that the plaintiff, Universal, and other persons had removed material from the area cross-sectioned and for which plaintiff, Universal, claimed defendant, Loftin Construction, had removed all materials.
From the evidence presented, the Court does'not find that the defendant, Loftin Construction, has proven by a preponderance of the evidence that plaintiff, Universal, or anyone else removed any material from the plaintiff, Universal’s, property which was cross-sectioned and from which plaintiff, Universal, contends material was removed exclusively by the defendant, Loftin Construction.
Mr. Todd’s computations, which the Court has accepted as more accurate, reflects that a total of 65,702.9 cubic yards of material had been removed by defendant, Loftin Construction, from plaintiff, Universal’s property. The Court finds that plaintiff, Universal, has proven by a preponderance of the evidence that defendant, Loftin Construction removed a total of 65,702.9 cubic yards of sand, dirt and clay from plaintiff, Universal’s, property. For this reason, judgment will be rendered in favor of the plaintiff, Universal Dynamics, and against the defendant, Loftin Construction Company, Inc. of Westlake, in the sum of $65,702.90, together with legal interest thereon from date of judicial demand until paid, subject to a credit for the $26,462.93 previously deposited by defendant, Loftin Construction, in the Registry of the Court and tendered to and withdrawn by plaintiff, Universal, prior to trial of this suit. Plaintiff, Universal’s, claim for judgment against Walter Loftin, individually, will be denied as will plaintiff, Universal’s, claim for attorney’s fees. The Court does not find that the suit by plaintiff, Universal, is a suit on an open account, but rather is a suit on an oral contract, and from the evidence, does not find that the parties had agreed contractually to the payment of any attorney’s fees in the event of a default of the oral contract.”

Upon review of the record, we find that it overwhelmingly supports the trial judge’s conclusions as set out hereinabove. Consequently, we find no merit to appellants’ contention that the court below was manifestly erroneous in calculating the amount of dirt removed from plaintiff’s excavation pit/

Finally, from the oral reasons assigned above, it is obvious that the district judge held in defendant Walter Loftin’s favor and against plaintiff dismissing plaintiff’s suit against him. However, it appears that through inadvertance the judgment rendered below reflects judgment against both named defendants in this suit. For this reason we recast the judgment to reflect the correction.

For the above and foregoing reasons the judgment of the district court is affirmed as amended and recast as follows: It is ORDERED, ADJUDGED, and DECREED that judgment be rendered in favor of plaintiff, Universal Dynamics, and against defendant, Loftin Construction Company, Inc. of Westlake, for the full sum of Sixty-five Thousand, Seven Hundred and Two and 90/100 ($65,702.90) Dollars, together with legal interest thereon from date of judicial demand, plus all costs of these proceedings, less a credit of Twenty-six Thousand, Four Hundred Sixty-two and 93/100 ($26,462.93) Dollars.

All costs of appeal are assessed against Loftin Construction Company, Inc.

AFFIRMED AS AMENDED.

      . Walter Loftin who owns Loftin Construction Company of Westlake, Inc., was also named as defendant in this suit. Judgment was rendered in his favor and against plaintiff dismissing plaintiffs claims against him, but the trial judge inadvertently failed to delete “ET AL” from the judgment against defendant Loftin Construction Company, Inc., perhaps implying that Mr. Loftin was also cast in judgment. We have recast the judgment below correcting the error.

      . Ibid.

      . Ibid, at 2.

      . The $26,462.93 credit represents the amount deposited by defendant in the registry of the court which was subsequently withdrawn by plaintiff prior to trial.


author: CULPEPPER, Judge. LABORDE, Judge,

text:
    CALCASIEU MARINE NATIONAL BANK OF LAKE CHARLES, Plaintiff & Appellant, v. Carl MILLER, Defendant & Appellee.
    No. 82-146.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for plaintiff & appellant.
    Mark A. Holden and Eva Herzer, Lake Charles, for defendant & appellee.
    Before CULPEPPER, DOMENGEAUX, GUIDRY, DOUCET and LABORDE, JJ.
   CULPEPPER, Judge.

This is a suit for a deficiency judgment after the judicial sale in executory proceedings of a mobile home and contents. The district judge upheld the defense that the appraisal was “so casual as to be no appraisal.” The plaintiff appealed. We reverse.

The issues are (1) whether the appraisement was “just and true” and (2) whether it was made with the minuteness required by LSA-R.S. 13:4365.

The facts are that in September of 1972 the defendant Miller purchased a new Aquarius mobile home from Abear Mobile Homes, Inc. The cash price was $6,823, but the finance charges totaled $4,725. Miller executed a promissory note in the sum of $11,025 payable in 60 monthly installments and secured by a chattel mortgage on the mobile home. The note was later endorsed to the plaintiff, Calcasieu Marine National Bank of Lake Charles. After three years, Miller failed to pay the installment due in January of 1975, at which time the principal balance due on the note was the sum of $8,728.25.

Pursuant to the acceleration clause of the note, the plaintiff bank declared the entire indebtedness due and instituted proceedings by executory process to seize and sell the mobile home and its contents. There was compliance with all of the formalities required for a judicial sale with appraisal. Notice was issued to the defendant Miller to be present to choose an appriaser, but he did not appear. Accordingly, the sheriff appointed two appraisers, Joseph A. Dela-field and John P. Navarre. They appraised the home and contents for $1,500. At the judicial sale, on April 23, 1975, the plaintiff bank purchased the home and contents for the sum of $1,001, being two-thirds of the appraised value.

On May 28, 1975, the present petition for deficiency judgment was filed, but service was not effected on defendant until about four years later. On August 4, 1980, Foremost Insurance Company was substituted as a party plaintiff in place of Calcasieu Marine. On May 22, 1980, an answer was filed by defendant Miller asserting as an affirmative defense that there was no appraisal as required by LSA-R.S. 13:4365, in that (1) the appraisal was neither just nor true, and (2) it was not made with the minuteness required by the statute.

At the trial, Mr. Navarre testified that he remembered making the appraisal, and he thought he remembered Mr. Delafield examining the mobile home with him at the time. Navarre stated he had owned, sold and appraised mobile homes, and that he thought a fair appraisal of this particular home was $1,500. He stated mobile homes depreciate quickly. Navarre admitted he did not go inside the mobile home and did not examine the interior, the appliances or the furniture.

The other appraiser was Mr. Joseph Dela-field, an employee of the plaintiff bank and also an attorney. He testified that he had made approximately 50 appraisals of mobile homes, and he could not remember this particular appraisal which was made almost five years before the trial. However, he identified his signature on the written and sworn appraisal.

Mr. George R. Sabiens, recovery supervisor for Foremost, testified the principal balance due on defendant’s account is now $8,045.19.'

The plaintiff also introduced the testimony of Mr. Gauthreaux, assistant vice-president of Calcasieu Marine National • Bank. He stated that after the judicial sale he examined the mobile home and found it necessary to spend $1,060 in repairs to put it in a saleable condition. The bank spent this amount and later resold the mobile home wholesale for $3,125. These figures tend to show that the appraisal was very near correct. The appraisal of $1,500 plus the $1,060 required to make the home salea-ble total $2,560, and the bank was able to sell the mobile home for only $3,125. This means that by making expenditures to put the mobile home in a saleable condition, the bank was able to increase the value by only $565 over the amount of the appraisal plus the amount necessary to repair it.

The defendant Miller testified that at the time the home was seized it was in good condition and needed no repairs. From this testimony, defendant argues that this mobile home for which he paid $11,023 did not depreciate to a value of only $1,500 in three years. Of course, the $11,023 included $4,725 for finance charges. The cash price of the home was only $6,823. We think this argument by plaintiff is clearly overcome by the testimony of the bank’s vice-president, Mr. Gauthreaux, that they found it necessary to spend $1,060 to place the mobile home in a saleable condition and that they were able to sell it for only $3,125 wholesale.

There is no dispute as to the applicable law. LSA-C.C.P. articles 2771 arid 2772 provide for deficiency judgments where property has been sold under executory process with appraisal in accordance with the provisions of LSA-R.S. 13:4106-4107. The requirements for appraisals incident to judicial sales are set out in LSA-R.S. 13:4365 as follows:

“The appraisers shall take an oath to make a true and just appraisement of the property.
“If the appraisers cannot agree, the sheriff shall appoint a third appraiser, who shall also be sworn, and whose decision shall be final.
“The property seized must be appraised with such minuteness that it can be sold together or separately.
“The appraisers shall reduce their ap-praisement to writing, sign it, and deliver it to the sheriff.’ Added Acts 1960, No. 32, § 6.”

Jurisprudence has established the rule that lack of compliance with the statutory requirements for appraisement precludes a deficiency judgment. Carr v. Lattier, 188 So.2d 645 (La.App. 2d Cir.1966). However, where the sheriffs return of the judicial sale shows on its face that all of the requirements for appraisement were met, it will be presumed that there was a legal appraisement, unless the contrary be proved by the debtor. Jones v. Alford, 172 So. 213 (La.App. 2d Cir.1937); Stockman v. Money, Inc., 277 So.2d 504 (La.App. 1st Cir.1973). In the present case, the sheriffs return shows on its face that all requirements regarding appraisement were met. The defendant had the burden to prove to the contrary.

The defendant cites General Motors Acceptance Corporation v. Boutte, 338 So.2d 363 (La.App. 3rd Cir.1976) as being similar to the present matter. In that case, the defendant Boutte bought a used 1970 Chevrolet in October of 1973 and signed a note for the sum of $2,796 payable in 30 monthly installments. When the balance was $2,122, defendant defaulted. Under executory process, the car was appraised at $200 and was purchased at the judicial sale by the plaintiff for $134. Although there was a dissenting opinion, the majority held that the appraisal was not a “true and just ap-praisement.” The majority opinion states that within eight days after the sheriffs sale, a battery was installed in the car and it was sold at wholesale for $400 to a dealer who spent another $600 on the car and sold it for $1,495. We find GMAC v. Boutte distinguishable on the facts. In the present case, the appraisal was not nearly so small in comparison with the amount for which the vehicle was repaired and sold.

Defendant’s second argument is that the appraisal was defective because it was not made “with such minuteness that it can be sold together or separately.” The sheriff’s return shows the furniture and appliances inside the mobile home were not separately appraised. The home and contents were appraised for $1,500. It is defendant’s contention that since the furniture and appliances were not separately appraised with sufficient minuteness to sell them separately, as required by LSA-R.S. 13:4365, the appraisement was fatally deficient. Our answer to this argument is that the mobile home was sold together with its contents. There is no proof by defendant that a separate appraisement of the built-in appliances such as the oven, range, refrigerator, water heater and furnace was even possible. Moreover, no separate appraisement or sale was requested by any bidder.

The defendant Miller has not sustained his burden of proof that the appraisement was deficient. The only evidence of the actual appraisement itself is the testimony of the two appraisers. This testimony shows they were both qualified and that the appraisement was sufficient as to form and procedure. There is no contention of fraud or error in the appraisement. According to Navarre’s testimony, he actually inspected the outside of the mobile home and, considering the rapid depreciation of mobile homes concluded this one had a value of $1,500. Navarre testified he thought he remembered Delafield also being present. Of course, Delafield could not remember this particular appraisal, but this is not unusual in view of the fact that the trial was five years after the appraisal, and Del-afield has made appraisals of approximately 50 of these homes. Therefore, the testimony of Delafield does not help defendant in his burden of proof. We are strongly influenced by the evidence which shows that actually the amount of the appraisal was fair and correct, as shown by the above discussed testimony of Mr. Gauthreaux, the bank’s employee who cleaned, repaired and sold the mobile home.

We conclude plaintiff is entitled to a deficiency judgment. According to the testimony of Mr. Sabiens, the principal balance due on Miller’s account as of January 25, 1975 was $8,728.25. Interest accrued up to the date of the sheriff’s sale on April 23, 1975 was $174.56. The purchase price at the sale was $1,001. The costs of the sale totaled $143.48. Thus, Miller is entitled to a credit of $857.52.

THE DECREE

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Foremost Insurance Company, Inc., and against the defendant, Carl Miller,for the sum of $8,728.25 with interest thereon at the rate of 8% per annum from January 25, 1975 until paid, and attorney’s fees of 10% of the principal and interest due, subject to a credit of $857.52 paid on April 23,1975. All costs in the trial and appellate courts are assessed against the defendant.

REVERSED AND RENDERED.

LABORDE, J., dissents and assigns reasons.

DOUCET, J., dissents for reasons assigned by LABORDE, J.

LABORDE, Judge,

dissenting.

I respectfully dissent.

Plaintiff, Foremost Insurance Company, sues Carl Miller to obtain a deficiency judgment against him following the judicial sale of a mobile home and its contents in an earlier executory proceeding. The lower court, after finding that the appraisal was not made in accordance with the applicable law, dismissed Foremost’s suit. Foremost appeals. I would affirm.

Defendant Miller purchased a new Aquarius mobile home in September, 1972, executing a promissory note for its purchase price of $11,025.00 which was secured by a chattel mortgage on the home and twelve items in it. The promissory note was later endorsed to Calcasieu Marine National Bank of Lake Charles. Miller failed to pay the installment due in January of 1975, and under the acceleration clause of the note, the entire unpaid balance of $8,728.25 became due together with interest and attorney’s fees.

Calcasieu Marine National Bank, pursuant to the provisions of the note, declared the entire indebtedness due and instituted proceedings by executory process foreclosing on the mortgaged mobile home and its contents. They were seized, appraised for $1,500 and sold for $1,001.

Calcasieu Marine National Bank instituted this action for a deficiency judgment in which Foremost was later substituted as party-plaintiff in its place. In his answer to the deficiency judgment suit, Miller asserted that there was no appraisal as required by LSA-R.S. 13:4365 because the appraisal made was neither just nor true nor was it made with such minuteness as is required by law. Thus, he argued, under the applicable law, the debt stands fully satisfied and discharged, and Foremost is not entitled to obtain a deficiency judgment.

A creditor can obtain a deficiency judgment only if the property has been sold under an executory proceeding after a valid appraisal has been made in accordance with the applicable law. LSA-C.C.P. Arts. 2771 and 2772; LSA-R.S. 13:4106-4107. The requirements for appraisals incident to judicial sales are set out in LSA-R.S. 13:4365, which states:

“The appraisers shall take an oath to make a true and just appraisement of the property.
If the appraisers cannot agree, the sheriff shall appoint a third appraiser, who shall also be sworn, and whose decision shall be final.
The property seized must be appraised with such minuteness that it- can be sold together or separately.
The appraisers shall reduce their ap-praisement to writing, sign it, and deliver it to the sheriff. Added Acts 1960, No. 32, § 6.”

As this court stated in Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La. App.3rd Cir.1975), the rationale of the Deficiency Judgment Act (LSA-R.S. 13:4106-4107) is “the strong public policy of protecting a debtor from possible abuse resulting from the judicial sale of his property without notice and without the benefit of proper appraisement.” In order to prevent the thwarting of that public policy, it is necessary that the statutory requirements be complied with. Ford Motor Credit Company v. Samec, 227 So.2d 164 (La.App. 2nd Cir.1969).

With these principles in mind, I return to the sole issue on appeal which is whether or not the appraisal of Miller’s mobile home and its contents meets the above statutory requirements such that Foremost is entitled to a deficiency judgment against Miller.

Two appraisers, John Navarre and Joseph Delafield appraised the mobile home and its contents prior to the sheriff’s sale, each appraising it at $1,500. At the trial, Mr. Delafield, the appraiser employed by Foremost, testified that he did not recall making the appraisement. Thus, his testimony is not helpful in determining whether the appraisal was just and made with the requisite minuteness such that the home and its contents could be sold together or separately. Mr. Navarre, the appraiser appointed by the Sheriff, admitted that he made his appraisal without viewing the inside of the mobile home. Along with the mobile home, twelve items located inside of it were also seized and sold. These items included a stove, refrigerator, hot water heater, furnace and several pieces of original furniture. Having never viewed these items, I do not think that Mr. Navarre’s appraisal of the property meets the statutory requirement of such minuteness that the seized property could be sold together or separately. Further, since Mr. Navarre never saw the inside of the mobile home, he was in no position to evaluate its condition. For example, he could not have evaluated the condition of its walls, floors, plumbing and fixtures. In short, neither of the appraisers could explain or justify why he appraised at $1,500 a three year old mobile home which was purchased for $11,025.

In contrast, at the trial, Miller introduced evidence showing that his home was in fair condition and its appliances were in good working order. He also introduced evidence showing that the home was re-sold at a reasonable profit to a wholesaler after only a general clean-up was performed.

In his written reasons, the trial judge stated:

“The court is of the opinion (considering the testimony of the manner of appraisal and other testimony concerning the condition of the property at the time of seizure and the subsequent re-sale of the said property,) that the appraisal was so casual as to be no appraisal in the manner required by law and therefore plaintiff’s suit for deficiency judgment cannot be maintained.”

The record supports these findings of the lower court.

For the above reasons, I would affirm the judgment of the lower court at Foremost’s costs.

      . The deficiency judgment proceedings were initially instituted by Calcasieu Marine National Bank of Lake Charles which subsequently assigned its interest in the matter to Foremost Insurance Company. Foremost moved to substitute as party plaintiff which motion was granted.


author: CULPEPPER, Judge.

text:
    Joseph BARONET, Plaintiff & Appellant, v. MOBIL CHEMICAL CORPORATION, et al., Defendants & Appellees.
    No. 82-179.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for plaintiff & appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Rutledge Clement, Jr. and William Wester-field, New Orleans, Davidson, Meaux, Son-nier & McElligott, John M. McElligott, Jr., Lafayette, Miller, Miler & Craton, John F. Craton, Crowley, for defendants & appel-lees.

      Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for loss in yield of his rice crop allegedly caused by use of a pre-emergent herbicide known as “Mo-down.” The defendants are Mobil Chemical Corporation, the manufacturer of Modown, Occidental Chemical Company, the distributor of the Modown, and G & H Seed Company and Liq-Quik Fertilizer, the retail dealer who sold the herbicide to the plaintiff. From a judgment dismissing his suit against all defendants, plaintiff appeals.

The issue on appeal is whether the trial court erred in holding that the plaintiff failed to prove by a preponderance of the evidence that the product of the defendant was defective, or that he suffered a loss in yield.

FACTS

The trial court ruling was accompanied by a clear and concise statement of facts which a careful reading of the record convinces us is accurate and complete. We therefore adopt the following pertinent portion of the trial judge’s findings of fact:

“On or about March 12, 1977, plaintiff dry-planted rice on a particular 40-acre tract of farmland in Acadia parish. This tract had been planted in soybean in 1978 but had lain fallow for some years before that. That same day or the following day G & H Seed and/or Liq-Quick (sic) Fertilizer Company sold Modown to plaintiff, mixed the product and applied it to the field in question as a pre-emergent herbicide.

“The uncontroverted testimony of Mr. Baronet shows that he then waited approximately two weeks and that since there had been no rain he, following the instructions of G & H Seed and/or Liq-Quick, flushed the forty-acre tract to activate the Modown. Mr. Baronet further testified that at that time his rice looked beautiful. Two weeks later when Mr. Baronet flooded his field there was still no obvious problem with his crop.

“Shortly after this permanent flooding took place the area experienced a severe rain storm totaling eight inches. Around the time of the fifty (sic) week after planting, plaintiff began to notice problems with his rice. In the lowest areas of this field the rice plants began to die. Mr. Baronet complained about this problem to Mobil and its distributor and they investigated. Upon instructions from Mr. Zaunbrecher of G & H and Liq-Quick, plaintiff then drained his field and the rice plants began a process of recovery. Samples were taken and analyzed and the results show that there was a Vioth zinc deficiency on this particular field.”

Extensive expert testimony was adduced at the trial on the merits by both parties. It was testified that Modown had never been known to cause such damage as that alleged here. There was also testimony with regard to other possible causes of the damage to the plaintiff’s rice crop.

The trial court held that the plaintiff failed to prove that the Modown in question was defective or that it caused injury to the plaintiff’s rice. He further concluded that, even if the Modown was defective, the plaintiff failed to prove that he suffered damages as a result of its application.

DEFECTIVE PRODUCT

A manufacturer of a product which involves a risk of injury to the user is liable to any person who, without fault on his part, sustains an injury caused by defect in the design, composition or manufacture of an article, if the injury might reasonably have been anticipated. However, the burden is upon the plaintiff claiming injury to prove that the product is defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); Weber v. Fidelity & Casualty Insurance Company of N.Y., 259 La. 599, 250 So.2d 754 (1971).

In Weber, supra, the court also stated plaintiff’s burden of proof of causation as follows:

“In this civil case, the plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995,245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).
“As we stated in the latter decision, Í53 So.2d 397: ‘Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.’ ”

The plaintiff argues that he sufficiently proved the Modown was defective under the standard and rationale of Weber, supra. Weber involved an animal dip which contained arsenic. The sons of the plaintiff used the dip to spray their cattle and the cattle all died. The courts, both lower and appellate, accepted as truthful the testimony of the plaintiffs that they had used the dip in accordance with the directions of the manufacturer. Then the court held:

“Under these circumstances, the most reasonable hypothesis for the cause of the cattle’s death is an excessive amount of arsenic in the portion of the dip received from the manufacturer; for otherwise the cattle would not have died.”

In the instant case, however, even the expert witnesses called by the plaintiff, Raymond Dilly and Robert Verret, Acadia Parish County agents, testified they did not know what had caused the problem with the plaintiff’s rice and could not rule out other causes than Modown, including zinc deficiency, as responsible for the damage. They also both agreed with the defendants that zinc deficiency symptoms often did not appear until after the permanent flooding of the rice. Steve Zaunbrecher of C & H, and Gregory Fuselier, a salesman for Mobil, both testified they had never known Mo-down to be the cause of damage such as that alleged by the plaintiff, as did the plaintiff’s expert witnesses. Raymond Dre-ger further testified that the rice plants did not show any of the typical symptoms of an injury caused by Modown.

Defendants’ expert, Dr. Emery Ford Eas-tin, testified that the half-life of Modown is somewhere between 7 to 12 days, and after a 4 to 7-week period there is not enough Modown left even for effective weed control. He therefore was of the opinion that Modown could not be a factor in the damaged areas since there would not be enough Modown left after the permanent flood to cause injury to the rice. He also testified that, due to Modown’s low water solubility, there is no way, other than physical movement of the soil, that the Modown could have moved to and become concentrated in the affécted area.

The trial court.found there were other reasonable hypotheses which could explain the injury, such as zinc deficiency compounded by water stress. Moreover, he found the preponderance of the evidence established that Modown could not have caused the injury to the rice after such a long period.

In reviewing findings of fact, an appellate court may not disturb a determination by the trial court unless it is clearly wrong, considering all of the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). We have carefully reviewed the entire record, and we find no clear error.

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

AFFIRMED.


text:
    August Jean LANDRY, Plaintiff, v. PURITAN INSURANCE COMPANY, Defendant-Third Party Plaintiff-Appellant, v. Alfred T. LUNEAU, d/b/a Luneau’s Mobile Homes Sales and Redman Homes, Inc., Third Party Defendants (Redman Homes, Inc., Appellee).
    No. 82-181.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Brame, Berstedt & Brame, Joe A. Brame, Lake Charles, for plaintiff-appellant.
    Plauche, Smith, Nieset, Michael J. McNulty, III, Lake Charles, for defendant-appellee.
    Raleigh Newman, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

August Jean Landry instituted suit against Puritan Insurance Company on June 16, 1981, seeking to recover damages for the breach of a homeowner’s insurance policy issued by Puritan in favor of Landry, covering damages to the plaintiffs mobile home due to “windstorm”. The plaintiff sought $17,576.00 for damages to his home, plus $7,500.00 in statutory penalties and attorney’s fees for the defendant’s arbitrary refusal to pay the benefits due under the policy.

Puritan Insurance Company subsequently filed a third party demand against Redman Homes, Inc., the manufacturer of the plaintiff’s mobile home, and Alfred T. Luneau, d/b/a Luneau’s Mobile Home Sales, the seller of the home. While Puritan denied any liability to Landry under the insurance policy, it alleged alternatively that it had a cause of action against Luneau and Redman for all damages it might be called upon to pay, due to their negligent manufacturing and setting up of plaintiff’s mobile home. Puritan also asserted that in the event it was required to make any payments pursuant to its insurance policy with Landry, that it had a claim under that policy to be subrogated to all rights which Landry had against Redman Homes.

Redman thereafter filed peremptory exceptions of no right of action and no cause of action against Puritan, arguing that since Landry’s suit was one seeking recovery for damages attributable to “windstorm”, that Redman as manufacturer of the mobile home could not be held responsible. Furthermore Redman alleged that it could not be held liable for any penalties or attorney’s fees that Puritan might be forced to pay, since Puritan alone was responsible for arbitrarily and capriciously failing to pay benefits pursuant to the terms of its policy.

The trial judge maintained Redman’s exceptions of no right of action and no cause of action on January 11, 1982, dismissing Puritan’s third party demand against Red-man with prejudice. From this adverse judgment, Puritan has devolutively appealed to this Court.

There are basically two questions for us to consider in this appeal: (A) Was the trial court correct in maintaining Redman’s peremptory exception of no right of action? (B) Did the trial judge err in sustaining Redman’s exception of no cause of action? We will treat the two issues separately.

EXCEPTION OF NO RIGHT OF ACTION

The source of the peremptory exception of no right of action is Article 927 of the Code of Civil Procedure. This exception is based on the principle of law stated in La.C.C.P. Article 681:

“Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”

In the recent case of Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir.1981), this Court reiterated the long standing principle that the peremptory exception of no right of action “... raises the question of whether a remedy afforded by the law can be invoked by these plaintiffs ...” Furthermore, in Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir.1977), the Court stated:

“The objection of no right of action is used to raise the question of the plaintiff’s interest in the subject matter of the litigation. Stated another way, the objection of no right of action raises the question of whether a remedy afforded by the law can be invoked by a particular plaintiff. It relates specifically to the person of the plaintiff.”

Based on these principles, it is our opinion that the trial judge erred in maintaining Redman’s exception of no right of action. The subject matter of this litigation concerns whether or not Puritan Insurance Company must pay for damages to Landry’s mobile home, and whether or not they can transfer any of their potential liability to the third party defendants. Puritan obviously has an interest in its third party demand and is thereby the proper party to bring the third party action against Redman. Therefore, we find that the exception of no right of action was improperly sustained by the trial court.

EXCEPTION OF NO CAUSE OF ACTION

La.C.C.P. Article 927(4) provides for the peremptory exception of no cause of action. This exception is “... utilized to raise the question of whether the plaintiff’s petition alleges a particular grievance for which the law affords a remedy to anyone ...” Bamber Contractors, Inc. v. Henderson Brothers, Inc., supra.

La.C.C.P. Article 931 states with regard to this exception:

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

Furthermore, for purposes of the exception of no cause of action, all allegations of fact stated by the plaintiff in his petition must be accepted as true. Elliott v. Aetna Casualty and Surety Company, 387 So.2d 1383 (La.App. 3rd Cir.1980), writ denied 393 So.2d 747 (La.1980); Bamber Contractors, Inc. v. Henderson Brothers, Inc., supra.

There are actually two distinct claims of Puritan Insurance Company in its third party petition, even though they are not specifically delineated therein:

(A) The claim of indemnity for those amounts attributable to actual damages to Landry’s mobile home for which the trial court might have held Puritan responsible.

(B) The claim of indemnity for amounts attributable to statutory penalties and attorney’s fees for which Puritan may have been held liable pursuant to La.R.S. 22:658. Although Puritan actually united both of these claims in its prayer by seeking “... complete indemnity of any amount for which Third Party Plaintiff may be cast ...,” we feel that each of them must be separately evaluated to determine whether or not the exception of no cause of action was properly maintained by the trial judge.

Puritan bases the first claim of indemnity on the allegation that the damages to Landry’s mobile home were proximately caused by the negligence of Redman in defectively manufacturing the structure. Redman specifically responded to Puritan’s claim by arguing that the insurance company could not base a cause of action on such grounds. It asserted that the provisions of the insurance policy issued by Puritan to Landry providing coverage for loss due to windstorm specifically excluded the company from any liability for damages attributable to manufacturing defects. Redman claims that it is not responsible for “windstorm” damages, and therefore, that Puritan cannot pass any liability onto the third party defendant.

. Page 2 of the policy, under the Section headed “Perils Insured Against” specifically includes “windstorm” in Section 1(A)(5). Furthermore, in Section B of Part 5 of the policy, the exclusions applicable to physical damage to insured property are listed, the third of which states: “... for damage which is due and confined to defective manufacture, freezing, wear and tear, or mechanical or electrical breakdown or failure, unless such damage is the result of other loss covered by this policy.”

In the case of McManus v. Travelers Insurance Company, 360 So.2d 207 (La.App. 3rd Cir.1978), this Court stated:

“However, the well-established law of Louisiana is that a loss from fire or windstorm means essentially the same as ‘proximate cause’ applied in negligence cases.”

If the trial court were to find that “windstorm” was the proximate cause of the damage to Landry’s home, then by application of the rule stated supra, it could hold Puritan liable in full for the amounts claimed in plaintiff’s petition, regardless of whether or not any manufacturing defects in the mobile home contributed to the loss. Furthermore, by the specific language of the exclusion previously quoted, it is only applicable where damage “... is due and confined to manufacturing defects ...” By literally construing this phrase, it is apparent to us that the exclusion takes effect only where the loss can be exclusively attributed to such defects. If windstorms are deemed to have played any part in causing the damage, the exclusion would be inapplicable.

Under these circumstances, we do not feel that Redman should be able to avoid liability on the basis of an exception of no cause of action. The third party claim of Puritan seeking indemnity for losses attributable to manufacturing defects was properly brought forth and should be referred to trial on the merits.

Plaintiff in his petition sought to hold Puritan liable for $7,500.00 in statutory penalties and attorney fees, pursuant to La.R.S. 22:658, which states in pertinent part:

“... Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection iof such loss, ...”

Puritan, by seeking complete indemnity of any amounts for which it might be cast, clearly intended to pass such costs to the third party defendants.

Counsel for Redman forcefully argues in his brief that his client cannot be held liable for the $7,500.00 in statutory penalties and attorney fees. He claims that such amounts are attributable solely to the conduct of Puritan, and that Redman is not responsible for them.

We find merit in Redman’s argument. It is obvious that Redman had no control over Puritan’s decision making processes and could not influence their refusal to pay Landry’s insurance claim. If Puritan is ultimately found to have acted arbitrarily, capriciously, and without probable cause in failing to honor the plaintiff’s claim, the penalties and attorney’s fees assessable under such circumstances can only be charged to Puritan itself, and cannot be passed on to Redman.

For the above and foregoing reasons, it is Ordered, Adjudged, and Decreed that the judgment of the trial court maintaining with prejudice the peremptory exception of no right of action filed by Redman Homes, Inc. be, and the same is hereby reversed. Furthermore, it is decreed that the judgment of the trial court maintaining with prejudice the exception of no cause of action filed by Redman Homes, Inc. be hereby reversed only to the extent of those amounts attributable to specific damages which were sustained by the plaintiff’s mobile home, and not to those amounts which might be assessable in statutory penalties and attorney fees to the defendant, Puritan Insurance Company.

It is further Ordered, Adjudged, and Decreed that this case be remanded back to the trial court for proceedings not inconsistent with this opinion.

All costs on appeal are to be divided equally between Puritan Insurance Company and Redman Homes, Inc. All costs at trial are to be assessed by the trial judge pursuant to proceedings on remand of this case.

REVERSED IN PART, AND REMANDED.


author: YELVERTON, Judge.

text:
    BANK OF COMMERCE & TRUST COMPANY, Plaintiff-Appellant, v. Nolan J. BOONE, et al., Defendants-Appellees.
    No. 82-192.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Petitjean & Petitjean, Martin Petitjean, II, Rayne, for plaintiff-appellant.
    Shelton & Legendre, Philip Kobetz, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

The only disputed issue presented by this appeal is which party will be cast for appellate costs.

An appeal was rendered necessary in order to correct a substantial error in the judgment as signed. After trial, a judgment was rendered as prayed for by plaintiff on a promissory note, including attorney’s fees as provided in the note. However, the formal judgment prepared by plaintiff’s counsel and presented to the trial court for signature inadvertently failed to provide for attorney fees. The error was not discovered until the delays for application for a new trial had run.

Defendants-appellees did not answer the appeal but filed a brief conceding that the judgment signed did not conform to the judgment rendered, and that plaintiff-appellant is entitled to have the judgment amended on this review. All that appellee would have this court do is order appellant to pay the costs of appeal, since it was appellant’s counsel’s error in preparing the judgment that made the appeal necessary.

La. Code of Civ.Proced. art. 2164 authorizes an appellate court to tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. It is equitable in this case to tax the costs on appeal to appellant.

Accordingly, the judgment appealed from is amended so as to provide 25% of principal and interest as attorney fees. In all other respects, the judgment appealed from is affirmed. Costs of this appeal are to be paid by appellant.

AMENDED AND AFFIRMED.


author: DOUCET, Judge.

text:
    Wynelle H. CLINTON, Plaintiff-Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE CO., et al., Defendants-Appellees.
    No. 82-199.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Antoon, Dalrymple & Beck, Robert L. Beck, Jr., Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendants-appel-lees.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   DOUCET, Judge.

This is a workmen’s compensation suit. The plaintiff-appellant, Wynell H. Clinton, seeks benefits based on the death of her husband, Kenneth Clinton, from the defendants-appellees, American Mutual Liability Insurance Company, et al. The sole issue is whether Kenneth Clinton’s fatal accident and injuries were caused by or occurred within the course and scope of his employment.

Mr. Clinton was employed by John Wil-more, d/b/a Jackson and MacArthur Mobile Station in Alexandria, Louisiana. Mr. Clinton had worked for his employer from 1:00 o’clock p.m. on December 25, until 7:00 o’clock a.m. on December 26, 1980. Mr. Clinton’s duties with the self-service station involved operating the cash register and stocking the shelves with candy and snack food. In other words, little or no strenuous labor was required, although Mr. Clinton was kept quite busy inasmuch as the station was one of the few in the area open on the holiday.

At 7:00 o’clock a.m. on December 26, Mike Wilmore came on duty and relieved Clinton. Mr. Clinton left the gas station at approximately 8:00 o’clock and proceeded to Timmy Hoyt’s Truck Stop. He remained at the truck stop for approximately thirty minutes and then proceeded toward his home at 6647 Fifth Street, Alexandria, Louisiana. Mr. Clinton was found dead behind the wheel of his automobile which had impacted with a culvert beside the roadway of England Drive. No skid marks were observed. Mr. Clinton was found approximately twenty minutes after he left the truck stop.

Employees seeking workmen’s compensation benefits must prove by a preponderance of the evidence that an accident occurred within the course and scope of his employment. Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1982); Cadiere v. West Gibson Products, Inc., 364 So.2d 998 (La.1978).

The plaintiff-appellant alleged that the cause of Mr. Clinton’s accident was his long work hours on the previous night, and that this long work shift caused an incapacitating medical catastrophe or so exhausted Mr. Clinton that he fell asleep at the wheel. However, the trial court found no evidence establishing this theory. There were no witnesses to the accident and no testimony as to what actually occurred.

Dr. E. Hunt Scheuerman, Rapides Parish Coroner, testified that the cause of Mr. Clinton’s death was cardiopulmonary arrest caused by a severe closed head injury, an injury which was probably received when the car struck the culvert. Thus the court found that Mr. Clinton died solely as a result of the injuries he received in the car accident which was totally unrelated to his employment. The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Cadiere v. West Gibson Products Co., Inc., supra.

The trial court also found that Mr. Clinton was not within the course and scope of his employment at the time of the accident. Generally, an accident that befalls an employee who is going to or returning from work does not fall within the course and scope of his employment. Castille v. Sibille, 342 So.2d 279 (La.App. 3rd Cir.1977). The facts show that Mr. Clinton left work, stopped for coffee at Hoyt’s Truck Stop, and then was proceeding home when the accident occurred. Clearly, the accident occurred in a time period so far removed from his employment that his death did not occur within the course and scope of his employment with the defendant-appellee.

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

AFFIRMED.


author: GUIDRY, Judge.

text:
    James Dewey SUIRE, Plaintiff-Appellant, v. Christine Marie JAGNEAUX, Defendant-Appellee.
    No. 82-204.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Michael L. Schilling, Jr., Abbeville, for plaintiff-appellant.
    Michael L. Thibodeaux, Scott, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This is a child custody proceeding. The father, James Dewey Suire, appeals from a judgment awarding custody of his child, Jason Raily Suire, to the mother, Christine Marie Jagneaux Faul.

James Dewey Suire and Christine Marie Jagneaux were married on October 29, 1976. The only child of their marriage, Jason Raily Suire, was born on July 6,1979. In March of 1980, the couple physically separated and by agreement of the parties appellee assumed physical custody of Jason. She retained custody of the child until April 5,1981. The testimony regarding the quality of care she gave to Jason during that period of time is conflicting. The appellee, Mrs. Faul, testified that she cared for Jason for most of the year, and that he stayed with his father only when she was financially unable to pay his babysitter or doctor bills. She testified that Mr. Suire never of his own will came to pick the child up for visits, that he came only when she called him asking him to pick Jason up. Mrs. Faul further testified that Jason did not receive proper care during those periods of time he spent with appellant at his parents’ home. She alleges that the child’s medical needs were neglected, and that the child, who at the time was less than 2lk years old, spent an inordinate amount of time in a lounge owned by Mr. Suire’s parents. She asserts that bringing Jason into the lounge is a bad influence on'a child of such tender years.

Mr. Suire alleges that appellee was emotionally unable to properly care for Jason during the year in which she had physical custody. He testified that from time to time she would call him to have him pick Jason up and that other times, she would simply drop the child off to stay with him with no prior notice. He further testified that on one occasion he picked Jason up at a babysitter’s home when the babysitter had not heard from appellee for a week, and that he kept Jason for another two weeks before she found out that he had the child. Mr. Suire alleges that his failure to visit the child during the time appellee had custody was due to the fact that she refused to tell him where she was living.

When Mr. Suire first contacted an attorney in order to file for divorce, he and the appellee had decided that she would be awarded permanent custody of Jason. However, before the petition could be filed, she asked Mr. Suire to assume custody because she was unable financially and emotionally to handle the child. Thereafter, Mr. Suire had his attorney redraft the petition to reflect the intention of the parties that he be awarded permanent custody of the child. On April 5, 1981, appellee delivered custody of the child to appellant and signed a waiver of service acknowledging receipt of the petition for divorce. On April 7, the petition and waiver of service were filed, and on April 24, a preliminary default was entered. On April 30, 1981, a default judgment was signed, granting the appellant, Mr. Suire, a divorce based on the couple’s living separate and apart for one year, and awarding him permanent care and custody of the child, Jason Suire.

The testimony was also in conflict with regard to a meeting between the parties which occurred on April 30, 1981, just prior to confirmation of the default judgment of divorce. Mrs. Faul testified that the two met alone in the office of Mr. Suire’s attorney, and that Mr. Suire agreed that once appellee was in a better financial position, she could once again have custody of Jason. Appellant testified that he made no such promise, that he only agreed to consider returning the child to the appellee once she was in a better position.

On December 3,1981, the appellee filed a rule to change custody based on Mr. Suire’s alleged neglect and disregard for Jason’s well being. After a hearing on the rule, the trial judge rendered judgment in favor of Mrs. Faul awarding her custody of the child. This is the judgment before us on review.

The first issue to be resolved is whether the trial judge applied the proper criterion in changing custody from the father to the mother. Our review of the record and the trial judge’s reasons for judgment convinces us that he did not. The trial judge based his judgment, in large part, on the meeting that took place between the parties just prior to the rendition of the judgment of divorce. He expressed great concern that appellee was not represented during the divorce proceedings by counsel. He felt that had appellee been represented, the agreement to return custody to her once her condition improved would have been stipulated and made part of the record. He relied on jurisprudence which holds that when a mother surrenders a child because of health or economic reasons and not because she is unworthy, on the condition that she would have custody once she becomes able, she may regain custody once her condition is improved. See Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972).

The law applicable in this and all other child custody cases is set out in LSA-C.C. Article 157 as amended. The article clearly states that the custody of children is to be determined in accordance with the best interest of the child, with no preference given on the basis of the sex of a parent. Thus, the sole criterion applicable in the case at hand is the best interest of the child. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Cooper v. Cooper, 398 So.2d 171 (La.App. 3rd Cir.1981).

In light of the above, it is clear that the trial judge applied an inappropriate standard in changing custody of the child. Nowhere in his reasons for judgment does he state a conclusion as to which custody arrangement would be in the best interest of Jason Suire. Rather, he stated that he was bound by the jurisprudence regarding a mother’s surrender of a child for health or economic reasons, and that he had no choice but to award custody of the child to the mother, since he found her to be financially and emotionally able at the time of trial.

Although the learned trial judge’s reasons reflect the application by him of an inappropriate standard in deciding the issue presented, our careful review of the record indicates that the result which he reached is correct.

The legislature has done away with any legal preference or presumption in favor of the mother in custody disputes. LSA-C.C. Article 157 (supra). The father and the mother stand on an equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability of competing parents in all respects to care for the child. Thornton v. Thornton, 377 So.2d 417 (La.App. 2d Cir.1979). However, in our view, although the legislative amendments eliminate the rigid maternal preference rule, this circumstance cannot alter the real life fact, based on human experience, that it is often in the best interest of children, especially those of tender years, to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors which favor the father. Thornton v. Thornton, 377 So.2d 417 (La.App. 2d Cir.1979); Deese v. Deese, 387 So.2d 671 (La.App. 3rd Cir.1980).

In light of the foregoing principles and all the relevant circumstances in this case, we are convinced that it is in the best interest of Jason Suire to remain in the custody of his mother.

It is true that during the year in which appellee had custody prior to the divorce, she was financially and emotionally unable to provide for all the child’s needs. During that time, however, she was encountering great difficulty in simultaneously holding a job, attending school, and caring for Jason. Under these circumstances, the fact that this 20 year old mother surrendered custody to the father until her position improved does not reflect negatively on her ability or desire to now provide a good home for Jason.

The record shows that appellee is now remarried, and at the time of trial the couple was expecting their own first child. Appellee’s husband treats Jason as if he were his own son. He is providing financial support such that it is no longer necessary for Mrs. Faul to work to support herself and Jason. She is able now to devote all of her time to providing a good home for her family.

The child’s father, Mr. Suire, works from 7 a.m. to 5 p.m. daily, often working overtime. In addition, he works every other weekend. During the time in which he had custody of Jason, he paid his sister to babysit Jason while he was at work. While we are convinced that Jason is properly cared for by Mr. Suire and his family, we feel that the amount of time Jason is able to spend with a natural parent is another factor which favors granting custody to his mother.

The trial judge found, and we agree, that both parents are capable of providing a good home for Jason. However, our careful review of the record convinces us that it would be in the best interest of the child to remain in the custody of his mother, Mrs. Faul.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to appellant.

AFFIRMED.

      . Christine Marie Jagneaux was remarried on June 21, 1981 to Richard B. Faul.

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

        (Amended by Acts 1970, No. 436, § 1; Acts 1977, No. 448, § 1; Acts 1979, No. 718, § 1; Acts 1981, No. 283, § 1.)


author: LABORDE, Judge.

text:
    Alfred THOMAS, et ux., Plaintiffs-Appellees, v. LIGHTHOUSE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 82-207.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Barry E. Edwards, Shreveport, for defendant-appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr. Natchitoches, for plaintiffs-appel-lees.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   LABORDE, Judge.

The plaintiffs-appellees, Alfred and Wanda Thomas, brought suit against Lighthouse Life Insurance Company (Lighthouse), defendant-appellant, to recover daily hospital indemnity benefits provided by Lighthouse to plaintiffs under a whole life policy with daily hospital indemnity benefits.

The insured, Alfred Thomas, was hospitalized for the period of October 29 through November 10,1981, as a result of accidental injuries. For this period of thirteen days, under the Lighthouse policy with a daily hospital indemnity benefit of $35.00 per day, plaintiffs were entitled to benefits of $455.00. After her husband’s accident, Wanda Thomas wrote the defendant requesting that she be provided with a claim form so that application for benefits could be made. This letter included a premium payment for current payment due according to her records. The defendant’s office responded to this request with a letter from its president stating that the policy had lapsed for nonpayment of premium.

After receiving the letter from defendant, Wanda Thomas made a personal visit to the office of defendant in Shreveport and spoke with its president, Mr. Bunyan Jacobs. Mrs. Thomas wanted to know why the defendant had not sent her a claim form, and she also wanted to determine the status of her insurance, since her payment book revealed all premium payments were current. Mr. Jacobs explained to her that their agent, Mrs. Vivian Edwards, had not turned in the premiums. Mr. Jacobs never furnished Mrs. Thomas with a claim form and never asked to see Mrs. Thomas’ premium payment book which clearly showed all payments were made and received by Mrs. Edwards. Mr. Jacobs made no effort to determine if in fact Mrs. Thomas’ version of what took place was correct.

The trial court found that plaintiffs had paid all premiums due and that defendant’s agent failed to report payment of these premiums, and that defendant refused to furnish upon request a proof of claim form. The trial court rendered a judgment against defendant for $455.00, the basic benefit, and $455.00 as penalties for the arbitrary and capricious failure of defendant to pay plaintiffs’ claim, and an additional award of attorney’s fees of $1,000.00. Defendant appeals the ruling of the trial court and plaintiffs answer requesting the court to increase the award of attorney’s fees to $2,000.00.

The basis of defendant’s first specification of error is that the plaintiffs did not file a proof of claim, therefore under the policy Lighthouse is not liable for penalties and attorney’s fees. The record of this case is clear that defendant’s answer was filed on December 18, 1981, and defendant at that time had ample evidence and knowledge that plaintiffs’ policy was in full force and effect.

In Robicheaux v. Calvert Fire Insurance Co., 171 So.2d 264, (La.App. 1st Cir.1965), the First Circuit in quoting from the opinion of the trial court, stated:

[4] “It is well settled by the jurisprudence of this State that when an insurance company denies liability for a claim under an insurance policy, it abandons its rights to compel the claimant to comply with the preliminary provisions of the policy regarding the furnishing of proof of loss.
“There are at least three reasons for this rule. The first is that it is inconsistent for an insurance company to deny liability on a claim, and at the same time insist that it should be furnished with formal proof of it.
“The second is that the law does not compel one to do a vain thing as a condition precedent to the bringing of an action.
“The third is that the insurance company is presumed to have been sufficiently acquainted with the merits of the claim to support its decision in denying it, otherwise it could' not have done so.”

. We conclude that defendant’s first specification of error lacks merit.

The second assignment of error made by defendant-appellant is that the trial court committed error of law in finding defendant’s failure to pay this claim to be arbitrary and capricious. This is a factual determination made by the trial court, which must be given great weight by this court unless manifest error can be found in the record.

A review of the records indicates that Mr. Jacobs could have easily obtained the information necessary to validate Mrs. Thomas’ claim, but instead, he chose to ignore her claims and refused her request for a proof of claim form. Mr. Johnny Poque, defendant’s administrative assistant, testified that if he had been present at the Lighthouse Insurance Office when Mrs. Thomas visited, he would have seen that she received a claim form.

It is obvious that this is an admission that Mr. Jacob’s actions were arbitrary arid capricious, particularly in light of the company’s practice in not requiring its own agents to remit premiums with a greater degree of frequency or at least attempting to investigate this entire matter until after plaintiff filed a lawsuit.

Defendant contends in a suit for benefits in the amount of $455.00, an award of $1,000.00 for attorney’s fees is excessive. The amount to be awarded as attorney’s fees where an insurer has been held to be arbitrary and capricious rests largely with the discretion of the trial court. Humphries v. Puritan Life Insurance Company, 311 So.2d 534 (La.App. 3rd Cir.1975). This court can find no abuse of discretion in the award of $1,000.00 attorney’s fees in this, case.

In answering the appeal, appellees request the court to increase the award of attorney’s fees from $1,000.00 to $2,000.00 for the extra work performed on this appeal. It is this court’s practice to award attorney’s fees, when proper for preparation for an appeal, in the amount of $750.00. We award plaintiffs additional attorney’s fees in the amount of $750.00.

For the above and foregoing reasons, the decision of the trial court is amended to award plaintiffs additional attorney’s fees in the amount of $750.00. In all other respects, the judgment of the trial court is affirmed at appellant’s costs.

AMENDED, AFFIRMED AS AMENDED.