author: HALL, Judge.

text:
    Hattie Markham HORNEMAN et al., Plaintiffs-Appellees, v. Clifford Keith GILES, Defendant-Appellant, Billy Ross Robinson, Intervenor-Appellant.
    No. 14046.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En Banc Rehearing Denied April 3, 1980.

      Thomas & Burchett by Dewey E. Bur-chett, Jr., Bossier City, for defendant-appellant, Clifford Keith Giles.
    Billy Ross Robinson, Bossier City, in pro. per.
    Wallace & Southerland by James D. Southerland, Benton, for plaintiffs-appel-lees, Hattie Markham Horneman and O. L. Horneman.
    Waddell & Kelly by Robert P. Waddell, Shreveport, for plaintiff-appellee, Henry P. Hutson.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   HALL, Judge.

In this boundary action (LSA-C.C.P. Arts. 3691-3693; LSA-C.C. Arts. 784-796), the defendant and the intervenor (defendant’s vendor and mortgagee) appeal from a judgment of the district court establishing the boundary between plaintiffs’ property in Section 16, T 23 N, R 14 W, and defendant’s property in Section 15, in accordance with a survey prepared by plaintiffs’ surveyor, Albritton. We affirm'the judgment for the reasons set forth in the trial court’s written reasons for judgment. The trial court found that the methods employed by the plaintiffs’ two surveyors, who started from established section corners in the township and followed the original governmental plat and notes, to be more acceptable than the methods used by the appellants’ three surveyors who based their surveys on occupation lines, fences, and general evidence of boundary in the immediate vicinity, without tying their surveys into any established section corners.

Appellants argue on appeal that the trial court’s decision was in error because the Albritton survey was hastily done without a full crew, the established corners from which his survey commenced were too far away from the subject property to be of value, plaintiffs’ two surveyors differed from each other while appellants’ three surveyors were all in agreement as to the boundary line, and the acceptance of the Albritton survey would cause the boundaries of other parties in the vicinity to be relocated or seriously altered.

In establishing a disputed boundary along a section line, it is the surveyor’s duty to reproduce the lines of the original government survey as originally run, as closely and accurately as possible. Smith v. Almond, 157 La. 265, 102 So. 330 (1924); Bodcaw Company v. Spurlin, 341 So.2d 1266 (La.App. 2d Cir. 1977), writ refused 344 So.2d 381 (La.1977). If an established corner or monument can be found within the township, then that corner should be used as a starting point. Fournet Land Co. v. Martin Fish Co., 184 La. 537, 166 So. 666 (1936). See also LSA-R.S. 50:125 and 50:154.

In locating the section line between Sections 16 and 15 the surveyors directed their efforts primarily toward locating the common corner between Sections 9, 10, 16, and 15. Albritton used two established section corners as starting points. One was across the Red River in Caddo Parish and had been established as the result of litigation, being the common corner of Sections 12, 7, 13, and 18, three miles west of the disputed corner. The other established corner was the common comer of Sections 27, 26, 34, and 35, three miles south and one mile east of the disputed corner. Using these starting points and following the government field notes, Albritton located the common corner of Sections 9,10,16, and 15 at a point approximately 132 feet east of the corner as arrived at by appellants’ surveyors.

Plaintiffs’ other surveyor, Barber, tied his survey into the common north corner of Sections 5 and 4 at the Arkansas state line, two miles north and one mile west of the disputed corner, as well as to the common corner of Sections 27, 26, 34, and 35 to the south. In running his survey Barber yielded to a prior measurement he had made for an oil company that conformed to occupation lines, with his location of the disputed corner falling approximately 40 feet west of the Albritton corner. Barber testified that he had checked Albritton’s survey as compared with his own and the governmental notes and he found it to be accurate.

Appellants’ surveyors, Burchett, Demopu-los & Ferguson, Inc., and Craft, all commenced their surveys at what was pointed out to them as being the disputed corner, an old fence corner where at one time or another there had been an iron pipe. Bur-chett’s survey was not tied into any other monument. Demopulos & Ferguson’s survey correlated with two other iron pipes at the corners of defendant’s property. Craft’s survey correlated with occupation lines, fences, and roads in the area. None of the appellants’ surveys were tied into any established section corners.

Although Albritton made his survey with only one helper it is not established that his measurements were inaccurate; to the contrary, his measurements were verified by Barber. Although the established corners from which he started were a considerable distance from the disputed corner, giving rise to a greater possibility of error than starting from a closer corner, these were the nearest established corners and correlations were made between the starting points and the disputed corner.

The fact that the Albritton and Barber surveys crossed Red River does not detract from their validity. Appellants’ surveyor, Craft, conceded that it is possible to survey across a river and the government field notes show that the original government surveyors surveyed across the river.

Appellants’ argument that courts are reluctant to give effect to surveys that would relocate or seriously alter the boundaries of parties other than the original plaintiff and defendant, Gibson v. Johnson, 244 So.2d 713 (La.App. 2d Cir. 1971), writ refused 258 La. 347, 246 So.2d 197 (1971), is valid but must yield to the establishment of a section line boundary in accordance with the original government survey.

The fence corner that appellants’ surveyors accepted without verification as the common corner of Sections 9, 10, 16 and 15, was not an established corner. No evidence in the record supports a finding that it was established as such by governmental survey or by long-standing recognition of owners as an established section or boundary corner.

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

Affirmed.


source: Caselaw Access Project

author: McClendon, Judge.

license: Public Domain

text:
    Charlie CHARLESTON, Jr., Plaintiff-Appellant, v. NABORS TRAILERS, INC. et al., Defendants-Appellees.
    No. 14048.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      James E. Franklin, Jr., Shreveport, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by D. Scott Brown, Mansfield, for defendants-appellees.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   McClendon, Judge.

Plaintiff appeals from a trial court judgment rejecting his claim for workmen’s compensation benefits. We affirm.

The trial court found that plaintiff had failed to establish by a preponderance of the evidence that he in fact sustained an injury while acting in the course and scope of his employment. The sole issue on appeal is whether the trial court erred in making this determination.

In West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La. 1979), the Supreme Court set forth the applicable legal principles governing the burden of proof necessary to establish a work-related injury:

In a workman’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence — i.e., “the testimony, as a whole, must show that more probably than [not] the employment accident caused the disability.” Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La. 1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La. 1973).
In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937). (In each of these instances, the trial court’s finding of fact was reversed due to its failure to observe this principle.
See also: Pugh, Louisiana Evidence Law 138-39 (1974); Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429 (1949); Miller v. Hartford Live Stock Co., 165 La. 777, 116 So. 182 (1928).

At the time of the alleged accident, plaintiff was approximately 23 years old and had worked at defendant’s place of business for two years. He testified that on July 17, 1978, he was transporting a bottle of argon gas on a dolly and was proceeding around the rear of a truck when it suddenly began to back up. In his attempt to avoid being struck, he stepped into a ditch and twisted his knee.

However, the remainder of the testimony contradicts that of plaintiff in many respects.

Plaintiff testified that the injury occurred at approximately 11:00 a. m. on July 17 and he reported to the doctor that afternoon. His time card shows to the contrary that he worked the remainder of the day on July 17 and checked out at 9:35 a. m. on July 18th.

Plaintiff also testified that he told several other employees he had an accident on the job. It was shown at trial that two of these men were not even employed by defendant at the time of the alleged accident. Three other employees testified plaintiff told them he was having trouble with his knee, but never indicated he had been injured on the job.

It was also shown that plaintiff had a previous injury to the left knee after plaintiff denied having injured that knee prior to July 17, 1978. Significant is the fact that plaintiff had been injured twice before at defendant’s place of business and thus knew the procedure for making an accident report and obtaining a doctor’s slip, yet he failed to do this on July 17th.

These contradictions of, and discrepancies in, the testimony of the claimant are circumstances “casting suspicion on the reliability of this [claimant’s] testimony.” West, supra.

In order to establish a work-related accident solely by the testimony of the claimant in a workmen’s compensation case, that testimony must be found to be reliable (free of suspicion) by the trier of fact.

The judgment of the trial court is therefore affirmed at appellant’s cost.


text:
    Exie RUSSELL, Plaintiff-Appellee, v. LLOYD'S TOWING SERVICE, INC., et al., Defendants-Appellants.
    No. 14050.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En Banc Rehearing Denied April 3, 1980.

      John Paul Woodley, Shreveport, for defendants-appellants.
    Jack & Jack by Paul W. Cary, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and McCLEN-DON, JJ.
   McClendon, Judge.

Defendant appeals from a trial court judgment awarding plaintiff $3,217.81 for damages sustained as a result of an accident which occurred when plaintiff’s truck overturned while being towed by defendant’s employee. We amend the amount of damages and affirm.

On September 1, 1977, plaintiff’s pulpwood truck was being driven east on 1-20 by plaintiff’s employee when it experienced difficulty with the left rear wheel and axle. As the truck was fully loaded, it was necessary to unload the wood in order to attempt to repair it. When approximately half the wood was unloaded, a police officer instructed the employee to reload the wood because it would be dangerous to pile it on the shoulder of 1-20, especially during the late afternoon peak traffic period. It was reloaded. The officer then asked headquarters to call a no-preference wrecker to tow the loaded truck. Defendant’s wrecker truck was called to the scene. The wrecker driver lifted the heavily loaded rear end and began towing the truck backwards. While attempting a right-hand turn off the entrance ramp, the truck turned over and caught fire.

The trial court awarded damages for loss of the pulpwood, towing expense, repairs to the truck, and loss of earnings while the truck was being repaired.

Defendant contends on appeal that the evidence shows that defendant’s wrecker driver was ordered by the police officer to tow the truck and he was simply following orders.

However, there is substantial evidence in the record to support a finding that the driver undertook the responsibility of towing the truck and that he was under no compulsion to do so. The police officer testified that he did not order the driver to tow the truck. When asked what would have happened if he had refused because it was too dangerous, the driver replied, “Somebody else would have gotten it.”

Defendant also contends that plaintiff was contributorily negligent or assumed the risk in asking the wrecker driver to tow the top-heavy truck after the wrecker driver told him it was dangerous and he would not be responsible.

Plaintiff contends, on the other hand, that the evidence shows he expressed concern over the danger of the wrecker pulling the load, but the wrecker driver said he could handle it and took over responsibility.

There is substantial evidence to support the conclusion of the trial court that the wrecker driver undertook this responsibility even after plaintiff and his two employees expressed concern over his ability to tow the loaded truck. The driver, who had been a tow truck driver for five years, apparently assured plaintiff of his ability and he himself testified he towed the truck even though he knew it was dangerous.

Defendant also complains about the amount of damages awarded. The accident occurred on September 1, 1977, and apparently the truck was towed by defendant to defendant’s place of business. The truck was then towed by another towing service to Red River Chevrolet. However, repairs were not commenced until September 26, and not completed until October 13. Defendant. contends that he should only be liable for plaintiff’s loss of earnings from September 26 to October 13.

Loss of use is compensable, during the period of time required for repair of the vehicle in the exercise of proper diligence. Hayes v. Allstate Insurance Co., 368 So.2d 1214 (La.App. 3rd Cir. 1979). Neither the repairman’s testimony nor any other evidence explained what necessitated a 25-day delay in commencing the repair of plaintiff’s truck or what, if any, efforts plaintiff made to expedite the beginning of the work. Thus, plaintiff has failed to prove these 25 days should be included within the time reasonably required for completion of repairs in the exercise of proper diligence. Accordingly, the damages for loss of use must be computed from September 26 through October 13. Fourteen work days are included in this pbriod and plaintiff’s proven loss of earnings was $70 per day. Therefore, plaintiff’s loss of earnings is $980.00.

We also agree with defendant’s other contention that he should not be liable for loss of earnings for the period of time plaintiff’s truck was under repair for damages which were not caused by the accident.

According to plaintiff’s exhibit P-3, repair of the truck’s left rear wheels required 17 hours. It took a total of 64.6 hours to repair the whole truck, including the rear wheels. Therefore, during 26.32% of the time the truck was under repair, the damage that was being repaired was not caused by the accident. The truck was actually under repair from September 26 through October 13, a total of 14 working days. 26.32% X' 14 = 3.68 days spent on repairing the wheels. Plaintiff’s loss of earnings was $70 • per day. $70 X 3.68 = $257.60. Therefore, the total loss of earnings must be further reduced by this amount.

The judgment is amended to award plaintiff $722.40 for loss of earnings, and affirmed in all other respects. Costs are to be paid by appellants.

      . Exhibit P-2 sets forth the figures upon which plaintiff based his claim for $1800 loss of earnings. There is an error in the mathematical calculation which, if corrected, would increase the claimed loss to $70 per day, or $2100 total. An objection to- the admissibility of P-2 insofar as it enlarged the pleadings was sustained and, therefore, plaintiff is limited to the $1800 set forth in Paragraph 9 of his amended petition, but under our holding the $1800 will not be exceeded.


text:
    I. D. SMITH, Plaintiff-Appellee, v. W. A. McMICHAEL, Jr., et al., Defendants-Appellants.
    No. 14062.
    Court of Appeal of Louisiana,' Second Circuit.
    Feb. 25, 1980.

      Wilkinson, Carmody, Peatross & Caverlee by John O. Hayter, III, Shreveport, for defendants-appellants.
    Beard, Arceneaux & Sutherland by Roy L. Beard, Shreveport, for plaintiff-appellee.
    Before HALL, JONES and McCLEN-DON, JJ.
   McClendon, Judge.

Defendants appeal a trial court judgment awarding plaintiff $1500, together with interest from March 1,1978 until paid; recognizing and maintaining plaintiff’s lien on defendant Loe’s property; allowing $12.18 for preparing and filing the lien; and rejecting defendant’s reconventional demand for $720. We amend and affirm.

Defendant W. A. McMichael, Jr., contracted with defendant Loe Marine Supply Company, Inc., to construct a building on a three-acre tract of land owned by Loe. McMichael contracted orally with plaintiff to build a road to the facility at $13.00 per lineal foot and to clear and “grub” the tract at a cost of $3,500.

Plaintiff had been in the asphalt paving and dirt contracting business for 30 years and had done work for defendant McMicha-el for many years. In addition to the controversial site grading done over a period of three days in December of 1977, plaintiff did five or six other phases of work for McMichael in the area for which he presented invoices totaling over $25,000 in late February of 1978. All of these, including the above mentioned road building and clearing, were paid without question. The single exception was the $1,823.00 invoice for site grading of 0.9 acre of the three-acre tract where defendant Loe Marine’s building was actually constructed. There were no written contracts or agreements for any phase of the work.

According to plaintiff, the total bill with separate invoices on each part was sent defendant on February 28, 1978, and on March 3, 1978 defendant called plaintiff to his office where they went over all the invoices. At that time defendant told plaintiff he was not going to pay the $1823 site-grading invoice because plaintiff had left two stumps. Plaintiff testified that the clearing and grubbing as well as the site grading had been completed since about December 7, 1977 with no complaint or request to correct any deficiency. He estimated that he had cleared between 700 and 1000 trees from the entire three-acre tract and could easily have left tap roots in the ground on more than two stumps since some of the pine tap roots were six feet or more deep in the ground and often broke off below the surface when the stump or tree was pushed over.

Defendant contended that he never authorized plaintiff to grade the site and had intended to ask several contractors to submit bids on the site grading of the 0.9 acre building site.

An affidavit of lien was filed and plaintiff filed suit to recover under the lien. Defendant filed a reconventional demand for $720 representing the cost of removing nine stumps which plaintiff allegedly failed to remove under his contract to clear and grub.

The trial court found that because there was no meeting of the minds plaintiff was entitled to recover under the theory of quantum meruit. Plaintiff was awarded judgment as indicated above herein.

The first issue on appeal is whether the trial court abused its discretion by awarding plaintiff $1500 for the cost of the site grading.

Defendant McMichael contends that the trial court’s award to plaintiff of $1500 is excessive, because defendant did not benefit by plaintiff’s work to the extent of $1500. He further contends that the site grading done by plaintiff was only a portion of the grading that had to be done on the 0.9 acre building site and had it all been at one time it could have been done for much less.

In this connection the evidence reflects that defendant knew plaintiff had site graded the 0.9 acre in December of 1977 and that the grading did not include the parking area leveling in front or the sloping to the rear of the building. Despite this, defendant did not protest to plaintiff or request that he do more. Instead he pro-., ceeded in March of 1978 to pour the building slab and construct the building. After the building was finished, defendant then employed another contractor to prepare the parking area, which entailed moving dirt from the front, around the side of the building to the rear where it was spread and sloped. The charge for this was $1300.00 and obviously was more expensive to do with the building in place.

Plaintiff testified without contradiction that in the site grading of the 0.9 acre alone he had to remove dirt from the high end of the site to a depth of some four and one-half feet and shift that dirt to the low end, because there was approximately a nine-foot difference in elevation. Hé estimated a total of 2200 cubic yards were cut from the higher end and transferred to the low end of the lot in order to level it.

Defendant’s own witness, Mr. Herrin, Vice-president of H & H Construction Company, who did or supervised the additional grading after construction in May of 1978, admitted that he would have charged about $1500 for moving 2200 cubic yards of dirt with a dozer, which is what plaintiff did, except that he had to use more equipment than just a dozer because the ground was very hard at the time.

The following language of the court in Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir. 1976), is pertinent to the issue here:

Generally, the plaintiff who establishes his right to be compensated on quantum meruit should recover as much as he reasonably deserves for his services, or for the labor and materials which he has furnished for the defendant’s benefit. The amount which he can recover on quantum meruit, however, is subject to a double limitation: (1) Plaintiff cannot recover more than the actual value of the materials and labor furnished for defendant, including a fair profit; and (2) plaintiff cannot recover more than the amount defendant was enriched by his furnishing of labor and materials.

There is ample evidence in the record from which the trial court could have concluded the requirements set forth in Swiftships were met, and we believe the $1500 award is proper.

Defendant further contends that under the clearing and grubbing contract plaintiff should have removed all of the stumps to at least two feet below the surface. He contends he had to remove nine stumps in the foundation area which plaintiff failed to take out to that depth, at a cost of $720 and should recover this on the reconventional demand. Mr. McMichael testified that he based this figure on four to five hours per stump and backhoe rental, but failed to give any hourly rental rate.

The trial judge rejected this demand because defendant did not first give plaintiff an opportunity to get the stumps out. However, plaintiff had already told defendant he would not do any more work for him after defendant refused to pay the one invoice, so defendant was justified in not calling plaintiff to do the work. Although we do not agree with the trial judge’s reason for rejecting this demand, we believe defendant failed to prove his claim by a preponderance of the evidence. He offered no time records or other supporting data. Absent such a showing, we must uphold the trial judge’s denial of this demand.

Defendant’s third contention is that the trial court erred in awarding plaintiff interest from March 1,1978, the date the invoice was submitted to defendant.

The well-established jurisprudence is that in a suit in quantum meruit, interest is only allowed from the date of the final judgment. Succession of Butler, 294 So.2d 512 (La.1974).

The judgment of the trial court is therefore amended to award interest from the date of judgment and is affirmed in all other respects. Costs of this appeal are assessed to appellant.


author: STOKER, Judge.

text:
    Mrs. Mary Jane MORASCO, Plaintiff-Appellant, v. Herbert E. METCALF, Defendant-Appellee.
    No. 7408.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    P. Michael. Maneille, Lake Charles, for plaintiff-appellant.
    Quirk, Handley & Lavern by John F. Lavern, Lake Charles, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Mary Morasco, brings this appeal from a judgment of the district court sustaining defendant’s exception of prescription.

Mrs. Morasco obtained a judgment of divorce from defendant, Herbert Metcalf, on October 14, 1971. This judgment awarded plaintiff custody of the two children of the marriage and child support at the rate of $100.00 per month.

On February 9, 1979, plaintiff filed this rule against her former husband seeking the sum of $1,780.00, the amount of support allegedly unpaid from September, 1974 to February, 1979. Plaintiff also requested an increase in child support. Defendant filed an exception of prescription as to any child support arrearages due for a period exceeding three years.

At the trial, an increase in child support was stipulated by the parties. The parties also stipulated that if the exception of prescription was sustained, plaintiff would be entitled to recover only $1,140.00 of the $1,780.00 in child support arrearages due.

Following a trial, the trial judge, citing LSA-Civil Code article 3538, sustained defendant’s exception of prescription. Judgment was rendered in favor of plaintiff making executory child support arrearages in the sum of $1,140.00.

Plaintiff contends the trial court erred in sustaining the exception of prescription because child support payments made by defendant constituted an acknowledgment of his support obligation, interrupting the running of prescription.

The main issue presented by this appeal is the effect of the making of child support payments on the running of prescription.

LSA-Civil Code article 3538 provides, in pertinent part:

The following actions are prescribed by three years:
That for arrearages of rent charge, annuities and alimony, or of the hire of movables and immovables .
This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given, or an action commenced.

The jurisprudence has held that the prescription of Article 3538 is applicable to child support payments. Arabie v. Arabie, 230 La. 1036, 89 So.2d 890 (1956). This jurisprudence is clearly applicable in the present action.

In Duncan v. Roane, 127 So.2d 191 (La. App. 3rd Cir. 1961), this court held that alimony payments made pursuant to a judgment ordering support, interrupted the running of the three year prescription of LSA-C.C. article 3538.

In Duncan, a judgment was rendered on March 17,1953, decreeing a separation from bed and board and awarding the wife $150.00 for her support and for the support of two children. This support award was not modified until November 6, 1957, when the wife “filed a petition praying that a rule issue directing the defendant [husband] to show cause why the original judgment rendered should not be amended . (3) to fix the arrearages in alimony and support at $6,625.00 and make that judgment executory.”

This court concluded:

. the prescription of three years provided in Article 3538 is applicable in this case, even though the payments which defendant had been ordered to make to his wife were partially for the support of his minor children. Since more than three years elapsed from the time the judgment ordering the payment of alimony and support abated until a demand was filed by plaintiff for the arrearages, plaintiff’s action must be held to have been lost by prescription of three years unless prescription was interrupted by one of the methods provided by law. ., we feel that the running of prescription has been interrupted.

The court writing in Duncan, felt that payments in December, 1954, of $50.00 and in December, 1955, of $200.00 constituted an acknowledgment of defendant husband’s indebtedness to the wife and interrupted the running of prescription provided by LSA-C.C. article 3538. Plaintiff instituted an action to recover the arrearages within three years after prescription was last interrupted, so this court held there was no merit to the plea of prescription filed by plaintiff.

Agreement with this reasoning has been shown by our brothers in the First and Second Circuit Courts of Appeal. In Davis v. Contorno, 234 So.2d 470 (La.App. 1st Cir. 1970) the First Circuit cites Duncan as “authority for the rule that payments pursuant to an alimony judgment constitute acknowledgment of the alimony obligation sufficient to interrupt the prescription provided for by LSA-R.C.C. Article 3538.” In Manning v. Manning, 259 So.2d 358 (La.App. 2nd Cir. 1972), the Second Circuit cited Duncan and said, “It is the law of Louisiana that payment interrupts prescription of a claim for alimony.”

Appellee in the instant case, Herbert E. Metcalf, cites Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954). In that case the court stated, “. . . the liability of defendant in rule for payment of past-due alimony should not exceed 156 weeks, . which amount is subject to credit of $50.00, a payment admittedly received [by plaintiff] in July 1952, shortly before this proceeding was filed.”

Pisciotto is distinguishable from the case here on appeal. In the Pisciotto case there was a payment made in July, 1952, shortly before the proceeding for unpaid alimony was filed on August 14,1952. The Supreme Court in its decision did not consider whether or not this July payment interrupted the running of prescription for the apparent reason that said payment was made very close in time to the date the rule was filed. Because the Supreme Court did not rule on whether or not the July payment interrupted the running of prescription, the Pisciotto case cannot be used to support an argument that the three-year prescription period under Article 3538 is not interrupted by a payment of support.

In the present action, it was stipulated by the parties that at no time since this support order was rendered did three years lapse between the making of support payments. The support payments made by defendant constituted an acknowledgment of his support obligation, interrupting the three-year prescription of Article 3538. Because of the legal interruption, or interruptions, plaintiff’s right to have made execu-tory child support arrearages dating from September, 1974, to February, 1979, had not prescribed when this suit was filed.

For the above and foregoing reasons, the judgment of the trial court should be reversed. Plaintiff is entitled to judgment making executory the sum of $1,780.00, the amount of child support arrearages due from defendant from September, 1974, to February, 1979. We also award the attorney’s fees for both the trial and appeal court to plaintiff-appellant in the amount of $1,000.00 as provided for by LSA-R.S. 9:305.

DECREE

For' the reasons assigned, the judgment appealed is reversed, and it is now ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Mrs. Mary Jane Morasco, and against Herbert E. Met-calf, making executory the sum of $1,780.00, which is the amount of child support arrearages owed by defendant for the period from September, 1974, to February, 1979, together with legal interest calculated from the due date of each alimony payment as fixed in the original judgment. It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against defendant, Herbert E. Metcalf, in the sum of $1,000.00 in attorney’s fees as provided for by LSA-R.S. 9:305, plus interest on this amount at the rate of 7% per annum from the date of this judgment until paid. All costs of this proceeding, including the costs of this appeal, are assessed against defendant, Herbert E. Metcalf.

REVERSED AND RENDERED.

      . Miller v. Miller, 321 So.2d 318 (La.1975).

      . Bruner v. Bruner, 373 So.2d 971 (La.App. 2nd Cir. 1979).


author: DOUCET, Judge.

text:
    Billy R. BABINEAUX, Plaintiff-Appellant, v. FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Town of Breaux Bridge and Harold Breaux, Defendants-Appellees.
    No. 7435.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    William H. Lambert, Lafayette, for plaintiff-appellant.
    Landry, Watkins & Bonin, Jacob D. Landry, New Iberia, for defendants-appellees.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

Billy R. Babineaux brought this tort suit to recover damages for personal injuries sustained in an automobile accident. Harold Breaux, the Town of Breaux Bridge, and Firemen’s Insurance Company of Newark, New Jersey were made defendants in the suit. The case was tried before a jury, which found that plaintiff had been injured and that $704.05 was sufficient to compensate him for that injury. Defendants having stipulated to their liability prior to trial, judgment was rendered in favor of plaintiff and against Firemen’s Insurance Company of Newark, New Jersey in that amount. Plaintiff appeals.

The only issue on appeal is whether the trial court abused its discretion in limiting plaintiff’s recovery to $704.05.

The accident giving rise to this suit occurred on March 11, 1977 in Breaux Bridge, Louisiana. Immediately prior to the accident, plaintiff was driving his automobile on St. Charles Street. He was following a flatbed truck driven by Harold Breaux and owned by Breaux’s employer, the Town of Breaux Bridge. Breaux brought the truck to a stop behind several school buses that were parked on St. Charles Street, waiting to load students when classes were dismissed. Plaintiff stopped his car approximately one to three feet behind the truck. Breaux decided to take an alternate route, and in attempting to extricate himself from his position behind the buses, he backed into plaintiff’s automobile, pushing it backward about 15 feet.

Plaintiff testified that immediately following the accident he began to feel pain in his lower back and neck. He was taken to Gary Memorial Hospital in Breaux Bridge, where he was examined by Dr. Ernest Yon-gue. Dr. Yongue testified that the examination revealed muscle spasms in plaintiff’s neck and lumbar areas. He felt that the spasms were probably a result of the accident.

After the examination, Dr. Yongue prescribed a muscle relaxant and a sedative and sent plaintiff home with instructions to rest in bed. Plaintiff was subsequently seen and treated by Dr. Yongue on three occasions, March 14, March 15, and March 22, 1977. During the course of his treatment by Dr. Yongue, a cervical collar and physical therapy were also prescribed.

When Dr. Yongue examined plaintiff last on March 22,1977, he found that the spasms in plaintiff’s neck had been reduced considerably and the spasms in his back had disappeared. He had full range of motion in his neck, although he complained of discomfort. Based on his findings at that time, Dr. Yongue believed that plaintiff’s disability would not be permanent or prolonged.

On April 15,1977, plaintiff was examined by Dr. Virgil J. Bryant, a chiropractor. He was still complaining of pain in his neck and back at that time. Dr. Bryant testified that a complete examination of plaintiff on April 16,1977 revealed that he had restricted range of motion in his neck and back. He felt that plaintiff’s abnormal neck condition had been caused by the accident. Plaintiff was treated by Dr. Bryant 62 times after the initial examination. The total charges for those treatments came to $2,024.00.

Dr. Bryant’s opinion of plaintiff’s condition was disputed by Dr. Fred Webre, an orthopedic surgeon. Dr. Webre testified that he examined plaintiff on August 10, 1977 and December 8, 1977. The results of both examinations were negative. There were no muscle spasms, and plaintiff was able to move his neck and back through all ranges of motion. Dr. Webre believed that by August 10,1977, plaintiff had completely recovered from any injury sustained in the accident.

In awarding damages, the jury apparently rejected the testimony of plaintiff and Dr. Bryant, concerning the need for the chiropractic treatments, and found that their cost was not recoverable. Our review of the evidence in the record, including the testimony of the two medical doctors, has not shown that finding to be manifestly erroneous.

The other expenses claimed by plaintiff total $354.05. Thus, in awarding $704.05, the jury apparently allowed $350.00 as compensation for plaintiff’s pain and suffering. Plaintiff contends that that amount is inadequate and should be increased.

Before an appellate court can disturb a trial court’s award of general damages, a careful analysis of the facts must clearly show that the trial court abused its “much discretion” in making the award. LSA-C.C. Art. 1934; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979).

The evidence in the record before us indicates that plaintiff suffered only minor injuries as a result of the accident. Dr. Yongue testified that plaintiff’s condition had improved considerably by March 22, 1977, eleven days after the accident. Dr. Webre testified that on August 10, 1977, approximately five months after the accident, plaintiff had completely recovered. As we noted earlier, we cannot say that the jury was clearly wrong in accepting that testimony, while apparently rejecting the contradictory testimony of plaintiff and Dr. Bryant.

Under these circumstances, we find no abuse of the trial court’s discretion. Accordingly, we affirm the judgment appealed by plaintiff.

All costs of this appeal are assessed against plaintiff.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Billie Ann PRUDHOMME, Plaintiff-Appellee, v. Charles S. PRUDHOMME, Defendant-Appellant.
    No. 7454.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Charles W. Seaman, Natchitoches, for defendant-appellant.
    Domengeaux & Wright, Jack C. Fruge, Jr., Lafayette, for plaintiff-appellee.

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

Defendant appeals from a judgment increasing his obligation of child support from $200.00 monthly to $375.00 monthly, urging error because, (1) there is no evidence in the record of a change in circumstances since the initial decree either in the needs of the children or of the father’s ability to pay; and, (2) the increase represents a failure on the part of the trial court to consider the totality of all circumstances.

The parties to this proceeding, after being married some six years, were divorced in May of 1974. The divorce decree awarded permanent custody of the two children born of that marriage, Jim, then age 6, and Richard, then age 5, to plaintiff and ordered defendant to pay $200.00 monthly for support of the children. At the time of divorce plaintiff was employed as a secretary and earned approximately $500.00 per month. Both parties subsequently remarried.

Plaintiff, now Mrs. Harold Pierce, testified that following her remarriage she gave birth to a child, who is now two years old. She ceased her employment shortly prior to the birth of this child and has not worked since, devoting her time to the care of her three children and her husband. Mr. Pierce provides the sole support for the Pierce household other than the $200.00 monthly payment received from defendant. The record reflects that the Pierce household has a monthly net income, including the $200.00 support payment received from Mr. Prudhomme, of approximately $2062.00 and incurs monthly living expenses totaling approximately $2800.00. Included in the monthly expenses of the Pierce household is an educational expense of $200.00 monthly incurred on behalf of young Jim Pru-dhomme who requires special schooling. In addition Mr. and Mrs. Pierce are indebted on a demand obligation to a local bank for extra-ordinary medical and dental expenses incurred on behalf of young Richard.

Mr. Prudhomme, who also remarried, testified that there are five persons in his household, a minor daughter, issue of his first wife who died; and, the present Mrs. Prudhomme and two children of her marriage to her first husband, one a minor and the other a major. The latter child, age 20, was, at the time of trial recuperating from injuries suffered in an automobile accident and dependent upon Mr. and Mrs. Pru-dhomme for support. Mr. Prudhomme provides the sole support for his household, other than a $145.00 per month social security payment received by his minor child. The Prudhomme household has a monthly income, including the social security payment received by the Prudhomme minor child, of approximately $1978.00 and monthly living expenses of approximately $1800.00.

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. LSA-C.C. Articles 227, 230 and 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La.1973); Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir. 1979). The customary duties performed and services rendered by a mother on a daily basis contribute substantially to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976). 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. In essence the court must consider, in calculating the award to be made, the totality of all pertinent circumstances. Marcus v. Burnett, supra.

Although we concede that absent a showing of changed circumstances an initial award of child support should not be altered (Ducote v. Ducote, supra) we conclude, contrary to appellant’s assertions of error, that the record in this case does show a change of circumstances.

Since rendition of the initial award in this case, some six years ago, there has been a drastic increase in the cost of living and with the passage of time the ordinary and special needs of the children have become greater. Additionally, the record clearly supports a finding that the ability of both parents to contribute to the support of their children has increased.

It is obvious from the record that plaintiff, in addition to the services which she performs daily as a mother, contributes substantially, through the earnings of her second husband, to the financial support of her children. Likewise, the record reflects that, although defendant has apparently been faithful in meeting his obligation of support as initially fixed, the level of support provided by him is not presently in line with the needs of the children.

The learned trial judge, considering a totality of all circumstances and in the exercise of the wide discretion accorded in such cases, concluded that there should be an increase in the amount of support provided by defendant. Our review of the record does not disclose error in this conclusion.

Accordingly, for the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: SWIFT, Judge. DOMENGEAUX, Judge,

text:
    Evelyn B. LeBLANC, Tutrix, Plaintiff-Appellee, v. Patty Jean TYLER et al., Defendants-Appellants.
    No. 7469.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Young & Burson, I. J. Burson, Jr., Eunice, for defendants-appellants.
    Peter C. Piccione, Sr., Lafayette, for-plaintiff-appellee.
    Before ' DOMENGEAUX, FORET and SWIFT, JJ.
   SWIFT, Judge.

Defendants, Patty Jean Tyler and the St. Landry Parish School Board, bring this appeal of the trial court’s decision holding them Hable for damages based on' excessive corporal punishment inflicted upon the plaintiff, Jeffery Savoy.

On February 28, 1973, defendant, Patty Jean Tyler, was teaching a special education class at Port Barre Elementary School. The plaintiff, who at that time was 14 years old, became disruptive in the classroom. In order to maintain discipline Ms. Tyler gave the plaintiff a spanking in front of the students in the class which she described as being two or three licks on the rear with a board about 12 inches long and four inches wide.

Jeffery Savoy, described the paddling as 20 or 25 licks with a board 14 or 15 inches long, five inches wide and one and one-half to two inches thick.

Several of the students who were witnesses to the paddling testified at the trial. Carla Meche said the plaintiff received two or three blows on his buttocks from Ms. Tyler and she also hit his hands when he put them behind his back. Two students, Henry Taylor and Brenda Mallet, stated the teacher struck Savoy three or four times on the rear and some on his hands. A fourth student, Ricky Arnaud, testified it could have been four or five or 10 to 12 times that Ms. Tyler struck the plaintiff with a ruler.

On the day following the spanking, Jeffery Savoy was examined by Dr. A. E. Williams, the coroner and a general practitioner in Opelousas, Louisiana. Dr. Williams, testifying for the plaintiff, stated that he had “some reddish purple discoloration of the buttocks about five (5") inches in diameter.” The color photographs taken at this examination seem to indicate that these bruises were more than mild. However, the doctor was unable to say whether they were deep or superficial, but he added that as a rule in this type of situation the injury is confined to the superficial areas of the skin. He did not treat the child, as he felt it unnecessary. He never saw the boy again.

Louisiana law does not prohibit the infliction of corporal punishment. In Roy v. Continental Insurance Company, 313 So.2d 349 (La.App. 3 Cir. 1975), we held that reasonable corporal punishment was allowed in this state and that a teacher using this method of discipline had limited immunity from civil liability. The facts of that case are very similar to the one at issue. In Roy, the buttocks had bruises and the doctor there indicated that the area was sore and tender to touch for a few days, but the bruises were not severe. In this case, the circumstances are, for the most part, identical.

As we said in Roy, id. at 355:

“The bruises sustained on the posterior of the plaintiff’s son are clearly indicative of what this Court would expect from being struck with the aforementioned ‘paddle’. It seems clearly evident that a ‘swat’ or ‘hit’ on one’s posterior, with a wooden paddle, using any degree of force, would cause slight bruising. The reason for the discipline was to reprimand the child.”

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), our supreme court reviewed the standard of appellate review of facts. Quoting from Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), it stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

The court added in Arceneaux, supra at 1333:

“ ‘Manifestly erroneous,’ in its simplest terms, means ‘clearly wrong’. [Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).”

While we are reluctant to overturn a trial judge’s finding on a purely factual issue, we are of the opinion that the facts of this case are virtually indistinguishable from Roy and the determination that the punishment was excessive is clearly wrong.

For the above and foregoing reasons, the decision of the trial court is reversed. All costs are taxed to plaintiff-appellee.

REVERSED AND RENDERED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

Within the context of reasonable corporal punishment as set out in Roy, I do not agree with the statement in the majority opinion which reads: “The color photographs taken at this examination seem to indicate that these bruises were more than mild.” Actually, the photographs merely confirm Doctor Williams’ testimony concerning reddish purple discoloration of the buttocks. Although there were no photographs in the Roy record, a review of the medical and lay testimony therein indicates that the bruises sustained by Roy were about the same as those sustained by the student in this case.

      . Evelyn LeBlanc filed suit in 1974, in her capacity as tutrix of the minor child, Jeffery Savoy. While the suit was pending, the minor obtained majority and was substituted as the party plaintiff.


text:
    Effie T. COMEAUX, Plaintiff-Appellant, v. GREYHOUND LINES, INC., et al., Defendant-Appellee.
    No. 7470.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Russell L. Dornier, Baton Rouge, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, V. Farley Sonnier, Lafayette, David H. Stiel, III of Aycock, Horne, Caldwell & Coleman, Franklin, for defendant-appellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

Effie T. Comeaux brought this tort suit to recover damages for personal injuries, which she sustained as a result of a collision between an automobile and a Greyhound passenger bus in which she was riding. Defendants are Archard P. Morris, Jr., the driver of the automobile, Steven W. Leedy, the driver of the bus, Greyhound Lines, Inc., and Greyhound’s liability insurer, General Fire & Casualty Company. After a trial on the merits, the district court rendered judgment in favor of plaintiff and against Archard P. Morris, Jr. in the sum of $10,000.00. ' The claims against the other defendants were dismissed. Plaintiff appeals.

The accident giving rise to this suit occurred on June 22, 1974 at about 8:00 or 8:30 P.M. A Greyhound bus on which plaintiff was a fare-paying passenger collided with an automobile driven by Archard P. Morris, Jr. The bus, which was driven by Steven W. Leedy, a Greyhound employee, was traveling in an easterly direction on Louisiana Highway 182, a two-lane highway, between Lafayette and New.Iberia, Louisiana. Morris was traveling in the opposite direction on Highway 182.

Moments before the accident took place, the bus driver noticed the Morris vehicle rounding a curve on the wrong side of the road. He flashed his bright lights to gain Morris’ attention and removed his foot from the accelerator. Morris immediately returned to the proper side of the road but shortly thereafter began driving on the shoulder. Because of Morris’ erratic driving, the bus driver began applying his brakes and pulling off onto the opposite shoulder. When thé bus was about three-quarters of the way off of the road, Morris abruptly made a left turn, crashing into the bus near its left front wheel.

Morris, who later plead guilty to a charge of driving while intoxicated, testified that he veered into the wrong lane because he was attempting to remove a lighted' cigarette that had accidently fallen between his chest and an orthopedic brace that he was wearing due to a previous back injury. He claimed that when the bus driver flashed his bright lights, he was blinded and as a result lost control of his automobile. However, the Louisiana State Police Officer who investigated the accident, Trooper Percy Hebert, testified that when he questioned Morris after the accident, Morris told him that he had intended to turn left onto Louisiana Highway 674, which intersects with Highway 182 approximately four-tenths of a mile west of the point of impact.

The trial court concluded that the accident was solely the result of Morris’ negligence, and rejected plaintiff’s contention that the bus driver was also negligent. In rendering judgment against Morris, the court took into account the evidence of his poor economic situation, and found that the amount that plaintiff was entitled to exceeded the amount that he would be able to pay. The judgment was, therefore, limited to the sum of $10,000.00.

The issues raised by plaintiff on appeal are:. (1) Did the trial court err in finding that the Greyhound bus driver, Steven W. Leedy, was not negligent? (2) Did the trial court err in limiting the amount of the judgment against Morris to $10,000.00?

Since plaintiff was injured while she was a fare-paying passenger on a public conveyance, Greyhound had the burden of proving that it was without the slightest degree of negligence. Davis v. Owen, 368 So.2d 1052 (La.1979). In Davis, the court quoted with approval the following language from its opinion in the earlier case of Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963), concerning the duty imposed on public carriers:

“ ‘The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.
* * ‡ £ $ ‡
A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the . slightest negligence.
******
The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care.’ (citations omitted)’’

Plaintiff contends that the trial court erred in finding that Greyhound had fulfilled its duty to her. She argues that the bus driver had sufficient time after he first saw the Morris vehicle to bring the bus to a stop and thereby avoid the accident. She further argues that the driver was negligent in failing to do so. Plaintiff relies heavily on the bus driver’s testimony that he saw the automobile when it was Vs to 1 mile from the point of impact.

It is clear from a reading of the bus driver’s testimony that his estimate of the initial distance between the vehicles was an approximate figure. Based on the evidence of the point of impact and the speeds at which the two vehicles were traveling, the trial court concluded that the distance was actually not more than 1,000 to 1,500 feet. Plaintiff argues that that finding is manifestly erroneous, however, after carefully examining all of the evidence, we cannot agree that the trial court was clearly wrong.

In view of the trial court’s finding of the proximity between the bus and the automobile when it first came into the bus driver’s view, which finding we are not at liberty to disturb, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), we agree with the trial court that the precautions taken by the bus driver, when confronted with Morris’ negligent driving, were commensurate with the duty owed to plaintiff. We therefore, agree that Greyhound successfully bore its burden of exculpating itself from liability for plaintiff’s injuries.

Turning to the second issue, we find extensive evidence in the record concerning Morris’ financial situation. He did not have liability insurance. He and his wife have a combined monthly income of $1,113.24, net. They also own some property, including land worth approximately $6,000.00, however, their fixed obligations far outweigh their assets, and their monthly living expenses equal or exceed their income. The record also reveals that Morris had received a substantial settlement for a back injury that he sustained while working on an offshore oil rig. However, Vs of the amount of the settlement was paid to his attorney under a contingent fee contract. He lived off of the other Vs for several years, while he recuperated from his injury and went to school to learn a new trade, and used the remainder to settle other claims arising out of the accident giving rise to this suit.

The financial ability of a defendant to pay is a proper factor for consideration in assessing an award for damages. Henton v. Southeastern Fidelity Insurance Company, 364 So.2d 1383 (La.App. 3rd Cir. 1978); Marines v, Hinrichs, 357 So.2d 1358 (La.App. 4th Cir. 1978), writ denied, 359 So.2d 1306 (La.1978); Williams v. Garner, 268 So.2d 56 (La.App. 1st Cir. 1972); Urk v. Southern Farm Bureau Casualty Insurance Company, 181 So.2d 69 (La.App. 2nd Cir. 1965) and the authorities cited therein.

After reviewing all of the evidence relevant to plaintiff’s injuries and Morris’ financial condition, we cannot say that the trial court abused its discretion in limiting the award to $10,000.00.

For these reasons, the judgment appealed by plaintiff is affirmed. All costs of this appeal are assessed to plaintiff.

AFFIRMED.


author: CUTRER, Judge.

text:
    Benton SMITH, Plaintiff-Appellee, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellant.
    No. 7476.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Ryder & Deshotels by Errol D. Deshotels, Oberlin, for plaintiff-appellee.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit for benefits under a homeowner’s insurance policy. Plaintiff, Benton Smith, alleges that his swimming pool was damaged when his cow fell into the pool. Defendant, State Farm Fire & Casualty Company (State Farm), denies coverage under the policy provision which excluded coverage of damages inflicted by “domestic animals.”

From a judgment in favor of the plaintiff awarding $2,159.89, defendant appeals.

The issue presented is whether the term “domestic animal,” as used in the exclusionary clause- of the policy, is ambiguous.

The record reveals that* Smith, a farmer, purchased the cow (a 300 pound heifer) about two months before the incident which occurred February 8, 1979. He testified that he had purchased the cow to restock his herd. Smith testified that the cow was grazing in the pasture around his home at the time of the incident. Smith stated that this was an ordinary, gentle range cow.

On the day of the incident, Smith found the cow had fallen through the cover, causing damage to the cover and the lining of the pool. State Farm denied coverage and this suit followed.

In its brief reasons for judgment, the trial court stated as follows:

"... Coverage was denied under the policy provision which excludes damages done by ‘domestic animals’. As pointed out by plaintiff’s counsel the emphasis must be placed upon the adjective ‘domestic’ rather than the word ‘animal’. Obviously not all animals are excluded. Counsel for defendant urges that the word ‘domestic’ is synonymous with the word ‘domesticated’. Counsel for plain tiff on the other hand urges that ‘domestic’ must mean household pets, because to exclude all ‘domesticated animals’ would eliminate all but wild animals which in a modern society could hardly inflict damage to a home.
“The policy provisions being somewhat ambiguous, it is therefore resolved in favor of the insured. . . .”

We disagree with the trial court’s conclusion that the policy exclusion was ambiguous. The homeowner’s policy provides, in pertinent part, as follows:

“This policy insures under:
“COVERAGE A — DWELLING against all risks of physical loss to the property covered (and under COVERAGE C, ADDITIONAL LIVING EXPENSE resulting from such loss), EXCEPT AS OTHERWISE EXCLUDED OR LIMITED.’’ The exclusion clause reads as follows:
“This policy does not insure against loss:
***** *
“UNDER COVERAGES A AND C:
“1. BY WEAR AND TEAR; MAR*RING OR SCRATCHINGS; DETERIORATION; INHERENT VICE; LATENT DEFECT; MECHANICAL BREAKDOWN; RUST; MOLD; WET OR DRY ROT; CONTAMINATION; SMOG; SMOKE FROM AGRICULTURAL , SMUDGING OR INDUSTRIAL OPERATIONS; SETTLING, CRACKING, SHRINKAGE, BULGING OR EXPANSION OF PAVEMENTS, PATIOS, FOUNDATIONS, WALLS, FLOOR, ROOFS OR CEILINGS; BIRDS, VERMIN, RODENTS, INSECTS OR DOMESTIC ANIMALS: * * * ” (Emphasis added)

Definitions of the words “domestic animals” and any “domesticated animal” are set forth in 4 Am.Jur.2nd 250 § 1, which states as follows:

“The words ‘domestic animals’ and ‘any domesticated animal’ are not technical words which have acquired a peculiar and appropriate meaning in law, and are therefore to be construed according to the ■common and approved usage of the language. In ordinary speech, sanctioned as well by the dictionaries, the word ‘domestic’ means belonging to the home or household, and the word ‘domesticated’ means made domestic or converted to domestic use. Where descriptive of the word ‘animals,’ these terms in general usage carry the meaning of ‘tamed,’ ‘associated with family life,’ or ‘accustomed to live in or near the habitations of men. ’ ”

The jurisprudence classifies animals into two categories: wild and domestic. In the case of Granger v. United States Fidelity & Guaranty Co., 266 So.2d 526 (La.App.3rd Cir. 1972), this court stated as follows:

“Cases relating to injuries caused by animals are generally divided into two categories, according to the nature of the animals. One category includes wild or undomesticated animals, such as lions, tigers, wolves, etc.The second category embraces animals which have been domesticated, such as horses, cattle, sheep, dogs, etc.”

Other cases pertaining to classification of animals are: Durham v. Barnes, 124 So.2d 792 (La.App.2nd Cir. 1960), a horse was classified as a “domestic animal”; Marsh v. Snyder, 113 So.2d 5 (La.App.Orl. 1959), the court held that domestic or tame animals are those “which have been domesticated by man for centuries, such as horses, sheep, goats, cows and dogs . . . ” (emphasis added); and Young v. Blaum, 146 So. 168 (La.App.Orl. 1933), the court found that a male goat falls into the category of “domestic animals.”

Applying the above guidelines to the term “domestic animals” we conclude that the term is free of ambiguity. The word “domestic”, when used as a descriptive of the word “animals,” means, in its general usage, a tamed animal as distinguished from a wild animal. Tame animals are those which are naturally tame and gentle, or which, by long continued association with man, have become thoroughly domesticated and are reduced to a state of subjection to man’s will. Included within this definition of “domestic animals” are such animals as horses, sheep, goats, cows, pigs, poultry, and all other animals which live in association with man. Granger v. United States Fidelity & Guaranty Co., supra; Marsh v. Snyder, supra; Young v. Blaum, supra; and 4 Am. Jur.2d, 251 § 1 and § 2.

The trial court’s reasons for finding ambiguity in the policy exclusion is seemingly based upon a conclusion that the term “domestic animals” includes two classifications; those which are “household pets” and those which are “domesticated” but not “household pets.” The plaintiff also makes this argument in his brief. The effect of such an interpretation would create two classifications or divisions for “domestic animals.” We find no authoritative basis for such an additional classification.

We hold that the trial court was in error in its conclusion that the term “domestic animals” was ambiguous. The plaintiff’s cow was a “domestic animal” under the exclusionary provisions of the policy, thus the trial court judgment must be reversed.

For these reasons, the judgment of the trial court is reversed and it is now ordered that the plaintiff’s suit be dismissed. All costs in the trial court as well as the costs of the appeal are assessed against the plaintiff-appellee.

REVERSED AND RENDERED.


author: SWIFT, Judge.

text:
    ROY O. MARTIN LUMBER COMPANY, INC. et al., Plaintiffs-Appellants, v. Wilbon J. LEMOINE, Defendant-Appellee.
    No. 7477.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Gold, Little, Simon, Weems & Bruser, Herbert J. Mang, Jr., Alexandria, for plaintiffs-appellants.
    Dupuy & Didier, Marc Dupuy, Marksville, for defendant-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   SWIFT, Judge.

The plaintiffs have appealed an adverse decision by the trial court in this possessory action.

The case involves a dispute over a 40 acre tract of land described as:

The Southwest Quarter of Southwest Quarter of Section 16, Township 2 South, Range 5 East, Avoyelles Parish, Louisiana.

The property was conveyed by Roy 0. Martin, Sr. to his three sons, Ellis S. Martin, Roy 0. Martin, Jr. and Norman K. Martin, by act dated May 2, 1958, along with some 5000 contiguous acres, all of which was generally known as the “Hyde-Desha Tract”. Subsequently, the interests of the sons were transferred by Ellis S. Martin to Ellis Investments, Inc. (1969), Roy O. Martin, Jr. to Arbor, Incorporated (1974) and Norman K. Martin to NKM Partnership (1977). Roy 0. Martin, Jr. and Norman K. Martin retained certain mineral interests in the property.

It was established that the entire Hyde-Desha tract, including the forty acres in dispute, was managed by Roy 0. Martin Lumber Company, Inc. for the record owners under verbal agreements.

In the original petition Roy 0. Martin Lumber Co., Inc. was the only plaintiff, but thereafter the pleading was amended to join as additional plaintiffs the three transferees of the Martin sons and also Roy 0. Martin, Jr. and Norman K. Martin. The amended petition further alleged that the lumber company was serving as the authorized agent for the true owners in its exercise of possession of the property.

The defendant, Wilbon J. Lemoine, denied the plaintiffs’ possession of the forty acres in question and reconvened alleging that he was the possessor thereof under a 1965 deed.

Just before the trial began, on plaintiffs’ motion, Roy 0. Martin Lumber Co., Inc. was dismissed as one of the plaintiffs and their demand for damages was also dismissed.

After trial on the merits the trial judge concluded that neither plaintiffs nor defendant had shown sufficient acts of possession on the 40 acres to maintain a possesso-ry action and he denied both the main and the reconventional demands at plaintiffs’ costs.

Defendant Lemoine has neither appealed nor answered the plaintiffs’ appeal.

According to Article 3658 of the Louisiana Code of Civil Procedure, to maintain a possessory action the possessor must allege and prove that:

“(1) He had possession of the immovable property or real right at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.”

Plaintiffs first contend that the trial judge erred in excluding proffered evidence reflecting extensive corporeal possession by their ancestors in title of the larger tract of which the subject 40 acres is a part. The judge limited the parties to the introduction of evidence of their own acts of possession of the disputed 40 acres.

The basic requirement in possesso-ry actions is corporeal possession by the plaintiff, or civil possession preceded by corporeal possession by the plaintiff or his ancestors in title. LSA-C.C.P. Art. 3660. In their petition, plaintiffs declare that they have had “ . . . physical and corporeal possession . . . ” of the property in dispute without interruption for more than a year. Defendant waived any objection in regard to vagueness of the petition through failure to timely except. Therefore, the plaintiffs were entitled to prove whatever possession they may have had, whether in their own right or through “tacking” of possession gained from their ancestors in title.

It is well established law that physical occupancy of any part of a tract specifically described in a deed with the intent to possess the whole will constitute possession of all of the property included therein. LSA-C.C. Art. 3437 and LSA-C.C.P. Art. 3661; Hill v. Richey, 221 La. 402, 59 So.2d 434 (La.1952); Rhodes v. Collier, 215 La. 754, 41 So.2d 669 (La.1949).

While in a possessory action the ownership or title of the parties to the property is not at issue, LSA-C.C.P. Art. 3661 provides that it is admissible to prove:

“(1) The possession thereof by a party as owner;
“(2) The extent of the possession thereof by a party; or
“(3) The length of time in which a party and his ancestors in title have had possession thereof.”

The deed reflecting the transfers of this large acreage to plaintiffs explicitly include within its boundaries the 40 acres in question here.

Defendant claims that the general rule that actual possession of part amounts to possession of the whole does not apply, because the constructive possession relied on by the plaintiffs did not exist due to the actual adverse possession by the defendant. Ernest Realty Company v. Hunter Company, 189 La. 379, 179 So. 460 (La.1938). While this is correct law, it is not applicable in the present case because the proof falls short of establishing that the defendant actually possessed any part of the 40 acres with which we are concerned.

Defendant’s reliance on Gaulter v. Gennaro, 345 So.2d 92 (La.App. 1 Cir. 1977) also is unfounded. In that case the court held:

“Appellant relies on the principle that possession of the part by the record owner of property constitutes possession of the whole. On this basis, it is contended that since Appellant has had possession through his ancestors and on his own since this acquisition, he is deemed to possess to the limits of his land. Bolding v. Eason Oil Company, 248 La. 269, 178 So.2d 246 (1965). While we recognize the principle as well established law, we deem it not controlling in this instance. We so find because Appellee, being equally in possession of her adjoining tract, may also urge and claim the benefit of this same rule. We deem it further evident that in a case of this nature, possession must depend upon actual physical possession of a nature sufficient to give notice that the occupier intends to possess to limits, either natural or artificial, and which may be determined with reasonable certainty.”

The defendant in this case is not in the same position as the appellee in Gaulter, as there is no indication that Mr. Lemoine owns or is in possession of any of the other land adjacent to the subject 40 acres.

The trial judge found that Mr. Lem-oine did not have sufficient possession of this property, a conclusion with which we agree.

Mr. Lemoine admitted that he has never done anything which indicated that he was taking charge of the property physically. He never fenced, painted lines, erected signs, leased, sold or cut timber from the property. In fact he testified that he was only on the property three times, either hunting or just looking at it, and the last time took place after this lawsuit was filed.

On the other hand, evidence was proffered, that was admissible and should have been considered by the trial court, which establishes that plaintiffs and their ancestors in title had sufficient corporeal possession of other parts of the Hyde-Desha tract to constitute constructive possession of the whole and they had such possession in 1965 when the defendant allegedly acquired the disputed 40 acres.

The plaintiffs also have shown possession of a nature sufficient to give notice of an intent to possess to the full limits of their title.

The uncontradicted testimony was that trees along the entire outside perimeter of the Hyde-Desha tract were painted with yellow lines that identified Roy 0. Martin ownership or management. This included the south line of the 40 acres involved herein. The meaning of such markings was well known to the defendant and also other inhabitants in the area.

John Munsterman, Martin’s chief forester, who had been familiar with the property since 1959 when he first painted the boundaries, testified that the Hyde-Desha acreage had been subjected to two extensive logging operations, in 1961 and 1976, and some of the timber was cut on subject tract.

Further, under grants from plaintiffs or their ancestors in title most of the Hyde-Desha tract was leased to, posted and used by the Lakeview Hunting Club since the early 1970’s; throughout the 1960’s and 1970's a number of seismographic tests were conducted on parts of the 5000 + acres tract; oil pipelines were constructed across same; and. the entire Hyde-Desha tract was leased for minerals under which three wells were actually drilled. Also, a portion of the large tract was leased for pasture.

The evidence reflects a consistent policy of timberland management which involved property line tending and maintenance, timber cutting, regular physical observation, supervision of seismic, mineral, and pasture lease activity, as well as the payment of taxes.

We are convinced from our review of the record the defendant never exercised any actual adverse possession of the property and that the plaintiffs have proved sufficient possession to maintain this possessory action.

As to the other elements required to bring the action, defendant further contends that plaintiffs have not had quiet possession for more than one year prior to the disturbance; in other words, their possession was interrupted within such period contrary to LSA-C.C.P. art. 3658(2). The disturbances created by defendant prior to the institution of the action were all disturbances “in law”.

“A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.”
LSA-C.C.P. art. 3659.

In this connection, the record contains copies of the defendant’s purported deed of acquisition and an oil, gas and mineral lease which he executed implying ownership of the subject property, both having been recorded in Avoyelles Parish. Additionally, on August 8, 1978, defendant wrote a letter to Moncrief Oil Interests requesting the withholding of royalty payments to plaintiffs resulting from production on the property pending resolution of the defendant’s claims to the property. All three; of course, were disturbances in law.

A disturbance in law does not prevent the possessor of an immovable from having the requisite quiet and uninterrupted possession for one year to successfully maintain a possessory action. Chauvin v. Kirchhoff, 194 So.2d 805 (La.App. 1 Cir. 1967); Tenneco Oil Co. v. Houston, 364 So.2d 1056 (La.App. 2 Cir. 1978).

As to the third requirement of such article of our Code of Civil Procedure, it already has been pointed out that the disturbances were in law, as defined in Article 3659.

The last requirement of Article 3658 is that the possessory action be brought within one year of the disturbance. When the disturbance is one in law, it amounts to a continuing disturbance. Thus, it is regarded as occurring not only on the date of recordation of the instrument, but each day thereafter as long as it exists. See the concurring opinion of former Justice Tate in Ree Corporation v. Shaffer, 261 La. 502, 260 So.2d 307 (La.1972).

For the foregoing reasons, that part of the judgment of the trial court which rejected the defendant’s recon ven tional demand is affirmed; but otherwise it is reversed and judgment is hereby rendered in favor of the plaintiffs, Ellis Investments, Inc., Arbor, Inc., NKM Partnership, Roy O. Martin, Jr. and Norman K. Martin, and against the defendant, Wilbon J. Lemoine, recognizing and maintaining the plaintiffs’ possession of the following described property:

The Southwest Quarter of Southwest Quarter of Section 16, Township 2 South, Range 5 East, Avoyelles Parish, Louisiana;

and ordering the defendant to file a petito-ry action asserting whatever adverse claim of ownership he may have to the said immovable property within sixty days after this judgment becomes final or thereafter be precluded forever from claiming the ownership thereof. All costs of this case are assessed to the defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


text:
    Wylene Walker REGIONS, Plaintiff-Appellee, v. Marion D. REGIONS, Defendant-Appellant.
    No. 7478.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Gus Voltz, Jr., Alexandria, for defendant-appellant.
    Thomas G. Wilson, Colfax, for plaintiff-appellee.
    Before CUTRER, STOKER, LABORDE, JJ.
   STOKER, Judge.

Defendant-appellant, Marion D. Regions, brings this appeal of a money judgment rendered against him for past due alimony. The trial court held that the appellant was a Louisiana domiciliary at the time the original petition was filed and that it had jurisdiction to render a personal judgment against him. We affirm.

The basic facts are not disputed by the parties. The appellant and the appellee were married to each other almost 29 years, maintaining their matrimonial domicile in Pollock, Louisiana. On March 15, 1976, Mr. Regions abandoned the plaintiff, packed his personal possessions in his mobile home and went to Texas. As Mrs. Regions was out of town at this time, Mr. Regions left her a note which said, in part, “I just can’t go on. We just don’t seem to make it . . .”.

Mrs. Regions returned to her home on March 16, 1976, and discovered her husband’s note. On the following day, March 17.1976, she filed suit for a separation from bed and board and for alimony pendente lite. A curator was appointed to represent the defendant-appellant, Mr. Regions.

On April 15, 1976, a judgment was rendered granting to Mrs. Regions a separation from bed and board and alimony pendente lite in the sum of $750.00 per month for maintenance and support.

Mrs. Regions filed a petition on October 15.1976, to make past due alimony executo-ry. Jurisdiction over Mr. Regions was obtained by non-resident attachment. Mr. Regions filed an answer and reconventional demand on March 10,1977. He alleged that the personal judgment rendered against him on April 15, 1976, was a nullity. Mr. Regions argued that the Thirty-fifth Judicial District Court of Grant Parish,' Louisiana, had no jurisdiction to render the personal judgment against him because he had moved and established his domicile in Texas on March 15, 1976.

Judgment was rendered in favor of ap-pellee, Wylene Walker Regions, on May 4, 1979, rejecting the claim that the court was without jurisdiction to render a money judgment against the defendant and making the alimony executory in the sum of $5,250.00.

In written reasons, the trial court observed, inter alia:

The judgment for alimony is a money judgment and must be supported by personal jurisdiction over the party cast. Imperial [v.] Hardy [La.], 302 So.2d 5. The issue is whether or not Mr. Regions had changed his domicile from Grant Parish to Texas on the day the suit was filed. The burden of proving the change in domicile is upon Mr. Regions.
******
At the time of leaving, Mr. Regions was Mayor of the Town of Pollock. He did not notify any of the Board of Aider-men or the Town Clerk that he intended to leave the town permanently. He did not resign as Mayor until June 15, 1976. Mr. Regions was also Commissioner of Indian Affairs for the State of Louisiana on March 15, 1976, and no notice was given any state official of his intention to leave the state permanently. He did not resign from the position until June 15, 1976.
******
Everyone has a domicile of origin which he retains until he acquires another. Under the facts of this case, I find that Mr. Regions had not acquired another domicile in Texas on March 17, 1976, when this suit was filed and, therefore, his domicile remained in Grant Parish. This Court had personal jurisdiction over him and he was properly served through the appointment of an attorney.
Therefore, the reconventional demand is dismissed and the rule to accrue arrear-ages is made absolute. Arrearages in alimony are accrued at $750.00 per month from March 17, 1976, until the date this rule was filed .

Mr. Regions argues that service of process on the attorney appointed to represent him was insufficient for the court to obtain personal jurisdiction over him. LSA-C.C.P. article 6 states:

Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
(1) The service of process on the defendant, or on his agent for the service of process;
(2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or
(3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.

The issue before this court is whether or not Mr. Regions was domiciled in Louisiana at the time Mrs. Regions filed suit for a separation and alimony. In order for the service of process on the appointed attorney to have been effective, Article 6(2) requires the defendant to be domiciled in this state.

It is well settled that the terms “domicile” and “residence” are not synonymous. A person may have many residences, but only one domicile. One’s domicile is the principal establishment wherein he makes his habitual residence. LSA-C.C. article 38. Domicile essentially consists of two elements; residence and an intent to remain indefinitely in the place. In LaFleur v. Seaboard Fire & Marine Insurance Co., 296 So.2d 860 (La.App. 3rd Cir. 1974) we observed the following principles of law regarding domicile:

Everyone has a domicile of origin which he retains until he acquires another. Texana Oil & Refining Co. v. Belchic, 150 La. 88, 90 So. 522 (1922); Rappeport v. Patten, 3 So.2d 909 (La.App. 2 Cir. 1941). One who asserts that there has been a change of domicile has the burden of proving that change. Cannon v. Cannon, 242 So.2d 291 (La.App. 4 Cir. 1970). So long as a reasonable doubt remains, however, the presumption is that the previously established domicile of the person, .or his domicile of origin, has not been changed. Succession of Barger, 217 So.2d 779 (La.App. 4 Cir. 1969).

From the above, we. note that Mr. Regions’ domicile of origin is Louisiana, and he bears the burden of proving the change to Texas. If there exists a reasonable doubt, it must be presumed that his domicile has not been changed.

The facts reflect that on the day suit was filed the defendant was still employed by Trunkline Gas Company in Pollock. On the day after the suit was filed the appellant telephoned his employer. He requested, and was granted, twenty-five days of paid vacation, which he had earned during the previous year. The defendant was still the Mayor of Pollock as well as Commissioner of Indian Affairs at the time the suit was filed.

Even if we were satisfied that the appellant left Louisiana with the intent of never returning, this would not be sufficient to effect a new domicile. One does not lose his domicile of origin until he affirmatively establishes a new one. More is needed than merely the rejection of the old domicile. However, because of his failure to completely cut his ties from Pollock when he left, we do entertain doubt as to his motives at that precise time. There is doubt that he intended to permanently leave Pollock, or that he had positively determined to locate in Texas. That defendant did remain in Texas does not by that fact alone, prove his original intentions. The trial court had substantial doubts as to defendant’s original motivation in leaving Pollock. Defendant’s intentions must be determined at the time suit was filed.

A case dealing with determination of a party’s domicile, usually involves balancing of facts and circumstances to determine the party’s intent. This case is typical of one in which such balancing is necessary. Several factors in this case argue persuasively that defendant did have a real intent for a change of domicile.

Some of those factors include the following. Three weeks before he left Mr. Regions had discussed a possible transfer to Texas by the company he worked for, on March 12, (three days before he left) he had opened a bank account in Texas, and upon arriving in Texas, Marion D. Regions immediately began looking for a home and applied for a telephone.

Defendant-appellant Marion D. Regions also places great emphasis on his contention that of nine witnesses, seven said they felt he would not return to Pollock, and the other two witnesses were not in a position to have personal knowledge-of the issue. Although this is persuasive, we feel that it is mere speculation on the part of the townspeople and that it does not overcome the evidence in favor of Wylene Walker Regions.

Still other facts are cited by Mr. Regions to show his intent to remain permanently in Texas, but we conclude that when all the facts are considered, the judge’s determination was reasonable, and we agree with it.

The trial court’s determination was essentially factual in nature. We must give great weight to the factual conclusions of the trier of fact and should not reverse absent a finding of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). Manifestly erroneous in its simplest terms means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We find that the record amply supports the finding of the trial court arid must be affirmed.

For the above reasons, the judgment of the trial court is affirmed. All costs are taxed to the defendant-appellant.

AFFIRMED.


author: DOUCET, Judge:

text:
    WESTERN CASUALTY & SURETY CO., Plaintiff-Appellant, v. Zane ADAMS et al., Defendant-Appellee.
    No. 7481.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for plaintiff-appellant.
    Michael Henry, John G. Williams, Natchi-toches, Watson, Murchison, Crews, Arthur & Corkern by William P. Crews, Jr., Natchi-toches, for defendant-appellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   DOUCET, Judge:

This subrogation claim was brought by plaintiff, Western Casualty & Surety Company, to recover $23,775.81 paid to Mrs. Jewell Whitehead as a result of the destruction of her residence by fire. Defendants are Executive Realty, Inc., the general contractor that built Mrs. Whitehead’s home, Zane Adams, the electrical subcontractor who wired it, and Square “D” Company, the manufacturer of a central heating unit that was installed in it. Plaintiff appeals a judgment of the district court in favor of defendants, dismissing its suit at its cost. We affirm.

In.the fall of 1976 plaintiff’s insured, Mrs. Jewell Whitehead, purchased a new home in Provencal, Louisiana from Executive Realty, Inc. On November 8, 1976, approximately four weeks after Mrs. Whitehead and her daughter, Mazel Whitehead, moved into the house, it was totally destroyed by fire.

Mrs. Whitehead and her daughter testified that from the time they moved into the house, many of its electrical appliances and fixtures malfunctioned. On numerous occasions, they noted small electrical sparks coming from wall-mounted switches when they were turned on. The doorbell would ring constantly without any one pressing the button. The electric heater in the bathroom ceiling did not work properly, and the central heating unit put out too much heat, even when the thermostat was at a low setting. They also testified that for several days prior to the fire, they heard unusual noises, which they described as “popping” sounds, similar to that produced by the breaking of a dry stick or twig. Mazel also reported seeking strange lights in the attic.

Plaintiff attempted to establish the cause of the fire through the deposition testimony of Mr. Jerry Gilmore, an expert fire investigator, who had examined the ruins of the Whitehead residence eight days after the fire. Mr. Gilmore was of the opinion that the fire was caused by some unknown defect in the central heating unit manufactured by Square “D” Company. His opinion was based on his findings that there had been electrical arcing in the wiring tray of the unit and that the interior of the unit had sustained more thermal damage than its exterior.

Mr. Gilmore could not explain the malfunctioning of the other electrical appliances and fixtures in the house. He found no evidence of faulty wiring or installation of the central heating unit or any of the other appliances or fixtures. Moreover, when he made his investigation and formulated his opinion as to the cause of the fire, he was not even aware of the numerous electrical problems that had been noted by the Whiteheads. He candidly admitted that other experts might have arrived at different opinions about the cause of the fire.

The only other expert who testified was Mr. Ronald C. Ferguson, an electrical engineer employed by Square “D” Company. In addition to testifying concerning Square “D” Company’s quality control requirements and the Underwriter’s Laboratory tests conducted on its central heating units, Mr. Ferguson explained that Mrs. Whitehead’s complaints about the excessive heat produced by the unit stemmed from the fact that the unit was too big for her home. He had not inspected the house, however, and could not offer an opinion as to the cause of the fire.

The trial judge noted in his written reasons for judgment that plaintiff had failed to prove any negligence on behalf of or on the part of the defendants. On appeal, plaintiff argues that the trial judge erred by applying the wrong law. It contends that it was not required to prove negligence directly, citing Weber v. Fidelity & Casualty Company of New York, 259 La. 599, 250 So.2d 754 (1971), wherein the court stated:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.” (Citations omitted)

We agree that plaintiff was not required to prove any specific act of negligence on the part of defendants. However, it was required to prove that a defective product manufactured by defendants caused its loss. In a products liability case plaintiff has the burden of proving causation by a preponderance of the evidence. Weber v. Fidelity & Surety Company of New York, supra; Hartford Fire Insurance Company v. Maytag Company, 374 So.2d 1269 (La.App. 3rd Cir.1979).

That burden of proof was explained by the court in Weber, supra, 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, 153 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.’ ”

250 So.2d at page 757.

After carefully reading all of the trial judge's written reasons for judgment, we believe that he applied that standard and correctly concluded that plaintiff had not borne its burden of proving causation. He noted that the various electrical problems observed by the Whiteheads had not been explained. We agree that the hypothesis that the fire was caused by an electrical malfunctioning, other than in the central heating unit, has not been reasonably excluded. On the other hand, there is no evidence of fault on the part of the builder or the electrician which resulted in such a malfunctioning. Plaintiff’s own expert, after thoroughly examining the remains of the home, found no evidence of poor workmanship.

Plaintiff argues that the existence of a defect in the design and/or manufacture of the house or the central heating unit can be inferred by application of the doctrine of res ipsa loquitur. We disagree. The circumstances of this case are not such that in the absence of an explanation by defendants the only fair and reasonable conclusion is that the fire was caused by some omission of defendants’ duty. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

For the above reasons, the judgment appealed is affirmed. All costs of this appeal are assessed to plaintiff.

AFFIRMED.