author: REDMANN, Judge.

text:
    ELLE, LTD. v. ELLE EST.
    No. 11213.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 1980.
    David W. Oestreicher, II, Oestreicher & Whalen, New Orleans, for plaintiff.
    Ronald J. Harris, New Orleans, for defendant.
    Thomas S. Keaty, Keaty & Garvey, New Orleans, amicus curiae.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   REDMANN, Judge.

Elle, Ltd. used its full name (and, after defendant began its business, “Elle” alone) as a registered trade name for its women’s apparel shop in the New Orleans French Quarter. It.now appeals from a judgment refusing injunction against Elle Est, Inc.’s use of “Elle Est” as a trade name for its women’s apparel shop 20 blocks away on St. Charles Avenue in New Orleans. We affirm.

Plaintiff’s legal argument is that the word elle (French for she) has been so appropriated by it as to have a widely accepted secondary meaning on account of which defendant may not use that word in its trade name Elle Est. Plaintiff argues that it should not have to prove fraud to prevail, as required in Straus Frank Co. v. Brown, 1964, 246 La. 999, 169 So.2d 77. There, Lake Auto Parts, of Lake Charles, La., was refused injunction against Lake Auto Supply, of Lake Arthur, La., 45 miles away-a decision plaintiff and amicus curiae criticize.

We follow Straus. Just as Lake was an appropriate reference to geography in Straus, elle (she) is an appropriate reference to the business conducted by defendant, the sale of female attire. Straus would not support a “Lake Auto Parts” (howsoever innocently and ignorantly named) in the next block from the earlier “Lake Auto Parts,” notwithstanding absence of proof of intent (beyond that arising from the name itself in such proximity). Straus must be read in its context of the mere use of a commonplace noun as a principal word in a three-word trade name for a similar business located rather far from the earlier user.

Our context is similar. New Orleans does have a French heritage and perhaps a substantial portion of its citizens with at least a smattering of French language from high school or college. In New Orleans, especially among the higher-income class both shops might attract, elle is known to be French for she. The very use of the word suggests the hope it will be understood. Would a “She Shop” (there is one in the New Orleans telephone directory) become so much the owner of “She” that “She Boutique” could be enjoined merely because of that word? Straus hints, obiter, that it could, if the intent were shown to deprive the first user of the common word of the benefits of its earlier enterprise, or to unfairly compete, or to deceive the public. But Straus does not imply that such a showing is always necessary, even in the case of unusual nouns (Plimsoll Club?) or aggregations (Seven Sisters Restaurant?).

There are obvious extremes of, on the one hand, clearly enjoinable imitation of firmly established trade names and the like, and, on the other hand, clearly not enjoinable use of everyday words that could not be appropriated except as part of a phrase. We conclude that the word elle (she), in New Orleans, although not an extreme case of an everyday word, is closer to the commonplace and is therefore not the property of its first user, and a second user cannot be enjoined in the absence of the intent required by Straus.

Affirmed.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    AMSTAR CORPORATION v. Joseph GERACE, Administrator, State of Louisiana, Department of Employment Security, and Leonard J. Babin, Lanny R. Creppel, Donald J. Forrest, Claire K. McDonough, Raymond P. McGee, Earl P. McManus, Larry L. Roberts, Emile L. Schenck, John L. Vinet, Samuel Wall, James P. Wood, James R. Lipps, Warren R. Lotz, Arthur H. Meyers, Kevin Thompson.
    No. 10871.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.

      Chaffe, McCall, Phillips, Toler & Sarpy, G. Phillip Shuler and David L. McComb, New Orleans, for plaintiff-appellant.
    James A. McGraw and Willie D. Maynor, Baton Rouge, for defendants-appellees.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff, Amstar Corporation, a large refiner of sugar operating a refinery at Chal-mette, Louisiana, had three collective bargaining agreements with three union locals. One of these agreements was with the Amalgamated Meat Cutters & Butcher Workmen of North America Local P-1101 (herein referred to as Meat Cutters), representing the largest number of employees, plaintiff’s production and maintenance workers; another was with the International Association of Machinists and Aerospace Workers Local 37, representing plaintiff’s machinists; and the third was with Teamsters Local 270, which represented plaintiff’s laboratory employees. All three agreements expired on February 1, 1975.

Following continued unsuccessful negotiations between plaintiff and the Meat Cutters, on February 13, 1976 that union went on strike and established a picket line around the refinery. The machinists and laboratory employees did not strike. However, members of those unions did not cross the picket line, nor did they attempt to do so, and they did not report for work until after the Meat Cutters’ strike was settled; they reported for work on the same day the members of the Meat Cutters returned to work. The strike ended March 12, 1976 when plaintiff and the Meat Cutters reached a new bargaining agreement.

During the strike members of the machinists and laboratory locals applied for unemployment compensation benefits for wages lost while the strike was in progress. Initially they were found eligible to receive, i. e., not disqualified from receiving, those benefits by the Louisiana Department of Employment Security, and plaintiff appealed to the appeals tribunal of the Department. The appeals referee also held the claimants were not disqualified, a holding based on his findings that the labor dispute between the Meat Cutters and plaintiff resulted in there being no work available for the defendants, that the defendants were not members of the striking union, and that they were not participating in the labor dispute.

Plaintiff appealed to the Department’s Board of Review, which affirmed the decision of the appeals referee without comment. Plaintiff then appealed to the district court for judicial review of the Board’s determination. Following a hearing, that court affirmed the decision of the Board, and plaintiff has appealed to this court from that judgment.

In this court plaintiff contends the defendants were disqualified from receiving unemployment compensation benefits under R.S. 23:1601(4). We agree with the contention and, accordingly, reverse.

The controlling law is contained in R.S. 23:1634, which in pertinent part reads, “In any proceeding under this Section [Judicial review; procedure] the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”, and R.S. 23:1601(4) which, also in pertinent part, provides:

“An individual shall be disqualified for benefits:
(4) For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment.” LSA-R.S. 1601(4).

The finding of the Board of Review that the labor dispute between the Meat Cutters and plaintiff resulted in there being no work available for the defendants during the Meat Cutters’ strike is not supported by sufficient evidence within the meaning and intent of the above quoted sentence from R.S. 23:1634. As established by the testimony of plaintiff’s witnesses such work was available. That testimony describes the available work in detail, laboratory work within the normal job duties of laboratory workers, such as the making of standard solutions, calibration of instruments, tests involving air pollutants, the water discharge system, and stored products, and cleaning and inventory of laboratory equipment, and regular machinists work such as repairing and overhauling pumps and various mechanical equipment. The only evidence contained in the record which even suggests work was not available is hearsay to the effect that the defendants, or some of them, thought there would be no work because of the strike.

The above quoted portion of R.S. 23:1601(4) clearly provides that a worker is disqualified for benefits when his unemployment is due to a labor dispute in active progress; and the only exception thereto is that the disqualification does not apply if it is shown “that he is not participating in or interested in the labor dispute which caused [the] unemployment.” Thus, in order to avoid disqualification in this case the burden of proof was on the defendants to show their absence of participation or interest in the Meat Cutters’ strike. They have failed to carry that burden, probably as to an absence of participation and certainly as to an absence of interest. We find a consideration of the question of participation unnecessary because the defendants offered no evidence showing or tending to show an absence of interest in the strike on their part, and under the statute interest in the labor dispute, by itself, is sufficient for disqualification.

Although work was available, plaintiff had not informed the defendants they were to report for work as it was customary for the defendants to report on a daily basis without being told by the plaintiff that they were needed (in fact as to laboratory workers a schedule of work had been posted prior to the time the strike was called). As we have said, the defendants simply did not report for work nor did they make any effort to so report. In addition, the record fails to reveal that any of the defendants made a valid attempt to determine whether or not work was available for them. And the record reveals, totally without contradiction, that as a matter of uniform precedent over several years no negotiations took place between plaintiff and the two locals of which defendants were members until after plaintiff and the Meat Cutters had reached an agreement. Following such an agreement with the Meat Cutters, both other locals always have agreed to the identical percentage wage increase agreed to by plaintiff and the Meat Cutters. Thus, the machine shop and laboratory employees stood to gain through a successful Meat Cutters’ strike, and the maximum success of that strike was enhanced by a complete shutdown of the refinery. Not only have the defendants failed to carry their burden of proof, our reading of the record convinces us they had an interest in the strike in suit, and in its outcome, within the meaning of the word “interest” as used in R.S. 23:1601(4).

For the reasons assigned, it is ordered that the judgment appealed from be reversed and that there be judgment in favor of the plaintiff, Amstar Corporation, and against all of the individual defendants, declaring said defendants ineligible to receive unemployment compensation benefits.

REVERSED.

      . The Meat Cutters, who did not apply, clearly would not have been eligible under the provisions of R.S. 23:1601(4).

      .The two basic groups of defendants, machinists and laboratory workers, were heard separately by the appeals referee on the same day. Each group consented to -be collectively represented by its own representative. Only one of the affected employees testified at each hearing, and it was stipulated that the decision of all would be based on the same administrative record. The union representatives and some plaintiff officials also testified. The record before us includes this testimony and each defendant’s application for benefits on forms supplied by the Department.

      . “Sufficient evidence” as contained in the statute means legal, competent evidence and hearsay is not “sufficient evidence.” Evans v. State, Department of Employment Security, La.App., 292 So.2d 265; Jackson v. Doyal, La.App., 198 So.2d 469; Hall v. Doyal, La.App., 191 So.2d 349; Gardere v. Brown, La.App., 170 So.2d 758.

      . Senegal v. Lake Charles Stevedores, Inc., La., 197 So.2d 638; Elmer Candy Corp. v. Administrator of Employ. Sec., La.App., 286 So.2d 423; Handyman Homes, Inc. v. Administrator, D. of Emp. S., La.App., 192 So.2d 827; Brown v. Brown, La.App., 158 So.2d 305.


text:
    Alice Chalona, Wife of Michael THIEL v. Michael THIEL.
    No. 11077.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.

      Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for plaintiff-appellee.
    Morphy, Faulkner, Simpson & Dimaria, Steven K. Faulkner, Jr., Metairie, for defendant-appellant.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   SAMUEL, Judge.

The husband appeals from a judgment awarding his wife permanent alimony of $260 per month for medical expenses.

In this court appellant contends: (1) The wife did not carry her burden of proof; and, alternatively, (2) if such medical treatment is necessary, she has sufficient income and assets to pay her own expenses. As we agree with the first contention, a discussion of the second is unnecessary.

The only evidence in support of the need for extraordinary medical treatment was that of the wife, who testified: She is a school teacher presently on sabbatical leave. Until three or four weeks before the trial of this rule, she was under the care of a psychiatrist whom she saw two times per week at a cost of $60 per session, or $120 per week. The doctor indicated to her she should continue these treatments, talking in terms of years. She felt she needed the treatments in spite of their weekly cost.

On cross examination it was established the doctor knew why she was discontinuing treatment, but did not refer her to any mental health clinics which treat people who cannot afford the cost of a private psychiatrist.

This is the only evidence in the record regarding the continuing need for psychiatric treatment.

Appellee contends her own testimony is sufficient proof in an alimony matter because the jurisprudence does not require her to bring her grocer, clothier or landlord to testify since these are basic necessities, along with necessary medical and drug expenses.

We agree that in an alimony case the need for, and the expense of, food, clothing and shelter ordinarily may be proved by the testimony of the wife alone. But these are ordinary, day by day needs and costs with which the court is familiar and therefore able to determine the reasonableness thereof. We also agree that “maintenance” for purposes of alimony includes medical expenses and that some basic medical expenses, because they are usual and ordinary like basic food, clothing and shelter, may be proved solely by the testimony of the wife.

But the medical expenses in this case do not fall in that “basic” category. Here the existence of the alleged medical condition, together with the need and cost of treatment, are not ordinary or usual. They are unusual to the extent they cannot be proved by the unsupported testimony of the wife alone.

However, because of our jurisprudential rule preventing the wife from making another claim for alimony in the absence of a change in circumstance, we prefer to remand rather than reverse in order to give her the opportunity of offering sufficient proof of her medical condition, need of treatment, and cost thereof.

For the reasons assigned, the judgment appealed from is annulled and set aside and the matter is remanded for further proceedings in accordance with law and with the views expressed in this opinion. All costs are to await a final determination.

ANNULLED, SET ASIDE AND REMANDED.

      . As the wife has neither appealed nor answered the husband’s appeal, our only concern is the award for medical expenses.

      . Bernhardt v. Bernhardt, La., 283 So.2d 226.


text:
    Joseph PASSALAQUA v. Osmarina MENDEZ.
    No. 11223.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Post, Reinhardt & Rougelot, Daniel A. Post, Metairie, for plaintiff-appellee.
    Jesse S. Guillot and John E. Maher, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   SAMUEL, Judge.

Plaintiff, the owner of real estate in the City of New Orleans, leased the premises to defendant under a written contract. When defendant allegedly failed to pay the rent for the months of October and November, 1979, plaintiff had a notice to vacate delivered to the defendant and then brought these proceedings for eviction in the First City Court of New Orleans, which granted the eviction. Defendant has taken this de-volutive appeal from that judgment.

In this court appellant contends the eviction should be set aside because plaintiff accepted rent after sending the defendant notice to vacate. In support of this position she relies solely on four customer’s record copies of personal money orders which will be discussed later in this opinion.

Appellant’s legal position is sound. The summary action of eviction is based on the required notice to vacate, and the acceptance of rent after that notice, but before judgment of eviction, vitiates the notice and prevents the lessor from obtaining such a judgment. However, as there is a presumption that the judgment of the trial court is correct, the appellant must point out error, or the appellate court must notice error, in that judgment in order for there to be a reversal or change thereof on appeal.

Other than a motion and order to be recognized as counsel and the motions to dismiss and documents regarding those latter motions, all filed in this court, the record before us contains only the eviction motion and rule for possession, the notice to vacate, the judgment of eviction and notice thereof, the motion and order of appeal with bond, a defendant application for a new trial, a defendant petition for nullity of judgment, the four exhibits now relied on by appellant, notice of appeal to the plaintiff, judgment dismissing both her motion for a new trial and her petition for nullity of judgment on defendant’s own motion, and notations of various services made. The record does not contain a transcript of testimony or any evidence regarding what took place at the trial of the rule.

The four exhibits on which'appellant relies appear in the record only as attachments to appellant’s petition for nullity and, as we have said, that petition was dismissed on appellant’s own motion. The exhibits are four non-negotiable customer’s record copies of personal money orders apparently issued by New Orleans banks, dated respectively September 8, October 3, November 30, and December 14, 1979, each in the amount of $250. On each of these copies the indicated payee is a New Orleans corporation, not the appellee.

Even if these exhibits are properly before us, standing alone they are insufficient proof of appellant’s contention. The record is entirely devoid of any evidence showing, or tending to show, that there is any connection between the indicated payee and the appellee or that the appellee ever received these money orders, or that, if in fact the appellee did receive those orders, he received them prior to the time he obtained judgment.

Thus, we find the appellant has failed to point out any error in the judgment appealed from which could result in a reversal or change thereof. In addition, our examination of the record fails to reveal any such error.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Originally, a suspensive appeal was granted and the appellee filed motions to dismiss. This court dismissed the suspensive appeal but maintained the appeal as devolutive. Our Docket No. 11,223 (not designated for publication).

      . LSA-C.C.P. Arts. 4701, 4702, and 4731. And see West End Landing, Inc. v. Board of Levee Com’rs., La.App., 299 So.2d 418; Murphy Oil Corporation v. Gonzales, La.App., 316 So.2d 175.


text:
    Kishore V. MOTWANI v. FUN CENTERS, INC. and Playgirl Shops of America, Inc.
    No. 10996.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.

      Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for plaintiffs-appellants.
    Polack, Rosenberg, Rittenberg & Endom, Charles T. Curtis, Jr., and Leon H. Ritten-berg, Jr., New Orleans, for defendant-ap-pellee, Fun Centers, Inc.
    Lanny R. Zatzkis, New Orleans, for Playgirl Shops of America, Inc., defendant-ap-pellee.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiffs, Kishore V. Motwani, Giani V. Gethwani, wife of/and Verhomal J. Mot-wani, owners of certain immovable property located at 227-233 Bourbon Street in New Orleans, filed suit to evict defendants, Fun Centers, Inc. and its sublessee, Playgirl Shops of America, Inc. The basis of plaintiffs’ suit is that the written lease to Fun Centers, Inc. was not registered in the public records of Orleans Parish.

Following trial in the district court, there was judgment denying plaintiffs’ eviction attempt apparently on the basis that plaintiffs knew about the lease and subjected themselves to it upon purchase of the property in suit. Plaintiffs have appealed from that judgment.

The record shows that on May 6, 1976, the then owners of the property in question leased a portion of it to Fun Centers, Inc. This lease was not registered in the conveyance records of Orleans Parish. On January 21, 1977 Fun Centers, Inc. in turn subleased the premises to Playgirl Shops of America, Inc. with the permission of the owners. This sublease was registered in the conveyance records.

On December 12, 1977, the property was sold to Mr. and Mrs. Nick Karno and Mr. and Mrs. Frank Caracci. On the same date the purchasers executed a document titled “Assignment of Lease, Rents and Profits” in favor of the National American Bank in New Orleans as additional security for the bank in the event of a default on purchasers’ mortgage. The assignment of the lease specifically referred to the original lease to Fun Centers, Inc. and the sublease to Playgirl Shops of America, Inc., and the assignment was registered in the conveyance records of Orleans Parish.

Playgirl Shops of America, Inc., the sub-lessee, used the trade name “Disco Stop”. On December 14, 1977 Verhomal J. Mot-wani, plaintiff herein, executed an agreement to purchase from Karno and Caracci the property subject to the lease, and in the agreement to purchase plaintiffs acknowledged the existence of a lease in favor of Disco Stop and two other lessees. The testimony indicates copies of the leases were furnished to Motwani before he purchased the property.

On February 24,1978, plaintiffs took title to the property from the Karnos and the Caraccis, and in the act of sale the vendors warranted they had not alienated the property except for the assignment of lease, rents, and profits which they had previously made in favor of the National American Bank. On the same date and before the same notary public, plaintiffs executed their own assignment of lease, rents, and profits to the National American Bank, which assignment specifically acknowledged and assigned the lease of Playgirl Shops of America, Inc. and referred to it as follows:

“That certain lease and sublease by Charles J. Napoli and John J. Elms, Jr., Joyce Elms Roche and Regina Elms Mau-berret to Playgirl Shops of America, Inc. covering that part of the first floor of 227-233 Bourbon as shown in lease approximately 1033 square feet.”

In their original brief, plaintiffs based their position almost entirely on the public records doctrine which states that the public records are dispositive of the rights of purchasers of immovable property regardless of their actual knowledge of adverse rights of third persons in or to the property. This doctrine was intended to protect innocent third parties who have no knowledge of the existence of any rights and/or claims against property, and allows them to take free and clear of any such unrecorded claims. The doctrine has been enforced even where the purchaser had actual knowledge of the outstanding unrecorded claims. However, the public records doctrine is not pertinent to the present case under its facts.

Defendants rely on Brown v. Johnson, in which the court stated that all persons have constructive notice of the existence and contents of recorded instruments affecting immovable property, and when such an instrument contains language which fairly places a purchaser on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having purchased the property at his own risk and peril. However, we likewise need not consider this exception to the public records doctrine because of facts found by us.

The record is clear that in the act of sale by which plaintiffs acquired title to the property the assignment of the lease by their vendors to the National American Bank of New Orleans was made the subject of an exception to unincumbered title. More important, however, is the fact that plaintiffs on the same day of their acquisition themselves executed an assignment of the same lease in favor of the same bank in order to furnish the lending bank additional security for its loan. Hence, the plaintiffs, with full knowledge, expressly assumed the lease obligations of their vendors and simultaneously acknowledged this assumption by means of an assignment of the lease to the bank. Because plaintiffs contractually assumed the obligation of the lease, the lease became their obligation and the Public Records Doctrine was rendered inapplicable.

A similar case, Stanley v. Orkin Exterminating Co., Inc., was decided by the First Circuit. In that case, Orkin entered into a written lease with the owner of the property but failed to record it. The owner subsequently sold the property to a Mr. and Mrs. Owens, who orally acknowledged the lease in favor of Orkin and accepted monthly rental payments from it. Eventually Stanley, the plaintiff, entered into a written agreement to purchase the property from Mr. and Mrs. Owens, and the agreement to purchase provided the sale of the property was subject to the Orkin lease. The sale to Stanley did not mention the lease, and he brought eviction proceedings against Orkin claiming the sale was free from the lease because he only intended to honor a recorded lease. Plaintiff testified he knew Owens intended to sell subject to the Orkin lease, and he acknowledged he was given a copy of the lease at the signing of the purchase agreement. The First Circuit held for Orkin, stating the public records doctrine was not applicable to the facts before it. The court found that the intent of the parties throughout the entire transaction was that the property was sold subject to the Orkin lease and this intention was expressly stated in the purchase agreement and impliedly agreed to by Stanley’s accepting monthly rental payments from Orkin.

In a supplemental brief, plaintiffs contend that defendants could avail themselves of plaintiffs’ actions only upon a showing that these actions constituted a stipulation pour autrui. The argument is without merit. Plaintiffs cannot use a known lease for their benefit by assigning it to a bank in order to obtain financing and later claim they did not have knowledge of the tenant or of the lease from which the assignment was derived. Having made the lease their own, they are obliged to maintain defendants in peaceable possession of the premises.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      .LSA-R.S. 9:2721 and 9:2722; McDuffie v. Walker, 125 La. 152, 51 So. 100.

      .La.App., 11 So.2d 713.

      .La.App., 360 So.2d 225.


text:
    Mr. and Mrs. Michael ALMERICO and Mr. and Mrs. Leon Blouin v. HIGHLANDS INSURANCE COMPANY and the Travelers Insurance Company. Stella M. DOUGLAS v. Fred GATEMAN and Taylor Diving Company and Highlands Insurance Company.
    Nos. 11199, 11200.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.

      George H. Jones and Frank J. D’Amico, New Orleans, for plaintiffs-appellees.
    Christovich & Kearney, Lawrence J. Ernst, New Orleans, for Fred Gateman, Taylor Diving Co. and Highlands Ins. Co., defendants-appellants.
    Frank J. Achary and James J. Morse, New Orleans, for The Travelers Ins. Co., defendant-appellee.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   SAMUEL, Judge.

This proceeding results from a vehicular collision which occurred in the city of New Orleans on June 24, 1977 at or near the intersection of North Claiborne Avenue and Annette Street. Involved were an automobile driven by Stella M. Douglas and a pickup truck driven by Fred Gateman in the course of his employment with Taylor Diving Company. The Gateman vehicle struck the rear portion of the Douglas vehicle, which in turn struck a building occupied as a dry cleaning establishment.

Mr. and Mrs. Michael Almerico, owners of the building, filed suit (No. 11,199 of our docket) against Highlands Insurance Company, the insurer of the Gateman vehicle, and Travelers Insurance Company, the insurer of the Douglas vehicle, for $15,000 for damage to the building. In the same suit, Mr. and Mrs. Leon Blouin, owners of the cleaning business, sued the same two defendants seeking $10,000 each for personal injuries, $10,000 for loss of business, and $1,500 for medical bills.

Travelers Insurance Company answered and denied negligence of its insured. It also filed a third party demand and recon-ventional demand against Highlands Insurance Company, Taylor Diving Company, and Fred Gateman for $69.60 for medical benefits paid by it to Stella M. Douglas and $1,633.32 representing amounts it paid- for damage to the Douglas vehicle. Travelers further sought indemnity or contribution from the third party defendants. Highlands Insurance Company also answered, denying liability on the part of its insured, and filed a third party demand against Douglas and Travelers for any sum for which it might be cast in judgment in favor of plaintiffs.

Highlands, Taylor Diving, and Fred Gate-man answered Travelers’ third party demand and reconventional demand, and Taylor Diving filed a third party demand against Douglas and Travelers for $527.19 damage to its pickup truck.

This case was consolidated with a suit (No. 11,200 of our docket) filed by Stella M. Douglas against Fred Gateman, Taylor Diving Company and Highlands Insurance Company, seeking $30,000 in damages for bodily injuries resulting from the collision. Taylor and Highlands answered, and Taylor filed a reconventional demand against Douglas for the $527.19 property damage.

After a trial on the merits, a single judgment was rendered against Highlands Insurance Company and in favor of (1) Mr. and Mrs. Michael Almerico in the amount of $9,425, (2) Mr. Blouin in the amount of $11,790.54, and (3) Mrs. Blouin in the amount of $4,700. The judgment also is against Taylor Diving Company and Highlands Insurance Company in favor of (1) Stella M. Douglas in the amount of $6,668.61, and (2) Travelers Insurance Company on its third party and reconventional demands in the amount of $1,702.92. Finally, the judgment is in favor of Travelers, dismissing the suits by all four plaintiffs as to that defendant, and against Highlands and Taylor Diving, dismissing all third party and reconventional demands filed by them. Highlands and Taylor Diving have appealed.

Appellants raise three issues which they assign as reversible error. First, they argue the trial court committed error by refusing to grant their motion for a continuance when the investigating police officer, Elmo Poche, failed to appear at trial even though appellants had served him with a subpoena. The record shows Poche had in fact been served, and counsel for Highlands and Taylor moved in limine for a continuance on the basis of his absence, asserting he was a material witness and their defense would be prejudiced by his absence.

In this court appellants argue the investigating officer’s testimony was critical since only Douglas and Gateman had any knowledge of the facts of the accident, and defendants were obliged to offer the testimony of Gateman in deposition form because of his absence from Louisiana. They rely on Article 1602 of the Code of Civil Procedure which provides:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.” LSA-C.C.P. Art. 1602.

Appellants also rely on the case of McCaleb v. Department of Public Safety, as authority for the proposition that Article 1602 imposes a mandatory duty upon the trial judge to continue a case when a material witness has absented himself without the contrivance of the party applying for the continuance.

We hold this argument is not well founded under the facts of this case. Appellants made no factual showing that Poche was a material witness. He was the investigating officer, his knowledge would have been limited to facts which he saw after the collision, and it is doubtful he could have established the manner in which the accident occurred since the Douglas vehicle did not remain at the point of impact. Moreover, the McCaleb case is not applicable. McCa-leb involved an injunction proceeding against the Department of Public Safety to prevent enforcement of an order suspending plaintiff’s driving privileges for refusal to submit to an alcohol analysis test. The police officers appeared at 9 a. m., were instructed to appear again at 12:30 p. m., but did not return. These officers “had been involved in the incident” and the Department of Public Safety intended to use them as witnesses on its behalf. The material nature of the officers’ testimony in McCaleb is obvious from the face of the proceeding, since they were involved in the incident directly and could give direct evidence regarding plaintiff’s refusal to take a sobriety test. Poche was not so involved.

Travelers further argues that former Rule 13, Section 5(d) of the trial court placed a duty upon defendants’ counsel to stipulate under oath what he intended to prove by Poche’s testimony, and the court was only under a duty to grant a continu-anee if the adverse parties refused to admit any material facts so stipulated. We do not decide this argument, since C.C.P. Art. 1604 places the duty of requiring such a stipulation upon the party opposing the continuance, and the cited local court rule seems to conflict with Article 1604 by placing that duty upon the party seeking the continuance. Nevertheless, we hold the trial judge did not commit error by refusing the continuance for the reasons above stated. In addition, the trial judge granted defendants’ motion that Officer Poche be made the subject of a writ of attachment, but defendants’ counsel did not obtain the necessary forms from the clerk for the judge’s signature. Hence no attachment was ever issued.

Appellants’ second argument is that the trial court committed error by failing to find Stella M. Douglas guilty of negligence. They contend the Gateman truck was traveling on North Claiborne in a westerly direction in the right lane of traffic. Gate-man claimed the Douglas vehicle turned from North Claiborne onto Annette Street in the wrong direction on a one-way street. According to appellants, she then backed her vehicle from Annette Street into North Claiborne Avenue directly into the path of Gateman’s approaching vehicle; Gateman saw this too late to avoid the collision; and he struck the rear of the Douglas vehicle.

On the other hand, Stella Douglas testified she was proceeding to a funeral and was attempting to maneuver her automobile toward the curb to park on North Claiborne near Annette when she was struck from the rear. A witness in a limousine going to the same funeral testified she noticed the Douglas vehicle behind the limousine as both vehicles proceeded westerly on North Claiborne.

The trial judge dictated reasons for judgment at the conclusion of testimony. His reasons clearly establish he believed the testimony of Douglas and her witness over that of Gateman. Thus, we are presented with a factual determination by a trier of fact in the face of contradictory versions of the manner in which the accident occurred, a matter of credibility. Our reading of the record fails to show this finding of fact was manifestly erroneous and, accordingly, we affirm insofar as this contention is concerned.

Finally, appellants concede “the established law of the State of Louisiana” is that the determination of damages by the trier of fact should not be disputed unless that determination is shown to be so excessive as to constitute an abuse of discretion. They nevertheless proceed through most of the awards made by the trial court to have this court reverse or reduce them.

Appellants argue the award of $9,425 to Mr. and Mrs. Almerico was speculative because the property damage testimony given by their witness was not based on an item-by-item detail of each thing to be done. Appellants produced a witness who testified it was more appropriate to make an estimate of construction repairs by item and such an estimate would be more accurate than an in globo estimate for all repairs. The next contention is that plaintiffs’ failure to provide a detailed damage estimate left the court with no justifiable basis to allow recovery for the entire sum established by the Almericos’ witness. However, the evidence in the record, including the testimony of both the Almericos’ witness and the opposing witness, regarding the amount of damage done to the building, amply demonstrates the trial court was within its discretion in making its award.

Appellants also argue the trial judge committed error by allowing $1,801.87 to Leon Blouin for hiring a security service to guard his dry cleaning business for three weeks. They estimate the repairs could have been effected within a period of one week, and argue the three week award was excessive. However, the facts show that the security service only watched the cleaning establishment daily from midnight until 7:30 a. m., and Blouin’s business had not been boarded up until a week had passed after the accident. Under the circumstances here, the evidence does not show Blouin, himself the recipient of bodily injuries in the accident, violated any duty to minimize or mitigate his damages or failed to use reasonable diligence.

The next argument is that the trial judge committed error by awarding Blouin $2,575.15 for lost profit instead of $1,770. Loss of profit is at best speculative in nature, and a great deal of discretion is afforded the trier of fact in making a determination for such an element of damages. We find no error in this award.

Appellants further argue the trial judge committed error by awarding Blouin $1,824.52 for “personal items” damaged by the accident. They contend the only evidence of this loss is Blouin’s own “self-serving testimony” and challenge his lack of professional training in evaluating damage to personal items. Under the circumstances of the case, and particularly in the absence of contradictory testimony, the trial judge did not commit error in making this award.

Finally with regard to Mr. Blouin, appellants argue the trial judge committed error by awarding him $3,500 for pain and suffering as a result of injuries sustained in the accident. They argue his injuries were minimal and urge his failure to miss work as a result of the accident supports their argument. The testimony of Blouin’s treating physician was that he sustained a contusion of the right hip with ecchymosis, muscle spasm of the lumbosacral region, limitation of motion of the right leg caused by a contusion, shock, and discomfort. He was seen first on June 27, and then on July 7, 11,19, 29, August 9, 22, and was discharged on the August 22, 1977 visit. The treating physician further based his diagnosis of shock on his observation that Mr. Blouin was upset and had tremors in his hand, which he said was consistent with being present in a building which partially fell around him. Given this testimony, we cannot say the award of $3,500 was beyond the trial judge’s discretion, even though an award of $2,500 for roughly similar injuries was made in a case cited by appellants.

Appellants also contend the awards to Mrs. Blouin of $1,700 for shock and $3,000 for pain and suffering are excessive. Mrs. Blouin was thrown to the floor and struck her back when the Douglas vehicle hit the wall of the building. She was taken to the hospital after the accident, and was found to have elevated blood pressure. She was seen by her treating physician with complaints of pain in the posterior chest, difficulty in breathing, headaches, and discomfort from her elevated blood pressure. Her physician gauged her blood pressure at 170 over 100, which he testified was quite high for a 36 year old woman. When he first saw her she was in a marked state of anxiety, distress, tearfulness sufficient to cause her blood pressure to elevate. She received x-rays because of chest pains and was prescribed a tranquilizer and hot compresses in the chest area. By August 11, 1977 she had returned to normal, as had her pulse rate, heart sounds, and internal chest sounds. Her physician specifically stated the elevated blood pressure was traumatically induced. Under these circumstances, we can afford little weight to the argument that Mrs. Blouin failed to prove an absence of elevated blood pressure prior to the accident.

Regarding the $3,000 award to Mrs. Blouin for her pain and suffering, the contention is that the trial judge based this award on six weeks of pain and suffering, while in fact plaintiff testified her pain only lasted three weeks. The testimony of Mrs. Blouin and her physician, read together, was sufficient to justify and award of $3,000 for pain and suffering. Appellants attack the $1,700 award to Mrs. Blouin for shock, on the same basis used in their attack on the similar award to Mr. Blouin. The same answer to the argument made by them with regard to Mr. Blouin is appropriate to the case of Mrs. Blouin, particularly in view of her physician’s testimony and her elevated blood pressure after the accident.

Finally, defendants contest the award made to Stella M. Douglas. They contend the $1,700 for shock and $4,200 for pain and suffering are clearly excessive. With regard to the award for shock, we reiterate the statements made above with regard to Mr. and Mrs. Blouin, and add that the Douglas vehicle was struck from behind and propelled into the wall of the Almerico building, which partially collapsed while plaintiff was still in the automobile.

Douglas initially was seen at St. Claude General Hospital on the day of the accident. X-rays of her neck and back were taken, and she was given medication. She then saw a treating physician on June 28, four days after the accident. She displayed moderate tenderness and muscle tightness of the trapezius muscle bilaterally, there was spasm bilaterally on palpation, and she experienced pain in the posterior region of her neck over the trapezius muscle on forward flexion and rotation of her neck in either direction over a 10° area. In addition, she had moderate tenderness and muscle tightness of the paradorsal muscle of the mid back with spasm bilaterally on palpation. She experienced pain in the mid back or forward flexion and rotation of the trunk in either direction and on straight leg raising to 45° bilaterally. Her physician diagnosed her condition as a moderately severe muscle strain of the neck, a moderately severe muscle strain of the upper and mid back, and a contusion of the chin with ecchymosis. She was treated with muscle relaxants and analgesics. She received diathermy treatments three times a week until August 10, when her improvement allowed reduction of treatments to two weekly. Examination on September 7 revealed tenderness but no definite muscle spasm, and diathermy was discontinued. She again was seen on September 14, 21, and 28, when she was discharged as asymptomatic.

Given these injuries, we cannot say the trial judge erred in making these awards to Stella M. Douglas.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . La.App., 309 So.2d 748.

      . It appears to us that the rule was not in effect at the time of trial.

      . Canter v. Koehring Company, La., 283 So.2d 716; Arceneaux v. Domingue, La., 365 So.2d 1330.

      . Appellants themselves cite Boswell v. Roy O. Martin Lumber Co., Inc., La., 363 So.2d 506.

      . See Carpenter v. Hartford Accident and Indemnity Co., La.App., 333 So.2d 296.

      . Scheinuk the Florist, Inc. v. Southern Bell T. & T. Co., La.App., 128 So.2d 683.

      . See Barry v. Fidelity & Casualty Company of New York, La.App., 223 So.2d 485.


author: BARRY, Judge.

text:
    Janice Kinchen, wife of Randolph M. HOWES v. Randolph M. HOWES.
    No. 11313.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Herman & Herman, Russ M. Herman, New Orleans, for plaintiff-appellee.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for defendant-appellant.
    Before BOUTALL, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

This matter is technically before us on a writ of habeas corpus. Disposition of the writ involved a determination of the fitness of each parent to have custody of two minor children. The issue is whether the trial court abused its discretion in granting the writ and continuing custody with the mother.

Subjects of the hearing were Michael (then 7), and Damien (then 5), children of Dr. Randolph M. Howes and Janice Kinchen Howes who were married August 31, 1964. In October 1978 the father moved from the family domicile and both sons remained with their mother. On October 26,1978 the mother was granted ex parte custody pen-dente lite when she sued for divorce on adultery. Dr. Howes filed a denial and reconvened for a separation alleging physical and mental abuses. He did not request custody, only visitation. In February, 1979 Mrs. Howes and the children moved to Hammond, Louisiana. Dr. Howes then filed a rule seeking custody of his two sons alleging child abuse and the unfitness of Mrs. Howes. In spite of these serious allegations and for no reason apparent in the record, on March 9,1979 Dr. Howes agreed to a consent judgment which continued custody of Michael and Damien with their mother. He was granted visitation on alternate weekends and holidays and for one month during each summer.

Following the full month visitation in July, 1979 Dr. Howes refused to return the children to their mother and he filed a rule to change custody. On August 6,1979, Mrs. Howes filed a contempt rule and then the instant writ of habeas corpus for return of the children in accordance with the prior consent judgment.

A review of the too lengthy transcript shows extensive hearsay and opinion testimony. The announced good intention of the trial judge to hear “all possible evidence” resulted in the inclusion of matters which have no probative value in assessing the relative fitness of each parent for custody or the best interests of the children.

Each spouse leveled a barrage of charges against the other. Dr. Howes alleged in his custody rule that the children had been abused by members of his wife’s family, that a twelve year old cousin had engaged in sex play with Damien, that Mrs. Howes’ relatives carried weapons, that Mrs. Howes was involved in an adulterous relationship, and that the children did not receive proper nutrition. Most of these allegations were based upon information given by Michael to his father. Further, Dr. Howes asserted physical deterioration of the children and their need for treatment of emotional problems which had developed since the boys were taken to Hammond by their mother.

Mrs. Howes charged Dr. Howes, a plastic surgeon, maintained extended office hours and that his spare time and weekends were spent in and out of town pursuing a career as a country-western singer. Further, Mrs. Howes averred an ongoing adulterous relationship with his nurse during the past 5 years. Other assertions against Dr. Howes included refusing to support the children, involvement in the sale of narcotics, authorship of an unpublished pornographic manuscript, and a violent temper which was evidenced by his shooting Mrs. Howes’ brother.

Litigation to terminate the marriage was pending at the time the District Court heard this matter. The amendment to LSA-C.C. Art. 146 became effective during the custody hearing and both counsel stipulated that the custody decree should be governed by Art. 146 as amended:

If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or the wife, in accordance with the best interest of the children. In all cases, the court shall inquire into the fitness of both the mother and the father and shall award custody to the parent the court finds will in all respects be in accordance with the best interest of the child or children. Such custody hearing may be held in private chambers of the judge.

The Supreme Court set forth guidelines applicable to appellate review of custody cases in Fulco v. Fulco, 254 So.2d 603 (La., 1971) which specified:

(1) Paramount consideration is the welfare of the child.
(2) Parental preference is in favor of the mother when considering a child of tender years.
(3) After a considered judgment of permanent custody based on (1) and (2), the parent seeking change of custody bears a heavy burden of proof.
(4) The trial judge’s decision is entitled to great weight on appellate review.

Amended Art. 146 does away with the maternal preference rule and (2) of Fulco no longer applies. Custody is now to be determined according to the best interests of the children after inquiry into the fitness of each parent. There is no legal preference or presumption in favor of either parent.

As mentioned above, an ex parte order was signed granting temporary custody to the mother when this litigation began; shortly thereafter a consent decree was entered into continuing custody with the mother. The record reflects that this is the initial determination of custody by adversary proceedings. For application of (3) of Fulco we have to determine if a “considered judgment” of custody is before us. “Considered” is defined as “deemed, determined, adjudged, reasonably regarded”. Black’s Law Dictionary 278 (5th Ed. 1979). The First Circuit has held that a considered decree of custody is one which is rendered after a trial of the issue and decision thereon applying pertinent principles of law. Gulino v. Gulino, 303 So.2d 299 (La.App., 1st Cir., 1974); Penton v. Penton, 260 So.2d 5 (La.App., 1st Cir., 1972). Both Gulino and Penton involved consent judgments and were cited with approval in Lemons v. Lemons, 325 So.2d 734 (La.App., 1st Cir., 1976). A consent judgment is not a judicial determination of any litigated right. See 49 C.J.S. Consent § 173. Further, it has been held that a custody judgment by default without evidence of fitness is not a considered decree. Stevens v. Stevens, 340 So.2d 584 (La.App., 1st Cir., 1976).

We conclude the consent judgment on March 9, 1979 is not a “considered judgment” and (3) of Fulco is inapplicable. It is therefore unnecessary to distinguish between or to consider the “heavy burden” requirement of (3) in Fulco, and the “double standard” rule set forth in Decker v. Landry, 80 So.2d 91 (La., 1955). We are constrained to evaluate the facts with the paramount consideration being the welfare of the children under (1) of Fulco.

The District Judge stated in his reasons for judgment on the writ that he did not believe the testimony of lay witnesses called by Dr. Howes. Nor did he give credence to Michael’s testimony concerning abuse by Mrs. Howes’ family. The trial judge further stated he found unreliable and untrustworthy the denials of Dr. Howes and his nurse that their relationship had always been a strictly professional one and that they have not been sexually intimate either before or after October 28, 1978. He felt testimony from two psychologists was tainted because it was based on subjective conclusions derived from interviews with Michael.

On the question of Mrs. Howes’ moral fitness, we deem it appropriate to quote the lower court:

“The court further finds that the sexual relationship between Mrs. Janice Howes and .... (paramour) .... has terminated and that during its existence it did not have any adverse or deleterious effect on the children.”

Since this appeal is an effort to revoke custody from the mother and the primary allegation of possible substance was her illicit affair, we look to the record for edification. Mrs. Howes and her paramour admitted that during March to May, 1979 they were sexually intimate on several occasions. (She testified to three meetings, he testified to five.) The children were not present. Her activities could not be described as “concubinage” since there was no cohabitation. The relationship ended approximately 3 months before trial and there was no evidence that it continued thereafter, nor proof that it had a deleterious effect on the children. If she had engaged in a calculated and continued public course of misconduct in defiance of generally accepted principles it would be regarded as detrimental to the children: we find she did not.

In assessing if a parent’s sexual lifestyle is cause for denying or removing custody, we consider whether the behavior was damaging to the children, i. e., if the children were aware of the illicit relationship, whether sex play occurred in their presence, whether the furtive conduct was notorious and brought embarrassment to the children, and what effect the conduct had on the family home life. Generally, infidelity per se does not result in loss of custody. Fulco, supra; Monsour v. Monsour, 347 So.2d 203 (La., 1977); Ingram v. Ingram, 382 So.2d 980 (La.App., 1st Cir., 1980); Coltharp v. Coltharp, 368 So.2d 793 (La.App., 2nd Cir., 1979); Greer v. Greer, 346 So.2d 846 (La.App., 1st Cir., 1977).

“One indiscretion or escapade does not render unfit a custodian who has been granted custody of a child in a court decree.... However, when a court reviews the total circumstances under which the child is living, a judge may find that the custodian has pursued a notorious course of conduct that reveals an utter lack of regard for the moral principles held by most members of society.... Certainly past misconduct forms one of the important considerations in a court’s determination of the suitability of the custodian of a child.... Nevertheless the primary consideration in any custody award is the welfare of the child.” Monsour v. Monsour, supra, at pp. 204 and 205.

Our courts have changed custody in rare circumstances, generally on facts involving notable deviation from ordinary moral standards. Schexnayder v. Schexnayder, 371 So.2d 769 (La., 1979) (because of the extreme notoriety of the wife’s sexual activities). Jurisprudence is to the effect that one act of adultery or even several acts with the same paramour does not necessarily render morally unfit a person otherwise suited for custody. Schexnayder, supra, at p. 772; Parker v. Parker, 304 So.2d 681 (La.App., 3rd Cir., 1974) writ denied 307 So.2d 641 (La., 1975).

The trial judge concluded his reasons for judgment by saying:

“Without delineating and commenting on each and every other piece of evidence and testimony relating to the fitness of each parent to the custody of the children, suffice it to say that upon considering the fitness of each parent and the best interests of the children the Court is of the opinion that Mrs. Janice Howes is the best qualified of the parents to have the custody of the children in that it is in the best interests of the children that she have custody of Damien and Michael Howes.”

No purpose would be served in detailing the numerous other charges. Custody decisions should be weighed on the basis of which parent is more fit instead of negatively determining the unfitness of one over the other.

We look to the transcript to determine which parent presented the most convincing positive testimony to evaluate the quality of fitness which would serve the best interests of the children. We are impressed with the testimony of Mrs. Howes’ six neighbors and acquaintances who stated that Mrs. Howes maintained a good relationship with her children, did not drink excessively, and other laudatory comments about her home and lifestyle.

The standard of review in custody matters gives great weight to trial court decisions which should be overturned only when there is clear abuse of discretion; (4) of Fulco, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La., 1980).

We have considered the totality of circumstances presented by this record, the written reasons submitted by the trial judge, the comparative fitness of each parent to have custody, and the predominant question of the best interests of the children. Our paramount concern in custody proceedings is the welfare of the children. Montgomery v. Montgomery, 383 So.2d 1384 (La.App., 4th Cir., 1980). The children’s welfare should encompass stability, security and continuity. We are cognizant the boys have lived with and spent most of their time with their mother since birth and following their parents’ separation.

This appeal involves a factual determination with wide discretion vested in the trial judge. We feel the evidence supports the conclusion that the mother is better suited to provide a family home for the children. We fail to find any abuse of discretion in the judgment which maintains the writ of habeas corpus directing that Damien Howes and Michael Howes be returned to the custody of Mrs. Janice Kin-chen Howes in accordance with the prior consent judgment.

The obvious bitterness between the parents promises continuing problems with the children being the victims of their animosity. This misdirected effort and expense could better serve to provide the needed family environment and parental love which these youngsters deserve.

The judgment of the District Court is affirmed. All costs of this appeal are to be paid by the appellant.

AFFIRMED.

      . No criminal proceeding resulted.

      . Act 718 of 1979 which amended LSA-C.C. Art. 146 became effective September 7, 1979. The lower court judgment was rendered October 2, 1979.


text:
    William G. RICHARDS et al. v. Horace V. RICHARDS. Mrs. Loretto Richards O’REILLY v. Horace V. RICHARDS.
    Nos. 11206, 11207.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 1980.
    Rehearing Denied Oct. 9, 1980.

      Thomas B. Lemann, Monroe & Lemann, New Orleans, for William G. Richards, Julian S. Richards and John J. Richards.
    Howard J. Smith, Doyle, Smith & Doyle, New Orleans, for Mrs. Loretto Richards O’Reilly and John J. Richards.
    Andrew L. Gates, III, Richard W. Simmons, Gordon, Arata & McCollam, New Orleans, for defendant.
    Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   REDMANN, Judge.

Because defendant trustee concedes that the trusts and his trusteeship have expired, the questions presented by this suit are moot. This appeal is therefore dismissed.

ON APPLICATION FOR REHEARING

We deny rehearing, notwithstanding defendant trustee Horace V. Richards’s concern that plaintiff John J. Richards, in his capacity as trustee of a trust which is identical to the three involved in this proceeding but of which Horace individually is beneficiary, does not agree that the last trust has terminated. Because of the alleged identity of the trusts in material particulars, Horace seeks rehearing, wishing to recall his concession given in response to our letter (with copy to other counsel) stating our preliminary view that the three trusts before us and their trusteeships had terminated. We refuse rehearing because, on the undisputed facts, the conclusion that these three trusts and their trusteeships have terminated is inescapable and that conclusion makes moot this proceeding for removal of a trustee.

La.R.S. 9:2252 declares that trusts “shall be governed by the laws in effect at the time of their creation.” When the Richards trusts were created in 1941, the trust law in effect was La. Acts 1938 No. 81. That Act’s ■§ 4 declares that “every ... trust created under this Act shall terminate ... at the expiration of ten years from the settlor’s death as to a beneficiary who is a natural person and of full age at the set-tlor’s death, and at the expiration of ten years from the beneficiary’s minority as to a beneficiary who is a natural person and a minor at the settlor’s death.”

The settlor died in 1960. Unless a beneficiary was a minor in 1960, each of the three Richards trusts before us terminated ten years thereafter, in 1970.

If a beneficiary was a minor in 1960 at the settlor’s death, that beneficiary’s trust would terminate ten years after he or she reached majority. But because Acts 1938 No. 81 § 24 required the beneficiary to be alive or at least conceived when the trust was created, our beneficiaries had to exist at least embryonically in 1941, and therefore had to be born no later than 1942 (see, by analogy, C.C. 187) and to reach age 21 (the 1941 age of majority under C.C. 37) no later than 1963, and “ten years from the beneficiary’s minority” had to occur no later than 1973. Thus a trust created in 1941 for a natural person by a settlor who died in 1960 could not extend beyond 1973.

Accordingly, the trusts before us expired either in 1970, ten years from the settlor’s death, or no later than 1973, which is at least ten years from the minority of any beneficiary alive or conceived in 1941.

We reject Horace’s argument that Rule IX-A, Uniform Rules, Courts of Appeal, prevents our deciding this case on an issue not raised at trial or on appeal. La.C.C.P. 2164 governs: “The appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” See also C.C.P. 862: “a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings ....”

Plaintiffs sought removal of a trustee on grounds the trial judge (in painstaking written reasons) deemed insufficient. Plaintiff is not entitled to, and we cannot render, a judgment removing as trustee one who is no longer a trustee. Nor can we render a declaratory judgment, after the trust has terminated, on whether certain actions constitute grounds for removal of a trustee. Courts may only decide “rights, status and other legal relations” by declaratory judgment, C.C.P. 1871; “we are not authorized to depart from deciding jus-ticiable controversies and enter the area of advisory opinions.” Edwards v. Parker, La. 1976, 332 So.2d 175. We therefore cannot review the merits of the trial court’s judgment. All that we can do is dismiss for mootness.

Rehearing refused.

      . The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by Art. 5, § 10(B) of the Louisiana Constitution of 1974 and Article 2164 of the Louisiana Code of Civil Procedure. Ordinarily, however, the Courts of Appeal will review only issues which were submitted to the trial court and which are contained in the specification of errors in the briefs or in an application for writs, unless the interest of justice clearly requires otherwise.


text:
    Billie V. BUSH v. Cecil Harris JONES, Executor of Estate of Anita Webb Brown, Deceased.
    No. 52048.
    Supreme Court of Mississippi.
    Aug. 20, 1980.
    Rehearing Denied Oct. 29, 1980.
    Billie V. Bush, pro se.
    Thelma S. Zinner, Biloxi, for appellee.
   Appeal from Chancery Court, Jackson County; Robert H. Oswald, Chancellor.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

AFFIRMED.


text:
    DOUG McCURLEY, INC. v. Thomas G. EVANS and Beverly H. Evans.
    No. 52135.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Rehearing Denied Oct. 29, 1980.
    Michael S. Allred, Thomas L. Kirkland, Jr., Satterfield & Allred, Jackson, for appellant.
    Paul D. Snow, III, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Jack A. Travis, Special Judge.

Before WALKER, BROOM and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., took no part.


author: BOWLING, Justice, for the Court:

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Leanna LINDSEY and Mrs. Mary T. Lindsey.
    No. 52174.
    Supreme Court of Mississippi.
    Oct. 1, 1980.

      Jerome B. Steen, Edward J. Currie, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, for appellant.
    Bill Waller, Jr., Waller & Waller, Jackson, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice, for the Court:

The primary question involved in this appeal is whether there was sufficient evidence presented to the jury for it to find that appellant waived the lapse or the forfeiture of appellees’ automobile insurance policy issued by appellant. The cause is appealed from a jury verdict for appellees on that issue and comes from the Circuit Court of the First Judicial District of Hinds County.

Appellant contends that its request for a peremptory instruction at the conclusion of all the evidence should have been granted. Another primary contention by appellant is that the lower court erroneously admitted highly prejudicial evidence and that such admission constitutes reversible error.

In discussing the first and primary question in the case, as stated above, it is so elemental that citation of authority is not needed that in considering whether the lower court erred in refusing the peremptory instruction for appellant, the lower court and this Court are required to consider all the evidence most favorable to the party against whom the peremptory instruction is being requested, and to allow the trier of facts to resolve every reasonable inference in favor of that party. With this obligation and after a careful study of the record, we first relate the evidence applicable to the first alleged error.

In March, 1976, appellee Leanna Lindsey was under twenty-one years of age and was attending the University of Mississippi School of Nursing at the Medical Center in Jackson. Her home was in Starkville, Mississippi, which also was the home of her mother, appellee Mrs. Mary T. Lindsey. Leanna had a 1970 Volkswagon automobile. She desired insurance on that vehicle and contacted one Glenn Rawson, the local agent in Starkville for appellant, State Farm Mutual Automobile Insurance Company. All parties were good friends and attended the same church. At Rawson’s suggestion, due to Leanna’s age, the named insured was listed on the policy as “Mrs. Mary T. Lindsey,” Leanna’s mother, although Leanna kept and used the car in Jackson.

In January, 1977, Leanna graduáted from nursing school and had become twenty — one years of age. During that month she purchased a Buick automobile through a financing agreement with a local bank. She immediately contacted appellant’s agent, Rawson, instructing him of the automobile change and further instructing him that the policy should be placed in her name and gave him her Jackson address. The existing policy was changed and the usual six month policy period was added so that the next premium due date was on September 11, 1977. Due to a misunderstanding, the renewal policy still was issued in the name of Mrs. Mary Lindsey, showing the Stark-ville address. The proof is clear that for many years the business procedure of appellant company was for it to issue automobile policies for periods of six months each with a premium due for each period. It is undisputed that sometime prior to September 11, 1977, the premium due notice was mailed from the company’s computer center in Monroe, Louisiana, to the still named insured, Mrs. Mary Lindsey, at the Starkville address. Mrs. Lindsey placed this notice with other mail that had been received directed to Leanna. On Leanna’s next visit home, she secured the premium notice and took it back to Jackson with her. At this time she was moving from the school dormitory to an apartment on Ridgewood Road. During the course of the move, the premium notice was misplaced. It was later found and on September 25, 1977, Leanna wrote a check payable to State Farm in the amount of $173.10, the amount requested on the premium notice from the company for the policy bearing the due date as stated above.

Leanna worked at night during the entire period in question and would get home about eight o’clock A.M. each day. On October 5,1977, she received a notice from the Starkville Bank that she should pay the overdue automobile policy premium. On the morning of October 6, 1977, Leanna [after stating that she had not mailed the September 25 check due to inability to secure stamps while working] placed the check in an envelope with the portion of the premium notice stating that it should be returned with the premium payment and deposited it in the apartment mail box. She then went to bed and got up late that afternoon. Afterwards, she and a friend went to a movie and at about 9:30 o’clock that evening, October 6, while driving the Buick car, she was involved in a collision with another vehicle at the intersection of North West and Taylor Streets in Jackson.

Leanna called her mother that night and requested that she contact Agent Rawson. Mrs. Lindsey did this and according to her, Rawson told her that everything was alright and that Leanna had a thirty-day grace period to pay the premium [Rawson later denied this but, as hereinbefore stated, the jury had a right to believe Mrs. Lindsey]. The mother then called Leanna and related to her the conversation with Agent Rawson. Rawson had given instructions to call appellant’s agent Wertz in Jackson. Leanna did so that evening and was informed that she should contact the company’s claims office in Jackson on the following morning. This was done by Leanna, who told the claims representative about the check being mailed with the required part of the premium notice being included. Leanna was informed by appellant’s claims agent that the computer printout from Monroe showed the policy had lapsed and that they would have to just wait and see what the company would do about the matter. Leanna talked with the claims representative “several times” during the next approximately two weeks, with the claim being held in abeyance pending final action by the company’s underwriting department.

On October 18, 1977, Leanna’s check was deposited in appellant’s premium receipt account. On October 19, it issued a new policy still in the name of Mrs. Mary Lindsey, and “back-dated” it to become effective 12:01 A.M., on October 7, some two and one-half hours after the collision occurred. According to the claims representative and the testimony of a Mr. Carter, a supervisor for the company in the Monroe, Louisiana, office of appellant, the reason for this action was that the envelope containing Leanna’s check and the premium notice showed a “P.M.” postmark rather than an “A.M.” postmark. He stated that had the envelope showed an “A.M.” postmark, the “new” policy would have become effective at 12:01 P.M. on October 6, which was some nine and one-half hours prior to the collision.

In December, 1977, appellees received a check from appellant in the amount of $32.40. The check was dated October 19, 1977, and did not state anywhere thereon any information as to why the check was issued and mailed. No witness for appellant ever explained the check. The reason for its issuance is completely unknown.

As stated at the outset, a study of the authorities on the question before us clearly shows that every case involving whether or not a lapse or forfeiture of an insurance policy is waived stands on a different factual basis and each has to be considered on its individual facts. We are not concerned here with a waiver being made by appellant as a matter of law. We are only concerned with whether or not all the testimony and its reasonable inferences made a question for the jury under the record of this particular case.

Recapitulating, we note several positive parts of evidence and reasonable inferences therefrom. At the outset, there obviously was a mix-up as to whose name would appear as the insured on the Buick automobile policy and to whom and what address the premium notices would be mailed. We next have the undisputed fact that the premium was not paid by September 11, 1977, the due date, and the end of the six months policy period. There was evidence from Mr. Carter, appellant’s representative from Monroe, that company procedure provided that if the overdue premium was received before the twenty-third day after being due, the existing policy would be reinstated; that if the premium was received from twenty-three to thirty-nine days after due date, a new policy would be prepared and placed in force, but if the overdue premium was received more than thirty-nine days after due date, the matter would be referred to a local agent for contact with the insured.

There is no dispute that at about eight o’clock on the morning of October 6, Leanna not only mailed the premium check but mailed with it the part of the premium notice she was instructed to mail back to the company with the check, which premium notice specified a particular policy with a particular number, and which policy was the one that was admittedly lapsed at that time.

It could reasonably have been inferred by the jury that during the period of approximately two weeks and several conferences between Leanna and the claims department, the company had notice that the Buick was a total loss and not insurable. Regardless of this, on October 19, the underwriting department issued a new “declaration” to be attached to the old pamphlet policy sold appellees in March, 1976, which declaration set out an entirely new policy with a new number and placed it into effect two and one-half hours after the collision occurred. It certainly can be reasonably inferred that the company knew the status of the matter between 12:01 A.M. on October 7 and October 19. The Buick car was a total loss and there was no insurable vehicle at the time the October 19th new policy was issued showing insurance on such a described car. As hereinbefore stated, a check for $32.40 was issued soon thereafter and was totally unexplained at the trial and in the record now before this Court. No one from the claims department testified in any way to refute the undisputed testimony of Leanna regarding her contacts with the company’s claims department for the approximate two weeks period of time.

It appears that the breakdown [as found by the jury] probably was a result of the necessary computerization by appellant of its large automobile insurance business. However, we cannot let that business procedure take away rights of individual insureds who are not computerized. As hereinbefore stated, we are not taking away any rights of either party-we are merely deciding whether or not there was sufficient evidence that requires us to affirm the verdict of the jury on the first issue.

We now turn to a decision as to whether or not under the authorities there was a jury question when considering the evidence and all reasonable inferences therefrom. In the case of Stonewall Life Insurance Co. v. Cooke, 165 Miss. 619, 144 So. 217 (1932), in discussing “waiver” of a forfeiture or a lapse, the Court stated:

If the insurance company has notice of the fact or facts which work a forfeiture at its option, any statement or conduct on its part inconsistent with forfeiture but consistent with nonforfeiture, will constitute a waiver of the forfeiture. “The law will never recognize one where the party claiming the forfeiture has not itself, at every stage, recognized it and insisted upon it.” . . .
Slight circumstances of intention to waive a forfeiture will be sufficient. The law “will seize upon slight circumstances as evidence of such intention.” . . .

See also Sovereign Camp W. O. W. v. Rhyne, et al., 171 Miss. 687, 158 So. 472 (1935); Continental Life Insurance Co. v. Clanton, 149 Miss. 289, 115 So. 569 (1928); Crum v. Prudential Insurance Co. of America, 356 F.Supp. 1054 (N.D.Miss., 1973).

There are several cases from the Supreme Court of Alabama on the question of waiver of a forfeiture. A situation similar to that in the case sub judiee was State Farm Mutual Automobile Insurance Co. v. Anderson, 294 Ala. 451, 318 So.2d 687 (1975). The Court there stated the following:

As a general rule, a contract of insurance is to be strictly construed against the insurer, and is to be liberally construed in favor of the insured, and, with respect to forfeitures, the courts will adopt that construction most favorable to the insured, and it may be said that forfeitures for nonpayment of premiums are not favored ...
The right to insist upon a forfeiture of a liability under a contract being a right which may be waived by the party in whom the right resides, such waiver may be implied from conduct inconsistent with the intention to exercise it, for neither party to a contract may receive the benefits accruing thereunder and avoid the liabilities created thereby. Romanoff Co. v. Cameron, 137 Ala. 217, 33 So. 864.
Probably there is no principle of insurance law more firmly settled, nor better grounded in justice and reason, than that an insurer, who receives and retains premiums, the very consideration for carrying the insurance risk, with knowledge of facts which, under stipulations for his benefit, would, in the absence of such knowledge, empower him to treat the policy as having never been in force, or as being no longer in force, will be held to have waived such stipulations. Waiver, strictly speaking, is a matter of intent. But, in such case, no proof of actual intent is required. Any other intent in such case would work a positive wrong or fraud on the insured. The law charges the insurer with the intent to waive under the doctrine of estoppel.

In its opinion in Anderson, supra, the Supreme Court of Alabama mentioned a case discussed by both appellant and appel-lees here-AIabama Farm Bureau Mutual Casualty Ins. Co. v. Hicks, 272 Ala. 574, 133 So.2d 221 (1961). An examination of that case and as pointed out by appellant, under a general set of facts similar to the case now before us, the Alabama Supreme Court held:

When the insurance company ascertained that Hicks suffered an accident during the defaulting period for which he claimed coverage, it could have offered (1) to return the premium for the defaulting period, or (2) it could have applied the premium for the period from November 27, 1956, to May 27, 1957, or (3) it could retain the premium and cover the collision loss.

The company chose the second condition and, as here, applied the premium to a new policy beyond the date of the collision that occurred after lapse. Appellant contends that this is what was done in the case sub judiee. The distinguishing feature is, however, that prior to the issuance of the new policy by appellant on October 19, the company had knowledge, according to any reasonable inferences undisputed in this record, that appellees’ car was a total loss and there was no car to insure under a new policy as was done in Hicks. In addition, it had Leanna’s check and the premium notice showing the only policy for which she was offering payment. She never requested a new policy and no representative of appellant ever inquired as to whether she wanted a new policy, even though, as before stated, there was no car to be insured.

Therefore, we find that under the evidence in this particular record there was a sufficiency thereof along with all reasonable inferences to be gained therefrom which required the lower court to deny appellant’s motion for a directed verdict, request for a peremptory instruction, and a judgment notwithstanding the verdict.

We now come to the second question in the case: Whether or not it was prejudicial error for the lower court to allow certain evidence of claims being made against ap-pellee, Leanna Lindsey, growing out of the collision in question.

Appellant filed its motion in limine requesting a pretrial order from the lower court adjudicating that the evidence in question was immaterial on the issue involved in the case about to be tried and would be highly prejudicial if even mentioned at the trial. This motion was overruled, and at the trial, the lower court permitted appellees to introduce a copy of a declaration then on file in the clerk’s office of the court under which the other party involved in the collision had filed a personal injury suit against appellee, Leanna Lindsey. Appellees also were permitted to introduce over objection a letter received by appellees from the insurance company of the other party making a demand on appel-lees for payment of its subrogation claim for repairing the other car involved in the collision.

The suit involved in this appeal was based solely on an attempt to collect for the loss of the Buick car owned by appellee, Leanna Lindsey. The question involving the policy coverage was close and it was highly prejudicial for the lower court to permit the introduction of the declaration for personal injury damages by the other car owner and the subrogation claim by his insurance carrier. As stated in Pacific Company v. Roy, 102 U.S. 451, 26 L.Ed. 141 (1880), this evidence “was well calculated to arouse the sympathy of the jury ... the reasonable presumption is that it had some influence upon the verdict.” Also see Paramount Fire Ins. Co. v. Anderson, 211 Miss. 372, 51 So.2d 763 (1951); 5A C.J.S. Appeal and Error § 1724, ps. 937-949.

We hold that the introduction of the above set out evidence was prejudicial and its introduction was reversible error. Therefore, we conclude that it is necessary to reverse the cause and remand it to the lower court for another trial.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and LEE, JJ., concur.

PATTERSON, C. J., and COFER, J., took no part.


text:
    Royce Wayne ASHLEY v. Sheila Pope ASHLEY.
    No. 52171.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rehearing Denied Oct. 29, 1980.
    Laurel G. Weir, Philadelphia, Roy Pitts, Meridian, for appellant.
    William E. Ready, George Ready, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.

SMITH, P. J., and SUGG, WALKER, BROOM and COFER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    John Wayne DARTY v. Gwendolyn W. DARTY.
    No. 52193.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rehearing Denied Oct. 29, 1980.
    Michael D. Jonas, Aberdeen, for appellant.
    Timothy W. Pace, Aberdeen, for appellee.
   Appeal from Chancery Court, Monroe County; George F. Adams, Chancellor.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.