author: HALL, Judge.

text:
    Reggie G. SKAINS d/b/a RGS Construction Company, Plaintiff-Appellant, v. Rodney WHITE d/b/a Rodney White Construction Company et al., Defendants-Appellees.
    No. 14330.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      Joseph A. Cusimano, Jr., Ltd. by Joseph A. Cusimano, Jr. and Harold Wayne Aswell, Parmerville, for plaintiff-appellant.
    Meadors & Meadors by William F. M. Meadors, Jr., Homer, for defendants-appel-lees, Rodney White d/b/a Rodney White Construction Company, Town of Homer, and American Employers’ Insurance Company.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, Reggie G. Skains d/b/a RGS Construction Company, brought suit against Rodney White d/b/a Rodney White Construction, the Town of Homer, and White’s surety to recover the balance allegedly due for seeding, fertilizing and hay mulching work done by plaintiff as subcontractor for White, the general contractor on a job for the town at the Homer Airport. The amount sued for was $16,846.50. The defendants answered admitting that plaintiff was due the sum of $4,684.23, which defendants had offered to pay and were willing to pay to the plaintiff. After trial the district court rendered judgment in favor of the plaintiff for $5,104.23 and assessed all costs to the plaintiff. The plaintiff appealed. We amend the judgment to increase the award to plaintiff and to cast the defendants for costs.

In preparation for submitting a bid on a contract with the Town of Homer to perform certain dirt-moving and landscaping work at the town’s airport, Rodney White, a dirt contractor, telephoned the plaintiff, Skains, a seeding, fertilizing and mulching contractor, to obtain a bid or price on the hay mulching portion of the contract. Skains quoted a price of $700 per acre for the eight acres to be mulched. Skains testified he also quoted prices on the seeding and fertilizing parts of the contract. White denied that there was any discussion about the seeding and fertilizing, he having already received prices on these items from two persons in the seed and feed business.

White submitted the low bid of $51,-341.11, was awarded the contract, and commenced the work. His bid discloses unit prices of $632 per acre for deep seeding and fertilizing, $537 for shallow seeding and fertilizing, and $875 for straw mulching.

White contacted Skains and it was agreed that Skains would do the hay mulching work for the price previously quoted of $700 per acre. The parties both testified that at this point in time Skains was not given the seeding and fertilizing job. Later, White and Skains met at the jobsite and it was agreed that Skains would also do the seeding and fertilizing work which involved soil preparation, fertilizing and seeding of 26.5 acres. White testified that Skains said he would do it as cheaply as anyone else and that Skains was aware of the prices White had been quoted for this work by other persons. Skains testified that he asked White if he had bid enough to cover the prices that he, Skains, had previously quoted to White, and that he told White that he would do the work as cheaply as anybody “in the business” would do it.

Skains completed his work in three days and submitted the following statement to White:

26.5 acres of seeding & Fertilizer 22,600 lbs. fert at .25 per lb. $ 5650.00
1.350 lbs. seed at 7.00 per lb. 9450.00
$15 ,10'CTW
Less cost of Seed & Fertilizer 3,853.50
Total Due for Seed & Fertilizer §11,246.50
8 acres of Hay Mulching at 700.00 per acre $ 5600.00
Total Due $16,846'.3Ü'

White considered the statement excessive and refused to pay it, apparently at first offering to pay $10,000 in settlement and later, through his attorney, offering to pay $4,684.23. This suit ensued.

The district court found, first of all, that there was no contract price established between the parties. With this conclusion we fully agree. The testimony of both parties establishes that a meeting of the minds as to a price which Skains was to charge White for the seeding and fertilizing work was not reached.

The trial court then correctly concluded that plaintiff was entitled to be paid the hay mulching subcontract price of $5,600, which was stipulated by the defendant as being due the plaintiff. The district court also found that plaintiff was entitled to an additional $420 for the hay mulching work since the mulching actually covered 8.6 acres rather than the eight acres originally contemplated. Defendants make no complaint about this item on appeal.

In regard to the seeding and fertilizing work the trial court accepted the defendant’s analysis of the amount due. This analysis used the bid defendant received from Fred Smith & Sons for the cost of the seed and fertilizer plus spreading, of $2,337.73, plus $600 which defendant testified would be the reasonable cost of doing soil preparation and rolling work, making a total of $2,937.73 as the total reasonable price for the entire seeding and fertilizing operation. Adding the $2,937.73 to the $5,600 due for hay mulching made the total contract $8,537.73. White had paid $3,853.50 for the seed and fertilizer directly to the supplier; deducting this amount from the total contract price left a balance of $4,684.23. The trial court judgment awarded this amount plus an additional $420 for the added hay mulching, or a total of $5,104.23. In basing the award on this analysis, the trial court was in error. The result of the trial court’s analysis and judgment is that the plaintiff recovers nothing for the seeding and fertilizing work successfully completed by him, and, in fact, he is charged with a $900 loss for that work against the amount due to him for the hay mulching work.

In the absence of an agreement between the parties as to price plaintiff is entitled to be paid for the work done by him under principles of quantum meruit, the source of which is LSA-C.C. Art. 1965. Plaintiff is entitled to recover his actual cost, including general overhead attributable to the project, and a reasonable profit. Brummett v. Hamel’s Dairy, Inc., 324 So.2d 502 (La.App.2d Cir. 1975); Swan v. Beaubouef, 206 So.2d 315 (La.App.4th Cir. 1968).

The Fred Smith bid is of little or no assistance in determining the reasonable cost, overhead and profit to which the plaintiff is entitled for the seeding and fertilizing work. The evidence shows that the Fred Smith company is an experienced feed and seed dealer with experience in spreading its product, but with very little experience in the type of project involved in this instance. Its bid did not include the soil preparation and finishing work called for by the contract and performed by Skains. The bid was based on a single application of mixed fertilizer and seed whereas the specifications in the contract called for fertilizer and seed to be applied in separate steps, which is the manner in which Skains did the job and which the evidence shows was in accordance with good seeding and fertilizing practices. The price quoted by Fred Smith included the cost of the seed and fertilizer and spreading, but the actual cost of the seed and fertilizer alone, at least some of which was bought from Fred Smith and which defendant himself paid, was $3,853.50, substantially more than the total Fred Smith bid.

Skains testified that he normally bid this kind of work on a per pound of seed and fertilizer basis and that the going rate at the time, converted to a per acreage figure, was about $570 per acre, the amount that he billed the defendant. That this was the going rate for this type of work was verified by another experienced seeding and fertilizing contractor and by the stipulated testimony of even another such contractor. However, this testimony is not of great value in determining what the actual cost was to the plaintiff, plus overhead and a reasonable profit, which is the standard to be used in setting recovery based on quantum meruit in the absence of an agreed price. What the plaintiff or other similarly situated contractors might have bid for the same job is not the measure of recovery.

Plaintiff testified to the accuracy of and offered into evidence a written detailed breakdown of his actual costs related to both the hay mulching and seeding and fertilizing work. The breakdown reflects labor cost for seven men for three 12-hour days of $1,731.60. The breakdown shows the equipment used on the job at hourly rates, some of the equipment being used in connection with the hay mulching operation and some being used in connection with both operations. The breakdown also shows material costs including hay, asphalt, seed and fertilizer.

The evidence shows that plaintiff spent two days on the seeding and fertilizing operation and one day on the hay mulching work. Accordingly, % of the labor cost, or $1,153.25, should be attributed to the seeding and fertilizing work. Eliminating the hay machine and asphalt truck which were used only in the hay mulching operation, % of the cost of the other equipment on the job attributable to the seeding and fertilizing work amounts to $1,438.56. The hay and asphalt used in the hay mulching operation cannot be considered in the cost of doing the seeding and fertilizing work, and the seed and fertilizer were paid for directly by the defendant, so none of the material costs listed in the breakdown are to be considered in the cost of the job to the plaintiff. Consequently, the total cost to the plaintiff of the seeding and fertilizing operation as established by his own breakdown is $2,591.81.

Plaintiff’s testimony, corroborated by that of the other two contractors in the same business who are plaintiff’s competitors, establishes that contractors in this business seek to make a profit of 50% to 60% on their jobs. This relatively high margin of profit is necessary because of the seasonal nature of the work and risk of unforeseen developments and expenses in connection with particular jobs. The plaintiff is entitled to recover the low-side profit considered reasonable and necessary in his line of work. In setting a reasonable profit of 50%, we have taken into account the fact that the profit percentage in this instance is being applied to the cost of labor and equipment only, although it is usually also applied to the cost of the seed and fertilizer. Fifty percent of his cost of $2,591.81 is $1,295.90.

Plaintiff offered no evidence as to his general overhead cost other than payroll taxes and insurance which were included in the breakdown of labor costs.

Plaintiff is, therefore, entitled to recover the sum of $3,887.71 ($2,591.81 plus $1,295.90) for his cost, overhead and reasonable profit on the seeding and fertilizing work. Adding the $6,020 due for the hay mulching work, plaintiff is entitled to judgment for $9,907.71. No credit is due to the defendant for the amount the defendant paid for seed and fertilizer because this amount has not been figured into plaintiff’s costs.

To view the award made to plaintiff in proper perspective, it is to be noted that the defendant was paid approximately $20,000 by the Town for the seeding, fertilizing and hay mulching portion of his general contract.

Court costs should be assessed to the defendants under LSA-C.C.P. Art. 1920, there being no equitable reason to vary the general rule that costs are to be paid by the parties cast in judgment.

Accordingly, and for the reasons assigned, the judgment of the district court is amended to increase the amount of the judgment in favor of the plaintiff and against the defendants, in solido, to the sum of $9,907.71, together with legal interest thereon from date of judgment until paid, and to cast the defendants, in solido, for all costs of these proceedings, including the cost of appeal.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    CITY OF SHREVEPORT, Plaintiff-Appellant, v. Stanley J. BERNSTEIN, Defendant-Appellee.
    No. 14345.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.

      Francis M. Gowen, Jr., City Atty., Shreveport, for plaintiff-appellant.
    Giddens, McKenzie & Garrett by J. David Garrett, Shreveport, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The City of Shreveport filed suit to expropriate certain property belonging to the defendant for inclusion in a proposed recreational park. The defendant answered, contending in substance that the fair market value of the property was considerably higher than the sum tendered by the City, and reconvened for loss of rental income and attorney fees.

After trial judgment was rendered ordering the expropriation; fixing the fair market value of the involved property at $25,-320; awarding defendant $5,088 for loss of rental income; awarding the defendant an attorney fee of $1,500; and fixing the expert witness fee of defendant’s appraiser.

The City appealed this judgment, contending that the trial judge erred in (1) placing an excessive valuation upon the expropriated property; (2) allowing the defendant to recover for loss of rental income; and (3) awarding an expert witness fee for defendant’s appraiser who had not been accepted by the trial court as an expert witness.

Defendant answered the appeal, asserting that (1) the value placed by the trial judge upon the expropriated property was inadequate; (2) the amount awarded for loss of rental income was insufficient; (3) legal interest on the value of the property expropriated should have been decreed due from the date that this value was placed at issue by the answer rather than the date of rendition of judgment; (4) the attorney fee for services rendered in the trial court should be increased; and (5) an attorney fee should be awarded to him for services connected with this appeal.

The real estate involved in this litigation consists of a lot in the Allendale area of Shreveport with a frontage on Milam Street of 80 feet and a depth of 125 feet. Four separate wood frame “shotgun” duplexes, occupied by tenants of defendant, were situated on the described lot. Each of the four units fronting on Milam Street rented for $48 per month and each of the four rear units rented for $45 per month. There was a minimal turnover of tenants and the units were normally fully occupied.

Defendant first learned of the City’s plans relating to the proposed recreational park in March of 1976 when a city employee brought a letter advising him of the project. It was suggested that defendant inform his tenants of the proposal and advise them that the City would help them relocate. At that time defendant was under the impression that the acquisition of his property by the City would be consummated in about four months. In April, 1976 the defendant and a city employee spoke with the tenants about the planned park and their required relocation. In June, 1976 local newspapers published articles about the projected park. Appraisers representing the City inspected the property in August, 1976. By letter dated July 29, 1977 the City formally advised the defendant of its intent to acquire his property for the park. In September, 1977 the defendant received an offer from the City to purchase his property for $20,-100, which he rejected.

Between April, 1976 and February, 1978 all of defendant’s tenants vacated the rent premises because of the City’s anticipated acquisition of the property. Defendant did not attempt to secure new renters for the units, but permitted them to remain vacant. According to defendant, vandals wrought their usual havoc upon his unoccupied property.

The City’s expropriation suit was filed in April, 1978. Trial was had in June, 1979 and judgment was rendered on January 25, 1980.

Market Value of Expropriated Property

It is well recognized that the concept of “fair market value” has been used by our courts as a measurement of “just compensation.” Market value is “that price most likely to be agreed upon after free and open negotiations between a willing seller and a willing buyer.” Market value may be calculated by the comparable sales method, the income capitalization method, or the replacement cost less depreciation method.

The appraisers conceded that the best and highest use of the subject property was for income residential property. Further, they agreed that the most accurate method for establishing the fair market value was the capitalization of rental income approach, using a gross rental multiplier.

We recognized the validity of this approach in the case of State v. Gras, 131 So.2d 628 (La.App. 2d Cir. 1961) with this explanation:

“The process of gross income multiplication converts gross income into a value estimate by means of one operation by multiplying the gross income by a factor. For example, if in a specific district comparable unfurnished apartment houses, providing the same kind of service, were moving on the market at a certain multiple, such as 7 times the gross rental plus services, then the value of the subject property could be said to be 7 times its income schedule.”

Thomas B. Dupree, Jr., one of the City’s appraisers, testified that he examined nine comparable sales of properties in the process of establishing the appropriate gross rental multiplier for the subject property. In those sales, which took place between 1974 and 1977, the rental multipliers ranged from a low of 2.1 to a high of 4.6. Since the latter involved property which was only slightly more valuable than defendant’s property, Dupree concluded that a gross rental multiplier of 4.5 would be appropriate in this case. Applying this to the annual rental of $4,064, he arrived at a rounded-off market value of $20,100. In October, 1979 Dupree revised this upward, based on increased rentals, to $21,400.

The City’s other appraiser, John W. Lan-den, after examining what he considered to be comparable sales, calculated a gross rental multiplier of 4.17, and arrived at a market value of $20,000, which was revised upward to $21,160 in April, 1979.

Although not a professional real estate appraiser, Charles L. Thomas, Jr., who managed and owned extensive rental property, was tendered as an expert on behalf of defendant and was so accepted by the trial judge (appellant incorrectly asserts that Thomas was not accepted as an expert witness by the trial judge). This witness stated that the appropriate gross rental multiplier was 6.5 and bases his computation of market value on that figure.

After considering these appraisals, the trial judge decided to use a gross rental multiplier of 5.0 to calculate market value of the expropriated property. Further, since the appraisers for the City did not take into consideration the fact that the tenants paid their own water bills, he added an additional $600 to the annual rental income to which the gross rental multiplier was applied, arriving at a market value of $25,320 for the defendant’s property which was taken by the City.

As we pointed out in City of Shreveport v. Pupillo, 390 So.2d 941 (La.App. 2d Cir. 1980):

“In expropriation cases the trier of fact’s decision of the amount for which a landowner should be compensated is a factual decision and as such should not be disturbed by us on appeal in the absence of manifest error.”

The following pertinent comment is found in State v. Van Willet, 386 So.2d 1023 (La.App. 3rd Cir. 1980):

“The trier of fact is not required to accept or reject the testimony of each witness in toto. The trial judge is not required to accept the precise amount of any expert. He may instead make an award in an amount to which no expert testifies since the trial court is empowered to evaluate the weight to be given to each witness’ testimony, as well as to make factual determinations as to which of the facts relied upon by the witnesses relevantly influences market value...”

In the case at bar the trial judge made a fact-finding ■ that the appropriate gross rental multiplier was 5.0 rather than the 4.5 suggested by the City’s appraiser, Dupree. Since he was not clearly wrong in this finding it will not be disturbed on appeal.

Loss of Rental Income as Compensable Item

There is no question but that defendant’s tenants began vacating their rented premises soon after learning of the City’s plan to acquire that property for its proposed park. It is understandable that defendant did not attempt to secure new renters, not only because of the vandalism, but because he expected the City to proceed with its project in the immediate future. It was not his fault that the City delayed so long in completing the property acquisition. He did, in fact, suffer a loss because of the City’s dilatoriness. Contrary to appellant’s argument, defendant is not asking for damages because a third party (the City) induced his tenants to breach their rental agreements, but is simply seeking recovery of a loss occasioned by the contemplated expropriation proceeding.

It is now recognized that Article 1, Section 4 of the Louisiana Constitution of 1974

“. . . effected substantial changes in expropriation law, most of which are apparently aimed at protecting the interests of property owners. Potentially the most far reaching change was the inclusion of the phrase, ‘the owner shall be compensated to the full extent of his loss.’ Although section 4 retains the phrase ‘just compensation,’ the courts have looked to the new phraseology as the measure or standard for compensation.”

In State v. Constant, 369 So.2d 699 (La.1979) the Louisiana Supreme Court construed this constitutional provision to require compensation for any economic loss sustained by the property owner, including the cost of replacing his business facilities. The court pointed out that the intent of the pertinent constitutional provision was to “broaden former constitutional concepts of the measures of damages” and “to permit the owner to remain in equivalent financial circumstances after the taking.” It was not deemed constitutionally significant that the award to the landowner would exceed the market value of the property expropriated.

The record in the case under consideration establishes that the defendant lost rental income because of the City’s action, or inaction, incidental to the expropriation proceeding. Denying recovery of that loss would violate the constitutional mandate that the owner “be compensated to the full extent of his loss.” Further, contrary to the ruling in Constant, he would not “remain in equivalent financial circumstances after the taking.”

For these reasons we conclude that the trial judge was correct in making this award of lost rentals to the defendant and properly acted within his discretion in computing the amount due, based on the period that elapsed between the visit of the City’s appraisers to the property in August, 1976 and the filing of the expropriation suit in April, 1978.

Interest Computation

Appellee contends that legal interest should run from the date the value of the subject property was put at issue with the filing of his answer rather than from the date of the rendition of the judgment as decreed by the trial judge.

We recently held in Trunkline Gas Co. v. Rawls, No. 14,348 (La.App.2d Cir. 1980) that:

“In cases of expropriation by entities such as plaintiffs, the property is not taken until a judgment is signed and interest does not begin to run on the amount of the judgment from date of demand, but runs from date of judgment or from the date plaintiff appropriates the property to its use, whichever date is sooner.”

Consistent with that reasoning, we agree with the trial judge that legal interest on the judgment for the value of the property taken should run from the date of rendition of the judgment, since the City had not appropriated the property to its use prior to that date.

Attorney Fees

La.R.S. 19:8 sanctions the award of attorney fees to the landowner if the highest amount offered by the expropriating authority is less than the actual compensation awarded.

In the case at bar the appellee asserts that the trial judge’s attorney fee award of $1,500 was inadequate. The amount offered by the City to the defendant was $20,100. The total amount of the trial court’s award was $30,408, including both the market value of the property taken and the amount of lost rentals. Therefore, the difference between the amount offered and the amount awarded is $10,308.

In City of Shreveport v. Pupillo, supra, we determined that an attorney fee based upon 25% of the difference between the amount offered to the landowner and the amount awarded by the court was a reasonable attorney fee. Consistent with that holding, we conclude in this case that the attorney fee, for services rendered in the trial court and on appeal, should be fixed at $2,500.

Conclusion

For the reasons set forth, we amend the judgment of the trial court to increase the attorney fee award to $2,500 and, as amended, affirm at appellant’s cost.

      . M. Dakin & M. Klein, Eminent Domain in Louisiana 30-31 (1970).

      . See Note — Expropriation: Compensating the Landowner to the Full Extent of His Loss, 40 L.Rev. 817 (1980).

      . See Note, 40 La.L.Rev. 817, 821, supra.


text:
    Connie EPPINETTE; Louis Eppinette, Individually and as Tutor of the Minor, Khealy Eppinette, Plaintiffs-Appellants, v. George SMELSER; The Western World Insurance Company; Columbus Chester; The Integon General Insurance Corporation and The Maryland Casualty Co., Defendants-Appellees. MARYLAND CASUALTY COMPANY and James D. Eppinette, Plaintiffs-Appellants, v. Columbus CHESTER and George Smelser, Defendants-Appellees.
    Nos. 14346, 14347.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      Travis M. Holley, Bastrop, for plaintiffs-appellants.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for Western World Ins. Co. and George Smelser.
    Theus, Grisham, Davis & Leigh by Brian Crawford, Monroe, for Maryland Cas. Co.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

These consolidated cases arose out of a collision which occurred on August 6, 1978 in Bastrop, Louisiana between a car owned by James D. Eppinette and a small tractor owned by George Smelser and operated by Columbus Chester.

In No. 14,346 suit for personal injuries was brought against Chester; Smelser and his liability insurance carrier, Western World Insurance Company; and Maryland Casualty Insurance Company, uninsured motorist carrier for the Eppinette vehicle. Maryland Casualty filed a third party demand against Western World.

In No. 14,347, Eppinette and Maryland Casualty sued Chester, Smelser and Western World for property damages to the Eppinette car.

In each of these petitions it was alleged that the accident was due solely to the negligence of Chester who was acting within the course and scope of his employment with Smelser. It was alleged, alternatively, that Smelser was independently negligent in permitting an incompetent driver to use his tractor.

Smelser and Western World filed a motion for summary judgment in the consolidated actions, accompanied by depositions of Smelser and Chester. Plaintiffs filed no affidavits or other documents in opposition to the motion.

The following facts were established by the depositions: Chester had been employed by Smelser for about five years as a tractor driver on the latter’s plantation in More-house Parish; Smelser was the owner of a small, utility type tractor which was not required to be registered with the Louisiana Motor Vehicle Department because it was used primarily for off-road farming operations; Chester lived on the “Perry place” located about five miles from Smelser’s plantation; because of a request from Perry, on the Friday afternoon prior to the accident Smelser permitted Chester to take the tractor home with him in order that he could “bushhog” or mow the grass around the Perry dwelling; at the time he took the tractor Chester did not appear to be intoxicated or otherwise incompetent; Chester began cutting grass on the Perry property about 10:00 o’clock a. m. on the following Saturday morning and completed his work around 3:00 o’clock p. m. that afternoon; Chester then parked the tractor in his yard, in front of the Perry residence, and left it there until Sunday afternoon; at about 3:00 o’clock on Sunday afternoon Chester drove the tractor into Bastrop, some seven miles north of the Perry property and in the opposite direction from the Smelser plantation, in order to take some of his clothes to the washateria; upon completing this personal task and in the act of leaving Bastrop, Chester was involved in the accident with the Eppinette vehicle; Chester did not have permission from Smelser to take the tractor to Bastrop on Sunday afternoon; Chester denied in his deposition that he had consumed any intoxicating liquor prior to the accident; Chester had not possessed a valid driver’s license for six or seven years because of two convictions for driving while intoxicated; Smelser knew that Chester did not have a driver’s license; Smelser knew that Chester had a “drinking problem” during the entire time of his employment with Smelser and that it was impossible to predict when he would show up on the job intoxicated, although Chester’s drinking bouts were usually confined to the weekends; and Smelser was aware that Chester had no alternative means of transportation when he took the tractor home.

The trial judge held that Smelser was not liable under the doctrine of respondeat superior because Chester was clearly not acting in the course and scope of his employment when he took the tractor to Bastrop on Sunday afternoon.

On the issue of Smelser’s independent negligence, the trial judge reasoned:

“. . . it is extremely doubtful that Smelser’s knowledge of the drinking propensities of Chester and of his lack of a driver’s license would either constitute negligence on his part in allowing Chester to keep the tractor over the weekend or would have any causal connection with the accident in the circumstances revealed by the depositions — Chester’s use of the tractor at the time of the accident was totally beyond Smelser’s knowledge and consent in both time and purpose.”

For these reasons, the trial judge then sustained the motion for summary judgment, dismissing plaintiffs’ demands as to Smelser and Western World. Plaintiffs appealed this judgment, apparently conceding that Chester was not in the course and scope of his employment with Smelser at the time of the accident, but contended that the trial judge erred in concluding that there was no factual dispute as to Smelser’s independent negligence.

There is no question but that a motion for summary judgment is to be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Employers Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978).

The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Chaisson v. Domingue, supra; Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977).

On the significance of plaintiffs’ failure to file opposing affidavits or depositions, the court in Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980) pointed out:

“On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must by denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.”

We agree with the trial judge in this case that the supporting documents presented on behalf of Smelser and Western World are sufficient to resolve all material fact issues, particularly on the critical question of Smelser’s alleged independent negligence. Contrary to appellants’ contention that the principal issue presented on appeal is whether a material fact question remained unresolved, we view the crucial issue to be whether, upon the basis of the undisputed facts, movers were entitled to a judgment as a matter of law. As noted in Sanders v. Hercules Sheet Metal, Inc., supra, “a motion for summary judgment must be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court.”

In Johnson v. Edmonston, 383 So.2d 1277 (La.App.1st Cir.1980) appellants argued the summary judgment had been improperly granted because “there existed a relevant, genuine issue of fact, i.e., whether movers’ actions were negligent.” Rejecting this contention, the court commented:

“Although the facts related to the occurrence and movers’ involvement are undisputed, questions remain as to whether movers’ conduct constitutes negligence and as to whether the relationship among the defendants was such as would be a basis for the imputation of negligence. Plaintiff argues that the existence of negligence is an issue of fact to be resolved at trial. We recognize that if the evidence presented on the motion for summary judgment is subject to conflicting interpretations or reasonable men might differ as to its significance, a summary judgment would be improper. However, when reasonable minds must inevitably conclude the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted since in that case the reasonableness of conduct is an issue of law. ...”

In our cases the question posed is: upon the basis of the undisputed facts should reasonable minds inevitably conclude that Smelser was not guilty of independent negligence as a matter of law in permitting Chester to take his tractor on the weekend of the accident?

The plaintiffs in Morton v. American Employers Ins. Co., 104 So.2d 189 (La.App.2d Cir.1958) sought judgment against a car salesman because he allegedly entrusted a vehicle to a driver (later involved in an accident) who was under the influence of liquor and incompetent to drive. Enunciating a well recognized rule of law, the court held:

“. .. the lender of an automobile is not responsible for the negligence of a borrower unless he had knowledge of facts which indicated the borrower to be an incompetent operator ... if the evidence showed Busher knew or should have known Casey was under the influence of liquor at the time he turned over to him the Chevrolet automobile, Busher would be personally responsible. But such is not the evidence in this case. ...”

On the other hand, in Winzer v. Lewis, 251 So.2d 650 (La.App.2d Cir.1971), a defendant-employer was held independently negligent because he “violated the law by allowing Lewis to drive his truck freely, knowing Lewis did not have a driver’s license, and knowing Lewis’ license had been suspended or revoked because he had been convicted of drunken driving.” (Emphasis supplied)

In Kemp v. Fourmy, 265 So.2d 651 (La.App.2d Cir.1972), plaintiffs had alleged that an employer knew that his employee was continuously reckless and that the accident in question was caused by his recklessness. Reversing a lower court judgment which sustained an exception of no cause of action, this court stated:

“If an owner knows that a licensed driver is incompetent, he risks responsibility to a third party injured through that incompetence if he allows that driver to operate his vehicle.”

It was established in Danos v. St. Pierre, 383 So.2d 1019 (La.App.1st Cir.1980) that the owner of a car knew that the driver was intoxicated when she entrusted the vehicle to him. The appellate court affirmed the trial judge’s finding that the owner was independently negligent because “it is established law that the owner of an automobile who knowingly entrusts it to an intoxicated, or other incompetent, driver is responsible for the harm resulting from the incompetent operation of the vehicle.”

In these consolidated cases it is an undisputed fact that Chester did not appear to be incompetent in any manner when he took Smelser’s tractor on the Friday afternoon prior to the accident. Consequently, evidence of Smelser’s independent negligence consisted solely of (1) his knowledge that Chester did not possess a driver’s license and (2) that Chester had a longstanding “drinking problem”. On the basis of this knowledge should a reasonable mind conclude that Smelser was warned that Chester was an incompetent driver to whom his tractor should not be entrusted for the purpose of bushhogging his landlord’s lawn? We think not. On the contrary, and upon the basis of the undisputed facts contained in the documents supporting the motion of summary judgment, we hold that reasonable minds should inevitably conclude that Smelser was not guilty of independent negligence in permitting Chester to take his tractor for the weekend.

For these reasons, we affirm the judgment of the trial court, at appellants’ cost.

      . Integon General Insurance Corporation was also made a party defendant. However, plaintiffs’ suit was later dismissed as to that defendant.

      . La.R.S. 32:420 provides in pertinent part:
      “No person shall be required to obtain a license for the purpose of operating implements of husbandry temporarily on the highways.”

      . We also note that the only evidence in the documents filed in connection with the motion for summary judgment affirmatively shows that Chester was not intoxicated at the time of the accident. There is no evidence showing Chester was incompetent when he was sober. Therefore, even if Smelser’s knowledge of Chester’s “drinking problem” conceivably meant that permitting him to take the tractor was a negligent act, the legal duty imposed was not designed to protect against this particular risk, i. e., reckless operation of the tractor — a concept usually posited in terms of “proximate cause”. See Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).


author: FRED W. JONES, Jr., Judge. MARVIN, Judge,

text:
    Jonathan JACKSON et ux., Plaintiffs-Appellants, v. AMERICAN INSURANCE COMPANY et al., Defendants-Appellees.
    No. 14363.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.

      Jack, Jack, Cary & Cary by Welborn Jack, Jr., Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants-appellees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiffs, parents of a 16 year old boy who accidentally drowned while on an employer sponsored swimming party, filed suit against the employer and its workmen’s compensation insurance carrier for death benefits, penalties and attorney fees. Finding that the accident arose out of and occurred in the course of the decedent’s employment, the trial judge allowed recovery of funeral expenses. However, he concluded that plaintiffs had failed to prove that they were dependent upon their minor son and rejected the demand for those benefits. He also disallowed penalties and attorney fees.

Plaintiffs appealed the judgment, contending that the trial judge erred in denying their recovery of partial dependency benefits and in refusing to award penalties and attorney fees. Defendants answered the appeal, asserting that the lower court committed error in awarding funeral expenses based upon the finding that the accident arose out of and in the course of the minor’s employment.

For the reasons explicated in this opinion, we agree with appellees and reverse.

The Coordinating and Development Council of Northwest Louisiana (“Council”) is a consortium composed of ten northwest Louisiana parishes which operates a variety of state and federally funded projects. In 1978 the Council’s manpower program included a federally funded jobs project, under the Comprehensive Employment and Training Act, designed to provide summer employment for a nine-week period for economically disadvantaged youths residing in the ten parish area. Among those so employed was plaintiffs’ 16 year old son who, along with seven or eight other boys, was hired to cut grass and pick up litter in and around the small municipality of Rodessa, Louisiana.

The supervisor of the youth’s work crew was Carolyn Huseth, who had not worked for the Council before and was employed only for that particular summer program. Mrs. Huseth’s immediate superior was Mrs. Brenda Fay Jones, counselor for Caddo Parish with offices in Shreveport, who had minimal contact with the work crew in question.

As supervisor of the work crew Mrs. Hu-seth’s primary responsibilities were to assign specific jobs to the boys and to “teach good work habits.” Tools were furnished by the municipality of Rodessa, whose may- or suggested to Mrs. Huseth areas of the village where the grass needed cutting.

The boys worked four days each week, from Monday through Thursday, supposedly from 7 a. m. until 3 p. m. The established routine was for them to meet in the morning at the town hall, from which point Mrs. Huseth transported them in her pickup truck to the work area for that day.

Mrs. Huseth also kept a record on time sheets of the hours worked by the crew. She normally picked up these sheets on Monday morning and had each youngster sign his sheet. Then, on Wednesday Mrs. Huseth completed and turned in the sheets for the week, including credit thereupon for the eight hours the youngsters were supposed to work on Thursday. Although it was conceded that the boys seldom worked a full eight hour day, the only time that any of them did not receive credit on their time sheet for that eight hours was one day when five members of the crew were sent home for insubordination and received credit for only three hours.

The 1978 summer program was scheduled to terminate on Thursday, August 10. As was her custom, on Monday of that week Mrs. Huseth picked up the time sheets and had the boys sign them. She completed the sheets on Wednesday, giving to each crew member credit for eight hours of work on Thursday, the last day, and turned the sheets in.

During the first part of that week Mrs. Huseth had informed the youngsters that she would take them on Thursday to a pond located several miles out of Rodessa for a swimming party, apparently to celebrate the end of the program. There was no evidence that she had taken the boys on this kind of social outing before.

The record establishes that none of Mrs. Huseth’s superiors knew of or sanctioned the swimming party.

On that Thursday morning of the last work week the youngsters met Mrs. Huseth at the town hall at about 7:30 or 8:00 o’clock. They proceeded to an area in Rodessa near the home of Buehler, a municipal employee, where they “fiddled around” for one and one-half or two hours. When the time came for their “morning breaks” Mrs. Huseth informed the crew that it was time to go on their swimming party. She then took them to a grocery store where several purchased snacks for the party. Before the crew boarded Mrs. Huseth’s truck for the trip out to the pond, two members decided that they would not go and departed for their homes (it developed that they later changed their minds and went out to the pond, using their own transportation).

Shortly after the group arrived at the pond plaintiffs’ son accidentally drowned while wading.

The first critical issue posed by this appeal is whether the decedent’s accident arose out of and in the course of his employment with the Council.

The trial judge, relying upon the reasoning of Whitney v. U. S. Fidelity & Guaranty Ins. Co., 373 So.2d 728 (La.App.2d Cir. 1979) found that the accident arose out of and in the course of the decedent’s employment because the “employer’s business seems to be almost as much furthered by this supervised activity as was sitting under the tree in front of Mr. Buehler’s house on some hot afternoon when they had completely run out of things to do.”

Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932) established the general rule that in workmen’s compensation cases the “arising out of” requirement involves an inquiry into the relationship of the accident to the necessities of the worker’s employment while “in course of” focuses upon the time and place relationship between the risk and the employment.

Most of the reported cases applying the Kern rule seem to have involved either unusual on-the-job occurrences, such as unexpected assaults, or questions of whether the employee had deviated from his regular job duties. On the other hand, there has been a dearth of Louisiana appellate court decisions addressing the issue of workmen’s compensation coverage of an employee injured or killed during an employer sponsored recreational or social activity.

In Whitney v. U. S. F & G Ins. Co., supra, the claimant was injured while on a quail hunt with his employer on a hunting lease in west Texas. The evidence established that the injured employee had been taken to the hunting lease by his employer to perform carpentry work and to familiarize himself with the lease in the event he was sent there with guests or customers of his employer. We concluded that at the time of the accident the claimant was not merely pursuing his own pleasure but “was engaged about his employer’s business.” Therefore, since the accident not only occurred in the course of employment but also arose out of that employment, recovery was allowed.

Obviously, Whitney is factually distinguishable from the case under consideration since plaintiffs’ minor son was clearly not engaged in his employer’s business at the time he drowned. Consequently, we must seek guidance from other sources.

In Larson’s Workmen’s Compensation (Desk Ed. 1977) Vol. 1A, Section 22, the following pertinent statement is found:

“Recreational or social activities are within the course of employment when
(1)They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.”

As pointed out in Section 22.23 of the same publication, relevant questions to be asked in determining workmen’s compensation coverage are:

“.. . Did the employer in fact sponsor the event? To what extent was attendance really voluntary? Was there some degree of encouragement to attend in such factors as taking a record of attendance, paying for the time spent, requiring the employee to work if he did not attend, or maintaining a known custom of attending? Did the employer finance the occasion to a substantial extent? Did the employees regard it as an employment benefit to which they were entitled as of right? Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?”

In Sica v. Retail Credit Co., 245 Md. 606, 227 A.2d 33 (1967), an employee was injured while swimming during a company sponsored annual picnic. Although attendance was entirely voluntary, all expenses of the picnic were paid by the employer. No business was transacted nor speeches made during the outing. However, it was determined that the annual picnic was an express term of claimant’s employment; that the employer encouraged and authorized formation of the picnic committee; that the employer paid all expenses of the picnic and deducted its outlay as a business expense for income tax purposes. The court found coverage because:

“On the undisputed evidence, taken as a whole, we find that the employer derived substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale common to all kinds of recreation and social life.”

Another drowning during a company picnic was involved in Tietz v. Hastings Lumber Mart, Inc., 210 N.W.2d 236 (Minn.1978). The accident was held to have arisen out of and in the course of employment for the following reasons:

“The picnic was an annual outing sponsored and financed by the Hastings Lumber Mart, Inc. for the benefit of all of its full-time male employees. Full attendance was actively encouraged and actual attendance was usually close to 100 percent. The outing was held on a workday afternoon chosen in advance to provide as little conflict as possible with other obligations of the employees. Those who attended received a full days’ pay. Those who did not attend were not required to work as the business premises were closed at noon on the day of the outing. However, some wage adjustment was made for those not attending, either by a reduction in the employee’s sick leave or, in one case, by a direct docking of wages.”

Workmen’s compensation coverage was denied in Campbell v. Liberty Mutual Insurance Co., 378 S.W.2d 354 (Tex.Civ.App.1964) because the company sponsored outing on which decedent was drowned was entirely voluntary and the employees were not compensated while attending the function, even though its purpose was to promote good relations between employer and employees.

The court in Atkison v. Industrial Commission of Arizona, 26 Ariz.App. 6, 545 Pac.2d 968, also concluded that a drowning which occurred during a company picnic did not arise out of and in the course of employment. No wages were paid on the day of the picnic, the factory was closed that day, and attendance at the picnic was entirely optional. All food was paid for by the employer. Holding the critical element in the case to be “to what extent the deceased employee’s attendance was voluntary,” the court found no evidence of pressure by the employer for the employee to attend the picnic. Although there was testimony that the decedent stated that he felt compelled to be at the picnic in order to insure his job security, it was concluded that decedent’s “compulsion to attend the company picnic was purely on a subjective basis and not grounded on any actions of his employer.”

It is recognized that the unique nature of decedent’s largely “make-work” summer job presents us with a novel factual context within which to decide whether his accidental drowning arose out of and in the course of his employment. Adverting to the three Larson tests, supra, it is clear that the swimming party was not held on employment premises (which, though not a specific place, seemed primarily restricted to the limits of Rodessa). Furthermore, since the party occurred on the last work day of the program there was no evidence that the employer would derive any conceivable substantial direct benefit from the activity. The remaining question is whether, by expressly or impliedly requiring participation; or by making the activity part of the services of the decedent, the employer brought the swimming party within the orbit of the employment. In other words, was decedent’s attendance at the swimming party entirely voluntary?

Mrs. Huseth testified unequivocally that the boys were told they did not have to go on the swimming party. “I made it very clear that they didn’t have to go.” This was corroborated by the testimony of one of her sons, also a participant in the summer program, who said that his mother left it up to each individual as to whether he went to the pond. Another crew member, Robert Earl Hill, called as a witness for plaintiffs, was asked: “Didn’t she tell you that you could go if you wanted to, but you didn’t have to go?” He replied: “Yes, she told us.”

Two other crew members, who testified on behalf of plaintiffs, denied hearing Mrs. Huseth explain that attendance at the picnic was voluntary. Neither, however, did they state that attendance was mandatory or in any way coerced.

The record does reveal that two of the youngsters did not choose to go out to the pond with the other boys on Mrs. Huseth’s truck. Obviously it must have been communicated to them that attendance was voluntary.

After considering the entire record, we conclude that all of the boys showed up at the appointed place on Thursday morning, the last day, expecting to work at least part of the day. Since they knew that their time sheets had been turned in, giving them credit for the full eight hours on Thursday, they expected to be paid for that entire day even though they only worked part of the day (as apparently happened frequently during the summer). Therefore, there was no reason for any of them to believe that they would be paid only if they attended the swimming party. That two youngsters chose not to go out to the pond with Mrs. Huseth is a significant factor indicating that the boys knew that attendance at the function to celebrate the end of the summer work program was entirely optional. As far as the boys were concerned, work for the last day was over when they went to the store for their “morning break”.

In summary, we find that the accidental drowning of plaintiffs’ son did not arise out of or in the course of his employment. Having made this determination, consideration of the other assignments of error is unnecessary.

For these reasons, we reverse the judgment of the trial court and render judgment in favor of defendants dismissing plaintiffs’ suit at their cost.

MARVIN, Judge,

dissent from refusal to grant rehearing.

I respectfully dissent from this court’s refusal to grant a rehearing because the facts of this case, when analyzed in the proper perspective of the Louisiana statute and cases, support the conclusion of the trial court that this employee’s accidental drowning arose out of and occurred during the course of his employment. Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973); Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La.Civil Law Treatise, Vol. 13, § 149.

This court agreed with the factual findings by the trial court that this 16-year-old employee accidentally drowned during working hours when he was being paid an hourly wage and while on an employer sponsored swimming party to which he and other young CETA employees were transported by their supervisor in an employer owned vehicle.

The trial court found the decedent within the coverage of the law for the additional reasons that these young men remained under the supervision and control of their supervisor during the swimming party, that the party was within the broad general purpose of the CETA program, and that the employer’s business was as much furthered by the supervised swimming party as the CETA employees sitting under a shade tree as they often did with their supervisor when they had run out of something to do.

Notwithstanding these findings, this court reverses the trial court and holds that the drowning did not arise out of, or in the course of, the employment because

—the swimming party was not held within the corporate limits of the employer.

—the party occurred on the last day of the CETA work program and did not directly benefit the employer, and

—attendance at the swimming party was entirely voluntary because the work of the CETA employees ended when their supervisor, on the way to the swimming pond, stopped the employer vehicle at a store to purchase picnic supplies for the party.

Resolution of the question of arising-out-of and in-the-course-of [what risk is included within the act?] should be made in the light of Lisonbee, and its progeny. There it was recognized that there is an interplay between the dual requirements arising-out-of and in-the-course-of and that the question should not be decided by phrases, but by an analysis of the particular facts of each case, the origin of the particular risk and the time and place relationship between the risk and the employment.

“The terms arising out of, and in the course of are not synonymous. The former suggests an inquiry into the character or origin of the risk, while the latter brings into focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the arise-out-of requirement may compensate for a relatively weak showing on the during-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. Malone, Louisiana Workmen’s Compensation, §§ 162, 192. “These concepts are developed from cases interpreting the spare phrases arising out of the employment, and in the course of the employment. But the question of which risk shall be included within the act and which shall be excluded cannot be decided by phrases. Each case must be determined from its own facts. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917).” 278 So.2d at 7.

The suggested analytical approach has been followed in the appellate courts and is fully explained in Malone-Johnson, Chapters 7 and 8. See Hall v. Joiner, 324 So.2d 884 (La.App.3d Cir. 1975); Turner v. United States Fidelity & Guaranty Co., 339 So.2d 917 (La.App.3d Cir. 1976); Mitchell v. Employers Mut. Liability Ins. Co., 341 So.2d 35 (La.App.3d Cir. 1976); Whitney v. U. S. Fid. & Guar. Ins. Co., 373 So.2d 728 (La.App.2d Cir. 1979); Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App.2d Cir. 1980). My analysis of this case in the proper perspective convinces me that this court erred in refusing a rehearing.

The origin of this risk lies with the immediate supervisor of the young CETA employees. It was her responsibility to teach these teenagers some of the responsibilities of employment and submission to authority. Her authority had been firmly established in an earlier showdown between her and the teenage employees when she sent them home before the end of one work day with only three hours pay because they were insubordinate to her. This was a make-work program and the young employees were supposed to go where and when, and to do what, their supervisor told them.

The CETA supervisor told these youngsters during the early part of the week that she would take them swimming on the last day (Thursday) of the work program. On that day she informed them when it was “time” for them to go on their swimming party-picnic. She took them from their last place of labor to the store and then to the pond and would have returned them back to town when the party was over. She had carte blanc supervision and control over these youngsters and was not forbidden by the Mayor of the town to take the employees on an outing outside of town.

Even if it be conceded that attendance at the swimming party was voluntary [and I do not so conclude], the participation of the CETA youngsters during their working hours was at least urged, suggested, and requested by their supervisor. Urging, of course, is not compelling, but a superior’s wish is often understood by a subordinate to be a command. In any event, it is the urging, the request, the suggestion to the subordinate by the supervisor which becomes the legally operative fact even though a direct command is not made. “Compulsion need not take the form of a direct order, if the employee is made to understand that he is to take part in the affair.” Larsen, § 22.22, p. 5-84.

Under these circumstances, the arising out of requirement is met when the inquiry is made into the origin of the risk which caused the death.

The in the course of requirement brings into focus the time and place relationship between the risk and the employment. Li-sonbee, supra. The time relationship is beyond contradiction. This 16-year-old employee drowned during working hours for which he was being paid, while on an employer sponsored outing (according to this court), and while under the supervision and control of his supervisor (according to the trial court).

When viewed in the light of the origin of the risk and of the time relationship, the place relationship is also firmly established and is not tenuous. According to the authority cited by the court, the one argument in favor of compensability in company picnic cases is that the picnics almost invariably take place on company time with the employee continuing to draw his pay.

“In one sense, when the employer plans a regular outing and urges his employees to go to a specified place for the purpose, continuing their pay while there, it may be said that both the time and space limits of the employment are expanded to picnic day at the picnic grounds.” Larsen, § 22.23, p. 5-91.

Since this was a make-work program of 9 weeks duration, this supervisor often had to look for things for these youngsters to do. She sometimes instructed them to sit under a shade tree while she determined when, what and where they would perform their next activity. The trial court found: “. . . the employer’s business seems to be almost as much furthered by this supervised activity [the swimming party] as . . . sitting under the tree ... on some hot afternoon when they had completely run out of things to do.”

The law requires only that the accidental death or injury arise out of and occur in the course of the employment, and does not require that there be a direct benefit to the employer in every case involving employee activity. I would find here, as did the trial court, that in view of the particular purpose of the CETA program that there was some direct benefit to the employer such as community good will and inducement to these or other prospective employees to accept employment in the next CETA program.

The absence, however, of a direct benefit to the employer, perhaps is a factor in determining whether the dual requirement of arising out of and in the course of employment is satisfied by the circumstances, but that factor alone should not be controlling.

The crucial and suggested inquiries concern the origin of the risk and the time and place relationship between the risk and the employment. Lisonbee, supra. The circumstances of this case show that the risk was created by the urging, the request, the suggestion, if not the order, of the supervisor, that the employees were exposed to that risk by the supervisor transporting them to the pond, that there was a relationship in time (during working hours) and in place (an employer sponsored outing) to where the teenage employees were taken by their supervisor in a company owned vehicle.

The two requirements arising out of and in the course of cannot be considered in isolation from each other. Lisonbee, supra. When they are considered together and the Lisonbee type analysis is made of the particular factual circumstances, the courts are approaching the question of compensability in the proper perspective. Malone-Johnson, supra, § 149, p. 301.

But even if the case is approached in the manner that this court has approached it, the facts of this case are more akin to the Maryland case and the Minnesota case than to the Texas case and the Arizona case, all cited and discussed in this court’s opinion. When the added factors of the purpose of the CETA employment and the age and inexperience of the CETA employees, are considered, there is even more reason for finding coverage.

I would grant a rehearing and ultimately affirm the judgment of the trial court.

      . La.R.S. 23:1031 provides in pertinent part:
      “If an employee ... receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation ...”


author: SAMUEL, Judge. REDMANN, Judge,

text:
    NECAISE, INC. v. Harold VICKNAIR. Sam JUNDA, d/b/a Junda Enterprises v. Harold VICKNAIR.
    Nos. 10836, 10837.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    W. Monroe Stephenson, New Orleans, for Necaise, Inc., plaintiff-appellee.
    Caryl H. Vesy, New Orleans, for Sam Junda, d/b/a Junda Enterprises, plaintiff-appellee.
    Leon C. Vial, III, Hahnville, for defendant-appellant.

      Before SAMUEL, REDMANN and GARRISON, JJ.
   SAMUEL, Judge.

These two matters were consolidated for trial in the district court and for argument here. Harold Vicknair is the defendant in both suits. Necaise, Inc. is the plaintiff in suit No. 10,836 of our docket, and Sam Junda, d/b/a S. J. Junda Enterprises, is plaintiff in suit No. 10,837 of our docket. Both suits seek the alleged balances due on building and/or repair work performed by plaintiffs on Vicknair’s immovable property.

Vicknair’s defense in the Necaise suit is that the contract was performed in an un-workmanlike manner. His defense in the Junda suit is that Junda was a subcontractor of Necaise and should look to Necaise for payment. Vicknair also filed a third party demand against Necaise in the Junda suit and a reconventional demand in the Necaise suit.

Following trial, separate judgments were rendered, both against Vicknair. Necaise was awarded $986.30 and Junda was awarded $2,192. Vicknair has appealed from both judgments.

The Junda-Vicknair Contract

On June 7,1977 Vicknair accepted a written proposal by Junda to install aluminum gutters, aluminum soffets and fascia, remove an existing wooden window and replace it with an aluminum window, cap all window casings, and install a large picture window, all at a cost of $2,192. Junda completed its work for Vicknair under this contract but was not paid. Its suit against defendant is for $2,192, the full amount of the contract.

The Necaise-Vicknair Contracts

On June 7, 1977 Necaise proposed to take off Vicknair’s old roof, tear down and haul away a drop roof, repair a sag in the roof, install a new roof on one side, install rafters, and sheeting for a new roof, frame sidewalls, and block in existing walls for the sum of $4,843.

Apparently Vicknair was satisfied with this work because he paid Necaise in full, and on July 8, 1977 again contracted with Necaise for an addition and interior work to the existing structure of his home at a cost of $24,863. The contract provided for payments of 50% upon signing, 40% upon completion of the new addition and 10% on completion of the inside of the existing structure. During the course of this work Vicknair requested extra work of Necaise as follows: Installation of two storm doors, caping a beam on the carport, and covering the following: 1) the carport ceiling, 2) an offset overhang, and 3) a rear gable with aluminum siding.

Necaise asked Junda to bid on this extra work and accepted Junda’s bid of $1,050. Later Vicknair requested an additional window at a cost of $150. The window was made by Junda and installed by Necaise but later removed because Mrs. Vicknair was dissatisfied. Necaise paid Junda $1,200 for all of these extras (including the additional window).

When the July 8 contract with Necaise was completed Vicknair had made all of the payments called for thereunder with the exception of the final payment of $2,486.30.

The Junda Judgment (No. 10,887)

In this court appellant contends that the trial court erred in: (1) failing to find plaintiff a subcontractor of Necaise; (2) dismissing the third party demand; and, alternatively, (3) that the judgment should be reduced to $2,042, the balance appellant claims is due if we find the first two contentions are without merit.

Relative to appellant’s first contention, the trial court examined the two June 7 contracts and found the contract in the instant case was one between plaintiff Jun-da and defendant Vicknair and not one between Necaise and plaintiff Junda. In his Reasons for Judgment the trial judge said: “Dissimilarity of the items in the Ne-caise, Inc. contract with the items in plaintiff’s contract make it apparent that Ne-caise, Inc. did not contract to perform the work contemplated in plaintiff’s contract and would not have reason to subcontract to plaintiff work that Necaise was not called upon to perform.”

From our examination of these contracts and the testimony of Vicknair, Ron Smith and Robert Necaise (president of Ne-caise, Inc.), we conclude, as did the trial court, that the June 7 contract between Junda and Vicknair formed no part of the agreements between Vicknair and Necaise. We agree that Junda was not a Necaise subcontractor.

In connection with appellant’s second contention, we conclude the trial court was correct in dismissing Vicknair’s third party demand because Junda was not a Necaise subcontractor and because the setoff for unworkmanlike performance was resolved in the suit filed by Necaise, with which resolution we also agree.

Appellant’s third (and alternative) contention, that the Junda judgment should be reduced from the sum of $2,192 to $2,040, is based upon the fact that the extras Junda made for Necaise (in connection with the Necaise-Vicknair contract of July, 1977) cost only $1,050, but Necaise paid Junda $1,200. Defendant Vicknair wants the advantage of the Necaise overpayment of $150. That overpayment was for the $150 window Mrs. Vicknair subsequently returned.

The trial court apparently concluded that the overpayment by Necaise to Junda was a matter between those two corporations and that Vicknair, having admitted he paid Junda nothing under the June 7 contract (his only agreement with Junda), owed Junda the full amount of that contract, of $2,192. We find no error in that conclusion.

For the reasons assigned, the judgment appealed from in the Junda matter (suit No. 10,837 of our docket) is affirmed.

The Necaise Judgment (No. 10,836)

Defendant withheld the final payment of 10% of the July 8, 1977 contract price, or $2,486.30 (the amount sued for) for unwork-manlike performance. Vicknair claims the cost of labor and materials to correct the alleged defects amounted to $5,920.31, and he reconvened for a setoff in that amount.

Defendant testified on his own behalf and expert testimony was given by Curry Roberts, a carpenter, James Carter, an architect, and Michael Sackett, a repair and remodeling contractor. Plaintiff produced Robert Landry, a carpenter, who worked on the job for Necaise. Vicknair testified at length about omissions and deficiencies and Landry testified the contract was performed in a workmanlike manner despite hassless and innumerable changes demanded by defendant and his wife.

Relying primarily on the expert testimony, the trial court found there were deficiencies. However, the defendant’s witnesses differed in the number of defects present and the cost of their repair. Curry Roberts estimated the cost of repair at $5,920.31. Michael Sackett estimated the cost of repair at $1,500 and agreed to make the listed repairs for that amount, and James Carter, the architect, testified to re-' pairs costing $769.

The repairs consisted principally of brick work, ceiling tiles, adjustment of doors, and items of a minor nature. Although defendant complains a self-cleaning oven was not provided, the evidence establishes defendant and his wife ordered the kitchen cabinets and stove themselves, and that a picture window was delivered but not installed because the wife was dissatisfied.

The trial court considered Roberts’ estimate of defects and the cost of repair to be excessive and accepted Saekett’s estimate as correct. Thus, it reduced defendant’s demand of $2,486.30 by $1,500 and granted plaintiff a judgment of $986.30.

Appellant contends the testimony of Roberts should have been given greater weight. Our settled jurisprudence is that expert testimony is to be weighed by the trier of fact in the same manner as other evidence. The weight of opinion testimony is determined by the professional qualification and experience of the expert and the findings upon which his opinion is based. Where the testimony of experts differs, a conclusion thereon is largely a matter of credibility, and a finding in this regard by the trial judge will not be overturned absent manifest error. We find no manifest error here.

For the reasons assigned, the judgment appealed from in the Necaise matter (suit No. 10,836 of our docket) is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

The judgment appealed from gives contractor Junda $150 more than the $2,042 that he sued for and that he testified was all he was owed.

Indeed, Junda increases the credibility of his disinterested testimony by his apparent honesty in repudiating contractor Necaise’s self-serving explanation that the extra $150 Necaise paid Junda was for extra work Junda did. That explanation was self-serving because it seeks to defeat the strong implication that Necaise paid Junda because Necaise had indeed agreed, as Vicknair testified and the written contract supports, that the earlier Junda-Vicknair contract would be assumed into the Necaise-Vicknair contract and Necaise would therefore pay Junda.

The written contract supports Vicknair because the handwritten amendments (written by Necaise) include “windows” and “front window” (and those items are included in the first, Junda-Vicknair contract to “Remove 8 ea. existing wood windows, replace with Alum, windows, . . . Install 144 inch Picture Window on front of house ... ”). Necaise testified that Vicknair would not agree to (or pay the proposed “50% upon signing” of) the contract unless Necaise agreed to this “extra work” and therefore Necaise agreed to include it in the $24,063 price, Vicknair paid the 50%, and Necaise added “Paid 12,431.50 B.N.” to the amendments he had personally handwritten on the typed proposal.

Necaise’s testimony that the handwritten amendments and first payment came 35 or 40 days after the July 8 proposal is false. Vicknair’s check for $12,431.50 was paid by the bank on Monday, July 11, the first bank day following the Friday, July 8 proposal.

In respect to the trial judge’s acceptance of the $1,500 repair estimate, we are unable to disagree (the record is very poor).

Our decree should affirm the calculation of $986.30 for Necaise but, because the eases are consolidated, decree compensation of that $986.30 with the $2,042 the record establishes that Necaise owes Vicknair because Necaise agreed the first Junda con-, tract would be incorporated in Necaise’s $24,863 contract and Vicknair is entitled to judgment over against Necaise for the $2,042 to which our decree should reduce Junda’s $2,192 judgment against Vicknair.

Thus the final net judgments should be $2,042 for Junda against Vicknair and judgment over for that amount for Vicknair against Necaise; and judgment for Necaise against Vicknair for $986.30; with judicial compensation settling the net Necaise-Vick-nair disputes by net judgment for Vicknair against Necaise for $1,055.70. Necaise should pay all costs of both suits.

      . McCarstle v. McCarstle, La.App., 356 So.2d 491.

      . Burns v. Lamar-Lane Chevrolet, Inc., La. App., 354 So.2d 620.

      . See Monette v. Aetna Cas. & Sur. Co., La. App., 352 So.2d 423; St. Pierre v. Gabel, La.App., 351 So.2d 821.

      . The petition reads: “I. That Harold Vick-nair ... is indebted to petitioner in the sum of $2,042.... IV. That the total amount of the written contract and ‘extra work’ was $3,242 of which defendant paid .. . $1,200, leaving a balance owing thereon of $2,042. V. That . . . [defendant] has never paid petitioner the remaining $2,042.... WHEREFORE, petitioner prays ... judgment ... in the sum of two thousand, forty-two and no/100 ($2,042) dollars ... . ”

      . “Q. How much is due now? A. Well, he paid me $1,200, so that would be $2,042. * * * Q. What extra work did you do on the picture window for which your company was paid $150 over your — A. (Witness interjects [reporter’s note]) None, none. Q. What was the $150 for? A. I thought that it was part payment or [on?] the original contract. . .. Because [Vick-nair] had asked if it would be allright if he paid Bob [Necaise] and I would get it from Bob.”

      . “1. Stove (oven) 2. Windows 3. front Door 4.front Window Brick (Back door) 5. shower glass door (Heater) 6. Kitchen (Wall) 7. Sink, tiles (Kitchen).”

      . One other piece of inexplicably inexact evidence is Necaise’s alleged photocopy of the original unamended proposal. It is not a photocopy. There are ten differences in the typing, ranging from location of typing in the form to different punctuation and capitalization and even use of the word “agreement” for “contract.”


author: SAMUEL, Judge.

text:
    Patricia TAYLOR, Individually and in Behalf of and as Natural Tutrix of her minor son, Floyd Taylor; Blanche Brown; Aaron Brown; Lester Brown; Anthony Brown; Willie Jackson; Lloyd Brown; Solomon Brown; Shirley Brown Hill; Lorraine Brown Hill; Patricia Brown and Amittie Brown v. CONSOLIDATED RAIL CORPORATION, formerly and a/k/a Penn Central Railroad Company; New Orleans Public Belt Railroad Company and Louisiana and Arkansas Railroad Company.
    No. 11571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    John J. Farrell, Jr., New Orleans, for Blanche Brown, plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Raymond J. Salassi, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

This is an action for wrongful death. Plaintiffs are the alleged mother of the decedent’s illegitimate minor son (she appears both individually and as natural tu-trix on behalf of the child), the decedent’s mother, Blanche Brown, and ten of decedent’s brothers and sisters.

Among other actions on exceptions, the trial court maintained defendants’ exceptions of no right and no cause of action as to the mother; Blanche Brown. In pertinent part the judgment reads as follows: “the Exceptions of No Right of Action and No Cause of Action as to Blanche Brown are maintained, with leave granted to the said Blanche Brown to amend her Petition within thirty days hereof to state a right of action, if possible, and failing thereto, her suit is dismissed;” There was no subsequent judgment of dismissal.

Blanche Brown has appealed and on our own motion we issued an order to show cause why her appeal should not be dismissed on the ground that the judgment appealed from is not an appealable judgment. That motion is the only matter before us at this time.

Code of Civil Procedure Articles 1841 and 2083 read as follows:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.” LSA-C.C.P. Art. 1841.
“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from' an interlocutory judgment which may cause irreparable injury.” LSA-C. C.P. Art. 2083.

The judgment here appealed from is neither a final judgment nor an interlocutory judgment which may cause irreparable harm. It does nothing more than order or permit an amendment within a delay allowed by the court as provided by Code of Civil Procedure Article 934. Nor does it dismiss appellant’s suit, especially in view of the fact that, even after the period of leave to amend has passed, a plaintiff may still amend unless the defendant already has moved for dismissal. And, quite obviously under these circumstances, the judgment does not cause irreparable harm. Accordingly, we conclude the appeal must be dismissed.

For the reasons assigned, the appeal taken in this matter by Blanche Brown is dismissed. Costs of that appeal are assessed against Blanche Brown. All other costs are to await a final disposition.

APPEAL DISMISSED.

      . Roby v. Leonard, La.App., 209 So.2d 182.

      . Spencer v. Burglass, La.App., 288 So.2d 68.


author: GULOTTA, Judge.

text:
    Sheila Fry Fouchi, wife of Frank E. FOUCHI v. Frank E. FOUCHI.
    No. 11377.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Writ Refused Feb. 6, 1981.

      Joan B. Montero, Kenner, for plaintiff-appellee.
    Adelaide Baudier, Metairie, for defendant-appellant.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GULOTTA, Judge.

The plaintiff husband appeals from a November 2,1979 judgment granting a divorce in his favor, awarding the custody of two minor children, Sabrina and Shawn, ages thirteen and eight respectively, to the defendant wife and awarding $150.00 per month support to the wife for each of the two minor children. The decree further grants the custody of two older children, Dale and Corey, to the father and also sets forth with particularity the visitation rights of each party.

Assigning several specifications of error, plaintiff complains the trial judge erred in consolidating his divorce suit (based on two years voluntary separation) with the defendant’s earlier suit for separation from bed and board; in placing the custody of the two younger children with the mother in an unhealthy moral environment; and in failing to award to him payment from the employed wife for support of the two older children placed in his custody.

CONSOLIDATION

Without specifying in what manner he has been prejudiced by the consolidation order, but implying that his rights may be adversely affected in later partition proceedings, plaintiff claims the consolidation was improvidently and erroneously granted because the “cause” of two years separation for divorce was unconnected with the separation proceedings and would complicate the partition proceedings to his prejudice. LSA-C.C.P. art. 1561 provides:

“When two or more separate suits involving a common issue of law or fact are pending in the same court, the court, at any time prior to trial, may order the consolidation of the suits for trial or may order a joint trial of any of the common issues.”

In our case an earlier separation from bed and board had been granted to the parties based on mutual fault, and custody and support judgments were rendered in that suit. In the husband’s suit for divorce based on two years voluntary separation, the issue of fault had been disposed of and the only remaining issues were those of custody, support and partition. There exist mutual issues of fact and law in both suits. Considering the need for judicial economy and for avoiding multiplicity of suits, we cannot say the consolidation order was improvidently granted.

CUSTODY

The basis for the husband’s claim for transfer of custody of the two minor children to him is that the wife had intentionally violated the husband’s visitation rights by planning activities for the children at the time set for visitation with their father and had taken the children on over-night camping trips with her boyfriend, where the sleeping accommodations in a small tent required the children to occupy the same “close quarters” with the mother and the boyfriend “without regard to sex or marital standing.” According to the father, on these overnight camping trips the children, the mother and her boyfriend were accompanied by one of the older children and his girlfriend, who slept together in the camping area, and by other persons who engaged in drinking intoxicating liquors and smoking marijuana. The father complains also that the divorced wife’s job requirement of being away from the home on several evenings every week, and her lack of discipline and lenient attitude toward the children, are not conducive to their welfare and best interests.

It is clear from the testimony of plaintiff’s mother, the children who testified, and Mrs. Fouchi that visitation with the father was not carried out in accordance with the judgment. However, Mrs. Fouchi explains that school, social and weekend activities of the children have, to some extent, interfered with visitation. On other occasions, there were no visits because of the father’s absence from the city and the children’s expressed desire not to visit only with their grandmother at the father’s home. It is apparent also that Mrs. Fouchi did not encourage visitation, and on occasion made arrangements for the children that conflicted with it. Nonetheless, this conduct, when considered with the other evidence, is not sufficient to warrant a transfer of custody of the children to the father. The father’s recourse is by rule for contempt for violation of the visitation order.

Although the husband attempts to convey the image that Mrs. Fouchi’s activities with her boyfriend and with the children on overnight camping trips placed them in an environment where opportunity existed for illicit sex, the evidence supports a conclusion that these camping trips were conducted in an atmosphere without immoral overtones.

Dana Fouchi, the eighteen-year-old brother of Sabrina and Shawn, testified that he, the two children, his girlfriend, his mother, her boyfriend, and two or three other couples had gone on a three-day camping trip for the Thanksgiving holiday in 1978. He testified that they had slept in groups in tents, in sleeping bags and out in the open. Mrs. Fouchi and her boyfriend slept with the two children together in sleeping bags. Sabrina, the thirteen-year-old child, stated that when they went on camping trips they slept in one tent with the mother on one end of the tent, the boyfriend on the other, and she and her brother “slept in the middle.” Although we do not condone a camping arrangement whereby a teenaged girl sleeps next to an unrelated adult male or consider it acceptable social behavior in every situation, the episode in our case appears innocent and does not require reversal of the trial court’s judgment.

Kathy Fouchi, a twenty-one-year old daughter who was on the camping trip, stated that she had not observed any conduct that was immoral or would be a bad influence on the children. Although Dana did testify that one of the couples in the group, outside of the presence of the children and his mother, had engaged in drinking alcoholic beverages and smoking marijuana, there is no indication that the children, Mrs. Fouchi or her boyfriend were aware of these activities on this isolated occasion. Mrs. Fouchi testified that she did not condone marijuana smoking or excessive drinking of alcoholic beverages and would not tolerate this conduct.

It appears from the evidence that camping trips were made on several other occasions by Mrs. Fouchi and her boyfriend with the children; however, again, there is no indication of any immoral activities. It is significant that there is no other evidence of immoral or improper conduct either outside or in the presence of the children on the part of Mrs. Fouchi or her boyfriend. Quite to the contrary, the children, Mrs. Fouchi, her friends who testified, and the assistant executive director of the YMCA where the children engaged in activities indicated that a wholesome relationship exits among the children, their mother and the boyfriend.

We place little or no significance on the father’s complaint that the mother’s boyfriend was allowed to enter and participate in father-son and father-daughter programs at the YMCA or on an isolated occasion where the boyfriend at a high school ball game reprimanded and physically restrained the couple’s fifteen-year-old son during an argument between the son and his mother.

It is clear from the record that the father and his mother are stricter disciplinarians than is Mrs. Fouchi. The children testified that their mother is more lenient than their father. It is clear also that Mrs. Fouchi’s job as a cosmetic salesperson requires that she be away from her home in the evening approximately three or four nights a week. On these occasions the children stay with baby sitters or with friends. Nonetheless, there is virtually no showing that the children were neglected, that a proper home environment was not provided, or that the children’s surroundings were detrimental to their welfare or best interest.

Custody is awarded to a spouse in accordance with the best interest of the child. LSA-C.C. art. 157; Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). Upon appellate review, the determination of the trial judge in child custody cases is entitled to great weight and will not be disturbed absent a clear showing that he abused his discretion. Bordelon v. Bordelon, supra; Cleeton v. Cleeton, supra; Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979). In our case, it is clear that the children have been caught in the marital strife between their father and mother and it is indeed unfortunate that these well-meaning parents are apparently oblivious to the potentially harmful effect that their animosities toward each other have on the children. Nevertheless, we are in agreement with the trial judge that the best interest of Sabrina and Shawn will be served by maintaining their mother’s custody of them. We find no abuse of his discretion.

SUPPORT

Finally, we find no merit to the husband’s claim that the trial judge erred by his failure to order Mrs. Fouchi to pay him support for the two older boys in the husband’s custody.

According to Mrs. Fouchi’s testimony, she was earning at the time of trial $750.00 per month. Frank Fouchi testified that in 1978 he had earned approximately $18,000.00 after taxes. Mrs. Fouchi listed her expenses at $1,137.89 and Mr. Fouchi’s monthly expenses totaled $2,224.01. Furthermore, Dale, age seventeen, and Corey, age fifteen, both in the father’s custody, testified that they earned spending and extra money by doing odd jobs after school and on weekends.

Considering the husband’s earnings and those of the wife, together with the ages of the children and the expenses of the parties, we cannot say that the trial judge abused his discretion in awarding $150.00 per month to the wife for each of the two children in her custody and in not ordering the wife to pay the husband any support for the two children in his custody.

Having so concluded, and also finding no error in the consolidation order or in the custody determination, we affirm the judgment of the trial court.

AFFIRMED.

      . Seven children were born of the marriage; however, three of those children had attained the age of majority at the time this matter was tried.

      . See Rule 5, § 7, 24th Judicial District Court, where this matter was tried, which provides:

        “Suits on proceedings not in their nature original, but growing out of suits or proceedings previously pending, such as actions of nullity of judgment, suits to restrain or regulate the execution of process, suits for divorce based on the parties having lived apart for the required period of time after a judgment of separation from bed and board (L.S.A.-R.S. 9:302), suits for partition of the community property, ancillary succession matters, etc., shall not be docketed as separate suits, but shall be treated as parts of the original suits out of which they arise, shall be docketed and numbered as parts of such suits and shall follow the prior .allotment or assignment to the respective Divisions of the Court. Whenever, by error or oversight, this rule shall be violated, the Judge to whom the matter shall have been allotted, shall have power to order same transferred to the proper division, there to be consolidated with the original suit.”

      . According to Mrs. Fouchi’s income tax return, filed in the record, her adjusted gross income totaled $3,227.32. Frank Fouchi’s income tax return for that year showed an adjusted gross income of $26,858.43.