author: MARVIN, Judge.

text:
    RICHLAND PARISH BUS DRIVERS ASSOCIATION, et al., Plaintiffs-Appellants, v. RICHLAND PARISH SCHOOL BOARD, et al., Defendants-Appellees.
    No. 14973.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1982.
    Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for intervenor-appellee, Richland Parish Ass’n of Educators.
    Glynn D. Roberts, Asst. Dist. Atty., Ray-ville, for defendants-appellees.
    Before HALL, MARVIN, and JASPER E. JONES, JJ.
   MARVIN, Judge.

The Richland Parish Bus Drivers Association appeals a judgment rejecting its demands that the School Board allot more of its sales tax revenue to bus driver employees. The trial court found that the sales tax proposition vested discretion in the defendant school board to allocate the revenue and that the Board had not abused its discretion in allocating the revenue. We affirm.

The allocation of the sales tax revenue is made to two classes of employees, “certificated” and “non-certificated” personnel. The bus drivers do not hold teaching certificates. The Richland Parish Association of Educators intervened to join with the Board in opposing the claims of the plaintiffs.

The election was held in 1968 in accord with LRS 33:2737. The proposition basically provided for a one percent sales tax, the proceeds of which were to be used to supplement the salaries of school employees. After the proposition passed, the school board enacted an ordinance imposing the tax. The ordinance provides that after the tax has been collected and expenses incurred in collecting it have been paid, “... the remaining balance in the ‘School Board Sales Tax Fund’ shall be available for appropriation and expenditure by the Parish School Board ... solely for the purposes designated in the proposition authorizing the levy of the tax ...” The Board adopted an allocation formula on July 2, 1968. The formula remained basically the same, with few minor changes, until October 17, 1978. The Association complains about the 1978 formula, which reads as follows:

“A. Non-Certificated Personnel:
Proceeds from the sales tax shall be paid to participating non-certificated personnel at the rate of six (6%) percent of base salary. If the sum of the allocations on the six (6%) percent factor is less than twelve (12%) percent of the net sales tax proceeds, then the difference shall be distributed equally at the end of the sales tax year.
“B. Certificated Personnel:
Proceeds shall be distributed in the amount of $1080.00 over a twelve (12) month period to all certificated personnel. At the end of the sales tax year the balance in the sales tax revenue account shall be distributed equally to all certificated personnel who had four years of experience at the beginning of the school year.”

The Association contends that the proposition should be construed to provide for pro rata apportionment according to each employee’s base salary and that the 1978 formula is in derogation of the proposition submitted to the voters in 1978. The Association assigns three errors related to: (1) the finding that the allocation of the proceeds is within the school board’s discretion, (2) the trial court’s failure to require the school board to follow the tax election proposition provisions, and (3) the finding of no abuse of that discretion.

The tax election proposition reads as follows:

“Shall the Parish School Board of Rich-land Parish, State of Louisiana, under the provisions of Act. No. 29 of the Extraordinary Session of the Legislature of Louisiana for the year 1964, be authorized to levy and collect a tax of one per cent (1%) upon the sale of retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of service in said Parish, all as defined in R.S. 47:301 through 47:317, with the net proceeds of the tax to be used exclusively to supplement other revenues available to the Richland Parish School Board for the payment of salaries of certificated teachers in the public elementary and secondary schools of said Parish and for payment of salaries to other personnel, namely: certificated persons, bus operators, lunchroom workers, maintenance workers, and secretaries, office and school?”

The proposition does not dictate how the school board should allocate the proceeds of the sales tax other than to specify whose salaries are to be supplemented. Since the. proposition does not specifically allocate the proceeds, the meaning of the proposition must be determined using general rules of statutory interpretation.

When a statute is clear and free from ambiguity it should be given a meaning in accordance with its common understanding. LSA-CC 13; Ouachita Parish School Board v. Ouachita, 362 So.2d 1138 (La.App. 2d Cir. 1978). LSA-R.S. 17:81 provides the general powers of school boards. One of these powers is to hire teachers and to fix their salaries. Other sections in Title 17 authorize the Board to hire other special employees such as bus drivers. Since it is the Board’s function to fix the salaries of school employees in general, the common understanding of the tax proposition should be that the Board should also have the discretion to allocate the proceeds of the sales tax to supplement such salaries.

Another rule of statutory interpretation is the doctrine of contemporaneous construction. This doctrine provides that when an administrative body has placed an interpretation upon a legislative enactment over a long period of time, that interpretation is entitled to great weight. A school board legislates and administers its policy. Ouachita Parish School Board, supra; Washington v. St. Charles Parish School Board, 288 So.2d 321 (La.1974).

From 1968 to the present, the defendant Board has interpreted the proposition as giving the Board discretion to allocate the proceeds from the tax revenue. In addition, the Board was responsible for submitting the proposition to the electorate in the beginning, and the Board is responsible to the electorate from time to time.

Considering the judgment below under these factors, we find that the trial judge did not err in finding that the proposition leaves the allocation of the proceeds to the discretion of the Board.

The Board also did not abuse its discretion by allocating 88 percent of the proceeds to certificated personnel and 12 percent of the proceeds to non-certificated personnel. Where an elected governing body is not restricted by law from exercising discretion in its actions, the actions of that body are presumed to have been made in good faith and in accord with law. Members of such a body are elected and are responsible to the will of the electorate. A court is justified in interfering with decisions of such a board only where it is clearly shown that the board has abused its legal authority and discretion. State v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (La.1943); Celestine v. Lafayette Parish School Board, 284 So.2d 650 (La.App. 3d Cir. 1973). This is especially true where the school board’s action is one of budgeting funds. See Kemp v. Jefferson Parish School Board, 305 So.2d 744 (La.App. 4th Cir. 1974), writ refused; Calloway v. Ouachita Parish School Board, 158 So.2d 360 (La.App. 2d Cir. 1963); and Mouras v. Jefferson Parish School Board, 300 So.2d 540 (La.App. 4th Cir. 1974).

Allocation formulas for similar tax revenues in other parishes were introduced at trial. While these formulas seem to be more favorable to non-certificated personnel than is the formula in this case, the margin of difference is too small to warrant a finding of an abuse of discretion on this basis. For example, the Franklin Parish School Board allocated its sales tax 80 percent to classroom teachers and 20 percent to all other employees. The difference is not so great when it is explained that the Franklin Parish allocation is made between classroom teachers and other employees, while the Richland Parish allocation is between certificated personnel, which includes persons other than classroom teachers, and non-certificated personnel. Some “certificated” employees are not classroom teachers.

In addition, this record shows that bus drivers work on the average of 1V2 hours a day while certificated personnel, including classroom teachers, often work in excess of seven hours a day. We do not find it unreasonable for the Board to allocate a larger share of the revenue to certificated personnel.

At appellant’s cost, the judgment is AFFIRMED.

      . The pre-1978 formula read:
      “A. Certified Personnel (teachers, supervisors, counselors, administrators)
      No experience $800
      1 year experience $700
      2 years experience $600
      3 years experience $500
      4years experience and beyond — rate to be based on availability of funds when guaranteed schedules are met. (Certified personnel 0-3 years experience).
      “B. Support personnel (bus operators, school lunch workers, custodians, maids, maintenance workers, clerical workers) a maximum of 6% of their present gross salary.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Kenneth A. DANIEL.
    No. K0118.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1982.
    Harry F. Connick, Dist. Atty., Kendall P. Green, Asst. Dist. Atty., New Orleans, for relator.
    Martin E. Regan, New Orleans, for respondent.
    Before LOBRANO, REDMANN and WILLIAMS, JJ.
   The issue presented for our review is as follows: May the local rule of Criminal District Court take precedence over Code of Criminal Procedure Article 701. Specifically, the defendant was arrested on August 6, 1982 and charged with first degree murder. On August 12th and 30th, a preliminary hearing took place wherein the magistrate found probable cause to hold defendant. Local rule 19 of the Criminal District Court provides:

“If, after a finding of probable cause, no action is taken by the District Attorney within three days, the defendant shall be released on his own recognizance, reserving the right of the District Attorney to file a Bill of Information. (This applies only to non-capital cases.) The same rule shall apply in capital cases and cases calling for a sentence of life imprisonment except that after the finding of probable cause by the Magistrate, the District Attorney has ten days to present the case to the Grand Jury. If this is not done then the defendant shall be released on his own recognizance, reserving to the District Attorney the right to present the matter to the Grand Jury.”

That provision is in direct conflict with Article 701 of the Code of Criminal Procedure, which provides in part:

“Art. 701. Right to a speedy trial
A. The state and the defendant have the right to a speedy trial.
B. The time period for filing of a bill of information or indictment after arrest shall be as follows:
1.When the defendant is continued in custody subsequent to an arrest, an indictment or information shall be filed within forty five days of the arrest if the defendant is being held for a misdemeanor and within sixty days of the arrest if the defendant is being held for a felony.”

After finding probable cause, the magistrate ordered defendant released on September 10th since the matter was not presented to the Orleans Parish Grand Jury. The State contends this was error in that Code of Criminal Procedure Article 701 allows the State sixty days to file an indictment. We agree. The local rules of Criminal District Court cannot take precedence over the expressed will of the Legislature. We therefore vacate the order of the magistrate dated September 10,1982 and remand for further proceedings not inconsistent herewith.


author: REDMANN, Chief Judge.

text:
    Vincent GIAISE v. Joseph A. CUCCIA and Prosper Paul Breaux, Jr.
    No. 13105.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    George O’Dowd, O’Dowd & O’Dowd, New Orleans, for plaintiff-appellant.
    Charles E. Hamilton, III, New Orleans, for defendants-appellees.

      Before REDMANN, C.J., and AUGUSTINE and LOBRANO, JJ.
   REDMANN, Chief Judge.

Vincent Giaise leased supermarket premises to Joseph A. Cuccia and Prosper Paul Breaux, Jr. by lease providing they could not “rent or sub-let or grant use or possession of the premises to any other party” without the lessor’s written permission.

On this appeal by Giaise from dismissal on the merits of his suit to terminate the lease, he argues that this proviso was breached by the two individual lessees’ having incorporated their supermarket business two weeks after the lease; or by Cuccia’s one year thereafter relinquishing all his interests to Breaux; or by the corporation’s thereafter merging with another supermarket corporation wholly owned by Breaux. We disagree.

We reason, as did Swanson v. Mackie & Weiss, 6 Orleans App. 104 (La.App.1909), in the circumstances of a partner’s succeeding to a partnership’s lease, that no “other party” has obtained a sublease or the use or occupancy of the premises within the meaning of those words in the lease. See also Midland Motels Inc. v. Reed, 192 So.2d 653 (La.App. 3 Cir. 1966), holding a similar proviso not breached by the transfer by one of two spouses, lessees in solido like ours, to the other.

Other courts have held non-violative of similar provisos a variety of actions, such as the transfer by an individual lessee to his wholly-owned corporation, deemed merely a change in the legal form of the same business, Sexton v. Nelson, 228 Cal.App.2d 248, 39 Cal.Rptr. 407 (1964); the change in business form of the lessee from partnership to corporation, Liberty Nat. Bank of C. v. Pollack, 337 Ill.App. 385, 85 N.E.2d 855 (1949), or vice versa, Chesnut v. Master Laboratories, 148 Neb. 378, 27 N.W.2d 541 (1947); the merger of a corporate lessee with another with name change, Dodier Realty & Inv. Co. v. St. Louis Nat. Baseball C., 361 Mo. 981, 238 S.W.2d 321 (1951), or into its parent corporation, Segal v. Greater Val. Terminal Corp., 83 N.J.Super. 120, 199 A.2d 48 (1964).

We conclude that none of the actions by our lessees amounted to installing some “other party” in the leased premises, by sublease or otherwise. Accepting the corporation law fiction that a corporation is a different legal person from its shareholders), and that the corporate person here enjoyed use of the premises, we still cannot deem the corporation an “other party” within the lease proviso against subletting. A corporation can only occupy premises through its human agents, and the human agents in 100% control of the corporations that fictitiously occupied plaintiff’s premises were at no time anyone other than one or both of the two original lessees. One who leases to a human lessee is unaffected by that lessee’s conducting his business in corporate form, and the lessee’s doing so does not violate the lease’s prohibition against subletting to or occupancy by any “other party.”

The trial court’s refusal to terminate the lease on this ground is therefore affirmed, without considering the further questions of waiver, see Blanchard v. Shrimp Boats of La., Inc., 305 So.2d 748 (La.App. 4 Cir. 1974), by plaintiff’s knowledge of the corporate form of the business over several years.

The lessor also sought termination because of the lessee’s replacing with a trash compactor the lessor’s incinerator (used to dispose of the packagings of goods delivered to the supermarket). The incinerator was deemed sufficiently significant to refer to it twice in the lease, once to say that it and air conditioning and heating system and sign were included in the lease, and once to say that all leased property (“including the building, air conditioning and heating system, incinerator and sign”) was to be returned at the lease’s end “in the same condition as received less usual and normal wear and tear and use.” The lease also obliged lessee “not to make any additions or alterations whatever to the premises without written permission.” Our view of the evidence, including a condemnation certificate by a government inspector, is that it fairly proves that the incinerator had had substantial wear and presented some fire hazard, reasonably justifying its replacement. Whether this was normal wear and suffices to excuse the lessee from the obligation of return at the lease’s end, or whether replacement of the incinerator will be due to the lessor at the lease’s end, are questions that must await that time. All we need decide is whether plaintiff proved that the removal of an apparently worn incinerator constituted an “alteration” to the premises. We hold it is not, no more than replacing worn air conditioning or heating system would be. We thus agree with the trial judge on this ground as well (again pretermitting the waiver question; see Devall Town Corp. v. Bramara, 405 So.2d 1185 (La.App. 1 Cir. 1981)).

Defendant’s answer to the appeal seeks costs, especially for an expert. The judgment in fact did cast plaintiff for costs. Whether and how much expert fees are includible must be decided by rule to fix costs.

Affirmed.


text:
    FUTORIAN CORPORATION v. Norman MARX.
    No. 13107.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Joyce M. Dombourian, William W. Rosen, Levy, Marx, Lucas & Rosen, New Orleans, for defendant-appellant.
    James D. Carriere, Robert F. Spencer, Jr., Kullman, Lang, Inman & Bee, New Orleans, for plaintiff-appellee.
    Before REDMANN, C.J., and AUGUSTINE and LOBRANO, JJ.
   REDMANN, Chief Judge.

An ex-employee appeals from a summary judgment in favor of his former employer for $9,541.77 net paid to him as salary continuation for disabled employees after he had returned to work (for another employer).

The ex-employee argues that the contractual provisions for disability payments are ambiguous, and were not “published” to employees (especially himself), and that he was not engaged in employment of the type and at the place alleged in the petition.

We find no ambiguity. The salary continuation plan provides that “employees prevented from working, as a result of personal illness or injury, will be provided with a program of income protection.” Defendant was paid benefits related to sales commissions for the first three months from September 24, 1979, as to which there is no dispute. Thereafter, he was paid “sick leave,” being 100% of $67,101 “salary,” under items IVB and C: “In the event commissioned sales employees remain disabled and unable to work” after three months, they are paid sick leave for the next three months (and thereafter long-term disability until age 65 and then retirement pay). Thus from December 24 until March 23, defendant was paid $1,290.41 a week salary continuation. But on January 14, 1980, defendant began to work for another employer for $4,000 a month, doing work different from his employment with plaintiff. Defendant never notified plaintiff of his new employment; to the contrary, on April 25, he signed a statement declaring, in part, “I am disabled and can’t return to work.... I basically spend my time reading and walking. ... I also spend time with my family. ... My wife operates a business called Zack’s.... I do not assist her in her business operations. I am not employed. I do not operate a business out of my home. I am not self-employed”. That wording suggests that defendant found no more ambiguity than we do. He cannot have thought that, while working at another employment for $4,000 a month, he was entitled under the quoted contractual language to receive over $5,500 a month from his former employer on the theory that he “remain[ed] disabled and unable to work,” “prevented from working, as a result of personal illness or injury.” Had he thought so, he would not have said in so many ways that he was not working and was not able to work.

His argument that “prevented from working” does not mean prevented from doing any work, but only from working at his “regular job” is rejected.

It is true that in the long-term disability plan (effective after the first six months), an employee is promised income for two years “if you cannot perform the duties of your regular job, and thereafter, to age 65, if you are unable to engage in any occupation or employment for which you are suited by education, training, or experience.” But that plan adds “to receive Long Term Disability Plan income, ... [i]n any event, you cannot engage in any work for compensation or profit.” Thus, the simple fact of an employee’s being physically able to do other suitable work would not defeat eligibility during two years after the first six months of disability. Much less would it defeat eligibility during those first six months, and thus being physically able to do other work does not defeat the interpretation that one is “prevented from working” within the short-term plan’s meaning. Its meaning allows one who could physically do other work to be deemed “prevented from working.” When, however, one is in fact doing other work, it cannot be said that he is “prevented from working” by disability. That phrase had no real ambiguity to start, and comparing it with the “regular job” phrase of the long-term plan does not create such an ambiguity.

Lack of publication of the plan would be irrelevant, unless some new plan reduced benefits, or some earlier erroneous publication misled defendant. Defendant’s rights depend on his employment contract, and the simple fact that he may never have discovered its terms does not expand those terms.

Similarly irrelevant is the petition’s erroneous assertion that defendant’s new employment was with plaintiff’s competitor. That erroneousness does not entitle defendant to keep money to which he is not entitled.

Defendant also argued that he should not be cast for interest before judgment because he was in good faith and La.C.C. 2311 provides only that one in bad faith owes interest from the date of the erroneous payment. The judgment here awarded interest only from judicial demand and not from payment. The general rule is that interest is due from the time a contractual or quasi-contractual debt is due. La. C.C. 1938. C.C. 2311 relieves the good faith recipient of funds paid in error from interest from date of payment, but not from the time that the erroneous nature of the payment is called to his attention. He owes interest at least from judicial demand. See Planiol, Civil Law Treatise (La.L.Inst. trans.) II, 851; see also Smith v. Conrad, 15 La.Ann. 579 (1860).

Affirmed.


text:
    Thorre G. TERJERSEN v. Mary Louise Yancey, wife of TERJERSEN.
    No. 13238.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Richard J. Meunier, Meunier, Martin & Meunier, New Orleans, for plaintiff-appellant.
    Terrence J. Lestelle, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and AUGUSTINE and LOBRANO, JJ.
   REDMANN, Chief Judge.

The Supremacy Clause, U.S. Const. Art. YI, denies to a state legislature and to a state court the power to re-order the distribution of federal social security benefits that the Congress of the United States has ordained in 42 U.S.C. 402. The Supremacy Clause equally prevents a state court’s overriding the exemption of social security benefits from “execution, levy, attachment, garnishment, or other legal process” that the Congress has decreed in 42 U.S.C. 407.

In addition to reducing on state law grounds, we therefore further reduce, as constitutionally impermissible, an award of $800 monthly alimony against a retired husband who at trial time had virtually no means to pay it save his $604.70 social security benefit and a $61.78 private pension (that was to increase to $475 four months thereafter).

The award, for $800 plus use of the community’s three-bedroom house as alimony pendente lite, cannot be sustained on the basis either that the husband has proven assets constituting “means” within La.C.C. 148 or that the husband is obliged by law to go back to work to obtain income under the circumstances of this case.

The only proof of assets is a 1980 income tax return showing $909 interest income that year (1979 was $398), of which 94% came from two financial institutions at which total balances were only $1,948.77 shortly before trial, plus the husband’s admission of “13 shares in gold coin” (not further described; the tax return showed $35 total dividends) and about $800 in silver dimes. He and three others had started a marine surveying company but it was unsuccessful. His wife claims he had more coins (he proved several sales of coins), and she also claims he inherited three houses in Norway without further detail or support (he testifies he has “no other place” than his New Orleans residence). The New Orleans residence is not available as a source from which to pay the cash portion of the alimony because the award obliges the husband to let the wife reside there. That proof establishes available assets of only some $2,750 plus the “13 shares” and any over-face-value of the dimes. That proof does not suffice to support a continuing award of $800 a month beyond three or four months.

The spouse who claims entitlement to alimony pendente lite bears the burden of proving entitlement under C.C. 148. Now gender-neutral, since its amendment by La. Acts 1979 No. 72, art. 148 reads:

If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.

The amendment making art. 148 (and the permanent alimony law, art. 160) gender-neutral followed Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), and La. Const.1974 art. 1 § 3, prohibiting unreasonable discrimination on the basis of a person’s sex. Orr held a females-only alimony statute unconstitutional, although it left the states alternatives to remedy the unconstitutionality. Louisiana’s permanent alimony law, C.C. 160, was thereafter decreed unconstitutional by the Louisiana supreme court in Lovell v. Lovell, 378 So.2d 418 (La.1979), because it provided alimony only for wives, only from husbands. Any earlier decisions favoring one sex over the other in alimony matters, on the basis of sex alone, are no longer controlling.

Under today’s art. 148 either spouse may claim alimony pendente lite, and the proof of entitlement must meet the same standard whether the claimant is the wife or the husband. The claimant must establish the insufficiency of his or her own income and must establish the proportion of his or her needs to the other’s means. Today, no rule, procedural, evidentiary, or substantive, can discriminate between spouses purely on the basis of their sex.

With these principles in mind we turn to the wife’s argument that her now-retired, 65-year-old husband, with a history of about 50 skin cancers’ being removed in recent years, should return to work at sea to provide for her. His earnings at sea have approached $30,000 a year in the past, and a return to those earnings would easily provide the $800 a month cash portion of the alimony award.

Some decisions under the former females-only alimony laws have obliged the husband to work, by imposing an award backed by the threat of imprisonment for contempt for failure to pay. Those decisions cannot all be dismissed as invalid instances of sex-discrimination. Often the circumstances have included the presence of young children in addition to a family history of the male spouse having been the breadwinner while the female spouse was the child-tender and housekeeper with little or no employment experience or qualification. In Zacearia v. Beoubay, 213 La. 782, 35 So.2d 659 (1948), for example, there were three infants for whom the spouses had to care, and presumably the spouse who discharged this obligation was the female spouse, while the male spouse (“a butcher by trade and a gambler by preference”) apparently had provided the financial necessities. A more recent example is Sykes v. Sykes, 308 So.2d 816 (La.App. 4 Cir. 1975), in which the wife was pregnant and had two children already. In some other cases, however, there were no children, as in Viser v. Viser, 179 So.2d 672 (La.App. 2 Cir. 1965), and Rakosky v. Rakosky, 275 So.2d 421 (La.App.), writ refused, 278 So.2d 508 (rejecting a husband’s rule to reduce alimony on the basis that he had quit his $12,000 a year job). But we have found no case in which a husband who had reached an age justifying retirement was obliged to return to the work force or go to prison.

We accept as gender-neutral a rule that would require a healthy spouse, experienced or qualified for reasonable work, and not beyond reasonable retirement age, to go to work to support the other spouse not similarly situated. But, irrespective of whether such a rule still obtains in Louisiana today, the claimant spouse in our case has not shown that her own circumstances are such as to justify denying to her husband the ordinary right to retire from active work at age 65.

The record does not show the wife’s age, but she is presumably under 62 because she is not receiving the social security benefits due to a wife at that age. She does show that she has not regularly worked during the 19 years of the marriage. She has no young children, and she does not show any disability on the part of her 19-year-old daughter or herself (although the daughter does live with her and does not work). We see no unusual problem other than the fact that a person aged between 40 and 60 (more or less) without much work history would have difficulty in finding comfortable and well-paying employment.

That difficulty may well justify obliging such a person’s capable spouse to pay alimony; see Ward v. Ward, 339 So.2d 839 (La.1976). We agree that the husband here ought, insofar as able, to pay alimony pendente lite to the wife, and we do not envision our reduction of the award as forcing the wife to work. But we do not agree that, by awarding $800 a month when the husband cannot pay that amount, the court may force the husband out of reasonable retirement and back to work.

The husband’s social security benefits, if by him joined with his private pension, and the spouses’ ownership of a suitable house (with mortgage note of only $200 monthly), would have provided them a reasonable lifestyle in retirement (especially after May, when the private pension becomes $475, and moreso after the wife reaches age 62 and receives a social security benefit of half of her husband’s, 42 U.S.C. 402(b)). They would ultimately have had almost $1,400 a month besides the value of their community residence and their modest other assets.

At the time of trial, however, they had only the husband’s social security benefit of $604.70, the pension of $61.78, the house, about $1,950 of savings, $800 in silver dimes, and “13 shares in gold coin” that presumably produced $35 in dividends. Beyond question those modest assets, whether the community’s or the husband’s, must be expended to provide for the needs of the spouses. Those assets, however, together with the initial total retirement income of $666.48 a month, would not provide $800 a month for each of the spouses indefinitely. There is no basis for allowing the wife both the community house and $800 a month without conceding that the husband may also lawfully expend $800 a month for his own necessities. On that basis, their combined allowable expenditures of $1,600 a month exceed income by about $933. That overexpenditure would consume $2,800 in three months. Judicial notice that silver coins are worth'much more than face value, coupled with a reasonable guess at the value of “13 shares” that produce $35 dividends, would support a conclusion that $933 could be overexpended for a fourth month; but thereafter no appreciable assets would remain save the house.

Fortunately, at that time the private pension increases to $475, so that total income increases to $1,079.70, although no other assets save the house remain. But to then continue an award to one spouse of $800 monthly plus use of the house (even if that spouse were obliged to pay the $200 monthly mortgage note on the house) is not permissible under La.C.C. 148, for that constitutes an ignoring of the other spouse’s needs and a disproportionate weighing of the claimant spouse’s needs against the means available. We would therefore be obliged to reduce the monthly award to the wife as of May 1982 to about $540, assuming there were no other problem with continuing the award thereafter at that lower level.

There is a problem. The husband could not at that time pay the wife $540 without turning over to her part of his own social security benefit of $604.70, because he will then have no other source save the $475 private pension. We conclude that we have no power to order or to affirm an order that requires the recipient of social security benefits to pay any part of those benefits to another.

This court has recently ruled that, in view of the Supremacy Clause and 42 U.S.C. 407’s exemption of social security benefits from legal process,

a state court has no jurisdiction or order, in effect, a payee of Social Security benefits to turn over part of those benefits to his children (themselves the recipients of benefits) and to enforce such an order by contempt proceedings.

Washington v. Washington, 418 So.2d 748, (La.App. 4 Cir. 1982). The same reasoning applies to an order for alimony.

First, it is the Congress that has provided the social security trust funds through its power, and there can hardly be any contention that the Congress does not have the power to decide who should receive those funds and in what amount. The Congress has done so. In doing so, the Congress has not ignored the possibility that a wage-earning husband whose taxes contribute to those funds may, upon retirement, have a wife for whom it would be just to provide out of those funds. The Congress has provided for a wife, in 42 U.S.C. 402(b). Others may be wiser than the Congress and might devise an order of distribution of the social security funds more suitable than the order the Congress has provided. But it is the Congress that has the constitutional authority, rather than the individual judges of the 50 states (or of the United States). The Congress has provided that a wife, merely because a wife, does not receive a social security benefit based on her husband’s earnings taxes until she reaches age 62. Others may believe that age too high, but it is not their power to substitute their judgment for that of the Congress.

Second, and perhaps more squarely to the issue, the Congress has provided in 42 U.S.C. 407 that social security benefits are exempt from “execution, levy, attachment, garnishment, or other legal process.” An order to turn over social security benefits under penalty of imprisonment for contempt is legal process prohibited by § 407; Washington, supra.

Brown v. Brown, 32 Ohio App.2d 139, 288 N.E.2d 852 (1972), and Huskey v. Batts, 530 P.2d 1375 (Okl.App.1974), which merely followed Brown (see also Meadows v. Meadows, 619 P.2d 598 (Okl.1980), citing Brown and Huskey), reasoned that the purpose of § 407 was to protect the family unit against creditors, and that the wife’s alimony claim was not that of a creditor and was therefore not barred by § 407.

The answer to those cases is Philpott v. Essex County Welfare Bd., 409 U.S. 413, 416-417, 93 S.Ct. 590, 592, 34 L.Ed.2d 608 (1973), reversing a state’s seizure of retroactive federal disability benefits to recoup benefits the state had meanwhile provided, expressly rejecting the state’s argument that the state was not the kind of creditor that § 407 intended to protect against:

But § 407 does not refer to any “claim of creditors”; it imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to reach all claimants, including a state.
By reason of the Supremacy Clause the judgment is reversed.

The judgment appealed from is amended to provide alimony pendente lite to the wife in the amount of $800 a month until May 1982, and in the amount of $475 a month payable May 15, 1982 and on the 15th of each month thereafter.


author: SCHOTT, Judge. REDMANN, Chief Judge,

text:
    Linda C. HOBBS v. George OLIVER, Jr. and His Insurer, State Farm Mutual Automobile Insurance Co.
    No. 12969.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Edward P. Lobman, Thomas W. Mull, Lobman & Carnahan, Metairie, for defendants-appellees.
    Robert F. Shearman, Badeaux, Discon, Cmberland & Barbier, New Orleans, for plaintiff-appellant.
    Before REDMANN, C.J., and GULOTTA, SCHOTT, KLEES and BYRNES, JJ.
   SCHOTT, Judge.

This is a suit for damages sustained by plaintiff, Linda Hobbs, in an automobile accident which occurred on March 4, 1978. Defendants are George Oliver, Jr. and his insurer, State Farm Mutual Automobile Insurance Company. From a judgment in favor of plaintiff for $12,000 for general damages and $5500 for lost wages, plaintiff has appealed and defendants have answered the appeal. Quantum is the only issue before the court.

Plaintiff testified as follows: Several hours after the accident her chest was hurting and that night her wrist started hurting. The following morning the wrist hurt and was stiff so she got a wrist bandage for it. She first saw a doctor, her family physician, Dr. Rodney Young, on March 13, complaining about her chest and wrist. He prescribed medication and hot baths. She returned to him on March 20 and March 29, still complaining of her wrist, and he referred her to Dr. George Cary, an orthopedist. He put her arm in a case and gave her cortisone shots. She is a hair dresser and runs her own business. The wrist problem hampered her in her work. Even at the time of the trial in 1981 the wrist still swelled and would pop and crack interfer-ring with her work.

Dr. Jung testified that he saw plaintiff on March 6 and found tenderness in her neck, chest and back. He diagnosed an acute cervical strain. She said nothing about her wrist in this visit or in the subsequent visit of March 20. The first time she complained about her wrist was on March 29.

The question of whether plaintiff injured her wrist in this accident was a threshold issue .to be resolved by the trial judge since virtually all of plaintiff’s damages were related to the wrist injury as opposed to the other relatively minor injuries. Plaintiff’s testimony that the wrist was hurting the day after the accident and that she purchased a wrist band for it was corroborated by that of her husband and a friend. Dr. Cary gave a plausible explanation as to how such a wrist injury could result from a rear-end collision. The trial judge was aware of the contradiction between plaintiff’s and Dr. Jung’s testimony as to whether or not she complained about her wrist to him. He likewise had the benefit of Dr. Jung’s testimony that in all probability he would have recorded such a complaint had one been made. The trial judge resolved this factual conflict in favor of plaintiff and specifically found that the wrist injury was a result of the accident.

Defendants would have us reverse this finding because of Dr. Jung’s testimony that plaintiff did not complain about the wrist until March 29, along with some minor discrepancies in plaintiff’s testimony. For us to do so would require an invasion into the almost exclusive province of the trial court to weigh the credibility of witnesses who testified before him. He must have concluded that Dr. Jung’s attention was focused on plaintiff’s neck and breast problems to the extent that the wrist was not of great significance to him at the time. We are compelled to conclude that the trial court’s finding was not clearly wrong and that the wrist injury was caused by the accident.

Dr. Cary testified as follows: Plaintiff had tenderness and a popping or cracking when the wrist was turned. X-rays were negative and he diagnosed a subluxation of an extensor carpi ulnaris tendon. When she returned to him on April 5 the discomfort and popping were still present and she was placed in a cast to be removed in two weeks. The cast was adjusted on April 8 and was removed on April 19 when some resolution of her tenderness was noted and she was started on light activities but advised to avoid heavy lifting. During the ensuing period there was a “waxing and waning” of symptoms in that the wrist would become irritated as she tried to resume her activities as a beautician. She was treated with medication and massage including injections in the area of the tendon and remained under Dr. Cary’s treatment for a significant length of time. It is plaintiff’s contention that the trial judge abused his discretion in failing to compensate her for a permanent disability of the wrist.

In his reasons for judgment the trial judge stated:

“As to the matter of the amount to be awarded to plaintiff for pain and suffering, the facts are that according to Dr. Cary there should not be any residual effects, and his treatment covered a period of from March 29, 1978, to September 12,1979. The court is of the opinion that an award for pain and suffering of $12,-000 would be adequate and not excessive.”

Dr. Cary testified as follows:

“... the only thing ... which could be called objective was the fact that she had some swelling over the tendon in the wrist on one occasion that went to the thumb in the distal wrist area. But the objective popping, the occasional swelling in the tendon and everything else was basically subjective with the patient complaining of waxing and waning of discomfort in the right wrist on her range of motion. Inactivity and repeat of the X-rays showed no internal change. She showed no evidence of atrophy of the forearm compared to the opposite side, indicating she continued to use the hand, not necessarily on the job routine but in a satisfactorily fashion during the day.”

Asked if she was left with some residual disability he stated that she still had complaints in her wrist and the popping on occasion. He further stated, “and yes, I would say she had a disability in her wrist.” Asked by the court as to the prognosis he replied:

“Your honor, I think the prognosis is good. I think that she may continue with a little snapping in the wrist or some minor structure in the wrist. But these things usually subside with time, with activities, with — over prolonged months or years.”
Question: “Shouldn’t it have subsided by now to permit her to go back to her work?” Answer: “Yes. I think so.”

As we review this testimony Dr. Cary was of the opinion that plaintiff still had the popping and discomfort of the wrist at the time of the trial in April, 1981, three years after the accident but felt that it would subside at some point in the future. Thus, the issue is whether the trial court’s award of $12,000 for such an injury constituted an abuse of discretion. We conclude that it was considering that this is a nagging injury which had persisted for over three years and may continue, as Dr. Cary put it, “over prolonged months or years.” Accordingly, we raise the award to $20,000 which is the lowest point reasonably within the discretion afforded the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The final issue is the trial court’s award of lost wages in the amount of $5500 with plaintiff and defendants both taking issue with the award.

Plaintiff testified that she was unable to perform all of the duties of a beautician from the time of the accident until the time of the trial and was required to reduce her work days from five days a week to only on Thursday, Friday and Saturday. This evidence was corroborated by a witness who came to work for her. She produced income tax returns for the years 1975 through 1979, which showed her average net profit for the years 1975 through 1977 to be $9814.05 in contrast with net earnings for 1978 in the amount of $933.00 and 1979 $2440.00. In his reasons for judgment the trial judge made the following observation:

“With regard to the matter of lost wages, the only evidence offered by plaintiff is tax returns which were filed on behalf of plaintiff and her husband, and while these show a decline in the income the court does not feel that the evidence preponderates in- favor of plaintiff’s claim that the loss was due entirely to her inability to use her wrist in performing the type of work which she had been doing. The court is of the opinion that an award of $5500.00 for lost wages would be adequate.”

In the light of Dr. Cary’s testimony, we cannot say that this finding is clearly wrong. He specifically noted that the lack of atrophy in the injured arm indicated that she continued to use her hand in a satisfactory fashion although not necessarily on the job routine. Noting that her discomfort waxed and waned he suggested that she work every other day which would permit the wrist to “settle down.” He was not emphatic with respect to her permanent disability and assigned no percentage of such.

In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971), the court held that where there is a legal right to recovery but damages could not be exactly estimated, the trial court has reasonable discretion to assess damages based on all the facts and circumstances of the case, and that this principle is applicable to the fact of loss of earnings. Thus, the question is whether the trial court abused its discretion in making this award. We conclude that he did not.

Accordingly, the judgment appealed from is affirmed but amended so that there is judgment in favor of plaintiff, Linda C. Hobbs, and against defendants, George Oliver, Jr. and State Farm Mutual Automobile Insurance Company, jointly and in solido in the sum of $25,500.00 with legal interest from date of judicial demand until paid and for all costs of these proceedings.

AMENDED AND AFFIRMED.

REDMANN, C.J., dissenting in part.

REDMANN, Chief Judge,

dissenting in part.

The $12,000 general damages award may well be towards the lower extreme of the trial court’s “much discretion,” La.C.C. 1934(3), but my review of the record (including the circumstance that there was no damage to plaintiff’s ear) does not persuade me that it is a clear abuse of that discretion. It should therefore be affirmed.


author: SCHOTT, Judge.

text:
    Lloyd L. GUTIERREZ v. Jean Tilghman, Wife of Lloyd L. GUTIERREZ.
    No. 13114.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Richard A. Tonry, Law Offices of Richard A. Tonry, Chalmette, for plaintiff-appellant.
    Glenn E. Diaz, Law Office of Glenn A. Diaz, Chalmette, for defendant-appellee.
    Bruce G. Reed, Reed & Reed, New Orleans, for plaintiff-appellant.
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   SCHOTT, Judge.

This appeal is from a judgment denying the father's motion for a change of custody of two children. The issue is whether the trial judge abused his discretion in refusing to change the custody despite evidence of -the mother’s misconduct in carrying on an affair with an individual with a criminal record for possession of narcotics.

The father obtained a judgment of separation against his wife for abandonment on May 29, 1980, and the custody of the two children was awarded to the mother. On April 21, 1981, the father filed a motion to change the custody of the children, two boys then six and two years of age. The evidence showed that the mother had carried on an adulterous affair with one Glynn Virga; he had stayed overnight in her home with the children present there on a number of occasions; and he had been twice convicted of drug related charges and had the reputation with the local police of being a drug user and seller.

The mother testified that before the rule to change custody was filed she had decided to terminate her relationship with Virga. A number of letters and personal reflections, written by her, between October, 1980, and May, 1981, revealed that she had professed a deep love for Virga but ultimately decided against a permanent relationship because of his ties to his previous wife and his use of dope. She denied that Virga ever used or had drugs in the presence of her children and no evidence was produced to the contrary. The evidence is uncontradicted that she was a good mother to her children, loving them and caring for them at all times. Her home environment was excellent, consisting of a three bedroom, two bath house which she owned.

The trial judge had requested a home study of the parties and a recommendation as to which parent should have custody in the best interest of the children. The probation officer found that the mother had provided a good home for the children but questioned her fitness because of her relationship with Virga, whom he characterized as a career criminal with two convictions for dealing in drugs and with a current arrest in May, 1981, for possession of marijuana with intent to distribute and possession of phencyclidine. This probation officer concluded his recommendations with the following:

“Therefore if the Court finds that Jean is not telling the truth about giving up her lover Glynn Virga, it is my opinion the children should be removed from her custody and given to the father with very limited visitation rights to the mother. On the other hand if the Court finds that Jean has grown up and realizes her mistakes and is telling the truth about not having anything more to do with Glynn Virga, or any person of his reputation and the Court finds the children can remain in the custody of the mother, it is my recommendation that she be placed on supervised probation or her activities be monitored for at least one year.
My personal opinion is that Jean is still in love with Glynn and will go back to him when this custody problem is over.”

In his remarks dictated into the record at the conclusion of the hearing, the trial court indicated that he believed the mother had given up her relationship with Virga and if she did fall back into a pattern of misconduct with him he would take the children away from her.

This court is governed by the principles announced by the Supreme Court in such cases as Stephenson v. Stephenson, 404 So.2d 963 (La.1981) and Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). In both the trial courts had awarded custody to mothers despite evidence that they had carried on adulterous affairs, the Courts of Appeal reversed these judgments, and the Supreme Court reversed the Courts of Appeal. In both eases the court re-stated that on appellate review the determination of the trial court in a child custody case is entitled to great weight and will not be disturbed unless there is a clear showing of abuse of discretion. In Stephenson the court observed that no evidence had been presented to indicate that the mother’s relationship with her paramour had a detrimental effect on her young daughter. In Cleeton the court would not conclude that evidence that the paramour occasionally stayed overnight with the mother warranted a deprivation of the mother’s custody considering that she took good care of the children otherwise. In the latter case, the court expressed an unwillingness to use custody change as an instrument to punish the mother for past misconduct or as a “tool to regulate human behavior.”

In the instant case, the father relies heavily on Hilderbrand v. Hilderbrand, 391 So.2d 577 (La.App. 4th Cir. 1980) writs refused February 6, 1981, wherein this court reversed a custody determination on the basis of the mother’s misconduct. However, that case is distinguishable on its facts. The court found that the mother was maintaining an . open adulterous relationship over a long period of time and noted that while there was no evidence of adultery committed in the presence of the children, evidence that the daughter served the mother and her paramour breakfast in bed and that all the children joined the two in bed to read the newspaper, demonstrated conduct not only contrary to moral standards, even under today’s liberal concepts, but also clearly detrimental and damaging to the three young children. In contrast, the evidence in the instant case is not strong enough under the cited Supreme Court cases to authorize us to substitute our own judgment for the trial court’s and to conclude that its judgment awarding custody to the mother constituted an abuse of discretion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    A.S. ALDAHIR v. MOBIL OIL EXPLORATION & PRODUCING SOUTHEAST, INC.
    No. 13162.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Writ Denied Nov. 29, 1982.
    Plauche F. Villere, Jr., New Orleans, for plaintiff-appellant.
    Robert J. Fritz, Alan H. Katz, Gordon, Arata, McCollam & Stuart, New Orleans, for defendant-appellee (Mobil).
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   SCHOTT, Judge.

Plaintiff claims damages against his former employer on the theory that he was prematurely fired on August 22, 1980 in violation of an alleged agreement specifying a term of employment to extend to December 31, 1980. In the trial court he sought reinstatement to his previous position of employment, payment of all back wages and fringe benefits, penalty wages and attorney fees under LSA-R.S. 23:631 and 632 and damages for loss of his reputation. His suit was dismissed on defendant’s motion for summary judgment and he has appealed. The only error he specifies in this court is the failure of the trial court to consider a letter from defendant to him dated June 19,1980, as an employment contract specifying a term of employment to extend through November 30, 1980.

Plaintiff was employed by defendant in December 1979 and in June 1980 was advised that his job performance over the first five months of employment was unsatisfactory. His employment was not for any specified term and was therefore terminable at his or his employer’s will with or without cause, C.C. Art. 2747. Following discussions between plaintiff and his supervisors he received the following notice from the supervisors, dated June 19, 1980, entitled “Future Job Performance:”

“On Wednesday morning, June 11, you and I discussed your job performance with E.G. Thurman. As previously discussed with you by your supervisor, N.C. Shah, and myself, your five-months preliminary performance was MR-, and problem areas in written communication, meetings work schedules, and submitting completed staff work were where significant improvement is necessary in order for you to meet requirements of your job as Associate Reservoir Engineer.
To assist you in improving your performance, we will do the following:
1) Establish three reasonable objectives, for you to accomplish by 10-15-80. (copy attached).
2) Evaluate your performance in the accomplishment of the above objectives by 11-1-80.
3) Coach and counsel you, giving support and assistance as you work to improve your job performance.
Should you not achieve an overall rating of at least MR by Nov. 1, 1980, (Meets Requirements) in the accomplishment of the above objectives, you will be asked to seek employment elsewhere, within the next 30 days.”

The trial judge concluded that this letter could not fairly be construed as a promise of employment through November 1, 1980, but that it was plainly a warning to plaintiff and not an agreement. We agree with that interpretation. The letter does not purport to do anything but emphasize three objectives to be reached by plaintiff by October 15 and schedules an evaluation of his performance with respect to those objectives by November 1. Obviously, it does not constitute an abandonment by defendant of its prerogatives as plaintiff’s employer with respect to defendant’s overall performance and it does not purport to guarantee plaintiff a position. It clearly informs plaintiff that he is not performing satisfactorily and it simply provides some assistance to plaintiff to improve the quality of his work.

There is no assertion in this appeal that any genuine issue of material fact exists so as to preclude the granting of the motion for summary judgment.

We have concluded that the motion was properly granted and the judgment appealed from is affirmed.

AFFIRMED.


text:
    Richard D. FOLDS v. Sheila LEBERT.
    No. 13167.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Donald R. Jory, Law Office, Jennings, for defendant-appellant.
    Gerald J. Casey, Lake Charles, for plaintiff-appellee.
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   SCHOTT, Judge.

This is an action by a divorced wife and mother to make past due child support payments executory in the amount of $2380 and for attorney’s fees. The former husband claimed a credit for social security disability benefits paid to the mother for the child. The trial court awarded $985. In this appeal by the mother, the issue is whether the trial court properly allowed the credit for the social security payments.

The case was tried on stipulated facts. The parties were divorced in 1972. The father became disabled in 1978 resulting in payments of social security benefits to the mother for the child between September, 1978, and March, 1980. The mother did not waive any court ordered support payments or agree that they would be replaced by the social security benefits. However, if the credit was properly given to the father the correct amount of the arrearages was $985.

The mother relies on the general principle that a party ordered to pay alimony or support may not unilaterally and extrajudi-cially reduce the payments, recently discussed in Dubroc v. Dubroc, 388 So.2d 377 (La.1980). In this case the court refined its earlier decision in Halcomb v. Halcomb, 352 So.2d 1013 (La.1977) to authorize an extrajudicial reduction of child support payments where the facts showed that the child was being supported directly by the father with whom the child took up residence after the amount of support was set. A reading of the Dubroc case makes it clear that the primary concern of the court was that the child was being supported by the father although the means of support had been changed from payments to direct support of the child by the father. In the instant case the parties stipulated that the social security payments exceeded the amount due in monthly support so that the father’s obligation to support the child was clearly discharged. Entitlement to disability payments resulted from the father’s and his employers’ contributions to the social security fund. The benefits were paid to the mother for their child as a result of his being disabled and prevented from working during that period. Thus, the payments were a substitute generated by his efforts for the payments that he could not otherwise make during his time of disability. Justice requires that he be relieved of the payments over and above social security disability benefits under these circumstances.

Dunbar v. Dunbar, 276 So.2d 358 (La. App. 4th Cir. 1973) addressed by both parties in their arguments is inapposite. In this case the trial court had specifically included in its judgment a reference to social security payments which were forthcoming and decreed that the support payments would be reduced by the amount of support generated by social security. This court approved that scheme but disallowed credit to the father for a lump sum payment of past due social security benefits against the amount of support claimed by the mother. The lump sum, however, was for months of social security benefits for a period long before the judgment was signed awarding child support. We do not construe this case as a prohibition against allowing the father in the instant case a credit for social security disability benefits which could not be anticipated at the time the trial court set the amount of support as in Dunbar.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GARRISON, Judge. SCHOTT, Judge,

text:
    Linda Ann Razza RAPP v. Frederick Joseph RAPP.
    No. 12930.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Reed & Reed, Bruce G. Reed, New Orleans, for plaintiff-appellant.
    Satterlee, Mestayer & Freeman, A.D. Freeman, New Orleans, for defendant-ap-pellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting a separation a mensa et thoro between the parties. Mrs. Rapp brought suit for separation on the ground of cruel treatment. Mr. Rapp reconvened on the ground of abandonment. The trial judge granted a separation on the basis of mutual fault. From that judgment, which we affirm, Mrs. Rapp appeals.

In the instant appeal, this court is confronted with a totally novel situation:

Civil Code Art. 141 on mutual fault provides as follows:

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

In Adams v. Adams, 389 So.2d 381 (La.1980), the Louisiana Supreme Court held that “fault” in Article 141 must be one of the eight fault-based grounds in Civil Code Article 138(1)-(8):

“Separation from bed and board may be claimed reciprocally for the following causes:
“1. In case of adultery on the part of the other spouse;
“2. When the other spouse has been convicted of a felony and sentenced to death or to imprisonment at hard labor in the state or federal penitentiary;
“3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable;
“4. Of a public defamation on the part of one of the married persons towards the other;
“5. Of the abandonment of the husband by his wife or the wife by her husband;
“6. Of an attempt of one of the married persons against the life of the other;
“7. When the husband or wife has been charged with a felony, and shall actually have fled from justice, the wife or husband of such fugitive may claim a separation from bed and board, on producing proofs to the judge before whom the action for separation is brought, that such husband or wife has actually been guilty of such felony, and has fled from justice;
“8. On account of the intentional nonsupport by the husband of his wife who is in destitute or necessitous circumstances, or by the wife of her husband who is in destitute or necessitous circumstances.” (emphasis added)

The elements of “abandonment” under C.C. art. 138(5) are:

1. Where a spouse leaves the matrimonial domicile;
2. Without lawful cause;
3. With the intention to permanently absent himself from the domicile; and
4. Refuses to return after being asked to return.

Cruel treatment under C.C. Art. 138(3) is “lawful cause” under the elements of abandonment such that cruel treatment is a defense to abandonment. If the trial court finds that certain actions constitute “cruel treatment” then one of the elements of abandonment has not been met and the action is granted on the basis of cruel treatment as an independent ground under 138(3) and the action for abandonment is denied. Conversely, if the trial court finds that certain actions do not constitute “cruel treatment” then it cannot be used as a defense to abandonment. The burden is still on the party alleging abandonment to prove the four elements of abandonment.

In the instant appeal, the trial judge in his written reasons for judgment states that he cannot decide if the actions complained of constitute cruel treatment. Because he is unable to make a determination on the question of cruel treatment, he further cannot decide if there was or was not lawful cause for the abandonment; hence he cannot make a decision on the issue of abandonment.

The trial judge further states that he is bound by Adams, above, such that prior to 1976 he probably would not have been able to grant the separation to either party. In 1976, however, C.C. Art. 141 was added by Acts 1976, No. 495 § 1. In that regard the trial judge further states:

“The Court is well aware that prior to 1976 and the amendment of Civil Code Article 141, the Court might have denied a judgment of separation. However, Civil Code Article 141 makes it mandatory that a separation from bed and board be granted although both spouses are mutually at fault in causing the separation.” (emphasis added)

Lastly, the trial judge concludes that while he cannot conclude whether or not there was “enough fault” to constitute “lawful cause” for abandonment, he does conclude that there was “mutual fault”:

“After hearing and seeing both spouses, the Court concluded that the spouses were mutually at fault in the separation, that they quarreled with each other, that they could not get along with each other; the Court could not determine from the testimony whether one spouse was more culpable than the other, causing the disagreements and quarrels which made the marriage impracticable to continue.”

Thus, the trial judge, having found “mutual fault” and bound by the express legislative mandate of the word “shall” in C.C. Art. 141, granted a separation on the basis of mutual fault.

This, then, is the state of the case confronting the Fourth Circuit Court of Appeal. On appeal, the essential standard of review to be applied by this court to factual determinations is whether the trial judge was manifestly erroneous in its factual determinations. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where the factual issues are so close that even the trial judge cannot decide, it is obvious that this court cannot conclude that manifest error has occurred. We must conclude that if the trial judge could have found either “lawful cause” or “cruel treatment” he would have done so.

In most cases where the Fourth Circuit is called upon to reassess factual determinations and where manifest error has occurred, the Court of Appeal can make factual determinations and render judgment on the basis of the record. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975). In the instant appeal, however, there is no transcript of the testimony presented. In the absence of a transcript, not only are we incapable of resolving the issues on the basis of the record but also we are unable to find manifest error as there is no testimony for us to review.

In the light of what record we do have before us, we can only give the trial judge the great discretion afforded him in areas of assessment of credibility of the witnesses due to his firsthand knowledge of the demeanor of the witnesses and conclude that no manifest error has occurred on the factual issues.

In view of the express legislative mandate of Article 141 and the trial judge’s factual determination that mutual fault exists, we conclude that we have no other option than to affirm the ruling of the trial court.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

SCHOTT, Judge,

dissenting.

When the trial of this case was concluded on December 12, 1980, the judge made the following statement:

“It is ordered, adjudged and decreed by this court that there will be adjudged herein in favor of Mrs. Linda Ann Razza Rapp for a separation based on mental cruelty and physical cruelty.
It is further ordered, adjudged and decreed that there is mutual fault.”

In his written reasons for judgment, signed on December 12, 1980, the judge stated as follows:

“The Court is well aware that prior to 1976 and the amendment of Civil Code Article 141, the Court might have denied a judgment of separation. However, Civil Code Article 141 makes it mandatory that a separation from bed and board be granted although both spouses are mutually at fault in causing the separation. The fact that Mrs. Rapp removed herself from the matrimonial domicile, taking with her the contents thereof, is uncon-troverted; this activity would constitute abandonment unless done with lawful cause. This Court is bound by the decision of the Supreme Court in Adams v. Adams, Ct. of App. 4th Cir., 380 So.2d 737, writ granted and reversed by the Supreme Court at 389 So.2d 381.
The Court cannot, under this decision, hold that the testimony of Mrs. Rapp standing alone would be sufficient grounds to award her a separation from bed and board; the Court cannot avoid the fact that Mrs. Rapp did in fact abandon the matrimonial domicile, but believes that she did so by reason of “mutual fault” or “irreconcilable differences” which rendered living together insupportable to both spouses.
Accordingly, the Court is obliged to render a judgment of separation from bed and board, but to find spouses to be mutually at fault.”

Our first problem is to reconcile the judge’s oral decision with his written reasons signed six days later. Mrs. Rapp would have us reverse the judgment on the theory that the matter had been settled in her favor in the judge’s oral decision and she would have us dismiss Mr. Rapp’s suit for abandonment since she had lawful cause, i.e., Mr. Rapp’s physical and mental cruelty, for separating from her husband. I am unable to accept this argument. The final definitive judgment must prevail over preliminary views he might have had earlier.

On the other hand Adams v. Adams, 389 So.2d 381 (La.1980) prevents the result reached by the trial judge in this case, which was a separation from bed and board under LSA C.C. Art. 141, based on the mutual fault of the spouses. In Adams, the court held that the fault contemplated by this article amounts to conduct constituting an independent fault ground for separation under C.C. Art. 138. Since the trial judge specifically held that Mrs. Rapp did not prove Art. 138 fault on the part of Mr. Rapp and since he also found that Mrs. Rapp had a lawful cause for separating from Mr. Rapp, such as to prevent him from getting a separation based upon abandon-merit it follows that there was no mutual fault under Art. 141 as interpreted by Adams. It should also be pointed out that the failure of Mrs. Rapp to prove cruelty on the part of Mr. Rapp did not automatically entitle Mr. Rapp to a judgment of separation based upon abandonment. Anderson v. Anderson, 379 So.2d 795 (La.App. 4th Cir. 1979).

I would set aside the judgment of the trial court.


author: BARRY, Judge.

text:
    Philip DUPLECHAIN and Bernice Duplechain v. CLAUSING MACHINE TOOLS, and Howell Electric Motors, and Atlas Press Co., and Oliver H. Van Horn, Inc.
    No. 13098.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Michael R. Holmes, New Orleans, for plaintiffs-appellants.
    John P. Manard, Jr., Alan T. Rogers, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants-appellees.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BARRY, Judge.

The issues in this products liability suit are twofold. Was prescription interrupted when Clausing Corporation and Zurich-American Ins. Co. were named co-defendants more than one year after the accident? Was it proper to dismiss Clausing Machine Tools because of insufficient evidence to maintain personal jurisdiction?

For the reasons stated herein, we reverse the judgment maintaining the exception of prescription and remand for trial on the merits against Clausing Corporation and Zurich-American Ins. Co. We remand the judgment sustaining the exception of lack of personal jurisdiction over Clausing Machine Tools to allow plaintiff an opportunity to cure the jurisdictional defect.

FACTS AND PROCEDURAL BACKGROUND

According to the scanty record before us, plaintiff received personal injuries from an allegedly defective drill press on January 25, 1979 and filed suit on January 25, 1980. Plaintiff claims his injury occurred in the course of his employment while operating a drill press which bore an identification plate with the name “Clausing” and a serial number. In his petition plaintiff named as defendants Clausing Machine Tools, believed to be the press manufacturer, and Atlas Press Co., alleged to be the parent or controlling company of Clausing Machine Tools. Plaintiff also sued Howell Electric Motors, the alleged manufacturer of the motor component of the press, and Oliver H. Van Horn, Inc., the alleged distributor of the press.

Howell and Van Horn were served; however, there is nothing in the record showing citations were issued to Atlas or Clausing Machine Tools and there are no returns of service. In March of 1980 (approximately 14 months after the subject accident) plaintiff apparently attempted to notify both defendants of the lawsuit by mailing uncer-tified copies of the petition, without citations, to an address in Oshtemo, Michigan. The copies, however, were not delivered to Atlas or Clausing Machine Tools but were received instead by Clausing Corporation which was located at the Oshtemo address.

On July 7, 1980, about a year and five months after the alleged accident, plaintiff filed an amended petition joining Clausing Corporation and its insurer, Zurich-American Ins. Co., as additional defendants. The amended petition incorporated by reference plaintiff’s original allegations against Clausing Machine Tools and Atlas, and further averred that “Clausing Machine Tools and Atlas Press Co. and Clausing Corporation may in fact be one in [sic] the same entity.” Zurich was joined as the insurer of Atlas, Clausing Machine Tools, and/or Clausing Corporation.

Plaintiff did not allege that the defend-. ants are solidarily liable in his original or amended petitions. However, the petitions do allege the press and its component parts, including the motor, were defective and all defendants are liable to plaintiff in the amount of $832,000.00

PRESCRIPTION AS TO CLAUSING CORPORATION AND ZURICH-AMERICAN INS. CO.

All parties concede the applicable prescriptive period is one year and Clausing Corporation and Zurich were not named defendants, served with process, nor otherwise notified of plaintiff’s claim against them until more than a year after the claim arose. Plaintiff raises two grounds in order to avoid the plea of prescription.

Plaintiff’s first contention is that, because of a close similarity in the names of Clausing Machine Tools and Clausing Corporation, identical addresses, a close interrelationship between the defendant entities, plaintiff’s good faith efforts to identify the actual drill manufacturer, and “the fact that the plaintiff ... was actually misled” as to the identity of the press manufacturer, the case falls within a jurisprudentially created exception to the rule that suit is barred against all defendants not timely joined or served. However, the evidentiary record before us is insufficient to support these factual allegations.

Plaintiff’s second contention is based on LSA-C.C. Art. 2097 under which “[a] suit brought against one of the debtors in solido interrupts prescription with regard to all.” It is undisputed that plaintiff timely sued Howell Electric Motors, the alleged manufacturer of the motor component of the press, and Oliver H. Van Horn, Inc., the alleged dealer and servicer of the press, along with Clausing Machine Tools and Atlas, seeking damages from all defendants. The amended petition reiterates the same allegations as to Clausing Corporation, as manufacturer, and joins Zurich-American as insurer of Clausing Corporation, Clausing Machine Tools, and/or Atlas.

While neither the original nor amended petitions explicitly allege solidary liability, the facts claimed, and the prayer for relief, treat all of the defendants as joint tortfeasors. Under Civil Code articles 2103 and 2324, and settled case law, joint tortfeasors are deemed solidary obligors, even though their concurrent negligence results from different acts or breaches of different obligations. Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979); Cavalier v. City of New Orleans, 273 So.2d 303 (La.App. 4th Cir. 1973); Pearson v. Hartford Accident and Indemnity Co., 281 So.2d 724 (La.1973).

Small v. Caterpillar Mfg. Corp., 319 So.2d 843 (La.App. 1st Cir. 1975) was a similar fact situation where the plaintiff filed a products liability suit improperly naming “Caterpillar Mfg. Corp.” as the manufacturer, but properly naming Boyce Machinery Corp. as the seller. After the prescriptive period had run, plaintiff filed a supplemental petition joining Caterpillar Tractor Co., the actual manufacturer. Noting the possibility of solidary liability between the manufacturer and the seller, the court found that “[p]laintiff has alleged facts in his supplemental petition joining Caterpillar Tractor Company which, if established, could lead to solidary liability between it and the defendant, Boyce Manufacturing Company, who was timely sued. These facts allege that Boyce and Caterpillar are, in effect, joint tortfeasors. It is well settled that joint tortfeasors are solidary obli-gors.” 319 So.2d at 845. Observing that there was no evidence in the record controverting defendants’ solidary liability, the Small court ruled that the exception of prescription should have been denied; however, the court left open the possibility the exception could be maintained later in the proceedings if evidence definitively established the defendants were not solidary ob-ligors.

Plaintiff in this case alleged that his injuries were caused by the concurrent negligence of the motor manufacturer, the drill press manufacturer, and the distributor of the press, thereby classifying all defendants as joint tortfeasors and, as such, solidary obligors. There is ample support for holding manufacturers and sellers of defective products solidarily liable when the facts show fault by both parties. See Horowitz v. Schwegmann Bros. Giant Super Markets, 376 So.2d 603 (La.App. 4th Cir. 1979); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). In redhibition cases, manufacturers and retailers are also held liable in solido. Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972); Millin v. Dawson, 387 So.2d 1213 (La.App. 1st Cir.1980); Bison v. LaHood, 390 So.2d 920 (La.App. 2d Cir. 1980). The concurrent negligence of a manufacturer and an installer-servicer may also result in solidary liability. American Security Ins. Co. v. Griffith’s Air Conditioning, 317 So.2d 256 (La.App. 3rd Cir.), cert. denied 320 So.2d 915 (La.1975).

In the absence of any facts controverting the solidary liability of the defendants herein, we hold that the allegations of the petition are sufficient to characterize Clausing Corporation as a possible joint tortfeasor with Howell Electric Motors and Oliver H. Van Horn, Inc., thereby interrupting prescription as to Clausing Corporation. If, during subsequent proceedings, it is shown that solidary liability does not exist, an exception of prescription would be proper and should be maintained at that time.

With regard to interruption of prescription against Zurich-American Insurance Co., it is well settled that an insurer is solidarily liable with its insured. Pearson v. Hartford Accident & Indemnity Co., supra; Trahan v. Highlands Ins. Co., 343 So.2d 1163 (La. App. 3rd Cir. 1977); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960). The amended petition alleges Zurich insured Atlas Press and/or Clausing Machine Tools (two of the original defendants) as well as Clausing Corporation, and since there is no evidence to the contrary, prescription against Zurich was also interrupted.

PERSONAL JURISDICTION OVER CLAUSING MACHINE TOOLS

Plaintiffs original petition alleged Clausing Machine Tools “is a foreign corporation which regularly does or solicits business and derives substantial .revenue from goods used or consumed in the State of Louisiana,” tracking the language of LSA-R.S. 13:3201(d), our “long-arm statute.” In order to obtain personal jurisdiction over Clausing Machine Tools under that statute, plaintiff must show, in addition to alleged business contacts with the state, that Claus-ing Machine Tools “cause[d] injury or damage in this state by an offense or quasi-offense committed through an act or omission outside of this state.”

The only evidence in the record as to Clausing Machine Tools’ contacts with Louisiana is the uncontroverted affidavit of George Rathke, its vice president. The affidavit declares that Clausing Machine Tools is an Illinois partnership, not authorized to do or doing business in Louisiana; that it has no employees, agents, offices, franchises, assets of any kind, etc. in Louisiana; that the partnership did not exist before its formation in July, 1979; and that “the said entity had nothing whatever to do with the design, manufacture or sale of the machine involved in this suit.”

The affidavit does not explicitly or implicitly negate the allegation that Clausing Machine Tools “derives substantial revenue” from its products sold in Louisiana, but it does controvert all of plaintiff’s other allegations regarding defendant’s contacts with Louisiana. There is no evidence before us indicating that Clausing Machine Tools currently manufactures or sells any products which are ultimately used or consumed in Louisiana. Even assuming, ar-guendo, that Clausing Machine Tools does “derive substantial revenue” at this time from its goods sold through independent retailers here, the affidavit is sufficient, in the absence of any countervailing evidence, to negate the most basic requirement of our long-arm statute, that plaintiff’s cause of action arise from the defendant’s acts or omissions. Rathke’s affidavit avers that Clausing Machine Tools was not in existence before or at the time of plaintiff’s alleged injury, and had no connection with the drill press involved in that accident. Thus, Clausing Machine Tools'has made a prima facie showing that it is not amenable to personal jurisdiction in Louisiana, which plaintiff has failed to controvert. We find, however, that the trial court erred in dismissing Clausing Machine Tools from this suit without first allowing plaintiff additional time to attempt to establish personal jurisdiction.

Article 932 of the Louisiana Code of Civil Procedure mandates that:

[w]hen the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court. (Emphasis added).

Our jurisprudence has construed this provision to require the granting of an opportunity to “cure” such a jurisdictional defect, unless it is clear from the record that the grounds for defendant’s objection cannot be removed. Simas v. Hicks, 381 So.2d 949 (La.App. 3rd Cir. 1980); Louisiana Power & Light v. Ursin, 334 So.2d 559 (La.App. 4th Cir. 1976); Ticheli v. Silmon, 304 So.2d 792 (La.App.2d Cir. 1974); Francis v. Tex. Pacific Ry. Emp. Hospital Assn., 148 So.2d 118 (La.App.3d Cir.1962).

Plaintiff concedes that he has adduced no evidence to support his jurisdictional allegations, but requests that the exception be remanded to allow plaintiff to obtain “the information necessary to prove or disprove plaintiff’s theories.” This court is aware plaintiff failed to initiate any discovery during the time between filing of the exception and the hearing thereon. We are also aware plaintiff did not seek a continuance of that hearing, or request time to cure, following the lower court’s ruling. Furthermore, it is not clear to us that plaintiff can “remove” the grounds of defendant’s objection. Mere amendment of the petition will not suffice, in the face of Clausing Machine Tool’s affidavit. It is possible, however, that plaintiff may be able to produce evidence that would establish contacts with Louisiana sufficient to subject Clausing Corporation to personal jurisdiction in Louisiana. Article 932 of the Louisiana Code of Civil Procedure mandates that plaintiff be given an opportunity to do so. We therefore hold the district court’s dismissal of Clausing Machine Tools as a co-defendant was premature under Article 932.

Accordingly, the district court’s judgment maintaining the exception of prescription as to Clausing Corporation and Zurich-American Ins. Co. and the judgment maintaining the exception as to lack of personal jurisdiction over Clausing Machine Tools are reversed and this matter is remanded for further proceedings in accordance with the views expressed herein.

REVERSED; REMANDED.


author: KLEES, Judge.

text:
    Linda B. MONNIER v. Edwin R. BOUTTE, Dairyland Insurance Co., and Government Employees Insurance Company.
    No. 13057.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Carmelite M. Bertaut, Hammett, Leake & Hammett, New Orleans, for defendant-ap-pellee Government Employees Ins. Co.
    Walter A. Robelot, II, Benjamin J. Bird-sail, Jr., Birdsall & Rodriguez, New Orleans, for plaintiff-appellant Linda B. Monnier.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   KLEES, Judge.

The sole issue presented on appeal is the quantum of a jury award for damages resulting from a rear end collision. The plaintiff was awarded total damages in the amount of $20,000. Plaintiff contends that the amount awarded was so inadequate that it constituted an abuse of discretion. We agree and amend the judgment accordingly.

On October 31, 1979, Plaintiff-Linda B. Monnier was injured when the vehicle she was driving was hit from the rear by an automobile owned and operated by defendant-Edwin Boutte. Plaintiff filed suit against Boutte, Dairyland Insurance Company (the Boutte liability carrier) and Government Employees Insurance Company (her uninsured and/or underinsured motorist carrier). Prior to trial, plaintiff settled with Boutte and Dairyland Insurance Company for the policy limit of $5,000. She reserved her rights against GEICO, and proceeded to trial solely against them. The jury returned a verdict in favor of plaintiff, and awarded her damages of $20,000. The $5,000 previously received from Dairyland was debited from this amount and judgment against GEICO was entered in the amount of $15,000. In all a total award of $20,000 was given by the jury.

The plaintiff, a 38-year-old secretary, testified at trial, that she was on her way to work, when, as she was stopped for a red light, she was struck from the rear. Upon impact, she struck the steering wheel of the automobile with her face, and was thrown forward and backward and jerked around the car.

Approximately one and one half to two hours after the accident, she went to see Dr. Arrington for her injuries. His diagnosis after examination was “marked left tra-peguis-spasm, possible zygoma fracture, moderate lumbar spasm.” Two days later, the plaintiff returned to Dr. Arrington complaining of increased pain in the neck area. She was given a cervical collar to wear in addition to other treatment. On three other occasions in November, 1979, the plaintiff went to see Dr. Arrington. During these visits, she complained of extreme pain in the neck region. On December 7, 1979 when plaintiff reiterated the same complaints about her neck, Dr. Arrington referred her to Dr. Kenneth E. Vogel.

Dr. Vogel, a neurosurgeon, examined the plaintiff and diagnosed that she had a sub-capular herniated cervical disc. The plaintiff’s pain continued, until finally on March 15, 1981, she underwent a complete neurological examination, including a “cervical myelogram”. The myelographic study indicated a herniated disc at the C6-C7 level. Three days later, the plaintiff underwent an operation known as “an anterior cervical fusion” to repair the disc.

After the operation, Dr. Vogel assigned a 10 to 15 percent permanent, partial medical impairment of the body as a whole to plaintiff and testified at trial that she would be permanently disabled from lifting, pulling or pushing anything greater than 35 pounds or anything that would require her to bend or stoop.

On December 17, 1979, contemporaneously with her visits to Dr. Vogel, another doctor, Dr. Warren L. Gottsegen, a vascular and thoracic surgeon, examined the plaintiff. This doctor’s diagnosis after examination was a bilateral thoracic outlet compression syndrome. After physical therapy failed to improve plaintiff’s condition, the doctor recommended surgery. He stated that this type of surgery is a major operation and that his fee would be $3,000. He could not estimate the cost of hospitalization but stated that the patient would be required to spend about 8 days in the hospital.

The defendant, in urging that the amount of the damages should not be increased, relies heavily on the testimony of Dr. Richard W. Levy who supported the bilateral thoracic outlet compression syndrome, but discounted a herniated disc in the plaintiff. This court notes that Dr. Levy examined plaintiff on only one occasion, nine months after the accident, and that the record viewed as a whole strongly supports the findings of Dr. Vogel and Dr. Gottsegen.

The defendant also points out that the plaintiff was involved in another accident two weeks prior to the accident in question. However, the connexity of the October 31, 1979 accident to the injuries sustained by plaintiff had been established to the satisfaction of the trial court and to the jury. The record is totally void of any indication of injury to the plaintiff in the October 14, 1979 accident. Both Dr. Vogel and Dr. Gottsegen testified that in their opinion the injuries of the plaintiff were caused by the October 31 accident. The court must now closely examine the particular injuries of plaintiff and their effects upon her person.

Immediately after the October 31 accident,, the plaintiff experienced pain in her arms, neck and shoulders. During the treatment for her injuries, she was required to wear a cervical collar and on occasions must still wear one. The treatment did not relieve the pain and plaintiff had to undergo an extremely painful myleographic study and ultimately a fusion operation. She is still experiencing pain and is unable to adequately do household chores. Moreover, she faces the prospect of another surgical procedure in the future.

Although a jury award is not to be disturbed absent a showing of an abuse of discretion, an appellate court, in reviewing law and fact, must amend a judgment when circumstances warrant a revision. Reggio v. Louisiana Gas Service Company, 333 So.2d 395 (La.App. 4th Cir. 1976), writs denied, 337 So.2d 187 (La.1976) and 337 So.2d 526 (La.1976). Considering this plaintiff’s injury and the fusion of the two vertebra, we conclude that an award of general damages for $20,000 is so inadequate as to constitute a violation of the much discretion rule. This is particularly true since the plaintiff incurred over $7,000 in special damages alone and is faced with future medical expenses of well over $3,000. Applying the standard enunciated in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), p. 335:

“that before a Court of Appeal can disturb an award made by a trial court that record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc. [304 So.2d 351 (La.1974)], supra; Fox v. State Farm Mutual Automobile Ins. Co. [288 So.2d 42 (La.1973)], supra; Walker v. Champion [288 So.2d 44 (La.1973)], supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry [302 So.2d 278 (La.1974)], supra; Spillers v. Montgomery Ward and Company, Inc. [294 So.2d 803 (La.1974)], supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

and further delineated in Reck v. Stevens, 373 So.2d 498 (La.1979);

“Only after such determination of abuse has been reached is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

This court finds that the lowest amount reasonably within its discretion to award is $40,000.00.

For the above and foregoing reasons, the judgment of the trial court is amended by increasing the award for all general and special damages to $40,000.00.

Therefore, IT IS ORDERED, ADJUDGED AND DECREED, that there be judgment in favor of plaintiff, Linda Mon-nier, and against defendant, Government Employees Insurance Company in the sum of $35,000.00. In all other respects the judgment of the trial court remains the same.

Costs of this appeal to be borne by defendant-appellees.

AFFIRMED IN PART, AMENDED IN PART.

      . See Harris v. D’Antoni, 355 So.2d 1049 (La.App. 4th Cir. 1978; and Derouen v. Southern Pacific Transportation Co., 351 So.2d 300 (La.App. 3rd Cir. 1977), writ refused 353 So.2d 1046 (La.1978).