author: LABORDE, Judge.

text:
    BANK OF JENA, Plaintiff, v. Freddie Wayne CLARK, et al., Defendants, William Henry Sanders, Defendant-Third Party Plaintiff-Appellant, Hartford Accident & Indemnity Company, Third Party Defendant-Appellee.
    No. 8663.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Wm. Henry Sanders, Jena, pro se.

      Jimmie C. Peters, Jena, for plaintiff-ap-pellee.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for third party defendant-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

This is an appeal from the dismissal of a third party action on the peremptory exceptions of no right and no cause of action. William Henry Sanders, who was sued as an endorser on a promissory note, filed third party demands against Freddie Wayne Clark as the maker of the note, and Hartford Accident and Indemnity Company, the workmen’s compensation insurer of Clark’s employer. Hartford filed exceptions of no right and no cause of action. From a judgment sustaining those exceptions and ordering dismissal without prejudice of Sanders’ third party demands against Hartford, Sanders perfects this appeal. We affirm.

The issues on appeal concern whether the exceptions were properly sustained and if so, whether Sanders should be allowed to amend his petition instead of having his claims dismissed without prejudice.

William Henry Sanders endorsed a promissory note made by Freddie Wayne Clark which was payable to the Bank of Jena. By the terms of the note, Sanders agreed to be solidarily bound with Clark.

Clark and Sanders failed to pay the installments, the note was accelerated and suit was instituted by the Bank against both Clark and Sanders. In his answer, Sanders made a third party demand against Clark and Hartford Accident and Indemnity Company, the workmen’s compensation insurer of Clark’s employer. In this third party action, Sanders alleged that Clark was injured while at work and that the promissory note was made in order to pay for the medical expenses incurred as a result of these injuries which he further alleges are compensable under Louisiana’s Workmen’s Compensation Law. Sanders then prayed for judgment against Hartford in favor of himself, Clark and the Bank and for dismissal of the Bank’s claim against him. Sanders’ third party demand against Hartford was dismissed following the trial court’s sustaining of Hartford’s exceptions of no right and no cause of action.

We begin with whether these exceptions were properly sustained.

This court, in Mercier v. Clifton Flugence, et al., 408 So.2d 52 (La.App. 3rd Cir. 1981), discussed both exceptions:

“The exception of no right of action serves to question the right of a plaintiff to maintain his suit; i.e., his interest in the subject matter of the proceedings. The want of interest raised by the exception relates to whether the particular plaintiff falls, as a matter of law, within the general class in whose favor the law grants the cause of action sought to be asserted by the suit. In the exception of no right of action, evidence is admissible in a determination of whether the particular plaintiff falls within the general class having a legal interest to sue upon the cause of action asserted.
The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded and the issue is whether the face of the petition presents a case which legally entitles the plaintiff to the redress which is sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). Citations are unnecessary for the principle that evidence is inadmissible in a determination of an exception of no cause of action.”

As we apply these well-established principles to the instant case, it is clear that both exceptions were properly sustained.

Third party plaintiff, Sanders, has no right of action to sue Hartford for the collection of any workmen’s compensation benefits allegedly owed Clark. Clark is the only proper party plaintiff to bring such a suit. No evidence was introduced to show or prove otherwise.

The exception of no cause of action was also correctly sustained. Sanders’ allegations of fact, which are accepted as true, fail to state a cause of action against Hartford. All that is alleged is that Hartford owed Clark compensation benefits. There are no allegations that Sanders is legally entitled to payment from Hartford, nor did Sanders attach any documents in support of his pleadings showing such entitlement. We conclude that this exception was properly sustained.

Having concluded that the trial court correctly disposed of Hartford’s exceptions, we now address whether Sanders should have been allowed to amend his pleadings instead of having his third party demands dismissed without prejudice.

LSA-C.C.P. art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment, the court should allow amendment within a fixed delay.

In the instant case, assuming ar-guendo the workmen’s compensation benefits are owed by Hartford, Sanders does not belong to the particular class in whose ex-elusive favor the compensation law extends the remedy. Consequently, the pleadings are not remedial by amendment and the trial court properly dismissed Sanders’ third party action instead of ordering amendment within a fixed delay.

For the above reasons, the judgment of the District Court is affirmed. All costs of this appeal are assessed against the appellant, William Henry Sanders.

AFFIRMED.


source: Caselaw Access Project

author:
DOMENGEAUX, Judge.
      LABORDE, Judge,

license: Public Domain

text:
    Doris D. IVY, Plaintiff-Appellant, v. Mike GIAMANCO, d/b/a Giamanco’s Suburban Garden, Defendant-Appellee.
    No. 8665.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Downs & Downs, James C. Downs, Alexandria, for plaintiff-appellant.
    Davis & Saybe, Michael H. Davis, Michael Wahlder, Alexandria, for defendant-appel-lee.

      Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This appeal arises from a slip and fall injury sustained by plaintiff, Doris Ivy, while entering the Giamanco Suburban Garden restaurant in Alexandria. Plaintiff brought suit against the owner, Mike Giam-anco, d/b/a Giamanco Suburban Garden. The trial court rendered judgment in favor of the defendant and dismissed plaintiff’s suit. From this adverse judgment she appeals.

On July 12, 1976, at approximately nine o’clock in the evening, plaintiff, escorted by her companion Mr. Robichaux, went to defendant’s Suburban Garden restaurant. It had rained intermittently during the day and at the time of the accident it was still drizzling.

As plaintiff entered the restaurant through the bar entrance she slipped, causing her to fall backwards onto the tile floor. As a result of the fall, plaintiff fractured her left arm and suffered a vertical fracture of the body of the thoracic vertebra.

Plaintiff admits that due to the pain she was experiencing she did not look to see what was on the floor, but testified that water had soaked through the back and legs of her pantsuit. This testimony was somewhat corroborated by plaintiff’s companion that evening, who testified that his pants were damp in the knee area after kneeling down to assist plaintiff after her fall. The companion further testified that upon entering the lounge he did not observe anything on the floor and did not have any trouble walking in the same area where plaintiff fell.

The question with which we are concerned is whether the defendant breached his duty to provide a safe place for customers by keeping the entrance to the restaurant-bar in a reasonably safe condition. Rozelle v. Employer’s Liability Assurance Corp., 260 So.2d 757 (La.App. 2nd Cir. 1972).

James R. Graham, a patron of the bar, witnessed the entire incident and through his own volition had taken notes of the accident. He testified that it appeared that the plaintiff was rushing to enter the lounge to get out of the drizzling rain. Mr. Graham further testified that before leaving the lounge he stopped and inspected the area where the fall occurred. He found the floor was not slippery and that there was no indication of any wetness.

Miss Stroud, an employee of the restaurant testified that after plaintiff fell she inspected the area and found no water on the floor. Her testimony was further corroborated by another fellow employee.

As previously noted, even the plaintiff said that she could not testify as to the amount of the alleged water on the floor as she was in pain and did not observe the area in which she fell. All that is testified to by the plaintiff and her companion concerning the amount of water is that the backside of her pantsuit was damp. It is evident that the trial judge did not feel that the testimony was sufficient to preponderate over the positive testimony of defendant’s witnesses to the general effect that there was no foreign substance on the floor when plaintiff slipped and fell.

The trial court concluded that the evidence indicated that the cause of plaintiff’s slip and fall was plaintiff’s own wet shoes and a hurried attempt to enter the restaurant to avoid the drizzling rain.

A trial court’s factual determinations will be given great weight on appellate review and.will not be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

We find no manifest error in the trial court’s conclusions. There is sufficient evidence in the record to confirm those conclusions.

The judgment is affirmed at appellant’s costs.

AFFIRMED.

LABORDE, J., dissents and assigns reasons.

LABORDE, Judge,

dissenting.

I respectfully dissent. In my opinion the trial judge was clearly wrong when he concluded that: “This Court, based upon the testimony offered at trial, finds no preponderating evidence that any foreign substance existed on defendant’s floor. Moreover, there is no preponderating evidence that the cause of plaintiff’s slip was anything other than the plaintiff’s own wet shoes.”

Plaintiff testified without contradiction that after she slipped and fell, her pants suit was wet and soiled on the back of her legs and on her rear. Her companion testified that his knees were soaked when he knelt down to assist plaintiff after her fall. This was positive evidence that was passed over by the lower court which instead chose to accept the suspect testimony of a beer-drinking bar patron (Mr. Graham) who on his own, began taking notes as plaintiff was writhing in pain.

The defendant had the duty to exercise ordinary care and prudence to keep its floors, aisles, entranceways and passageways in a reasonably safe condition for the customers. This duty includes an obligation to employ reasonable inspection and cleanup procedures to see that these areas are free from extraneous substances which increase the hazard of ordinary use by its patrons. Rozelle v. Employers Liability Assurance Corporation, 260 So.2d 757 (La.App. 2nd Cir. 1972), writ refused, 262 So.2d 45 (1972).

In discharging this duty, defendant could have placed a protective mat at the entrance, mopped the water, posted warning signs, applied anti-slip compound, etc. — any of which, when compared to the risk of injury faced by plaintiff and the exposure faced by defendant, is slight and inexpensive. See Williams v. Winn Dixie of Louisiana, Inc., 393 So.2d 680 (La.1981); and Edwards v. Piggly Wiggly Operators, 401 So.2d 493 .(La.App. 2nd Cir. 1981).

For the above reasons, I respectfully dissent.


author: FORET, Judge.

text:
    Cheryl Rachal MORRIS, Plaintiff-in-Rule—Appellee, v. Jimmie D. MORRIS, Defendant-in-Rule—Appellant.
    No. 8672.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Michael W. Shannon, Alexandria, for defendant-in-rule-appellant.
    Martin Laird, III, Alexandria, for plaintiff-in-rule-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

Cheryl Rachal Morris (Plaintiff) brought a rule seeking the custody, care and control of the two minor children born of her marriage to defendant, Jimmie Dan Morris, Sr., and an award for alimony pendente lite and child support. By stipulation of the parties, plaintiff was awarded custody of the children.

The trial court, after hearing plaintiff’s rule and taking the matter under advisement, rendered judgment in favor of plaintiff and against defendant, condemning defendant to pay plaintiff $650.00 per month in alimony pendente lite and child support. We affirm.

Defendant appeals devolutively from the trial court’s judgment and raises the following issues:

(1) Whether the trial court abused its discretion in awarding plaintiff $650.00 per month in alimony penden-te lite and child support; and
(2) Whether plaintiff is entitled to alimony pendente lite, if no impediment exists to her being employed.

FACTS

Plaintiff and defendant were married on August 14,1965, at England Air Force Base in Rapides Parish. Subsequently, two children were bom of this marriage: Jimmie Dan Morris, Jr. (Jimmie, Jr.), age 12; and Andrew Lewis Morris (Andrew), age 10. Plaintiff was pregnant with the couple’s third child at the time of the hearing, and the expected delivery date was on or about September 1, 1981. Plaintiff instituted an action for separation on May 5,1981, on the ground that defendant had abandoned the matrimonial domicile, and brought this rule for custody, child support, and alimony pen-dente lite incidental to that action.

ALIMONY PENDENTE LITE AND CHILD SUPPORT

The trial court simply awarded the lump sum of $650.00 per month to plaintiff for alimony pendente lite and child support, and we will consider the award in the same manner.

As to child support, the evidence shows that Andrew suffers from a learning disability, which has been characterized by many names, but is most commonly known as “hyperactivity”. He must regularly take the psycho-stimulant, Ritalin, which is an accepted form of treatment for this disorder. In addition, he must have complete physical examinations approximately once every three months to determine the effects of the drug on his body, and whether it is necessary to continue with that form of treatment. He attends special education classes and must be tutored during the summer months at his parents’ expense.

Plaintiff testified that she is caring for Jimmie, Jr. and Andrew, and that they are growing like normal, healthy boys, requiring fairly substantial expenditures for food, clothing, education, and transportation to and from the different activities they participate in such as boy scouts, baseball, etc. Plaintiff introduced in evidence an estimate of her total monthly expenses for both her and the children which amounted to $969.00.

As to alimony pendente lite for plaintiff, defendant argues that plaintiff can and should be forced to find employment to support herself. Defendant cites the recent case of Smith v. Smith, 382 So.2d 972 (La. App. 1 Cir. 1980), in support of his contention. Smith found LSA-C.C. Article 148 to be unconstitutional as it discriminated on the basis of sex, and held on page 974:

“We find that the change in social circumstances, which has compelled the finding of unconstitutionality of Article 148, also compels a different result in the award of alimony pendente lite under Article 119, as interpreted herein. In a case such as this, in which no impediment exists to the employment of the wife, she should not be entitled to alimony penden-te lite unless it is made to appear that she is unable to find employment with which to support herself. Of course, each case of this nature must be decided on its own facts.”

LSA-C.C. Article 148 was amended by Acts 1979, # 72, § 1, effective June 29, 1979, and now provides:

“Art. 148. Alimony pendente lite
Art. 148. 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,” (Emphasis provided.)

Based on the amendment to LSA-C.C. Article 148 and the-decision of the United States Supreme Court in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), in which it found unconstitutional a provision of Alabama law, similar to LSA-C.C. Article 148 (prior to its amendment), we agree with the holding of the court in Smith.

However, we find that at the time of the hearing an impediment did exist to the employment of plaintiff, i.e., she was pregnant with an expected delivery date some three to four months thereafter. We further find that because of this impediment, and her needs at the time of the hearing, plaintiff was entitled to an award for alimony pendente lite under the provisions of LSA-C.C. Article 148, as amended.

Defendant contends that the trial court failed to consider his ability to pay an award for child support and alimony pen-dente lite in rendering judgment against him ordering him to pay plaintiff $650.00 per month for those two items. The evidence shows that defendant’s net income amounts to $1028.00 per month, and he introduced in evidence a list of his monthly expenses which totaled $771.50. He argues that the trial court’s judgment, which leaves him only $378.00 per month to meet his living expenses, is excessive and constitutes an abuse of discretion on the part of that court.

The record shows that the trial court was fully aware of the extremely difficult judgment it was being called upon to make. There was plaintiff preparing to give birth to the couple’s third child and having the care, custody and control of the other two. Because of her condition, she was unable to find employment to contribute to the support, maintenance, and education of the children, and was in necessitous circumstances herself. Then, there was defendant, who needed to be allowed enough income to support himself, while at the same time having to perform his obligation to support plaintiff and the children.

In determining child support, the trial judge is vested with wide discretion. Only manifest abuse of that discretion will move an appellate court to disturb an award of the trial judge. Strickland v. Strickland, 377 So.2d 537 (La.App. 3 Cir. 1979); Gravel v. Gravel, 331 So.2d 580 (La. App. 3 Cir. 1976); Dupre v. May, 365 So.2d 1173 (La.App. 3 Cir. 1978). Similarly, in making an award of alimony pendente lite, the trial judge is vested with the same wide discretion. Ledbetter v. Ledbetter, 398 So.2d 1155 (La.App. 2 Cir. 1981); Ryan v. Ryan, 401 So.2d 514 (La.App. 2 Cir. 1981); Gaspard v. Gaspard, 401 So.2d 624 (La.App. 3 Cir. 1981).

We are unable to conclude that the trial court’s award to plaintiff of $650.00 per month for child support and alimony pendente lite constitutes a clear abuse of discretion.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . Our affirmance of the trial court’s judgment does not preclude the plaintiff-husband from re-opening this case in the future to determine the wife’s ability to support herself and contribute to the support of the children.


author: GUIDRY, Judge.

text:
    Kim Arlene GASPARD, Plaintiff-Appellant, v. Larry V. BREAUX, et al., Defendants-Appellees.
    No. 8677.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      P. Michael Maneille, Lake Charles, for plaintiff-appellant.
    Stockwell & Assoc., Robert S. Dampf, Lake Charles, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

This is a suit for damages for personal injuries. Plaintiff, Kim Arlene Gaspard, instituted this suit against defendants, Larry V. Breaux, individually and in his capacity as administrator of the estate of his minor son, Gary Breaux, South City Paint & Supply Company, Inc., and its liability insurer, Continental Insurance Company (hereafter Continental), to recover damages, including past and future medical and dental expenses, resulting from a one-car accident in which plaintiff was injured. Presumably, at trial, on joint motion of the parties, Larry V. Breaux, Gary Breaux and South City Paint & Supply Company, Inc. were dismissed as parties defendants and plaintiff’s suit was continued only against Continental. The trial court entered judgment against defendant, Continental, and in favor of plaintiff, Kim A. Gaspard, in the sum of NINE THOUSAND TWENTY DOLLARS ($9,020.00) with legal interest until paid and assessed all costs to the aforesaid defendant. Plaintiff has appealed seeking an increase, in the amount of the award. Continental has neither answered nor appealed from the aforesaid judgment.

The facts are undisputed. On September 9, 1978, plaintiff, Kim A. Gaspard, age 17, was a guest passenger in an automobile owned by South City Paint & Supply Company, Inc. and operated by Gary Breaux, age 15. While traveling down a gravel road, Gary Breaux lost control of his vehicle when it hit a pot hole causing the automobile to slide. The automobile skidded into a ditch, traveled through the ditch, and came to a stop after the front end of the automobile went through a barbed wire fence. Although Breaux was unhurt, plaintiff’s face struck the vehicle’s dashboard causing injury to her teeth, gums and mouth. Plaintiff was initially taken to St. Patrick’s Hospital where medical personnel referred her to her dentist, Dr. James Heard. Dr. Heard administered emergency aid by repositioning two of plaintiff’s teeth which had been pushed backward, applying ice packs, and prescribing pain medication. Thereafter, Dr. Heard treated the plaintiff for her injuries over a three month period. The aforesaid dental treatment included root canal therapy on one tooth, surgical removal of the root of another, and the installation of a five unit porcelain veneer bridge as a permanent replacement for plaintiff’s missing and damaged teeth. Plaintiff’s bridgework consists of two artificial teeth and three crowns. During the period in which the bridge was being installed, plaintiff was on a liquids only diet for approximately one month and on a soft food diet for one and one half months. During the aforesaid period plaintiff lost 13 pounds. Subsequent to the death of Dr. Heard in January of 1979, plaintiff was treated by Dr. W. Harold Schnauder, a Lake Charles dentist, who assumed Dr. Heard’s practice. Dr. Schnauder testified that he examined and treated plaintiff on four occasions between March, 1980 and April of 1981. He testified that as a result of the placement of the bridge, plaintiff has experienced irritation of her gums resulting in sporadic bleeding, tenderness, and some pain and discomfort. Dr. Schnauder also indicated that since the placement of the bridge, plaintiff is required to spend more time brushing her teeth and must also floss more frequently. The record sufficiently establishes that plaintiff had beautiful, healthy teeth before the accident.

The issues presented on appeal are (1) Did the trial court clearly err in failing to award to plaintiff special damages consisting of past dental expenses incurred for plaintiff’s treatment during her minority and prior to the institution of the present suit; (2) Did the trial court clearly err in failing to award an amount of special damages sufficient to cover the cost of future dental treatment; and, (3) Is the trial court’s award of general damages so inadequate as to constitute an abuse of that court’s wide discretion?

Plaintiff initially contends that the trial court erred in failing to award her judgment for the sum of $1433.00 in special damages representing past dental expenses incurred as a result of the accident. In denying such special damages, the trial court concluded that Kim lacked the capacity to contract at the time she received such medical and dental treatment, thus, the contract for such treatment was between Dr. Heard and plaintiff’s father, Oran Gas-pard, who, in fact, actually paid such expenses. The trial judge further reasoned that since Mr. Gaspard was not a party to the present suit, he could not be awarded judgment for such past medical and dental expenses. Plaintiff, however, argues that at the time of institution of the present suit, she had attained majority status, thus, her father had no real and actual interest in the suit since his right to administer her estate ceased when she became a major. In addition, plaintiff asserts that all damages for personal injuries to a minor child belong to the child. After a careful review of pertinent law and applicable jurisprudence, we conclude that the trial court was correct in its decision regarding the award of past medical and dental expenses.

In resolving the issue presented, our initial point of inquiry is whether or not the medical and dental expenses in question were chargeable to plaintiff’s estate since occasioned during her minority. LSA-C.C. Article 1785 provides that a minor has not the capacity to contract but such contracts may be rendered valid by ratification. In Butto v. Central Finance Company, 73 So.2d 44 (Ct. of App. Orleans, 1954), the court, in the context of the purchase of an automobile by a minor, commented:

“Where the minor, under the contract, has agreed to make certain payments and, after attaining majority, fails to make the payments, his failure obviously cannot be looked upon as evidencing an intention to ratify. On the contrary, his failure evidences a determination that he shall not be bound by the contract. It is in itself evidence of intention not to ratify”

Applying the aforesaid principle to the present facts, we conclude that had the plaintiff contracted for her own medical and dental treatment at the time she received such treatment and elected not to pay the same, she could not have been sued for nonpayment once she became a major. Rather, her nonpayment would have evidenced her intent not to ratify the agreement executed when she lacked the capacity to so contract. In further support of the conclusion that plaintiff’s medical and dental expenses are not plaintiff’s debt so as to mandate an award to her of past medical and dental expenses, we note that LSA-C.C. Article 1785 permits a minor to validly contract for necessaries for his support, but only if the person charged with the minor’s care has neglected to do so. In the present matter, plaintiff’s father willingly paid plaintiff’s medical and dental expenses. In addition, we observe that LSA-C.C. Articles 1243 and 1244 provide within the context of Louisiana succession law that although collation is due for amounts expended by parents on behalf of their legitimate descendants for payment of their debts, collation is not due for expenditures by parents related to the board, support, or education of such legitimate descendants. Thus, we conclude that plaintiff’s medical and dental expenses incurred as a result of the aforesaid accident were not chargeable to her estate.

LSA-C.C. Article 227 provides:

“Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

The aforesaid codal authority has been interpreted by our courts as establishing the legal obligation of parents to support their children which encompasses the furnishing by parents of needed medical and dental treatment to their minor children. The aforesaid legal obligation is generally discussed by our courts within the context of cases involving child support agreements, however, the legal obligation of parents to pay for such expenses incurred by their children is well settled in a wide variety of factual contexts. Clearly plaintiff’s father had a legal obligation to pay for those medical and dental services required by the plaintiff as a result of her injuries. Although her father has a right to reimbursement for such expenses, it was necessary that he join in the present suit as a party plaintiff in order to assert his right to reimbursement. Since Mr. Gaspard neither joined in the present suit nor assigned such debt to his daughter, we must concur with the finding of the trial court that plaintiff is not entitled to judgment for the dental expenses incurred during her minority and actually paid by her father, Oran Gaspard.

Plaintiff next contends that the trial court erred in failing to award in special damages an amount for future dental expenses consistent with the testimony offered by plaintiff’s expert witness, Dr. W. Harold Schnauder. In this regard, plaintiff alleges that Dr. Schnauder’s testimony establishes that Kim will require at least two replacement bridges in the future and that such future bridgework will include up to seven or eight teeth as well as root canal therapy on two additional teeth at a total conservative dental fee cost of $4,950.00. Thus, plaintiff argues that the trial court’s award of $2500.00 in future dental expenses is so inadequate as to constitute an abuse of its wide discretion.

When questioned regarding the future need of replacing plaintiff’s present bridgework, Dr. Schnauder stated:

“I would think that probably within about 10 years, a new bridge would have to be made in this area due to the recession of the gum. At Kim’s age now, she will definitely get some more recession in 10 years, and the bridge would become too unsightly to warrant leaving in the mouth.”

In addition, upon questioning pertaining to the need for an additional replacement bridge subsequent to the placement of the second bridge, Dr. Schnauder stated:

“I would think that probably in another 10 or 15 years, she will probably have to have this redone again.”

In regard to the need for root canal therapy on two additional teeth in the future, Dr. Schnauder testified:

“It’s possible. Usually in an accident case, there is a good possibility that over a period of years, due to the blow, that a tooth may gradually die, and if this would happen, then root canal procedures may have to be done.”

In estimating the cost of such future dental treatment, Dr. Schnauder testified that at prices existing at the time of trial, the cost of replacing a bridge would range from $325.00 to $450.00 per tooth with the cost of root canal therapy estimated at $200.00 per tooth.

Our review of the record reveals that Dr. Schnauder testified at trial that in all probability the changes in the bone structure of plaintiff’s mouth and the recession of the gingiva, will require the replacement of plaintiff’s bridge within a period of 10 years. However, Dr. Schnauder could not definitely state that a second additional replacement bridge would be required. Further, Dr. Schnauder indicated that it was only a possibility that such replacement bridges would require the inclusion of additional teeth. In regard to the need for additional root canal therapy, Dr. Schnau-der indicated that there exists only a possibility that two additional root canals would be required in the future and he indicated that a number of variables would determine if such additional work would be required. It is well settled that future medical expenses, like any other element of damages, must be established with some degree of certainty. See Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3rd Cir. 1980); Wilson v. MaGee, 359 So.2d 315 (La.App. 4th Cir. 1978), modified on appeal, 367 So.2d 314 (La.1979). Also, “.. . awards will not be made for future medical expenses which may or may not occur in the absence of medical testimony that they are indicated and setting out their probable cost.” Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), writ denied, 236 So.2d 36 (La.1970). Also, it is well established that an award for future medical expenses like loss of future wages is in great measure highly speculative and not susceptible of calculation with mathematical certainty. Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir. 1974). Considering the evidence above set forth in light of these legal principles, we cannot say that the trial court manifestly erred in awarding $2500.00 for future dental expenses.

Plaintiff’s final contention is that the trial court’s award of general damages in the sum of $6500.00 is so inadequate as to constitute an abuse of that court’s wide discretion. In support of her argument, plaintiff cites to this court a number of cases in which the trial court awarded sums somewhat higher than that awarded by the trial court in the instant case. See Rutledge v. Sentry Insurance Co., et al, 280 So.2d 619 (La.App. 3rd Cir. 1973); Johnigan, et ux v. State Farm Mutual Automobile Insurance Co., et al, 345 So.2d 1277 (La.App. 3rd Cir. 1977); Guidry v. Missouri Pacific Railroad, et al, 366 So.2d 618 (La. App. 3rd 1978), writ denied, 369 So.2d 153 (La.1979). Prior awards may serve as an aid in the determination of whether an award under review constitutes an abuse of discretion only where the present award is shown to be greatly disproportionate to past awards for similar injuries. LSA-C.C. Article 1934(3); Searcy v. Porter, 381 So.2d 540 (La.App. 2nd Cir. 1980); St. Martin v. Maryland Casualty Co., 357 So.2d 885 (La. App. 1st Cir. 1978), writ denied, 359 So.2d 621 (La.1978). While we conclude that the trial court’s award to plaintiff of $6500.00 in general damages may be on the low side, it is not so inadequate as to be less than the lowest amount which could reasonably be awarded based upon the evidence. Plaintiff also asserts that the trial court should have considered the rate of inflation when making its award. Searcy v. Porter, supra. We find no indication in the record that the trial judge failed to consider this factor. Thus, after carefully reviewing the record before us, we conclude that the trial court did not clearly err in awarding to plaintiff general damages in the sum of $6500.00.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff, Kim A. Gaspard.

AFFIRMED.

      . Gingiva is defined as that portion of the gums next to the exposed crown in the mouth.


author: CUTRER, Judge.

text:
    Mervis THOMAS, Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY, et al., Defendant-Appellant.
    No. 8680.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Writ Denied June 4, 1982.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Chris G. Robbins, Lafayette, for defendant-appellant.
    Alex D. Chapman, Jr., and J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises out of a suit for damages incurred as a result of an intersectional vehicular collision involving a vehicle driven by Mervis Thomas and one driven by Joey Fontenot.

Thomas, alleging the lack of proper traffic controls at the intersection and the negligence of Fontenot in the operation of his vehicle, filed suit for damages against the City of Ville Platte (City) and State Farm Mutual Insurance Company (State Farm), liability insurer of Fontenot. State Farm filed a third party demand against the City.

After trial, judgment was rendered in favor of Thomas and against the City and State Farm, in solido, for the sum of $3,572.50. This sum included $1,500.00 general damages for personal injuries; $273.50 medical expenses and $1,799.00 property damage to Thomas’ automobile. State Farm’s third party demand was dismissed. The City and State Farm appeal. We reverse in part and affirm in part.

The facts of this case are as follows:

On Saturday, March 29, 1980, in Ville Platte, Louisiana, Thomas left a supermarket and was proceeding to his home, driving South on Court Street. He was being followed by his sister-in-law, Myrtis Adams. As Thomas proceeded, he arrived at the intersection of Court and Magnolia Streets. Traffic proceeding along Court Street is controlled by a blinking yellow signal. Traffic on Magnolia is controlled by stop signs. These stop signs are attached to a 4V2 foot metal stand which is welded to an automobile wheel. At the time of the accident it was drizzling rain and the paved intersection was slippery. Located on the northeast corner of the intersection near the street is a building. This structure obstructed the view of the two drivers as they approached the intersection.

Thomas testified that as he approached the intersection, he slowed his vehicle to a “rolling stop,” looked to his left and right and, not seeing any vehicles approaching, proceeded into the intersection. Thomas stated that the Aucoin building and cars parked along Magnolia Street limited his view down Magnolia to approximately two car lengths. Thomas had proceeded slightly past the middle of the intersection when he saw Fontenot’s car coming into the intersection. The Fontenot vehicle struck the Thomas car just behind the front door. The impact caused Thomas’ car to spin around in the intersection resulting in injuries to Thomas.

Fontenot testified that he was proceeding west on Magnolia Street at a speed of 30 miles per hour. He stated that as he approached the intersection with Court Street he saw no control devices regulating traffic on Magnolia. He stated that there was no blinking signal for traffic on Magnolia Street and he did not see any stop signs controlling his lane of travel. He testified that he slowed his vehicle to 20 miles per hour and proceeded through the intersection striking the Thomas vehicle. Fontenot stated that after the accident he noticed that the stop sign, that would have controlled his traffic lane, was down and lying next to the curb.

Mrs. Adams, who was following Thomas, testified that Thomas came to a “slow crawl” as he entered the intersection. She further stated that after the accident she noticed that the stop sign which controlled Fontenot’s lane of traffic was lying near the curb. She also stated that the stop signs on Magnolia were standing about thirty minutes to one hour before the accident. The investigating officer also stated that the stop sign was down after the accident.

The appeals by the City and State Farm present the following issues:

(1) Whether the City is liable for damages;

(2) Whether Fontenot was negligent, thus rendering his insurer, State Farm, liable for damages;

(3) Whether Thomas was contributorily negligent;

(4) Whether the general damages awarded by the trial court were excessive; and

(5) Whether State Farm’s third party claims for indemnity against the City should be allowed.

LIABILITY OF THE CITY

In its reasons for judgment the trial court held the City liable, observing that the intersection in question is heavily traveled, the heaviest traffic proceeding along Court Street. The trial judge went on to state as follows:

.. The Court finds that the traffic control system of a flashing caution light, and a stop sign on West Magnolia, installed on an automobile rim, was inadequate to warn traffic proceeding west on West Magnolia. It is the duty of a city to have adequate traffic controls at intersections such as the one herein. Apparently the stop sign on West Magnolia installed on an automobile rim had fallen, and was not visible to the traffic traveling west on Magnolia Street. The City officials of Ville Platte should have foreseen such an incident, and as such, it violates a duty to the traveling public by having such a stop sign.”

We disagree with the trial judge’s conclusion that the traffic control system at the intersection was improper or inadequate. The record contains no testimony or other evidence to the effect that a blinking yellow light controlling traffic on Court Street and stop signs controlling traffic on Magnolia Street were improper or inadequate for handling traffic at the intersection. Also, the record contains no evidence or testimony that a stop sign mounted on an automobile wheel is inadequate or improperly designed. No evidence was presented to show the stability or instability of this design for the stop sign. There is no evidence to show what caused the stop sign to be lying down after the accident.

Whether we determine the responsibility of the City according to LSA-C.C. art. 2317 or art. 2315, the resulting conclusion would be the same. The record simply does not contain evidence that could be a basis for holding that the system of control (blinking yellow light for Court Street and stop signs for Magnolia Street) or the design of the stop sign, per se, creates an unreasonable risk of harm to the public (art. 2317). Goodlow v. City of Alexandria, 407 So.2d 1305 (La.App. 3rd Cir. 1981). We cannot assume, without evidence, that such a system or design creates an unreasonable risk of harm to the public.

The application of art. 2315 produces the same result. Mrs. Adams testified that the sign was standing thirty minutes to one hour before the accident. There is no testimony that the City had any knowledge of the fact that the sign was down before the accident. Under art. 2315, unless Thomas shows that the City had such knowledge, actual or constructive, and failed to correct same, the City is not liable for damages caused by the stop sign being down. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975). Due to the lack of proof, we conclude that the trial judge erred in holding the City liable and that portion of the trial judgment will be reversed.

NEGLIGENCE OF JOEY FONTENOT

The trial court held Fontenot negligent in the operation of his vehicle. We agree with this conclusion.

Summarizing Fontenot’s testimony at trial, it is evident that he was well acquainted with the intersection. He knew it to be heavily traveled. He slowed down at the intersection but proceeded “right on through.” He approached the intersection at 30 miles per hour but was traveling 20 miles per hour when he hit Thomas’ car. He knew the intersection had been controlled by stop signs prior to the accident. He was also aware of the Aucoin building obscuring his vision north on Court Street until he was into the intersection. When questioned by Thomas’ counsel:

“Q. And you had known before that at one time there had been a stop sign facing you in that direction?
“A. Yes, sir.
“Q. But this time you looked and you didn’t see nothing, so you just assumed that you could go right on through?
“A. Yes, sir.”

Fontenot stated that he considered Court Street more heavily traveled than Magnolia. He had lived in Ville Platte all of his life.

We find no error in the trial court’s finding that Fontenot was guilty of negligence. When Fontenot entered this known hazardous intersection, charged with knowledge that a stop sign had previously controlled Magnolia Street traffic, without ascertaining traffic conditions approaching the intersection on Court Street, he was guilty of negligence. The stop sign being down does not create an unqualified right for Fontenot to drive through a known dangerous intersection without ascertaining the traffic conditions on the more heavily traveled Court Street. Fontenot failed to perform the duty imposed upon him to ascertain if he could safely traverse the intersection before entering it. His actions of slowing his speed some and proceeding into the intersection without keeping a proper lookout were negligent. This negligence caused the accident in question. Peterman v. City of Hammond, 378 So.2d 181 (La.App. 1st Cir. 1979). The trial court judgment, finding Fontenot liable for damages, shall be affirmed.

CONTRIBUTORY NEGLIGENCE OF THOMAS

The trial court correctly found that Thomas was free of contributory negligence. Thomas approached the intersection controlled by a blinking light with caution, coming to a “rolling stop.” He looked to his right and to his left and saw no approaching automobiles. It was only after the Thomas vehicle entered the intersection that Fontenot’s vehicle suddenly appeared. Fontenot’s vehicle was not in the process of stopping. The Thomas vehicle had preempted the intersection. The accident occurred when the Thomas vehicle was slightly south of the middle of the intersection. The damage to the Thomas vehicle was located along the rear quarter panel extending along the side of the trunk on the driver’s side. We hold that Thomas satisfied the requirements of LSA-R.S. 32:234(A)(2) which provides:

‘“A. Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
U t * * *
‘“(2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL)—When a yellow lens is illuminated with rapid intermittent Hashes, drivers of vehicles may proceed through or past such signal only with caution.”

See McMillan v. State Farm Mut. Auto. Ins. Co., 356 So.2d 1368 (La.1978).

DAMAGES

It is urged that the general damages awarded to Thomas in the amount of $1,500.00 are excessive. We disagree and affirm the award by the trial court. Thomas sustained an acute cervical strain. He was disabled from March 31st until April 23, 1980. Dr. Charles E. Fontenot stated that Thomas experienced pain during this four week period and would probably experience some pain for a short time after his release.

It is well settled law, that the trial judge has much discretion in his award of damages and, that this discretion should not be supplanted by that of the appellate court unless the record clearly discloses that it has been abused. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); LSA-C.C. art. 1934(3). Prior decisional awards may be helpful in determining the amount of damages to be awarded but they are not binding:

“The primary purpose of the judge or jury in fixing the award in a personal injury case is to adequately compensate the injured person for his injuries under the facts shown to exist in his case.” Reck, supra, at 500.

We find the award to be adequate and within the bounds of the trial judge’s discretion.

Due to the conclusion we have reached, it is not necessary to consider the remaining issue of whether State Farm is entitled to indemnity from the City. The third party demand of State Farm was correctly dismissed.

For the foregoing reasons, the judgment of the trial court rendered in favor of Thomas and against the City of Ville Platte is reversed and set aside. In all other respects the judgment of the trial court is affirmed. All costs of the trial court and for this appeal shall be paid by State Farm.

REVERSED IN PART; AFFIRMED IN PART.


author: STOKER, Judge.

text:
    Myrtis HARRINGTON, Plaintiff-Appellant, v. Elson CAMPBELL, Defendant-Appellee.
    No. 8690.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Irby Hebert, Jr., Abbeville, for plaintiff-appellant.
    Carrol L. Spell, Jr., Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER, STOKER, JJ.
   STOKER, Judge.

Plaintiff-appellant, Myrtis Harrington, filed suit on September 18, 1980, in the Fifteenth Judicial District Court for separation from her husband, defendant-appellee Elson Campbell. The trial court found that the parties were mutually at fault in causing the separation and granted a separation based on LSA-C.C. art. 141. The court also awarded alimony pendente lite to plaintiff of $150.00 per month until October 10,1981. Plaintiff appeals this ruling. Defendant does not answer the appeal but seeks to have the trial court’s judgment affirmed.

Plaintiff alleges that the trial court committed eight errors which can be summarized in two basic complaints: (1) that the trial court erred in finding that plaintiff was guilty of fault which contributed to the breakup of the marriage; and (2) that the trial court erred in awarding to plaintiff an “abusively low” award of alimony pendente lite and in fixing a termination date of the award. Plaintiff’s specifications of error relative to these two areas of complaint will be discussed below.

WAS PLAINTIFF “AT FAULT” IN HER SEPARATION?

LSA-C.C. art. 141 allows the granting of a separation from bed and board even though “both spouses are mutually at fault in causing the separation”. See footnote 1. The fault of each party must constitute an independent ground for separation under LSA-C.C. art. 138 to support a separation on the basis of mutual fault. Adams v. Adams, 389 So.2d 381 (La.1980); Miller v. Miller, 398 So.2d 1162 (La.App. 2nd Cir. 1981) and Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), writ denied, 371 So.2d 1341. The mutual fault of the two parties need not be equal, but the fault of each, standing alone, must be sufficient to award the other spouse a separation under LSA-C.C. art. 138. Miller v. Miller, supra, Post v. Post, 376 So.2d 1275 (La.App. 2nd Cir. 1979), and Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980), writ refused, 386 So.2d 358.

Plaintiff contends that the trial court erred in finding her guilty of fault sufficient to award her husband a separation under LSA-C.C. art. 138 and that, therefore, the granting of a separation for mutual fault under LSA-C.C. art. 141 is erroneous. Defendant did not answer the appeal so we are precluded from considering the trial court’s finding of fault as to him. Adams v. Adams, supra, Vail v. Vail, supra, Miller v. Miller, supra; and Denbo v. Denbo, 345 So.2d 1257 (La.App. 1st Cir. 1977). Defendant in his reconventional demand asserted that plaintiff was guilty of abandonment which is a ground for separation under LSA-C.C. art. 138(5). See footnote 2. However, plaintiff in her original and supplemental petitions asserted with particularity that defendant was guilty of various acts of cruel treatment which are grounds for separation under LSA-C.C. art. 138(3). See footnote 2. Plaintiff argues that defendant’s cruel treatment was a defense to abandonment, and that the trial court erred (if its finding of fault as to her was based on any evidence other than that concerning her abandonment) since the defendant alleged no other ground for separation.

In divorce or separation proceedings, the trial court’s findings of fact on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La.1977); Douglas v. Douglas, supra; and Aguillard v. Aguillard, 380 So.2d 104 (La.App. 1st Cir. 1979), writ denied, 381 So.2d 1206 (La.1979). In its minute entry constituting reasons for judgment, the trial court gave none of its findings of fact on the issue of fault except for a comment concerning a cassette tape introduced into evidence by plaintiff on which plaintiff had recorded an argument between her and her husband. However, plaintiff’s taping of a domestic argument is not by itself sufficient grounds for separation. We must assume that the trial court found this action by plaintiff to be cruel treatment or an “outrage” under LSA-C.C. art. 138(3). Article 138(3) requires that “cruel treatment or outrages” must be “of such a nature as to render [the spouses’] living together insupportable;” however, we do not feel that this one action by plaintiff reaches that quality or severity. Therefore, we must examine the record of evidence adduced at trial to determine if plaintiff was guilty of other acts of cruel treatment which rendered defendant’s living with plaintiff insupportable. In this regard, we may consider evidence of plaintiff’s cruel treatment introduced without objection since this expands the defendant’s pleadings.

The parties in this case have had marital difficulties previously, as indicated by the fact that they were judicially separated in December of 1976, but had reconciled and had been living together since July of 1978 until this present separation. Plaintiff testified in detail of at least two beatings she received at the hands of her husband, one on January 7,1979, and another on September 13, 1980, the day she left her husband. On both occasions, plaintiff required medical attention, and the doctors who saw her on those occasions both testified that plaintiff’s injuries were consistent with her description of the beatings. Mr. and Mrs. Roundtree, who lived in a trailer rent-free on property owned by plaintiff, testified that they saw plaintiff immediately after the beating on September 13,1980, and that her condition was consistent with her description of the incident which had just occurred. Defendant denied ever hitting his wife but could offer no other reasonable explanation for her injuries. Plaintiff also testified in detail of various acts of mental cruelty committed by her husband beginning in August of 1981, including his telling her to leave their common household, and that he no longer loved her and had no desire to have sexual relations with her.

In light of the strong evidence of defendant’s physical and mental cruelty towards plaintiff, we believe she was justified in leaving her husband and not guilty of abandonment, especially in light of the fact that defendant failed to show by a preponderance of the evidence that he constantly desired his wife’s return, one of the ele-merits necessary to prove abandonment. Defendant had already packed plaintiff’s belongings when she returned for them two days later and made little or no effort to contact her before or after this time.

Plaintiff argues that the trial court must have based its finding that the parties were mutually at fault on the cruel treatment by defendant and the abandonment by plaintiff, and that these fault-based grounds are defenses to each other. See Favaloro v. Favaloro, 391 So.2d 966 (La.App. 4th Cir. 1980). Therefore, following plaintiff’s argument, since the judgment of defendant’s cruel treatment is final and cannot be disturbed by this Court, plaintiff must be without fault by definition to avoid an inconsistent judgment.

The Louisiana Supreme Court, faced with this argument in Adams v. Adams, supra, stated:

“Plaintiff argues that because the separation judgment grounded upon abandonment in plaintiff’s favor by definition means that plaintiff was without fault, this Court must defer to the final portion of the judgment and conclude that plaintiff was without fault. However, the better approach, where such an inconsistency is present, is to examine whether the record supports the finding at issue without regard to other findings not before the Court. Dixon v. Dixon, 357 So.2d 856 (La.App., 4th Cir. 1978); Watson v. Watson, 372 So.2d 639 (La.App., 4th Cir. 1978). Thus, we only consider whether the lower courts erred in determining that plaintiff was at fault in causing the separation.” See also Vail v. Vail, supra.

In the Adams ease, the defendant had reconvened on the ground of cruel treatment, so the issue of plaintiff’s cruel treatment was properly before the court. In the case before us, however, defendant reconvened only on the basis of abandonment, and plaintiff timely objected when defendant tried to testify as to plaintiff’s cruel treatment. Therefore, we cannot consider the testimony of defendant regarding his wife’s cruel treatment because this evidence was not properly before the trial court on this issue. Defendant contended in his brief and at oral argument, however, that the testimony of the parties’ daughter, which was not objected to at trial, established plaintiff’s cruel treatment. We disagree. Even if admission of the evidence had been proper, any conclusion by the trial court that the plaintiff’s conduct based on this evidence constituted cruel treatment was clearly wrong. The daughter testified that plaintiff told her on at least one occasion that “I hate him [defendant] so much, if he was right here, I’d kill him.” The daughter also spoke of an argument she had had with the plaintiff. We do not feel that such a statement made in anger (the seriousness of which may be questioned) or an argument between plaintiff and her daughter, neither of which occurred within the presence of defendant, can be considered to be cruel treatment directed towards the defendant.

The only relevance to the issue of plaintiff’s cruel treatment in this case is that she cannot get permanent alimony after divorce unless she is free from fault. Fault which would deprive a wife of permanent alimony after divorce under LSA-C.C. art. 160 must consist of conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Adams v. Adams, supra; Pearce v. Pearce, supra; Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (La.1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (La.1953); and Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (La.1952). To constitute fault a wife’s conduct must be an independent contributory or proximate cause of the separation sufficient to have allowed the husband to obtain a judgment of separation against his wife under LSA-C.C. art. 138. Adams v. Adams, supra. We find that mere accusations that plaintiff worked different hours from defendant, had struck defendant without hurting him, had on occasion been very angry at defendant, or was generally quarrelsome are not of such a severe nature as to allow the rendition of a judgment of separation against plaintiff. Therefore, for the foregoing reasons we reverse the trial court’s determination of fault on the part of plaintiff Myrtis Harrington; we affirm so much of the trial court’s judgment which granted a separation in favor of plaintiff.

ALÍMONY PENDENTE LITE

Plaintiff contends that the trial court erred in granting to her an “abusively low” award of alimony pendente lite. The trial court gave the following written reasons for its award:

“The Court awards alimony pendente lite in the amount of $150.00 per month until October 10, 1981. The Court finds that the plaintiff is in no way disabled and is capable of supporting herself. The only reason the Court is awarding plaintiff this amount is in order for the plaintiff to rehabilitate her earning capacity and become self-supporting.”

Plaintiff argues that the trial court erred in considering a spouse’s earning capacity to fix a termination date of the award, and in granting an award contrary to the evidence adduced at trial.

The basis for alimony pendente lite is LSA-C.C. art. 148 which states:

“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.”

It is well settled that the ability of a spouse to obtain employment producing some income in the future is not an appropriate consideration in determining alimony pen-dente lite; if, however, the spouse chooses to earn her own living, or a part of it, alimony is reduced to the extent of her earnings. Ward v. Ward, 339 So.2d 839 (La.1976); Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2nd Cir. 1980); St. Julien v. LeBlanc, 146 So.2d 296 (La.App. 3rd Cir. 1962). Therefore, an award of alimony pen-dente lite granted to the wife only “to rehabilitate her earning capacity and become self-supporting” is not proper.

The evidence adduced at trial is that defendant takes home $1,059 per month and that plaintiff is currently employed and takes home $304.84 per month. Plaintiff’s statement that she needs about $350 per month from her husband to meet her needs and expenses is not seriously disputed. Therefore, we will award to plaintiff the sum of $350 per month alimony pendente lite. This award is to remain in effect until such time as the parties may be divorced, when plaintiff’s earning capacity may be considered in an award for permanent alimony under LSA-C.C. art. 160. The trial court, of course, is not precluded from entertaining proceedings in which decreases or increases may be sought prior to any judgment of divorce and in granting any judgment making justified modification in the award of alimony pendente lite in accordance with established law.

CONCLUSION

We reverse that portion of the trial court’s judgment which granted a judgment of separation from bed and board to plaintiff in reconvention, Elson Campbell, based on the trial court’s finding of mutual fault of the parties; we affirm that portion of the trial court’s judgment which granted a separation from bed and board in favor of plaintiff, Myrtis Harrington; we amend the trial court’s judgment against defendant, Elson Campbell, awarding alimony penden-te lite in favor of plaintiff, Myrtis Harrington, to provide for alimony pendente lite under LSA-C.C. art. 148 in the amount of $350 per month. The Costs of this appeal are assessed to defendant and plaintiff in reconvention, Elson Campbell.

REVERSED IN PART, AFFIRMED IN PART, AMENDED IN PART AND AFFIRMED AS AMENDED.

      . LSA-C.C. art. 141 states:
      “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.”

      . LSA-C.C. art. 138 provides in those parts pertinent to this case:
      “Separation from bed and board may be claimed reciprocally for the following causes:
      * * * * * *
      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;
      ♦ * # * * *
      5. Of the abandonment of the husband by his wife or the wife by her husband.”

      . The trial court made the following comment in a minute entry giving its reasons for judgment. “... The Court does not believe that a wife who is trying to make the marriage successful would tape an argument between her husband and herself.”

      . Defendant argues strenuously that the Roundtrees’ testimonies are untrustworthy because they live rent-free on plaintiffs property and because of the allegedly inconsistent statements brought out on cross-examination concerning whether or not plaintiff was a beneficiary in either of the Roundtrees’ wills. Even if we were to disregard completely the testimony of the Roundtrees, however, the testimonies of the doctors and plaintiff are highly probative. Defendant does not attempt to impeach the testimonies of the doctors.

      . In Adams, the plaintiff-wife brought an action for separation alleging abandonment without cause, and the defendant-husband reconvened on the ground of cruelty. The trial court granted the separation in favor of the plaintiff on the ground of abandonment but found further that plaintiff was “ ‘not without fault’ in the separation.” The only part of the judgment appealed was the finding that the plaintiff was not without fault.

      . The trial court allowed defendant to testify as to plaintiff’s cruel treatment to counter her allegations against him. Defendant testified that he and his wife had little time together for a ten-month period due to their different working schedules. Defendant also testified as follows:
      “Q Did your wife ever strike you, Mr. Campbell?
      A Plenty of times, yes, sir. Never could hurt me, though.” (Tr. 197)
      This testimony, even if admissible to show plaintiffs fault, does not prove cruel treatment by plaintiff of such a nature as to render the spouses’ living together insupportable.

      . Although we find that the separation should not have been granted for mutual fault under LSA-C.C. art. 141, the trial court did have authority to make an award of alimony penden-te lite under that article. See footnote 1.


text:
    Marvin CRAWFORD, et al., Plaintiffs-Appellants, v. Morris WILLIBER, et al., Defendants-Appellees.
    No. 8693.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.

      Boatner & Luke, Peter J. Lemoine, Bunk-ie, for plaintiffs-appellants.
    Nelson M. Lee & Assoc., Dan B. McKay, Jr., Carol J. Aymond, Jr., Bunkie, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

This is a suit for breach of contract. On March 16,1981, plaintiffs, Marvin Crawford and Lucille Holts Crawford, filed a petition for breach of contract against defendants, Morris Williber and his alleged surety, Countryside Casualty Company (hereafter Countryside), for damages resulting from the alleged failure of Williber to comply with certain contractual obligations to perform electrical work in plaintiffs’ home. Plaintiffs contend that Williber and Countryside are liable in solido for damages in the amount of $1,863.41. Subsequent to the filing of the present suit, Countryside filed exceptions of no cause of action, no right of action, and improper joinder of parties. The trial court overruled Countryside’s exception of no cause of action, but sustained its exceptions of no right of action and improper joinder of parties, and ordered plaintiffs’ suit against Countryside dismissed with prejudice. Plaintiffs appeal. Defendant, Countryside, did not appeal or answer the appeal.

The following facts, gleaned from the pleadings and evidence, are pertinent to a discussion of the issues presented. The Crawfords entered into a verbal contract with Morris Williber in which Williber agreed to perform electrical wiring and fixture work in plaintiffs’ home located in Bunkie, Louisiana. Pursuant to this agreement, plaintiffs’ agreed to pay Williber $10.00 per hour for his services and $5.00 per hour for the services of his employees. It was further agreed that plaintiffs’ would pay for all necessary materials purchased by Williber in connection with the aforesaid work. Williber began the electrical work on May 12, 1980. After approximately two and one-half months, the electrical work was still not completed. Thereafter Willi-ber, allegedly without cause, informed plaintiffs that neither he nor his employees would complete the electrical work. As a result of Williber’s alleged default, plaintiffs were forced to employ another electrician to complete the necessary work. Allegedly, the newly-employed electrician discovered several errors and defects in the workmanship of Williber and his associates which required the removal of all of the work previously completed by Williber. Plaintiffs further allege that at all pertinent times, Williber, a licensed electrician, was insured by a ONE THOUSAND FIVE HUNDRED AND NO/100 ($1,500.00) DOLLARS license and permit bond issued to him by defendant, Countryside. Pursuant to the aforesaid bond, Countryside, allegedly agreed to indemnify and/or compensate any party or parties who sustained damage or injury resulting from any substandard and/or defective performance of electrical work by Williber or his employees. In response to plaintiffs’ petition, Countryside filed exceptions of no cause of action, no right of action, and improper joinder of parties contending that the surety bond issued to Williber is not a performance bond, but merely a “license and permit bond” issued in favor of the Town of Bunkie pursuant to Bunkie Town Ordinance Section 5:103 which provides in pertinent part as follows:

“Every person, firm, or corporation engaging in the electrical contracting business or the business of building, constructing, assembling, installing and repairing electrically illuminated or electrically powered signs, in said Town, shall execute and deliver to the Mayor of the Town of Bunkie, a good and sufficient bond in the sum of $1,500.00 and conditioned as follows, to wit: That all work installed by said contractor shall be done in accordance with the rules and regulations set forth in this Sub-Chapter and the National Board of Fire Underwriters; shall indemnify and protect any person, firm or corporation with whom said contractor shall thereafter contract to do work for damages sustained on account of the failure of said contractor to perform the work so contracted for; .. .; and shall pay all damages for injury to or encroachment upon the property in construction improvements or doing any work within the scope of this Sub-Chapter. The Town may for itself or for the use and benefit of any person injured or damaged by reason of any breach of any of the conditions of said bond, maintain suit on said bond in any court having jurisdiction thereof, or suit may be maintained by any person injured or damaged by reason of such breach.”

Further, Countryside avers that the aforesaid bond by its clear language does not contain a stipulation pour autrui or third party beneficiary clause or agreement running in favor of plaintiffs such that plaintiffs have a right to sue thereon. As indicated, the trial court overruled Countryside’s exception of no cause of action but sustained its exceptions of no right of action and improper joinder of parties. Countryside has not appealed or answered the appeal. Therefore, the trial court’s ruling on the exception of no cause of action is not at issue. At issue is the correctness of the trial court’s ruling sustaining Countryside’s exceptions of no right of action and improper joinder of parties. For the reasons which follow, we conclude that the trial court erred.

It is well settled that the function of an exception of no right of action is to provide a threshold device for terminating a suit brought by one without legal capacity to file it or without the legal interest to assert it. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App.3rd Cir. 1967) and the authorities therein cited; Wischer v. Madison Realty Co., 231 La. 704, 92 So.2d 589 (1956); Watkins v. Louisiana High School Athletic Association, 301 So.2d 695 (La.App.3rd Cir. 1974); Terrell v. Messenger, 383 So.2d 128 (La.App.3rd Cir. 1980). There can be no question that the Crawfords have the legal capacity to file the present suit. Thus, the only issue is whether the plaintiffs have a sufficient legal interest in the subject matter of the litigation. Plaintiffs’ petition alleges that defendant, Morris Williber, breached an electrical construction contract existing between the parties and that plaintiffs, as a result of the same, have sustained damages in the sum of $1,863.41. Plaintiffs further aver that Countryside is a surety of Williber and is liable with Williber in solido for the damages sustained by them. Clearly, plaintiffs have a sufficient legal interest in the subject matter of the litigation.

Countryside, in support of its exception, argues that plaintiffs have no right of action because the bond which it issued to Williber is not a performance bond and that such bond was not issued in favor of plaintiffs, but rather, names the Town of Bunkie as obligee. In so contending, Countryside has set forth its defense to liability on the bond. As noted in Bielkiewicz, supra, a party may not use a peremptory exception of no right of action to urge a defense to plaintiffs’ suit.

In commenting upon the proper use of the exception of no right of action, the Bielkiewicz court stated:

“..., the exception of no right of action is not available to urge a defense to the effect that the plaintiff is without interest simply because the defendants have a defense to the plaintiff’s action. Wischer v. Madison Realty Co., 231 La. 704, 92 So.2d 589; Termini v. McCormick, 208 La. 221, 23 So.2d 52. For instance, in Wischer the Supreme Court reversed the lower courts and held that the defendants could not by this exception introduce a compromise and quitclaim agreement executed by the plaintiff in favor of the defendants, in order to prove that they lacked interest or right to file the suit in question.”

We conclude that the trial court’s action in sustaining Countryside’s exception of no right of action was clearly erroneous.

We likewise determine that the trial court erred in sustaining the exception of improper joinder of parties. Like the exception of no right of action, the exception of improper joinder of parties or misjoinder of parties is not available to urge a defense to the effect that one joined as a defendant is improperly joined or misjoined because that party has a defense to the plaintiffs’ action.

In Watson v. Bethany, 209 La. 989, 26 So.2d 12 (1946), our Supreme Court in quoting from Reardon v. Dickinson, 156 La. 556, 100 So. 715, 716 (1924), stated:4

“ * * The test to be applied in considering a plea of misjoinder is whether the parties, plaintiffs, or defendants, have a common interest in the subject matter of the suit.
This test has been approved in several subsequent decisions including State ex rel. Elston v. Parish Democratic Executive Committee, 173 La. 844, 138 So. 857, and Lykes Brothers Ripley S. S. Co., Inc. v. Wiegand Marionneaux Lumber Co., Inc., et al., 185 La. 1085, 171 So. 453, 458.’”

Plaintiffs’ petition reflects that Countryside issued a bond to Williber allegedly indemnifying and/or compensating any party or parties who sustain damage or injury as a result of any substandard and/or defective performance of electrical work done by Wil-liber or his employees. Depending upon the district court’s ultimate characterization of the aforesaid bond, Countryside could be held liable in solido with Williber if the trial court concludes that Williber is guilty of breach of contract. Under the facts of the present case, the parties joined as defendants in the instant matter clearly have a common interest in the outcome of the present litigation, thus, the test for proper joinder of parties as enunciated in Watson is satisfied. Consequently, we conclude that the trial court’s finding to the contrary was erroneous.

For the above and foregoing reasons, the judgment of the trial court sustaining the exceptions of no right of action and improper joinder of parties filed by defendant, Countryside Casualty Company, is reversed and set aside and this matter is remanded to the trial court for further proceedings. All costs of this appeal are to be borne by appellee, Countryside Casualty Company. The assessment of all other costs will await the final disposition of this matter.

REVERSED AND REMANDED.


author: CULPEPPER, Judge.

text:
    Murphy EDMOND, Plaintiff & Appellant, v. Fred C. WEBRE, Defendant & Appellee.
    No. 8706.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    W. Glenn Soileau, Breaux Bridge, for plaintiff-appellant.
    Mouton, Roy, Carmouche, Bivins & Kraft, Ronald J. Judice, Lafayette, for defendant-appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

A lessee sues his lessor for damages for breach of an agricultural lease by allowing a third party to destroy plaintiff’s second and third year sugar cane stubble. Suit was filed in St. Martin Parish, in which the lease premises are located. Defendant-ap-pellee filed an exception of improper venue on the grounds that this is solely an action for breach of contract and the only proper venue is defendant’s domicile, the Parish of Lafayette. The trial judge sustained the exception. Plaintiff appealed. We reverse.

FACTS

Plaintiff’s petition was filed in the district court for the Parish of St. Martin. The substance of the allegations is that in March of 1979 he orally leased from the defendant a 14.5-acre tract of land in St. Martin Parish for the planting of sugar cane, said lease to be for a term of three years, since sugar cane is a three year crop, but that defendant Webre allowed another farmer to go on the land in March of 1980 and advised him that he could plow the tract in question. The petition further alleges that, as a result, plaintiff’s sugar cane stubble was destroyed for the second and third years’ harvest, causing him pecuniary losses due to damages to his crops and losses on sales of equipment, as well as mental pain and anguish. He seeks judgment for a total of $31,095.

Defendant responded with an exception of improper venue, claiming that he is domiciled in Lafayette Parish and that inasmuch as plaintiff’s action was for breach of contract, the suit must be brought in the parish of defendant’s domicile under LSA-C.C.P. Article 42.

After a hearing on the exception, the trial court ordered the suit transferred to the district court for Lafayette Parish. Plaintiff’s appeal raises the single issue of whether or not the plaintiff’s petition alleges damages sustained in St. Martin Parish are of such a nature that suit could properly be brought there, pursuant to LSA-C.C.P. Article 74.

Plaintiff contends that since the petition alleges that he sustained losses as a result of his sugar cane crops being plowed under and destroyed, the wrongful conduct occurred in St. Martin Parish, and the action was properly brought there under Article 74. We agree.

The rules of venue pertinent to the instant case are found in LSA-C.C.P. Articles 42 and 74. Article 42 provides that:

“The general rules of venue are that an action against:
(1) An individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence; . ... ”

Article 74 reads as follows:

“An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongful conduct occurred or may occur.
As used herein, the words “offense or quasi offense” include a nuisance and a violation of Article 667 of the Civil Code. As amended Acts 1962, No. 92, § 1.”

In connection with the venue rules, the Louisiana Supreme Court in Hawthorne Oil & Gas Corporation v. Continental Oil Company, 377 So.2d 285 (La.1979), has stated:

“The general rules of venue provided in art. 42 are subject to exceptions provided in arts. 71 through 83 and otherwise provided by law. Id. art. 43. However, since the exceptions are in derogation of a common right, this court has consistently held that they must be strictly construed and that the party claiming the benefit of an exception must bring itself clearly within the exception. Glover v. Mayer, 209 La. 599, 25 So.2d 242 (1946); Fourth Jefferson Drainage Dist. v. New Orleans, 203 La. 670, 14 So.2d 482 (1943); Tripani v. Meraux, 184 La. 66, 165 So. 453 (1936); King v. Wm. J. Burns Int’l Detective Agency, Inc., 151 La. 211, 91 So. 681 (1922); Smythe v. Home Life & Acc. Ins. Co., 134 La. 368, 64 So. 142 (1914).
* * * * $ *
Therefore, unless plaintiffs show that their action comes clearly within one or more of the exceptions provided in La. Code Civ.P. arts. 71 through 83, or otherwise provided by law, the exception of improper venue must be maintained.”

Another general rule of venue is that when a conflict exists between the provisions of LSA-C.C.P. Articles 42 and 74, the plaintiff may elect to bring his action in any venue provided by any applicable venue provision. LSA-C.C.P. Article 45, Section (3). See also Greene v. Engolio, 251 So.2d 831 (La.App. 1st Cir. 1972); Albritton v. McDonald, 363 So.2d 925 (La.App. 2d Cir. 1978), writ denied 366 So.2d 561 (1979).

Thus, if plaintiff Edmond’s petition clearly states a cause of action in tort—i.e., damages resulting from an offense or quasi offense—his election to bring suit against the defendant in St. Martin Parish was proper under the provisions of Article 45(3) and Article 74.

CAUSE OF ACTION IN TORT

Defendant-appellee argues that the allegations of plaintiff’s petition show only an action for breach of a lease contract between the plaintiff and the defendant, to enforce a personal right against the defendant for the breach and damages alleged to have resulted therefrom, and contains no allegations showing any tortious conduct by the defendant, either intentional or unintentional.

He relies on C & M Properties, Inc. v. Wascom, 361 So.2d 1266 (La.App. 1st Cir. 1978), in support of his contention that the petition shows only that the defendant breached his contractual obligation to recognize the plaintiff’s right to continued possession, and thus states only a cause of action for breach of contract. That case, however, involved a suit by a lessor against his lessees solely for various specific breaches of the lease contract, most particularly the failure to pay specified rentals. The court recognized that delictual damages may result from breach of a contract, but held that the plaintiff’s petition failed to state a cause of action for an offense or quasi offense required under LSA-C.C.P. Article 74.

The instant case, however, presents a different situation, being a suit by a lessee against his lessor for alleged violation of a lessor’s obligation to allow his lessee to continue in peaceful possession. Certainly this is a suit arising from a breach of a contract. However, the jurisprudence is settled that violation of a contract can cause damages ex delicto as well as contractual, and under certain conditions the action may be in tort, or in both contract and tort. Waller & Edmonds v. Cockfield, 111 La. 595, 35 So. 778 (1904); Chronister v. Creole Corporation, 147 So.2d 218 (La.App. 4th Cir. 1962); Clement v. Redi-Bilt Corporation, 249 So.2d 607 (La.App. 4th Cir. 1971).

Thus, the critical question is whether or not the factual allegations here showing breach of contract also give rise to a tort action. As pointed out by the Second Circuit in Hennessy v. South Central Bell Telephone Company, 382 So.2d 1044 (La. App. 2d Cir. 1980), the determination of when a breach of contract gives rise to a tort action for venue purposes should be made on a case by case basis.

The factual allegations of plaintiff’s petition show that the wrong alleged here is defendant’s failure to recognize plaintiff’s right to continued possession of the property. However, this in effect amounts to a claim of wrongful eviction which resulted in damage to plaintiff’s property, inasmuch as the defendant allegedly authorized another to take possession of the premises and destroy the plaintiff’s crop. The Louisiana Supreme Court stated in Waller & Edmond v. Cockfield, supra:

“There is an obligation in every contract of lease to deliver the property to the lessor at the expiration of the lease, but it is an infringement upon personal rights, protected by law, to require a tenant to vacate before expiration.
* * * * * *
“Manifestly, plaintiffs sustained a loss. Defendant is liable for an illegal act; in other words, a tort or wrong, which is the proximate cause of the loss.
* * * * * *
“The liability is partly contractual and partly ex delicto.”

In Chronister v. Creole Corporation, supra, the same argument regarding venue was presented. In that case, the plaintiff-lessee sued his lessor for return of his deposit and for damages due to loss of profit, alleging that the lessor had unlawfully taken possession of the leased premises and placed another tenant therein before expiration of the lease term. The Fourth Circuit held that the trial court properly overruled defendant’s exception to Article 74 venue. The court reasoned that, in addition to demanding return of his deposit, the plaintiff had alleged wrongful eviction from the property on which he had a right to be, and prayed for damages resulting therefrom. Thus, the action was ex delicto, as well as contractual, and properly brought in the parish where the wrongful conduct occurred, as provided by LSA-C.C.P. Article 74.

We find that the facts alleged in the plaintiffs petition state a claim for wrongful eviction against the defendant for allowing another to go on the property and authorizing him to plow the plaintiff’s crop under. Therefore, based upon the above jurisprudence, the plaintiff’s petition states a cause of action for damages for a quasi offense, which brings his action within the Article 74 venue provisions. The wrongful act occurred in St. Martin Parish. Therefore, suit may properly be brought in that parish.

It is irrelevant that the plaintiff made no allegation of either intention or unintentional negligence on the part of the defendant. Fact pleading alone is sufficient. Plaintiff is not required to plead a theory of recovery. See Albritton v. McDonald, supra; Royal Furniture Company of Baton Rouge v. Benton, 260 La. 527, 256 So.2d 614 (1972). Furthermore, it has been held that:

“where a plaintiff has the right to institute an action on two or more claims arising out of one factual circumstance and that where venue is proper as to one claim, the disposition of which would affect the second claim as to which, if standing alone, venue might not be proper, the court has the venue of the action to decide both claims in the interest of efficient judicial administration, and the court therefore should overrule an exception to the venue.” Albritton v. McDonald, supra.

See also Smith v. Baton Rouge Bank & Trust Company, 286 So.2d 394 (La.App. 4th Cir. 1973); Klumpp v. Colonial Pipeline Company, 389 So.2d 457 (La.App. 3rd Cir. 1980), certiorari denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299.

For these reasons, we find that the defendant’s exception of improper venue was improperly sustained by the trial court.

For the reasons assigned, the judgment of the trial court is hereby reversed and set aside. This case is remanded to the Sixteenth Judicial District Court for the Parish of St. Martin for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant-appellee.

REVERSED AND REMANDED.