author: STOKER, Judge.

text:
    Lumey THOMAS et ux., Plaintiffs-Appellants, v. STATE of Louisiana et al., Defendants-Appellees.
    No. 7523.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Andrew S. Vallien, Natchitoches, for plaintiffs-appellants.
    Mayer, Smith & Roberts, Caldwell Roberts, William M. Cady, III, Shreveport, for defendants-appellees.
    Before SWIFT, STOKER, and LA-BORDE, JJ.
   STOKER, Judge.

Plaintiffs, Lumey Thomas and Mary C. Thomas, appeal from a judgment dismissing their tort action against defendants with prejudice for failure to appear at trial, pursuant to LSA-C.C.P. art. 1672. Plaintiffs contend that the trial judge erred in dismissing the action with prejudice.

LSA-C.C.P. art. 1672 provides:

A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.

It is clear from the record that neither plaintiffs nor counsel representing them appeared on the date set for trial. Under the mandatory provisions of LSA-C.C.P. art. 1672, the trial court properly dismissed the plaintiffs’ action. However, LSA-C.C.P. art. 1672 grants the trial judge discretion to dismiss the action with or without prejudice.

Plaintiffs’ first contention is that the trial judge abused his discretion in dismissing the suit with prejudice because plaintiffs did not receive notice of the trial date.. This contention is contrary to the record because the sheriff’s return entered into the record clearly reveals that plaintiffs received personal service of notice on the trial date.

Secondly, plaintiffs contend that because of the particular facts of the case, the trial judge abused his discretion in dismissing the case with prejudice.

The record reveals that plaintiffs filed suit on January 6, 1977. Lumey Thomas appeared individually and on behalf of his minor son to recover damages for personal injury sustained on January 13,1976, by his minor child, Brent Chadwick Thomas, as a result of the alleged negligence of defendants. Mary C. Thomas sought damages on her own behalf as mother of the minor. Trial was set for June 20, 1978. On the date of the trial, plaintiffs failed to appear, and the trial was continued on the court’s own motion to April 17, 1979. On April 10, 1979, plaintiffs’ counsel, Michael Bonnette, withdrew as counsel of record and moved for a continuance of the trial. The trial date was continued to July 10, 1979.

On April 19, 1979, a formal notice, in letter form, was prepared by the Clerk of Court of Natchitoches Parish, through a deputy clerk, addressed to Mr. and Mrs. Lumey Thomas, 1441 Texas Street, Natchi-toches', Louisiana, which gave plaintiffs notice of the fixing of the trial for July 10,11, and 12,1979, at 10:00 A.M. in the courtroom of the Natchitoches Parish Court House in Natchitoches, Louisiana. The letter was served on plaintiffs through the Sheriff of Natchitoches Parish on that same date (April 19, 1979). The sheriff’s return in the record shows personal service on Lumey Thomas. Although plaintiffs were without counsel at this point, they had notice of the trial date.

On July 10, 1979, plaintiffs failed to appear before the court despite the notice personally served on them by a Deputy Sheriff of Natchitoches Parish. Defendants appeared before the court, announcing that they were ready to proceed to trial. The trial judge dismissed plaintiffs’ suit with prejudice.

In Martin v. The South Coast Corporation, et al., 356 So.2d 500 (La.App. 1st Cir., 1977), the court stated:

La.C.C.P. Article 1672 allows a trial judge discretion to dismiss an action with or without prejudice analogous to the discretion permitted in acting upon a motion for continuance. In both instances, the trial judge’s knowledge of “the condition of his docket fairness not only to both parties but also to other litigants in his court, and the need for an orderly and prompt administration of justice” provides him with superior ability to determine the terms of the dismissal. Malter v. McKinney, 310 So.2d 696, 698 (La.App. 1st Cir., 1975).

In the present case, the trial date had been continued twice prior to plaintiffs’ failure to appear at trial on July 10, 1979. The trial judge’s knowledge of the condition of his docket, considered against the need for an orderly and prompt administration of justice, placed him in a unique position to determine whether the dismissal should be with or without prejudice. An examination of the record does not reveal that the trial judge abused his discretion in dismissing plaintiffs’ suit with prejudice.

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

AFFIRMED.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Bill BURNS, Plaintiff-Appellant, v. TOWN OF LEESVILLE et al., Defendants-Appellees.
    No. 7539.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Gravel, Roy & Burns, Dee D. Drell, Alexandria, for plaintiff-appellant.
    Hall, Lestage & Lestage, F. Steve Lan-dreneau, DeRidder, Jack L. Simms, Lees-ville, for defendants-appellees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   SWIFT, Judge.

Plaintiff, Bill Burns, instituted this tort action to recover damages for personal injuries sustained when he fell from a bunk bed while incarcerated in the Leesville City Jail. The defendants are the Town of Leesville, its insurer, Hartford Accident and Indemnity Insurance Company, Bill Hillmon, Lees-ville’s Chief of Police and the Village of New Llano. Without assigning written reasons, the trial judge rejected plaintiff’s demands. From the adverse judgment, plaintiff has taken this appeal.

The facts are that on December 16, 1974, plaintiff, the owner of Hunt’s Lounge in New Llano, spent the afternoon sampling the wares of his business. Later that evening officers of the New Llano police department, Robert Smart and T. C. Frusha, entered plaintiff’s business establishment and placed him under arrest on a charge of drunkenness. The* Village of New Llano having no jail facilities, plaintiff was transported to the Leesville City Jail where he was booked on the charge of disturbing the peace by being drunk. The plaintiff was taken then to a cell and assigned the upper bed of a double decker bunk. Although plaintiff could not remember who helped him into his bunk, he testified that prior to being locked up the New Llano police had put him in the custody of Leesville police authorities.

The exact time is not clear from the record. However, several hours after being incarcerated the plaintiff attempted to leave the top bunk. He said that, “I started to jump off or rolled off or something” and fell across the bottom bunk, striking his back on its metal railing and landing on the floor. According to plaintiff, after his fall he was unable to move because of injuries caused by hitting the metal railing. Plaintiff alleged that he requested medical attention several times but the jail officials or policemen ignored his requests.

Mr. Burns was released from custody the morning following his arrest. He then sought medical treatment for his back. His injuries were diagnosed as a contusion and abrasion of the back with an acute lumbar sprain. Plaintiff was confined to the hospital for several days thereafter.

At the trial Burns testified that the injuries caused him to suffer pain in his back for approximately three months after the accident. Plaintiff stated that his back gradually became better, but never completely healed.

Plaintiff contends that Bill Hillmon, the Leesville Chief of Police, the Village of New Llano and the Town of Leesville (with its insurer) are liable for the injuries suffered by him when he fell from the bunk bed.

DUTY OF CARE TO INTOXICATED PRISONER:

In Barlow v. City of New Orleans, 257 La. 91, 241 So.2d 501, 504, 505 (1970), the court stated:

“[3] The duty of care owed one under arrest and in custody to keep him safe and protect him within reasonable limits from injury not attributable to his own willful act has been recognized by all courts.”

The court went on to state:

“While it is true, as a general rule, that voluntary intoxication does not relieve one from negligent conduct or serve to relax the requirement which is imposed upon a person to exercise due care for his own safety (see 38 Am.Jur., Negligence, Sec. 203, page 883, and 65A C.J.S. Negligence § 143, page 174), this rule is subject to the exception that, where the person is in such a helpless state of intoxication that he is unable to take care of himself and is, as in this case, confined under arrest, recovery for the injuries he has received emanating from a danger to which he is exposed, which is attributable partially to his unconscious act, but against which the defendant should have protected him, is not barred by contributory negligence.”

In the present case, it is clear from the record that plaintiff’s injuries were a result of his own negligence in attempting to get down from the bed in an unsafe manner. Although he was intoxicated, this did not relieve the plaintiff from exercising due care for his own safety. Furthermore, an examination of the record reveals that plaintiff was not in such a helpless state of intoxication that any of the defendants or their representatives were negligent in placing plaintiff on the upper bunk. He testified that when told he was under arrest at his lounge he said “Okay and I went and opened the back door and got in the car.” Apparently, no assistance from the officers was necessary. Further, plaintiff said that when he fell from the bed, he “wasn’t all that intoxicated”, but “Was about half sober . . ..” Burns also stated that, pri- or to falling, he understood that he would have to jump or let himself down from the bed. In light of these facts, we are convinced that the police officers committed no act of negligence in assigning or placing plaintiff in an upper bunk. On the contrary, the sole cause of the accident was the negligence of plaintiff.

Plaintiff also contends that defendants were negligent in failing to obtain medical treatment for him after he fell from the bunk. Although Burns and two other inmates said that he requested medical help more than once, the jailers on duty that night testified that plaintiff never requested medical attention. The late James C. Terrell, Jr., Trial Judge, in finding for defendants, apparently accepted the jailers’ testimony as being correct. Our examination of the record does not reveal this finding to be clearly wrong. Therefore, we must conclude that defendants were not negligent in failing to provide medical treatment for plaintiff. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the above and foregoing reasons, the judgment of the trial court rejecting plaintiff’s demands is affirmed. All court costs are assessed to plaintiff-appellant.

AFFIRMED.

      . He testified, however, that his name was Bill Burns, Jr.

      . The Travelers Insurance Company was dismissed from the suit on a motion for summary judgment that was unopposed.


text:
    Larry E. SIKES and Frances W. Sikes, Plaintiffs-Appellees, v. McLEAN TRUCKING COMPANY and Freddie Hongo, Defendants-Appellants.
    No. 7541.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendants-appellants.
    Antoon, Dalrymple & Beck, Robert L. Beck, Jr., Alexandria, for plaintiffs-appel-lees.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

On May 28, 1978, a tractor trailer rig owned by defendant, McLean Trucking, and driven by Freddie Hongo lost its braking power as it came down the Fulton Street bridge, into Alexandria. It struck, from behind, a vehicle owned by plaintiff Larry Sikes, and driven by his wife, plaintiff Frances Sikes, while she was parked at a red light. The judge directed a verdict for plaintiffs, and the jury determined damages. Defendant appeals, claiming errors of the trial court sufficient to justify a reversal.

Defendants-appellants, McLean Trucking Company, et al., made four assignments of error.

ASSIGNMENT OF ERRORS

1.

The trial judge abused his discretion in allowing the appellees to amend their petition after trial had begun and in not thereafter granting a continuance to appellants.

2.

The trial judge erred in not allowing the appellants to present any evidence concerning the condition of the brakes of the Hongo vehicle and in granting a directed verdict against Freddie Hongo.

3.

The trial judge erred in allowing the appellees to present evidence of prior D.W.I. convictions of the appellant driver.

4.

The jury’s award to the appellees was excessive and amounted to an abuse of its discretion.

We will now consider each of appellants’ specifications of error.

ALLOWING AMENDMENT OF PETITION

Did the trial judge abuse his discretion in allowing the appellees to amend their petition after the trial had begun and in not thereafter granting a continuance of more than twenty-four hours to appellants ?

Paragraph 10 of the appellees’ original petition described Mrs. Sikes’ injuries as “severe and painful injuries, including but not limited to, an acute cervical and lumbar strain.”

After a jury had been impaneled and the trial had begun, plaintiffs’ counsel began eliciting testimony concerning headaches. Mrs. Sikes had allegedly developed these headaches as a result of the accident. Defendants objected on the ground that plaintiffs should be limited to proving evidence only of injuries set forth in the pleadings. The defendant felt plaintiff should be allowed to show evidence only of cervical and lumbar strain, the injuries named in the petition.

The trial judge responded to defendants’ objection by allowing plaintiffs to amend their petition in order to set forth “exactly what he’s talking about”. The amended petition described plaintiff, Frances Sikes’, injuries as an “acute cervical and lumbar strain, occipital neuralgia, headaches, pain in the suboccipital region of the skull, pain in the fronto-temporal region of the skull, psychological and emotional distress, upset, and anguish; anxiety and depressive reaction.”

Under Louisiana jurisprudence and LSA-C.C.P. art. 1151 when there is no written consent by the adverse party, it is within the sound discretion of the trial court to accept or refuse an amendment to the petition after answer has been filed. The trial judge has much discretion in allowing amendments after an answer is filed, and his ruling will not be disturbed unless there has been an abuse of discretion.

Abuse of discretion by the trial judge does not become an issue here, however, because the defendant suffered no prejudice by the amending of the petition. The defendants admitted to the court that they were not surprised by plaintiffs’ attempted proof of headaches, admitted that they had received from plaintiffs’ counsel all narrative medical reports regarding plaintiff’s condition, and that they had attended all depositions prior to trial in which Frances Sikes’ headaches were discussed in great detail. The defendants had thoroughly questioned Mrs. Sikes in discovery deposition concerning her headache problem and had subpoenaed records from the Rapides General Hospital in an apparent effort to prove that all of plaintiffs’ problems that produced headaches, pre-existed the accident of May 23, 1978.

The injuries which plaintiff initially alleged, were- “severe and painful personal injuries, including, but not limited to, an acute cervical and lumbar strain.” Because it is worded in this “open-ended” manner, this allegation is broad enough to include the injuries plaintiffs listed in their amended petition.

The trial court judge properly pointed out that the exception of vagueness had been available to defendants if they had wished to be better apprised of Frances Sikes’ injuries. Instead, the defendants chose to let the matter lie, taking their chances at being sustained in objecting to the evidence at trial. Defendants were sufficiently apprised of Frances Sikes’ injuries that we see no merit in the objection of defendants, because we see no change that defendants might have made in preparing for trial, even if the original petition had been as specific as defendants demanded.

The judge granted a one day continuance in this case, so plaintiffs could amend their petition to detail more specifically the injuries Mrs. Sikes received. Defendants complain that because the court allowed the amendment, they should receive a continuance of more than one day. We do not reach this question in the present case, however, because we find that defendant suffered no prejudice by the amending of the petition.

INADMISSABILITY OF CONDITION OF BRAKES

Did the trial judge err in not allowing the appellants to present any evidence concerning the condition of the brakes of the Hon-go vehicle and in granting a directed ver-diet against Freddie Hongo ?

There is no question that the brakes on the McLean truck were defective and that this defect was the cause of the collision in this case. During the trial, plaintiffs cross-examined Mr. C. C. Nash, a mechanic for McLean, concerning the brakes on the Hon-go tractor. Defendant Hongo complains that the trial court was in error in not allowing him to call Nash on direct examination for further questioning in the very same area.

Defendants had shown that Hongo was a local driver for McLean trucking. Hongo took tractor-trailor rigs as they arrived from other areas and drove them from the McLean’s truck yard to their final local destination. Counsel for defendant points this out to show that Hongo did not know of the brake defect. It was to further amplify this point that counsel wished to call Nash to the stand. Hongo contends that he was not custodian of the truck because of the short time he had been driving it. He also contends that because he had no knowledge of the defect, he was not negligent and not liable to the plaintiffs.

Under LSA-C.C. art. 2317 when harm results from a defect of a thing which creates an unreasonable risk of harm to others, the person in whose custody the thing is when the harm results, is liable for damage thus caused. Loescher v. Parr, 324 So.2d 441 (La.1975). To recover in such a situation the plaintiff must prove the vice (i. e. unreasonable risk of injury to another) in the thing which causes the damage, and that the damage resulted from the vice. Once this is proved, the owner or guardian responsible for the thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher v. Parr, supra.

Under Loescher and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) Hongo is clearly liable regardless of whether he knew of the defective brakes. In Loescher, the defendant-owner of a tree was liable for damages it caused when it fell, even though he could not have reasonably realized the defective condition of the tree. Arceneaux ends any doubt that our Supreme Court intends that the driver be liable in a latent brake failure case, regardless of his knowledge of the defect. The Supreme Court in that case writes, “Defendants [including the driver who had merely borrowed the car] were the custodians of the automobile, and were therefore responsible for the damages it caused.” Thus, under Louisiana concepts of fault, as expressed by the Supreme Court in Loescher and Arceneaux, defendant is strictly liable in this case, and further proof of the driver-defendant’s lack of negligence or knowledge of the brake defect is totally irrelevant. The district court in the present case did not commit error in refusing to allow such proof.

EVIDENCE OF PRIOR DWI CONVICTIONS

Did the trial judge -err in allowing the appellees to present evidence of prior DWI convictions of the appellant driver ?

Defendant Hongo was asked by plaintiffs’ counsel during the course of the trial, whether he had ever been convicted of a crime. The question was then asked whether he had ever been convicted of driving while intoxicated. Appellants strenuously objected on the grounds that this evidence was irrelevant and highly prejudicial. Plaintiffs-appellees argue that the law is well-established in Louisiana that a defendant, as any other witness, can, for impeachment purposes, be questioned as to any prior convictions.

The court agrees with the argument of the plaintiffs. Under LSA-R.S. 15:495, a cross-examiner in any criminal trial may question a witness about prior convictions in order to impeach his credibility. In civil cases no such statute governs impeachment of a witness by use of prior convictions. There is some question as to whether this method of impeachment should apply in civil cases. We conclude that the weight of this state’s jurisprudence, with some exceptions, indicates that it should apply. The judge in the present case was not in error, therefore, in allowing evidence of past convictions of driving while intoxicated to be used for impeachment purposes.

DAMAGES AWARDED

General Damages.

Was the jury’s award to the appellees excessive and an abuse of its discretion ?

Defendant contends that the $20,000 awarded by the jury in general damages was excessive.

Before the Court of Appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We feel that the jury’s award of $20,000 for. past, present, and future pain and suffering, both mental and physical, was justified by the evidence.

Defendants base their argument for reduction of this award on the fact that Mrs. Sikes had been suffering from severe headaches prior to the May, 1978, accident. Plaintiffs Called four doctors, all of whom testified that Mrs. Sikes told them she had headaches prior to the accident. They added that she described a different variety of headaches “ subsequent to the accident— headaches of increased intensity and severity, which the doctors felt were secondary to her automobile accident!

It appears that Mrs. Sikes’ prior headaches began when her husband had an automobile accident in which she was severely injured. Mr. and Mrs. Sikes were just overcoming the problems created by that accident when the latest accident .occurred.

There is sufficient evidence from the testimony of the four doctors, together with that of Mrs. Sikes and her husband, to find her headaches were the result of her automobile accident on May 28, 1978. In' the absence of manifest error, therefore, the judgment of the trial court shall stand. Arceneaux v. Domingue, supra.

Future Medical Expenses.

Is the jury’s award in the amount of $5,000 for future expenses unsupported by the evidence so that it should be reduced ?

Plaintiffs contend that the award of $5,000 for future medical expenses was well within the ambit of sound discretion for the jury. Defendants contend that plaintiffs bear the burden of establishing each and every element of damages with some degree of certainty. They cite Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970):

. awards will not be made for future medical expenses which may or may not occur in the absence pf medical testimony that they are indicated and setting out their probable cost.

Plaintiff Mrs. Sikes points out that her past medical expenses, as of the day of trial, were $1,839.66, including the cost of her seven day stay in the hospital. Her medical and drug expenses for fourteen months to-talled $1,100, excluding the bill for the seven days’ hospitalization. There was testimony by one of the doctors that the headaches could continue for life. He also recommended some forms of treatment that might aid Mrs. Sikes in the event the headaches should continue.

Plaintiff argues that the evidence of past expense and testimony that future care may be necessary furnish enough information for the jury to support its arrival at $5,000 as the proper award for future medical expenses. Defendants feel more specific evidence is needed for any such award.

Defendants’ argument is correct. Future medical expenses, like any other element of damages, must be established with some degree of certainty. Wilson v. MaGee, 359 So.2d 315 (La.App. 4th Cir. 1978). Absent evidence as to future medical expenses, no award can be made. Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978). An award for plaintiffs’ future medical expenses cannot be based on mere speculation of the jury. Much stronger proof, such as medical testimony of the specific expenses to arise, should be- required for such an award. In the present case there is no significant evidence to indicate that any substantial future medical expense will be incurred.

Therefore, so much of the judgment of the trial court as awards $5,000 for future medical expenses is reversed. In all other respects, the judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

      . Brooks v. Fondren, 199 So.2d 588 (La.App. 3rd Cir., 1967); Joseph A. Oster and Associates, Inc. v. Car Wash Center and Owl, Inc., 330 So.2d 688 (La.App. 4th Cir., 1976).

      . LSA-C.C.P. art. 1151 provides in pertinent part:
      A plaintiff may amend his petition without leave of court at any time before the answer thereto is served ... A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party. (Emphasis supplied.)

      . LSA-C.C. art. 2317 provides as follows:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . Buras v. Peck, 83 So.2d 783 (La.App. Orleans 1955); Cambrice v. Fern Supply Co., Inc., 285 So.2d 863 (La.App. 4th Cir., 1973).

      . Fusilier v. Employers Insurance of Wausau, 235 So.2d 618 (La.App. 3rd Cir., 1970); Middleton v. Consolidated Underwriters, 185 So.2d 307 (La.App. 1st Cir., 1966); Ashley v. Nissan Motor Corp. in U. S. A., 321 So.2d 868 (La.App. 1st Cir., 1975). See also The Work of the Louisiana Appellate Courts for the 1965 & 66 Term-Evidence, 27 La.L.Rev., pp. 552-556 and Pugh, Louisiana Evidence Law, pp. 115-117.


author: LABORDE, Judge.

text:
    Jessie JOHNSON et al., Plaintiff-Appellee, v. Marvin Douglas FRANKS et al., Defendant-Appellant.
    No. 7542.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendant-appellant.
    Payton R. Covington, Lake Charles, for plaintiff-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal arises out of a wrongful death action. Defendant-appellant, United States Fidelity and Guaranty Company, seeks a reduction in the amount of damages as set by the trial court. We affirm the decision of the trial court.

Three separate lawsuits were filed as the result of a collision at the intersection of Enterprise Boulevard and Twelfth Street in Lake Charles, Louisiana, on January 12, 1978. The accident involved a 1977 Mercury automobile which was driven by Susie Marie Franks and a 1977 Pontiac station wagon which was driven by Evelyn Lyons and insured by defendant, United States Fidelity & Guaranty Company. Several ladies, Jessie Johnson, Myrtle Short, Allie Granger, and Rena Menard, were riding as guest passengers in the Pontiac station wagon at the time of the accident.

The three lawsuits were consolidated for trial. A judgment was rendered in favor of William Luther Johnson, individually, in the amount of $20,000 for wrongful death of his mother, Myrtle Short, and in favor of William Luther Johnson, as administrator of the estate of his deceased mother, in the amount of $45,000 for Mrs. Short’s pain and suffering prior to death. It is unnecessary to discuss the other judgments rendered in connection with the other claims as there has been no appeal from those judgments by any party.

As stated, this appeal is solely limited to the issue of quantum, the defendant arguing that the awards of $20,000 and $45,000, for wrongful death and survivor’s action respectively, are unreasonable.

Civil Code Article 1934 provides that, in the assessment of general damages, “much discretion must be left to the judge or jury

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the Supreme Court stated:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.”

This standard of review was also discussed in Reck v. Stevens, 373 So.2d 498 (La.1979), where the Supreme Court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. Art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977), Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).
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.”

The defendant admits that it is a difficult task to prove that a 59-year-old man did not love his deceased mother or did not suffer a genuine feeling of loss at her death. Regarding this loss of love and affection the distinguished trial judge observed:

“William Luther Johnson, presently 59, was Mrs. Short’s only child. When he was two years old his father abandoned him and his mother. He has never seen his father since. He went to live with a maternal aunt and uncle because of his mother’s financial condition. He lived there with the aunt and uncle whose name, Johnson, he later took out in appreciation to them, through his grammar and high school days. This was at a town near Shreveport. His mother lived in Shreveport and it was his testimony that throughout his youth he visited with her on almost a weekly basis and that they were close. She had a series of unsuccessful marriages following the abandonment by his father but was unmarried for the 20 years preeeeding her death. After college he moved to Houston, Texas, and his mother to Waco, and the visits became more frequent. After she moved to Lake Charles some 15 years ago, the visits became less frequent but correspondence and phone calls continued. She came to Dallas once a year and sometimes twice a year for extended visits in his home at his expense. The last visit was a 10 day trip in the June preeeeding her death. Prom time to time he sent her small amounts of money. Letters written by her and retained by the Johnsons over the years which were filed in evidence reflect her closeness to her son and his family.
Mrs. William Johnson,' plaintiff’s wife of 33 years, testified without apparent exaggeration to the good relationship that existed between her husband and his mother. She told of the visits, the letters, the modest but meaningful support.
Johnson had not yet visited his mother in the hospital following the accident before her death. He was in constant contact with the hospital, however, and appeared not to have been aware, any more so than was her attending physician, of the terminal nature of her condition.
The court got the feeling that his was a relationship which despite an unnatural beginning and economic and distance problems, remained strong and close through the years.
Even so, this is not the closest of mother-son relationships. Were it so, the court would consider an award of $30,000 or more. McKenzie v. Nationwide Mutual Insurance, 363 So.2d 1340 (La.App. 3rd Cir. 1978). As it is, the court will award for loss of love and affection the sum of $20,000.

We agree with the trial judge. The record amply supports the award of $20,000 for loss of love and affection.

Regarding the survival action, we again quote freely from the trial judge’s well written opinion:

“The next issue is the amount to which her estate is entitled for her conscious pain and suffering. She died at 7:00 P.M. January 18, six and a half days after the accident. She had numerous injuries, external and internal. Besides the left per-irenal and retroperitoneal hemorrhaging which was the actual cause of death, she suffered diffuse trauma to chest, back and abdomen, with multiple areas of eechymoses over the right cheek, anterior chest, posterior chest and abdomen, as reported by the autopsy. She had a fractured left clavicle according to Dr. David Drez, an orthopedist. The attending physician, Dr. Charles Anderson, said that although she appeared to be improving she suffered ‘significant’ pain throughout that time. The hospital record reflects continued pain and vomiting. With respect to the severity and the unrelenting nature of her pain and suffering, the court was impressed by the testimony of two lay witnesses who visited her in the hospital on a daily basis. These two ladies, Mrs. Letha Montgomery and Mrs. Gladys Anning, were there to visit their mother, Jessie Johnson, who was Mrs. Short’s roommate and another victim of this accident. They knew Mrs. Short and spent some time with her on all of these visits. Mrs. Anning is herself a registered nurse of considerable reputation in the Lake Charles area. Both of these individuals testified that Mrs. Short was in constant pain, nauseated and vomiting. Mrs. Montgomery assisted her with the use of the bedpan and on one occasion near the end noted that it was half full of blood. On the last day Mrs. Anning said that Mrs. Short was moaning and groaning and that her body was swollen and she was unrecognizable. The testimony of these two lay witnesses taken together with the supportive medical data, causes the court to believe that Mrs. Short suffered intensely throughout the six and a half days until her death. She was conscious throughout this time. An'award of $45,000 will be made.”

From our reading of the record, clearly the judge did not abuse his great discretion in determining the value of the pain and suffering to be $45,000. The record supports this award. See Davis v. Owens, 368 So.2d 1052 (La.1979).

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are taxed to the defendant-appellant.

AFFIRMED.


text:
    Aford BRASSETTE, Plaintiff-Appellant, v. CENTRAL LOUISIANA ELECTRIC CO., INC., Defendant-Appellee.
    No. 7545.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   SWIFT, Judge.

Plaintiff, Aford Brassette, instituted this tort action against defendant, Central Louisiana Electric Co., Inc. (CLECO), seeking damages for defendant’s alleged trespass onto plaintiff’s property. Each party filed a motion for a summary judgment based principally on a joint stipulation as to the facts.

The trial judge rendered judgment following a hearing, denying the motion filed by plaintiff, granting defendant’s motion for summary judgment and dismissing the suit. Plaintiff brings this appeal from the court’s ruling.

LSA-C.C.P. Art. 966 provides that, the judgment sought in such a motion shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

In this case there is no genuine issue of material fact, the parties having stipulated to all essential facts which concern the litigation. On November 28, 1966, CLECO acquired through expropriation a 70 foot right of way affecting property owned by Mr. Brassette. After this judgment was rendered CLECO strung three electrical transmission wires or conductors and two static wires across plaintiff’s property through the right of way. It was not necessary to place any poles or structures on this property. They were located on lands of others. In February 1979 three additional conductor wires were installed on the existing electric transmission line across the right of way on plaintiff’s tract. Defendant’s employees did not get out of the 70 foot right of way or cause any physical damage to plaintiff’s property while installing the. additional wires. Plaintiff instituted this suit, contending that CLECO had unlawfully placed the three conductor lines across his land.

The sole issue is whether defendant was entitled to string additional conductor wires aci’oss the property under the judgment of expropriation rendered in 1966. Plaintiff contends that the judgment limited defendant to the installation of only five wires across the right of way, because the trial judge mentioned that was the purpose of the expropriation in his written reasons for judgment.

The judgment of expropriation, in pertinent part, reads as follows:

“IT IS ORDERED, ADJUDGED and DECREED that there be judgment herein in favor of the plaintiff, Central Louisiana Electric Company, and against the defendant, Aford Brassette, granting to said plaintiff a seventy (70') foot right of way as described in plaintiff's petition and affecting the following described property, to wit:
“A certain irregular shaped parcel of ground containing two point thirty-two (2.32) acres and located in the North Half (N V2) of the Southeast Quarter (SE Vi) of Section Twenty-four (24), Township One (1) South, Range One (1) East, Louisiana Meridian, Evangeline Parish, Louisiana and further described as Lot 1 of Plat of Survey made by C. D. Latour, Surveyor on August 23, 1958, recorded in Plat Book No. 4, Evangeline Parish Records, as reflected by the acquisition of defendant under Original Act No. 183908, Conveyance Book B-149 at page 564, et seq., dated October 13, 1958, filed October 13, 1958, Records of the Clerk of Court’s Office, Evangeline Parish, Louisiana.”

Thus, the judgment granted CLECO a 70 foot right of way affecting plaintiff’s property, but it did not itself specifically define or set forth the purpose for which the right of way or servitude was granted.

It is well settled in our jurisprudence that if there is any question as to the intent of the judgment or in the event of ambiguity, resort may be had to the pleadings filed in the matter in order to clarify the ambiguity or uncertainty. Lumbermens Mutual Casualty Company v. Younger, 158 So.2d 341 (La.App. 3 Cir. 1963) and Weisgerber v. Weisgerber, 270 So.2d 313 (La.App. 1 Cir. 1972), writ refused, 272 So.2d 375 (La.1973).

In the present case, however, we need not rely on such principle, because the judgment expressly referred to the petition for the description of the right of way.

In the expropriation petition Article 7 reads as follows:

“It is necessary, subject to the reservations hereafter made to the defendant, that petitioner take and enjoy a servitude in, under, upon, over and across the property hereinabove described, for the purpose of constructing, installing, maintaining, operating, replacing, repairing or removing an electric transmission line, consisting of a line of double pole structures, with such wires, cables and other appurtenances thereto as may be necessary or convenient for the transmission of electric energy, including the right to trim or remove trees and limbs and to prevent, remove or cause to be removed other obstructions which might interfere with or constitute a hazard to the operation of said transmission line, upon the said seventy (70) feet servitude, as here-inabove defined, and also including any other rights and privileges within the area hereinabove defined which might be necessary for the construction, installation, maintenance, operation, replacement, repair or removal of said electric transmission line, and appurtenances.”

By virtue of the specific reference in the judgment to the petition for a description of the right of way, it is clear to us that the judgment of expropriation did not limit defendant to placing five wires in the right of way. As set forth above, the petition requests a right of way for the purpose of maintaining “an electric transmission line, consisting of a line of double pole structures, with such wires, cables, and other appurtenances as may be necessary or convenient for the transmission of energy.” (Emphasis added.) As in Hanks v. Gulf States Utilities Company, 221 So.2d 249 (La.1969), the right to transmit power through its electric transmission line was the servitude obtained in the 1966 expropriation and the installation of wires etc. was simply an accessory right within the servitude.

Since CLECO had the right under its servitude to add to its electric transmission line such wires “as may be necessary or convenient” for the transmission of energy, no trespass was committed by the defendant in doing so. We also note that no physical damage was caused to the property by the installation of the additional wires.

For the above and foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings are taxed against plaintiff-appellant.

AFFIRMED.

      . Emphasis added.


author: DOUCET, Judge.

text:
    Phillip M. SLEET, Sr., d/b/a Phil Sleet Realtor, Plaintiff-Appellant, v. James C. HARDING, Defendant-Appellee.
    No. 7552.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Provosty, Sadler & deLaunay, Albin A. Provosty, II, Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, Larry Stewart, Alexandria, for defendant-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

Phillip M. Sleet, Sr. brought this suit for collection of a real estate commission against James C. Harding, alleging that he had an exclusive listing agreement with defendant, or alternatively, that he was the procuring cause for the sale of defendant’s property. After a trial, the district court found that plaintiff was not entitled to a commission on either of the alleged grounds. From a judgment dismissing his suit, he appeals. We affirm.

The facts are that in July of 1973, defendant, a United States Air Force Colonel, purchased a home through plaintiff’s real estate agency in Alexandria, Louisiana. Shortly after purchasing the home, he was transferred out of the state. He contacted plaintiff’s agency for assistance with selling the house, and on October 29, 1973, he entered into a written exclusive listing agreement with plaintiff. The agreement eventually expired by its own terms with the house remaining unsold.

By June of 1975, the house still had not' been sold. In an effort to derive some income from his property and discourage vandalism, defendant rented the house to Mr. and Mrs. Walter Kawalski. Plaintiff acted as his agent in collecting the rent and maintaining the property.

In January of 1976, defendant entered into a second written exclusive listing agreement with plaintiff. The agreement provided for a primary term, which expired in July of 1976, and a secondary term, which expired ninety days later in October of 1976.

In July of 1977, one year after the primary term of the second listing agreement had expired, defendant and the Kawalskis executed a buy-sell agreement, pursuant to which the Kawalskis ultimately acquired the house.

On appeal, plaintiff argues that the trial judge erred in failing to find that the 1976 listing agreement had been extended by oral agreement through July 2, 1977. We disagree. In his written reasons for judgment, the trial judge observed the following with respect to the alleged oral modifications of the agreement:

“Plaintiff alleged at trial that defendant had orally extended the listing agreement with plaintiff, including the clause giving plaintiff the exclusive right to sell the house. Testimony on this as well as other matters was in direct conflict. Mr. Sleet, Sr., alleged in his petition and testified at trial that he felt that he had had the exclusive right to sell the house ever since the signing of the first listing agreement in 1973. He felt that the second listing agreement was merely a ratification of an oral extension of the first listing agreement, and that the exclusive nature of the second written contract had been orally extended to the date of the buy-sell agreement. However, Mr. Sleet, Sr. admitted on cross exam that an extension of the exclusive nature of the listing agreement was never specifically discussed with defendant (see transcript pgs. 131-132), and that no written confirmation of any kind was made of the alleged oral extensions. I find this significant. Mr. Sleet and several other witnesses at the trial testified that it has always been Mr. Sleet’s personal habit and business practice to reduce all business agreements to writing. Testimony established that he stresses the importance of this practice to his trainees. Plaintiff offered no explanation [sic] for this failure.”

Our examination of the record shows the above to be a correct summary of the evidence relevant to this issue. Under these circumstances, we agree that the trial court properly denied recovery on the basis of the exclusive listing agreements.

Alternatively, plaintiff argues that the trial court erred in failing to find that plaintiff was the “procuring cause” of the sale by defendant to the Kawalskis. It is well settled in the jurisprudence of this state that a realtor is entitled to a commission, even though the sale is consummated after the termination of the agency contract, if the realtor was the procuring cause of the sale. See Cramer v. Guercio, 331 So.2d 550 (La.App. 1st Cir. 1976) and the cases cited therein at page 552.

The term “procuring cause” is defined in the following language from 12 C.J.S. Brokers § 91, page 208, which was quoted with approval in Cramer v. Guercio, supra, and Sleet v. Williams, 291 So.2d 495 (La.App. 3rd Cir. 1974):

“As used in that branch of the law relating to brokers’ commissions, the terms ‘procuring cause’, ‘efficient cause’, and ‘proximate cause’ have substantially, if not quite, the same meaning and are often used interchangeably; they refer to a cause originating or setting in motion a series of events which without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal’s property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing, and able to buy on the principal’s terms.”

As the above language suggests, in order to establish that his efforts were the procuring cause of a sale, a broker must show more than the mere fact that his actions in some way aided the sale. Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621 (1926); Cramer v. Guercio, supra.

The testimony at the trial concerning plaintiff’s role in bringing the parties to the sale together is in conflict and irreconcilable. The trial judge reached the following conclusions about the inconsistencies in the testimony:

“Both Col. Harding and Mrs. Kawalski denied that an oral offer was made by plaintiff. They also both denied that plaintiff had initiated any negotiations between them. Col. Harding testified that he directly initiated the discussions that eventually led to the sale of his house by phoning Walter Kowalski [sic], (see transcript pg. 92). This testimony was corroborated by Mrs. Kowalski [sic], who said that defendant personally contacted her husband in May of 1977. (transcript pg. 195).
“Other testimony offered at trial led this court to believe that plaintiff was not the procuring cause of the sale. One thing is that the alleged offer made by the Kawalskis through Sleet was not put in writing, although to do so is mandatory industry caustom [sic]. Another is that plaintiff never ‘registered’ the Ka-walskis as buyers, although plaintiff testified that it is customary in the realty business to do so. (transcript pg. 147). Also, plaintiff denied being involved in negotiations of any kind with the Ka-walskis when questioned by Rod Noles, another broker who was trying to sell the house in May of 1977. This denial by plaintiff was made at the very time that defendant and the Kowalskis [sic] were negotiating their deal.
“In conclusion, all plaintiff has proved to the court is that he made an unsuccessful attempt to sell defendant’s house in 1975 to persons who were already living in the house. After these negotiations broke down, plaintiff had contact with the buyers by acting as defendant’s rental agent. More than two years later defendant initiated entirely new negotiations directly with the buyers, without any participation by plaintiff, and sold the home under completely different terms than those proposed two years earlier. Under these circumstances plaintiff’s actions cannot be considered the procuring cause of the sale. Thus plaintiff is not entitled to a commission.”

We find no manifest error in the trial court’s factual findings. We, therefore, are not at liberty to disturb them. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In view of those findings, we believe that the court’s conclusion that plaintiff was not the procuring cause of the sale is correct.

For the above and foregoing reasons, the judgment appealed by plaintiff is affirmed. All costs.of this appeal are taxed to plaintiff.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Joseph G. THIBODEAUX, Defendant in Rule-Appellant, v. Patricia Nelson THIBODEAUX, Plaintiff in Rule-Appellee.
    No. 7553.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Fredric G. Hayes, Lafayette, for defendant-appellant.
    Diane Sorola, Lafayette, for plaintiff-ap-pellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

Appellant, Joseph G. Thibodeaux, appeals from a judgment which condemned him to pay alimony arrearages in the amount of $1000.00 and $200.00 in attorney’s fees.

The award of alimony pendente lite of $100.00 monthly in favor of appellee is contained in a judgment dated May 5, 1978. Appellant has never paid any sum to appel-lee pursuant to this judgment. At the time the rule for judgment for past due alimony was tried appellant was fifteen months in arrears. However, the trial court granted judgment for $1000.00 (10 months) concluding that 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) terminated the accrual of alimony pendente lite under LSA-C.C. Article 148 from and after the effective date of such decision. Alimony pendente lite which had accrued pri- or to the effective date of Orr decision was held to be validly due, the trial court concluding that the Orr decision should not be applied retroactively.

Defendant in Rule-Appellant appealed. Appellee has neither appealed nor answered the appeal of Joseph G. Thibodeaux. Therefore, the sole issue before us on this appeal may be stated as follows: Assuming that pre-amendment Article 148 alimony is unconstitutional based on the rationale of the Orr decision, is alimony pendente lite awarded and accrued prior to the Orr decision uncollectible?

The appellant argues that an unconstitutional statute is in reality no law at all. For this reason it is wholly void as the unconstitutionality dates from the time of its enactment, not merely from the date of the decision holding it to be unconstitutional.

We disagree with the defendant’s contentions based on the recent decision of our Supreme Court in Lovell v. Lovell, 378 So.2d 418 (La.1979). In Lovell, the Supreme Court held that LSA-C.C. Article 160 as it existed prior to being made gender-neutral by Act No. 72 of the 1979 Legislature was unconstitutional, overruling the prior decision of Loyacano v. Loyacano, 358 So.2d 304 (La.1978).

In Lovell v. Lovell, supra, the Court was faced with an issue on retroactivity similar to the one before us. The Court declined to make its decision retroactive to affect judgments prior to the statute’s amendment. Speaking to this issue the Court observed:

“In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, [92 S.Ct. 349, 30 L.Ed.2d 296] (1971).
Upon consideration of each of these factors, we conclude that our decision should not be applied retroactively. Our decision establishes a new principle of law by overruling clear past precedent on which litigants have relied. Innumerable divorced persons, both those paying and receiving alimony, have relied on the constitutionality of art. 160. Loyacano v. Loyacano, upholding the constitutionality of this statute, was decided by this court as recently as last year. Moreover, retrospective application would undermine the objectives of art. 160. Finally, substantial inequity would result if prior judgments awarding alimony were declared invalid. It might well require new litigation in each case under the amended article in order to afford continued alimony payments. Also, it would subject divorced wives to suits by their former husbands seeking repayment of alimony paid by husbands under art. 160 prior to its amendment. Where a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.
Cipriano v. City of Houma, 395 U.S. 701, [89 S.Ct. 1897, 23 L.Ed.2d 647] (1969).”

We conclude that the decision in Lovell, supra, is dispositive of the issue presented by this appeal. The instant case clearly presents a situation that dictates non-retro-activity on the basis of avoiding “injustice or hardship.”

We note parenthetically that our brethren of the Second Circuit considered this precise issue in Bruner v. Bruner, 373 So.2d 971 (La.App. 2nd Cir. 1979) and concluded that the Orr decision should only be applied prospectively, stating:

“In Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900-1901, 23 L.Ed.2d 647 (1969) the Supreme Court struck down a statute on equal protection grounds and stated the effect would be prospective:
‘Where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 366, 53 S.Ct. 145, 148, 77 L.Ed. 360 [85 A.L.R. 254] (1932). See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). Cf. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed. 601 (1965).’
We hold Orr v. Orr, supra, should not be applied retroactively. Consequently, alimony which accrued prior to the U.S. Supreme Court’s decision will not be affected and this will minimize the hardship caused to those needy former wives who have made expenditures expecting to accrue past due alimony. . .

The appellant also urges that the trial judge erred in awarding the appellee attorney fees pursuant to R.S. 9:305. The basis for the appellant’s objection is that since the award of alimony should not be sustained, the plaintiff-appellee is no longer the prevailing party. Since we have determined that the judgment for alimony ar-rearages was proper, it follows that the award of attorney fees was also proper as the plaintiff-appellee is the prevailing party.

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

AFFIRMED.

      . Article 148 was amended in the 1979 Legislature for the purpose of making it gender-neutral. The old article stated:
      “If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”
      The statute as amended by Act No. 72 of 1979 now 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.”

      . In Orr v. Orr, supra, the U.S. Supreme Court held that an Alabama statute which imposed an alimony obligation only on husbands and not on wives was unconstitutional as violative of the equal protection clause of the fourteenth amendment.

      . Article 160 was amended in the 1979 Legislature for the purpose of making it gender-neutral. The old article stated:
      “If the wife who has obtained the divorce has not sufficient means for her maintenance, the Court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income; provided, however, that in cases where, under the laws of this State a divorce is granted solely on the ground that the married persons have been living separate and apart for a certain specified period of time, and the husband has óbtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the Court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income.
      This alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage.”
      This article as amended by Act No. 72 of 1979 now reads:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      This alimony shall be revoked if it becomes unnecessary and terminates if the • spouse to whom it has been awarded remarries.”

      . R.S. 9:305 states:
      “When the court renders judgment in an action to make past due alimony or child support executory, the court may award reasonable attorney fees in favor of the prevailing party.”


author: CUTRER, Judge.

text:
    Edward TERRELL et al., Plaintiffs-Appellants, v. Paul E. MESSENGER et al., Defendants-Appellees.
    No. 7558.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Natchitoches, for plaintiffs-appellants.
    Gahagan & Gahagan, H. C. Gahagan, Jr., Natchitoches, for defendants-appellees.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Plaintiffs, owners of a one-half interest in a tract of land, brought this suit to set aside three acts of sale involving the remaining undivided one-half interest of the property. From a judgment maintaining defendants’ peremptory exception of no right of action, plaintiffs appeal. We reverse.

The issue on appeal is whether the trial judge erred in sustaining a peremptory exception of no right of action filed by the defendants.

On January 4, 1957, Sarah J. Terrell, by cash deed, sold a 72 acre tract of land to 12 of her children and grandchildren. The deed contained the following provision:

“The vendees herein mutually agree that should any one of them decide to sell their interest in their property above acquired, that they will first offer said interest to the other vendees herein, at the same price that they are offered for their interest. Vendees further agree that so Pong] as Sarah J. Terrell is alive, that they will not sell their interest, except to one another in the above described property.”

In addition to the signature of the vendor, Sarah Terrell, only one of the vendees signed the deed. This person was Emma T. Jackson (now Emma Kirkland).

In November 1977, four of the vendees (Leo Terrell, Lena Jones, Steese Britton and Emma Kirkland), the owners of a one-half interest in the property, sold their interest to third parties, Paul and Janette Messenger. The Messengers then sold their interest to Pioneer Realty Company by deed dated March 9, 1978.

The plaintiffs, Edward Terrel], Edison Terrell, Harvey Moran, Sarah Terrell Chevalier, Herman Terrell and Olizine B. Terrell, Jr., the owners of the remaining one-half interest in the property by virtue of the Sarah J. Terrell deed, brought suit against the Messengers, their vendors and Pioneer Realty Company, seeking to set aside the sale to the Messengers, and the sale from the Messengers to Pioneer Realty Company, on the ground that the agreement in the deed from Sarah J. Terrell was violated by defendants, Leo Terrell, Lena Jones, Steese Britton and Emma Kirkland.

The defendants filed an exception of no right of action on the ground that the only vendee who signed the Sarah Terrell deed was Emma T. Jackson (now Emma Kirkland). The defendants further allege that Emma T. Jackson had no authorization from any of the other vendees to sign on their behalf, thus, the provision in the deed was not binding on the other vendees. The defendant so argued at a hearing on the exception.

The trial judge in his written reasons accepted defendants’ arguments and found that:

“ . . the reservation and stipulation of the deed of 1957 is null and void and without legal effect and that the plaintiffs have no right of action.”

Plaintiffs argue on appeal that the validity of the provision is a defense to the action, and as such, was improperly raised by an exception of no right of action. We agree with this argument.

It is clear that the trial court erred. The defendants, by means of an exception of no right of action, improperly raised a defense to the merits of the suit.

As stated in the case of Marquis v. Cantu, 371 So.2d 1292 (La.App. 3rd Cir. 1979):

“The sole purpose of the peremptory exception of no right of action is to challenge the plaintiff’s interest in the subject matter of the suit or his legal capacity to proceed with the suit. Broday v. Broday, 360 So.2d 645 (La.App. 3rd Cir. 1978); Davis v. Southern Farm Bureau Casualty Ins. Co., 324 So.2d 468 (La.App. 3rd Cir. 1975); Guillory v. Nicklos Oil & Gas Co., 315 So.2d 878 (La.App. 3rd Cir. 1975). The asserted defense is one that goes to the merits of the case and it is improper to assert an affirmative defense through the means of peremptory exception. Alside Supply Co. v. Ramsey, 306 So.2d 762 (La.App. 4th Cir. 1975); Wat kins v. Louisiana High School Athletic Association, 301 So.2d 695 (La.App. 3rd Cir. 1974).” (Emphasis added.)

The plaintiffs are alleged to be the owners of one-half of the property, either as vendees or heirs of vendees. They clearly have an interest or right to institute the present suit which seeks to enforce an alleged contractual provision affecting their interests. The status of the plaintiffs as co-owners, pursuant to the Sarah J. Terrell deed, has not been questioned. The plaintiffs clearly have a right to bring the action. The exception must be overruled.

For the assigned reasons, the judgment of the trial court sustaining the peremptory exception of no right of action in behalf of the defendants-appellees is reversed and the said exception is overruled. The case is remanded for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed to the defendants-appellees.

REVERSED AND REMANDED.


text:
    Aaron PERRY et ux., Plaintiff-Appellee, v. Simon DOMINGUE et al., Defendants-Appellants.
    No. 7563.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Voorhies & Labbe, William M. Bass, Lafayette, for defendants-appellants.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-ap-pellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

Plaintiff, Aaron Perry, instituted this tort action to recover damages for personal injury sustained in an automobile accident. Made defendants were Simon Domingue and his automobile liability insurer, MFA Insurance Company. Prior to the trial defendants admitted liability, therefore the trial was limited to the issue of damages. Following a trial, judgment was rendered in favor of plaintiff in the sum of $7,555.08. From this judgment, defendants have perfected this appeal seeking a reduction in the award.

The facts show that the accident occurred on March 2, 1978, in Crowley, Louisiana when defendant, Simon Domingue, proceeded through the intersection of Avenue “H” and 3rd Street, in violation of a stop sign, striking a Volkswagon operated by plaintiff. Plaintiff stated that although he received a “pretty hard jolt” in the collision, he drove home following the accident. Following his arrival home, he began to experience pain in his neck. Plaintiff testified that he has experienced -recurring pain in his neck three or four days a week since the accident. Plaintiff stated that he occasionally took medication to relieve the pain in his neck.

The day after the accident plaintiff was examined by Dr. McNeely, his family physician. Rotation of plaintiff’s neck gave rise to complaints of pain. Dr. McNeely stated that in the year prior to the accident, plaintiff had not sought treatment for any neck pain, although his records did reflect one entry in the year 1976 when plaintiff did complain of neck pain. Dr. McNeely stated that although no x-rays were taken on this 1976 visit plaintiff was treated for clinically suspected arthritis of the cervical spine. Following the March 3, 1978 examination, Dr. McNeely prescribed a muscle relaxant and an anti-arthritic medication. Plaintiff was again seen by Dr. McNeely on April 21, 1978. At that time Dr. McNeely found plaintiff’s neck problem to be unresolved and suggested that he continue on the medication previously prescribed opining that he expected the symptoms as related to his injury per se to disappear in a few weeks. Plaintiff was not again seen by Dr. McNeely for his neck complaints although he was treated by Dr. MeNeely on subsequent visits for unrelated problems.

Plaintiff was next seen, by referral of his attorney, by Dr. James Lafleur, an orthopedist, who examined plaintiff on December 18, 1978. Upon lateral rotation of his neck to the left, plaintiff complained of pain. Following an examination of x-rays, Dr. Lafleur concluded that plaintiff was suffering from spondylosis of cervical vertebra C 3-4, C 4 — 5, C 5-6 and C 6-7. Cervical spondylosis is a degenerative disc disease which develops over a period of years. Dr. Lafleur stated that it was probable that the automobile accident aggravated the pre-ex-isting cervical condition, causing plaintiff to suffer increased pain. Dr. Lafleur examined plaintiff again on June 18, 1979. The .doctor testified' that plaintiff’s condition had not returned to his pre-injury status as of that date. Dr. Lafleur stated that plaintiff, with proper treatment, could recover from the effects of the automobile accident in 12 to 18 months.

In the history taken by Dr. Lafleur on the occasion of both examinations plaintiff denied any prior difficulty with his cervical area. On cross-examination Dr. Lafleur admitted that his relation of plaintiff’s continued complaints to the automobile accident were based on his history. In this connection Dr. Lafleur testified as follows:

“Q. Initially, when you were taking Mr. Perry’s history, did you inquire as to if he had had difficulty with this cervical area prior to the automobile wreck he told you about?
A. On the initial evaluation in December of 1978, I did, but it is not recorded. I did specifically on the examination of 6/18/79, and it is recorded.
Q. And he told you that prior to the automobile (sic), that he had not had any difficulty with his cervical area?
A. That is correct.
Q. And it was based on this history that you related his present complaints to the automobile wreck?
A. That is correct.
Q. So that if he would’ve been suffering from an arthritic condition in the cervical area prior to the wreck, and for one reason or another didn’t relate that to you, then, that would certainly effect (sic) your opinion insofar as tying his current complaints with the automobile wreck?
A. That’s right.
Q. As I appreciate what we’re talking about in this man’s case is a pre-existing arthritic condition in his cervical area, that, as explained to you in his history, it wasn’t giving him any problems until subsequent to the wreck?
A. That is correct."

The trial judge in awarding $7000.00 in general damages indicated, in his brief oral reasons, that he did so relying heavily on the testimony of Dr. Lafleur. Appellant argues on appeal that this was error considering that Dr. Lafleur’s opinion was based on an inaccurate history.

We do not agree that the history given to Dr. Lafleur was so inaccurate that his opinion should be disregarded. Plaintiff testified that he had had no difficulty with his neck prior to the accident. The only evidence in the record as to any neck complaints by plaintiff before the accident appears in the testimony of Dr. MeNeely who testified that in 1976 plaintiff consulted him with regard to neck pain. Dr. MeNeely mentioned no follow-up appointments following this initial visit. Presumably any neck complaints which plaintiff may have had in the year 1976, as mentioned in the-testimony of Dr. MeNeely, were resolved long prior to the accident and to the extent that when giving his history to Dr. Lafleur he indicated no previous neck problems. Defendant in cross-examining Dr. Lafleur (see the quote above) did not indicate that plaintiff’s neck problems occurred some two years before the accident and had apparently become asymptomatic long prior thereto. Under these circumstances we cannot conclude that the trial court erred in placing reliance on the expert medical opinion of Dr. Lafleur.

Civil Code Art. 1934 provides that, in the assessment of general damages, “much discretion must be left to the judge or jury

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the court stated:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.” (Emphasis supplied)

The principles announced in Coco were reaffirmed in Reck v. Stevens, 373 So.2d 498 (La.1979), wherein the court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.Co. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977), Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior award appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

In the present case, the record reveals that the March 2, 1978 automobile accident aggravated a pre-existing spinal disorder which had been asymptomatic until the occurrence of the trauma. Plaintiff has experienced recurring pain in his neck since the accident. As of June, 1979, more than a year after the occurrence of the accident, Dr. Lafleur found that plaintiff’s condition had not returned to its pre-aggravation status. Dr. Lafleur noted that with proper care plaintiff could recover in 12 to 18 months. Clearly, as a result of the accident, plaintiff has had to endure pain in his neck for a substantial period of time. A review of the record does not reveal that, in light of the particular injuries suffered by plaintiff, the trial judge abused his discretion in awarding $7,000.00 in general damages.

Appellant next asserts that the trial court erred in including in the medical expense award the sum of $167.00 which was paid to Dr. Lafleur and for x-rays ordered by Dr. Lafleur. Appellant suggests that the services rendered by an evaluating physician are not necessary medical expenses and therefore not recoverable. We agree. Dr. Lafleur testified very candidly that he prescribed no course of treatment for plaintiff in that he was not requested to do so, he having seen plaintiff on two occasions solely for purposes of evaluation. Under these circumstances it was error to include the medical fee of Dr. Lafleur as an item of recoverable medical expense. Warren v. Yellow Cab Company of Shreveport, Inc., 136 So.2d 319 (La.App. 2nd Cir. 1961); Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir. 1971). Accordingly, we will amend the judgment to exclude this sum.

Finally, appellee by answer to the appeal seeks damages and attorney’s fees for a frivolous appeal. Clearly the appeal in this case is not frivolous. An appeal can be considered frivolous only in cases where the record clearly reflects that the appeal was taken solely for purposes of delay or that counsel is not sincere in the view of the law which he advocates. Tullis v. Aertker, 352 So.2d 415 (La.App. 3rd Cir. 1977).

For the above and foregoing reasons we amend the judgment of the trial court to exclude as recoverable medical expenses the sums of $102.00 and 65.00 (bill of Opelousas Orthopaedic Clinic and bill of Lafayette Bone and Joint Clinic, respectively) which results in a reduction of the judgment from $7555.08 to the sum of $7388.08. In all other respects the judgment appealed from is affirmed. Costs in the appellate court are to be taxed one-half to appellant and one-half to.appellee.

AFFIRMED AS AMENDED.


text:
    Bobby L. CROWLEY, Plaintiff-Appellee, v. ROY O. MARTIN LUMBER COMPANY, INC. et al., Defendants-Appellants.
    No. 7566.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee.
    Whitaker & Doggett, John Whitaker, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

The sole issue in this appeal is whether Roy 0. Martin Lumber Company, Inc. (Martin), third party plaintiff, is entitled to indemnity from third party defendant, Boswell, arising out of a judgment rendered against Martin and Boswell on the main demand in this workmen’s compensation suit.

The record reveals the following facts: Cecil E. Boswell was engaged in the trucking business. Boswell was delivering cross-ties from different sawmills to Martin’s Alexandria plant. Boswell employed Bobby L. Crowley to drive one of the trucks used in making these deliveries. Crowley was injured on December 28, 1978 while preparing his truck for unloading crossties at the Martin plant. As he began to remove the chains and binders from the truck, some of the crossties fell on his left leg. The injury required the amputation of his left leg below the knee.

Crowley brought this suit against Martin and Boswell for workmen’s compensation benefits, medical and incidental expenses, penalties and attorney’s fees. Martin filed a third party demand against Boswell, his insurer, Hermitage Health and Life Insurance Company, and E. F. Rhodes, owner-lessor of the truck driven by Crowley. In the third party demand Martin prayed to be awarded indemnification from the third party defendants if Martin was found to be liable to Crowley in the main demand. Pursuant to an order of the trial court, the third party demand against Boswell was severed from the demand against the other third party defendants and it was ordered tried with the main demand.

The trial court awarded Crowley the sum of $93.42 per week beginning December 28, 1978, and the payments were to continue during the period of disability which was found to be total and permanent. These payments were subject to credit for payments made by Boswell to Crowley. Boswell had been paying only $85.00 per week as compensation. The court further awarded medical expenses, attorney’s fees and 12 percent penalties on the amounts of compensation and medical expenses due and unpaid. The judgment was awarded against Martin and Boswell, in solido. In his written reasons for judgment, the trial judge found that Boswell was the “immediate employer” and Martin was the “statutory employer” of Crowley, thus, both were liable to Crowley for workmen’s compensation benefits. The trial court judgment was silent as to Martin’s third party demand against Boswell.

Martin complains that the trial judge erred in not granting judgment in its favor on the third party demand for indemnity from Boswell. Martin contends that a stipulation was entered into wherein it was agreed that if Martin was cast in judgment, then Martin would be entitled to a judgment of indemnity against Boswell.

We have carefully reviewed the lengthy colloquy between the trial judge and the respective counsel. Counsel for Martin proposed the stipulation regarding the indemnification. We conclude that counsel for Boswell did not agree to the stipulation proposed by counsel for Martin. In reply to the proposal of Martin’s counsel, counsel for Boswell stated as follows:

“. . .1 would not at all suggest to the Court that under the prevailing law that if he is, in fact, a statutory employer, he is entitled to judgment over against the employer of the plaintiff; . .” (Emphasis added)

This quote does not indicate an acceptance of liability for indemnity on behalf of Boswell.

As there is insufficient proof in the record to satisfy the demand of Martin against Boswell, we cannot modify the judgment of the trial court.

We note that counsel for Martin stated in his brief the reason for this appeal to be as follows:

. . since the judgment entered in the Trial Court was silent with respect to this third party demand, under applicable law the silence of the written reasons and judgment of the Trial Court with respect to this third party demand is considered as a rejection thereof by the Trial Court, in the absence of a special reservation. Cagle v. Spade Drilling Company, Inc., 325 So.2d 354 (La.App. 3d Cir. 1975). Accordingly, this appeal was entered.”

Counsel for Boswell, in his reply brief, however, takes the position that the third party demand between Boswell and Martin was not actually adjudicated at the time of the trial on the main demand. Sinpe it is conceded by Boswell that no adjudication of the demand took place, such demand remains before the trial court for disposition. See Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978).

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be paid by Roy 0. Martin Lumber Co., Inc., defendant-appellant.

AFFIRMED.

      . The workmen’s compensation suit was filed against Dura-Wood Treating Company, as a division of Roy O. Martin Lumber Company, Inc. Judgment was rendered against Martin and Boswell. The judgment made no reference to Dura-Wood. No issue is made of this fact, thus, we will refer to Martin as the defendant.

      . Counsel for Martin apparently thought the stipulation had been agreed to, thereby obviating any necessity to introduce testimony or other evidence to establish whether a relationship of principal contractor-subcontractor existed between Martin and Boswell. The record contains no evidence of any such relationship, thus, it cannot be determined if LSA-R.S. 23:1063 is applicable. This article provides as follows:
      “A principal contractor, when sued by an employee of a subcontractor or his dependent, may call that contractor, or any intermediate contractor or contractors, as a co-defendant, and the principal contractor shall be entitled to indemnity from his subcontractor for compensation payments paid by the principal contractor on account of an accidental injury to the employee of the subcontractor.”


text:
    Tommy J. WILLIS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Ford Motor Credit Company, and Lewis Roy Motors, Inc., Defendants-Appellants, Ford Motor Company.
    No. 7569.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Provosty, Sadler & deLaunay, Michael T. Pulaski, Alexandria, for defendants-appellants.

      Knoll & Knoll by Jeannette Theriot Knoll, Marksville, for defendant-appellee-appellant.
    Donald R. Wilson, Marksville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

Tommy J. Willis brought this redhibitory action against defendants, Ford Motor Company, Ford Motor Credit Company, and Lewis Roy Motors, Inc., seeking the recission of a sale of a 1978 Ford automobile. The trial court found that the automobile contained redhibitory defects, as alleged by plaintiff, and granted a reduction of the purchase price and attorney’s fees. Defendants appeal.

On September 11, 1978, plaintiff purchased a 1978 Ford Pinto Station Wagon from Lewis Roy Motors, Inc., an authorized Ford dealer, in Marksville, Louisiana. Plaintiff gave a $600.00 down payment on the purchase price of $4,822.00 and financed the balance. The unpaid balance plus insurance, taxes, fees, and finance charges came to $5,927.04, which was payable in forty-two monthly installments of $141.12.

Plaintiff filed this suit on November 21, 1978, alleging the existence of redhibitory defects in the car, including overheating of the rear deck, severe vibrations at speeds above forty-five miles per hour, excessive noise coming from the rear of the vehicle, poor gas mileage, and pulling or darting of the vehicle when the brakes were applied. It was established at the trial that the dealer had' made numerous attempts to remedy plaintiff’s complaints. In the first four months of his ownership of the car, three sets of tires were put on it, the exhaust system was tuned and rebraced, the carburetor and ignition systems were reworked, the tires were balanced, the front end was aligned, and the rear deck was reinsulated and recarpeted. Plaintiff was, of course, deprived of the use of his automobile when these repairs were being made.

After reviewing all of the evidence, the trial judge reached the following conclusions, which are quoted from his written reasons for judgment:

“In this case the evidence established:
1. That the thing sold is useless for its purpose or that its use is so inconvenient and unreliable that it must be supposed the purchaser would not have made the purchase would he have known of the defects.
2. That the defects complained of existed at the time of the purchase and were neither known to Plaintiff-buyer nor apparent to him.
3. That the seller could not or would not correct the defects when it was given opportunity to do so.
“It is clear from the testimony of all Plaintiff’s witnesses that there is no single defect of this automobile which is irreparable or which would be classified as ‘major’ in nature.
“The cumulative effect of these ‘minor’ defects was such that after almost a year of ownership, the car only had 3,716 miles on it, and in the first three months of use, during which constant repairs were being attempted, only 1,400 miles were put on this car. The record reveals that Plaintiff has not received the use from this vehicle he is entitled to, and the use that he has received was so inconvenient and unreliable that it is clear plaintiff would not have purchased this vehicle had he known of these multiple defects.
“The numerous defects found in this vehicle are not of sufficient gravity to justify recission of the sale; however, plaintiff is entitled to a $1,040.00 reduction of the original sale price as a result of the losses, inconvenience and defects in this vehicle. This $1,040.00 should be deducted to arrive at the figure upon which interest and other charges are based in the sales contract. The sales contract and supporting papers should be amended or redrawn to reflect this reduction in basic price.”

In addition to the reduction of the purchase price, the trial court awarded plaintiff a $500.00 attorney’s fee pursuant to LSA-C.C. art. 2545.

On appeal, defendants argue that the trial judge erred in finding that there were sufficient defects in the automobile to entitle plaintiff to a reduction in the purchase price. In the alternative, they argue that the amount of the reduction was excessive.

After carefully reviewing the evidence in the record, we find no manifest error on the part of the trial court in finding that the automobile contained redhibito-ry defects, such that plaintiff is entitled to a reduction of its purchase price. We agree that plaintiff proved the existence of multiple defects, which were a constant source of irritation and inconvenience to him. That finding will, therefore, not be disturbed. Cangelosi v. McInnis Peterson Chevrolet, Inc., 373 So.2d 1346 (La.App. 1st Cir. 1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

With regard to the amount of the reduction, defendants argue that the defects in the automobile were not of a very serious nature. They cite this court’s opinion in Guillory v. Pitre Ford Company, 345 So.2d 1274 (La.App. 3rd Cir. 1977) as authority for the general rule that the measure of the amount of the price reduction is the cost of repairing the defects. They point out that in the present case, the defects could be cured for considerably less than the $1,040.00 reduction that was awarded.

In Guillory, this court said:

“Even though the plaintiff seeks the recission of the sale for redhibitory defects, the judge may decree merely a reduction of the price. LSA-C.C. Article 2543. As a general rule, the measure of the amount of price reduction is the difference between the value of the thing as warranted by the seller and the value of the thing as it actually was. In most cases, this is the cost of repairing the defects. However, much discretion is left to the trial judge in determining the amount. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1972)..”
(emphasis added)

In view of the poor service, which plaintiff received from the car, due to its numerous defects, we do not believe that the trial judge abused his discretion in awarding the $1,040.00 reduction.

The only other matter to be disposed of is plaintiff’s request for additional attorney’s fees for services rendered on appeal. The request was made in his brief, which was filed after the delay for answering the appeal. Due to his failure to answer the appeal and ask for these additional attorney’s fees, the request must be denied. LSA-C.C.P. Art. 2133; Gour v. Daray Motor Co., Inc., 373 So.2d 571 (La.App. 3rd Cir. 1979).

For these reasons, the the judgment of the trial court is affirmed. All costs of this appeal are taxed to the defendant-appellants.

AFFIRMED.


text:
    Jerry L. ARCENEAUX, Plaintiff-Appellant, v. JEFFERSON DAVIS PARISH POLICE JURY et al., Defendants-Appellees.
    No. 7574.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Writ Refused May 30, 1980.

      Edwards, Stenfanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-appellant.
    Marcantel & Marcantel, Bernard N. Mar-cantel, Jennings, for defendants-appellees.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Jerry L. Arceneaux brought this suit against the Jefferson Davis Parish Police Jury and the Jefferson Davis Community Action Association seeking to be reinstated as Executive Director of the Jefferson Da-' vis Community Action Association. From a judgment in favor of the defendants, Ar-ceneaux appeals. We affirm.

The sole issue on appeal is whether the personnel discipline policies and procedures of the Community Action Association are applicable to the termination of the plaintiff as Executive Director of such association.

The undisputed facts giving rise to this issue are as follows: On November 10,1965, pursuant to the Economic Opportunity Act (EOA) of Congress, the Jefferson Davis Parish Police Jury (Police Jury) adopted a resolution agreeing to sponsor the Community Action Program in Jefferson Davis Parish. It designated the Jefferson Davis Community Action Association (CAA) as the agency to work with the Office of Economic Opportunity (later changed to Community Services Administration). On June 1, 1966, plaintiff was appointed as Executive Director of the program.

The provisions of the EOA provide that the management authority of CAA were to be vested in a “governing board” and an “administering board”. The Police Jury was designated as the governing board. The administering board was appointed by the Police Jury. The membership of this board was made up of a cross section of the community along with some members of the Police Jury. The governing board (Police Jury) was the body which set the policies and procedures for the operation of CAA. The “administering board” was a body who carried out the policies and procedures which were delegated to them by the governing board.

As to powers of the governing board, the EOA provides that:

“The powers of every community action agency governing board shall include the power to appoint persons on senior staff positions, to determine major personnel, fiscal and program policies . .” (Emphasis ours.)

Memorandum # 81 issued by the Office of Economic . Opportunity interpreting the above section, states that the powers of the governing board must include the appointment of a staff director of CAA.

By resolution dated April 18, 1969, the Police Jury defined the authority of the administering board and also reserved certain powers unto itself. The resolution provided, in part, as follows:

“NOW THEREFORE, BE IT RESOLVED by Jefferson Davis Parish Police Jury, in special session duly called and convened on this 18th day of April, A. D., 1969, that the administering board of the Jeff Davis Community Action Agency shall have complete control over all fiscal, personnel and policy matters, with the exception of the following powers, which the Police Jury reserves to itself, to-wit:
(1) The power to employ and discharge the director and assistant director.”
(Emphasis ours.)

Also, on February 12, 1969, the Police Jury adopted personnel policies which had been prepared by the plaintiff and his staff and approved by the administering board. These personnel policies or guidelines provided the procedure for discipline of employees. The procedure for the discipline of employees is spelled out in detail. Disciplinary action may include any one of five types: verbal warning, reprimand, probation, suspension or termination. Disciplinary action may be appealed to the administering board and from there, it may. be appealed to the executive director. The decision of the executive director is final.

On November 26, 1969, the Police Jury passed another resolution pertaining to the authority of the administering board and again the Police Jury retained the right to employ and discharge an executive director, with no limitations on this power.

On January 24, 1979, the Police Jury terminated Arceneaux’s employment as Executive Director. No prior notice was given to Arceneaux, nor were any reasons given for the discharge. On January 26, 1979, a telegram was received by Pierre Galley, President of the Police Jury, from Norman Reiner, Chief of Operations for the Community Services Administration in Dallas, Texas. This telegram set forth Community Service Administration procedures to be followed in the termination of Arceneaux’s employment. This telegram instructed the Police Jury to set aside its action of January 24th, terminating Arceneaux’s employment, and, if it planned to terminate his employment, the following procedure must be followed:

“1. Notify the administering board of such proposed action.
2. Allow the administering board reasonable time to consider the proposed action in either a regular or special called meeting of that board and to comment on the proposed action. A period of 30 days from notification would seem reasonable.
3. After the above period of time has elapsed, the governing board can take the action whether or not it has received the requested comments.”

Pursuant to these instructions on February 2, 1979, the Police Jury reinstated Ar-ceneaux and requested that the administering board meet to give its recommendation concerning the contemplated termination of Arceneaux’s employment.

On February 9, 1979, the administering board met to consider the termination of Arceneaux. .After discussion, the board was unable to make a recommendation as it was deadlocked with a tie vote. The Police Jury was notified that the administering board would make no recommendation due to its tie vote. On February 14, 1979, the Police Jury terminated Arceneaux’s employment.

This suit followed with Arceneaux contending that his discharge was improper since the Police Jury did not follow the personnel policy procedures of the CAA. The trial judge found that Arceneaux was not subject to the personnel policy procedures since they provide that the executive director was the party responsible for the dismissal of employees, and it would not be tenable to find that Arceneaux’s own consent would be required for his dismissal.

Arceneaux argues on appeal that the trial court erred. He argues that the Police Jury is required to follow the personnel policy in terminating the executive director’s employment since he was an employee of the CAA and entitled to the same protection as the other employees. He argues that even though the policy specifically gives him authority in hiring and firing employees, and thus could not literally be applied to his own case, nevertheless, he is entitled to the same sort of procedural protection as the other employees.

On the other hand, the Police Jury argues that the personnel policy procedures apply only to positions below the executive director and that the policy does not reflect procedures relating to hiring and firing of the executive director. The Police Jury argues that Arceneaux served at the pleasure of the Police Jury.

We agree that the personnel policy did not apply to Arceneaux concerning the procedure of his discharge. The Police Jury, as statutory governing board of CAA, was authorized to, and did reserve unto itself, the power to employ and discharge the director. This reservation of power was explicitly set forth in resolutions adopted by the Police Jury as governing board. It is clear that the Police Jury did not intend to limit its reserved power by making the personnel policy provisions applicable to the plaintiff as executive director.

Further, the personnel policy provisions stated that all disciplinary proceedings against an employee were appealable to the executive director and his decision on the matter would be final. As the trial court stated, it would not be tenable to find that Arceneaux’s consent would be required for his dismissal. Also, the procedures set forth by the CAA were followed by the Police Jury.

Since there were no statutory or contractual regulations, other than those of the Community Services Administration, which were followed, the Police Jury was under no restraint in its power to dismiss Arcen-eaux. In the case of Jackson v. East Baton Rouge Parish, etc., 353 So.2d 344 (La.App. 1st Cir. 1977), writs den., 354 So.2d 1385 (La.1978), the court stated:

“Absent any specific statutory requirement or contractual agreement regulating the employment relationship of the parties, termination is at the will of either party, and in the ease of a governmental entity, termination is at the will of the appointing officer, provided no restraints are placed on his power. Hamilton v. Louisiana Health and Human Resources Administration, 341 So.2d 1190 (La.App. 1st Cir. 1976), writ refused, 344 So.2d 4 (1977).”

We hold that the personnel policy procedures were- not applicable to the discharge of Arceneaux as executive director. The trial court judgment will be affirmed.

For the assigned reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . 42 U.S.C.A. § 2781, et seq.

      . 42 U.S.C.A. § 2791(e).