author: CIACCIO, Judge.

text:
    Dr. and Mrs. Philip H. RYE v. TERMINIX SERVICE COMPANY, INC. and ABC Insurance Company.
    No. 13207.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.

      Vallerie Oxner of Mmahat, Gagliano, Duffy & Giordano, Metairie, for defendants-appellants.
    Floyd J. Reed of Reed & Reed, New Orleans, for plaintiffs and appellees.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiffs-appellees, Dr. and Mrs. Rye, originally brought this action seeking recovery for property damage resulting from termite infestation of their home. Defendant-appellant, Terminix Service Company, Inc., appeals from the trial verdict awarding plaintiffs judgment in the amount of Seven thousand seven hundred thirty-four and 08/100 ($7,734.08) dollars plus legal interest from the date of judicial demand and for all costs. Appellees answered the appeal seeking a modification in the trial court judgment to award an increase in interest and attorney’s fees. We affirm.

On November 28, 1975, plaintiffs purchased a house located at 1701 Jefferson Avenue in New Orleans. In February of 1976 the plaintiffs began property preservation measures including termite inspection and warranty.

On February 13, 1976 plaintiffs entered into a subterranean termite agreement with Terminix wherein Terminix agreed to protect plaintiffs’ home against invasion and infestation by subterranean termites. Ter-minix inspected the property and prepared a graph showing the location of active termites and the termite damage to plaintiffs’ house. The graph noted “active termites” on the front left side of the house, and termite damage on the middle left side, middle right side and rear of the house. Mrs. Rye testified that the Terminix inspector indicated that the termite damage was not extensive enough to require any repairs.

Terminix treated the property to eradicate termites and issued the “Termite Protection Plan” to Mrs. Rye. The plan provided for annual inspections and treatments, and in the event new termite damage occurred, Terminix would be liable for up to $150,000.00 for repairs.

Terminix inspected the property in 1977, 1978 and 1979. On May 3, 1979, Terminix’s “Annual Termite Control Warranty Inspection” revealed “No active termites” and stated “preventative treatment made.”

Beginning in March of 1979, the plaintiffs began remodeling. In May of 1979, the general contractor began repairs to the front porch, and it was discovered that termites had destroyed approximately 66 feet of sills supporting the house from the front left side (the area of active termites in 1976), across the front porch, except the center, extending to the right front porch and side of the house.

Evidence produced at trial demonstrated that two nests of active termites were discovered and photographed on June 1, 1979. The plaintiffs’ general contractor and his carpenter testified that it was necessary to replace approximately 66 feet of sills, weatherboards, porch decking, fascia board, etc., and to shore up the house in order to accomplish the repairs necessitated by the termite damage. The contractor presented vouchers in support of his bill for $7,734.08.

The trial judge found: “The evidence presented at trial clearly showed that the pest control contractor failed to either eradicate the active termites found in the initial inspection in 1976, or annually thereafter. ... the defendant failed to perform properly its obligation under the contract.” And concerning the costs of repair: “Although his [Plaintiffs’ general contractor] records were not perfect, the Court accepts his testimony as reasonable and credible for the repairs in the sum of $7,734.08.”

On appeal Terminix argues that the trial court erred in rendering judgment in favor of plaintiffs because (1) Terminix was not negligent and did not fail to properly perform its obligation under the contract, and (2) the plaintiffs failed to carry their burden of proof as to the extent of the new termite damage and as to the costs of repairing any damage that existed.

The question of whether Terminix properly performed its obligation under the contract, the extent of the new termite damage, and the costs of repairs, are all questions of fact. Higdom v. Orkin Exterminating Company, Inc., 412 So.2d 720 (La. App. 3rd Cir.1982), cert. denied 416 So.2d 117 (La.1982); Maguire v. Masino, 325 So.2d 844 (La.App. 4th Cir.1975). Our jurisprudence is well settled that questions of fact are left to the trier of fact, and his findings should not be disturbed unless they are clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Maguire v. Masino, supra. The trial court was not clearly wrong in deciding that the evidence, taken as a whole, indicated that Terminix failed to perform properly its obligations under the contract. At the time of the inspection in February 1976, the Terminix inspector told Mrs. Rye of some active infestation and indicated that any existing damage did not require repair. Three years later, although continually under the Terminix protection plan, active infestation is discovered within a couple of weeks of a Terminix inspection declaring “no active termites” and “preventative treatment made”, and the termite damage now required repairs totalling over seven thousand dollars.

Concerning the timing element, if the damage occurred before the issuance of the protection plan, there could be no liability on the part of Terminix for that damage. Although Terminix produced some expert testimony alleging that the termite damage, at issue in this suit, represented many years of infestation suggesting that it existed prior to Terminix’s treatment, we find no manifest error on the part of the trial judge in concluding that such damage did not predate the initial Terminix treatment. The trial judge found it significant that upon the initial inspection by Terminix it was noted there was no structural damage under the front of the house nor the front porch. Yet, as mentioned above, three years later this same area of the house needed replacement of 66 feet of sills, weatherboards, porch decking, floor joists, fascia board, etc.

The award of quantum is a factual finding, which should not be disturbed unless it is clearly shown that the trier of fact abused his discretion. Higdon v. Orkin Exterminating Company, Inc., supra; See also: Reck v. Stevens, 373 So.2d 498 (La.1979) and cases cited therein. The general contractor who performed the repair work produced vouchers at trial to support his costs. The trial court accepted his testimony as reasonable and credible. The trial judge personally questioned him while he was on the witness stand, “Is there any possibility that you added anything else for other work on the house?” To which the witness responded, “If I did anything, I more than likely left something out.” The trial judge specifically rejected defendant’s contention that the repairs should have cost no more than $2,960.00. In his reasons for judgment the trial judge stated “... Defendant’s expert made a single inspection ... after repairs were completed. This estimate for repairs was limited to the cost of sill replacement, when it should have included flooring, fascia, joists, etc.” Upon close examination of the entire record we do not find that the trial court abused his discretion or was clearly wrong in awarding plaintiffs’ $7,734.08 for repairs.

Plaintiffs answered this appeal alleging error by the trial court for not awarding legal interest from July 5, 1979 and for not awarding attorney’s fees. The trial court awarded plaintiffs interest from the date of judicial demand. We find, that under the circumstances of this case, the trial court did not abuse his discretion in so awarding interest.

Concerning attorney’s fees, it is the well settled jurisprudence of Louisiana that as a general rule attorney’s fees are not allowed except where authorized by statute or agreed to by contract. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (La.1970); Rutherford v. Impson, 366 So.2d 944 (La.App. 1st Cir.1979), and cases cited therein; Dane v. Doucet Bros. Construction Co., Inc., 396 So.2d 418 (La.App. 4th Cir. 1981) and cases cited therein. Attorney’s fees are not allowable in an action for breach of contract unless there is a specific provision therefor in the contract. Maloney v. Oak Builders, Inc., supra; Rutherford v. Impson, supra. This is because the parties have an opportunity to stipulate in the contract that attorney’s fees would be due in the event the contract is breached. The parties having failed to expressly provide an obligation to pay attorney’s fees, the law will not imply one.

Plaintiffs argue that attorney’s fees are recoverable as damages by an injured party to a contract breached by the other party arbitrarily or capriciously, or through bad faith, lack of good faith or fraud. La. C.C. Arts. 1930 and 1934. Plaintiffs prayed for attorney’s fees in the trial court and were not awarded them by the trial judge. We interpret the trial court action as a finding of no bad faith on the part of the defendant. Our review of the entire record convinces us also, that there was no bad faith.

After a careful review of the entire record pursuant to the guidelines for appellate review of facts in civil cases as enunciated in Canter v. Koehring Company, supra, and Arceneaux v. Domingue, supra, we hold that the trial judge’s findings are not manifestly erroneous or clearly wrong. As such, the findings of the trial court will not be disturbed. The trial court’s judgment is affirmed. All costs are assessed to appellant.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Lee K. VORISEK v. Peggy Genevieve Weil VORISEK.
    No. 13212.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Amended and affirmed.

      Bernard Marcus, Patricia Maureen Joyce of Deutsch, Kerrigan & Stiles, New Orleans, for plaintiff-appellant.
    Philip R. Riegel, Jr. of Parlongue & Rie-gel, New Orleans, for defendant-appellee.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

Peggy Weil Vorisek filed a rule to fix post-divorce alimony. After a trial on the merits, the district court rendered judgment in favor of Mrs. Vorisek, awarding her six hundred dollars ($600.00) per month alimony. The trial court also ordered Lee Vorisek to provide his former wife with an automobile for her use, and the maintenance for the vehicle. Lee Vorisek appeals from this judgment, alleging the excessiveness of the award and the legal impropriety of certain items of expense. We amend the trial court’s judgment and affirm.

The sole issue on appeal is whether Mrs. Vorisek is legally entitled to post-divorce alimony in the amount of six hundred dollars ($600.00) per month, plus the use and maintenance of an automobile.

The facts are as follows:

Peggy Genevieve Weil and Lee K. Vori-sek were married on June 5, 1956. They have three children who have reached the age of majority and are attending college. The children are given voluntary support payments by their father, Lee Vorisek.

Mr. Vorisek and his former wife are major stockholders in a closely held package manufacturing corporation, known as CON PAC, Inc. Together they own 76% of the stock. Mr. Vorisek is the president of the corporation and earns approximately $36,-000 per year in gross income from the company which employs eighty people. As a result of his position with the corporation, Mr. Vorisek experienced many non-income financial benefits.

The former Mrs. Vorisek has a two year college education. She is employed by the jointly owned company and has been so employed for slightly over a year. She works only twenty (20) hours a week due to a physical disability. She testified that she suffers from a degenerative spinal condition. As a result of this condition she has undergone extensive surgery and experienced three (3) years of partial paralysis. She incurred medical bills in excess of $25,-000 and is being treated by Dr. Hyman Soboloff and Dr. Richard Levy for her condition. The former Mrs. Vorisek testified that she was under doctor’s orders not to work more than twenty (20) hours per week and had tried to exceed this limit, but could not, because she lost the use of her legs. Peggy Weil Vorisek takes home $368.40 wages per month, based upon a gross salary of $435.50 per month.

The former Mrs. Vorisek holds a real estate license; however, since her physical condition prevents her from climbing stairs, she has not engaged in the active real estate practice. She completed only two real estate transactions in the prior five years: the sale of her family home and the purchase of her current residence.

She has no other skills nor training. Although she took two courses in jewelry design, she does not have sufficient training to be employed in this trade.

The couple separated (physically) in November, 1974. A petition for divorce was filed August 8, 1977 on the basis that the couple had lived two years separate and apart. On September 19, 1977 a judgment of divorce was granted in which both parties were found to be free from fault.

On April 30, 1981 the family home was sold. Mrs. Vorisek realized slightly over $35,000 from the sale and a real estate commission of $1,950. She used the monies to purchase a condominium, located at 2712 Whitney Place, valued at $56,900. She currently resides at this location and pays a monthly mortgage note of $225.27.

Mr. Vorisek received $36,650 from the sale of the home. He paid off a bank loan of $13,500. He stated that he had not yet paid his attorney fees and he owed his company $2,400.

In addition to the family home, the couple owns a lot in Ascension Parish, which the defendant valued at $12,000 with a mortgage of $3,000. At the time of the hearing on this matter, Mrs. Vorisek was performing the background work needed in order to sell the lot.

Attempts were made, without success, to negotiate a settlement between them concerning the corporate stock.

On June 8; 1981, testimony was given in conjunction with the wife’s rule to fix alimony. Mrs. Vorisek stated that she owned her condominium at 2712 Whitney Place, some 5,600 shares of CON PAC, Inc. stock, her community interest in the lot in Ascension Parish and $6,000 in her checking account. She also earns $435.50 per month, gross income. She itemized her income and expenses for this hearing.

Mr. Vorisek stated that he owns an automobile, one-half interest in the Ascension Parish lot, the proceeds from the sale of his family home, and his interest in the CON PAC, Inc. corporation. He receives a gross monthly income of $3,000 per month, plus various non-income company benefits. He gave a detailed list of income and expenses which were admitted into evidence at the hearing.

The trial court considered the evidence, and awarded the wife $600 per month alimony, reasoning that the “total amount that she could possibly collect under the Code ... would be one-third of his total salary, anyway, of $36,000, which would be $12,000.”

The Louisiana Civil Code, Article 160, controls the award of alimony after divorce:

Art. 160. 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 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.
(Amended by Acts 1964, No. 48, § 1; Acts 1979, No. 72, § 1, eff. June 29,1979)

We must determine, therefore, whether the trial court violated the provisions of this Article when it made its award of alimony to the defendant.

Wife’s Means and Needs:

The appellant contends that the wife failed to prove that she had insufficient means for her support. He specifically points to the wife’s income, earning capacity and non-depleted assets in support of his position.

I. Wife’s Means:

The party seeking alimony has the burden of proving necessitous circumstances or insufficient means for their maintenance. Kean v. Kean, 388 So.2d 398 (La. App., 1st Cir., 1980); Moss v. Moss, 379 So.2d 1206 (La.App., 3rd Cir., 1980). “Means” includes capital and income. Loyacano v. Loyacano, 358 So.2d 304 (La., 1978); vacated, other grounds, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979); on remand, 375 So.2d 1315 (La., 1979) Guarisco v. Guarisco, 271 So.2d 553 (La.App., 1st Cir., 1973).

(a) Income

The appellant contends that his former wife had an average monthly income of $623.00. This amount is comprised of gross salary of $435.50, plus $25.00 interest income and $1,950 real estate commission. We cannot agree with this reasoning.

Mrs. Vorisek did receive gross earnings of $435.50 per month, however, the interest income and $1,950 real estate commission were not regular and reoccurring income to be computed as a fixed sum into her monthly total.

The interest income was interest earned on a checking account and as the balance decreased, so would the interest income.

The real estate commission was a one time earning from the sale of the family home. Moreover, the wife specifically stated that she was no longer engaged in the real estate practice, because she suffered a disability which prevented her from climbing steps.

These figures were properly not considered part of the wife’s regular monthly income. There is, however, no indication that these sums were not taken into consideration as an asset of the wife, when the court arrived at its final decision.

(b) Earning Capacity

The appellant next argues that the trial court failed to properly consider the wife’s earning capacity. He contends that the appellee failed to prove her inability to work more than twenty (20) hours a week and her inability to continue in the real estate trade.

Under Civil Code Article 160, the wife’s earning capacity is a proper consideration in awarding alimony. Noto v. Noto, 396 So.2d 486 (La.App., 4th Cir., 1981); White v. White, 393 So.2d 240 (La.App., 1st Cir., 1980). Although earning capacity is a consideration for awarding alimony, it is only one consideration, and taken alone, it is not a proper basis for rejecting an award of alimony. Super v. Super, 397 So.2d 1084 (La.App., 4th Cir., 1981), writ den. 399 So.2d 583. A mere refusal to work does not create a “need” for alimony, just as it does not create an inability to pay alimony, C.C. Art. 160, LeBlanc v. LeBlanc, 405 So.2d 1187 (La.App., 1st Cir., 1981).

The appellant relies upon the decision of Graff v. Graff, in establishing that the wife has not met her burden of proving that she is unable to work. 407 So.2d 70 (La.App., 4th Cir., 1981).

The Graff case, supra, is clearly distinguishable on its facts from the instant situation. In the Graff case, this Court noted “although she [wife] stated that she was under the care of a physician, she did not subpoena him to testify in regard to her physical condition and she admitted she has never even discussed her inability to work with him.” Graff v. Graff, supra at 72. In the present case, the trial judge stated: “I have listened to her sickness and illness and I do think she has the particular affliction that she is not able to really perform.” These findings are clearly supported by the record and no manifest error was committed in this regard.

Mrs. Vorisek testified that she had a degenerative spinal disease, which made her unable to climb stairs, thus she could not engage in her prior occupation as a real estate sales person. She also stated that she was under doctor’s orders not to work more than twenty (20) hours per week and that when she tried to do so she experienced loss of the use of her legs.

Accordingly, we find no error in the trial court’s finding and consideration of the wife’s earning capacity.

(c) Residence

Mr. Vorisek argues that his former wife should not be allowed the luxury of investing in non-income producing property.

A wife will not be required to sell her home and deplete the proceeds of the sale in order to be entitled to alimony. Sonfield v. Deluca, 385 So.2d 232 (La., 1980); Loyacano v. Loyacano, supra; Super v. Super, supra.

In considering this matter, the Supreme Court of Louisiana gave the following guidelines regarding asset depletion:

On the question of what extent of asset depletion, if any, should be required of a spouse before he or she may receive alimony, it is impossible to say what relative weight must be given to any one factor in a particular case. The court should instead apply a rule of reasonableness in light of all the factors named herein and any other circumstance relevant to the litigation. For example, in determining the rate at which a spouse may be required to deplete his or her assets, it may be pertinent to consider the mental and physical health of the parties, their age and life expectancy, the parties’ other financial responsibilities, the relative ability, education and work experience of the parties, and the potential effect of any contemplated depletion of assets upon the children of the marriage. The problem is of such a nature as to be insusceptible of solution by any exact formula or monetary index, and the court should proceed with great caution and due regard for the probable long range effects of any depletion contemplated.
Loyacano v. Loyacano, supra at 311.

That is, only when large sums are tied up in extravagant housing will the continued possession of the home be considered sufficient means to defeat alimony. Kean v. Kean, supra at 400.

In the instant case the trial court applied a rule of reasonableness and concluded that the wife was not in a position where she would have to sell her home in order to add to the amount of money she would be able to contribute to her support. The trial judge did not err in this finding.

The amount of money tied up in this house is not large by today’s standards. Moreover, considering the wife’s physical disability it is apparent that she is not in a position to again earn the money necessary to purchase a residence. Rather than rent a house or apartment and then make demand for increased alimony to offset the increase in rent, she purchased this home which may prove to be a wise investment. She is not subject to rent increases and she has a fairly moderate mortgage note. The arrangement will, thus, work to the plaintiff’s benefit. See: Sonfield v. Deluca, supra. The criteria is whether the wife has sufficient means, not whether she has some means for her maintenance. (Emphasis supplied)

Even considering the wife’s ownership of CON PAC, Inc., stock, her $6,000 checking account and interest earned thereon, her one-time income from the sale of her home, her residence and a jointly owned lot, which she is attempting to sell, we are not convinced that she has sufficient “means” for her maintenance.

II. Wife’s Needs

The appellant argues that certain expenses listed by his wife were erroneously considered, since some items which were listed were provided by the wife’s employer and other items were not legally permissible under Civil Code Article 160.

A spouse is entitled to obtain sufficient means for their maintenance. C.C. Art. 160. Loyacano v. Loyacano, supra, citing Smith v. Smith, 217 La. 646, 47 So.2d 32 (La., 1950).

“Maintenance” includes the basic necessities of life, such as food, clothing and shelter. Loyacano v. Loyacano, supra; Volker v. Volker, 398 So.2d 134 (La.App., 3rd Cir., 1981). Included under “maintenance” would be necessary transportation, auto expense, medical and drug expense, utilities, household expense and income tax liability resulting from the payment. Bernhardt v. Bernhardt, 283 So.2d 226 (La., 1963); Tracy v. Tracy, 388 So.2d 66 (La.App., 1st Cir., 1980).

“Maintenance” does not include newspapers, gifts, children’s allowance and dog care (Kean v. Kean, supra); nor does it include maid service (Tracy v. Tracy, supra; Meyers v. Meyers, 344 So.2d 451 (La.App., 2nd Cir., 1977)); recreation, pleasure trips and vacations (Tracy v. Tracy, supra; Moss v. Moss, 379 So.2d 1206 (La.App., 3rd Cir., 1980)); church contributions or tithes (Moss v. Moss, supra; Meyers v. Meyers, supra) nor does it include life insurance (Meyers v. Meyers, supra).

In this case, the newspaper, temple dues, life insurance and the maid would properly be excluded as items of expense for the wife.

Furthermore, transportation provided by her employer would be excluded from consideration.

It is unclear whether the trial court considered all or any of these expenses in arriving at its conclusion. Even assuming for the sake of argument that all of these items are to be disregarded, there are other expenses for maintenance for which the defendant does not have sufficient income, thus justifying the alimony award. The trial judge did not err in this regard.

Appellant also argues that the ap-pellee’s figures were not substantiated by receipts. It is worthy of note that none of the appellant’s expenses were so substantiated, and were this the sole test for acceptance, he would have none of his expenses considered. The acceptance of such expenses is an issue of credibility. The trial judge is in the best position to evaluate the witnesses and their testimony. In this case we find no abuse of that discretion.

Husband’s Means & Needs

Husband’s Means

The appellant contends that the trial court erred when it considered the husband’s gross earnings and the wife’s net earnings in computing alimony.

The gross pay is the proper figure to be considered for purposes of alimony. Roberts v. Roberts, 145 So.2d 669 (La. App., 4th Cir., 1962). A husband’s non-income benefits may also be considered in establishing his means. Vanier v. Vanier, 344 So.2d 1077 (La.App., 3rd Cir., 1977).

Apparently the trial court erroneously used the wife’s net salary in computing alimony. However, even considering the wife’s gross salary of $435.50 per month as against her husband’s $3,000 per month gross salary, plus his non-income company benefits, his salary less expenses greatly surpasses his wife’s salary less expenses.

Husband’s Needs

Appellant argues that the trial court erred in failing to take into consideration the support payment he voluntarily made to his major children.

A major child may petition for support, if he is in necessitous circumstances. C.C. Art. 229, Fisher v. Fisher, 320 So.2d 326 (La.App., 3rd Cir., 1975). A major child, who is in school, but capable of working, is not by the mere fact of his schooling, in need of support. Phillips v. Phillips, 339 So.2d 1299 (La.App., 1st Cir., 1976), Dubroc v. Dubroc, 284 So.2d 869 (La.App., 4th Cir., 1973). Minors are not required to prove their need, as are majors, in order to secure support. C.C. Arts. 227, 230.

In this case the three children are majors and are in college. They may properly petition the court and prove their need for support. The father’s responsibility is best stated in Phillips v. Phillips, supra at 1301:

While we might be inclined to think a father worthy of the name will always generously support and encourage his child’s reasonable educational ambitions, the law wisely leaves his generosity as a matter between him and his own conscience. The law declines to force a parent to contribute to his adult child’s education or to give support to his adult child who is capable of self-support.

Accordingly, the trial court did not err in refusing to consider the husband’s voluntary payments to his major children as being expenses for purposes of determining alimony.

Finally, the husband argues that the trial court erred in failing to consider the financial set backs of the CON PAC company, in determining the alimony award.

To the extent that the company’s problems impacted upon Mr. Vorisek’s salary, they were considered. These set backs could not be otherwise considered, as the corporation is an entity separate and apart from its officers and stockholders.

Conclusion

The trial court judge has great discretion in the area of domestic relations. See: Kean v. Kean, supra. He has much discretion to allow and fix the amount of alimony. Loyacano v. Loyacano, supra.

A review of the record does not convince us that the trial judge committed manifest error when he awarded the defendant alimony after divorce in the amount of $600 per month. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1979).

We do, however, amend the judgment insofar as it required the plaintiff to furnish his former wife with a vehicle and maintenance. The husband is thus relieved of this personal obligation during such time as this item of expense is being provided by the defendant’s employer, CON PAC, Inc.

For the reasons assigned, the judgment is amended to provide that the plaintiff shall be required to provide the defendant with a vehicle and maintenance only at such times as these items are not provided by her employer, CON PAC, Inc. In all other respects the judgment is affirmed. The costs of this appeal are assessed against the appellant.

AMENDED AND AFFIRMED.

      . Mr. Vorisek testified that in 1979 his earned gross income was $46,685. He stated that he was forced to take a ten percent (10%) cut in salary in fiscal year 1981, because the company had experienced a quarter of a million dollar loss the year before.

      . The company pays rent on one apartment which the plaintiff occupies, it provides him with a car in New Orleans, pays for his business related travel, a membership at the Monroe Racket Club, a table at the symphony, tickets to the Saints’ games, his business telephone calls, business meals, lodging, gifts and provides various insurance coverage.

      . See attached addendum for an itemization of income and expenses.

      . See attached addendum for an itemization of income and expenses.


text:
    Irma URBINA v. ALOIS J. BINDER BAKERY, INC. and Liberty Mutual Insurance Company.
    No. 13309.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.

      Carlos E. Zeledon, Antonio L. Carbonell, New Orleans, for plaintiff-appellant.
    Borello & Huber, Marsha B. Healy, Me-tairie, for defendants-appellees.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiff appeals from the dismissal of her suit for workmen’s compensation following an on the job accident which occurred while she was employed by defendant, Alois J. Binder Bakery, Inc. We reverse the dismissal and render judgment.

Mrs. Urbina is a forty-four year old Spanish-speaking woman, with a sixth grade education that she received in her native Honduras. She has been in this country for twenty years. Plaintiff is an unskilled worker who has performed various jobs for a variety of employers over the last ten years prior to the accident involved in this case.

On July 14,1976, Mrs. Urbina slipped and fell while working in defendant’s bakery. Plaintiff’s left arm hit a piece of machinery and she landed in a seated position on a carpeted portion of a concrete floor.

During the week following the fall Mrs. Urbina’s arm was bruised and she complained to a co-worker that her arm hurt. She also complained of lower back pain. She continued her regular work schedule until August 21, 1976, however, she did not return to work thereafter.

On August 23, 1976, Mrs. Urbina saw Dr. Barnes a gynecologist, who was her regular physician. She had last seen him on June 30th, fourteen days before her fall. Normally she visited Dr. Barnes at six-month intervals for a regular check up and received treatment from him for hypothyroidism, uterine retroversion, hormonal imbalance, obesity and peripheral neuritis. On this visit she complained of pain in her left arm and right leg. Dr. Barnes began treating the plaintiff for acute myositis, which treatment consisted of therapy, medications and heat. He examined her again on September 1st and observed no progress. He, therefore, referred her to Dr. Joseph Lic-ciardi, an orthopedic surgeon.

Dr. Licciardi saw Mrs. Urbina on September 7,1976 at which time she complained of low back pain. X-rays showed some physical evidence of nerve root irritation on the right side, which the doctor called sciatica. Dr. Licciardi saw Mrs. Urbina again on November 12,1976, at which time his examination revealed some pressure on the nerve in the right leg for which he recommended she wear a corset. The doctor’s impression at this time was that Mrs. Urbina may have a degenerative disc disease.

Dr. Licciardi saw Mrs. Urbina again on December 1st, at which time she had not yet gotten the corset. He observed involuntary muscle spasm in her back and he again recommended a corset. He saw her again on December 15,1976. She had been wearing a corset and she was better. The doctor recommended that she continue wearing the corset and return in two weeks. She did not do so, and the next occasion that Dr. Licciardi had to see her was on April 2, 1978, in the hospital, while she was under the care of Dr. McCurley. On this occasion Dr. Liceiardi’s examination revealed no muscle spasm; the plaintiff’s left shoulder and hips were normal; and there were negative results on the neurological test, x-rays and myelogram. With no objective findings, it was the doctor’s impression that plaintiff had chronic low back pain of the right sciatica and painful left shoulder. He suggested a corset, bed rest, and heat. He did not see Mrs. Urbina again.

Mrs. Urbina first saw Dr. McCurley, an internist, on December 22, 1976, at which time she gave a history of the fall and related an experience of sudden pain in the lower back, and pain radiating down the posterior aspect of the right leg to her right foot and toes. On this first examination Dr. McCurley found localized tenderness of the left shoulder and localized tenderness of the 4th and 5th lumbar interspaces. He found a reduction of range of motion in the left shoulder and the left lumbar spine. The neurological examination revealed no impairment of tendon reflexes and no loss of sensation. Dr. McCurley concluded that Mrs. Urbina had a herniated disc in the lower back and tendonitis in the left shoulder.

Mrs. Urbina continued to complain of back pain so Dr. McCurley hospitalized her from July 31,1977 to August 20,1977. She underwent an extensive workup, all tests being essentially normal, except that x-rays of the lumbar and cervical spine showed osteoarthritis. Dr. McCurley’s professional opinion was that Mrs. Urbina had an osteo-arthritic condition on July 14, 1976, at the time of her fall, and that the fall converted the asymptomatic osteoarthritis condition into a symptomatic one.

While hospitalized, Mrs. Urbina was seen also by Dr. Kline, a neurosurgeon. Dr. Kline found tenderness in the back of the neck and in the lumbrosacral region. He decided that Mrs. Urbina may have a herniated disc at L4, L5, and also cervical arthritis. He recommended conservative treatment.

Mrs. Urbina was discharged from the hospital on August 20,1977, to be treated as an out patient by Drs. Kline and McCurley. The next time Dr. Kline saw her, however, was on March 26,1978, when she was again hospitalized by Dr. McCurley. She was hospitalized from March 24, 1978, to April 4, 1978. During this stay she was seen by Dr. McCurley and Dr. Kline, and also by Dr. Russo, an orthopedist, Dr. Hull, a rheuma-tologist, and Dr. Cary, a neurosurgeon whom Dr. Kline had recommended to be called in on consultation. Dr. Russo and Dr. Hull both felt that Mrs. Urbina had osteoarthritis. A myleogram failed to show a herniated disc in the lumbar area.

Following discharge from the hospital, plaintiff continued to see Dr. McCurley on an out-patient basis. She saw him in June, July, August, October, November and December, 1978, and in January and March of 1979. During these times she continued to complain of pain in the lumbar spine. As a result Dr. McCurley considered her to be 50% partially disabled and 50% permanently disabled.

Mrs. Urbina was also examined by Dr. Stokes on March 2, 1977. To him she complained of upper left extremity pain and lower back pain. Dr. Stokes’ examination revealed no objective clinical findings and no mechanical basis for the continued pain. His opinion was that on March 2,1977, Mrs. Urbina was able to work in an unrestricted manner. His notes indicated that x-rays revealed no evidence of arthritic condition, either of the spine or the left upper extremity; there were no degenerative changes shown by the x-rays; there were no objective or neurological problems evident suggestive of difficulty with a disc; EMG and nerve conduction studies performed at the hospital were found to be within normal limits.

Dr. Stokes was of the opinion that if Mrs. Urbina had a pre-existing osteoarthritic condition which had been aggravated by a fall in July of 1976, and if she was still symptomatic from that condition, then she would have had a restricted range of motion and would not have been able to touch her toes or execute the various maneuvers he put her through on March 2, 1977. He was convinced that there was no arthritis when he examined Mrs. Urbina on March 2, 1977.

This case was tried before a commissioner. In his report to the trial judge the commissioner set out his findings, conclusions and recommended judgment. The commissioner found that plaintiff did have a work related accident. He then weighed and evaluated the expert medical testimony and concluded that plaintiffs disability was not caused by the work related accident reasoning “that plaintiff failed to prove by a preponderance of the evidence that her disability resulted from a work related accident.” The commissioner, consequently, recommended that plaintiff’s suit be dismissed. The trial judge adopted the commissioner’s findings and conclusions and rendered the recommended judgment.

Appellant argues that the trial court erred in failing to apply a legal presumption that plaintiff’s disability resulted from a work related accident, and that the burden of proof shifted to defendants to prove that the employee’s disability was caused by something other than the accident. Appel-lee answered the appeal founding its argument on the principle that the trier of fact has much discretion in weighing and evaluating the testimony and the exercise of that discretion, based upon findings of fact, must not be disturbed absent abuse or manifest error. As to the presumption referred to by appellant: “Appellees argue that a presumption is a legal extra poundage in the weighing of a totality of evidence.”

As noted above, Mrs. Urbina suffered from a number of medical problems for which she had been receiving treatment prior to her fall in July, 1976. She had never complained to her regular physician, Dr. Barnes, of any low back pain. Nor had she experienced any difficulties which had caused her to miss work. At trial the parties stipulated that prior to July 14, 1976, her work attendance record had been perfect. As far as concerns her working activity, Mrs. Urbina had exhibited a healthy condition.

Mrs. Urbina’s work related activities represented relatively light duty jobs. She would pack and tray bread and doughnuts. Then she would carry the trays, weighing approximately ten pounds, and place them in the racks for the delivery truck drivers. Placing the trays in the racks involved some lifting, bending and stooping.

After the fall on July 14, 1976 plaintiff began to experience pain which she claims caused her to discontinue working. Mrs. Urbina complains that her condition progressively worsened to the point that by the time of trial she could no longer lift, bend, stoop or have prolonged sitting periods without experiencing pain.

In the recent case of Guillory v. United States Fidelity and Guaranty Insurance Company, 420 So.2d 119 (La.1982), the Louisiana Supreme Court set out “the legal principles related to the Louisiana scheme of workers’ compensation,” as follows:

“1) Clearly a worker’s pre-existing condition does not bar his recovery under the Louisiana Workers’ Compensation statute. Guidry v. Serigny, 378 So.2d 938 (La.1979); Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975) ...Allor v. Belden Corp., 393 So.2d 1233 (La.1981).
2) The accident need not either cause or aggravate the disease which is the cause of the disability, nor adversely change a particular organ or organs of the body....
3) Where there is proof of an accident and of the following disability without any intervening cause it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability. Allor, supra. The criterion for causal connection between the accident and the disability is: ‘has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment?’ Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 at 827 (1969).
4) The presumption referred to in number three above is rebuttable. Its effect is to shift the burden of proof to the defendant. The defendant bears the burden of coming forward with enough evidence to rebut the presumption. Allor, supra; Haughton v. Fireman’s Fund American Ins. Co., 355 So.2d 927 (La.1978).
5) The ultimate determination concerning disability under the worker’s compensation statute is by the courts, not the medical experts. The courts apply legislative definations to the medical science in order to achieve an equitable and just result. Bertrand, supra [221 So.2d] at 828. ‘Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the Court, based on all the credible evidence.’ Haughton, supra at 928.”

For additional discussion of these principles, see also: Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.,1981), and on rehearing, August 4,1981; Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982); Lindsey v. H.A. Lott, Inc., 387 So.2d 1091 (La.1980); Clofer v. Pratt Farnsworth, Inc., 407 So.2d 1295 (La.App.4th Cir.,1982).

Considering the facts of this case as found by the Commissioner and the legal principles enunciated above, we find the following.

1) Before July 14, 1976, Mrs. Urbina was not disabled and had a perfect work attendance record.

2) She suffered a work-related accident, the fall on July 14, 1976.

3) Following the accident she experienced pain and discomfort and eventually she was disabled from performing her regular work duties by virtue of the pain she experienced when lifting, bending, stooping or sitting for prolonged periods.

4) Her disability is presumed to have been caused by the accident.

5) Defendant did not rebut the presumption. Medical testimony presented the possibility that something other than the accident could have changed an asymptomatic osteoarthritic condition into a symptomatic condition. This possibility, however, does not carry the burden which shifted to the defendant to prove that plaintiff’s disability was caused by something other than the accident.

We therefore find that plaintiff’s disability was caused, at least in part, by the fall she suffered on July 14, 1976.

We now must determine the extent of disability and the amount of the benefits to be awarded.

From a careful review and examination of the entire record we find plaintiff partially disabled. Under R.S.23:1221(3) she is entitled to receive sixty-six and two-thirds per centum of the difference between the wages she was earning at the time of the accident and any lesser wages earned by her thereafter for a period not to exceed four hundred weeks. The record shows that plaintiff’s hourly wage was $3.00 at the time of the accident and that she is not currently employed. The average weekly wage would amount to $120.00, computed on a forty hour work week. See: La.R.S. 23:1021(7). Plaintiff is, therefore, entitled to weekly compensation benefits amounting to $80.00 for four hundred weeks.

Under La.R.S.23:1203 the plaintiff’s employer is liable for all necessary medical, surgical and hospital services, and medicines. Evidence produced at trial showed plaintiff’s past medical expenses, none of which were traversed as being unnecessary, totaled six thousand one hundred seventy-three and 73/100 ($6,173.73) dollars. Plaintiff, therefore, is entitled to reimbursement for medical expenses totalling $6,173.73.

We find that the penalties and attorney fees provided in La.R.S.23:1201.2 and as prayed for by plaintiff are not warranted in this case. The evidence adduced at trial does not allow for a clear determination of when defendant became aware that plaintiff had suffered an accident. Further, the circumstances of this case exhibit a genuine dispute between the parties concerning the compensability of plaintiff’s claim. Defendants’ failure to commence paying benefits within sixty days under these circumstances was not arbitrary, capricious or without probable cause. See: Freechou v. Hooley, 413 So.2d 238 (La. App.,4th Cir.1982).

For the reasons assigned the judgment of the trial court is reversed and judgment is rendered in favor of plaintiff, Mrs. Irma Urbina, and against defendants, Alois J. Binder Bakery, Inc., and its insurer, Liberty Mutual Insurance Company, for weekly compensation benefits for partial disability, at the rate of eighty ($80.00) dollars for four hundred weeks, minus any lesser wages which Mrs. Urbina actually earns in any week during the four hundred weeks in any gainful occupation for wages, and for past medical expenses totalling six thousand one hundred seventy-three and 73/100 ($6,173.73) dollars reserving to plaintiff her right to claim future medical expenses as they become due. Costs are assessed against the defendants.

REVERSED AND RENDERED.


text:
    Jules Joseph SEYMOUR v. Deborah Walter, wife of Jules Joseph SEYMOUR. Deborah Walter SEYMOUR v. Jules J. SEYMOUR.
    Nos. 13289, 13290.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.

      Winifred M. Delery, New Orleans, for appellant.
    Patricia R. Vincent, New Orleans, for ap-pellee.
    Before GULOTTA, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Jules Joseph Seymour appeals from a judgment by the district court which awarded his wife, Deborah Walter Seymour, a separation a mensa et thoro, custody of the two minor children, use of the family home and child support of $400 per month. We affirm the judgment of the district court.

The issues on appeal are: (1) Was the trial court correct in granting the wife a judgment of separation, and, (2) in awarding the wife custody of the chidren and possession of the family home?

The facts are as follows: Jules Joseph Seymour and Deborah Walter were married on October 11, 1969. They had two children: Danille who was ten years old and Jules who was 11 years old. Mr. Seymour did not work. He received a medical retirement from the government for his 100% disability due to injuries sustained in the Viet Nam War. Part of his disability was mental and he underwent psychiatric treatment through the Veterans Administration and the Pontchartrain Mental Health Facility. The husband received a government pension, which consisted of $1,154 per month from the Veterans Administration and $597 per month from the Post Office. When his wife was working Mr. Seymour took care of the house and children. He had performed these duties five years. Mrs. Seymour was employed and she earned $1,010 per month. During the marriage the Seymour family resided at 7347 Hickman Avenue, New Orleans. The family home was spacious and comfortable, and each child enjoyed a separate bedroom. The children were in the fifth and sixth grade and they attended school in the vicinity of their family home.

The marriage of Mr. and Mrs. Seymour was affected by Mr. Seymour’s violent outbursts, during which he would threaten and strike his wife, physically abuse his son and make sexual threats against his daughter.

Mr. Seymour had a drinking problem for which he underwent antibuse treatment at the request of the Veterans Administration.

On at least three occasions the police had been called upon to render assistance when Mr. Seymour reacted in a violent manner.

On April 21, 1981 Mrs. Seymour left the family home. Her husband had been drinking and he beat her. She called the police who took her husband to the Veterans Administration Hospital. She went to the YMCA’s Battered Women’s Clinic and spent the night at her father’s house. She then spent a couple of weekends at the house with her husband but moved out again in June, 1981. She has not returned, even though her husband requested her to do so on several occasions.

She moved herself and her children into her mother’s three bedroom apartment in the Desire Project. There, the children were cared for by their mother and grandmother.

The children continued to attend the school located near their home on Hickman Street. The children go to school an hour after their mother must be at work and they leave school an hour before she leaves work. Therefore, the children must be transported to their father’s residence before school and picked up from there in the evening after school.

Following the couple’s physical separation, Mr. Seymour continued to drink to excess, verbally abuse and threaten his wife, and engage in physical displays of violence.

On July 7, 1981 Jules Seymour filed suit for separation on grounds of his wife’s abandonment. (Doc. No. 81-10694) On the same day, Deborah Walter Seymour, filed suit for separation on the grounds of cruel treatment and habitual intemperance (Doe. No. 81-10797). The cases were consolidated. On July 29, 1981 the parties entered a consent judgment wherein Mrs. Seymour was granted child custody and child support of $400 per month. Mr. Seymour was given regular visitation rights. The injunction against harassment and alienation of community property was given mutual effect.

After a trial on the merits the district court, without written reasons, granted Deborah Walter Seymour a separation a mensa et thoro, custody of the two minor children, use of the family home and child support of $400 per month. The court dismissed Mr. Seymour’s suit for separation and his rule which had requested a change of custody and termination of child support. Likewise, the court dismissed the wife’s rule for alimony pendente lite and her request for an increase of child support.

Separation:

Mr. Seymour contends that he should have been granted a legal separation on the grounds of abandonment. He reasons that his wife left the matrimonial domicile without cause, in that she had reconciled with him after her grounds for leaving had been established.

Separation from bed and board may be claimed due to the “abandonment of the husband by the wife or the wife by her husband.” C.C. Art. 138(5). Abandonment is to be proved, as any other fact in a civil suit. C.C. Art. 145. Meche v. Meche, 410 So.2d 1174 (La.App., 3rd Cir., 1982). In order to prove abandonment, one must show that the other party left the matrimonial domicile, without lawful cause, and that they have constantly refused to return to live with the other party. C.C. Art. 143. Meche v. Meche, supra.

The record clearly reveals that the wife left the matrimonial domicile in April and June, 1981 and that she refused to return to live with her husband. Therefore, the final consideration is whether Mrs. Seymour left with lawful cause.

Mrs. Seymour contends that she left the matrimonial domicile with legal cause because of her husband’s cruel treatment and habitual intemperance. Her husband counters with the allegation that his wife has only shown one incident of cruel treatment, which occurred in April, 1981 when he became drunk and beat her. Further, he argues that the couple reconciled after this incident, and thus his wife is precluded from using this incident as a grounds for separation.

A party may claim a separation from bed and board “on account of habitual intemperance of one of the married persons or excesses, cruel treatment or outrages of one of them toward the other, if such habitual intemperance or such ill-treatment is of such a nature as to render their living together insupportable.” C.C. Art. 138(3). Even a single instance of cruel treatment may be sufficient to justify a separation from bed and board. Gilberti v. Gilberti, 338 So.2d 971 (La.App., 4th Cir., 1976), citing DeJoie v. DeJoie, 224 La. 611, 70 So.2d 398 (La., 1954).

For a person to live in fear of bodily harm is such cruel treatment as to render living together insupportable. DeJoie v. DeJoie, supra.

In April, 1981 Mrs. Seymour had legal cause to leave the matrimonial domicile. The record is replete with testimony concerning Mr. Seymour’s habitual intemperance and acts of cruel treatment, in striking his wife on numerous occasions, in abusing his children, of cursing and threatening his wife.

Therefore, the question becomes whether or not Mrs. Seymour had lawful grounds for leaving the matrimonial domicile in June of 1981. Stated another way, what, if any, effect did the cohabitation of the couple have on Mrs. Seymour’s grounds for separation based on cruel treatment and habitual intemperance?

Cohabitation, after cruel treatment, is usually construed as reconciliation. See: Gilberti v. Gilberti, supra. However, reconciliation is an issue of fact, to be determined on a case by case basis, after considering the totality of the circumstances of the case and all the activities of the parties. Jordan v. Jordan, 394 So.2d 1291 (La.App., 1st Cir., 1981); Millon v. Millon, 352 So.2d 325 (La.App., 4th Cir., 1977). While sexual intercourse constitutes strong evidence that the relationship has resumed, proof of one act or of several isolated acts of sexual intercourse is not necessarily conclusive of the issue of reconciliation. Millon v. Millon, supra; Halverson v. Halverson, 365 So.2d 600 (La.App., 1st Cir., 1978). In order to establish a reconciliation which will break the continuity of a period of separation or constitute a condonation or forgiveness of past behavior, the overall circumstances must show a mutual intention by the parties to resume their marital relationship. Jordan v. Jordan, supra; Halverson v. Halverson, supra. A reconciliation shall extinguish the action for separating but a new action may be brought for causes arising since the reconciliation, and the former motives may be used to corrobate his new action. C.C. Art. 153. Gibbon v. Gibbon, 337 So.2d 298 (La.App., 2nd Cir., 1976).

In this case, the trial judge apparently found that the husband had not proven the couple’s reconciliation. We agree with such a finding. Although there was evidence that the husband and wife cohabited after their separation in April and before their separation in June, 1981, the record is devoid of evidence which would establish the mutual intent of the parties to resume married life. Isolated acts of sexual intercourse, without more, is insufficient to establish reconciliation.

The record reveals that Mrs. Seymour clearly proved that her husband’s cruel treatment and habitual intemperance rendered their living together insupportable. Thus, Mrs. Seymour had lawful cause to leave the family home. The trial judge was in the best position to determine which party was to be awarded the separation and he did not err in awarding Deborah Walter Seymour a judgment of separation.

Child Custody and Occupancy of Family Home:

The trial court awarded Deborah Walter Seymour the custody of the two minor children of the marriage and use of the family home.

Jules Seymour argues that he is in the best position to care for the children because his disability status enables him to be at home regularly. He further contends that he has in fact cared for the children more than his wife. He reasons that he should have the possession of the family home in order to raise the children.

The trial court’s decisions regarding custody matters are afforded great weight and, thus, will be overturned only when there is a clear abuse or discretion. Bordelon v. Bordelon, 390 So.2d 1325 (La., 1980); Cleeton v. Cleeton, on rehearing, 383 So.2d 1231 (La., 1980). The sole criterion for determining child custody (and visitation) is the best interest of the child. C.C. Art. 157. Bordelon v. Bordelon, supra; Cleeton v. Cleeton, supra; Tusson v. Price, 403 So.2d 1265 (La.App., 4th Cir., 1981). Some factors to be considered in awarding custody are: the stability of the child’s environment (Bordelon v. Bordelon, supra) and the degree of continuous care and affection between the parent and child. Nale v. Nale, 409 So.2d 1299 (La.App., 2nd Cir., 1982); Thornton v. Thornton, 377 So.2d 417 (La.App., 2nd Cir., 1979).

The custody of the children was awarded to their mother. Considering all the circumstances surrounding the custody of these children, we find that the trial court did not abuse its discretion.

Although their father had a little more time to care for the children, his propensities for excessive drinking and violent outbursts, plus his past incidents of abuse towards the children militated against an award in his favor. The custody award to the mother was in the best interests of the children and would provide them with the stability of environment and continuity of care and affection they needed.

Moreover, it was in “the best interest of the family” that the wife have possession of the family home in which to care for the children. R.S. 9:308. For a number of years the children had lived in this home, attended a school in the area and had been reared in this environment. The alternative to the wife’s possession of the family home was that the children would live, as they had for a brief period, with their mother and grandmother in the Desire Project. This would not be in the best interest of the family.

Witness Testimony:

The appellant argues, without authority, that the trial court erred when it allowed a New Orleans Police Officer to testify. The appellant reasons that since a police item number of the alleged incident was not offered, the policeman should not have been allowed to testify.

The trial judge is vested with much discretion in accepting or rejecting testimony and unless his decision is found to be clearly wrong, it will not be disturbed on appeal.

The fact that the police officer investigated a domestic incident concerning Mr. Seymour was admissible evidence which was relevant to the issue of child custody. The fact that he testified solely from memory and his testimony was not corroborated by a written report went only to the credibility or weight of his testimony. The trial judge did not err in allowing the police officer to testify.

Written Reasons for Judgment:

Finally, the appellant argues that the trial court erred when it failed to give written reasons for judgment, when a timely request was made for the reasons.

The Code of Civil Procedure, Article 1917, addresses the issue of when written reasons for judgment shall be provided. This codal article states:

“In all appealable contested cases, other than those tried by a jury, the court when requested to do so by a party shall give in writing its findings of fact and reasons for judgment, provided the request is made not later than ten days after the signing of the judgment.
In nonjury cases to recover damages for injury, death or loss, whether or not requested to do so by a party, the court shall make specific findings that shall include those matters to which reference is made in Paragraph B of Article 1811 of this Code. These findings need not include reasons for judgment.”
Amended by Acts 1979, No. 431, § 3, eff. Aug. 1, 1980, No. Ill, § 1, eff. Aug. 1, 1980, No. 112, § 1, eff. June 26, 1980.

The Court of Appeal cannot review evidence that is not in the record, nor can it receive evidence so as to supplement the record. See: Good v. La. Commission on Governmental Ethics, 370 So.2d 123 (La. App., 1st Cir., 1979), writ. den. 371 So.2d 836 (La., 1979). The appellant supplements his brief with a letter which was allegedly presented to the judge for written reasons.

Since the letter is not a part of the record, we are powerless to consider the document offered by the appellant to support his position that he made a timely request for written reasons for judgment. Moreover, where the trial judge fails to comply with a timely request for written findings of fact and reasons for judgment under Code of Civil Procedure, Article 1917, the proper remedy for the aggrieved party is to apply for supervisory writs or move for remand of the case for the purpose of requiring the trial judge an opportunity to comply with the request. Brocato v. Broca-to, 369 So.2d 1083 (La.App., 1st Cir., 1979). In this case appellant has neither applied for supervisory writs nor requested a remand of the case.

Conclusion:

The trial court did not commit error in granting Deborah Walter Seymour a separation a mensa et thoro, the custody of her minor children and possession of the family home.

For the reasons assigned, the judgment of the District Court is affirmed. Costs are assessed against the appellant.

AFFIRMED.


author: LOBRANO, Judge.

text:
    Albirtha NOBLE and Welton Noble v. Catherine D. COLEMAN.
    No. 13296.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    James A. Dunn, Jr., New Orleans, for defendant/appellant.
    Raymond A. McGuire, New Orleans, for plaintiffs/appellees.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

This is a suit by the lessors, Albirtha and Welton Noble to evict their tenant, Catherine D. Coleman, for nonpayment of rent. From a judgment ordering defendant to vacate the premises this appeal has been taken.

Appellees, (the “Nobles”) and Appellant (“Coleman”) executed a written lease contract on September 30, 1981, under the terms of which the Nobles, as lessors, agreed to lease to Coleman, lessee, Apt. No. A at 5116 Clara St. in New Orleans, Louisiana for use as a private residence. The lease contained the following provisions:

(1) “This lease is made for and in consideration of a monthly rental of Three Hundred Fifty and No/100 ($350.00) Dollars per month, payable at a rate of One Hundred Seventy Five and No/100 ($175.00) Dollars on the 9th and the 23rd of each and every month at any place Lessor designates.”
* * * * * *
(2) “The failure of Lessor to insist upon the strict performance of the terms, covenants, agreements and conditions herein contained, or any of them, shall not constitute or be construed as a waiver or relinquishment of the Lessor’s rights thereafter to enforce any such terms, covenants, agreements and conditions, but the same shall continue in full force and effect.”
* * * * * *
(3) “In the event Lessee becomes more than four (4) semi-monthly payments in arrears, the option to purchase is automatically cancelled and Lessee shall have no claim against Lessor for past rental payments and Lessee shall vacate the premises.”

Appellant argues that under the lease provisions appellee was precluded from evicting lessee unless more than (4) semimonthly payments were in arrears. In their brief appellant states “No evidence was introduced to establish that appellant on her own accord missed four semi-monthly payments.” To the contrary, appellees point out that appellant corroborated their testimony when she specifically referred to a letter dated April 23, 1982 in which she wrote to the appellees wherein she stated that she was enclosing two money orders for $175.00 each for rental payments due on March 9th, and March 23rd, and that she would attempt to catch up with her “rent” that is in arrears no later than May 16, 1982.

At the outset we note that there is no transcript of testimony in the record of this matter, and therefore must rely on the pleadings and argument of counsel. Appel-lee argues that appellant was in arrears with the rent and therefore was under no obligation to accept late payments. The trial court apparently agreed with this contention, and we must agree.

The paragraph in the lease agreement referred to by appellant about the necessity of four (4) semi-monthly payments being in arrears pertains to the “option to purchase” clause as being “automatically cancelled”. That paragraph specifically reads that the “option to purchase” is cancelled, and has nothing to do with being in default of the lease because of non-payment of rent.

La. Civil Code Art. 2710 declares in part that: “The lessee is bound: ... (2) to pay the rent at the terms agreed upon.” Civil Code Art. 2712 further provides that “The lessee may be expelled from the property if he fails to pay the rent when it becomes due.”

Appellant argues that she attempted to make payments but they were refused by appellee. Appellees argue they were not obligated to accept the rent once it was in arrears, and apparently the trial court agreed with this contention.

There is a well established rule in the jurisprudence that where a lessor customarily accepts late payments from his tenant, such action on his part alters the original understanding as to punctuality of payment. Briede v. Babst, 131 La. 159, 59 So. 106 (1912); Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926 (1908); Raytheon Manufacturing Company v. Jack Neilson, Inc., 196 So.2d 675 (La.App. 4th Cir.1971). However, such indulgences on the part of the lessor must be proved in order to prevent strict enforceability of the lease payment provisions. And of course, the “acquiescence by custom” rule does not apply to one who fails to pay the rent altogether. Touchet v. Huval, 391 So.2d 28 (La.App. 3rd Cir.1980).

Either the trial court found that no rent had been paid, or that appellant failed to establish a custom by appellees of accepting late payments. In either instance we find no manifest error, and must affirm.

AFFIRMED.


text:
    Bertha Palazzo, wife of/and J. Huey MATHERNE v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 13292.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Writ Denied Jan. 28, 1983.

      William H. Boustead, New Orleans, for defendant/appellee.
    Dale C. Wilks, New Orleans, for plaintiff/appellant.
    Before SCHOTT, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

Plaintiff-appellant, Bertha Palazzo Math-erne, instituted this suit for damages against defendant-appellee New Orleans Public Service (NOPSI), and its employee Eugene C. Temple, Sr., for injuries she received while a passenger on a bus owned by NOPSI and operated by Temple.

Appellant boarded the Express 81 bus at Metairie Road and Canal Street sometime prior to 9:00 a.m. on July 20, 1978. It had been raining heavily and the bus floor was wet from the clothing and umbrellas of other passengers boarding the bus. As the bus approached the corner of Canal and St. Charles Ave., appellant rang the buzzer and proceeded to rise from her seat and walk towards the front exit door of the bus. She did so prior to the bus coming to a complete stop. As the bus was slowing appellant lost her footing on the wet floor and fell. The braking of the bus caused appellant to slide down the aisle towards the front of the bus. As her body slid forward, her right foot caught in the framework of one of the seats causing her foot to fracture. The New Orleans Police were called to the scene and an accident report was prepared. The bus driver subsequently drove appellant to the corner of Canal and Royal Streets in close proximity to her place of employment. Appellant had pain in her foot but she was not aware her foot was fractured at the time of the accident. While at work, her foot began to swell and hurt. Later that evening she was taken to Baptist Hospital where her foot was x-rayed and found to be fractured. On July 31, 1978 while she was recuperating from the injury, appellant began feeling pain in her chest and contacted her cardiologist, Dr. Louis Levy, II. A lung scan detected a pulmonary embolism lodged in appellant’s lung due to immobilization of her right foot. Appellant was placed in critical condition at St. Charles General Hospital until the embolism dissolved. She was subsequently discharged on August 17, 1978. She was not able to return to work until October 9, 1978. On June 8, 1979, appellant filed suit against NOPSI and Eugene C. Temple, Sr. for the injuries she sustained as a result of the accident of July 20, 1978. After a judge trial, the court rendered judgment for appellee (NOPSI) finding no negligence on the part of the bus operator.

Appellant contends that the trial judge failed to consider the totality of the evidence and failed to apply the correct “duty of care” standard applicable to NOPSI as a public carrier. Appellant argues that the trial court failed to address the “duty of care” standard of common carriers in his reasons for judgment, and thus erred in his application of the evidence. After review of the record, we find no manifest error in the trial court’s finding and therefore affirm.

The law of this state as it pertains to the “duty of care” owed by a common carrier is clear. A common carrier owes a duty to its passengers to see that they reach their destination safely. Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979). As Justice Blanche stated:

“We hold that the mere showing of an injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself of negligence.” Id at 85.

Because NOPSI is engaged as a common carrier operating a public conveyance, it owes a special duty to its fare paying passengers, and there is a presumption that NOPSI has breached its duty when a fare-paying passenger is injured. This presumption shifts the burden to NOPSI to exculpate itself from any negligence. As was succinctly expounded in Davis v. Owen, 368 So.2d 1052 (La.1979):

“Because plaintiffs were fare-paying passengers on a public conveyance and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence. As this Court stated in Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963);
******
The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.
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A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.
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The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care.” Id at 1055.

In order to exculpate itself from negligence, NOPSI is required to show that Eugene Temple, the driver, did “all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers ...” Wise v. Prescott, supra.

The testimony of Mrs. Matherine, Mr. Temple (the driver), and the only eye witness, Joan Adams, all establish that the floor of the bus was wet because it had been raining rather heavily prior to the accident. The driver at first stated he was travelling twenty-five miles per hour, but later stated his speed as approximately twenty miles per hour. The eye witness testified the driver was operating in a very cautious manner because of the weather conditions, and that his stops were done in a slow and normal manner. Appellant testified she fell because of a combination of the wet floor and a rather abrupt stop by the driver. The driver admits the floor was wet, but denies any abrupt stop. Based on this evidence, the trial court concluded that NOPSI extricated itself from any negligence.

It is well established that in the absence of manifest error this Court will not substitute its judgment for that of the trial court. Appellant argues that the trial court did not apply the proper standard of care the law imposes on common carriers. Her argument is predicated on the fact that the trial judge did not make mention of this standard in his reasons for judgment. The trial judge is an experienced jurist having sat on the Civil District Court bench for many years, and we must assume he is well aware of the law with regards to public carriers. He states in his reasons that he found no negligence on the part of NOPSI. We find no manifest error in this conclusion, and therefore must affirm.

AFFIRMED.


author: WARD, Judge.

text:
    Therese H. ORTEGO v. PRATT-FARNSWORTH, INC. and Liberty Mutual Insurance Co.
    No. 13324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Writ Denied Jan. 28, 1983.
    Carl J. Barbier, New Orleans, for plaintiff-appellant.
    Robert Henry Sarpy, Jr., New Orleans, for defendants-appellees.

      Before GULOTTA, WARD and CIAC-CIO, JJ.
   WARD, Judge.

This lawsuit arises out of an accident which occurred while Mrs. Ortego was driving her automobile and while Otis Cooley, Jr. was driving an 18-wheel tractor-trailer truck owned by his employer, Pratt-Farns-worth, Inc. The accident occurred on November 8, 1978, and Mrs. Ortego sustained personal injuries and property damage for which she brought suit in April, 1979. Prior to trial, Mrs. Ortego amended her petition to remove Otis Cooley as a defendant, leaving his employer, Pratt-Farnsworth, and its insurer, Liberty Mutual Insurance Company, as the only defendants.

The suit was tried before a jury in February, 1982, and the jury rendered its verdict in favor of defendants, Pratt-Farnsworth, Inc. and Liberty Mutual Insurance Company. Mrs. Ortego brings this appeal.

In her appeal, Mrs. Ortego specifies three errors. She alleges that the Trial Judge erred, first, when he failed to order sequestration of Otis Cooley, Jr. during the trial and, second, when he permitted Otis Cooley to give hearsay testimony. In her third specification of error, she alleges that the verdict of the jury was manifestly wrong and against the weight of the evidence. Mrs. Ortego now asks this court to render a judgment in her favor and make an award based on the record. The defendants argue that the Trial Judge did not err and that the jury verdict is correct, and they ask this court to affirm the judgment of the Trial Court.

The collision occurred near the intersection where two lanes from the Interstate 10 exit ramp intersect with Williams Boulevard in Jefferson Parish. Both vehicles had stopped for a red light at this intersection. Mrs. Ortego’s automobile was in the left hand lane, and the Pratt-Farnsworth truck driven by Otis Cooley was in the right hand lane. After the light changed to green, both Mrs. Ortego and Mr. Cooley began executing a left turn onto Williams Boulevard. Mrs. Ortego testified that her car was struck from the rear by the rear wheels of the 18-wheel tractor-trailer when Mr. Cooley failed to turn properly and encroached into her lane. She testified that her automobile never left her lane, that her car was caught by the movement of the rear wheels of the truck when it encroached into her lane and that because Mr. Cooley did not know he had struck her automobile, it was struck several times before the vehicles finally came to a stop. Mr. Cooley testified that the collision did not occur while the two drivers were turning onto Williams Boulevard, but that the accident occurred about 250 feet beyond the exit intersection when Mrs. Ortego moved into his lane and was hit by his rear wheels.

In her first claim of error, Mrs. Ortego argues that Mr. Cooley should have been sequestered during the trial because he was not a party to the lawsuit and that the defendants did not show that permitting Mr. Cooley to remain in court was in the interest of justice.

The rule of sequestration is set out in La.C.C.P. Art. 1631:

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order. As amended Acts 1966, No. 26, Sec. 1.

In State in the Interest of Giangrosso, 395 So.2d 709 (La.1981), the Louisiana Supreme Court held that the party opposing sequestration and who wants to exempt a witness has the burden of showing exemption from sequestration would serve the “interest of justice.” (p. 712)

We believe, as the Trial Judge believed, that the defendants have shown that permitting Mr. Cooley to remain in the courtroom served the “interest of justice”. Although Mrs. Ortego had dismissed Mr. Cooley from the suit as a matter of trial strategy, Mr. Cooley, nevertheless, was an insured party. At the time of the accident, he was an employee of Pratt-Farnsworth, Inc., and he was insured by Liberty Mutual. Liberty Mutual has a right to consult with its insured during the course of trial. We do not find that the Trial Judge erred in exempting Mr. Cooley from the sequestration order.

In her second assignment of error, Mrs. Ortego argues that the Trial Court erred in allowing Mr. Cooley to give hearsay testimony. Counsel for Mrs. Ortego objected to the testimony during trial, and his objection was overruled. The Trial Judge explained his ruling to the jury:

The objection is overruled. I want to explain to you very briefly the situation. We have a rule in law against hearsay. What counsel is objecting to is that this witness is about to [testify] that somebody said something that he doesn’t [have personal knowledge of] ... but under an exception to the hearsay rule, we have the exception of res gestae ... we simply mean that you won’t be concerned about the truth or falsity of the statement, only with what caused the driver to give attention to something, but what the person said may or may not be true. Alright. (Tr. 130-132)

Mr. Cooley was then allowed to proceed with his testimony and to explain that he had stopped his truck after another driver had come beside him and said, “Hey, Mister, a lady done run under your truck.”

Pratt-Farnsworth and Liberty Mutual argue that although the Trial Court admitted the statement under the res gestae exception to the hearsay rule, the statement is not hearsay because it was not being offered for the truth of the matter asserted, but for the state of mind of Mr. Cooley to show why he stopped his truck. Mrs. Orte-go argues that this statement is not accompanied by any of the indices of reliability which characterize exceptions to the hearsay rule and that the defendants’ argument that the statement is admitted only to show the reason why the driver stopped is a specious one.

In State in Interest of Clark, 400 So.2d 334, at 338 (La.App. 4th Cir.1981), this court defined “hearsay”:

Hearsay evidence is defined as testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assert-er. ... In other words, it is a statement that is offered in evidence to prove the truth of the matters therein stated, but that is not made by the author when a witness before the court at the particular trial in which it is so offered.... Hearsay evidence is excluded as being unreliable because it is based upon statements made by persons who are not before the court, have not been sworn and are not available for cross-examination.... (citations omitted)

We believe the testimony was admissible, if not as res gestae, then under the rule which permits testimony to show the state of mind of Mr. Cooley when he stopped his truck. See George W. Pugh, Louisiana Evidence Law, p. 415 (1974) citing State v. Hamlet, 219 La. 278, 52 So.2d 852 (1951). Moreover, the Trial Judge was explicit in his instructions to the jury — the statement was not being admitted for the truth of its content. Hence, the statement was not hearsay, and the reliability of the out-of-court speaker is not an issue. We do not find that the Trial Judge erred.

In her last assignment of error, Mrs. Or-tego argues that the verdict of the jury was manifestly erroneous, against the weight of the evidence, and that it should be set aside. She claims that the record supports this conclusion because her version of the accident is corroborated by the testimony of both her passenger and the investigating officer and by the exhibits and photographs which show the physical damages to her automobile.

The case was tried before a jury which heard the contradictory versions of the accident and observed the witnesses while they gave testimony. After hearing all the testimony, the jury rendered a unanimous verdict in favor of the defendants.

The standard for appellate review has been established in Canter v. Koehring Co., 283 So.2d 716, at 724 (La.1973):

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

We conclude that the trial record furnishes an adequate factual basis for the verdict of the jury and that there is an absence of manifest error.

We affirm the judgment of the Trial Court. Cost of trial and this appeal are to be paid by appellant.


text:
    Esther Babin SHELTON, et al v. Allen NEAL, Woodrow Morgan, and The Kemper Insurance Company.
    No. 13336.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.

      Cleveland J. Marcel, Jr., Houma, for plaintiffs-appellants.
    Donald 0. Collins, New Orleans, for defendants-appellees.
    Charles L. Chassaignac, New Orleans, for intervenors-appellants.
    Before GULOTTA, WARD and CIAC-CIO, JJ.
   WARD, Judge.

Edward Shelton, husband and father of plaintiffs, died on November 20, 1974, from burn injuries which he had received on November 7, 1974, while he was employed by Texaco Company, Inc. After the death of Mr. Shelton, his widow and two adult children filed this executive officer suit against Allen Neal, who was Shelton’s immediate supervisor at Texaco, and Woodrow Morgan, who was later dismissed from the suit. The accident occurred before the effective date of Act 144 of 1976 which immunized executive officers from claims for negligence of fellow employees.

The suit was filed November 20, 1975, and trial was before the Judge on December 9,1981. On January 28, 1982, the Trial Court rendered a judgment against the plaintiffs, finding both that Mr. Neal had not been negligent and that Mr. Shelton had been contributorily negligent. Plaintiffs appeal from that adverse judgment. The third-party intervenors, Texaco Company, Inc. and American Motorist Insurance Company, who have paid workers’ compensation benefits to Shelton’s wife, have intervened to recover workers’ compensation payments in the event plaintiffs are successful, and they have joined in the appeal by adopting the plaintiffs’ arguments.

The trial record shows that at the time of this unfortunate accident, Mr. Shelton was 50 years old and he had been employed by Texaco Co., Inc. for more than 28 years. The record also shows that shortly before the accident, in October, 1973, Mr. Shelton had been transferred from a gas processing plant at Paradis to the gas processing plant at Venice. Mr. Shelton had worked at Par-adis, which is a much larger plant than the one at Venice, for 19 years, and he worked as a stillman before his transfer to Venice where he was also employed as a stillman. There were only a handful of other employees at the modern, highly automated Venice plant, among whom were Allen Neal, a mechanical engineer and plant supervisor, and Lee LeCompte, a roustabout.

Two days before the accident, the plant had been closed for compressor repairs, and Mr. Neal had been working non-stop to get the plant back into operation. On the day of the accident, November 7,1974, Mr. Shelton had come to work early in the morning, and he and Mr. Neal began restoring plant operations which they had completed by 12:30 p.m. that day. Satisfied that the plant was back on production, Mr. Neal left the plant, leaving Mr. Shelton in charge. At that time, there were no problems with the plant operation; everything was working properly.

Little is known, but nothing unusual was reported about the plant activities on that day until 4:30 in the afternoon. At that time, it became apparent that all was not well when Mr. Shelton spoke with the roustabout, Mr. LeCompte, and explained that he was getting a wrench to close a wheel valve on a still. Apparently, Mr. Shelton had opened the valve, and because of high pressure in the still, he could not close the valve without using a wrench. When he used the wrench, metal striking metal caused a spark which ignited gas escaping from the valve, and there was an explosion and fire. Although Mr. Shelton was severely burned, with the help of Mr. LeCompte, he managed to get away from the blaze at the still, but unfortunately, death followed while he was being treated in the Charity Hospital Burn Unit in New Orleans.

In this appeal, the plaintiffs argue that the Trial Judge erred when he found: (1) that Neal was not negligent because he had not breached his duty as a supervisor to Shelton; (2) that Shelton was contributorily negligent because his conduct was below the standard of conduct of a reasonable man; and (3) that Neal, the plant supervisor, was not strictly liable in damages as the custodian of a defective thing. Nevertheless, we believe the only issues in this appeal are whether the plaintiffs have proved that Mr. Neal was negligent in his duties, and, if they did, whether defendants have proved that Mr. Shelton was contribu-torily negligent. We do not believe plaintiffs’ third allegation, that Mr. Neal is strictly liable for damages as custodian of a defective thing, warrants more than a brief observation: there is no evidence whatsoever that either the still, valve or plant at Venice was defective.

Turning now to the question of whether Neal was negligent, the plaintiffs must prove by a preponderance of the evidence that Neal has breached his duty to Shelton and that the breach was the cause of the injury and Mr. Shelton’s death. Canter v. Koehring Company, 283 So.2d 716 (La.1973) and restated in Parker v. Travelers Insurance Company, 400 So.2d 682, (La. App. 4th Cir.1981), writ denied, 406 So.2d 590 (La.1981).

Plaintiffs rely on several theories to prove that Neal was negligent. First, plaintiffs claim that Texaco Co., Inc. had delegated its duty to Mr. Neal to provide a safe work place for Mr. Shelton, and they claim that Mr. Neal failed in his duty by allowing a dangerous condition to exist at the Venice gas plant. The dangerous condition which they allege is the still.

The still is a large cylinder, approximately six feet in diameter and 100 feet high, which heats liquids to greater than 500 degrees to separate oil from gas. It has an atmospheric drain system controlled by a wheel valve. That valve, the valve that Mr. Shelton was attempting to close, was not designed to operate under pressure, but was designed to permit the drainage of sump through a gravitational flow into a bar pit where it was burned. When the valve is opened, the sump flows from the drainage pipe into a funnel six inches below the end of the pipe. If the valve were opened when the system is operating, gaseous hydrocarbons would escape from the end of the pipe creating a dangerous situation. Hence, the valve is never to be opened during operations. The valve is not hydraulically or automatically opened or closed; it is ordinarily opened and closed manually by the use of the wheel handle attached to it. There are, however, other valves which are automatic and which control the flow of oil and gas when it is under pressure in the still. An instrument panel indicates various levels and pressure of the hydrocarbons, and there is an automatic cut-off device in case trouble develops in the system.

The defendants argue that the plant had been operating for more than six years without an accident and that following the accident, OSHA found no fault at the plant during its investigation.

The Trial Judge held for the defendant Neal, finding that plaintiffs failed to prove that Neal did not provide a safe place to work or that he was negligent. Even if we did not agree with the Trial Judge’s finding of fact, we are not at liberty to substitute our findings for his. There is sufficient evidence in the record to support his finding, and it is not manifestly erroneous.

Plaintiffs also claim that Mr. Neal was negligent because he failed to warn the employees of the dangers of this valve either by oral information, by signs or by the plant’s operation manual.

The record shows that Mr. Neal lived near the plant and was on 24-hour call to answer any calls of inquiry or trouble from the plant employees. Although he did not specifically instruct Shelton about that particular valve, he conducted monthly safety meetings, provided orientation and instructions to new employees, and furnished them an operations manual. Furthermore, when Mr. Shelton was transferred to Venice, he was instructed and trained by the outgoing supervisor whom he was replacing, and at the time of his accident, he was both an experienced stillman and plant supervisor. In addition to all of this, there is evidence that Shelton was warned of and knew of the danger. Although his transfer to Venice was fairly recent, the plant at Paradis which he had left was a larger plant operation, and according to the testimony of his brother-in-law who had also worked at Par-adis for a year, it contained both a closed and similar open drain system. He testified, just as Mr. Neal did, that the valve on an open drain system was not to be used during plant operation because of the high temperatures; the men at Paradis were instructed not to use that valve because of the danger of fire.

In summary, Shelton was not only an experienced employee, he was an experienced stillman. Moreover, his experience and training qualified him to take Neal’s place as a supervisor in Neal’s absence. Shelton had been instructed while at Para-dis how to safely operate the still, and particularly not to open the drain valve while it was in operation. It would be unreasonable to impose a duty on Neal to again instruct or warn him about something so elemental — do not open a drain valve when the still is in operation. Nor do we believe that Neal had a duty to plaster signs over the hundreds of valves present in the plant, they are all dangerous if misused.

The Trial Judge found that Mr. Neal had been dedicated and conscientious in his supervision of operations in the plant and that the plaintiffs had not proved him to be negligent in his duties by failing to warn Shelton of the dangers of misuse of a valve. Again, even if we disagreed with that finding, we cannot merely substitute our judgment for his. Our review on appeal is limited to a determination of whether that finding of fact is clearly wrong. Plaintiffs have not shown that it was.

In addition to all of this, the Trial Judge found that Mr. Shelton was proven to be contributorily negligent. The record supports his finding. First, manually operated wheel valves are designed so that they may be opened or closed by turning the wheel by hand, not with a wrench. Second, pressure on the valve causing difficulty in either opening or closing would have indicated to any experienced stillman that the still was operating and that the valve should not be opened.

In his Reasons for Judgment, the Trial Judge stated that:

“[I]t is inconceivable that a man who had been employed for 19 years in the operation of a gas plant and held the position of plant supervisor would not know and completely understand that the valve at the bottom of the still was for maintenance work only and should only be opened when the plant was not in operation and the still had been allowed to cool down.”

We can only conclude, as the Trial Court did, that Mr. Shelton “failed to act as a reasonable and prudent man and that his negligence was a contributing cause of the accident.” Parker, supra.

Again, the standard of review in this court is to determine if the Trial Judge’s findings of fact are manifestly erroneous. We believe his findings are supported by the record.

We affirm. All cost of trial and appeal are to be paid by plaintiffs.