text:
    Oliver DROZE v. The McCARTY CORPORATION.
    No. 14867.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Howard P. Elliott, Jr., Wayne R. Crouch, Baton Rouge, for plaintiff-appellant Oliver Droze.
    Gracella Simmons, Baton Rouge, for defendant-appellee the McCarty Corp. and the Fidelity and Cas. Co. of New York.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit by Oliver Droze against his employer, The McCarty Corporation, and his employer’s workmen’s compensation insurer, Fidelity and Casualty Company of New York. The parties stipulated that the plaintiff was injured while acting within the course and scope of his employment as a carpenter’s apprentice. Insurance coverage was also not at issue. From judgment of the trial court denying plaintiff’s claim of total and permanent disability, plaintiff has appealed.

FACTS

From the briefs and the record we glean the following:

Plaintiff was injured on January 11,1979, while on the job as a carpenter’s apprentice for The McCarty Corporation, when he attempted to catch a “knuckle” being thrown up to him as he stood on a scaffold. The “knuckle” when caught bent backward plaintiff’s thumb, resulting in damage to the joint and ligaments of the thumb. Plaintiff continued to work for The McCarty Corporation until June of 1979, when he was terminated for unavailability of work. Subsequently, plaintiff worked for another employer at Dow Chemical Company, until January 28, 1980.

Plaintiff was examined by Dr. Joe Alvin Morgan on December 12, 1979. Dr. Morgan’s tentative diagnosis was that plaintiff suffered from a rupture of the volar plate in the metacarpophalangeal joint of the right thumb. This injury was said to be ligament-related, and Dr. Morgan suggested surgery.

Surgery was performed on January 24, 1980, with equivocal results. Plaintiff continued to see Dr. Morgan, complaining of limited motion and pain in his injured right thumb. Dr. Morgan suggested pinning the joint to determine if the pain would be lessened with immobilization. This procedure was accomplished surgically on May 13, 1980, and plaintiff reported that the pain had decreased. From such relief Dr. Morgan diagnosed that arthritis had developed in the thumb joint. Dr. Morgan suggested fusion surgery to make permanent the relief from pain that plaintiff had experienced by pinning the joint, which surgery plaintiff refused. Plaintiff was discharged by Dr. Morgan on August 6,1980, with a 25 percent physical impairment of the thumb, which Dr. Morgan stated would exist with or without the fusion surgery.

At the time of plaintiff’s injury, he was an apprentice carpenter in the Baton Rouge Carpenter’s Joint Apprenticeship Program. He has not performed carpentry-related work since January of 1980, when his thumb was initially operated upon.

The compensation insurer paid plaintiff workmen’s compensation benefits commensurate with the schedule loss of a thumb, as per La.R.S. 23:1221(4)(a), for a period of fifty weeks commencing January 23, 1980. This compensation was in the amount of $141.00 per week for thirty-one weeks and $69.00 for nineteen weeks, such compensation ending January 6, 1981. All medical expenses were paid by the insurer.

The trial court held that plaintiff failed to prove any disability, inasmuch as the plaintiff did not attempt to resume his former occupation after the surgery on January 23, 1980. The trial court further held that plaintiff did not suffer so much pain so as to be disabling. The trial court found that the prior benefits paid were the maximum benefits to which plaintiff was entitled, and dismissed plaintiff’s suit at his costs.

SPECIFICATIONS OF ERROR

Plaintiff-appellant basically argues that the trial court erred in 1) failing to apply the “odd-lot” doctrine to his claim and 2) holding that no disability had been proven since plaintiff had not attempted to resume work as a carpenter.

I

The Louisiana Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980) and Turner v. American Mutual Insurance Company, 390 So.2d 1330 (La.1980) introduced the “odd-lot” doctrine of total disability into the jurisprudence interpreting La.R.S. 23:1221.

La.R.S. 23:1221 defines total disability as a claimant’s inability,

“... to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reasons of education, training, and experience ...

In Oster, supra, the Supreme Court stated that a claimant need not be totally helpless to claim benefits for total and permanent disability. Applying what is known as the “odd-lot” doctrine, the Supreme Court held that a claimant is considered an “odd-lot” worker if he shows that due to his physical impairment, mental capacity, education, training, age, the availability of employment in his area, and any other relevant factor, that he cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity. The Supreme Court further stated,

“If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ ” 390 So.2d 1318, 1324.

The plaintiff contends on appeal that the trial court failed to analyze his claim under the “odd-lot” doctrine. Plaintiff further asserts that he has demonstrated his “odd-lot” status, created by the degree of physical impairment of his thumb, the amount of pain he suffers, and the fact that he has but a high school education.

We do not agree with plaintiffs contention that he has proven his “odd-lot” status. On cross-examination, plaintiff admitted that his physical impairment did not prevent him from driving a vehicle, but did cause him some difficulty in turning on ignitions in certain automobiles. Thus, plaintiff did not demonstrate that he is unable to work as a driver or delivery person or that this type of job is not regularly available to him.

More important is the fact that plaintiff was gainfully employed in a donut shop some two weeks prior to trial, where plaintiff performed the duties of a donut fryer. Plaintiff testified that he was not unable to perform these duties. Plaintiff was terminated from this job not for his inability to perform job functions, but for his lack of punctuality. Again, plaintiff has not demonstrated that he cannot work as a fry cook or that this type of work is not regularly available to him.

Plaintiff argues that he works only in substantial pain, and cites Lattin v. Hica Corporation, 395 So.2d 690 (La.1981) for the proposition that the “odd-lot” doctrine applies also to substantial pain cases, since a claimant’s pain may appreciably limit the types of work available to him and may greatly diminish his ability to compete in the labor market. This is an accurate statement of the law, but plaintiff has not proven that he can work only in substantial pain. Medical testimony indicated only that plaintiff would experience some discomfort in attempting to use his right thumb. Plaintiff argues that he experiences much more than mere discomfort in trying to work. However, the trial judge put plaintiff through a battery of simple dexterity tests at trial, evaluating plaintiff’s impairments and the amount of his pain. The trial judge thereafter ruled that plaintiff did not suffer so much pain in using the thumb so as to be disabling. This ruling was a credibility call on the part of the trial judge in appraising plaintiff’s subjective complaints of pain, since little objective proof of pain was found in medical deposition testimony. We see no manifest error in this regard by the trial judge.

Additionally, the plaintiff testified at trial that he was able to work in the donut shop without using his thumb. The clear inference which arises is that if plaintiff was not required to use his thumb, then his work at the donut shop was performed without substantial pain. Plaintiff is apparently able to accomplish certain functions by “compensating” for his injured thumb, which Dr. Morgan stated in his deposition was necessary and desirable.

We therefore hold that plaintiff has not proven his “odd-lot” status, inasmuch as he has not demonstrated that because of his physical impairments and his pain, the services which he is able to render are so limited that a reasonably stable market for his labor does not exist.

II

Plaintiff-appellant argues that the trial court erred in holding that plaintiff had failed to prove his disability because he did not attempt to resume work as a carpenter’s apprentice.

Mr. Bobby Smith, director of the apprenticeship program in which plaintiff was engaged at the time of the accident, testified at trial. Mr. Smith stated that after the accident and prior to the surgery, he observed plaintiff having difficulty driving nails with a hammer while in class. After the surgery, Mr. Smith noted that plaintiff was unable to use his right thumb to depress the door latch on the main entrance to the apprentice school. Because of his pain and infirmities, plaintiff was assigned to light duty classes in the apprenticeship program. Mr. Smith testified that because plaintiff was considered to be convalescing from an injury, plaintiff was not considered in filling demands from employers who sought placement assistance from the apprenticeship program. Even after plaintiff was put into the light duty classes, Mr. Smith observed plaintiff trying to cut metal studs and hang sheetrock using a screw gun, and found that plaintiff’s performance was lacking. Mr. Smith stated at trial that plaintiff was unable to do many tasks that are ordinarily expected of carpenters. He further testified that the apprenticeship program recommended that plaintiff seek out vocational rehabilitation to find an alternative to carpentry training.

Dr. Morgan testified that plaintiff’s injury would cause difficulties and discomfort with any pinching motion of the thumb requiring a medium amount of pressure, such as connecting electric battery cables, prolonged hammering, or operating an electric skillsaw.

This unrefuted evidence preponderates to the effect that plaintiff is no longer able to perform the duties of a carpenter or carpenter’s apprentice. La.R.S. 23:1221(3) provides that partial disability results when the employee is unable to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training or experience. We find that plaintiff has proven by a preponderance of the evidence that he is unable to perform the duties in which he was engaged when injured and for which he is fitted by education and training, despite the fact that plaintiff has not attempted to resume work as a carpenter’s apprentice since his surgery in January of 1980. Although plaintiff is not totally and permanently disabled, we hold that he is entitled to benefits for partial disability, pursuant to La.R.S. 23:1221(3). The trial court erred in holding that plaintiff did not prove any degree of functional disability.

Under La.R.S. 23:1221(3), a partially disabled employee is entitled to sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages.

At the time of trial, plaintiff was not gainfully employed. We are not unmindful of the problems that may arise in the application of the present statutory definition of partial disability where the injured worker has not undertaken subsequent employment and the percentage difference between his former wages and subsequent wages cannot be applied. As was pointed out by a panel of this court in Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977), a partially disabled worker’s failure to obtain subsequent employment may be based on sound reasons, or may be based on the worker’s arbitrary decision to receive compensation benefits in lieu of seeking gainful employment. This determination is one of fact, and is within the province of the trial court should it arise, inasmuch as a workmen’s compensation judgment may be reviewed and an appropriate modification made on application to the district court in accordance with La.R.S. 23:1331. Kilbourne, supra.

DECREE

Therefore, for the above and foregoing reasons, judgment of the trial court is hereby reversed, and there is now judgment in favor of plaintiff, Oliver Droze, awarding him compensation benefits for partial disability, pursuant to the provisions of La. R.S. 23:1221(3). Such benefits shall commence January 23, 1980, and shall be received during the period of disability, not to exceed 450 weeks. Said disability benefits are subject to a credit of $141.00 per week for 31 weeks commencing January 23,1980, and subject to a credit of $69.00 per week for 19 weeks thereafter, representing prior benefits paid. Legal interest shall accrue on all past due installments owed from date due until paid. Costs of this appeal are assessed to defendants-appellees.

REVERSED AND RENDERED.

      . For an example of a case where a claimant was granted total and permanent disability because of his substantial pain, see Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980).

      . La.R.S. 23:1221(3) and 23:1223 provide for an employer to receive a credit for disability compensation payments made prior to judgment in favor of claimant. This court in Jacks v. Banister Pipelines America, 396 So.2d 604 (La.App. 1st Cir. 1981), held that the employer would receive a credit also where it has paid benefits under the scheduled loss and employee is later adjudged partially disabled, even though the above-cited statutes are not strictly applicable to such a situation, which is present in the instant case.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Steven BONNER v. Elvin John ROBINSON, State Farm Mutual Insurance Company and Government Employees Insurance Company.
    No. 14869.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Lawrence K. Burleigh, Levy & Burleigh, Morgan City, for plaintiff.
    W. Paul Andersson, Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Government Employees Ins. Co., original defendant and third party plaintiff.
    L. Albert Forrest, Roy & Forrest, New Iberia, for State Farm Mut. Auto. Ins. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Plaintiff, Steven Bonner, was seriously injured in a two-car collision in Berwick, Louisiana, on April 3, 1979. Plaintiff filed suit against Elvin John Robinson, who was never served, and his insurer, State Farm Mutual Insurance Company. Also made a defendant was Government Employees Insurance Company (GEICO), which provided uninsured motorist (UM) coverage on the vehicle plaintiff was driving. A jury verdict was rendered in plaintiff’s favor in the amount of $325,000.00.

State Farm’s exposure under two policies issued to Robinson aggregated $30,000.00 for a single injury. State Farm paid it limits and is not before this court.

Steven Bonner was a major child residing with his mother and father at the time of the accident. He was driving a 1974 Ford, one of three cars owned by his mother and insured by GEICO under a Family Automobile policy. All three vehicles (a 1974 Ford, a 1975 Chevrolet, and a 1978 Ford) had UM coverage in the amount of $50,000.00 per person per accident. The trial court allowed plaintiff to “stack” these three UM coverages and cast GEICO in judgment for $150,000.00. From this judgment, GEICO appeals.

The sole issue on appeal is whether the trial court erred in allowing plaintiff to “stack” the three UM coverages under the single GEICO policy issued to plaintiff’s mother.

The applicable legislation is embodied in La.R.S. 22:1406(D)(l)(c):

(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

This legislation was designed to prohibit the stacking of policies and coverages, but contains an exception recently outlined by the Louisiana Supreme Court in Courville v. State Farm Mut. Auto. Ins. Co., 393 So.2d 703 (La.1981).

Courville involved a factual situation similar to the present case. The plaintiffs, a major child and his father, filed suit against State Farm seeking recovery on two policies, each having UM coverage of $10,-000.00. The son was driving his father’s 1964 GMC truck and was involved in an accident with an uninsured motorist. One policy covered the truck, and the second covered a 1968 Oldsmobile, also owned by the father. A jury awarded the son $30,-000.00. The trial judge allowed the son to “stack” the two policies and State Farm was cast in judgment for $20,000.00. On appeal, the Third Circuit amended, disallowing the stacking. The Louisiana Supreme Court reversed, finding that plaintiff fell within the express statutory exception to the anti-stacking provision:

Using the second paragraph of the Act: the injured party, Joseph A. Courville, Jr., was occupying an automobile not owned by him; the uninsured motorist policy on the GMC pickup truck in which Joseph A. Courville, Jr., was an occupant is primary; and, since the primary uninsured motorist coverage is exhausted due to the extent of the damages ($30,000), Joseph A. Courville, Jr., may recover as excess from other uninsured motorist coverage available to him, namely, the policy on the 1968 Oldsmobile.
While the first paragraph of the Act provides the general rule than an insured who has insurance available to him under more than one uninsured motorist policy may not stack, that paragraph is followed by the exception that this plaintiff finds himself within; for under the second paragraph of the Act, Joseph A. Cour-ville, Jr., may stack as he was an occupant of a vehicle which he did not own when he was injured. (Emphasis ours.) 393 So.2d at 705.

Applying these guidelines to the present case, we find that plaintiff was an occupant of a vehicle which he did not own when he was injured. Therefore, he falls within the exception provided in R.S. 22:1406(D)(l)(c)(i-ii). The UM coverage on the 1974 Ford, the vehicle in which plaintiff was an occupant, is primary. This coverage was exhausted due to the extent of damages; thus, plaintiff, “... may recover as excess from other uninsured motorist coverage available to him.”

In Courville, the Louisiana Supreme Court allowed the plaintiff to stack two coverages from two separate policies. We are concerned here with the stacking of separate coverages under one single policy. The crucial language in the statute states:

In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant (Emphasis ours.)

This language, when read together with La.R.S. 22:1406(D)(l)(c), wherein “coverage provision” and “policy” are used interchangeably, supports our conclusion that plaintiff may stack one of the $50,000.00 coverages under the GEICO policy as excess with the primary coverage on the 1974 Ford. We find that this exception affords a plaintiff falling within its perimeters the ability to stack one excess coverage to the primary coverage, whether that excess is derived from a single policy or a separate policy. This conclusion is consistent with the holding and directives in Courville.

Under the express mandate of the statute, in no instance may a plaintiff stack more than one coverage. The trial judge erred in allowing plaintiff to stack the two excess coverages; hence, the judgment against GEICO must be reduced to $100,-000.00.

For the above reasons, the judgment of the trial court is affirmed and amended in accordance with the opinion set forth herein. All costs are assessed to GEICO.

AFFIRMED AND AMENDED.


text:
    Evans THIBODEAUX v. HOOD ENTERPRISES, INC.
    No. 14873.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Randall M. Alfred, of Marcel & Alfred, Houma, for plaintiff-appellant Evans Thi-bodeaux.
    James E. Kuhn, of Fayard, Morrison & Kuhn, Denham Springs, David L. Landry, Thibodaux, for defendant-appellee Hood Enterprises, Inc.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

On April 15,1980, plaintiff, Evans Thibo-deaux, filed suit in Lafourche Parish against Hood Enterprises, Inc., a domestic corporation domiciled and doing business in Livingston Parish. Defendant sold to plaintiff a log home-building kit manufactured by it. This suit arises out of that sale and plaintiff seeks property damages, mental anguish, and attorney’s fees.

Defendant filed an exception of improper venue and alleged that it was not domiciled in Lafourche Parish; that the sale of the log home had not taken place there; and that Livingston Parish was the only proper venue under La.C.C.P. Art. 42(2). Written reasons were rendered and judgment was signed on June 19, 1981, maintaining the exception and dismissing plaintiff’s suit, without prejudice. Plaintiff perfected this devolutive appeal.

On August 16, 1979, plaintiff purchased the home kit from defendant for the price of $11,702.67. The sale and delivery took place in Livingston Parish. Plaintiff hired a contractor to erect and assemble the log home on a lot he owned in Lafourche Parish. The contractor allegedly assembled the home in compliance with the specifications set forth in the plans provided by defendant.

Plaintiff alleges that within approximately ninety days after the construction of the home, the logs provided in the kit began to recede and shrink, causing large gaps to appear in the exterior walls. As a result of these gaps, plaintiff alleges he sustained damage to the furnishings and carpets in the home. Plaintiff also complains that he suffered a loss in aesthetic value. Plaintiff contends that his amicable demands for repairs were refused.

The trial judge dismissed plaintiff’s suit after finding that the petition contained allegations of negligence which were merely restatements of contractual duties and gave rise to purely contractual obligations. Finding that the petition did not state a cause of action in tort, he held that La.C. C.P. Art. 74 was not applicable and sustained the exception of improper venue.

La.C.C.P. Art. 42 provides that the general rule of venue is the defendant’s domicile. However, La.C.C.P. Art. 74 contains an important exception and reads in pertinent part:

An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.

Moreover, when a plaintiff institutes an action on more than one theory of recovery, arising out of one factual circumstance, and venue is proper as to any theory, the court has venue to decide any or all claims. Reeves v. Dixie Brick, Inc., 403 So.2d 792 (La.App. 2d Cir. 1981); Smith v. Baton Rouge Bank & Trust Company, 286 So.2d 394 (La.App. 4th Cir. 1973).

In his petition, plaintiff sets forth the following allegations as a basis for recovery:

Plaintiff avers that defendant is liable unto him based upon its negligent failure to provide sufficient plans for the erection of the said home and its further negligent failure to properly advise plaintiff, ... as to the methods or devices necessary to be used in erecting defendant’s product, if any exist, which would have prevented the situation set forth herein. . ..
In the alternative, plaintiff avers that defendant’s product was not fit for the purpose for which it was sold and that the logs provided by defendant as manufacturer were improperly cured, dried or treated prior to delivery and that defendant is therefore liable for breach of the statutory warranty of fitness....
In the alternative, plaintiff avers that the defendant’s product contained a vice or defect at the time of sale not discoverable by a simple inspection thereof which exists to such a degree that plaintiff would not have paid the price actually given had he known of the said defect....
Plaintiff further avers that the defendant, as manufacturer of the subject property, knew or should have known of the vice or defect and is therefore liable unto your petitioner... .

It is clear that plaintiff has attempted to set out a cause of action based on negligence and in the alternative alleges redhibition as a basis for recovery. If either suffices for stating an “offense or quasi-offense,” then La.C.C.P. Art. 74 provides an appropriate venue for the entire case.

The Second Circuit was recently confronted with whether an action in redhibition is ex contractu or ex delicto. Reeves v. Dixie Brick, Inc., supra. The factual situation in Reeves was strikingly similar to the facts here, as the plaintiff sued the seller-manufacturer of certain bricks which were used in the construction of his fireplace. He claimed that the bricks were defective and that the defendant knew or should have known of the defective condition. The suit was filed in the plaintiff’s domicile and the defendant excepted to the venue, claiming that La.C.C.P. Art. 74 was not applicable in the redhibition suit. The court stated that an action in redhibition “... is of a hybrid nature, sounding in both tort (offense or quasi offense) and in contract . . and held that La.C.C.P. Art. 74 provided an additional venue. Reeves, supra, at 795.

The Louisiana Supreme Court stated in Philippe v. Browning Arms Company, 395 So.2d 310 (La.1981), a personal injury action, that a seller-manufacturer’s act of delivering a defective thing, when he knows of the defect, gives rise to delictual as well as contractual liability. We agree with Philippe and Reeves which support a finding that La.C.C.P. Art. 74 provides a proper venue in redhibition suits and hold that the exception of improper venue should have been overruled. Accordingly, the decision of the trial court is reversed and remanded for proceedings consistent with the opinion set forth herein. All costs of this appeal are assessed to the defendant-appellee.

REVERSED AND REMANDED.


author: LANIER, Judge.

text:
    SHELLINGTON HOMES, INC. v. Raghunath P. YADAV.
    No. 14875.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Curtis K. Stafford, Jr., Baton Rouge, for plaintiff-appellee Shellington Homes, Inc.
    R. Gray Sexton, Baton Rouge, for defendant-appellant Raghanath P. Yadav.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This case involves various disputes arising out of a residential construction contract. Suit was originally filed by Shellington Homes, Inc. seeking to recover the balance due on the contract. The defendant, Ra-ghunath P. Yadav, filed an answer and reconventional demand claiming construction defects and credits for unauthorized charges.

I. FACTS

After extensive negotiations, on July 13, 1976, Shellington Homes, Inc. entered into a cost plus 10% contract with Raghunath P. Yadav for the construction of his home located on lot 82 on Kenilworth Parkway Drive in Kenilworth Subdivision, Baton Rouge, Louisiana. The anticipated construction period was 120 calendar days. However, due to multiple changes in plans and delays occasioned by both parties, construction was not completed until the latter part of April of 1977. During the course of construction and after completion of construction, substantial disputes developed between the parties and this suit followed.

The parties stipulated at the trial that the total cost of construction was $43,-424.29. The ten percent fee of Shellington was $4,342.43, for a total cost to Yadav of $47,766.72. It was stipulated that Yadav had made payments totaling $42,010.83 on the contract, leaving a balance of $5,755.89. Pursuant to the terms of the contract, the trial judge gave Yadav credits of $425.00 for workmen’s compensation insurance and $271.00 for general liability insurance. These sums were billed to Yadav, but Shell-ington was required to pay them under the terms of the agreement. In addition, Ya-dav was given a credit of $416.95 for one-half of the extra interim finance charges of $833.90 which he incurred because the construction time exceeded 135 days. The contract required that the builder and owner share the excess interim finance charges on a 50/50 basis. These credits total $1,112.95, and, when applied to the principal amount due, leave a balance of $4,642.94. The trial judge divided the cost equally between the parties. This suspensive appeal followed. The defendant does not contest the findings of the trial judge on the main demand and has limited this appeal to the ruling on the reconventional demand.

II. DEPARTURES FROM PLANS

The construction contract specifically provides that “Errors in construction due to improper construction or failure to properly interpret the plans and specifications are to be totally corrected at the expense of the builder.” This provision states the law applicable between these parties and this court is bound to give it effect. Article 1945 of the Louisiana Civil Code. Yadav claims that Shellington made three unauthorized departures from the building plans, namely: (1) the door to the hall bathroom; (2) the door between the dining room and kitchen; and (3) the concrete “riser” for the bookshelves in the family room. Yadav asserts that he is entitled to payment for the cost of correcting these mistakes.

A. The hall bathroom. Yadav maintains that the plans and specifications require a two foot six inch door leading into the hall bathroom. The door actually installed is only two feet wide and he claims this is very inconvenient. Yadav testified that he discussed this with Shellington and that Shellington agreed to fix it.

Shellington testified that the change in door size resulted from an error by the plumber in installing the plumbing for the hall bath lavatories. As soon as this problem was discovered, he notified Yadav. Shellington testified that after discussing the matter, Yadav agreed to move the wall and put in a two foot door instead of a two foot six inch door, since this was preferable to breaking up the slab and relocating the plumbing. Shellington’s version of this dispute is supported by the testimony of Johnny Mosby, a carpenter on the job who was involved in making the forms for the foundation of the building and the framing.

B. The dining room-kitchen door. Ya-dav testified that the door between the dining room and kitchen was planned as a bi-fold door two feet wide. Shellington actually installed a solid two foot eight inch door. Yadav testified that Shellington agreed to fix this error, but never did.

Contrary to this, Shellington testified that he advised Yadav that a small door such as this in a high traffic area is not good in case of fire and that Yadav agreed to the change.

C. The concrete “riser” in the family room. Yadav testified that Shellington failed to properly follow the plans and specifications submitted to him and that the bookshelves and wet bar in the family room (den) are ten to twelve inches too high and not practical for everyday usage.

Shellington testified that the foundation for this room was laid out in accordance with the plans and specifications submitted to him. After the foundation had been laid, it was discovered that the foundation plans did not correspond with the floor plan furnished to him. The foundation plan that Shellington had did not accommodate the one foot “sunken” offset of the family room for the bookshelves. This difference caused the wet bar and the bookshelves to be located at a working height twelve inches higher than normal. Shellington testified that this discrepancy was brought to Yadav’s attention and that he agreed to proceed on that basis. Shellington’s version of what occurred is supported by Johnny Mosby who testified that it was he who discovered that the foundation plan did not match the floor plan while he was framing the building. He immediately brought this to Shelling-ton’s attention who notified Yadav. After some discussion, corrective work was done to the slab and Yadav agreed to proceed with that change.

In the report dated April 2, 1980, of Mr. J. David Brinson, an architect retained by Yadav to survey his home, appears the following observations concerning the problem with the concrete “riser” in the family room:

“Item # 2 — The concrete riser (raised concrete Platform) is built in accordance to the print Mr. Shellington produced, but is shown differently on Dr. Yadav’s tracing. None of the drawings is dated. There is no indication of revisions other than the indication that the tracings have at some point been revised. It appears to me that the drawing Shellington has was a print from the tracing before it was revised. It’s my opinion that there was a sequence of events early in the building process which resulted in the conflict. My comment related to that sequence follows these items.
“The most serious dispute appears to be with the raised concrete platform. The print Mr. Shellington has clearly indicates the platform. Dr. Yadav’s tracing clearly omits the platform. I suspect that the print Mr. Shellington has was issued before the tracing was revised and that he did not receive, or failed to obtain a revised print. Since there are no dates on any of the drawings or indications of revisions, it is impossible to determine from the documents the order of evolution. Perhaps it would be helpful to contact Bob Kiper who produced the plans. The drafting was done by Ron Martin, according to information on the drawings. This kind of situation can occur when prints are issued prematurely, not properly dated and end up being used as construction documents.”

Neither Kiper nor Martin was called by either side at the trial to attempt to explain this discrepancy.

Yadav did not secure the services of an architect to help in planning and building his home. Thus, it was he who was responsible for obtaining the building plans and submitting them to Shellington.

D.Conclusion. It is implicit in the trial judge’s ruling that he accepted Shelling-ton’s version of the facts concerning the above disputes and ruled that Yadav agreed to the departures from the plans and was precluded from reimbursement for the cost of corrective measures. Based on the evidence of record, this holding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

III. THE FIREPLACE

The problem with the fireplace is described as follows by architect Brinson in his report of April 2, 1980:

“Air infiltration is clearly through the cracks in the brickwork and the openings where the wood trim adjoins the brick. Since the fireplace was changed to a metal unit instead of a masonry fireplace, the enclosure around the fireplace and flue is a void through which cold air passes and infiltrates the openings around the brick trim.”

At the trial Brinson testified that the air infiltration was caused by faulty construction in that there were cracks between the bricks and the finish materials and there was improper trim.

Shellington testified that the bricklayer who built the fireplace was selected by Ya-dav and was not the one that he wanted. He did not attempt to further explain or excuse the defects in the fireplace. It is our opinion that the trial judge was clearly wrong and committed error in not granting relief for this portion of the reconventional demand by Yadav. The fireplace is defective. Shellington is responsible for the cost of correcting this construction error by the terms of his contract. The cost of the fireplace repairs, totaling $925.00, is found under Items 4, 5, 6 and 7 of the estimate submitted by Brinson at the trial. The judgment of the trial court will be reversed insofar as it failed to grant the reconven-tional demand in this amount.

IV. CONCLUSION

Except for the cost of repairing the defectively constructed fireplace, the facts of record support the conclusions reached by the trial judge. The judgment of the trial court will be affirmed in all respects except that judgment will be granted on the recon-ventional demand in favor of Raghunath P. Yadav and against Shellington Homes, Inc. in the sum of $925.00, with legal interest thereon from January 2, 1980, until paid.

All costs in the trial court and in this court shall be equally divided between the parties.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The contract is signed by John L. Shellington on behalf of Shellington Homes, Inc., but is not signed by Yadav. However, the parties agree that this contract is binding.


text:
    Guy J. BETHEA, II, and Barbara Bryant Bethea v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 14878.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Steven R. Giglio, Baton Rouge, for plaintiffs-appellees Guy J. Bethea, II, and Barbara Bryant Bethea.
    Warren L. Mengis, Robert H. Carpenter, Baton Rouge, for defendant-appellant La. Dept, of Transp.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Guy J. Bethea, III, was killed in a single-car accident which occurred in East Baton Rouge Parish on Louisiana Highway 946 (Joor Road) at approximately 2:00 a. m. on December 23, 1978. Guy J. Bethea, II, and Barbara Bryant Bethea, parents of decedent, instituted this wrongful death action against the Louisiana Department of Transportation and Development (DOTD) and the Parish of East Baton Rouge. The Parish was dismissed from the suit on motion for summary judgment which has become final. After trial, the trial judge, with oral reasons, found DOTD guilty of negligence, found decedent free of negligence, and awarded judgment to plaintiffs for $50,-000.00 each for loss of love and affection and $4,010.00 in special damages. DOTD has appealed suspensively and plaintiffs’ answered the appeal, seeking an increase in the award of general damages.

The specifications of error are (1) the trial court erred in finding that the negligence of DOTD was the sole cause of the accident; and (2) the trial court erred in finding no negligence and/or fault on the part of Guy J. Bethea, III, which would preclude plaintiffs’ recovery against DOTD. FACTS

Testimony taken from the various witnesses established that decedent was 18 years old at the time of his death, resided with plaintiffs, and was a loving and caring child; that on the night in question decedent was driving a 1975 Ford Pinto which belonged to his father; that around 11:00 p. m. he met Carey Gray, 15 years old, and they spent several hours riding around; that they were proceeding in a general southerly direction on Joor Road; that they passed the Comite River Bridge and went into a curve which banked toward the left; that decedent sneezed and then said, “Oh, My God, hold on;” that the right wheels went off the road and the car traveled for some distance and then slid across the road, flipped over, hit a tree and instantly killed decedent, who suffered massive head and neck wounds; that there was a four-to five-inch drop-off between the road and the shoulder at the spot where decedent’s car left the road; that the shoulder was a mixture of dirt and gravel; that the road is 28 feet wide at the Comite River Bridge but narrows going south toward Jones Bayou Bridge from 28 feet to 20 feet, reducing the two lanes of travel from 14 feet to 10 feet; that approximately 98 feet from Jones Bayou Bridge certain warning signs were on the shoulder to warn approaching traffic of the bridge; that the guard rail leading to the bridge also began at that spot; that the distance from the Jones Bayou Bridge to the stump of the tree in question is 166.5 feet.

Harlan T. Melander, Jr., a Louisiana State Police trooper, investigated the accident. He arrived on the scene shortly after 2:00 a. m. on December 28. His investigation revealed that the accident took place on Joor Road approximately two miles north of Greenwell Springs Road; that only one vehicle was involved, which had been proceeding in a southerly direction; that the road surface was smooth but the shoulder was a mixture of dirt and gravel; that there was a drop-off between the roadway and the shoulder of four to five .inches; that decedent’s vehicle traveled about three feet off the roadway as it went onto the shoulder, then continued in a southerly direction a total of 152 feet and 9 inches, then re-entered the roadway in a slide, at approximately a 45°-angle, traveled across the road onto the shoulder for northbound traffic and came to rest after striking a tree approximately 18 feet from the road; that the total distance traveled from the point the vehicle left the road until it hit the tree was 324V2 feet, measured in a straight line; that he requested the assistant coroner, Michael J. Williams, to obtain a blood sample; that after Williams obtained the sample, he took the kit and turned it in for chemical analysis.

Plaintiff presented two independent expert witnesses, Dwaine Evans and Jack Humphries. Both were of the opinion that there were several major contributing factors to the accident. (1) The roadway narrowed eight feet as it approached Jones Bayou Bridge. This factor could cause a driver to drop a wheel off the road. Many drivers had done this in the past, causing the rut to be long and deep. (2) The rutting along the pavement edge created a difference in elevation of approximately five inches. This factor makes it most difficult for a driver to regain the roadway. If a driver attempts to immediately return to the roadway without reducing speed appreciably, a dynamic force is created which causes a side slide or even a roll. (3) The impending danger signaled by the warning signs could make a driver return to the roadway before he had slowed sufficiently to do so safely. (4) The tree and its proximity to the road created an obvious hazard.

The trial judge found DOTD guilty of negligence and said:

The court believes that a five inch drop off the narrowness of the taper, the rutting along the side of the road with a 5-inch drop-off, the poor condition of the shoulder of the road was a cause of the accident, and as a result the court holds that the Department was negligent in the maintenance of this road.

The DOTD has the basic responsibility for maintaining State highways. LSA-R.S. 48:21. It is required to maintain highways in a reasonably safe condition for motorists exercising ordinary care and prudence. Although DOTD is not an insurer of the safety of a motorist using State highways, it cannot knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Watson v. Morrison, 340 So.2d 588 (La.App.1st Cir. 1976), writ denied, 341 So.2d 1134 (La.1977). Included within DOTD’s duties is the maintenance of highway shoulders. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

Harvey Schaefer, DOTD’s road design engineer, was in charge of a resurfacing project for Joor Road in 1976 which was restricted to the existing right-of-way and alignment. At that time, Schaefer noted that Joor Road’s pavement width and shoulder were extremely substandard; that numerous large trees posing a very high potential for fatal accidents were within 10 to 15 feet of the pavement edge; that in some areas, especially where the horizontal curves were most frequent, there were insufficient shoulders which would be aggravated by new overlay. He felt high priority should be given to the reconstruction of this section of Joor Road. The trees were not removed because the road was in need of total reconstruction. DOTD has a duty to remove obstacles which are dangerously close to the traveled portion of its highways. Wilson v. Dept. of Highways, 364 So.2d 1313 (3d Cir. 1978), writ denied 366 So.2d 563 (La.1979).

All of DOTD’s witnesses were in agreément that a drop-off of more than two inches created a dangerous condition. Here, there is no serious argument that the drop-off was approximately five inches and had existed along the curve for some time prior to this accident.

Joseph N. Stein, East Baton Rouge Superintendent for Maintenance, testified that at this accident site the shoulder had not been made flush with the road surface after the overlay project in 1976 and the last work done on Joor Road was in August of 1978.

DOTD does not contend that it was free from fault or negligence in this ease, but does argue that its fault was not the sole cause of the accident. The plaintiffs have clearly shown that the trial court’s conclusion concerning DOTD’s negligence was correct. We agree that the narrowing of the road as a southbound motorist approached the Jones Bayou Bridge might cause a driver to leave the traveled portion of the road surface; that such constant repetitions created the deep rut which remained unrepaired for a considerable period of time; that the tree was too close to the road; and that the hazard markers and guard rail announcing the bridge could create a problem, especially to the approaching driver who had left the roadway.

The main thrust of DOTD’s argument is that decedent was guilty of fault which would preclude plaintiffs’ recovery. DOTD strongly suggests two issues relative to decedent’s fault. The first is:

EXCESSIVE SPEED, INATTENTION, AND INAPPROPRIATE REACTION.

The burden of proof was upon DOTD to show by a preponderance of evidence that decedent was guilty of negligence or fault. Don L. Ivy, expert traffic engineer, visited the accident site and determined that a driver could safely negotiate the curve in question at speeds up to sixty miles per hour. Using information gathered primarily from Trooper Melander’s accident report, Ivy estimated that decedent was traveling at least 66 miles per hour when he left the paved surface and could have regained the road surface by slowing down before he attempted to re-enter. After persistent questioning on cross examination by DOTD’s counsel relative to speed, Carey Gray estimated decedent’s speed at the time as, “about the speed limit.” The speed limit on Joor Road at that point was 40 miles per hour.

The trial judge in his oral reasons said: There is also a defense of contributory negligence based upon excessive speed, inattention, inappropriate reactions. After considering all of the evidence the Court is not convinced that these defenses have merit, and the Court holds that the proximate cause of this death was the poor condition of the shoulder of the road.

DOTD’s second contention relative to decedent’s fault is:

INTOXICATION.

A blood sample was obtained by deputy coroner Williams after he arrived at the scene. Williams is not a medical doctor or medically trained. He had been a deputy sheriff before becoming a deputy coroner. He testified that he extracted blood from what he believed was decedent’s heart. The blood sample taken by him was chemically analyzed by the Department of Public Safety, and it showed a .12% blood-alcohol level by weight.

Dr. Monroe Samuels, a pathologist and Director of Pathology at the LSU Medical Center, testified by deposition. His opinions were based primarily upon a review of Williams’ deposition. He said that a blood sample must be drawn from an intact part of the vascular system with proper equipment. He felt that blind sampling through the chest wall was not an acceptable practice and specifically felt Williams’ sample was inadequate because it had not been obtained under direct visualization. Other circumstances strengthened his feeling that the sample in question was less than satisfactory. Decedent was almost decapitated, so he felt little if any blood would have been present within the heart or aorta since the carotid arteries would have been severed and lost. He also felt that since decedent sustained severe chest trauma, the blood in his chest came from the lacerations of his heart and greater vessels, and an adequate sample from the heart could not be obtained. Dr. Samuels was of the opinion, however, that the sample did prove that the decedent had been drinking prior to the accident but it was useless for purposes of quantitative analysis.

Carey Gray testified that neither he nor decedent had any alcoholic beverages after they got together at 11:00 p. m. In Case v. Arrow Trucking Company, 372 So.2d 670 (La.App.lst Cir. 1979), writ denied 375 So.2d 944 (La.1979), a blind blood sample was taken, by a medical doctor, and we stated therein:

Our jurisprudence establishes that in a civil action there is no presumption of intoxication based on blood alcohol level. Prestenbach v. Sentry Insurance Company, supra. From the testimony, the jury could have reasonably concluded the samples were not valid and did not reflect the true alcoholic level of Este’s blood. Because blood alcohol content creates no presumption of intoxication in a civil case, the jury may also have reasonably found that, assuming the sample to be valid, it did not ipso facto establish the degree of Este’s impaired driving ability, if any. Considering all of the evidence on the issue, we find no manifest error in the jury’s rejection of the defense of intoxication. 372 So.2d at 683.

Here, the trier of fact specifically rejected the defense of intoxication, saying:

. . . the evidence is clear that the blood sample was taken by one who was not qualified to do it... .

and

... the court feels that it has not been shown that any drinking was affecting this young man’s driving.

We cannot say that the trial judge was in error in resolving the liability aspects of this case in favor of plaintiffs. The test of proper appellate review is to give great weight to the determination of the trial judge and to overturn him only when his findings are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

QUANTUM

The final issue is quantum. Plaintiffs have answered the appeal and ask that the amount awarded for loss of love and affection be increased from $50,000.00 to $75,000.00 each. The decision of the trial judge relative to quantum is entitled to great weight and may not be altered in the absence of a showing of a clear abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We find that the trial judge did not abuse his discretion herein, and his award of general damages was well within the great discretion permitted by law.

For the foregoing reasons, the decision of the trial court is affirmed at DOTD’s costs, which are fixed at $1,386.19.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Succession of George E. JULIEN v. James A. WAYNE.
    No. 14879.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      C. Ellis Henican, Henican, James & Cleveland, New Orleans, for plaintiff-appellant.
    Alan J. Robert, Gonzales, for defendant-appellee.
    D. Mark Bienvenu, Yoorhies & Labbe, Lafayette, for C. Ellis Henican, defendant-in-reconvention-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

Mrs. Mary Barra, widow of George E. Julien and the administratrix of his estate, on behalf of the decedent’s succession filed a petition entitled, “Petition for Return of Funds with Accounting” against her former attorney, James A. Wayne. The trial court sustained an exception of prescription, and plaintiff has appealed.

It is the characterization of this action and the applicable prescriptive period which is at issue on this appeal.

FACTS

The suit arose when Mrs. Barra investigated the actions of Wayne and believed that Wayne, while attorney for the succession, had moved the court for and received certain monies which he claimed as legal fees, but to which he was not entitled. Mrs. Barra filed suit to require an accounting of the legal services performed by Wayne, and for judgment in the amount of $8,000.00 (the amount for which Wayne successfully moved the district court), plus legal interest from the date the money was received by Wayne. The payment for which the plaintiff sought a return was approved February 4, 1976. The instant suit was filed February 28, 1980.

The defendant filed the peremptory exception of prescription, arguing that the three year prescription of La.Civ.Code art. 3538 applied and that the claim had prescribed accordingly.

TRIAL COURT

The trial court held that the plaintiff’s characterization of this suit determined the applicable prescriptive period, and that since plaintiff asked for an accounting, the applicable prescription was set forth in La. Civ.Code art. 3538 as it relates to “all other accounts.” The trial court stated in its reasons for judgment that the instant action could only be classified as a suit on open account, and found same prescribed by the passage of three years.

SPECIFICATION OF ERRORS

The appellant basically argues that the trial court incorrectly characterized the suit as one on open account, and that the trial court erred in applying the three-year prescription of La.Civ.Code art. 3538 to the instant action.

LAW AND ARGUMENT

Plaintiff-appellant contends that this suit is one based on contract. Thus, plaintiff argues, the 10-year prescription for “all personal actions, except those before enumerated” (C.C. art. 3544) applies, and the claim has not prescribed. The trial court held that La.Civ.Code art. 3544 did not apply because plaintiff neither alleged nor proved that a contract existed between the parties. However, the existence of an attorney-client relationship has been alleged and admitted in the defendant’s answer, so the relevance of alleging an actual contract in determining the applicable prescriptive period is not readily apparent.

The characterization which a plaintiff gives his suit determines the applicable prescriptive period. Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972); Bernard v. Air Logistics, Inc., 407 So.2d 469 (La.App. 1st Cir. 1981).

The trial judge apparently believed that since the word “accounting” was used in the title of the petition, that the suit was one on an open account. However, it is fairly obvious that this is not an open account situation, since there have been no running or current dealings between the parties, with the expectations of further dealings. See Colonial Products Company v. Park Place Homes, Inc., 282 So.2d 574 (La.App. 4th Cir. 1973). Nor does this suit fall within the category of La.Civ.Code art. 3538 of “all other accounts.” The illustrations found in La.Civ.Code arts. 3534 (one year prescription) and 3538 are all for actions seeking to recover for services rendered, merchandise sold or money lent. The phrase “all other accounts” makes the listing in Article 3538 illustrative rather than exclusive. Plaintiff’s action is not for services rendered, merchandise sold or money lent, thus 3538 is inapplicable.

This suit falls under the characterization of a claim for restitution under La. Civ.Code art. 2301 et seq., “Of the Payment of a Thing Not Due.” What Mrs. Barra is alleging is that Wayne was paid legal fees which were not due to him, and she is asking for a return of same. A claim for restitution of payment not due is based on the doctrine of quasi-contract, which prescribes only by prescription of ten years, under La.Civ.Code art. 3544. State ex rel. Guste v. Estate of Himbert, 327 So.2d 698 (La.App. 1st Cir. 1976); writ den. 330 So.2d 308, 311 (La.1976); Smith v. Phillips, 175 La. 198, 143 So. 47 (1932); Lagarde v. Dabon, 155 La. 25, 98 So. 744 (1924).

In Roney v. Peyton, 159 So. 469 (La.App. 2nd Cir. 1935), amended 160 So. 131 (La.App. 2nd Cir. 1935), the receivers of a corporation sued a creditor of the corporation’s president, alleging that the president had partially paid his personal debt with a mortgage note in favor of the corporation. The receivers demanded that the defendant-creditor account for and pay over all money collected by him under the note after it was assigned to him. The Second Circuit stated in pertinent part,

“In passing upon the pleas of prescription, it is necessary to determine whether the action, as brought, is one in tort or upon a quasi contract. The form of an action is governed by the prayer of the petition. In the present case, the demand is not for damages, but for an accounting and the return of a specific sum of money received by defendant, rightly belonging to and for the benefit of plaintiffs.... “Plaintiffs having elected to sue for money had and received, and not for damages, their action is quasi contractu and is subject to the prescription of ten years. Revised Civil Code, article 3544; Smith v. Phillips, 175 La. 198, 143 So. 47.” 159 So. 469, 470, 471.

The prayer of Mrs. Barra is for return of a specific fund (with accounting) and for legal interest from date of payment. This particular form of interest is specifically mentioned in the articles on payment of a thing not due in La.Civ.Code art. 2311, and is available if the payee is lacking good faith.

In oral argument, counsel for defendant questioned how long must an attorney maintain files in order to defend a suit such as this. We note that La.Civ.Code art. 3544 et seq. would seemingly require many individuals to maintain files for 10 years or longer in order to adequately defend certain types of actions. However, it is important to remember that plaintiff must prove her case by a preponderance of the evidence before she can obtain judgment.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to defendant-appellee.

REVERSED AND REMANDED.

      . Wayne also filed a reconventional demand against plaintiff, C. Ellis Henican, plaintiffs current counsel, and XYZ Insurance Company, Henican’s professional liability insurer (whose actual name was unknown to plaintiff-in-recon-vention), alleging that the petition of plaintiff defamed him. This incidental action is not before the court.

      . The defendant’s answer admits that Wayne was engaged by plaintiff to represent her late husband’s estate. Thus, an attorney-client relationship existed even in the absence of a formal contract.


text:
    Damon L. WILLIAMS v. DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE.
    Nos. 14882, 14883.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Raymond L. Cannon, Tallulah, for appellant.
    James C. Dixon, Staff Atty., Baton Rouge, for appellee.
    Laura Denson Holmes, Civ. Service Legal Counsel, Baton Rouge, for George Hamner, Director, Dept, of State Civ. Service.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Damon L. Williams, Trooper First Class, Louisiana State Police, with permanent status, appeals the decision of the Louisiana Civil Service Commission, upholding disciplinary measures taken against him by the Department of Public Safety.

By letter dated December 17,1979, appellant was notified that he was being suspended from duty for a period of fifteen (15) calendar days, effective January 15 through February 2, 1980. The letter was signed by Grover W. Garrison, Deputy Secretary of the Department of Public Safety, and cited an incident which occurred on October 21, 1979, as the basis for the suspension.

The incident began at approximately 4:00 p. m. when appellant was patrolling near Lake Providence, Louisiana, and observed a speeding violation. Trooper John L. Jones was accompanying appellant, as appellant was acting as Jones’ training officer. Although appellant turned on his flashing lights, the offender, who was driving a pick-up truck, did not stop. Appellant then engaged his siren and gave chase but lost the pick-up truck which turned onto a dirt road. Shortly thereafter, appellant found the truck and the chase continued. Ultimately, the pursuit covered several miles, including 5.4 miles into the State of Arkansas, and involved excessive speeds, at times over 100 miles per hour. The chase halted abruptly inside the State of Arkansas on a gravel road when appellant’s unit collided with the rear of the offender’s vehicle. Despite the collision, the offender sped away from the scene, as appellant fired shots at the tires of the fleeing vehicle in an attempt to stop it.

After an investigation, appellant was charged with violating certain procedural orders of the Office of the State Police relating to: (1) the appropriate action to be taken by police officers when required to chase violators, (2) chases entailing misdemeanors and crossing of State lines, and (3) situations requiring the discharge of a firearm.

By letter dated May 28, 1980, appellant was further notified that he was suspended from duty for an additional three days and was to lose the off-duty use of his State Police vehicle for a period of twenty days, both periods to begin June 14, 1980. The Fleet Accident Review Board, a division of the Department of Public Safety, recommended the additional suspension, which was more specifically directed to appellant’s actions in causing the rear-end collision.

Appellant filed appeals to the Louisiana State Civil Service Commission on both the 20-day loss of off-duty use of the State Police vehicle, and the two suspensions, claiming these disciplinary measures were unjustified. After considering the evidence, the Commission found that the actions of the Department of Public Safety were reasonable and denied appellant’s appeal.

Appellant argues that the decision of the Commission is not supported by the law or the evidence. Specifically, he alleges as error the Commission’s finding that he was negligent when his unit struck the rear of the offender’s vehicle, and that he violated certain procedural orders in pursuing the offender and discharging his firearm.

The decisions of the Commission are subject to review on any question of law or fact. La.Const. (1974), Art. 10, § 12; Gallardo v. Department of Fire, 399 So.2d 626 (La.App. 4th Cir. 1981); Dundy v. Louisiana State University, etc., 394 So.2d 650 (La.App. 1st Cir. 1980); Sanders v. Dept. of Health & Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1980) writ denied 399 So.2d 602 (La.1981). It is well established that the standard of review in cases on appeal from the Commission is the same standard used in reviewing decisions from the trial courts. The factual determinations of the Commission will not be set aside unless they are shown to be manifestly erroneous. Department of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir. 1981) writ denied 406 So.2d 626 (La.1981); Gallardo, supra; Albert v. Louisiana State Penitentiary, 396 So.2d 340 (La.App. 1st Cir. 1981); Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976) writ refused 343 So.2d 1078 (La.1977). Thus, great weight is given to the factual conclusions of the trier of fact. Sanders, supra; Arnold v. New Orleans Police Dept., 383 So.2d 810 (La.App. 4th Cir. 1980) writ denied 385 So.2d 274 (La.1980); Hebert v. Dept. of Police, 362 So.2d 1190 (La.App. 4th Cir. 1978).

Consideration of the evidence produced at the appellant’s hearing led the Commission to make the following findings of fact:

Appellant observed a traffic violator proceeding at 68 mph in a 55 mph zone. Appellant put on his red light and gave chase. The violator attempted to evade. Appellant lost contact with the violator and turned off his siren and light, on the Mason front road. However he again saw the violator and again put on his lights and siren and resumed the chase. At one point during the chase, appellant reached speeds of 100 mph.
Appellant pursued the violator into the state of Arkansas.
After pursuing the traffic violator for a distance of approximately 5.4 miles into the state of Arkansas, the chase concluded on a gravel road when appellant’s vehicle struck the rear of the violator’s vehicle and became immobile.
As appellant attempted to exit his vehicle it rolled into a ditch.
After exhiting (sic) his vehicle appellant fired shots at the vehicle of the fleeing violator, without avail.
The police unit operated by the appellant was seriously damaged as a result of the rear end collision with the violator’s vehicle and as a further result of going into a ditch.
Appellant was aware of all procedural orders regarding pursuit across state lines and regarding firing of a weapon.
The only offense that appellant had seen at the out-set of the chase was a traffic violation.
The violator was found to have been under the influence of alcohol.
Trooper John L. Jones, Troop F, Monroe, Louisiana, was present in the vehicle during the chase, since appellant was acting as his training officer.

Appellant’s own testimony at the hearing substantiates these findings of fact. He testified that part of the high-speed chase occurred on a bad road with many curves; that other vehicles ran off the road to avoid being hit; that Trooper Jones suggested stopping the chase; that speeds of over 100 miles per hour were required at times to maintain the chase; and that although he suspected that the offender was a felon, the only crimes he ever actually saw committed were traffic violations. Furthermore, plaintiff admitted following two or three car lengths behind the violator at 45-50 miles per hour on a dusty gravel road in Arkansas; that when the violator came upon a bean truck in the road which he could not pass, he applied his brakes and collided into the rear of the offender’s vehicle; that when he exited his vehicle to fire shots at the fleeing vehicle, he failed to put his unit in park and his car rolled into a ditch and was extensively damaged.

In Lally v. Department of Police, 306 So.2d 65 (La.App. 4th Cir. 1974), the Fourth Circuit stated:

It is further understood that a police officer by voluntarily accepting a commission and becoming an employee consents to being subject to all reasonable regulations.
306 So.2d at 66.

The Department of Public Safety based its disciplinary measures on alleged violations of certain procedural orders. Those we feel particularly pertinent read in part as follows:

Procedural Order Number 404.1, Section II, Part B:
In chasing violators, troopers are not expected to take undue chances and should not consider the situation a “personal challenge” to stop the violator. When the violator begins to seriously endanger the lives of innocent persons upon the highway by passing on curves or in the face of oncoming traffic, the trooper should discontinue the pursuit unless: (1) the violator is a felon who has committed a crime which endangered life; or (2) the actions of the violator are such that the trooper reasonably believes that his continued freedom would seriously jeapor-dize the lives of other motorists. In all cases of pursuit, officers will notify Troop HQs or other law enforcement agency giving details and direction of pursuit. Procedural Order Number 416.1, Section VII, Paragraph B(2):
An officer shall not fire upon or as a warning to, a person who has been ordered to halt because of a mere suspicion and who, without making any resistance, simply runs away to avoid arrest.
Procedural Order Number 307.1(A),
... a driver is Negligent when that driver operates a vehicle without conscious regard to circumstances that are contributory to accidents and otherwise lacks care and diligence in the safe operation of the vehicle without realization of potential danger.

Our review of the record, particularly appellant’s own admissions, leads us to conclude that there is ample evidence to support the Commission’s findings of fact and its decision, which affirmed the disciplinary measures. Although we do not in any way sanction the actions of the violator, it appears that the danger to motorists created by the high-speed chase and the subsequent rear-end collision, could have been completely avoided or at least minimized by appellant. Absent more sufficient proof of suspected criminal activities, appellant had a responsibility to use better judgment.

A person who has gained permanent status in the classified State service may be subject to disciplinary action if the conduct complained of by the appointing authority impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Department of Public Safety v. Rigby, supra; Albert v. Louisiana State Penitentiary, supra. Our review of the record reveals that the Department of Public Safety adequately established that appellant’s actions fell within this type of proscribed conduct.

For the foregoing reasons, we affirm the decision of the Commission. All costs are assessed to appellant.

AFFIRMED.


text:
    Shelton ROBERTS v. ROLENE CORPORATION.
    No. 14887.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Michael V. Clegg, Baton Rouge, for plaintiff-appellee Shelton Roberts.
    Michael R. Connelly, Baton Rouge, for defendant-appellant Rolene Corp.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Plaintiff, Shelton Roberts, signed a purchase agreement on June 1, 1979, wherein defendant, Rolene Corporation, agreed to construct a home and pool for the agreed price of $95,000.00. A subsequent purchase agreement was signed on September 5, 1979, which raised the price to $105,000.00, to cover the cost of a solar heat system.

Although the house was constructed, the sale was never completed because at the closing on October 17, 1979, the parties could not agree on the actual price. Plaintiff was prepared to pay $105,000.00, plus approximately $7,000.00 or $8,000.00 for additions and extras which he had authorized. Defendant wanted approximately $140,-000.00, claiming the extra cost was due to several alterations and additions requested and approved by plaintiff.

The home was subsequently destroyed by fire. Defendant had insurance which paid $70,000.00. After the fire, the home was rebuilt and sold by defendant for a disputed amount ranging between $115,027.66 and $135,527.66.

Plaintiff filed suit, claiming that defendant breached the purchase agreement and asked for damages of $12,000.00. Plaintiff had paid $10,000.00 to purchase the lot and had expended $2,000.00 on glass doors for the house.

Defendant denied the allegations and charged that plaintiff breached the contract by refusing to buy the home and refusing to pay for the extras. Defendant reconvened claiming damages of $161,348.89 plus a daily interest charge of $45.00 on the construction loan and reasonable attorney’s fees in the amount of $5,000.00.

The trial judge signed a judgment in favor of plaintiff for $12,063.82, plus legal interest and costs and dismissed defendant’s reconventional demand. From this judgment, defendant appeals, urging that the trial judge was manifestly wrong in failing to award damages to it for plaintiff’s alleged breach of contract and in awarding plaintiff $12,063.82. Plaintiff answered the appeal alleging the trial judge erred in failing to award attorney’s fees under a specific provision in the contract.

The purchase agreement for $105,000.00, signed by both parties on September 5, 1979, reveals the following handwritten language:

House to be erected by Rolene Corp. using plan 3 — 4567-78 revised and attached and the pool portion of plan 79-5306B revised and attached. $10,000.00 lot payment has been made by purchaser to seller and is included in the $105,000.00 sales price.

On the reverse side under “OTHER CONDITIONS, Addendum 2,” it is stated:

The undersigned Sellers and Purchasers hereby further agree to the following: Sales price on reverse side is based on pool & pool covered area to be. performed on a cost plus 10% basis with savings returned to buyer. $10,000 paid to builder for lot is part of sales price, on reverse side. All additional extras and changes to be paid by buyer.

Plaintiff stated that he was to pay $105,000.00 for the lot, house, pool and pool covered area and was to additionally pay for any extras he authorized. This was the interpretation adopted by the trial judge. That finding may not be set aside absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Mr. Carlton H. McConnell, defendant’s witness, was the realtor who drafted the original agreement for $95,000.00. When questioned by the court, he testified as follows:

Q Was it your understanding that even with the cost plus portion of the contract for the pool and the covered area that the total price was still not to exceed, no matter what, it was not to exceed $95,000.00?
A Yes, sir, per the plans and specs which were referred to in the contract and made a part of by reference.
Q But the pool and the covered area is definitely a part of the $95,000?
A Yes, sir, that’s correct.
Q All right. Thank you.

Mrs. Allalee G. Thibodeaux, real estate agent for plaintiff, testified as to the original and subsequent purchase agreements:

Q And does the contract provide for a sale price?
A Yes, it does.
Q Do you know how this sale price was reached, of $95,000?
The $95,000 was to be the price of the house, the pool and covered area, and the lot.
And do you know exactly what figures they took in to compute the $95,-000? <y
As I recall, they had set about $63,000 for the house and — $63,000 for the house and lot; either a lot of Mr. Griffis that he owned or one that Mr. Roberts had under consideration, and the pool and covered area.
And how much did they figure for the pool and pool covered area? <y
About $29,000. <
And why is it then if you add $63,000 plus $29,000 that comes to $92,000: Why was the contract written for $95,000? <y
The pool was to be on a cost plus basis with a possible return of savings because they estimated about $29,000 but they had written this at $95,000 to fully cover, to give some leverage, and then with a savings on the pool to be returned to the buyer.
Was this pool, house and lot supposed to exceed the sum of $95,000? 40
This was what they estimated, $95,-000 would be ample coverage,

further, > Cu

And this next one is Joint-3? 40
That’s the final contract written just shortly before closing. >
Okay. And what is the date of this particular contract when it was written? <y
We put the date of June simply to hold a line. It was actually drawn about the 1st of October.
Okay. And what is the sales price on this house? 40
Was $105,000. >>
Why the difference between $95,000 on the first and second purchase agreement to $105,000 on the third? 40
Because the original plan did not cover solar. Mr. Roberts wanted to go solar; they had gotten the figures; Mr. Roberts had gotten these himself, and these would cover the costs of the addition of the solar.

The record amply supports the trial judge’s conclusion that the cost of the lot, home, pool, pool covered area and solar heat system was included in the sales price of $105,000.00, and that the buyer was liable only for any extras which he authorized.

At the closing, plaintiff was prepared to pay the sales price and extras amounting to approximately $7,000.00 or $8,000.00. Defendant insisted that plaintiff had approved approximately $35,000.00 in extras. Plaintiff requested receipts and validation of these alleged expenditures; however, defendant was only able to present a list of the items and could not produce invoices to document its claims.

At trial, plaintiff admitted that he approved some changes and/or additions, including a heater for the pool area (approximately $400.00), excess on the allowance for the carpet, vinyl and wallpaper (approximately $525.00), a bathhouse (approximately $1500.0Q-$1800.00), and ceiling fans (approximately $2200.00-$2300.00). The burden was on defendant to prove the authorization and costs of any extras above those admitted. Louisiana Civil Code Art. 2763 provides:

When an architect or other workman has undertaken the building of a house by the job, according to a plot agreed on between him and the owner of the ground, he can not claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the owner. (Emphasis ours.)

Defendant offered no proof of a written authorization by plaintiff for the alleged extras. There was some testimony regarding plaintiff’s visits to the site and requests for changes. However, most of this testimony concerned work which plaintiff admitted authorizing, or involved the pool area which was part of the agreement. Plaintiff cannot be held liable for extras on the theory that they were made with his knowledge and without objection, where the evidence establishes a reasonable ground for the belief that the extras were contemplated by the contract. Bert’s Boat Works, Inc. v. Cuccia, 278 So.2d 134 (La.App.4th Cir. 1973); Bagur v. Power, 156 So.2d 248 (La.App.4th Cir. 1963).

Even if the owner does consent to changes, the contractor has the burden of proving that extra work and extra material were furnished and its value. Gulotta v. Swinney, 143 So.2d 775 (La.App.1st Cir. 1962). Defendant presented invoices attempting to prove its expenses for the extras. However, it was never able to separate the primary costs incurred under its obligation to build the house, pool, etc., from the alleged extras. The invoices merely showed the total amount expended for various items and did not satisfactorily separate the primary work from the extra work.

We find that defendant did not sustain its burden of proving the authorization or expense of the alleged extras, and it breached its obligation to sell the home on October 17, 1979, for the agreed price of $105,000.00, plus extras approved by plaintiff.

Plaintiff has answered the appeal, claiming attorney’s fees under the following provision of the purchase agreement:

Time is of the essence in this contract. In the event of default by either party, the non-defaulting party shall have the right to demand and sue for specific performance and/or damages. The defaulting party under this contract shall also be liable for the REALTOR’S fee and all attorney’s fees and other costs incurred in the enforcement of all rights under this contract.

Because of this express provision, and our finding that it was defendant who breached the agreement, we feel that plaintiff is entitled to attorney’s fees in the amount of $2,000.00.

For all of the foregoing reasons, the judgment of the trial court is affirmed and amended in accordance with the opinion set forth herein. All costs of this appeal are assessed to defendant-appellant.

AFFIRMED AND AMENDED.


text:
    Mary Elizabeth CLARKE v. Frank Henry BRECHEEN.
    No. 14888.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Ashton L. Stewart, Baton Rouge, for plaintiff-appellee Miss Viola Anderson, Dative Testamentary Executrix of the Succession of Mary Elizabeth Clark.
    .Walton J. Barnes, Baton Rouge, for defendant-appellant Frank Henry Brecheen.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This matter was once before this court, Clarke v. Brecheen, 387 So.2d 1297 (La.App. 1st Cir. 1980), writs denied, 394 So.2d 606 and 607 (La.1980), at which time we reversed the judgment of the trial court and remanded, “so that the succession executrix can decide which option to take and so that the amount of rents actually collected from date of judicial demand can be determined, and a final judgment rendered.” See the original opinion by this court for a full recitation of the facts and law.

On remand, the testamentary executrix made her election from the available options. Both parties stipulated that the total rent due from defendant to plaintiff was $4,240.00 for the period of time since judicial demand, and that the enhanced value of the property from the improvements made by defendant prior to the filing of this suit was $1,750.00. A judgment was rendered accordingly.

Subsequently defendant, Brecheen, applied for a partial new trial, contending that the trial court erred in not allowing defendant to set off certain expenses incurred by him which were necessary for the preservation of the property. Additionally, the trial court judgment on remand ordered defendant to pay all costs, whereas the judgment of this court ordered only that defendant pay the cost of the appeal, and defendant also applied for a new trial on those grounds. In applying for the new trial, defendant argued that the judgment was contrary to the law and evidence. La. C.C.P. art. 1972. The trial court denied the motion for a partial new trial. The defendant has appealed.

We find no error on the part of the trial court in not considering the set off of additional expenses and in taxing costs in the trial court to the defendant.

On remand, plaintiff and defendant stipulated to the rental and enhanced value figures, and neither sought the introduction of any additional evidence. The only evidence before the trial court prior to its judgment on remand was that stipulated to. Therefore, since the trial court had before it only that evidence which was stipulated to, and its judgment on remand was based on that evidence, it cannot be said that the judgment is contrary to the law and evidence.

The defendant-appellant does not claim that expenses he sought to set off was evidence discovered since the trial and important to the cause, which he could not, with due diligence, have obtained before or during the trial. Since the judgment is not clearly contrary to the law and evidence and there was no newly discovered evidence subsequent to the judgment, no peremptory grounds exists under La.C.C.P. art. 1972.

It is not claimed by defendant that good ground was shown, La.C.C.P. art. 1973, for the granting of a new trial, but even if same was so claimed, we would find no abuse of discretion on the part of the trial judge in denying a new trial.

In our original opinion wherein we remanded this matter to the trial court, we held the defendant was to pay all costs of the appeal, not mentioning the cost in the trial court. Since this matter was being remanded to the trial court, it was proper for the trial court judge to fix costs in the trial court under the authority of La.C.C.P. art. 1920. We find no error or abuse of discretion on the part of the trial court judge.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. All costs, both in this court and in the trial court are assessed to defendant-appellant.

AFFIRMED.

      . Defendant-appellant’s brief provides a description of each item claimed in the set off, and each was in existence and presumed known to the defendant well prior to the trial court judgment on remand.


author: EDWARDS, Judge.

text:
    Jesse Lee BRUTON v. STANDARD SUPPLY & HARDWARE COMPANY & United States Fidelity & Guaranty Company.
    No. 14987.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Jesse Lee Bruton, in pro. per.
    Ben Louis Day, Baton Rouge, for defendants-appellees Standard Supply and Hardware Co. & United States Fidelity & Guaranty Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

This appeal was scheduled for submission on May 6, 1982, and all attorneys of record and appellant (appearing in proper person) were notified. Appellant was not present or represented at that time, nor had any brief or motion for continuance been filed on his behalf. On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Leona L. ROSS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Huey P. Long Memorial Hospital.
    No. 15002.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Robert B. Neblett, Jr., Neblett, Weeks, Beard & Arsenault, A Partnership of Law Corporations, Alexandria, for appellant.
    Sidney W. Hall, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for George Hamner, Director Department of State Civil Service.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

This appeal was scheduled for submission on May 7, 1982, and all attorneys of record and appellant were notified. Appellant was not present or represented at that time, nor has any brief or motion for continuance been filed on his behalf. On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Kenneth David BILLIOT v. Marlene Ousley BILLIOT.
    No. 15029.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Gary L. Newport, Berwick, for plaintiff.
    Sharon Bradley, Acadiana Legal Service Corp., New Iberia, for defendant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Kenneth David Billiot (plaintiff) and Marlene Ousley Billiot (defendant) were legally separated on December 12, 1980. Four children were born of their marriage: Chantelle, Michelle, and twins, Sangel and Travis. A prolonged custody battle has been waged for the custody of these children. After a lengthy hearing on October 10,1980, the trial court temporarily granted custody of Chantelle and Michelle to plaintiff and custody of the twins to defendant. The court ordered that the Department of Health and Human Resources (DHHR) institute home studies on both parents. The court continued its provisional custody order as part of the judgment of separation. On January 27, 1981, an additional custody hearing was held, as the court had received the initial home study investigations. On that date, the temporary order dividing custody was made permanent. On May 29, a judgment of divorce was obtained and the custody order previously rendered was continued. On July 1, 1981, an evidentiary hearing on plaintiff’s rule for custody of all four children was held. Plaintiff alleged that circumstances had changed because defendant had given birth to an illegitimate child. But after the hearing, the court continued its divided custody order. Both parties have appealed, as each seeks custody of all four children.

The facts developed at the evidentiary hearing held October 10, 1980, indicate that plaintiff and defendant were married on June 23, 1972, in St. Mary Parish, Louisiana; that four children were born of the marriage: Chantelle Marie, on February 6, 1973; Michelle Monique, on May 20, 1974; Travis Paul and Sangel Ann, on January 12, 1977; that in the initial years of their marriage the parties lived in a trailer in Inter-coastal City; that the parties purchased a four-bedroom home in Berwick in March of 1979, where they lived together until their separation in May of 1980; that all during their marriage the parties had numerous difficulties, primarily financial in nature, as defendant was apparently not highly adept at handling money and was impulsive in some of her buying habits; that defendant had taken an overdose of pills; that plaintiff was gainfully employed throughout their marriage as a vice-president and port captain for D & G Boat Rentals of Berwick; that he had a salary of approximately $2,000.00 per month; that plaintiff believed in corporal punishment and did on occasion administer discipline with a belt; that after the parties separated, the defendant and the four children moved to her mother’s house in Jeanrette; that during this time, defendant obtained a job as a bartender but was involved in an automobile accident when returning home from work one night and was unable to continue working; that at the time of the hearing defendant was residing in a trailer in New Iberia and sharing the rent with a female roommate; that she was unemployed; that she had no transportation; that the trailer had three bedrooms, one that she occupied, one the roommate occupied, and one for the children; that plaintiff continued to live in the community-owned house in Berwick; that Chantelle and Michelle were in school in Berwick and resided in the family home with plaintiff; that plaintiff’s parents resided in Berwick and were available to render assistance whenever necessary.

In his oral reasons for the award for temporary custody, the trial judge indicated that he felt plaintiff was basically a good parent but a little overbearing in his discipline; that plaintiff’s home in Berwick and the fact that his family also resided there would make it easier for the older children to be brought up in Berwick, especially since they were in school; that defendant lived in New Iberia in a trailer without a car, without a job, without much family nearby; that he had some reservations about her stability, as she had attempted suicide, by her own admission. The trial judge ordered home study investigations by DHHR and divided the custody while recognizing that the law did not favor such divided custody arrangements. After considering the strengths and weaknesses of both parents, the trial judge decided that divided custody monitored by DHHR was best for these children, because he did not want to separate the four-year-old twins from their mother, and felt she was in no position to care for all four children.

The DHHR home study reports received for the January hearing did not alter the trial judge’s opinion, and he maintained the divided custody. The second custody rule held in July of 1981 revealed the following additional facts: that plaintiff’s circumstances had not changed remarkably since the first evidentiary hearing; that no new allegations relative to harsh discipline were presented at this hearing; that plaintiff had a problem keeping a good housekeeper but had arranged his work schedule in such a manner that he was available personally to attend to his children; that defendant had given birth to an illegitimate child after an adulterous relationship and that said child was living with defendant along with the twins; that defendant had obtained employment as a clerk in the neighborhood grocery store; that she had received three separate raises since going to work and was doing quite well in her position; that she no longer lived in a trailer but had rented a three-bedroom house in New Iberia with a fenced-in yard several blocks from her place of employment; that her children were cared for by a close family friend during her employment hours; that the friend refused to accept money for caring for the children; that defendant had been able to buy a used car so she could take her children to the babysitter and then go to work; that defendant was hoping to be in a position to purchase the house she was renting in the near future.

After hearing all the evidence, the trial judge maintained the divided custody order of January 27, 1981, orally finding that plaintiff’s circumstances had not appreciably changed; that defendant had become pregnant by another man, which gave him concern about (1) her moral fitness, and (2) whether as a practical matter she would be able to take care of the twins, two older children, and a new baby. The trial judge was impressed that defendant had made great strides in improving the stability of her home and her economic situation. He was pleasantly surprised with the improvements and felt that they sufficiently offset his concern about the fifth child. He found that he could not change the situation he had earlier ordered, as he felt that the best interests of the older children would not be served by putting all five children in defendant’s house. On the other hand, he could not see taking the twins away from defendant, especially since she was doing so well. The Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980), laid down the appropriate test for appellate review after reviewing the legislative intent in the amendments to C.C. Art. 157, the Supreme Court said,

. . . the best interest of the child and not the possibility of harm, is the sole criteria applicable to change of custody cases. 390 So.2d at 1328.

Further,

. .. even though there is no longer an inflexible rule with regard to changes of custody, the policy consideration underlying the rule, stability of environment, is still relevant to a determination of the best interest of the child. 390 So.2d at 1329.

Here, the trial judge obviously labored over his decision as to the best interests of these children. His concern over their welfare is very obvious when reading his oral reasons for judgment. Initially, he did not want to divide the children, but he clearly set forth valid reasons for doing so. Later, he had the benefit of home studies of the respective homes. The second eviden-tiary hearing did not change his mind, and he again expressed concern over the divided custody; but again he felt that the best interests of these children required divided custody. It was obvious that he was most concerned with the stability of environment criteria, as articulated in Bordelon, supra, when he decided it would not be in the best interest of Chantelle and Michelle to take them from their father at this point and place them with their mother and three very small children.

We are not in a position to say that he committed manifest error in so doing. The test for proper appellate review is to give great weight to the determination of the trial judge, and to overturn his determination only when there is a clear abuse of discretion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Further, a conclusion reached by a trial judge derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact. Bordelon, at p. 1329.

Accordingly, we find the decision of the trial judge in this case was not manifestly erroneous, and affirm his decision, granting the permanent care, custody and control of Chantelle and Michelle Billiot to plaintiff, and granting the permanent care, custody and control of Sangel and Travis Billiot to the defendant.

The costs are assessed one-half to each party.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Vikki F. RUTLAND v. James B. RUTLAND.
    No. 15095.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellee Vikki F. Rutland.
    Roland C. Kizer, Jr., Baton Rouge, for defendant-appellant James B. Rutland.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a dispute over child custody of a five year old girl, Kennan Leigh Rutland. On July 14, 1981, James B. Rutland was granted a divorce from Vikki F. Rutland, reserving to both parties “the right to pursue both child custody and child support.” A separate hearing was held on October 1, 1981, and permanent custody was awarded to Mrs. Rutland in judgment signed on October 7, 1981. James Rutland appealed the custody award. We affirm.

Our examination of the record reveals that both parties are concerned and devoted parents, as well as loving (if not doting) parents. This young girl has been in the custody of the mother since the separation of the husband and wife on March 8, 1980, but has periodically visited with the father during that time. Mrs. Rutland has remarried, and the evidence shows that there is a good family relationship among daughter, mother and stepfather. She is capable of providing a good home for her child. The trial judge obviously concluded that Mrs. Rutland would provide the child with the more desirable home environment and that granting custody of Kennan Leigh to her mother was in the best interest of the child. In so concluding, he remarked:

“Well, this must be a precious little girl. She is talented. It is tragic that the parents no longer live together; but it is fortunate for her that I think both of these people strike me as very decent, loving parents; and I think the child would do well in either home. .. . ”

The law dictates that “the best interest of the child” must be the primary concern of the courts in granting custody. LSA-C.C. art. 157. An examination of the record reveals that the trial court gave proper weight to all of the factors in the case in determining the best interest of the child. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. See Stephenson v. Stephenson, 404 So.2d 963 (La.1981); Monsour v. Monsour, 347 So.2d 203 (La.1977). We find no such abuse in the present case.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.