text:
    Hugh COLEMAN, Sr., et al., Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 82-247.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiffs-appellants.
    Provosty, Salder & deLaunay, Albin A. Provosty, Stafford, Stewart & Potter, Walter E. May, Alexandria, for defendants-ap-pellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

The plaintiffs, Hugh Coleman, Sr. and Hugh Coleman, Jr., bring this action to recover damages for personal injuries and property damage arising from a multi-vehi-cle collision. Made defendants were Lucille D. Carpenter and her insurer, American Mutual Insurance Company, and Robert E. Stewart and his insurer, St. Paul Fire and Marine Insurance Company. The jury returned a verdict finding Hugh Coleman, Jr. contributorily negligent, and judgment was entered dismissing the claim.

The sole issue on this appeal is the correctness of the jury’s factual determination that the plaintiff, Hugh Coleman, Jr., was contributorily negligent. Because their determination is not clearly erroneous, we affirm.

The accident in question occurred on March 20, 1980, on U.S. Highway 71 North near Center Street in LeCompte, Louisiana. At the point where the accident occurred, Highway 71 North is a two lane roadway accomodating traffic in one direction only. At the time of the accident, the road was wet and visibility was impaired due to rain. The vehicles of the plaintiff and both defendants were travelling in the same direction on Highway 71 when the accident occurred.

The jury was presented two widely divergent versions of how the accident occurred. The plaintiff, Hugh Coleman, Jr., testified that the vehicle of Mrs. Carpenter was stopped in the right lane of Highway 71 with the left turn signal on. He stated that rather than attempt to pass her on the left, he brought the refrigerated truck he was driving to a stop behind her to wait until she cleared the right lane. He testified that he had remained stopped for a short period of time when he was struck from the rear by the vehicle being driven by the defendant, Robert E. Stewart. Stewart was driving a wrecker with two cars in tow. According to the plaintiff, the force of this initial collision propelled his truck into the rear of the car being driven by Mrs. Carpenter. The wrecker then veered to the right, where it collided with the rear of a tractor-trailer, owned by McClean Trucking Company, which was parked on the shoulder of the road.

The testimony of Coleman was corroborated by the testimony of the defendant, Mrs. Carpenter. She testified that she was stopped or moving very slowly in the right lane preparing to make a left turn onto Center Street. She stated that the truck being driven by Coleman was also stopped or moving very slowly behind her, and that she “knew that he was watching me and I was watching him and he knew exactly what I was fixing to do.” Tr. pg. 19. She testified that at that point she was “bumped” from the rear by Coleman’s truck. It was her opinion that the truck had been struck from behind, causing it to strike her car.

The testimony ’of Stewart was conflicting. Stewart testified that prior to the accident, his wrecker and the truck driven by Coleman were travelling side by side, with the wrecker in the right lane and Coleman’s truck occupying the left lane. He stated that Coleman’s truck began to gradually pull ahead of him, and that immediately prior to the accident, the rear bumper of Coleman’s truck was roughly even with the front bumper of the wrecker. He testified that at that point, Coleman’s truck suddenly swerved into the right lane with its brake lights on, in a skid on the wet pavement. Stewart stated that he immediately applied his own brakes and also went into a skid, striking the rear of Coleman’s truck and then colliding with the rear of the tractor-trailer.

The testimony of Stewart was corroborated by that of Ronnie Deal. Deal testified that he was driving his car in the left lane of Highway 71, and that prior to the accident his car was roughly parallel to one of the cars being towed by Stewart’s wrecker. He stated that Coleman’s truck was travelling in the left lane directly ahead of him, when the brake lights came on and Coleman’s truck skidded into the right lane into the path of Stewart’s wrecker, causing the wrecker to strike Coleman’s truck and then veer to the right where it struck the tractor-trailer.

After hearing the two conflicting versions of how the accident occurred, the jury returned a unanimous special verdict finding the plaintiff, Hugh Coleman, Jr., guilty of negligence, and that this negligence was a proximate cause of the accident.

When there is a conflict in testimony, the trial court’s evaluation of the credibility of witnesses should not be disturbed upon appellate review unless it is clearly erroneous. The trial court is in a far better position in which to assess the credibility of live witnesses as compared to the appellate court’s access only to a cold record. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir.1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975).

The jury found that the plaintiff, Hugh Coleman, Jr., was guilty of negligence. Presumably, they were impressed by the testimony of the defendant, Robert E. Stewart, and the witness, Ronnie Deal, as opposed to the testimony of the plaintiff and the defendant, Lucille D. Carpenter. Our careful review of the record reveals no showing that the jury’s determination was clearly erroneous.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed. All costs are assessed to plaintiffs-appellants.

AFFIRMED.

      . At the time of the accident, which occurred on March 20, 1980, the Louisiana Comparative Negligence Statute had not taken effect, and contributory negligence on the part of a plaintiff barred recovery. LSA-C.C. Art. 2323.


source: Caselaw Access Project

author: DOMENGEAUX, Judge. GUIDRY, Judge,

license: Public Domain

text:
    Helen M. ABSHIRE, et al., Plaintiffs-Appellees, v. Rexby DUBOIS, et al., Defendants-Appellants.
    No. 82-248.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Louis G. Garrot, Abbeville, for plaintiffs-appellees.
    Caffery, Oubre & Dugas, David R. Dugas, New Iberia, for defendants-appellants.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is an action in tort for personal injuries and lost wages sustained by the plaintiffs, Helen and L.J. Abshire, as a result of a collision between plaintiffs’ 1975 Chevrolet automobile and a cow belonging to defendant, Rexby Dubois. The accident occurred on Vermilion Parish Road P-3-10 near the Abbeville City Limits in Vermilion Parish, Louisiana, at approximately 6:30 P.M. on October 30, 1979. From a judgment of the district court in favor of plaintiffs and against defendants, Rexby Dubois and his liability insurer, Southern Farm Bureau Casualty Insurance Company, in the sum of $184,741.00, plus interest and costs, defendants have taken this appeal.. We affirm.

The substantial issues presented on appeal are:

(1) Whether or not the trial judge erred in finding that defendants failed to adequately rebut their presumption of negligence;

(2) Whether or not the trial court erred in casting defendants in judgment for loss of past and future wages; and

(3) Whether or not the trial judge abused its discretion in awarding general damages in this case.

The essential facts are undisputed. On the aforesaid evening Mrs. Abshire was driving her automobile on Vermilion Parish Road P-3-10 in a southerly direction, at approximately 25 mph when a cow suddenly appeared on the roadway immediately in front of her. Apparently, the cow exited a roadside ditch into Mrs. Abshire’s lane of travel, and she was unable to avoid the collision. Shortly thereafter, it was determined that the cow belonged to defendant Dubois. Although it was not completely established at trial whether the accident occurred just inside or just outside of the Abbeville city limits, it was determined that in any event the area in question was controlled either by an existing city or parish ordinance prohibiting the roaming of cattle at large, which establishes the fact that the accident occurred in a closed range area.

Appellants contend that the trial court erred in requiring defendant Dubois to explain the presence of a cow on the highway in order to rebut the presumption of his negligence arising from the fact that Du-bois’ cow was roaming outside of Dubois’ fenced pasture in a closed range area. In essence, appellants claim that after finding that Mr. Dubois had taken all reasonable and prudent measures and precautions in maintaining his cattle within his fenced pasture, the trial judge erred by further requiring the defendant to show how the cow escaped from its enclosure. We disagree.

It is well settled in our jurisprudence that when an automobile strikes a horse or cow in a closed range area the burden of proof rests upon the owner to exculpate himself from “even the slightest degree of negligence.” See Young v. Sentry Insurance Company, 315 So.2d 93 (La.App. 3rd Cir.1975); writ denied 319 So.2d 419 (La.1975), and the cases cited therein.

In Young, supra, this Court addressed this very issue as follows:

“Thus, a legal presumption of fault or negligence on the part of the animal’s owner is created in such cases. In order to rebut same the defendant must not only show that he has taken all reasonable and prudent measures and precautions to enclose his livestock, but must also explain the presence of the animal on the highway by showing when, where, and how the animal escaped from its enclosure, that is, his complete freedom from fault. Womack v. Rhymes, [300 So.2d 226], supra; concurring opinion in Ross v. Del Valle, 277 So.2d 163 (La.App. 3rd Cir.1973) and cases cited therein.” (Emphasis added)

Also see Rodrigue v. Mayet, 359 So.2d 1324 (La.App. 4th Cir.1978); and Quarles v. Tolar, 312 So.2d 350 (La.App. 2nd Cir.1975).

In the present case the defendant pastures his 40 to 45 cattle on some 80 to 90 acres of land. Although defendant and his grandson-in-law both testified that they checked the fence the day following the accident and found no defects in it which could have allowed the cow to escape, they were unable to explain how the cow found itself to the highway the night before. Furthermore, Mr. Dubois readily admitted that the cow could have been out as much as one week before the accident. In light of the aforementioned, we agree with the court below that the defendants failed to adequately rebut the presumption of their negligence in not showing when, where, and how the animal escaped from its enclosure.

Appellants next contend that the trial judge erred in awarding plaintiff damages for lost past and future earnings, and furthermore abused his discretion in the award given for general damages. We disagree.

In reasons orally assigned, the district judge correctly stated the facts and gave reasons for the various items of the award as follows:

“The Court will award in favor of Mr. Abshire on behalf of the community $4,104.01 representing medical expenses. With the new law on the community, I’ll let you figure the loss wages from the date of the accident to January 1, 1980, which I will award to Mr. Abshire on behalf of the community; but after January 1, 1980, the loss wages would be awarded to Mrs. Abshire. The total not to exceed fifteen thousand six hundred dollars ($15,600.00).
MR. GARROT: Excuse me, Judge. The total of both?
THE COURT: Yes. That’s loss of wages to the date of trial. Mrs. Abshire has testified at length about her pain and suffering from mental anguish. The Court has studied the testimony of the physicians and they substantiate the fact that she has some problems in the mid high back and the neck area, the cervical area, and as to the low back that she has a ruptured disc at L-4-5. The testimony is that from Dr. Blanda that most surgical, most disc injuries are treated conservatively, that surgery in about fifteen percent of the cases does not help the patient. The testimony is that the low back injury is more severe than the upper back or neck injury. The testimony of the medical experts is I think unanimous that she can’t do stooping, bending, standing up, climbing, walking to any great degree. In fact, and not to pick up any more than twenty five pounds. It is now more than two years post-injury and she still has the complaints. Generally after that period of time the difficulty will persist. The Court feels that she is probably not employable, most likely not employable, not only because of the physical restrictions she has but also because industry and commerce generally and persistently do not want to employ anyone who has had a severe back injury, particularly something like a ruptured disc. The Court will award to Mrs. Ab-shire for future loss of wages, and this I calculated on an annual wages discounted at ten (10) percent, and that figure is $65,037.00. I have checked the jurisprudence on quantam and probably the top range for a disc injury I would say is about $150,000.00. The bottom range is probably $45,000.00, $50,000.00. However in a recent case, with ten (10) percent disability of a disc, that figures something like $54,000.00, which was sometimes last year. Of course, inflation is still rising. Not only does Mrs. Abshire have a ruptured disc, but she has the mid-back, high mid-back area. There’s some, as I recall, some aggravation of a pre-existing condition. One doctor said she had Sherman’s disease, and Dr. Hebert said she didn’t, and there’s another physician said that she didn’t have that particular disease; but she has some problems in that area. Not only that, she has the cervical strain. The Court feels that an award of $100,000 would adequately compensate her for her bodily injury, mental anguish, disfunction, etcet-era. All of this together with legal interest from date of judicial demand and all costs of these proceedings.”

As to the loss of past and future wages, the preponderance of the evidence produced at trial indicates that there is a good possibility that plaintiff’s symptoms of pain may never go away, but rather she will just have to learn to live with them. As noted by the trial judge, Mrs. Abshire is restrained from securing any type of employment which requires recurrent stooping, bending, or standing. Additionally, Mrs. Abshire testified that she finds it necessary to periodically lie down and rest in order to ease the pain experienced from prolonged sitting and/or standing. Mrs. Abshire’s treating physician supported her testimony. Finally, the majority of the evidence shows that as a result of plaintiff’s condition, along with the necessity for regular rest to relieve her pain, the prospect for future employment is very dim at best. Accordingly, we find the trial judge was neither manifestly erroneous or clearly wrong in granting plaintiff, Helen Abshire, an award for past and future wages.

The third and final issue concerns itself with the propriety of the award for general damages to Mrs. Abshire. The seriousness and longevity of her injuries as stated by the trial judge in the portion of his reasons quoted herein, are supported by the record. The $100,000.00 award therefore does not, in our opinion, violate the guidelines set out by the jurisprudence. The Judge has not strayed beyond his discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979), and the cases cited therein.

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

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, Judge,

concurring.

In my opinion, the jurisprudential rule which requires the owner, in order to rebut the legal presumption of fault arising in cases such as the one at hand, to prove “when, where and how the animal escaped from its enclosure”, when it is otherwise established that he has taken all reasonable and prudent measures to maintain his animals within a fenced enclosure, is overly burdensome. As stated by Justice Summers in his dissent from the denial of writs in Young v. Sentry Insurance Company, 319 So.2d 419 (La.1975):

“... to impose liability as in this instance is to require a degree of care of stock owners which is beyond the bounds of reason; ...”

However, I feel compelled to follow this rule considering that same has withstood scrutiny by our Supreme Court through writ application in numerous cases and considering further the Supreme Court’s per curiam on writ denial in Harrington v. Upchurch, 337 So.2d 222 (La.1976) which indicates, rather clearly, that in such cases, i.e., cattle at large on closed range highways, strict liability will be imposed upon the animal owner.

For these reasons I respectfully concur.

      . Plaintiff, Helen Abshire, was riding alone in her vehicle when the accident occurred. Her husband, L.J., joins as plaintiff in this suit and together with his wife seeks recovery of damages sustained by the community as a result of the accident. Additionally, Helen Abshire seeks damages for the personal injuries which she sustained.

      , There was some evidence adduced at trial tending to show that defendant Dubois’ fences were, at least in part, in poor condition and perhaps inadequate. However, the trial judge found as a matter of fact that said defendant took reasonable and prudent measures in maintaining his fences in good condition, and we cannot say that in so deciding the court below was manifestly erroneous.


author: DOMENGEAUX, Judge.

text:
    Thomas G. McKENNA, Plaintiff-Appellant, v. Barbara STEEN, Defendant-Appellee.
    No. 82-253.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    José R. Cortina, Baton Rouge, for plaintiff-appellant.
    Theall & Fontana, Gary E. Theall, Abbe-ville, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

A husband who voluntarily sold his dentistry practice to enroll in law school appeals from the rejection of his rule to reduce child support payments. We affirm.

Initially, Barbara Steen McKenna filed suit against her husband, Dr. Thomas McKenna, for divorce. The parties had previously been separated and had partitioned the community property. As part of the community property settlement, Doctor McKenna received an apartment building and his dentistry office premises, and Mrs. McKenna received some rent houses purchased by the couple during their marriage. By judgment dated January 31, 1980, Doctor McKenna was ordered, after a full hearing, to pay $900.00 per month child support for the four children, and $800.00 per month alimony. On May 1, 1980, the separation case was tried on the merits. The parties entered into a stipulation, agreeing that the separation be granted on the basis of mutual fault, and that child support be increased from $900.00 per month to $1,200.00 per month until the divorce, at which time it would be increased to $1,600.00 per month. The agreement also provided that alimony would remain at $800.00 per month until the divorce, at which time it would decrease to zero. These stipulations were reduced to judgment. Thereafter, a divorce was granted, and in accordance with the previous judgment, the child support was fixed at $1,600.00 per month, and alimony was reduced to zero. No appeal was taken from that judgment. Shortly after the divorce was granted Doctor McKenna sold his dentistry practice and enrolled in Southern University School of Law, whereupon he filed this rule to reduce child support payments.

The only substantial issue raised on appeal is whether or not Doctor McKenna is entitled to a reduction of child support payments.

It is important to note that no appeal was taken from the consent judgment establishing that Doctor McKenna was to pay $1,600.00 per month child support, and that this is an appeal from the judgment rejecting his request for a reduction in the consented to award only.

In Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980), that court discussed the status of our jurisprudence concerning modifications of consent judgments in alimony and child support cases as follows:

“The Louisiana jurisprudence establishes that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973); Johnson v. Johnson, 357 So.2d 69 (4th Cir.1978). This rule applies to child support awards as well as alimony awards. Laird v. Laird, 363 So.2d 244 (4th Cir.1978); Gennaro v. Gennaro, 306 So.2d 756 (4th Cir.1975). The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. Bernhardt, supra. The party requesting a modification of a support award bears the burden of proving a change in the financial condition of one of the parties. Cole v. Cole, 338 So.2d 152 (2nd Cir.1976); Rachal v. Racha1, 250 So.2d 560 (1st Cir.1971). Finally, the jurisprudence clearly establishes the rule that an award of alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Nicolle v. Nicolle, 308 So.2d 377 (4th Cir.1975); Fakouri v. Perkins, 322 So.2d 401 (3rd Cir.1975).

Since the consent judgment Doctor McKenna has sold his practice as a dentist and has enrolled in law school. The change has resulted in a substantial decrease in his income, and for that reason, Doctor McKen-na seeks a reduction in the amount of child support he is currently ordered to pay.

This Court in Mosley v. Mosley, 348 So.2d 225 (La.App. 3rd Cir.1977), writ denied 350 So.2d 1213 (La.1977), addressed the issue of voluntary dismissal of employment resulting in a change of financial conditions, and the effect of one’s decision to terminate employment on alimony and child support. In that case Judge Guidry in speaking for this Court stated:

“Although our search into the jurisprudence discloses no eases which are apposite to the peculiar facts of the instant matter we recognize that it is a well established rule that a husband may not avoid his alimony obligation by quitting work. Viser v. Viser, 179 So.2d 673 (La.App. 1st Cir.1965); Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir.1973), writs refused June 11, 1973. In the Rakosky case a husband left a $12,000.00 a year job in anticipation of entering private law practice. Thereafter he filed a motion to suspend or reduce his wife’s alimony pendente lite because of his loss of income. The court in rejecting his motion for a reduction of his alimony payments stated at page 422:
‘We do not disagree that the husband’s alimony obligation ought not prevent his attempting private practice, and that a decreased income from practice should be considered in reviewing the amount of his alimony obligation. But here the only evidence of substantial loss of income is that the husband quit his salaried job, which his supervisor testified remained available to him. He had not yet decided what practice opportunity to pursue, and did not anticipate “any kind of firm decision in the next three weeks. * * * If necessary, I can go longer. I don’t want to rush into something.” ’
‘A capable husband may not avoid his alimony obligation by quitting work; Viser v. Viser, 179 So.2d 672 (La.App.1965). After the husband had begun practice and the trial court could consider his actual circumstances, further reduction might be justified. But here the refusal to suspend was correct.’
“We observe that with the exception of Rakosky v. Rakosky, supra, in the cases above cited, as well as in the other cases relied on by the appellee, the issue presented was whether the husband’s alimony and child support payments should be completely suspended. Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir.1975); Mittlebronn v. Mittlebronn, 337 So.2d 608 (La.App. 4th Cir.1976). As stated in Sykes v. Sykes, supra, at page 817:
‘In order for a husband to excuse himself from the obligation to provide minimal financial assistance to a wife and children he must show that he is absolutely unemployable, not merely that he is unemployed at the time.’ ”

In Mosley, supra, this Court did allow a reduction of child support to an English Professor who decided to go to law school. The decision in Mosley was based primarily upon a showing by the father that a change of circumstances had occurred; his voluntary change of circumstance was reasonable and justified; he was in good faith and not attempting to avoid his alimentary obligation; and his action did not deprive his children of continued reasonable financial support. Additionally, in Mosley the Court was impressed with the fact that the father was attempting to better his station in life, which would accrue to the benefit of his children.

The record in the case béfore us reveals that Doctor McKenna sold his very lucrative practice and embarked on a career in law for reasons primarily culminating from his disgust in paying what he considered to be an exorbitant amount of child support. Obviously, his decision to quit work was not made in good faith. Furthermore, the record reflects that in all probability Doctor McKenna was not attempting, by attending law school, to increase his economic stature. To the contrary, it appears that Doctor McKenna was attempting to lower his economic stature so that he would be able to reduce his child support payments. This even in light of the fact that he admits his childrens’ needs are the same as of the time he and his ex-wife entered into the consent judgment. For the first six months of 1981, just prior to the sale of his practice, Doctor McKenna grossed in excess of $115,000.00 from his practice. That fact notwithstanding, Doctor McKenna sold his practice, including the land, building, equipment, records, and good will for a total sum of $85,000.00. In view of the above, we agree with the trial judge who concluded that while Doctor McKen-na’s income is much less than it was at the time of the agreed upon stipulation, he cannot under these circumstances escape his obligation of support merely because he chooses to no longer practice dentistry.

Additionally, a review of the record reflects that Doctor McKenna has some $85,-000.00 in various checking and savings accounts; $50,000.00 bearing 12% interest in notes receivable payable in installments over the next three years; and an apartment building valued at approximately $225,000.00, which is presently grossing $1,850.00 per month. Accordingly, we find that Doctor McKenna has substantial assets, from which support payments could be made, and despite his reduction in income, he is capable of paying the stipulated amount. Mittlebronn v. Mittlebronn, 337 So.2d 608 (La.App. 4th Cir.1976).

Inasmuch as the divorce judgment, which reflects the agreed upon support, was by the mutual consent of the parties, and considering no appeal was taken thereon, appellant’s contentions that the trial court erred in (1) imposing support payments on him; (2) not forcing the appellee to work in order to fulfill her alimony obligations; (3) failing to find that the childrens’ needs amounted to $1,250.00 rather than $1,600.00; and (4) allowing the mother to waste (as appellant puts it) her assets, are not properly before this Court.

Finally, appellant contends that his constitutional rights have been violated. More particularly, appellant avers that the judgment below amounts to an imposition of involuntary servitude by forcing him to work as a dentist against his will, and likewise suppresses his right to pursue a profession of his choice.

These allegations are so ludicrous that they hardly dignify a response. There is nothing in the judgment which forces Doctor McKenna to continue practicing dentistry or quit law school. The judgment merely imposes on Doctor McKenna his inherent obligation to support his minor children. The means by which he achieves these ends are of no consequence. We find no constitutional impingement.

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

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Nora SIMS, Plaintiff & Appellant, v. Obie G. SIMS, Defendant & Appellee.
    No. 82-254.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      J.P. Mauffray, Jr., Jena, for plaintiff & appellant.
    Daryl Gold, Leesville, for defendant & appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a child custody dispute. In the above numbered suit, Mrs. Nora Sims petitioned the court for writ of habeas corpus directed to Obie G. Sims to recover the physical custody of her son, Jamie, and for child support arrearages and attorney’s fees. This suit was consolidated for trial with Suit No. 82-255, 422 So.2d 623, in which Mr. Sims sought a change of custody of the minor child in his favor. A separate judgment is being rendered in that suit by us this day.

After trial on the merits, the district court rendered judgment dismissing the petition for a writ of habeas corpus in the mother’s suit and awarding a change of custody in favor of the father in his suit. The judge took the action for child support arrearages under advisement. Later, judgment was signed awarding the plaintiff-appellant, Nora Sims, $116 in child support arrearages and $650 attorney’s fees. From these judgments, Mrs. Sims appeals, urging the following specifications of error: (1) The trial court erred in changing legal custody of Jamie to Mr. Sims and denying Mrs. Sims’ writ of habeas corpus. (2) The trial court erred in failing to award Mrs. Sims the full amount of support arrearages from the date of last payment through the date of rendition of the judgment changing custody. (3) The trial court erred in failing to award Mrs. Sims attorney’s fees in the sum of $2,400.

FACTS

Mrs. Nora Sims petitioned the trial court for divorce on January 23, 1976. The petition sought custody of the minor child of the marriage, Jamie, bom in 1973, and $100 monthly child support. A preliminary default was entered on February 23,1976 and confirmed on March 1, 1976, when a Judgment of Divorce awarding Mrs. Sims custody of Jamie and $100 monthly child support was rendered in open court. This judgment was signed on March 15, 1976 and was not appealed.

Subsequent to the divorce, in 1976, Mrs. Sims instituted a URESA proceeding in Vernon Parish against Mr. Sims for nonpayment of child support. As a result, Mr. Sims paid three $100 child support payments while residing in Alaska, and an additional $200 child support sometime after his return to Louisiana. In May of 1977, Mr. Sims paid another $100 child support to Mrs. Sims.

In January, 1977, Mrs. Sims applied for enlistment in the United States Air Force in an attempt to improve her earning ability, which was quite limited since she had only a basic high school education and very little training or experience. At the time of her application, Air Force regulations required a single parent to relinquish unconditionally his or her custody of any minors for the period required to complete basic training and technical school. Therefore, on April 5, 1977, Mrs. Sims obtained an ex parte order of the Vernon Parish Court transferring custody of the minor to her mother, Mrs. Anna Lois Roberts, on April 5, 1977. However, Mrs. Sims retained actual physical custody of the child.

Around July 5, 1977, when Mrs. Sims began her basic training, she delivered the physical custody of Jamie to Mr. Sims with the agreement that he would have the physical custody of the child while she completed her basic training and technical school. At the end of October, 1977, she returned from technical school to her duty station at England Air Force Base in Alexandria to find that Mr. Sims had moved, with Jamie, to Clute, Texas. Approximately one month later, Mr. Sims moved back to the Monroe area and filed a petition for change of custody in the Fourth Judicial District Court for Ouachita Parish. This suit went to trial on the merits resulting in a judgment in favor of Mr. Sims by the Fourth Judicial District Court, which judgment was later reversed by the Second Circuit Court of Appeal on the grounds of improper venue. Sims v. Sims, 388 So.2d 428 (La.App.2d Cir.1980). ■ Mr. Sims’ writ application was denied by the Louisiana Supreme Court on November 29, 1980.

In the meantime, in May of 1978, plaintiff-appellant’s mother, Mrs. Roberts, petitioned the court in Vernon Parish to transfer custody back to Mrs. Sims, and she obtained an ex parte order to that effect.

On December 17,1980, Mr. Sims filed suit in Vernon Parish for change of custody. In January of 1980, Mrs. Sims began a tour of duty in Okinawa from which she returned on January 5, 1981. Upon her return, she filed the instant petition for a writ of habe-as corpus on January 13, 1981. This suit was consolidated for trial with Mr. Sims’ suit of December 17. Trial on the merits was held on September 8,1981, and the trial court rendered judgment on the issue of custody in favor of Mr. Sims, denying the application for a writ of habeas corpus, reasoning that this would serve the best interest of Jamie to preserve what he found to be a happy and stable environment.

The issue of support arrearages was taken under advisement, and written reasons for judgment were rendered by the trial court on February 9, 1982, in which it was held that Mrs. Sims was entitled to recover support from the date of the March, 1976 divorce judgment until the rendition of the ex parte decree transferring custody from Mrs. Sims to Mrs. Roberts. Mr. Sims was to be given credit for the payment of the aggregate of $600, which was the total sum he was shown to have paid from the time of the initial judgment through the date of trial. Thus, judgment was to be allowed in favor of Mrs. Sims in the sum of $716. However, when the actual judgment was written and signed, it provided for only $116 in support arrearages against Mr. Sims.

The court further awarded to Mrs. Sims attorney’s fees in the sum of $650.

CUSTODY

The appellant argues that the trial court was in error in granting custody of Jamie to Mr. Sims because the only reason for the change was the fact that Jamie had been in Mr. Sims’s physical custody for over four years. Counsel for Mrs. Sims argues that this is improper because the reason Mr. Sims had Jamie so long was the mistake of the trial judge in the Ouachita Parish suit in overruling her exception to venue.

LSA-C.C. article 157 provides that custody shall be granted in accordance with the best interest of the child. It is well settled that the trial court’s determination of what is in the best interest of the child must be accorded great weight by the reviewing court and may be overturned only upon a clear showing that the trial judge abused this discretion. As stated by the Louisiana Supreme Court in the recent case of Bagents v. Bagents, 419 So.2d 460 (1982):

“In performing its function of deciding custody cases, the trial court is vested with a vast amount of discretion. On appellate review, great deference must be accorded to the decision of the trial court, not only because of that court’s better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).”

We recognize that Mrs. Sims had good intentions in her initial agreement to allow Jamie to live with Mr. Sims. She was struggling to make a home for herself and her child, and availed herself of a reasonable opportunity to increase and improve her earning capacity. This she has succeeded in doing. Her situation is now much improved. She lives in base housing in a three bedroom quadra-plex, and makes a monthly salary which would be sufficient to adequately support herself and Jamie. She has not remarried.

The fact remains, however, that Jamie has been in the care and custody of his father since July 5, 1977. They have lived in Lafayette for 2lh years. Jamie has been going to the same school since the first grade. He is involved in several different activities outside school. It appears from the record of his interview with the trial judge that Jamie is an intelligent, well-adjusted child, and is very settled in his home in Lafayette.

Mr. Sims has advanced in his job in the last few years and makes a more than adequate salary to provide for his family. He has been remarried for five years, and Jamie and the present Mrs. Sims have a good relationship.

Jamie stated that he is happy in his home in Lafayette. Adding to this the fact that the present situation provides a stable two-parent household, and the fact that Jamie is well cared for, we find no abuse of discretion in the trial court’s refusal to disturb the stability of young Jamie’s life.

The mother argues on appeal that it would be a bad precedent to change custody to the father for the sole reason that he has been able to improperly retain physical custody of the child for approximately four years, first by moving with the child to Texas and later by filing suit for a change of custody in a court of improper venue in Ouachita Parish. Our answer to this argument is that the trial judge correctly decided this case on the basis of what he considered to be the best interest of the child. Each child custody case should be decided on its own facts to protect the best interest of the child, regardless of whether this rewards or penalizes the actions of one of the parents during the custody dispute.

SUPPORT ARREARAGES

The appellant contends that the trial court judgment with regard to support ar-rearages was error because no judgment was ever rendered by any court terminating the March 1, 1976 judgment ordering Mr. Sims to pay $100 per month child support. She argues that she should therefore receive child support for the entire period without regard to the fact that Jamie has been in the care and custody of Mr. Sims since July of 1977. We disagree.

The trial court held that Mrs. Sims is entitled to child support from the date of the March, 1976 judgment to April 5, 1977, the date on which she transferred custody of Jamie to her mother by ex parte order of the court. It is well settled that ex parte child custody orders by trial courts are without effect. Saizan v. Saizan, 311 So.2d 281 (La.App. 1st Cir.1974); Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir.1974), writ denied, 293 So.2d 187 (La.1974).

While we are reluctant to allow the person obtaining such a decree to plead the nullity thereof, we are also cognizant of the fact that it was secured by the mother solely for the purpose of complying with Air Force regulations. Actually, Mrs. Sims retained the physical custody of Jamie until she began her basic training in July of 1977. The grandmother never had actual custody at any time.

We see from the record that around this time, Jamie on two occasions spent almost a month with his father, but also note that Mr. Sims continued to make some child support payments to the plaintiff as the custodial parent. It was not until July 5, 1977 that Mrs. Sims actually agreed to place Jamie in his father’s custody for the period of time during which she was to be in basic training and would be unable to care for him. We therefore- feel that Mrs. Sims is entitled to recover child support up to the time she and Mr. Sims agreed that he would have custody of Jamie.

It was settled by the Louisiana Supreme Court in Dubroe v. Dubroc, 388 So.2d 377 (La.1980) that agreements by which one parent suspends his right to compel the other to make payments for the child’s maintenance are enforceable under certain circumstances. In that case, the court stated:

“[5,6] Since the parent’s duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended.3 There is no prohibition, however, expressed by the law against a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance. Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i.e., the enforcement of the child’s right to support and upbringing.
For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.”

This court reiterated the foregoing tenet in Lachney v. Lachney, 399 So.2d 731 (La.App. 3rd Cir.1981), wherein we held that such principles are likewise applicable to a situation where the mother’s right to custody has been divested by order of a court of competent jurisdiction and simultaneously vested in the father who assumes full responsibility and does in fact provide for the child’s maintenance and upbringing.

Louisiana courts have further held that child support was suspended by implied agreement even when the mother did not specifically agree to the suspension of payments, where it was found that the mother delivered the physical custody of the child or children to the father who provided directly for their support. In such cases an implied agreement has been found due to the mutual understanding between the parents that the father would assume sole responsibility for feeding, clothing and sheltering the child or children in his care. See Matter of Andras, 410 So.2d 328 (La.App. 4th Cir.1982); LeGlue v. LeGlue, 404 So.2d 1268 (La.App. 4th Cir.1981); Pierce v. Pierce, 397 So.2d 62 (La.App. 2d Cir.1981).

We find, as did the trial court, that such an agreement existed in the instant case. It was agreed that Mr. Sims would care for Jamie in his home, and feed, clothe and support him directly, for as long as Mrs. Sims was unable to meet her responsibility in this regard. This agreement began when Mrs. Sims delivered physical custody of Jamie to his father on July 5, 1977. Therefore, Mrs. Sims is entitled to payment of child support arrearages due for the period from March. 1, 1976 through July 5, 1977. The total amount due for this period was $1516. We also find, as did the trial court, that Mr. Sims should receive credit for the payment of $600 in child support payments as evidenced by the record. Therefore, Mrs. Sims is entitled to a judgment against Mr. Sims in the sum of $916 in child support arrearages.

ATTORNEY’S FEES

The trial court awarded the mother $650 attorney’s fees. Appellant contends that this award is inadequate and that the $1200 prayed for was a reasonable sum. On appeal, it is argued that $2400 would be reasonable for the services rendered at both the trial and appellate courts.

We agree with the trial court that the record shows most of the litigation had to do with the issue of custody, and that $650 was a reasonable sum to award as attorney’s fees on the action to make past due child support executory. We feel that an additional $300 should be awarded for services rendered by the mother’s attorney on appeal.

For the reasons assigned, the judgment appealed in the present suit by the mother for a writ of habeas corpus and for child support arrearages and attorney’s fees is amended to increase the child support ar-rearage due to the sum of $916, and increase the award for attorney’s fees to $950. Otherwise, the judgment in the present case is affirmed. All costs of this appeal are assessed one-half to appellant and one-half to appellee.

AFFIRMED, AS AMENDED.


text:
    Obie G. SIMS, Plaintiff & Appellee, v. Nora SIMS, Defendant & Appellant.
    No. 82-255.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    J.P. Mauffray, Jr., Jena, for plaintiff & appellant.
    Daryl Gold, Leesville, for defendant & appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

For the reasons assigned in the companion case entitled “Nora Sims v. Obie V. Sims," 422 So.2d 618, in which a separate judgment is rendered by us this date, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the defendant-appellant, Nora Sims.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Einus BEVERLY and Lillie Mae Sinegal Beverly, Plaintiffs-Appellants, v. ACTION MARINE SERVICES, INC. and Insurance Company of North America, Defendants-Appellees.
    No. 82-258.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Baggett, McCall, Singleton & Ranier, Homer Singleton, Lake Charles, for plaintiffs-appellants.
    Onebane & Associates, Douglas W. Trux-illo, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

The plaintiffs, Einus and Lillie Mae Beverly, brought this suit to recover worker’s compensation death benefits pursuant to LSA-R.S. 23:1231. The defendants, Action Marine Services, Inc., and its insurer, Insurance Company of North America, filed exceptions of no right of action, no cause of action, and lack of jurisdiction. The trial judge sustained the exceptions and dismissed the suit. Plaintiffs appeal.

The issue on appeal is whether the trial court was correct in determining that the plaintiffs’ exclusive remedy is under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. Because we find his determination to be correct, we affirm.

The plaintiffs are the parents of Robert Lee Beverly, who died in the course of his employment with the defendant, Action Marine Services, Inc. At the time of his death, Beverly was assisting in cleaning bromide tanks aboard the M/V “Nikki Candies”, an ocean going vessel moored at the Exxon Dock facility in Intracoastal City, Louisiana. Beverly died as a result of inhaling toxic fumes present in the tank.

At the heart of this dispute is the 1917 case of Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), where the United States Supreme Court held that States were constitutionally prohibited from applying state compensation schemes to maritime injuries. The court held that the overriding federal policy in a uniform maritime law required that the laws of various states not be applied to maritime injuries. The Jensen doctrine underwent modification soon after its birth in 1917. In the cases of Western Fuel Company v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921) and Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), the court held that some maritime activities are “local in character” and therefore state compensation schemes could constitutionally apply. This became known as the “maritime but local” exception.

In 1927, Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., which provided for compensation for injuries “occurring upon the navigable waters of the United States ... if recovery . .. through workmen’s compensation proceedings may not validly be provided by State law.” § 903(a). Following the passage of the act, injured workers were required to make a “jurisdictional guess” in cases where there was doubt as to whether the federal act or the state scheme was applicable. This jurisdictional dilemma was alleviated by establishment of concurrent jurisdiction in doubtful cases. This was done in Davis v. Department of Labor, 317 U.S. 249, 254, 63 S.Ct. 225, 87 L.Ed. 246 (1942), where the Court held that the boundary between federal and state schemes was not a precise line but rather a “twilight zone,” and that in doubtful cases, an injured worker could elect a federal or state remedy]

In the leading Louisiana case of Ellis v. Travelers Insurance Company, 241 La. 433, 129 So.2d 729 (1961), the Louisiana Supreme Court concluded that the Jensen doctrine was still viable insofar as it barred the application of the Louisiana Workmens’ Compensation Act to longshoremen injured while performing maritime work on ocean going vessels, afloat in navigable waters.

In Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), the court held that the LHWCA applied to all injuries sustained by employees on navigable waters, without regard to whether the activity was “maritime but local”. Thus it was again made clear that in some cases, state and federal coverage would overlap.

The LHWCA was amended in 1972. The state of the jurisprudence regarding marine related injuries prior to the amendment as well as the effect the amendment had on it was recently summarized by the United States Supreme Court in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). The court summarized the pre-1972 jurisprudence as follows:

“Before 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. ‘Maritime but local’ injuries ‘upon the navigable waters of the United States,’ 38 U.S.C. § 903(a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters — albeit within the range of federal admiralty jurisdiction — were remediable only under state law. Nacirema Co. v. Johnson [396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371], supra.”

The 1972 amendment to the LHWCA extended coverage of the act landward. The result was concurrent jurisdiction not only in the maritime but local zone, but also on land, which had previously been the exclusive province of state compensation law.

While the 1972 amendment extended the jurisdiction of the LHWCA landward, it did not change the fact that Jensen still precludes the application of state compensation law when the injury occurs in a purely maritime setting. That Jensen is still viable was made clear by the Supreme Court in Sun Ship, supra, where the Court stated:

“We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would co-exist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine. ”

Robert Lee Beverly was engaged in cleaning out bromide tanks aboard an ocean going vessel in navigable waters. The work was very similar to the work considered in Flowers v. Travelers Insurance Company, 258 F.2d 220, where the plaintiff, a welder, was injured making repairs on an ocean going vessel in a floating dry dock in Galveston, Texas. The court found that the work involved was clearly maritime, making unnecessary any consideration of the “twilight zone” created by Davis v. Department of Labor, supra. The court stated:

"... the doing of repair work on an existing vessel has been treated as so clearly maritime in nature that attempted application of State compensation laws would collide with that essential uniformity which was the very breath of Jensen.”

In Wixom v. Travelers Insurance Company, 357 So.2d 1343 (La.App. 4th Cir.1978), plaintiff, an ironworker injured while performing repairs aboard a ship in the Industrial Canal in New Orleans, sought recovery under the Louisiana Workmen’s Compensation Act. Our brethren of the Fourth Circuit held that the injury to the plaintiff was in a purely maritime setting, thus dictating that the exclusive remedy be the LHWCA. The court stated:

“The simple problem should not be complicated by attempting to inquire into the applicability of the so-called ‘twilight zone’ developed in Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942). This doctrine was developed for the benefit of workers where it was difficult to determine which jurisdiction would apply. Under these facts, however, we do not believe there is any so-called twilight zone, but that it is crystal-clear that this is a pure maritime question.”

Like the plaintiff in Wixom, Robert Lee Beverly was performing purely maritime duties when he met his death. None of the modifications of the Jensen doctrine have changed the fact that Jensen prohibits a state from applying its workmen’s compensation scheme to injuries which are clearly maritime. Thus, the exclusive remedy of the plaintiffs is under the LHWCA.

The Louisiana Supreme Court recently held that the LHWCA is not the exclusive remedy for a worker whose injury occurred on an oil platform on the outer Continental Shelf. Thompson v. Teledyne Movible Offshore, Inc., et a 1, 419 So.2d 822, (La.1982). While it doesn’t change the result we reach, we feel that the case deserves mention herein. The Thompson court held that the Louisiana Workmen’s Compensation Act could constitutionally apply to an injury received on a fixed platform in the Gulf of Mexico, some four miles off the Louisiana coast. However, because of the inherent differences in the types of work involved, Thompson does not mandate a holding that the Louisiana Workmen’s Compensation Act applies in the present case.

Influenced by Judge Tate’s concurrence in Crooks v. American Mutual Liability Ins. Co., et al, 175 So.2d 875 (La.App. 3rd Cir.1965), the Thompson court, through Justice Calogero, stated:

“Furthermore the case now before us does not involve longshoremen or historically maritime workers. Rather this plaintiff is like the plaintiff in Crooks, the case which spawned Judge Tate’s farsighted concurrence; Thompson is an oil worker who may perform essentially the same non-maritime duties on land or alternatively on an offshore site. Therefore the application of state law would not ‘work material prejudice to the characteristic features of the general maritime law, or interfere with the proper harmony and uniformity of that law in its international and interstate relations.’ Crooks, supra at 879.”

The conclusion we draw from the above quoted language is that there remains an important distinction between oil workers whose duties may be performed on land as well as over water and workers whose duties are historically maritime. The federal interest in a uniform maritime law still precludes the application of state compensation schemes where the work being performed is clearly maritime. The decedent in the present case was cleaning tanks aboard an ocean going vessel. Beverly was not a “worker who may perform essentially the same non-maritime duties on land, or alternatively on an offshore site.” His duties were historically maritime. Flowers, supra. Thus, despite the fact that our state compensation statute may apply to injuries occurring over water, as in Thompson, supra, it may not do so in the present case, because the work being performed by the decedent at the time of his death was clearly maritime.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiffs-appellants.

AFFIRMED.


text:
    Anna Bell GAUTHIER, as Natural Tutrix of the Minor, Cynthia Gauthier, Plaintiff & Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendants & Appellees.
    No. 82-259.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Scofield, Bergstedt, Gerard, Hackett & Mount, Benjamin W. Mount, Lake Charles, for plaintiff & appellant.
    Hall, Lestage & Lestage, David R. Les-tage, DeRidder, Brame, Bergstedt & Brame, James R. Morris, Lake Charles, for defendants & appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a personal injury suit arising out of an accident in which an automobile struck several cows. Plaintiff, Mrs. Anna Bell Gauthier, is the mother of then 16-year-old Cynthia Gauthier, who was a guest passenger in the car and received personal injuries. The defendants named are: James R. Savoie, owner of the cattle which wandered onto the highway and his liability insurer, Southern Farm Bureau Casualty Insurance Company; Tony R. Davis, the driver of the automobile; Claude Eagleson, in his capacity as sheriff of Cameron Parish, and his insurers, North River Insurance Company and International Surplus Lines Insurance Company; State Farm Mutual Automobile Insurance Company, the Gau-thiers’ uninsured motorist carrier; and the Cameron Parish Police Jury and its liability insurer, Commercial Union Insurance Company.

Prior to trial, James R. Savoie, the owner of the cattle and his insurer, Southern Farm Bureau Casualty Insurance Company, and State Farm Mutual Automobile Insurance Company were dismissed as a result of a settlement made by the plaintiff with these parties. Additionally, the Cameron Parish Police Jury and Commercial Union Insurance Company were dismissed from the suit prior to trial pursuant to the trial court’s upholding a Motion for Summary Judgment.

The jury found the following relevant facts:

(1) James Savoie, owner of the cattle, was not negligent. (2) Tony Davis, host driver, was not negligent. (3) The “red-rotating light” on the sheriff’s patrol car was defective. (4) The defective light was not a legal cause of the accident.

From a judgment dismissing her suit, plaintiff appeals.

Plaintiff states the following specifications of error in her brief:

“I. Was the Roadway Wherein the Accident Occurred “Open” or “Closed” Range?
II. Was Tony R. Davis, the Driver of the Automobile, Negligent?
III. Did the Jury Err in Not Finding That the Defective Light Was a Legal Cause of the Accident?”

An Exception of Prescription was filed by defendant-appellant Claude Eagleson and his insurers after the jury had been instructed but prior to their verdict. The trial judge did not rule on the exception. That exception has been refiled on appeal, and Claude Eagleson and his insurers have answered the appeal to protect their right to urge prescription on appeal.

GENERAL FACTS

The general facts are as follows: On the night of December 11, 1978, approximately 150 to 200 head of cattle owned by James R. Savoie escaped from a fenced pasture onto Trosclair Road in Cameron Parish. Sheriff’s deputies went to the scene in order to remove the cattle from the roadway. In their attempts to herd the cattle, the deputy sheriffs scattered some of the cattle which began to run in an easterly direction on the roadway.

At approximately 11:15 that night, Tony R. Davis was driving a vehicle owned by him in a west bound direction on the same road. Cynthia Gauthier was a guest passenger. The Davis vehicle collided with several cattle. As a result of this collision, Cynthia Gauthier was injured.

At the time of the accident, deputy sheriffs were present with a patrol car on the road attempting to round up the cattle. However, the flashing red light located on top of their vehicle was not functioning. It is admitted by the sheriff’s deputies that when they saw the Davis vehicle approaching they noticed that even though they had switched the red lights of their vehicle on and were moving down the roadway where the cattle were running, the red lights were not on. Only their headlights were on. The Davis vehicle passed them and collided with several cattle on the highway behind the patrol ear.

DID THE TRIAL COURT ERR IN GRANTING THE MOTION FOR SUMMARY JUDGMENT BY THE CAMERON PARISH POLICE JURY AND ITS INSURER?

Plaintiff contends the Cameron Parish Police Jury was negligent in two respects: First, that the Jury failed to pass a proper ordinance making the road upon which the accident occurred a “closed range.” Secondly, that the Jury failed to post any signs along the road warning that this was an open range area and that cattle might be on the roadway. The jury admits there were in fact no such warning signs on the roadway in question.

The Police Jury filed a Motion for Summary Judgment based on affidavits and certified copies of two ordinances which clearly state that certain highways are not open range territory and in fact are closed range. This ordinance provides a penalty of having a violator’s cattle or livestock confiscated.

On appeal, plaintiff admits the road in question is located in the geographical area to which the ordinance applies. However, plaintiff contends the ordinance does not apply to cattle which escape from enclosed lands, even though the escape be caused by negligence of the cattle owner.

The Cameron Parish ordinance filed in evidence clearly states that cattle are forbidden on the highway in question. Therefore, there was no need for warning signs as to livestock.

Plaintiff contends there is a loophole in the ordinance which makes it legal for livestock to be on the highway which “may escape from enclosed land to said highway.” We disagree with plaintiff’s construction of this ordinance. A reading of the ordinance as a whole shows clearly that it does not sanction the presence on the roadway of cattle which have escaped from enclosed land, nor are the roadways “open” to such livestock. Instead, the ordinance only exempts from confiscation those cattle which have escaped from enclosed land.

Plaintiff introduced into evidence an affidavit of the attorney who drafted the ordinance for the Police Jury. This affidavit states the ordinance was intended only to prevent cattle owners from intentionally allowing their stock to graze and roam on the roads, and that it was not intended that the area be “closed range.” Regardless of this affidavit, it is clear from a reading of the ordinance itself that it prohibits the presence of cattle on the roadway. The affidavit of the drafter cannot control over the clear language of the ordinance.

We conclude the trial judge correctly sustained the Motion for Summary Judgment by the Cameron Parish Police Jury.

DID THE JURY ERR IN FINDING TONY R. DAVIS WAS NOT NEGLIGENT?

Plaintiff was asleep at the time of the accident, so she knew nothing as to its cause. Tony Davis testified he was in the west bound lane and had just come out of an S-curve and was driving between 50 and 60 MPH. He saw the headlights of a vehicle approaching him in the east bound lane. He saw no cattle anywhere. Immediately after he passed the car with the headlights on, he saw the cattle in the highway, but by that time it was too late to avoid the impact.

The two deputy sheriffs who were attempting to drive the cattle off of the highway testified they were in their patrol car headed east in the east bound lane trying to turn six head of cattle which had separated from the others and were running in an easterly direction. The patrol car was in front of the cattle. The deputies say they noticed the Davis car coming around the S-curve, and that it was traveling fast, but they were unable to estimate the speed. They said the car did not slow down. The Davis vehicle then went on past the deputies and they heard the noise as it struck the cattle behind them on the highway.

As stated above, these two deputies admitted that the flashing red lights located on the top of their vehicle were not functioning as Davis approached. They say the red lights had been working earlier that night, but had malfunctioned for some unknown reason.

Plaintiff argues that Tony Davis was negligent in failing to keep a proper lookout ahead and failing to see the cattle which he struck. Part of the argument is that this was “open range,” where motorists should anticipate cattle being on the highway and use greater care. Of course, this latter argument has no merit since we have already concluded this was not an “open range” area.

The question is whether this case comes within the rule that a motorist has the duty to maintain a proper lookout for hazards on the road which by the use of ordinary care and observation he should be able to see in time to avoid running into them. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) and the cases cited therein. This rule has been construed to mean that a night motorist is not charged with the duty of guarding against striking an unexpected or unusual obstruction which is difficult to see and which he had no reason to anticipate he would encounter on the highway. Calais v. Thibodeaux, 220 So.2d 209 (La.App. 3rd Cir.1969), writ refused 222 So.2d 67. As regards cattle in particular, the cases have held generally that where livestock are prohibited by law from roaming at large on the highway the duty of a motorist at night to see such animals is reduced. Vars v. Fidelity & Casualty Company of N.Y., 285 So.2d 377 (La.App. 3rd Cir.1973).

Under these jurisprudential rules, we cannot say the jury was clearly wrong in finding Davis free of negligence. He was driving on a highway in a closed range area at night, and was proceeding within the legal speed limit and in his own lane of travel when he saw the headlights of a vehicle approaching him in the opposite lane. He had no reason to slow down or stop when he saw the headlights of the deputies’ car. As he passed them, he was probably partially blinded by their headlights and failed to see the cattle in the highway behind the deputies’ car. We conclude the jury was not clearly wrong in finding Davis free of negligence.

WAS THE JURY CLEARLY WRONG IN FINDING THE DEFECTIVE RED FLASHING LIGHTS ON THE SHERIFF’S VEHICLE WAS NOT A LEGAL CAUSE OF THE ACCIDENT?

The deputy sheriffs testified it was standard procedure to turn on their flashing red lights to warn motorists of the presence of the patrol car or of some hazard on the highway. Thus, if the red lights on the patrol car had been working, Davis would have been warned of the presence of the deputies’ vehicle, but he would not necessarily have been warned of the presence of cattle or any other obstruction on the highway. One of the factors involved here is that the patrol car was moving in its own lane toward Davis. Even if the flashing lights on the patrol car had been working, it can be argued Davis would not have had a duty to slow down or stop.

We think there is a close question as to whether the jury was clearly wrong in finding the defective red-rotating light on the sheriff’s patrol car was not a legal cause of the accident. However, we find it unnecessary to decide this question because we conclude, for the reasons set out below, that the suit against the sheriff is prescribed.

THE EXCEPTION OF PRESCRIPTION OF ONE YEAR FILED BY THE SHERIFF AND HIS INSURERS

The exception of prescription filed by the sheriff and his insurers is based on the fact that he was not named as a party defendant in the main demand until January 13,1982, which was long after the expiration of one year following the accident on December 11, 1978.

In plaintiff’s original petition filed on December 10, 1979, she named as defendants James R. Savoie and his insurer, Southern Farm Bureau Casualty Insurance Company, and Tony R. Davis and State Farm Mutual Automobile Insurance Company, the uninsured motorist insurer for the Gauthiers. On January 13, 1982, plaintiff filed an amended petition naming as defendants in the main demand the Cameron Parish Police Jury and its insurer, and Sheriff Claude Eagleson and his insurers. Prior to trial, plaintiff settled her claim against James R. Savoie and his insurer, Southern Farm Bureau Casualty Insurance Company, and a judgment of dismissal was rendered on May 7, 1982 against these defendants, reserving all rights against other defendants. Also prior to trial, plaintiff settled with State Farm Mutual Automobile Insurance Company, the uninsured motorist insurer, and a judgment was rendered on May 12, 1982, dismissing this defendant, reserving all rights against the other defendants. As stated above, the district judge granted the motion for summary judgment filed by the Cameron Parish Police Jury, and we have affirmed that action dismissing the Police Jury. In the jury’s verdict, which is included and made a part of the judgment appealed, the jury finds James R. Savoie was not negligent. No argument to the contrary is made by plaintiff in this appeal. For the reasons set out above, we affirm the judgment holding no liability on the part of Tony R. Davis. Thus, no defendant who was timely sued has been found liable, and the sheriff and his insurers cannot be solidarily liable with any defendant timely sued.

LSA-C.C. article 2097 provides that a suit brought against one debtor in solido interrupts prescription with regard to all. Jurisprudence construing this article has established the rule that a suit filed timely against one defendant does not interrupt prescription against another defendant not timely sued where the defendant timely sued is not found liable. This rule applies whether the defendants are named in the same suit, Fontenot v. Lucas, 228 So.2d 211 (La.App. 3rd Cir.1969), writ refused; Ward v. Aucoin, 222 So.2d 628 (La.App. 4th Cir.1969); or in separate suits, Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975). In Trahan, our Supreme Court gives a complete analysis of the rule that the timely filing of a suit against a defendant who is not found liable does not interrupt prescription of an untimely suit against a defendant who is alleged to be solidarily liable.

THE DECREE

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Jesse DEVILLE, et ux., Plaintiffs-Appellants, v. CALCASIEU PARISH GRAVITY DRAINAGE DISTRICT # 5, et al., Defendants-Appellees.
    No. 82-264.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiffs-appellants.
    Jeansonne, Gibbens, Blackwell & Briney, Charlie Foret, Lafayette, Charles E. Brous-sard, Sulphur, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

This suit for damages arose as a result of an incident in July of 1979, wherein Marie Deville, while in the process of sorting through mail which she had only seconds before removed from her mailbox, took a step backward onto a storm, drain cover, located on a storm drain and immediately fell through the manhole causing her severe physical injuries.

Plaintiff and her husband, Jesse Deville, sued the City of Sulphur, Gravity Drainage District # 5 of Calcasieu Parish, and its insurer, Aetna Insurance Company, alleging that they were strictly liable for her injuries, and alternatively, that her injuries were the result of their negligence.

The defendants implead one another, both seeking to absolve themselves from liability on the grounds that they were not charged with the custody of the catch basin in question.

The trial court sustained the exception of no cause of action filed by the City of Sulphur, dismissing it from the original suit and from the third party demand of the Gravity Drainage District and the Aetna Insurance Company.

Furthermore, the trial court ruled that the claims of plaintiffs against the Gravity Drainage District and its insurer, Aetna Insurance Company, were barred by victim fault. From this adverse judgment, plaintiffs have appealed.

ISSUES

The issues herein may be stated as follows:

(1) Was the trial judge clearly wrong in finding that the City of Sulphur was not in custody of the storm drain?
(2) Was the drain defective?
(3) Was the trial judge clearly wrong in finding victim fault?
(4) Is the Gravity Drainage District strictly or absolutely liable?

CUSTODY OF THE DRAIN

The trial judge found that the City of Sulphur was not in fact in custody of the storm drain and is therefore not liable. We agree. The evidence clearly indicates that the Gravity Drainage District # 5 was in sole charge of maintaining the drains in question and that the only time that the City of Sulphur ever maintained the drain to any degree was in the case of an emergency (flooding) where it took steps to remove debris which impeded the drainage of street water and when the Gravity Drainage District was unable to get to the problem first.

Defendant, Gravity Drainage District, has answered the appeal seeking reversal of the trial court’s granting of the City of Sulphur’s exception of no cause of action to the Gravity Drainage District’s third party demand. We find no merit to this argument. The trial court properly maintained the city’s exception of no cause of action.

DEFECTIVENESS

The trial court made no finding as to whether or not the storm drain cover was defective. Defectiveness has been defined as the condition of a thing which causes “an unreasonable risk of harm to others, . .. ”. Loescher v. Parr, 324 So.2d 441 (La.1975). For liability to attach, one must show that the injury was caused by a thing, that the thing was defective, and that the thing was in the custody of the defendant sought to be made liable. There is no doubt that the storm drain cover caused the injury, and that it was in the custody of the Gravity Drainage District. A more difficult question arises as to whether or not the thing was defective.

It is often difficult or near impossible to point to a specific defect in a thing. The cover itself has no moving parts and is constructed of metal. It was meant to safely secure the hole in the storm drain which would allow visual inspection of the contents within the drain. The drain is situated partly upon plaintiffs’ property and very close to their mailbox. It is out in the open near the street.

Because of its position near the street and in the front yard of the plaintiffs, it is more probable than not that people would come into contact with it and would in fact walk upon it. There was no misuse of the drain by plaintiffs, the testimony being to the effect that she merely walked upon it.

In a similar case, Marquez v. City Stores Company, 371 So.2d 810 (La.1979), plaintiff and his son were descending upon an escalator when the youngster’s tennis shoe got caught in the elevator, causing him injury. The court therein stated:

“The record indicates that the plaintiff and his son were properly using the equipment for the purpose and in the manner intended; there was no finding of contributory negligence. Presumably, several hundred thousand people have use.d this same escalator since it was installed in 1972 without a foot becoming wedged in the side opening. The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective. Ott v. J.C. Penney Co., 360 So.2d 524 (La.App.1978); Tarantino v. City Stores Co. (Maison Blanche division), 278 So.2d 149 (La.App.1973), writ denied 281 So.2d 741 (La.1973).”

We likewise think that this accident would not have happened had the storm drain cover not been defective. Although plaintiff testified that she had not examined the cover on the day of the accident, she stated that she had seen it on the previous day and that it appeared to be firmly seated. The very next day, while reading her mail, she took a step backwards, and the cover flipped, causing her right leg to plunge into the hole and her left knee to strike the cover. Because of reports of similar problems in the area, this cover was, at one time, spot-welded so as to make it impossible, or at least more difficult, to remove. Mr. James Richard Guidry, who had been employed by the Gravity Drainage District for 23 years and presently its superintendent, testified that the reason the cover was spot-welded was, “because they were having problems with some and they were flipping”.

In the case of Goodlow v. City of Alexandria, 407 So.2d 1305 (La.App. 3 Cir.1981), a similar situation was encountered. There, the driver of an automobile struck an open sewer manhole or its cover which was maintained by the defendant city. The trial court correctly held that merely showing that the cover was off the manhole was not sufficient to bring it within the category of being “defective”, and refused to hold the city liable.

In this case, as distinguished from Good-low, all of the testimony points to the fact that the cover was properly seated, covering the orifice leading into the catch basin. Since the cover was properly seated and the plaintiff nevertheless fell into the catch basin when she stepped upon it, it necessarily follows that the cover created “an unreasonable risk of harm to others... ”, and that it was in some way defective.

The case of Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980), presented a situation almost identical to the one at hand. The court stated:

“From the testimony of defendants’ employees, it is clear that the catch-basin and its cover were in the care or custody of the defendants; other testimony shows that the cover’s defect was the cause of plaintiffs’ damages. It is also obvious that the cover was defective, in the sense that the risk of falling four or five feet into a catch-basin as a result of stepping upon a presumably solid, firm metal surface is unreasonable. Once these elements are proved, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher v. Parr, supra. Because none of these defenses was proved, defendants are liable for plaintiffs’ damages.”

We therefore find that the cover was defective.

VICTIM FAULT

The trial judge found that it was unnecessary to make a determination as to the defectiveness of the storm drain cover since he concluded that the plaintiffs’ claim was barred by victim fault or contributory negligence. It is now well settled that in cases under Civil Code Article 2317, the only defenses available are a showing of victim fault, fault of a third person, or irresistible force. Loescher v. Parr, supra; Broussard v. Pennsylvania Millers Mutual Insurance Company, 406 So.2d 574 (La.1981).

The learned trial judge concluded that victim fault or contributory negligence was present because the plaintiff had lived at this place for some sixteen years before the accident, had literally walked in the vicinity of the cover thousands of times before the accident, and had often stepped on it before. She had, when her children were young, knowledge that other children in the neighborhood would, on occasion, lift the cover. She knew that, in fact, another neighbor had fallen into it within the last two years. On the day preceding the accident, she was sure that she had looked at it and that it was secure and in place. She had no independent recollection of looking at it on the day of the accident.

There has been much discussion as to the meaning of the term “victim fault”. This Court, in Parker v. Hanks, 345 So.2d 194 (La.App. 3 Cir.1977), writ denied, 346 So.2d 224 (La.1977), and again in Hebert v. United Services Auto Association, 355 So.2d 575 (La.App. 3 Cir.1978), writ denied, 356 So.2d 1002 (La.1978), while admitting that term was not as of yet “fully developed”, saw no error in designating victim fault as contributory negligence.

On the other hand, Judge Tate, as the organ for the Fifth Circuit Court of Appeal, in the case of Rodrigue v. Dixilyn Corporation, 620 F.2d 537 (1980), disagreed with the above conclusion and stated that contributory negligence was not a defense to an action in strict liability based on Code Articles 2317, 2318 or 2321. But see Dorry v. Lafleur, 399 So.2d 559 (La.1981), for a decision by a very much divided Louisiana Supreme Court, where a plurality of the Justices, including a Justice Ad Hoc, held that contributory negligence may indeed be a defense, perhaps under the guise of “victim fault” in strict liability eases. See also Wilkinson v. Hartford Accident & Indemnity Co., 400 So.2d 705 (La.App. 3 Cir.1981); Miller v. Fogleman Truck Lines, Inc., 398 So.2d 634 (La.App. 3 Cir.1981), writ denied, 401 So.2d 358 (La.1981); Bacile v. Parish of Jefferson, 411 So.2d 1088 (La.App. 4 Cir.1981).

Whatever the true definition of the term “victim fault” and/or “contributory negligence” be, that determination remains a factual question and we may only alter that finding by a determination that the conclusions of the learned trial judge were clearly wrong. We so find.

While all of the above facts are true, it is also true that:

“A person is not required to exercise the utmost caution at each moment to avoid every hazard of which he was ever aware. Even the ‘reasonable man’ is permitted an occasional lapse of memory. The critical inquiry is whether or not he was exercising ordinary care for his own safety at the time of the accident and whether or not it was reasonable to forget the presence of the wire.”
Soileau v. South Central Bell Telephone Co., 406 So.2d 182 (La.1981).

In this case we believe that it was not unreasonable for the plaintiff to forget about the presence of the cover. She had earlier that morning been preparing to pack and leave for the weekend with her family to go to a camp which they owned. The last chore to be done before leaving was to check the mail. While her husband was completing the preparations to depart in the backyard, she went out into the front-yard and removed the mail from their mailbox. While flipping through the mail, she apparently took one step back onto the cover which flipped, causing her to fall and injure herself. We believe that the rationale of Soileau v. South Central Bell, supra, is appropriate to the facts presented herein.

STRICT vs. ABSOLUTE LIABILITY

Plaintiffs raised the question as to the nature of the liability herein. They claim that the person charged with the custody or ownership of the instrumentality (here, the storm drain cover) is absolutely, as opposed to strictly, liable if someone is injured by the instrumentality. In Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982), the Louisiana Supreme Court described several activities which, by the act of performing them alone, could subject the enterpriser to absolute liability. These activities include, but are not limited to, pile driving, storage of toxic gas, blasting with explosives, and crop dusting with airplanes. It would take a great stretch of the imagination to conclude that the maintenance of a storm drain would also fit into the above category. We therefore find that the maintenance of the storm drain is not an ultra-hazardous activity within the meaning of the term, and the strict liability rules apply.

SPECIAL DAMAGES

The special damages incurred as a result of the accident, which were proved up at trial, amount to $4,471.35. These include fees of doctors, hospital bills, medicines, rehabilitation clinics, and sitters for her invalid son while she was disabled.

We therefore award the sum of $4,471.35 for medical expenses and other special damages.

GENERAL DAMAGES

The plaintiff, Mrs. Deville, is a white female, approximately 50 years of age and weighing between 260 and 270 pounds. She is the mother of four children (two sons and two daughters). Her son, John, afflicted with Frederich’s Ataría, a form of muscular dystrophy, resides with her. Her other son, Kerry, 19 years of age, also living with her, is also developing signs of the same affliction.

Plaintiff testified that because of her son, John’s, disease, he is practically helpless. She was required to lift him into bed, bath him and dress him. In fact, all that he was able to do was feed himself. John is approximately six feet tall and weighs 200 pounds. She is no longer able to properly maintain him, as a result of her injuries, without a great deal of pain in her left knee. She, in fact, had to hire her two daughters to perform these tasks during the six-weeks period immediately following the accident at a cost of $500 each. Immediately after the accident, she was in severe pain and was unable to get out of the hole into which she had fallen for some fifteen minutes. She testified that there was a blood clot about the size of a grapefruit on her vagina. She also had various scratches and bruises on her left knee, stomach and in between her legs.

Five days after the accident, she saw Dr. Samuel Jenkins of Sulphur, Louisiana, who hospitalized her for treatment of the above injuries for approximately one week. Dr. Jenkins testified that there was a three to four-inch hematoma of the right labia ma-jora and he thought that she might need surgical intervention. He also stated that the periosternum of the bone of the left leg was bruised. At that time, plaintiff, according to the doctor, was in a great deal of pain.

Dr. David Drez, Jr., an orthopedic surgeon from Lake Charles, Louisiana, saw plaintiff on July 2, 1980. At that time, he noticed stiffness and puffing around the left knee and she complained of pain around the knee while sitting. Dr. Drez noticed a significant degree of arthritis beneath the patella of the left knee. On August 13, 1980, Dr. Drez had her hospitalized and had an arthroscopy performed (a procedure used to deal with arthritic changes in the knee). Dr. Drez testified that she had a 15% to 20% disability to the left lower extremity because of arthritic changes, “and that if she did not have the fall, one would have to assume that she would not have had symptoms”. In conclusion, he stated that he felt the fall must have precipitated the arthritis or at least caused it to be more symptomatic.

Dr. George P. Schneider, an orthopedic surgeon from Lake Charles, Louisiana, also saw the plaintiff. Her history as related to him was that she had contusions and a spraining injury to the left knee, and she, at the time he saw her, had “persisting residuals” of this injury. He last saw her on May 11,1981, and she, at that time, had a 10% to 15% loss of full extension of the knee. He testified that the problems that she had with her knee were related to the accident in that the softening of the articular cartilage on the back of the kneecap was accelerated by this direct injury to her knee and that she may need further treatment by surgery. On his last examination, she had a 35% permanent partial disability as a result of the accident with no foreseeable possibility of improvement.

Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Walker v. St. Paul Insurance Companies, 339 So.2d 441 (La.App. 1 Cir.1976), on remand, 343 So.2d 251 (La.App. 1 Cir.1977), writ denied, 345 So.2d 61 (La.1977).

Because of the observations heretofore made as to the extent and duration of her injuries, and for the above and foregoing reasons, judgment is rendered in favor of plaintiff, Jesse Deville, and against the defendant, Gravity Drainage District # 5, in the following amounts:

1. $3,471.35 for medical expenses.
2. $1,000.00 for sitters for his invalid son while his wife was disabled.

For the above and foregoing reasons, judgment is rendered in favor of plaintiff, Marie Deville, and against defendant, Gravity Drainage District # 5, as follows:

1. $75,000.00 for mental and physical pain and suffering, and disability, past, present and future.

It is therefore ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Jesse Deville and against Calcasieu Parish Gravity Drainage District # 5, in the amount of $4,471.35, plus legal interest thereon from date of judicial demand; and

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Marie Deville and against Calcasieu Parish Gravity Drainage District # 5, in the amount of $75,-000.00, plus legal interest thereon from date of judicial demand.

All costs of these proceedings, both in this Court and at trial level, are assessed against defendant, Gravity Drainage District # 5.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    Wanda Lyles McGOWEN, Plaintiff-Appellant, v. ST. PAUL GUARDIAN INSURANCE COMPANY, Defendant-Appellee.
    No. 82-269.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Writ Denied Jan. 10, 1983.

      William E. Skye, Alexandria, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, LeDoux Provosty, Jr., and Mary Virginia Brown, Alexandria, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

This matter arises out of the theft of a pair of elephant tusks from the home of Wanda Lyles McGowen, plaintiff herein. The tusks stood Tk feet tall and had a combined total weight of 196 pounds (one weighing 101 pounds and the other weighing 95 pounds). There is little doubt from the record that these tusks were appropriately designated as being in the “trophy” class.

Mrs. McGowen was insured against risk of loss via theft by the St. Paul Guardian Insurance Company. Additionally, she had purchased, under the same policy, the “Home Contents Replacement Costs Endorsement” which provided an extra degree of protection against such losses in that it contained a replacement cost provision which would allow her to recover the replacement cost of the tusks as of October 4, 1980, the time of the loss.

The principal dispute is the value of the tusks on the day of the loss. After rejecting defendant’s offer of $7,900 (estimated value of $8,000 less the $100 deductible), plaintiff instituted this proceeding seeking $45,000 as the value of the tusks, plus 12% of that amount as a penalty, and reasonable attorney’s fees. At the request of the defendant, the matter was tried before a jury, and after a two-day trial, judgment was rendered in favor of the plaintiff in the amount of $16,000, rejecting, however, her demand for penalties and attorney’s fees.

From this judgment, plaintiff has appealed devolutively.

Our inquiry is limited to a determination of whether or not the trier of fact abused its much discretion in determining the value of the tusks to be $16,000.

This determination is a purely factual question. Both plaintiff and defendant, in an effort to establish the value, relied upon the testimony of expert witnesses. Plaintiff produced the testimony of Mr. Harry Lee Tennison, a renowned big game hunter from Fort Worth, Texas, with extensive credentials, both in the area of hunting big game and more recently in the preservation of big game, especially elephants.

Tennison testified that he had hunted elephant for some thirty years and has had considerable dealings with ivory during that time. He has acted as an appraiser for ivory for the Nation of Zambia, has sold ivory for eleven years, and is still operating a retail store dealing principally in ivory, has bought ivory from and has sold ivory to people all over the world, and is familiar with the going price of ivory. Tennison admitted that he had in fact never bought nor sold “trophy” ivory and that his dealings were primarily with “broken” ivory, that is, tusks of ivory which are no longer intact, that are cut into pieces and used for carving and ornamental purposes.

Inasmuch as the tusks were of “trophy” size and weight and because they came from an area producing the highest quality ivory, Tennison valued the tusks at a minimum of $45,000.

Defendant relied principally upon the testimony of Mr. John Polis, a resident of New York, who is engaged in the buying and selling of ivory and has been so engaged on a regular basis since the early 1950’s.

Polis, although admittedly a wholesale dealer in ivory, has handled tusks of this size and larger in the past. Mr. Polis deals with full, complete tusks, as opposed to Mr. Tennison, who only dealt with “broken” ivory. Polis testified that the tusks in question were not so rare that they could not be replaced and placed a value on them at approximately $31 per pound at the time of their disappearance in 1980. He derived this figure from valuations published by the Department of Commerce. Polis stated that ivory purchased from him at a wholesale price is generally sold at retail for double the wholesale price. He placed a wholesale value on the tusks at $6,000, which would have placed the retail value of the tusks at $12,000 “unless” as he stated, “he [the retailer] can find some reason to go even higher”.

Our review of the record shows no error on the part of the jury in its valuation of the tusks at $16,000.

PENALTIES AND ATTORNEY’S FEES

The jury’s determination that defendant was not arbitrary and capricious cannot be disturbed. As with all penal statutes, LSA-R.S. 22:658 must be strictly construed and the burden of proof is on the claimant to prove that there was a lack of probable cause, arbitrariness, or capriciousness. Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App. 1 Cir.1975), writ refused, 320 So.2d 911 (La.1975); Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1 Cir.1981).

In support of its position, defendant, St. Paul Fire & Marine Insurance Company, presented the testimony of Henry Las-trapes, one of its claims managers. His testimony was to the effect that the first time he was made aware of the loss was via a “Property Loss Notice”, which is a separate and distinct document from a claim form, which indicated that the “probable” amount of the entire loss was $3,000 (D-5). This notice was received in the Baton Rouge office on October 13,1980. He testified that he had inquired further into the matter on at least two instances and was of the understanding that proof of loss for some $45,000 would subsequently be filed. He further testified that up until July 24, 1981, his company had not received any proof of loss relating to the tusks in question. On that date, the claims office received the proof of loss accompanied by a letter from plaintiff’s attorney (D-6). The $45,000 claim was above his office authority of $10,000 and he was required to turn it over to the New Orleans Service Center in Metairie, Louisiana. The $45,000 claim was rejected by the New Orleans office after an independent appraisal by a New York appraisal firm, and Mr. Lastrapes wrote to plaintiff’s attorney on September 16, 1981, advising him that the claim had been rejected and tendering to him St. Paul’s draft in the amount of $7,900, the amount that they felt was owed on the loss (D-7).

It is well settled in the Louisiana jurisprudence that whenever there is a dispute as to the amount of the loss, and the dispute is a reasonable one, the insurer can avoid the imposition of penalties and attorney’s fees by unconditionally tendering the undisputed portion of the claim to the claimant. Defendant did so in this instance, and the jury’s finding that the insurer was not arbitrary and capricious is not clearly wrong. LeBlanc v. Underwriters at Lloyd’s London, 402 So.2d 292 (La.App. 3 Cir.1981).

The judgment of the trial court is affirmed. All costs of this, appeal are to be borne by the plaintiff-appellant.

AFFIRMED.