text:
    Tom T. CHIPMAN, Sr., Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellants.
    No. 14274.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.

      Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants- appellants, Insurance Company of North America and Delta Manufacturing Co.
    Roland V. McKneely, Jr., Bossier City, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this worker’s compensation action the “employer and insurer appeal a judgment which awarded the employee benefits, with penalties and attorney fees, for 150 weeks for the effective loss of his hand under L.R.S. 23:1221(4)(e), (n).

The accident, which occurred in 1977 when the employee’s dominant hand was caught in machinery, resulted in the amputation of the entirety of the employee’s little finger, the amputation of his ring finger at the first joint, and residual hypersensitivity to his middle finger which was lacerated and abraded and which required a skin graft. The employee, an experienced operator of a coil line machine, returned to that position five weeks following the accident, and has since continuously and satisfactorily performed his duties. One doctor rated the employee’s medical disability at 29 percent of the hand while another rated it at 18 percent.

Compensation totaling $6,630 ($130 per week for 51 weeks) was paid the employee. The employer and insurer contend that no further compensation is owed because the proportionate loss of function provisions of § 1221(4)(o) are included in the law to apply to these circumstances. They contend that their maximum liability under that section is 29 percent of $130 per week for 150 weeks, or $5,655, which is less than the amount the employee has been paid.

The employee, in answer to the appeal, contends that he should be awarded benefits for total and permanent disability because he is working in pain and that the award of attorney fees should be increased.

The trial court noted the medical testimony and conflicting lay testimony about the employee’s working in pain and concluded that the employee had failed to prove that he was totally and permanently disabled in this respect. The trial court then noted the medical testimony regarding the residual impairment of the employee’s hand. The trial court concluded

“Although the medical impairment of [the] hand is 29%, he has effectively lost the hand insofar as his ability to earn a livelihood with it is concerned.” Our emphasis.

This language, however, is synonymous with the statutory definition of disability (the [disability of an employee to engage in any gainful occupation) in § 1221(1), (2) and (3) and should not be used when applying the specific loss sub-sections of § 1221(4) where ability to earn a wage is not the issue. The specific loss provisions were apparently included in the statute to serve “... somewhat as a substitute for the employee’s surrendered tort claim which, apart from the Act, he would have been entitled to assert for the loss of a physical member of his body even though his earning capacity were not impaired.” Malone-Johnson, § 282, pp. 749-750. Our emphasis.

The employee’s ability to engage in a gainful occupation (to use the statutory language) is the test for disability, either partial or total, under § 1221(1), (2) and (3). Where there is no disability of an employee to engage in gainful employment, and the employee has suffered a loss or a partial loss of either the use or the function of a member of his body mentioned in § 1221(4), the proportionate disability of the member is the test to be used in determining what percentage of the specific loss recovery is to be allowed the employee. Disability under § 1221(1), (2) and (3) relates to earning capacity, while disability of a member under § 1221(4)(o) relates solely to the loss of use or function of a member of the body listed in § 1221(4).

We have no problem in agreeing with the trial court’s conclusion that this employee is not disabled within the meaning of the law because of pain. See Latin v. Hica Corporation, 384 So.2d 479 (La.App.2d Cir. 1980); Simmons v. State Dept. of Transp., 368 So.2d 770 (La.App.2d Cir. 1979). This employee, however, is 57 years old with a third grade education, whose exclusive working experience has been in the operation of machinery and vehicles. These factors raise the question of total or partial disability, aside from pain, because of the possibility that such an employee might become an odd-lot, and might be unable .to compete, in the general labor market. See §§ 276, 279, Malone-Johnson. We resolve this issue against the employee and find him not totally or partially disabled within the meaning of the law, principally because he has been employed for almost three years now in the same gainful occupation as he was before the accident. Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App.3d Cir. 1978), writs denied, is inapposite. See discussion in § 279, Malone-Johnson.

The proportionate loss-of-function provisions of § 1221(4)(o) remain for our consideration in the light of the trial court’s findings that this employee suffered more (100 percent in result) than the maximum assigned medical disability of 29 percent of the hand as a consequence of the injury. The sound discretion of the trial court controls in these 1221(4) situations. Childers v. Roy O. Martin Lumber Co., 171 So. 484 (La.App.2d Cir. 1937); Calhoun v. Meridian Lumber Co., 180 La. 343,156 So. 412 (1934). See also Serean v. Kaiser Aluminum & Chemical Corporation, 277 So.2d 732 (La. App.4th Cir. 1973). In those eases, however, it appears that proportionate loss~of function assigned by the court was substantiated by some medical testimony. In Childers, for instance, all of the middle and ring fingers and two phalanges of the index finger of the employee’s left hand were amputated as the result of an accident. Other permanent impairments to the hand resulted, such as ankylosis of the thumb. The medical testimony was that the employee’s hand was so much impaired that it was virtually a total loss of use. 171 So. 486. L.R.S. 23:1221(4)(n).

Here we have no medical testimony to substantiate a virtual 100 percent loss of use of the hand. Thus the ultimate question is whether the trial court abused its discretion under the totality of the circumstances in assigning a 100 percent loss of the use of the hand. Because of this employee’s continuous and satisfactory performance of his duties for almost three years following the accident, and because the employee uses the hand in his employment (however partially or guardedly), we must conclude that the trial court erred in assigning a 100 percent loss of use of the hand as the basis for the award. In deference to the trial court’s discretion and following the implication of Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976), we assign the maximum disability we would affirm in these circumstances which is 60 percent.

Applying § 1221(4)(o) then, this employee should recover for his proportionate loss-of-use of his hand, 60 percent of $130 per week for 150 weeks, or $11,700, less credit for the amount paid.

ATTORNEY FEES AND PENALTIES

Before and after the insurer terminated compensation benefits, the insurer was notified that the employee was claiming total disability benefits. The trial court found that the insurer made no further attempt to investigate and determine the extent of the employee’s disability even though the insurer had represented to the employee’s attorney that it would further investigate. We do not find that the trial court erred in assessing penalties and attorney fees. See Malone-Johnson § 389. We increase the award of attorney fees by $500 to compensate for legal services rendered after rendition of the trial court’s opinion. Allums v. Dixie Metals Company, 369 So.2d 1204 (La.App.2d Cir. 1979).

The judgment appealed is amended to reduce the compensation benefits awarded from $130 per week to 60 percent of $130 per week for 150 weeks, subject to credit for amounts paid, and to increase the award of attorney fees from $3,500 to $4,000. We also amend the judgment to impose attorney fees and penalties only upon the insurer. An employer is obligated for attorney fees and penalties only where the employer’s liabilities are not covered by insurance. L.R.S. 23:1201.2, 22:658. See Gauthier v. Employer’s National Insurance Co., 316 So.2d 769 (La.App.lst Cir. 1975). Otherwise the judgment is affirmed. Costs of this appeal are assessed one-half to the insurer and one half to the employee.

Judgment,' as amended, is AFFIRMED.

      . “In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”
      For the loss of, or total loss of use of, a hand, compensation is owed for 150 weeks. § 1221(4)(e), (n). See Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, § 282.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Benny Joe BRINKLEY and Debra Lynn Colvin Brinkley, Plaintiffs-Appellants, v. MURRELL ENTERPRISES, INC., Defendant-Appellee.
    No. 14275.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for plaintiffs-appellants.
    Wilson & Veatch by Thomas A. Wilson, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiffs filed suit against Murrell Enterprises, Inc. seeking damages for personal injuries sustained by Mrs. Brinkley when she fell from the rental horse she was riding. Plaintiffs alleged that Mrs. Brinkley’s fall was caused by the negligence of defendant’s employees in saddling the horse. From a summary judgment rendered in favor of the defendant-corporation on the basis of affidavits and documents purporting to show the horse rental business was conducted by another corporation, Rent Horses, Inc., plaintiffs appeal. We reverse and remand for further proceedings.

Plaintiffs’ petition alleges that on April 17,1978, Mrs. Brinkley and several companions visited riding stables maintained by the defendant corporation. Mrs. Brinkley rented a horse which was then saddled by a stablehand. During the course of her ride, the girth of the saddle broke or became unfastened, causing the saddle and Mrs. Brinkley to fall heavily to the ground. Plaintiffs allege that defendant’s employees were negligent in improperly saddling the horse or in outfitting the horse with a saddle in such a deteriorated condition that the employees knew or should have known the dangers it posed.

Defendant initially filed an answer denying the allegations of plaintiffs’ petition. Several months later, defendant filed a motion for summary judgment claiming that Murrell Enterprises, Inc. neither owned nor rented the horse from which Mrs. Brinkley fell; neither was Murrell Enterprises, Inc. the employer of the stablehand who saddled the horse for Mrs. Brinkley. The motion was supported by the affidavit of Tom Mur-rell, the president of Murrell Enterprises, Inc. Supportive documents were attached to the affidavit which purported to prove that Rent Horses, Inc., a corporation of which Mr. Murrell is the sole stockholder, owned the horse and saddle in question and that the stablehand who saddled the horse was the employee of Rent Horses, Inc., and not of Murrell Enterprises, Inc.

In opposition to defendant’s motion, plaintiffs filed the affidavit of Mrs. Brinkley. Although defendant contends plaintiff’s affidavit should not be considered because it was not timely served, the trial court admitted the affidavit into evidence which it had the discretion to do. See Johnson v. Ouachita Parish Police Jury, 353 So.2d 1114 (La.App. 2d Cir. 1977). Therefore, this court may consider Mrs. Brinkley’s affidavit in determining whether there is a material fact at issue.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with supportive affidavits, if any, reveal that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. The burden of clearly showing that there is not a genuine issue of material fact in dispute is upon the mover. Any doubt is to be resolved against the granting of summary judgment and in favor of a trial on the merits. Chais-son v. Domingue, 372 So.2d 1225 (La.1979); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

The affidavits and documents submitted with the instant motion for summary judgment purport to establish the following facts:

(1) Murrell Enterprises, Inc. was incorporated in 1969. One of the principal purposes of the corporation was the renting of horses for riding purposes. Tom Murrell owns 100 percent of the stock of Murrell Enterprises, Inc.

(2) Rent Horses, Inc. was incorporated by Tom Murrell in 1974. Tom Murrell owns 100 percent of the stock of this corporation. The sole source of income of this corporation is from the rental of horses;

(3) Murrell Enterprises, Inc. is the owner of the stables and riding arena where plaintiff rented the horse from which she fell and is the lessee of the property where those stables are located; and

(4) Upon incorporation of Murrell Enterprises, Inc. Tom Murrell exchanged certain corporeal property, including 10 horses and 10 saddles, for stock in Murrell Enterprises, Inc. Shortly before incorporation of Rent Horses, Inc., Murrell Enterprises, Inc. conveyed 10 horses and 10 saddles to Tom Murrell. The assets of Rent Horses, Inc. at the time of its incorporation consisted of 20 horses, 20 saddles, and related riding equipment.

In his affidavit, Mr. Murrell states that Murrell Enterprises, Inc. does not rent horses for riding purposes and does not rent or furnish saddles or other riding accessories. He also states that the employees of Mur-rell Enterprises, Inc. do not assist in the saddling of rental horses. We find that these statements of Mr. Murrell, defendant’s president, unsupported by conclusive documentation and considered in light of Mrs. Brinkley’s averments that she rented a horse from defendant which was saddled by defendant’s employee, even though she admittedly has no personal knowledge of the ownership of the horse and saddle, are insufficient to resolve all doubt as to the ownership of the horse and saddle in question here and the employment of the stable-hand who saddled the horse on the day of the accident.

The record does not conclusively establish the absence of liability on the part of Mur-rell Enterprises, Inc. Rather, the nature of the relationship and transactions between Murrell Enterprises, Inc. and Rent Horses, Inc. is such as to require further inquiry into the ownership of horse and saddle, the employment of personnel working on the premises, and the legal relationship of the two corporations and their principal stockholders as it might affect liability to the plaintiff in the alleged accident and resulting injury. Plaintiffs should have the opportunity to probe by discovery and cross-examination the facts peculiarly within the knowledge of defendant, its officers and stockholders.

Because there remain genuine issues of material fact and because the facts disclosed by the affidavits and attached documents do not inevitably lead to the conclusion, as a matter of law, that defendant is entitled to judgment rejecting plaintiffs’ demands against it, we hold that summary judgment was improvidently granted. The judgment is reversed, the motion for summary judgment is overruled, and the case is remanded for further proceedings. Costs of this appeal are assessed to the appellee.

Reversed and remanded.


author: PRICE, Judge.

text:
    Eugene SEMON, Plaintiff-Appellee, v. CITY OF SHREVEPORT et al., Defendants-Appellants.
    No. 14276.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett by William J. Doran, Jr., Sp. Asst, to Gen. Counsel, Louisiana Dept, of Transp. and Development, Baton Rouge, defendant-appellant.

      Tucker, Martin, Holder, Jeter & Jackson by T. Haller Jackson, III, Shreveport, for plaintiff-appellee, Eugene Semon.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellee, Jack Wells Clarke.
    Charles C. Grubb, City Atty., Shreveport and James 0. McCrery, III, Asst. City Atty., Shreveport, by James 0. McCrery, III, for defendant-appellee, City of Shreveport.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Eugene Semon instituted this action against Jack Wells Clarke, the city of Shreveport, and the Department of Transportation and Development of the state of Louisiana seeking injunctive relief and damages resulting from the flooding of his residence. The trial court rendered judgment in solido against the city of Shreveport and the state of Louisiana for $12,000 in damages and $1,950 for expert witness fees. Plaintiff’s demands against Clarke and for injunctive relief were denied. From this judgment only the state has appealed. We affirm for the reasons assigned.

The record establishes that in 1965 Semon purchased his residence which is located in the Southern Hills subdivision adjacent to the Old Mansfield Road in Shreveport. The rear boundary of Semon’s property and an adjacent railroad right-of-way forms a low area which carries drainage waters from the upstream area northwest of the Old Mansfield Road and New Mansfield Road, draining through a 36-inch diameter pipe located under the railroad tract approximately 30 feet east of Semon’s southeast property corner. Upstream improvements in this drainage basin within the 30 months prior to the flooding of Semon’s residence included construction of the Innerloop Parkway (1-220) with an interchange at Mansfield Road (U.S. 171) and development of a small commercial subdivision on the east side of the Mansfield Road by Jack Wells Clarke. Since 1965 there have been occasions during heavy rainstorms when the drainage ditch behind the Semon residence became full and slightly overflowed its banks. However, the first time plaintiff experienced any flooding to his property occurred May 6, 1978, which is after the state began construction on the 1-220 inner-loop ramp. On that date the Semon residence was flooded with water and silt to a depth of about 11 inches during a heavy rainstorm. In January 1979 plaintiff’s residence was again flooded to a depth of 3 to 5 inches in a less severe rainstorm. After each of these occasions the water receded leaving a residue of silt in plaintiff’s home and yard. There were other times between May 6, 1978, and May 4, 1979, during moderate rainstorms that flood waters rose to the rear of plaintiff’s home threatening to enter the residence.

Plaintiff filed this suit alleging that the flooding of his residence and the damages he sustained were caused by the development of the commercial subdivision by Jack Wells Clarke, the construction of the 1-220 innerloop ramp by the State Highway Department, and approval of inadequate drainage for these projects by the city of Shreveport. Plaintiff contends that he sustained substantial damage to his residence and its furnishings and that the flooding caused him extreme mental anguish, inconvenience, and embarrassment.

After a trial on the merits the district court found the state to be liable under a combination of La. C.C. Articles 660 and 667 in that the state’s construction of the 1-220 ramp made the natural servitude on plaintiff’s property more burdensome. The court found the city of Shreveport liable under principles of negligence and found the evidence insufficient to show the commercial development of Clarke was a cause of plaintiff’s damage. The court awarded plaintiff $9,500 for his special damages and $2,500 for general damages (mental anguish and inconvenience).

Appellant’s primary assignment of error is that there is an absence of proof that its construction of the 1-220 ramp was the cause of the damages alleged to have occurred to plaintiff’s home.

The legal principles underlying the sufficiency of proof necessary to prove causation are concisely reviewed in Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973) as follows:

To be actionable the cause need not be the sole cause, but it must be a cause in fact, and to be a cause in fact in legal contemplation it must have a proximate relation to the harm which occurs, and it must be substantial in character. (Citations omitted).
As a starting point in a review of the evidence necessary to establish cause, it must frankly be conceded that certainty is generally unattainable from the testimony produced in court. Sanders, Anatomy of Proof in Civil Actions, 28 La.L.Rev. 297 (1968). Instead, the law of evidence has long required that the testimony of witnesses be weighed by probabilities. Kemp v. Wamack, 2 La. 272 (1831).
When it is said that the plaintiff must establish a disputed fact by a preponderance of the evidence, the authorities have come to define this further as meaning that a plaintiff must prove that the existence of the disputed fact is more probable than its nonexistence. (Citations omitted).
It is an elementary proposition that causation may be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. (Citation omitted).

The record contains extensive testimony by several expert witnesses concerning the extent to which the construction of the 1-220 ramp increased the burden on the natural drainage servitude affecting plaintiff’s property. The opinions are conflicting as to whether the unusual rainfall of May 6, 1978, would have caused the flooding of the Semon home under circumstances which existed prior to the 1-220 construction.

The testimony shows that prior to the construction of the 1-220 ramp, the undeveloped land west of the Old Mansfield Road permitted a pooling of rainfall before it began its flow through the drainage facility under the road and continuing through the ditch adjacent to the rear of plaintiff’s residence. This pooling of water served to slow the rate of discharge sufficiently for the then existing drainage facilities to prevent serious overflow in the ditch along the rear of the Semon property. The dirt fill necessary for the 1-220 ramp eliminated any further pooling of water on the west side of the Old Mansfield Road in this vicinity. We find the evidence sufficient to support the trial court’s finding that this drastic change in the topography by appellant’s construction activities was a substantial contributory cause of the flooding of the Semon home on May 6, 1978. We are fully cognizant that the rainfall of that date was very unusual and the appellant’s argument based on “Force Majeure” would appear convincing if it were not for the evidence showing the property to have flooded on at least two later occasions from a rainfall that was not highly unusual.

Appellant next contends the trial court’s award of damages under a combination of Arts. 660 and 667 rather than under the theory of inverse condemnation is contrary to the recent decision of this court in Key v. La. Dept. of Highways, 357 So.2d 1230 (La.App.2d Cir. 1978) and the Supreme Court decision in Reymond v. State, Dept. of Highways, 255 La. 425, 231 So.2d 375 (1970), and that damages for mental anguish and inconvenience are not allowable under these decisions.

Appellant is correct in pointing out that this court in Key ruled that general damages for such items as mental anguish were not recoverable under circumstances analogous to those presented here. However, the action for damages in Key was apparently initiated under inverse expropriation allegations and tried in both the district court and on appeal solely under this theory of recovery. There is no discussion in the opinion in Key as to whether inverse expropriation was the exclusive remedy available to the plaintiff. Although recovery was denied for such damages in Kendall v. State, Dept. of Hwy., 168 So.2d 840 (La.App.2d Cir. 1964), this court discussed Art. 667 as an available remedy to the damaged party as follows:

We are in agreement with the trial judge’s conclusion. Regardless of whether the cause of action arose out of Articles 2315 or 667 of the LSA-Civil Code, whenever a governmental agency engages in an undertaking with a public purpose and public benefit which directly results in a damaging of private property the “or damaged” provision of the above quoted constitutional article is self-operating and creates a cause of action.

The apparent trend in the jurisprudence since Kendall has been to permit recovery under Art. 667 and to include damages for mental anguish and other non- pecuniary damages.

The Supreme Court has clearly held that the state or its agencies are within the purview of the terms “proprietor” and “estate” as used in Art. 667 and may be subject to the strict liability of this article for damages to private property in carrying out public works. Lombard v. Sewerage & Water Board of New Orleans, supra. Also see Chaney v. Travelers Ins. Co., 259 La. 1, 249 So.2d 181 (1971).

The Third Circuit has recently allowed recovery for mental anguish and inconvenience under the strict liability of Art. 667 in an action for flood damage to adjacent property by highway construction. LaHaye v. La. Dept. of Highways, 377 So.2d 1286 (La.App.3d Cir. 1979), writ denied 381 So.2d 1222 (1980).

We believe the prevailing authority is to permit recovery under Art. 667 and therefore we find the trial court was not in error in allowing plaintiff to recover damages for mental anguish in this instance. There is sufficient evidence to meet the strict burden of proof required by the jurisprudence to recover damages for mental anguish. See Elston v. Valley Electric Membership Corporation, 381 So.2d 554 (La. App.2d Cir. 1980).

Plaintiff had a serious heart condition and had undergone two open heart operations in past years. As he was present in him home, watching as water entered the residence in the late night hours of May 6, 1978, it is reasonable for the trial court to have found that plaintiff suffered a substantial mental trauma.

Appellant also contends plaintiff did not present adequate proof of the special damages claimed by him and that the trial court erred in awarding the sum of $9,500 for those damages. The special damages claimed by plaintiff were for damage to furniture and personal belongings in the residence. Appellant’s principal complaint in this regard is to the lack of corroborating proof of plaintiff’s own testimony setting forth a value for the various items he contends were damaged.

Plaintiff did not present a sales invoice showing the cost of each item when originally purchased or an appraisal of the depreciated value by a third party.

Plaintiff in amended pleadings itemized the various articles damaged and testified that he and his wife went to various retail stores and priced similar quality items to those damaged and took an average of the high and low to arrive at the replacement cost. This appears to be the best available evidence under the circumstances as it would be unreasonable to expect a homeowner to have retained the original sales invoices of items of furniture and personal property acquired over a period of years. The trial judge reduced the total estimate of damages submitted by plaintiff of $12,-186.45 to $9,500 and was of the opinion plaintiff had shown damages of at least this amount by his own testimony which was accepted by the court as sufficient under the circumstances.

When it is clear that a plaintiff has sustained some damages as a result of the fault of the defendant, according to our well settled jurisprudence, his demands will not be rejected merely because he cannot establish exactly the amount suffered. Under such circumstances the court must fix the quantum as best it can and, in this connection, the trial judge is vested with much discretion. Green v. Farmers’ Consolidated Dairy Go., Limited, 113 La. 869, 37 So. 858; Wall v. Hardwood Mfg. Co., 127 La. 959, 54 So. 300; Schmidt v. City of New Orleans, 160 La. 281, 107 So. 110; Germann v. 557 Tire Co., Inc., 167 La. 578, 120 So. 13, and Franklin v. Arkansas Fuel Oil Co., 218 La. 987, 51 So.2d 600. Brantly v. Fremont & Gulf Co., 226 La. 176, 75 So.2d 236 (1954).

We find the trial court did not exceed its discretion in awarding a general amount for the special damages in this instance.

Appellant further complains the trial court awarded an excessive amount for the fee of Robert Jones, an expert witness called by plaintiff. The record indicates Jones, a civil engineer who was plaintiff’s only expert, spent a considerable amount of time in making an analysis and evaluation of the cause of plaintiff’s flooding. The amount awarded of $1,950 does not appear to exceed the discretion of the trial judge in determining the fee of this expert.

Subsequent to trial and after perfection of the appeal by the state, Semon died and his widow and children petitioned the district court and were granted the right to be substituted as parties-plaintiff in this action. Appellant has pointed out the apparent lack of jurisdiction by the trial court to have granted such an order after the appeal had been taken. As the affidavit of death and heirship has been entered in the record on appeal and as counsel for plaintiff has moved for such an order from this court under Rule XIII of the Uniform Rules of the Courts of Appeal, it is therefore ordered that Kathryn Ann Ivey Semon, Alfred Eugene Semon, Jr., John Robert Semon, and Diane Denise Semon be substituted as parties-plaintiff in this proceeding in lieu of their deceased husband and father.

For the foregoing reasons the judgment is affirmed.

      . Art. 660. Natural drainage
      It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
      The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
      The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.
      Under the revision of Title 4, Book 2 of the Civil Code, enacted pursuant to Acts 1977, No. 514 § I, effective January 1, 1978, La. C.C. Art. 660 has been redesignated as La. C.C. Art. 656.

      . Art. 667. Limitations on use of property
      Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.


author: FRED W. JONES, Jr., Judge.

text:
    Vernon HENSON, Individually and on Behalf of the Minor, Travis Henson, Plaintiff-Appellee, v. GRAIN DEALERS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 14279.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.
    Writ Refused Dec. 15, 1980.

      Carl F. Walker, Monroe, for defendant-appellant.
    McKinley & O’Neal by Hodge O’Neal, III, Monroe, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Vernon Henson, individually and as administrator of the estate of his four year old son, Travis Henson, brought this suit to recover damages for injuries sustained by the child while riding as a passenger in a car owned by plaintiff and operated by Wendy Henson, plaintiff’s sixteen, year old daughter. Grain Dealers Mutual Insurance Company, which had issued the liability insurance policy covering the Henson vehicle, was made defendant. From a judgment in favor of plaintiff for policy limits of $25,-000, defendant appeals, contending that the trial court erred in finding that Wendy Henson was negligent and in holding that the “sudden emergency” doctrine was inapplicable.

We affirm.

The facts of this case are undisputed. At approximately 7:30 o’clock p.m. on August 21, 1978 Wendy Henson was driving her father’s automobile in an easterly direction on Interstate Highway 20 in Richland Parish. The only passenger in the vehicle was Travis Henson who was sitting in the middle of the front seat about two feet from his sister. The evidence indicated that this child was fascinated by the dials on automobile dashboards. On this particular occasion, as was his custom, Travis had been occupying himself by watching the movements of the various dials. Suddenly and without giving any warning to Wendy, Travis reached over, grabbed the steering wheel and pulled it in a downward direction. Since the car started swerving to the right, Wendy reacted by abruptly turning the vehicle to the left. In the course of this maneuver the car struck a guard railing on the side of a bridge and turned over, causing the serious injuries sustained by Travis.

Wendy testified that she was familiar with Travis’ habit of closely observing the various indicators on automobile dashboards and had, on occasion, seen the child grasp his father’s arm, while Henson was driving, in order to get a better look at the dials.

The plaintiff in Williams v. Allstate Insurance Co., 268 So.2d 290 (La.App.2d Cir. 1972), sought damages for injuries sustained by his eight year old son who was either thrown or jumped from the bed of a pickup truck. Discussing the duty of the vehicle driver to the minor passenger, this court stated:

“As a general rule, a person who undertakes the control and supervision of a child, has the duty to use reasonable care to protect the child from injury. Such a person is not an insurer of the safety of the child, but is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm. Whitney v. Southern Farm Bureau Casualty Insurance Company, 225 So.2d 30 (La.App.3d Cir.1969). Reasonable care is that degree of care which under the circumstances would ordinarily or usually be exercised by or might be reasonably expected from an ordinary prudent person. Tucker v. Travelers Insurance Company, 160 So.2d 440 (La.App.2d Cir. 1964).
“In applying these well-recognized standards, the known characteristics and instincts of children must be considered in determining whether a person exercised the required degree of care. These known characteristics require a person to exercise a greater degree of vigilance and care toward children than toward adults. Llorens v. McCann, 187 La. 642, 175 So. 442 (1937).

Compensation for injuries to a 20 month old child who fell out of a car driven by defendant was sought in Salley v. State Farm Mutual Automobile Insurance Co., 157 So.2d 638 (La.App.2d Cir. 1963). Affirming a judgment in favor of plaintiff this court reasoned:

“The law is well settled that a motorist is held to a high degree of care when operating a motor vehicle in the vicinity where small children are known to be present. Most such cases in our jurisprudence have involved injuries to small children playing in the streets or highways. In such cases our courts have uniformly held the driver to an extremely high degree of care in anticipating unusual and impulsive actions characteristic of persons of immature years.
“While we have been cited to no Louisiana- cases where a small child fell from the open door of a moving car, we see no reason why the same general rules previously enunciated herein would not be applicable. ...”

In an excellent, well-reasoned written opinion, the trial judge in this case found Wendy negligent because:

“Since Wendy testified that she knew of Travis’ habit of viewing the dashboard figures and pulling up on whatever was available to get a better look, vigilance required that she either protect the steering wheel from him or be alert and prepared for any movement he made towards the wheel. It is not as if he were seated on the far side of the front seat and suddenly jumped from that apparently safe position to the steering wheel, but according to the witness’ own testimony he was situated about two feet therefrom in the middle of the seat.”

We agree with the trial judge that Wendy’s duty with respect to her young passenger was to exercise reasonable care to protect the child from injury. The recognized proclivity of small children to act on impulse and to do the unexpected must be taken into account in determining what constitutes reasonable care in a given situation. Further, if as here, the driver knows that the child has interfered with a driver on other occasions, the reasonable care standard mandates that he be particularly alert to that possibility when the child is sitting near him in a vehicle he is operating.

The evidence convinces us that the trial judge was correct in concluding that Wendy violated her duty of exercising reasonable care in this case by permitting Travis to sit close enough to interfere with her driving and by maintaining such a light grip on the steering wheel that this four year old child wrested its control from her.

Since we have concluded that the emergency with which Wendy was confronted was the result of her negligence, defendant’s reliance on the “sudden emergency” doctrine is misplaced. See Ellis v. Coleman, 309 So.2d 716 (La.App.4th Cir. 1975); Austin v. Collier, 304 So.2d 82 (La.App. 1st Cir. 1974); Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir. 1974).

Quantum

Travis’ most serious injury resulting from the accident involved the malfunctioning of his right kidney, which required surgery for the removal of the lower portion of that organ, with the accompanying pain and discomfort during his convalescence. Although the prognosis is excellent, medical testimony established that the removal of a portion of a kidney renders one more susceptible to kidney diseases and related problems.

In view of the seriousness of this injury and possible consequences, we cannot say that the trial judge’s award of $25,000.00 in damages was an abuse of his wide discretion. See Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979).

For the reasons set forth, we affirm the judgment of the trial court at appellant’s cost.


text:
    Timothy GAINES, Jr., Plaintiff-Appellee, v. James PHILLS, Jr., d/b/a Phills Construction Company, Defendant-Appellant.
    No. 14280.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.

      Gamm, Greenberg & Kaplan by Irving M. Greenberg, Shreveport, for defendant-appellant.
    Eatman & Hunter by Robert E. Eatman, Jr., Shreveport, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

From a judgment in favor of plaintiff ordering rescission of a building contract and awarding damages, penalties and attorney fees, defendant appeals. Plaintiff answered the appeal, seeking an increase in the attorney fee award.

We amend the judgment of the trial court and affirm.

The issues presented on this appeal are whether the trial judge erred in: (1). finding that the building contract included a credit transaction subject to 15 U.S.C. 1601 et seq.-the Truth in Lending Act; (2) finding that plaintiff was due damages because of defendant’s failure to furnish written notice of lien rights under La.R.S. 9:4852; and (3) finding that plaintiff was entitled to damages for mental distress.

Factual Context

Timothy Gaines, Jr., a Shreveport homeowner, and James Phills, Jr., a Shreveport building contractor doing business as Phills Construction Company, executed two rather poorly drawn written instruments (prepared by Phills) in connection with Phills undertaking certain construction work for Gaines. The first instrument, a building contract dated January 30, 1978, provided that Phills would perform specified work, generally involving remodeling and adding to Gaines’ existing dwelling, for a total price of $15,000.00 payable in three stipulated installments.

Another written instrument, dated February 1,1978, signed by Gaines, prepared on one of Phills’ “construction proposal” forms, contained the following language:

“This note is for the remaining of the contract price on the house.
“It has been agreed between Timothy Gaines and James Phill, owner of Phill’s Construction Company, that James Phills will carry the note for $4,000.00 at a rate of 5% interest. The 5% interest will be enforced for one year; if paid before one year (2/1/79) then there will not be an interest fee; afterward the interest is expected to be paid, at a rate of $50.00 a month until bill is paid.
“Interest on this note is $750.00, payment begins one month after the job is completed.
“This note will not be sold to any other company; it will be maintained by Phill’s Construction Co.
“NOTE: This note can be paid in full anytime.”

Evidence presented at the trial established that the total contract price was actually $19,000.00. It was contemplated by the parties that upon completion of the job Gaines would have paid Phills the sum of $15,000.00 in cash, with the balance of $4,000.00 financed by Phills in accordance with the terms of the second instrument.

The record indicates that this construction project was plagued with difficulties from the beginning, with relations between the parties becoming increasingly acrimonious as the work progressed. Rain caused water damage at the start of the undertaking. During the course of the construction the city building inspector required certain structural changes in the building. There also appeared to be an accumulation of minor irritations which combined to aggravate an increasingly unpleasant working relationship between Gaines and his wife on one side and Phills and his employees on the other. Most of Gaines’ complaints, deemed by the trial judge to be well-founded, centered around unsatisfactory workmanship by Phills’ crew. Finally, following disputes over the paving of a concrete patio and the proper method of performing certain corrective work, the job was terminated prior to completion. Whether Phills departed voluntarily or was ordered off the Gaines premises was a point of contention in the trial court. Be that as it may, because of Phills’ failure to pay various subcontractors, liens were filed against the Gaines property. Only one of those, in favor of Shreveport Millwork & Supply Company, Inc., was reduced to judgment.

As a consequence of the described unfortunate sequence of events, this suit was filed by Gaines against Phills for rescission of the building contract because of violation of the Truth in Lending Act and for damages, penalties and attorney fees.

Application of Truth in Lending Act

It was stipulated by the parties that defendant’s business was such that he was required to comply with 15 U.S.C. 1601 et seq. (referred to hereinafter simply as the “Act”) and, further that defendant made no disclosures that might have been required by the Act if it was applicable.

Defendant argues that a credit transaction between the parties was never consummated since the instrument couched in the language of a promissory note contained no specific payment provisions. Therefore, it was his position that the Act was inapplicable.

Section 1602 of the Act contains the following pertinent definitions:

“(e) The term ‘credit’ means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.
“(h) The adjective ‘consumer’, used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household (emphasis added), or agricultural purposes.”

The trial judge found that the agreement between the parties included a credit transaction which required compliance with the Act because the arrangement allowing plaintiff to pay the $4,000 balance of the construction contract in monthly installments “placed a substantial portion of the construction contract within the spirit and tenor of Truth in Lending Statute.” According to the testimony presented at the trial, it was the intent of the parties that the two described written instruments be treated as one home improvement contract with a portion of the total contract price to be financed by the defendant. Since the defendant was clearly granting to plaintiff the right to defer payment of the $4,000 debt, we agree with the trial judge that this was a consumer credit transaction within the meaning of the Act.

Finding that the Act is applicable, we turn to the rights afforded to the debtor under the terms thereof. Section 1635(a) provides:

“(a) Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.”

La.R.S. 9:4801 grants to every contractor who performs work and furnishes material for the improvement of immovable property a privilege upon the affected property for his labor and materials which may be evidenced by the filing of a lien. It was defendant’s obligation to disclose to plaintiff the possibility of the creation of that lien. Gerasta v. Hibernia National Bank, 575 F.2d 580 (5th CCA 1978).

Section 1635 of the Act vests a continuing power of rescission in the credit purchaser until three days following delivery of statutorily prescribed disclosures whenever as an incident of the credit transaction a security interest is acquired in the debtor’s realty which he uses as his residence. Sosa v. Fite, 498 F.2d 114 (5th CCA 1974).

Since the defendant did not make to plaintiff the disclosure required by law, plaintiff timely exercised his right to have the transaction rescinded. In connection therewith, Section 1635(b) of the Act provides:

“(b) When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within ten days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it.”

The parties stipulated that plaintiff had paid to defendant the sum of $10,-000 under the terms of their contract. The provisions of Section 1635(b) mandate the return of those funds. On the other hand plaintiff is required to return to defendant the property received by him, unless that is impractical. Since the labor and material furnished by defendant have become a part of plaintiff’s dwelling, we agree with the trial judge that the return of this property would not be practical and that defendant is entitled to credit for the enhancement to the market value of plaintiff’s property due to defendant’s work. Further, the trial judge was not clearly wrong in accepting the testimony of Charles Hall that this figure amounted to $4,050.00. Deducting this from the $10,000 paid, plaintiff is entitled, as held by the trial judge, to the return of $5,950.00 under Section 1635(b).

Section 1640 of the Act provides in pertinent part:

“(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of ■
“(1) any actual damage sustained by such person as a result of the failure;
“(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, or (ii) in the case of an individual action relating to a consumer lease under part E of this subchapter, 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000; or
“(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.”

The “note” in this case provided for a finance charge of $750.00. Since twice this amount would exceed the maximum allowable penalty under Section 1640, the trial judge was correct in awarding the sum of $1,000 as a penalty.

Since this section also authorized the granting of a reasonable attorney fee, the trial judge acted within his discretion in fixing the sum of $1,250 for this item. Plaintiff is also entitled to a reasonable attorney’s fee for services rendered on this appeal since his suit was a “successful action.” Therefore, we amend the judgment of the lower court to increase the attorney fee by $500.00 to $1,750.00. See Gerasta v. Hibernia National Bank, supra.

Damages for Failure to Give Lien Notice

La.R.S. 9:4852 requires that “prior to or at the time of entering into a contract for residential home improvements” the contractor must deliver to the homeowner a written notice of the possibility of lien filings. If the contractor fails to give this notice, under La.R.S. 9:4855 the “owner shall have a civil cause of action therefor, and shall be entitled to reasonable damages and attorney fees.”

There is no question but that defendant failed to furnish plaintiff with the described notice. Further, liens were actually filed and one was reduced to judgment. However, defendant-appellant argues that plaintiff is not entitled to damages because the former had offered to give the latter credit for the amount of the lien on the balance due defendant by plaintiff. Obviously, the cited statutory provision does not support a defense of this nature and the trial judge was correct in rejecting it. The allowance of $500 as damages under this provision was within his discretion.

The trial judge was also correct in holding that plaintiff was entitled to reimbursement for the amount of the judgment rendered against him in favor of the lienholder, Shreveport Millwork & Supply Company, Inc.

Damages for Mental Distress

Because of “all the difficulties created by Mr. Phills and the construction project which he undertook,” the trial judge awarded plaintiff the sum of $1,000 for mental anguish.

The plaintiffs in Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979) sued for breach of a contract to construct a dwelling and, among other things, asked for damages for mental anguish and distress under La.C.C. Art. 1934(3). Affirming a lower court judgment which rejected this particular demand, the Louisiana Supreme Court held:

“. . . In the instant case we hold that the obvious inference to be drawn from the limited facts available in this record is that the principal object of the contract, as with most contracts to construct dwellings, was to build a structure to be used as a residence by the plaintiffs. This was their overriding concern: to obtain a place to live in, to provide shelter from the elements and to afford health and comfort for their family in keeping with their means.
“While plaintiffs claim that intellectual gratification or convenience was the object of the contract, that claim is not supported by the record except by their argument in brief and tenuous inferences. And, if intellectual gratification or convenience were objects of the contract, they were not principal objects but incidental objects not specifically contracted for, as was the construction of the physical structure itself.”

The ruling in Ostrowe, to which we must adhere, is dispositive of the claim for damages for mental distress in this action. Examination of the record reveals no evidence that the principal object of the contract between the parties was anything other than the remodeling and enlarging of plaintiff’s dwelling. Certainly there was no explicit evidence that a principal object of the contract was plaintiff’s intellectual gratification or convenience. Consequently, we conclude that the trial judge erred in awarding damages for mental distress, and delete this item from the judgment. Conclusion

For the reasons set forth, we amend the judgment of the trial court by deleting the award of $1,000 for damages for mental distress and by increasing the amount of the attorney fee awarded to plaintiff-ap-pellee from $1,250 to $1,750 and, as amended, affirm. Costs of this appeal are assessed one-half against the appellant and one-half against the appellee.

      . See O’Neil v. Four States Builders & Remodelers, Inc., 484 F.Supp. 18 (E.D.Pa.1979), in which Truth in Lending Act was held to apply to home improvement contract which contained credit provisions.

      . “3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.”


text:
    B. Evan ROBINSON, Plaintiff-Appellant, v. MIKE McKEAN, INC., Defendant-Appellee.
    No. 14282.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.
    Taylor W. O’Hearn, Shreveport, for plaintiff -appellant.
    Shaw & Shaw and Jenifer Ward Clason, Homer, for defendant-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   HALL, Judge.

After the defendant-lessee vacated the leased premises four months prior to the end of the five -year term of the written lease, the plaintiff-lessor filed suit to recover rent for the remaining four months, the cost of repairing the roof allegedly damaged by the defendant, and the cost of cleaning the building after it was vacated. Defendant denied any liability and as special defenses alleged that plaintiff had verbally agreed to an early termination of the lease and also that defendant was justified in cancelling the lease because a leaking roof rendered the premises unfit. After trial the district court held for defendant, finding that plaintiff had failed to carry his burden of proof in that (1) no evidence was presented showing that the four-months rent had not been paid; (2) no evidence as to the extent of damage to the roof or the cost of repair was presented other than the testimony of plaintiff which was rebutted by defendant; and (3) no evidence was presented as to the need for cleaning the leased premises or the cost of the cleaning. Plaintiff appealed.

The findings of the district court were correct as to the damage to the roof and cost of cleaning the premises. The finding of the district court was incorrect as to proof that the four-months rent had not been paid. Defendant’s president testified under cross-examination that the defendant company vacated the premises prior to the end of the five-year term of the lease, leaving four months rent unpaid.

The issues on appeal, then, are whether defendant established either of its special defenses, that is, whether plaintiff agreed to an early termination of the lease, or whether defendant was justified in vacating the premises and cancelling the lease because of the condition of the premises. The trial court made no findings with respect to these issues.

As to the first issue, defendant argues that parol evidence was admissible to prove its verbal agreement with the plaintiff that the corporation could cancel the lease upon completion of its new building. Defendant argues that when plaintiff failed to object to the introduction of parol evidence, he waived any objection thereto, and that a written lease may be terminated by oral agreement because a lease does not have to be in writing. Plaintiff contends that parol evidence is not admissible to vary or alter the terms of a written instrument, that the written lease itself provides that it shall not be modified or altered except in writing, and that, in any event, the evidence was insufficient to establish an agreement for early termination of the lease.

Regardless of whether parol evidence should have been admitted, which this court need not decide, defendant’s evidence fell short of establishing a firm agreement by the plaintiff that the defendant could terminate the lease prior to the expiration of the lease term.

The written lease was for a five-year term ending May 31, 1978; the rental was $750 per month. The defendant operated an automobile dealership in the leased premises. Defendant’s president, Mike McKean, testified that about the middle of 1977 he advised the plaintiff he was planning to build a new building for his dealership and requested that plaintiff agree to allow him to terminate the lease upon completion of the new building, expected to be about January 1978. McKean testified that plaintiff agreed to the early termination provided defendant would waive its option to renew the lease, which McKean agreed to do. McKean had his attorneys prepare an amendment to the lease reflecting this agreement but when he presented it to plaintiff, plaintiff said that he had changed his mind and refused to sign it. When defendant’s new building was completed, in January 1978, it vacated the premises.

Plaintiff, on the other hand, testified that although he discussed the matter several times with McKean and was inclined to agree to an early termination of the lease, he never did so. Plaintiff testified he did not think the building would be completed by January 1978, he wanted certain notice provisions concerning the termination of the lease, and he wanted to be sure that McKean had paid him everything he owed him on another obligation. Plaintiff testified he told defendant that when defendant was ready to vacate the premises to come talk to him about it.

Defendant-lessee pleads a special defense when it denies liability for rental payments on the ground that plaintiff and defendant entered a verbal agreement for an early termination of the lease. Aronowitz v. Dulitz, 12 La.App. 59, 125 So. 292 (Orl. Cir. 1929). The defendant who pleads a special defense bears the burden of proving it by a preponderance of the evidence. Aronowitz v. Dulitz, supra; Harmon v. Lumbermens Mutual Casualty Company, 247 La. 263, 170 So.2d 646 (1965); Hospital Corporation of the Sisters of St. Joseph v. Cunningham, 261 So.2d 318 (La.App. 1st Cir. 1972).

In the instant case, the only evidence offered in support of the special defense is the uncorroborated testimony of defendant’s president. This testimony, which was denied by plaintiff, is insufficient to establish a firm agreement for termination of the lease prior to the expiration of its stated term.

Defendant urges that McKean’s testimony was corroborated by a letter demanding payment of the rent written by plaintiff’s attorney after the defendant vacated the leased premises. The letter contains a statement to the effect that plaintiff agreed to an early termination of the lease “under certain conditions.” This after the-fact communication by plaintiff’s attorney does not corroborate the existence of a firm agreement. It has little probative value and, if anything, indicates that any agreement reached was conditional. Defendant has failed to sustain its burden of proof with regard to the alleged verbal agreement.

As to the leaking roof, it was established by the testimony of defendant and one of his employees that the roof of the building leaked from time to time after rains. Photographs offered into evidence, taken after the building was vacated, showed some evidence of roof leaks. It was established that plaintiff put on a new roof before the building was occupied by a new tenant. Plaintiff conceded that from time to time defendant made complaints about the leaking roof and that he responded with efforts to repair the roof, which admittedly were not entirely successful. There was a leak in defendant’s office, but the worst leak was in the shop area.

Under the express terms of the lease the lessor was obligated to repair and maintain the roof of the leased building. LSA-C.C. Art. 2692 obligates the lessor to “maintain the thing in a condition such as to serve for the use for which it is hired.”

Although the evidence establishes a continuing problem with roof leaks after rains, the evidence does not establish that the problem was of a particularly serious nature or that it seriously interfered with the use of the premises. While the leaking roof may have been one of the factors motivating defendant to build a new building, it is not shown that it was a prime factor or that defendant ever made a serious issue of the leaking roof prior to vacating the premises. The evidence falls short of establishing that the building was unfit for its intended use. Defendant was not justified under the circumstances in unilaterally abrogating the lease and vacating the premises. Reed v. Classified Parking System, 232 So.2d 103 (La.App.2d Cir. 1970), writ denied 234 So.2d 194 (La.1970); Inabnett v. Pruett, 229 So.2d 150 (La.App.2d Cir. 1969); Guillot v. Morgan, 165 So.2d 330 (La.App.2d Cir. 1964).

Having failed to establish its special defenses the defendant is responsible under the terms of the written lease for the stipulated $750 per month rent for the four months which remained on the term of the lease. Accordingly, the judgment of the district court is reversed insofar as it rejected plaintiff’s demands for unpaid rent. There is judgment in favor of the plaintiff, B. Evan Robinson, against the defendant, Mike McKean, Inc., for the sum of $3,000, together with legal interest on each monthly rental installment from the date it became due until paid, and for all costs of this proceeding, including the cost of appeal.

Reversed in part and rendered.


text:
    Kathy Newman MANLEY, Plaintiff-Appellant, v. Gregory H. MANLEY, Defendant-Appellee.
    No. 14315.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.

    Writ Refused Dec. 15, 1980.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff appellant.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for defendant appellee.
    Before PRICE, HALL and MARVIN, JJ.

       Jasper E. Jones, J., recused.

   HALL, Judge.

This case concerns the custody of three and one half year old Melissa Marie Manley, daughter of the plaintiff mother and defendant father. Mrs. Manley was awarded custody of Melissa after the Man-leys separated in 1978. In 1979 Mrs. Manley filed suit for divorce and asked that permanent custody of Melissa be awarded to her. The defendant father reconvened on the custody issue, alleging that the impropriety of the mother’s relationship with a male companion was detrimentally affecting the minor child. A hearing held on the custody matter resulted in a judgment removing Melissa from the plaintiff’s custody and awarding permanent custody of the minor to the father. The mother perfected an appeal from the custody judgment. While this appeal was pending, a divorce judgment was rendered, with the custody judgment being continued in effect pending the appeal thereof. Plaintiff also appealed this judgment, seeking to have it amended to award her permanent custody of the child.

Both judgments are properly before this court on appeal and present for our review the issue of “permanent” custody of the child, that is, custody of the child following the divorce. We reverse and set aside the judgment on the custody rule and amend the divorce judgment to award custody of the child to the plaintiff -mother.

Plaintiff and defendant were married in Ouachita Parish in January 1976. Melissa was born in September. Defendant attended college and worked while the mother remained at home to care for Melissa. Trouble developed in their marriage and in January 1978 the couple physically separated, Melissa remaining with her mother. A judgment of separation was rendered on August 23,1978 in which custody of Melissa was awarded to the plaintiff. The defendant acquiesced in the custody award and only contested the amount of child support he would be required to pay.

Plaintiff sued for divorce in August 1979 on the grounds that one year had elapsed since the separation judgment was rendered and no reconciliation had occurred. She also sought permanent custody of Melissa and increased child support. Initially, defendant reconvened asking only that the court establish specific visitation rights. The demand was later amended to ask for custody of Melissa on the grounds that plaintiff had exposed the child to an unwholesome atmosphere caused by the continual presence of Danny Day in her home. A hearing was held on defendant’s rule for a change of custody. The custody hearing focused on the relationship existing between plaintiff and Day. Although the trial court found the evidence did not establish that she and Day were having an adulterous affair or that Day was living with plaintiff, the trial court nonetheless removed Melissa from the plaintiff’s care and awarded permanent custody to the father.

In giving oral reasons for its decision, the court mentioned the lack of evidence about the child’s activities or about any training or tutelage she receives; the complete absence of evidence as to the day-to-day life of the child; the lack of reference to any friends of the child; the mother’s failure to provide the child with formal religious guidance; plaintiff’s failure to mention any activities of the child that did not include Day; plaintiff’s lack of concern about the outward appearance of her relationship with Day or what other people might think; the lack of testimony about plaintiff’s approach to child rearing; and the overwhelming domination of the relationship between plaintiff and Day in the child’s life.

After the Manleys obtained a legal separation, the defendant, who had been working for State Farm in Monroe, was transferred to that company’s,El Dorado, Arkansas office. Plaintiff and Melissa remained in the Monroe area, where they live in a three-bedroom home owned by plaintiff.

■ Plaintiff works full-time for Rivers Ford in Monroe. While plaintiff works Melissa is cared for at a local nursery. Plaintiff spends most of her nonworking time with her daughter. Melissa spends alternate weekends with her father at his family's home in Monroe. Plaintiff generally limits time away from her daughter to those weekends.

The trial court found, and we agree, that insofar as physical arrangements or management of the child’s physical needs are concerned, no appreciable difference exists in what either parent can offer Melissa.

The majority of the testimony adduced at the custody hearing concerned plaintiff’s relationship with Danny Day. The two met in August 1978 and began dating in May 1979. Since August 1979 Day has been a regular visitor at the Manley home.

Plaintiff and Day both testified that Day is at plaintiff’s home at least four to five nights each week. Because Day did not have a car, his brother or a friend would drop him off at the Manley home around 6:00 p. m. to 6:30 p. m. Occasionally, the plaintiff would pick him up from his job on her way home from work. Mrs. Manley, Day, and Melissa would eat dinner together, then watch television or play games. Day would usually remain at the Manley home until 11:00 p. m. to 1:00 a. m. when his brother or a friend would pick him up. Occasionally, plaintiff would drive Danny the short distance to his home, with Melissa accompanying her.

Mrs. Anita Haile and her 11-year-old-daughter, Salinda, live next door to plaintiff and her daughter. Salinda testified that on several mornings while waiting for her school bus, she had seen the plaintiff, Melissa, and Day leave the Manley home in plaintiff’s car. Salinda also testified that, on those mornings, she never saw Day arrive at plaintiffs home. The implication of this testimony was countered by Day’s testimony to the effect that a friend of his who worked out of town would sometimes drop him off at plaintiff’s house before 7:00 a. m. Day would then eat breakfast with plaintiff and Melissa and then plaintiff would drive him to town on her way to work. The plaintiff testified that Day had never remained in her house overnight.

Hearsay testimony of defendant and his mother about several remarks made by the child concerning sleeping arrangements at Mrs. Manley’s house should not have been admitted over plaintiff’s timely objection and is of no probative value.

The evidence adduced at the hearing establishes that Danny Day is a very frequent visitor at the Manley home. However, the evidence does not establish that Day was living with the plaintiff; nor does it establish that the two were engaged in an adulterous relationship. The trial court so concluded and was correct in this factual conclusion. This is not a case like Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979) where the mother, while still married, neglected the needs of her young children in order to engage in a notorious affair with her lover, himself a married man. Nor is this a case where the mother lives with her boyfriend, thus exposing her child to an immoral lifestyle.

The evidence in the record does not establish that the relationship between Day and plaintiff is harmful to Melissa. Nonetheless, the trial court felt that the frequency of Day’s visits to the Manley home was improper and that Melissa must be confused by his continued presence. There is no evidence of any detrimental effect suffered by Melissa; there is no evidence that the child was confused or disoriented because of his presence. Rather, the evidence indicates that Melissa likes Day and is comfortable with him. Further, the evidence shows that Day spends time with Melissa playing games with her, reading to her, and the like. No evidence of ill effects, physical or moral, was presented.

The trial court emphasized the lack of affirmative evidence about the child’s day-to -day activities, guidance, and training. These matters were not directly placed at issue by the pleadings or in the trial, defendant’s evidence being devoted almost exclusively to whether Day was spending the night at plaintiff’s house. The evidence does affirmatively show, however, that plaintiff was with and attending to the child about as much as a working mother could be.

As was established in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and reiterated in the recent case of Cleeton v. Cleeton, 383 So.2d 1231 (La.1980), on review of child custody matters the decision of the trial judge is to be given great weight and such decision is not to be overturned in the absence of a clear showing of abuse of discretion. In the instant case we hold the trial court clearly abused its discretion in removing a small child from the custody and care of her mother, who has cared for her constantly since birth, when there was no proof that the mother was providing an unwholesome atmosphere for the child, no proof that the child was exposed to an immoral relationship, no proof of any detrimental effect on the child, and no proof of neglect of the child.

In Bankston v. Bankston, 355 So.2d 59 (La.App. 2d Cir. 1978), writ denied 357 So.2d 1153 (1978), this court held that once custody has been awarded to one parent who provides a reasonably stable and secure environment for the child, custody should not be changed unless there are good and substantial reasons to justify the change. See also Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977), writ denied 352 So.2d 236 (1977). The fact that the mother has a steady boyfriend who frequents her home is not sufficient reason to justify a change in custody in the absence of proof that the mother’s relationship with the boyfriend is having a detrimental effect on the child.

Plaintiff has been the sole custodian of Melissa since January 1978. There is no indication in the record that Melissa is anything other than a well-adjusted, well-cared for, and happy three and one-half year old. Because the evidence does not establish that the mother has engaged in any misconduct, or that any conduct on her part has had an adverse effect on the child, a change in custody is unwarranted. The best interest of the child, which is always the paramount consideration, LSA-C.C. Art. 157, is, in this case, best served by stability'of environment and by continuing custody with her mother, who has cared for her since birth.

In view of the trial court’s award of custody to the defendant, that court did not consider the matters of child support and visitation rights raised by the pleadings. We will remand the case for trial of those issues, but will order continuation of the support and visitation provisions contained in the separation judgment pending trial and determination of those issues.

The judgment of the district court on the custody rule is reversed and set aside and judgment is rendered in favor of plaintiff and against defendant rejecting defendant’s demand for a change in custody. The divorce judgment is modified to award permanent custody of Melissa Marie Manley to Kathy Newman Manley, the plaintiff. The case is remanded for trial and determination of the issues of child support and visitation rights. Pending such trial and determination, defendant shall have reasonable visitation privileges and shall pay to plaintiff $100 per month as child support, commencing with the effective date of this judgment. Costs of these proceedings, including the costs of appeal are assessed to the defendant-appellee.

Reversed, rendered, and remanded.