text:
    Donald E. BRADFORD v. Sylvia Anne Crowell BRADFORD.
    No. 13750.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    James D. Thomas, II, Baton Rouge, counsel for plaintiff-appellee Sylvia Anne Crow-ell Bradford.

      Alan S. Fishbein, Baton Rouge, counsel for defendant-appellant Donald E. Bradford.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment denying a motion for reduction of child support.

The issues are: the validity of a stipulation for child support; the obligation of parental support for children with a separate estate sufficient for their maintenance; and the necessity of alleging a change in circumstances as a prerequisite to a change in child support.

We affirm.

Plaintiff stipulated to the payment of child support following lengthy negotiations between his and defendant’s attorney both on the separation and the divorce. At the time, plaintiff’s four children were principal and income beneficiaries of a sizeable trust. Approximately four months after the latter judgment, plaintiff moved for a reduction in child support. The motion was denied.

A consent judgment of child support will be modified only after a showing of substantial change in circumstances of the parties. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir. 1976). Plaintiff has not shown such a change. The trial court was correct.

First of all, appellant asserts that appel-lee has stipulated that certain allegations of the rule to show cause were true, thereby making it unnecessary for changed circumstances to be proved. Appellee asserts that it was the intention to stipulate that appellant would testify to the truth of the allegations. The statement by the court as to the results of a conference in chambers is indeed ambiguous on this point. However, the judge was a participant in the conference and has given to the stipulation the effect urged by the appellee. We find no error.

Plaintiff claims the stipulation for child support should be nullified as being based upon an error of fact. He alleges he was unaware of the financial needs and resources of his children at the time of the stipulation. On the trial of the motion for reduction of child support, defendant’s counsel stipulated that plaintiff would testify he was unaware of the necessary expenses of child-rearing. However, the first mention of this figure came in plaintiff’s petition for a separation. Plaintiff has cited no cases, and we know of none, allowing a reduction under these circumstances. We are unimpressed, therefore, with plaintiff’s argument that this ignorance of the exact cost should vitiate a stipulation to provide them with support. The repeated error, if any, was inexcusable under the circumstances.

Plaintiff’s next complaint is that he was prevented from proving the actual expenses required to raise his children. Prior to trial, counsel stipulated as to what matters would be at issue. The question of the amount of the children’s expenses was not included in the stipulation. The trial court was correct in excluding such evidence as outside the stipulation. LSA-C.C.P. Art. 1154.

Plaintiff next claims he should be relieved of his natural obligation to support his children because they have income producing property sufficient for their own maintenance. There is jurisprudence to the effect that the natural obligation of the father ceases, after the dissolution of the marriage, if his children have property from which a sufficient income may be derived to provide for their subsistence and education. LSA-C.C. Arts. 227, 229-231; Succession of Fontano, 196 La. 775, 200 So. 142 (1941). We find the case inapplicable here. Regardless of plaintiff’s legal obligation at the time of his divorce, he judicially consented to support his children. At that time he knew of the trust funds. He has not proved any change of circumstances.

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

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Nicholas BROCATO and Linda K. Brocato v. Dr. Anthony B. LEGGIO et al.
    No. 13751.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.
    L. B. Ponder, Jr., Amite, for plaintiffs-appellants Nicholas Brocato and Linda K. Bro-cato.
    Frank W. Middleton, Jr., Baton Rouge, for defendant-appellee Dr. Anthony B. Leg-gio.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a medical malpractice suit. From a trial court judgment absolving the defendant doctor of liability, the plaintiff brings this appeal.

Mrs. Linda Brocato underwent a tubal ligation performed by the defendant, Dr. Anthony B. Leggio, on November 11, 1977. She discovered she was pregnant in June, 1978, and delivered a baby girl in Decem-bér. She filed this suit claiming that Dr. Leggio negligently performed the operation.

In appealing, appellant argues the trial judge erred in not finding negligence on the part of defendant, in not finding a breach of contract, and in not applying res ipsa loquitur.

NEGLIGENCE

The Pomeroy system of tubal ligation was used in the operation. Testimony at trial showed that this system is used almost exclusively in the Baton Rouge-New Orleans area and is used about 90 per cent of the time throughout the nation. Under the Pomeroy system a small segment of each fallopian tube is removed and the remaining ends are ligated. The incised segments are sent to a pathology lab where technicians can positively identify them as fallopian tube pieces. The identification confirms to the physician that the proper tubes have been cut. Such a positive identification was made in this case; and the pathologist testified that lumen or the tubal canal was present in the segments forwarded to the lab.

The testimony also indicated that there is a known failure rate in the Pomeroy method of tubal ligation. Failure occurs when the ligated ends of the fallopian tubes reca-nalize. In such a case pregnancy can occur.

The preponderance of the testimony shows that Dr. Leggio conducted the operation in accordance with the care and standards generally accepted and used by physicians of his specialty. La.R.S. 9:2794(A); Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978). There is no question that he cut the fallopian tubes. The pathologist report showed conclusively that both tubes had been severed. The fact that there is a known failure factor in this type of operation and the fact that there was no evidence to show any negligence on the part of Dr. Leggio convinces us that the trial court correctly decided this case.

BREACH OF CONTRACT

Mrs. Broeato also claims Dr. Leggio breached his contract to perform a successful tubal ligation, i. e., one which would result in permanent sterilization. In this connection she contends Dr. Leggio guaranteed success in the operation and in fact told her the operation had been successful.

Mrs. Broeato and her husband both signed a “consent to sterilization” statement prior to the operation which provided in part:

“It has been explained to me that this operation is intended to result in sterility although this result has not been guaranteed. I understand that a ‘sterile’ person is not capable of becoming a parent; i. e., that I may be unable to conceive or bear children. I voluntarily request the operation and understand that if it proves successful, the results may be permanent.”

Dr. Leggio testified that he never guaranteed that the operation would be 100 per cent successful in the sense that there would be no chance in the future for Mrs. Broeato to become pregnant. The operation was successful, he said, in the sense that Mrs. Brocato’s fallopian tubes were cut and properly ligated. The trial judge believed the doctor’s testimony that he had never guaranteed that Mrs. Broeato would not become pregnant again.

The contract between these parties called for the performance of a tubal ligation. This was in fact done. Mrs. Brocato’s unfortunate pregnancy was caused by nature and not Dr. Leggio’s failure to perform his contract.

RES IPSA LOQUITUR

The plaintiff also argues that the evidentiary rule of res ipsa loquitur should apply to this case, raising a presumption of negligence on the part of the defendant. This argument is untenable. The plaintiff has not shown “evidence from which reasonable men can say that on the whole it is likely that there was negligence associated with the cause of the event than that there was not.” Prosser, Torts, Section 39, page 218 (4th Edition). The evidence shows that causes other than negligence could have been responsible for Mrs. Brocato’s pregnancy. The plaintiff cannot get the benefit of the presumption in this case, and she must therefore prove negligence on the part of Dr. Leggio. As we found earlier, she has not done this.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The plaintiff will bear the costs of this appeal.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Janie Webb DUTHU v. ALLEMENTS’ ROBERSON MACHINE WORKS, INC.
    No. 13752.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Bingham M. Stewart, Baton Rouge, for appellant (plaintiff).
    Macallynn J. Achee, Baton Rouge, for appellee (defendant).
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Janie Webb Duthu brought suit against Allements’ Roberson Machine Works, Inc., seeking to recover $280.72 in funds paid on a debt she did not owe. The trial court, in oral reasons for judgment, rejected plaintiff’s claim on the basis of estoppel in pais. Plaintiff appeals. We reverse.

On September 20,1976, while Janie Webb Duthu and Willie Duthu were still married, Allements’ Roberson Machine Works, Inc., hereinafter Allements’, won a judgment against Willie Duthu for $397.50, legal interest and costs. Plaintiff admits this obligation to have been a community debt.

Plaintiff and Willie Duthu separated on March 12,1977. Suit was filed on March 30 and a judgment of divorce followed on April 29, 1977. The judgment of divorce had the effect of dissolving the community of acquets and gains retroactively to March 30. LSA-C.C. Arts. 155 and 159.

In conjunction with the divorce, plaintiff accepted her share of the community and became responsible for half the community debts.

At the time of the divorce, the community obligation to Allements’ had not been paid. Pursuant to the judgment in its favor, Allements’, commencing April 19,1977, proceeded to garnish plaintiff’s wages for the full amount of the judgment, which, including interest and costs, had risen of $561.44. Plaintiff, then believing that she was responsible for the entire debt since it had been a community obligation, did not object when her earnings, which in reality were her separate property and only subject to seizure to the extent of half the judgment, were garnished. Eventually the entire debt was satisfied from plaintiff’s wages.

Plaintiff finally learned of her rights and instituted this lawsuit to recover that half of the judgment which she was not obliged to pay.

The trial court ruled that plaintiff’s inaction from July of 1977, when the garnishment was completed, until November 7, 1979, when the instant suit was filed, caused estoppel to lie and held that plaintiff was precluded from exercising the normal right of recovery she should otherwise enjoy.

Equitable estoppel or “estoppel in pais” is the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party who has justifiably relied on such conduct and who has changed his position to his detriment as a result of such reliance. Department of Culture, Recreation & Tourism v. Fort Macomb Development Corporation, 385 So.2d 1233 (La.App. 4th Cir. 1980); Wilkinson v. Wilkinson, 323 So.2d 120 (La. 1975). Estoppel, because it bars the normal assertion of rights, is not favored in our law and is used sparingly. Twillie v. H. B. Zachry Company, 380 So.2d 747 (La.App. 4th Cir. 1980); Westenberger v. State Through Department of Education, 333 So.2d 264 (La.App. 1st Cir. 1976).

A party invoking the doctrine of estoppel must prove the facts upon which the estoppel is based and must establish all three elements of estoppel: 1) a representation by action or word; 2) justifiable reliance on the representation; 3) a detrimental change in one’s position because of the reliance. Estoppel will not lie if any element remains unproven. Westenberger v. State and Wilkinson v. Wilkinson, supra.

Critical to the present case is the rule that silence as a representation is not a basis for estoppel unless a duty to speak exists. For such a duty to exist, the following conditions must be met: 1) the party estopped must be shown to have had opportunity to speak or act; 2) the party es-topped must have had full knowledge of the facts and of his rights; 3) the party es-topped must have intended to mislead or at least have had a willingness that others should be deceived; 4) the pleader of estop-pel must be shown to have been ignorant of the truth and without convenient or ready means of learning the truth; and 5) the pleader of estoppel must have been misled into doing what he would not have done but for the silence of the party estopped. Westenberger, supra; Harvey v. Richard, 200 La. 97, 7 So.2d 674 (1942); Parker v. Ohio Oil Co., 191 La. 896, 186 So. 604 (1939).

From a close examination of the record, it is certain that at least three of the above conditions have not been met, and that Mrs. Duthu had no duty to speak. Accordingly, she has made no representation and estoppel cannot lie against her.

At the time her wages were being garnished, plaintiff was not aware of her legal rights, i. e., the limits of her personal obligation on behalf of the former community. That ignorance of one’s rights precludes the use of silence as a basis for estoppel was made clear in Parker v. Ohio Oil Co., supra:

“Those who are ignorant of their legal rights, even if they know the facts, are not estopped by silence, by ‘standing by’. A man is under no duty to speak when he does not know that his silence may so mislead another man as to inflict injury upon him.” 186 So. at 609.

Nothing in the record even begins to show that plaintiff intended to mislead Allements’ or that she was willing for Alle-ments’ to be deceived.

Finally, while Allements’ may have been ignorant of the fact of plaintiff’s divorce, there were available convenient and ready means of learning the truth. Prior to garnishing plaintiff’s wages, Allements’ conducted a judgment debtor examination of Willie Duthu. On trial of this issue, however, counsel for defendant was unable to produce any record of that hearing and was unable to recall what property, if any, of Mr. Duthu’s might have been available for seizure. Counsel stated, “I can only assume that there was no other property to seize or to go against.”

This statement was flatly contradicted by plaintiff who testified that as part of their property settlement she deeded their house to Mr. Duthu. Allements’ could easily have checked the property records but chose not to.

Furthermore, divorces are public record. All Allements’ need have done prior to the garnishment was to make a trip to the courthouse. Again, defendant chose not to.

Allements’ failures to reasonably question Mr. Duthu or to check diligently the public records preclude estoppel. Muhleisen v. Allstate Insurance Company, 203 So.2d 847 (La.App. 4th Cir. 1967).

“A public record is an available means of information as to questions of title, and one who does not take advantage of it cannot claim an estoppel against one who merely fails to furnish such information.” Parker v. Ohio Oil Co., supra 186 So. at 609.

There is no doubt that plaintiff paid defendant twice what she was legally bound to pay. There is likewise no question that she has a right to recover same and is not estopped from doing so.

For the foregoing reasons, the judgment appealed from is annulled and reversed. Judgment is rendered in favor of Janie Webb Duthu and against Allements’ Roberson Machine Works, Inc., for $280.72. All costs, both trial and appellate, are to be paid by Allements’ Roberson Machine Works, Inc.

REVERSED AND RENDERED.

      . LSA-C.C. Art. 2409 then provided:
      “It is understood that in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution.”

      . LSA-C.C. Art. 2334 then provided in part: “The earnings of the wife when living separate and apart from her husband although not separated by judgment of court.are her separate property.”


text:
    Thomas G. HOOVER v. STATE of Louisiana, City of Slidell, Chief of Police of Slidell, Louis Jacques, and ABC Insurance Co.
    No. 13755.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Stephen F. Babin, New Orleans, John N. Gallaspy, Bogalusa, for plaintiff-appellant.
    Elaine W. Guillot, Max Mercer, Slidell, for defendants-appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Thomas G. Hoover brought suit against the State of Louisiana, the City of Slidell, the Chief of Police of Slidell, Louis Jacques and the ABC Insurance Co. Plaintiff sought $12,000 in damages for the loss of use of and tortious conversion of his 1957 Chevrolet pickup truck. The City of Slidell, the Chief of Police and Jacques answered and named Edwin S. Holdsworth as a third party defendant. Subsequently, on motion of Hoover, all defendants except Jacques were dismissed with prejudice. The third party demand was separated for trial at a later date.

Testimony elicited at trial established that on September 3, 1972, while plaintiff was a member of the United States Navy, his 1957 Chevrolet pickup truck was stolen from Gulfport, Mississippi. The theft was reported immediately to the Gulfport Police Department. On that same afternoon, the truck was recovered in Slidell, but when the investigating officer checked the truck’s registration on national computer records to see if it was listed as stolen, it had not yet been listed and, consequently, did not appear stolen. Since the vehicle bore a Kansas license plate, one attempt, unsuccessful, was made to locate the plaintiff in Kansas. No further attempts to locate plaintiff were made and the national computer records were never consulted again, despite the fact that stolen cars often remain unlisted for some period of time before their stolen status is reflected by the computer.

The recovered truck was towed to the premises of Edwin S. Holdsworth, who stored vehicles for the Slidell Police Department. After three months, Louis Jacques, then second in command on the Slidell Police force, purchased the truck from Holds-worth for $91.00. Jacques knew Holds-worth did not own the truck and could not deliver title, but nevertheless kept the vehicle as his own without ever having title transferred to him or obtaining a Louisiana license plate. Jacques retained the vehicle for eight months until it was wrecked by his son, whereupon he used the wreck for parts. Jacques made no attempt to locate Hoover, the pickup’s true owner.

The district court, in written reasons for judgment, found that Louis Jacques was liable for the wrongful conversion of Hoover’s truck. Regarding damages, the trial judge held that:

“the only evidence presented as to the value of the truck at the time of conversion was Plaintiff’s self-serving testimony as to what funds he had expended on the truck prior to theft and on the condition of the truck on the day of the theft. The Plaintiff’s own estimate of approximate losses, unsubstantiated by detailed and corroborative evidence, which should have been produced at trial, does not meet the requisite burden of proof.
Accordingly, the court finds that Plaintiff has failed to prove by competent evidence, any damages as a result of the wrongful conversion of the 1957 pick-up truck.”

Judgment in favor of Jacques and dismissing plaintiff’s demands at his costs followed. Plaintiff appeals specifying that the trial court erred in concluding that no damages were proved.

A plaintiff must prove damages by a preponderance of the evidence, whether direct or circumstantial. However, damages need not be proved with mathematical certainty, but only by such proof as reasonably establishes the claim. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

At trial, Hoover testified that he paid $500 for the truck and that he subsequently did much work on it. He reported $50 in brake repairs, $344 for chrome reverse wheels, four new tires and an $800 paint job. In making out the original theft report, however, Hoover only listed the truck’s value at $500.

Charles Edwards, a Slidell detective, corroborated Hoover to the extent of testifying that:

“it was a very clean truck. It appeared to be well taken care of, appeared to be recently worked on and so forth.”

Jacques, the defendant, evidently found the truck nice enough for his liking since, despite knowing he had no legal title to the vehicle, he kept it for eight months and then cannibalized it for parts.

Uncontradicted testimony should generally be accepted as true. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Coleman v. Manufacturers Casualty Insurance Company, 229 La. 105, 85 So.2d 47 (1956). Where the uncontroverted testimony is improbable, and that improbability must be apparent, the testimony need not be accepted. Fourcade v, Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960). Courts will not impute perjury to apparently credible witnesses, particularly in the absence of any evidence in the record that such testimony was false or unreliable. Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429 (1949); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937); Miller v. Hartford Live Stock Ins. Co., 165 La. 777, 116 So. 182 (1928). See also 32A C.J.S. Evidence 1038.

The truck’s value and the value of improvements to it were testified to by Hoover alone. While corroboration is certainly the better practice, testimony by a plaintiff alone may establish damages. Jordan v. Travelers Insurance Company, supra. Nothing in the record indicates that Hoover’s testimony, at least as to the truck's purchase price, is improbable or unreliable. In fact, the original theft report and testimony by Charles Edwards tend to corroborate the value of $500. In contrast, however, plaintiff’s estimates of improvements are uncorroborated, undocumented and appear highly self-serving. Clearly, plaintiff’s truck was worth at least $500.

The owner of a vehicle wrongfully converted and subsequently destroyed has the right to recover for the vehicle’s value. In addition, he may recover for inconvenience and mental anguish due to loss of use of the vehicle prior to its destruction. Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (1977). This holding is in line with the rule that allows awards for mental anguish and embarrassment when there is an intentional violation of property rights. Fassitt v. United T.V. Rental, Inc., 297 So.2d 283 (La.App. 4th Cir. 1974); Grandeson v. International Harvester Credit Corp., 223 La. 504, 66 So.2d 317 (1953). Since Jacques tortiously converted Hoover’s truck to his own personal use for eight months prior to its destruction, plaintiff may recover damages for that period.

In Alexander, the plaintiff was allowed $1,000 for loss of his vehicle for one year. Considering the passage of three years, raging inflation, plaintiff’s obvious attachment for his truck, and the fact that plaintiff was without same for eight months, an award of $800 is appropriate.

For the foregoing reasons, the trial court judgment is affirmed insofar as Louis Jacques was found liable for the conversion of plaintiff’s truck. The judgment is reversed insofar as plaintiff’s damage claims were rejected. There is judgment in favor of Thomas G. Hoover and against Louis Jacques for $500 for conversion and for $800 for loss of use of the truck for a total of $1,300. All costs, both trial and appellate, are to be paid by Louis Jacques.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: PONDER, Judge.

text:
    Rosha M. HALL et ux v. RAD DISTRIBUTORS, INC. et al.
    No. 13757.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Maurice D. Robinson, Jr., Hammond, for plaintiffs.
    Allen B. Pierson, Jr., Ponchatoula, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit in contract. The trial court rescinded plaintiff’s purchase of a lot from defendant and returned the purchase price plus interest. Both parties appealed.

The issues are: the failure of the court to grant plaintiff a right of passage rather than rescind the sale, the necessity for joining a third-party defendant, defendant’s warranty of sale, the court’s alleged reliance on a plat filed with plaintiff’s deed, damages and attorney’s fees.

We amend and affirm.

Plaintiff purchased from defendant a lot on which he intended to build a home. Defendant represented orally and on a recorded plat that the lot was accessible by a fifty-foot road. In fact, defendant had previously sold a portion of the access road to one who refused to grant a gratuitous servitude. Plaintiff was unable to obtain construction financing because of the lack of legal access. He sued to rescind the contract. Defendant sought to have the owner of the disputed strip of access road joined as a necessary party. The court overruled the exception, rescinded the sale and returned the purchase price plus the interest paid by the purchaser.

Defendant claims plaintiff’s proper remedy is to demand a right of passage across the property of his neighbor. LSA-C.C. Art. 689. He therefore contends the court erred in not joining the neighbor as a third-party defendant. While the law does provide plaintiff this remedy, we know of no requirement that plaintiff be relegated to that remedy rather than the one he elected to seek. The trial judge did not err.

Defendant alleges he did not warrant access to the lot. We find that plaintiff informed defendant of his intention to use the lot for a residence and that defendant assured plaintiff the lot was accessible by the fifty-foot road that fronted it.

Defendant’s declaration as to the accessibility of the lot was a knowing misrepresentation as to a principal quality of the thing sufficient to allow rescission of the contract per LSA-C.C. Arts. 1823, 2547. Musser v. Copping, 325 So.2d 681 (La.App. 4th Cir. 1975).

Defendant claims the court erred in relying on the plat filed with plaintiff’s deed to prove plaintiff was justified in his belief he had access, while refusing to refer to the neighbor’s plat to show that the neighbor should have known and admitted his property was subject to a right of way. Defendant’s objection is misdirected. Because the neighbor was not a party to the suit, the court was without power to grant the desired relief against him.

Defendant complains that the court erred in awarding interest at 12% per annum. Plaintiff demands increased damages and attorney fees.

LSA-C.C. Art. 2547 allows an award of damages plus attorney fees to a person aggrieved by the misrepresentations of the seller. The award of 12% interest on the purchase price of the lot represents interest actually paid by plaintiff, an expense to him. We find no error in this award. Because we find plaintiff’s allegations of defendant’s knowing misrepresentations as to a principal quality of the lot satisfy the requirements of LSA-C.C. Art. 2547, we find plaintiff entitled to an award for attorney fees. We find the amount of $1,200.00 to be reasonable.

For the above reasons, it is hereby ordered that the judgment in favor of the plaintiffs, Rosha Maurice Hall and Cathy Felder Hall and against defendant, RAD Distributors, Inc., be amended to include the sum of One thousand, two hundred dollars ($1,200.00) for attorney fees. The judgment of the trial court is affirmed as amended. Costs are to be cast on the appel-lee.

AMENDED AND AFFIRMED.

      . LSA-C.C. Art. 689:
      “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.”

      . LSA-C.C. Arts. 1823 and 2547:
      “Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”
      “Art. 2547. A declaration made by the seller, that the thing sold possess some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
      “It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.”


text:
    William D. OLIVER, Sr. v. Meridel Vincent OLIVER.
    No. 13763.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      Sam J. D’Amico, Baton Rouge, for plaintiff-appellee William D. Oliver, Sr.
    Patsy Jo McDowell, Baton Rouge, for defendant-appellant Meridel Vincent Oliver.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

William D. Oliver, Sr., brought suit against his wife, Meridel Vincent Oliver, seeking a divorce on the ground of living separate and apart for two years. Mrs. Oliver reconvened on the basis of abandonment and sought $1,500 per month in permanent alimony.

Following trial, a divorce was awarded to Mr. Oliver. Mrs. Oliver’s reconventional demand was dismissed and her prayer for alimony was rejected. In written reasons for judgment, the trial court specifically found that Mrs. Oliver had constructively abandoned her husband and that her fault ■ had caused the separation.

Mrs. Oliver appeals only that part of the judgment finding her at fault and denying her claim for alimony. We reverse.

The record indicates that Mr. Oliver often drank too much; that he failed to come home at reasonable hours and sometimes remained out overnight; that he moved out of the family domicile several times, only to return later; that he refused to discuss the disruptions caused by his lifestyle; that he had a series of relationships with women other than his wife; that he “would just get furious and most of the time leave” when his daughters “didn’t act a certain way to him”; that he would request particular foods for dinner but would fail to return to eat them or would return drunk; that his temper was such that on one occasion he fought with a daughter merely because she fed her cat a bowl of milk; that he refused to come home, even when requested by his daughter; that his wife often found makeup and perfume on his clothes, and sometimes semen in his underwear.

While testifying, Mr. Oliver clearly admitted to more than one adulterous relationship.

The trial court found Mrs. Oliver at fault based on one incident which occurred April 13, 1977. Mrs. Oliver told her husband that the circumstances of their life together were unbearable and that one of them would have to leave. Mr. Oliver left. His leaving initiated the Olivers’ final separation.

LSA-C.C. Art. 160 controls when a spouse is eligible to collect permanent alimony. A spouse is not deprived of alimony after divorce simply because that spouse was not totally blameless in the marital discord. To constitute fault within the meaning of Article 160, the spouse’s misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation rather than a justifiable or natural response to initial fault on the part of the other spouse. Bruner v. Bruner, 364 So.2d 1015 (1978); Adler v. Adler, 239 So.2d 494 (La. App. 4th Cir. 1970), writ refused 257 La. 168, 241 So.2d 530 (1970). Fault sufficient to deprive a spouse of alimony is fault which, under LSA-C.C. Art. 138(l)-(8) or Art. 139, would be grounds for a separation from bed and board or a divorce, respectively. Adams v. Adams, 389 So.2d 381 (1980); Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir. 1979).

Mrs. Oliver’s actions on the night of April 13, 1977, do not constitute Art. 160 fault. She was merely expressing her utter frustration with Mr. Oliver’s lifestyle and the destructive effect it had on their marriage. Her words no more constitute constructive abandonment than did those of Mrs. Guin in Guin v. Guin, 378 So.2d 1022 (La.App. 2nd Cir. 1979), where the court construed a wife’s similar warning to her husband not to return if he left as merely being a plea for the husband to spend more time at home. Mrs. Oliver’s words were an entirely justifiable response to her husband’s unceasing and maritally destructive lifestyle.

The trial court found that Mrs. Oliver began unprovoked arguments with her husband on a weekly basis. This finding is not supported by the record. Her questions and “arguments” were attempts to find out what her husband was doing and to persuade him to keep a normal homelife. Such questioning, in the face of Mr. Oliver’s drinking and series of relationships with other women, is not “fault” on appellant’s part. Knight v. Knight, 331 So.2d 102 (La. App. 1st Cir. 1976).

Mrs. Oliver’s concern for her marriage was manifestly demonstrated when she explained why she forgave a 1973 dalliance of her husband;

“I don’t take marriage lightly. I kept thinking that maybe it was just a mid-life crisis or something. Maybe it would pass.”

The record, taken as a whole, shows that Mrs. Oliver kept a reasonably neat home in which her daughters felt comfortable entertaining; that Mr. Oliver left because he refused to change his lifestyle which was destructive of their marriage; that Mrs. Oliver is a woman of forty-nine who has few work-skills since she spent her working years raising a family; that Mrs. Oliver has headaches, eye trouble, high blood pressure and arthritis; that Mrs. Oliver’s monthly expenses are $1,550; and that Mr. Oliver’s net income is at least $30,000 per year.

For the foregoing reasons, that part of the trial court judgment which found Mrs. Oliver at fault is reversed. Permanent alimony is fixed at $867 per month. All costs of this appeal are to be paid by William D. Oliver, Sr. All other costs are assessed half to each party.

REVERSED AND RENDERED.

      . LSA-C.C. Art. 160 provides:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”


text:
    Herman WILKERSON, Appearing Individually and in his Capacity as a Duly Elected Member and President of the Board of Directors of the St. Peter’s Baptist Church of Iberville, v. Arthur BATTISTE, Sr. et al.
    No. 13764.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Milton Osborne of Osborne & Richard, Plaquemine, for plaintiff-appellant Herman Wilkerson.
    Arthur Neal Begwell, White Castle, for defendants-appellees Arthur Battiste, Sr., Walter Ben, Sr., Horace James, Oscar Mo-ton, John A. Smith, Henry Sterling, Leonard Phillip, and Reverend Theodore Scott.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This suit for a writ of quo warranto is before us on the narrow question of whether the civil courts of this state have subject matter jurisdiction over the election of board members and the appointment of a minister of a nonprofit religious corporation. The trial court dismissed the suit by sustaining exceptions of lack of subject matter jurisdiction and no right of action. The plaintiff brings this appeal.

The plaintiff, Herman Wilkerson, appearing individually and in his capacity as a duly elected member and alleged president of the board of directors of the St. Peter’s Baptist Church of Iberville, alleges that he and six other church members were elected to the board of directors of the St. Peter’s Church on January 14, 1980, the date set by the articles of incorporation for election of board members. The plaintiff further claims that a second, illegal election was held on February 27, 1980, at which time the other six board members and a seventh person — all of whom are named defendants — were elected to the board of directors. The seven board member-defendants who allegedly hold their seats by virtue of an illegal election are Arthur Bat-tiste, Sr., Walter Ben, Sr., Horace James, Oscar Moton, John A. Smith, Henry Sterling and Leonard Phillip.

The plaintiff also filed suit against the Rev. Theodore Scott, who he claims was illegally appointed to the position of interim or assistant pastor by the board of directors which was illegally elected on February 27, 1980. The plaintiff seeks a writ of quo warranto directing the defendant board members to show cause by what authority they claim to be members of the board, as well as a writ of quo warranto directed to the Rev. Scott to show cause by what authority he claims to be the interim pastor. La.C.C.P. art. 3901.

All defendants including Rev. Scott filed an exception of lack of jurisdiction over the subject matter (La.C.C.P. art. 925), contending that the matters raised in the plaintiff’s petition were purely ecclesiastical and therefore not subject to the jurisdiction of the civil or secular courts. The First and Fourteenth Amendments of the United States Constitution and Article 1, Section 8 of the Louisiana Constitution of 1974 are cited as authority. Additionally, defendant Scott filed an exception of no right of action (La.C.C.P. art. 927) contending that the plaintiff was not personally claiming the office of interim pastor and therefore had no right of action for a writ of quo warran-to. The trial judge sustained both exceptions but limited the exception of lack of subject matter jurisdiction to the Rev. Scott and five of the board members who were represented by an attorney at the hearing. The status of the other two board members in regard to this exception is not before us on appeal, and this opinion will be limited to the defendants Arthur Battiste, Sr., Walter Ben, Sr., Horace James, Oscar Moton, Leonard Phillip and the Rev. Scott.

The St. Peter’s Baptist Church of Iber-ville was organized in 1898 under a charter filed in the public records of Iberville Parish. The charter calls for the affairs of the corporation to be controlled by a board of seven directors to be elected on the second Monday night in January of each year. A copy of the church’s charter was filed in the record.

The trial court’s finding that the election of members to a board of directors of a nonprofit religious corporation is an ecclesiastical matter not subject to the jurisdiction of the civil courts of this state must be reversed. It is true that the United States Constitution and the Louisiana Constitution, as interpreted by our courts, prohibit civil courts from interfering in the ecclesiastical matters of a religious group. These are matters concerning religious discipline, faith, rule, custom or law which have constitutionally been left for the religious bodies themselves to decide. The Serbian Eastern Orthodox Diocese for the United States of America and Canada, et al. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Katz v. Singerman, 241 La. 103, 127 So.2d 515 (1961); Macedonia Baptist Foundation v. Singleton, 379 So.2d 269 (La.App. 1st Cir. 1979); and Henry v. Newman, 351 So.2d 1277 (La.App. 1st Cir. 1977). However, when a nonprofit religious corporation has established itself by a charter and has provided in the charter the time and method of electing its board of directors, the issue as to whether or not the board of directors has been validly elected according to the charter is a question cognizable by the civil courts of this state. Nelson v. Ellis, 140 So.2d 194 (La.App. 4th Cir. 1962); Nelson v. Ellis, 151 So.2d 544 (La. App. 4th Cir. 1963); see also Rock Zion Baptist Church v. Johnson, 47 So.2d 397 (La.App. 1st Cir. 1950). The procedural niceties attending the election of a board of directors for a nonprofit religious corporation have nothing to do with religious law, custom or policy and are not ecclesiastical matters within the exclusive domain of a particular religious group. A church member who claims that the board of directors was not elected according to the procedure set forth in the charter has a right to have his claim heard by a civil court in this state.

Appellees also contend that the St. Peter’s Baptist Church has a method of deciding differences among its members rather than using the civil courts. Specific reference is made to the New Directory for Baptist Churches, by E. T. Hiscox, an ecclesiastical manual for use by Baptist churches which provides a procedure for settling differences. There is no evidence in the record that St. Peter’s subscribes to this manual, nor that this manual covers the issue involved in this case. The only time the Hiscox manual is mentioned in the trial court is in appellee’s argument. The oral argument of counsel is not evidence.

We must hold, however, that the trial court correctly sustained the exception of lack of subject matter jurisdiction as it related to the appointment of the Rev. Scott. The appointment of a minister is a purely ecclesiastical matter which should not be subject to review, by a civil or secular court. Whether the board which appointed the Rev. Scott was legally constituted is not being decided in this opinion and is not relevant to our determination that the appointment of a minister is an ecclesiastical matter beyond our purview. The question of who should hold the position of interim pastor of a church is properly left to the members and governing body of the church. If the governing body is not legally constituted, the remedy of those who would have the pastor removed is a suit to have the board elected as provided by the charter.

Having decided that the exception of lack of subject matter jurisdiction is valid as to the Rev. Scott, we need not decide whether the trial court correctly upheld the exception of no right of action as to him.

Therefore, for the above and foregoing reasons, the decision of the trial court sustaining the exception of lack of subject matter jurisdiction as it relates to the defendant board members is reversed. The decision sustaining the exception of lack of subject matter jurisdiction as it pertains to Rev. Scott is affirmed. This case is remanded for proceedings consistent with the views expressed hereinabove, with costs to be assessed at the outcome of this proceeding.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    Clara WILLIAMS, in her Capacity as Testamentary Executrix of the Succession of Floyd A. Williams, Jr. v. Edwin A. COURTNEY.
    No. 13970.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Robert E. Palmer, Ponchatoula, for plaintiff.
    Tom Matheny, Hammond, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Defendant-appellee, Edwin A. Courtney, seeks to dismiss the appeal of plaintiff, Clara Williams, from a summary judgment signed December 5, 1978.

This matter was previously before us on writs in Docket No. 13,551 (May 15, 1980). At that time we stated:

“Writs granted. The judgment on the motion for summary judgment in favor of the defendant and dismissing plaintiff’s suit was granted on December 1, 1978, (minute entry) and the judgment was signed by the trial court on December 5, 1978.
No request for notice of judgment was made by the plaintiff as per C.C.P. 1913, and no notice was required. The writ application before us clearly shows that counsel for plaintiff knew of the granting of the summary judgment on December 1, 1978.
No timely application for new trial or appeal was taken by the plaintiff. His application for a new trial filed in September of 1979 (over ten months after judgment) is clearly late. No new trial should have been granted.
This writ is made peremptory and the trial judge is ordered to rescind the new trial granted herein and further to reinstate the judgment granting the defendant’s summary judgment.”

Counsel for appellant urges that the summary judgment signed December 5, 1978, was a default judgment requiring notice of judgment. Such is not the case. Summary judgment was moved for by defendant and was fixed for trial. Counsel for appellant was simply not present when the case was called. Summary judgment was, therefore, granted out of the presence of both plaintiff and plaintiff’s counsel. Nonrepresentation of a party due to that party’s own culpability cannot transform a summary judgment into a judgment by default.

The appeal filed ten months after judgment was clearly late.

The present appeal, taken from the summary judgment reinstated by order of this court, is not timely because that judgment was final on December 5, 1978, and not on June 20, 1980, when the original judgment was merely reinstated.

APPEAL DISMISSED.


author: COVINGTON, Judge.

text:
    RAMSEY CONSTRUCTION COMPANY, INC. v. Wayne P. BUNCH et al.
    No. 13597.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.
    Larry S. Bankston, Baton Rouge, for plaintiff-appellant Ramsey Const. Co., Inc.
    Ryland Percy, III, Gonzales, for defendant-appellee Wayne P. Bunch.
    Roger Fritchie, Baton Rouge, for defendant-appellee Quinn-L Baton Rouge Partnership.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by plaintiff, Ramsey Construction Company, Inc., from a judgment awarding it the sum of $5,690.00 against defendant, Wayne P. Bunch, for site clearing work, and recognizing plaintiff’s lien on certain described property in East Baton Rouge Parish, Louisiana. The judgment denied plaintiff’s other claims in contract and quantum meruit. No judgment was granted against the other defendant, Quinn-L Baton Rouge Partnership. The appeal is limited to the question of whether the trial court properly held that plaintiff could not recover under the doctrine of “unjust enrichment,” the civil law action de in rem verso.

The landmark case of Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967), established five prerequisites to “unjust enrichment” recovery: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) the action will only be allowed when there is no other remedy at law, i. e., the action is subsidiary or corrective in nature.

As the trial court noted in rejecting “unjust enrichment” in the instant case:

“Arguably, Bunch was ‘enriched’ and plaintiff was ‘impoverished’ by their business dealings. Assuming, arguendo, that they were, the claim for unjust enrichment must fall, because there is a justification for the impoverishment — plaintiff stood to make a staggering sum as general contractor if Bunch could ‘swing the deal.’ The efforts which plaintiff expended, if they constituted an ‘enrichment’ to Bunch, did not result in a corresponding ‘impoverishment’ to plaintiff, no more than one could consider business advertising or unsuccessful bidding an ‘impoverishment’ of the advertiser or bidder. Plaintiff simply was incurring a cost of doing business, in hope of making a lot of money if the transaction came to fruition.”

We find no error in this conclusion. The trial court found “cause” or “justification,” thus the enrichment was not unjustified and the attempt to invoke the action de in rem verso must fail, because it is only the enrichment for which there is no justification in law or contract which allows equity a role in the adjudication. See Abbeville Lumber Company v. Richard, 350 So.2d 1292 (La.App. 3 Cir. 1977); Tate, the Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 883 (1976).

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

AFFIRMED.


text:
    Lydia RICHARDSON v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    No. 13702.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.

      Guy Holdridge, Gonzales, for plaintiff and appellee.
    Robert J. Vandaworker, Baton Rouge, for defendant and appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by defendants, Louisiana Farm Bureau Mutual Insurance Company and Harold Marchand, from a judgment of the Parish Court, Parish of Ascension, State of Louisiana, in favor of the plaintiff, Lydia Richardson, the insured, in the sum of $500, interest and costs. We affirm in part and reverse in part.

The suit arose out of an alleged insurance contract and compromise agreement between the insurer and the insured. On May 17, 1979, the insured, Lydia Richardson, filed this petition for breach of contract against the insurer and Harold Marchand, the insurance agent. The suit alleged that the insurer had insured the plaintiff’s mobile home against damage caused by fire, that a fire loss occurred on February 13, 1978 (more than one year prior to the institution of the suit), that prior to February 13, 1979, she received from the insurer an offer to settle her claim for the fire loss for $500. She further asserts that Ray Robbins, acting as her agent, accepted the offer and notified the defendants of her acceptance before February 13, 1979, and before the withdrawal of the offer by the defendants.

To the petition, the defendants filed an answer denying any indebtedness to Mrs. Richardson. The defendants contend that the insurer has paid the loss in full, that plaintiff’s action has prescribed, that there never was a compromise settlement in writing as required by law. The plaintiff admitted in interrogatories that there was no written compromise settlement agreement between her and the defendants. Thereupon, the defendants moved for a summary judgment, which was denied.

Thereafter, the suit was tried on the merits. At the conclusion of the plaintiff’s evidence, the defendant Marchand moved for a directed verdict, which was granted. The case, after the trial, was taken under advisement, with judgment later rendered in favor of the plaintiff against both defendants. In his reasons for judgment, the trial judge stated:

“The Court finds that an oral compromise agreement was entered into between plaintiff and defendant to settle plaintiff’s claim for the sum of Five Hundred and No/100 Dollars ($500.00). Roy Robbins, who testified on plaintiff’s behalf, stated that he acted as Mrs. Richardson’s agent in this matter, and that he advised Mr. Harold Marchand, agent for Louisiana Farm Bureau Mutual Insurance Company, that Mrs. Richardson would accept the Five Hundred and No/100 Dollars ($500.00) offered by the company.
“Finding that an oral compromise was reached between those parties, the question is whether or not such a compromise agreement is enforceable in view of Article 3071, which apparently imposes the requirement that said agreement be reduced to writing.
“The Court feels that this codal article does not invalidate an otherwise valid agreement, and has, as its objective, evi-dentiary purposes. Obviously, a written agreement of compromise is more susceptible of proof than one which has not been reduced to writing. The Court feels that Article 3071 was never intended to invalidate an otherwise valid compromise agreement, simply because it has not been reduced to writing. To so hold, would, in the Court’s view allow persons to escape otherwise valid agreements by contending that such agreements were not in writing.”

There was, of course, no basis for judgment against Harold Marchand. The trial judge had granted a directed verdict in Marchand’s favor, because there was no evidence to show any personal liability on his part. LSA-C.C.P. art. 1810. The record reflects that Mr. Marchand was the insurance agent who sold the policy to Mrs. Richardson; he was not the adjuster involved in the negotiations for payment of the fire loss under the policy. Mrs. Richardson admitted that Mr. Marchand never made any offers to her relative to her claim, and none of the witnesses testified to any personal liability on Marchand’s part. The trial court erred in rendering judgment against him.

Turning now to the question of whether there was an enforceable compromise settlement between the insurer and the plaintiff, we hold that the trial court erred in finding that there was an enforceable compromise despite the fact that there was no written agreement between the parties. LSA-C.C. art. 3071 specifically insists that an agreement of compromise “must be reduced into writing.” The jurisprudence is to the effect that an oral compromise agreement is unenforceable; in order to be effective, a compromise agreement must be in writing. Carter v. Mule, 346 So.2d 882 (La.App. 4 Cir. 1977), writ denied, 349 So.2d 870 (La.1977); Senegal v. Delahoussaye, 311 So.2d 58 (La.App. 3 Cir. 1975).

The plaintiff argues that if the Court finds there was no enforceable compromise agreement between the parties, the doctrine of equitable estoppel allows the plaintiff to recover the amount sued upon. The plaintiff has neither specially pleaded nor proved the elements of equitable estop-pel, so this doctrine will avail her nothing. To rely on equitable estoppel, the pleader must prove not only that he relied upon a representation or conduct of the other party, but that he was justified in so doing and that he changed his position to his detriment because of his reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

The plaintiff also argues that her action has not prescribed. This suit was brought more than one year after the alleged fire loss and, under provisions of the policy sued upon, the suit was not timely filed, unless prescription has been interrupted. See LSA-R.S. 22:691 F (Standard Fire Insurance Policy); Grice v. Aetna Casualty and Surety Company, 359 So.2d 1288 (La.1978).

Prescription may be interrupted by either an express or a tacit acknowledgment of the right by the debtor.

LSA -C.C. art. 3520 provides:

“Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”

LSA-C.C. art. 3551 provides:

“The prescription releasing debts is interrupted by all such cases [causes] as interrupt the prescription by which property is acquired, and which have been explained in the first section of this chapter. . . . ”

When the two articles are read together, it is clear that the Article 3520 applies to liberative, as well as acquisitive, prescription. As applied to liberative prescription, Article 3520, in effect, provides that such prescription is legally interrupted when the debtor makes acknowledgment of the right of the creditor, the person against whose claim he prescribed, Flowers v. United States Fidelity & Guaranty Company, 381 So.2d 378 (La.1980), and, in effect, is applicable to all rights or actions.

Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest, or by pledge, or in other ways. In other words, it need not be in any particular form. It may be implicit or it may be inferred from the facts and circumstances. Lake Providence Equipment Company v. Tallulah Production Credit Association, 257 La. 104, 241 So.2d 506 (1970); Comment, Interruption of Prescription by Acknowledgment in Louisiana, 14 Tul.L.Rev. 430 (1940).

We find, from the evidence, that the insurer intended to acknowledge the insured’s rights as claimed by the plaintiff, Mrs. Richardson. The evidence discloses that the insurer admitted that it owed Mrs. Richardson for the fire damages. The insurer only questioned Mrs. Richardson’s estimate of how much it owed to the insured. Her “right” to recover was recognized by the actions of the insurer. Prescription of an unliquidated claim for damages may be interrupted by the tacit acknowledgment of the debtor. Flowers v. United States Fidelity & Guaranty Company, supra. We find that there was a tacit acknowledgment in the instant case so as to interrupt prescription, and that the evidence supports the trial judge’s award of $500.00.

Accordingly, for the reasons set out above, we affirm the judgment insofar as it is rendered in favor of the plaintiff against the defendant, Louisiana Farm Bureau Mutual Insurance Company, in the amount of $500.00, legal interest from date of judicial demand and all costs; we reverse the judgment insofar as it runs against Harold Marchand; the suit as to him is dismissed. The appellant, Louisiana Farm Bureau Mutual Insurance Company, is cast for costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART.

      . Also, see Bourgeois v. Franklin, et al, 389 So.2d 358, decided by our Supreme Court on October 6, 1980.


author: CHIASSON, Judge.

text:
    BOURG DRY DOCK & SERVICE CO., INC. v. LOMBAS INDUSTRIES, INC.
    No. 13703.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    James C. Walker, Jr., Houma, for plaintiff-appellee Bourg Dry Dock & Service Co., Inc.
    George J. Ledet, Jr., of LaPlante & Le-det, Cut Off, for defendant-appellant Lom-bas Industries, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellee, Bourg Dry Dock & Service Co., Inc. (Bourg), instituted this action against Lombas Industries, Inc., defendant-appellant, for the balance allegedly due on an open account. Bourg performed certain services on the vessel, M/V Midnight Sun, at its dry dock facility between February 1 and February 3, 1979.

An invoice for services listing the cost of labor and the cost of materials was furnished to the appellant following completion of the work in the amount of $3,844.65. A check dated February 5, 1979 made by Lombas Industries, Inc. in the amount of $2,000.00 was given to Bourg for payment on this account. Bourg, through its counsel, made demand on the appellant for payment of the balance due in the amount of $1,884.65. Receiving no response, Bourg instituted this suit on June 27, 1979 for the balance due and for attorney’s fees as provided for in La.R.S. 9:2781.

Defendant-appellant answered the suit with a general denial and a denial based on allegations that the work and services performed by Bourg were improper and inadequate and the charges were excessive.

At trial Bourg introduced the invoice showing the amount due and a copy of the check showing that the appellant had paid $2,000.00 on the account. Appellant has not denied that it contracted with Bourg to perform such services nor that it paid $2,000.00 on the account. Nor did the appellant offer any evidence to show that the amount was excessive or that the services were inadequate or improper.

Two days before trial, appellant amended its answer with leave of court stating that the M/V Midnight Sun was owned by Lom-bas Inshore Marine Services, Inc., and the sum allegedly owed should come from that corporation. At trial defendant introduced evidence as to the ownership of the vessel and attempted to introduce evidence to the effect that the owner of the vessel owed the balance on the account. The trial court limited appellant’s inquiry into this matter.

Appellant’s only contention on appeal is that the trial court erred in limiting his introduction of evidence as to an issue not presented at a pretrial conference.

Article 1551 of the Code of Civil Procedure reads as follows:

“In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted;
(4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(5) The limitation of the number of expert witnesses; or
(6) Such other matters as may aid in the disposition of the action.

“The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.”

The trial court had issued a pretrial order in this case narrowing the issues. That order controls the subsequent course of action unless modified at the trial to prevent manifest injustice. The trial judge refused to modify his order. Much discretion is left to the trial judge in this matter. As was stated in Brown v. Hawkins, 244 So.2d 896, 899 (La.App. 1st Cir. 1971):

“* * * An orderly disposition of each case and of the entire docket and the avoidance of surprise are inherent in the theory of pre-trial procedure and are sufficient reasons for allowing the trial judge to require adherence to the pre-trial order in the conduct of an action.”

See: Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973).

Since the parties had limited the issues with the pretrial conference and the pretrial order to the excessiveness of the charges and the adequacy of the services, the trial court did not abuse its discretion in limiting the appellant to those issues.

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

AFFIRMED.


text:
    Harry Lloyd BISSETT v. Florence Orillion BISSETT.
    No. 13712.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Ronald W. Wall, Bradley & Wall, Ltd., Baker, for plaintiff-appellant.
    John Wayne Jewell, Jewell & Jewell, New Roads, for defendant-appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Harry Lloyd Bissett, appeals the judgment of the trial court sustaining the peremptory exception of res judicata filed by defendant-appellee, Florence Orillion Bissett. Appellant contends the trial court erred in not allowing him to amend his petition so as to remove the grounds for the exception.

In 1978 appellee obtained a divorce from appellant. The trial court dismissed appellant’s reconventional demand, found that appellee was without fault and awarded her permanent alimony. No appeal was taken from that judgment.

On April 30, 1979, Appellant filed suit against appellee in suit number 15,660, Division “C”, Eighteenth Judicial District Court, praying that the judgment of divorce be annulled because of fraudulent testimony on the part of the defendant. A xerox copy of suit number 15,660 was filed and given suit number 15,661, and was assigned to Division “A” on the same day. Suit number 15,660 was dismissed with prejudice on May 9, 1979, on the motion of Mr. Bis-sett, the plaintiff. Defendant-appellee then filed a peremptory exception of res judicata in suit number 15,661 which was sustained by the district court.

The question on this appeal is whether the trial court erred in not allowing the appellant an opportunity to amend his petition. The peremptory exceptions are listed in Article 927 of the Code of Civil Procedure as follows:

“The objections which may be raised through the peremptory exception include, but are not limited to, the following:
(1) Prescription;
(2) Res judicata;”
* ‡ sfc sfc # sjc

When a court hears an exception of res judicata it must follow the procedure set forth in Article 934 of the Code of Civil Procedure, which provides:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

The mandate of this article is discussed in two Fourth Circuit Court of Appeal cases: Southern Wheel & Rim Service, Inc. v. Champion Machine Works, Inc., 283 So.2d 328 (La.App. 4th Cir. 1973) and Lyons v. Avondale Shipyards, Inc., 359 So.2d 1348 (La.App. 4th Cir. 1978).

In the Southern Wheel case, supra, the court states:

“A close reading of the provisions of Article 934, supra, and the relevant jurisprudence of this State, shows conclusively that the trial judge must first determine whether or not the grounds for objection, as covered by the peremptory exception, can be removed by amendment. If this preliminary decision be answered in the affirmative, the trial judge must then provide additional time for amendment of the petition.”

In the Lyons decision, supra, the court emphasizes that:

“... Article 934 is designed to afford a meritorious plaintiff an opportunity to correct defects in his pleadings, not to speculate on unwarranted facts of a contrary nature, which counsel may furnish as a means of somehow getting into court without regard to the true facts surrounding plaintiffs’ cause of action... . ”

See the discussion in Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4th Cir. 1971) and Oby v. Flanagan, 356 So.2d 1047 (La.App. 1st Cir. 1977).

The trial court is therefore under an affirmative duty to determine whether the grounds for sustaining the exception can be removed by a meritorious plaintiff.

There is no question that suit number 15,661 is the identical suit of 15,660. Since 15,660 was dismissed with prejudice by the plaintiff-appellant, suit number 15,661 would be barred under the doctrine of res judicata.

We need then to determine if the trial court was correct in refusing to allow the appellant a delay within which to amend his petition. Appellant asserted that he could introduce other acts of fraud on the part of the appellee and add additional parties to the suit so as to defeat the exception.

Whether what appellant alleges can be construed as removing the grounds of the exception is the focal point of this case. A quick review of the doctrine of res judicata and the cases construing it is appropriate.

Louisiana Civil Code Article 2286 forms the basis for the doctrine, which provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The three elements of this doctrine have all been defined by the following jurisprudence: (1) Demand must be the same. Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978); Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974). (2) Demand must be founded on the same cause of action. Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Company v. Getty Oil Company, supra. (3) Demand must be between the same parties. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Scurlock Oil Company v. Getty Oil Company, supra.

If any one of these three elements is not the same in the second suit or if any one element can be removed by an amendment to the petition, then the grounds for the exception would not be present. In the latter instance, the trial judge should allow a delay for amending the petition.

Appellant, even by amending his petition, will be seeking the same demand, i. e., the annulment of the divorce judgment. The only parties to this action can be the present plaintiff and defendant so that the parties will be identical. This leaves the appellant trying to seek annulment of this judgment on a different cause of action.

“Cause of Action” in Article 2286 of the Civil Code has been generally interpreted to mean “cause.” Mitchell, supra, page 291. As described in the Mitchell case:

“The cause is said to be the juridical or material fact which is the basis of the right claimed, or the defense pleaded. 2 Planiol, Traite Elementaire De Droit Civil, 34 (11 ed. 1939). Stated otherwise:
‘. . . Cause is the principle upon which a specific demand is grounded while cause of action embraces the cause and the demand, and is related to the party making the demand. . .. ’ Maloney, Preclusion Devices in Louisiana: Collateral Estoppel, supra, at 165, footnote 41.”

The fraud that was alleged in both suits was the alleged perjured testimony of the defendant and of her witnesses. Appellant stated in the hearing and in brief that he could show other acts of fraud committed by the defendant to annul the judgment.

The fraud in this case is the “cause” or the “cause of action” that the demand is founded on. Whether the fraud is proven by one act of the appellee or many acts of the appellee, it is still one cause. The appellant cannot defeat the exception of res judicata by simply alleging other acts which might constitute the same cause.

With only these allegations presented by the appellant, the trial court’s decision to dismiss suit number 15,661 on the exception of res judicata without allowing appellant the right to amend his petition was correct.

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

AFFIRMED.


text:
    GULF-WANDES CORPORATION et al. v. VINSON GUARD SERVICE, INC. et al.
    No. 13714.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      W. Luther Wilson, Baton Rouge, and Terry Bell, New Orleans, for plaintiffs-appellants Gulf-Wandes Corp., J. D. Atkinson, III & Travelers Indem. Co.
    M. O’Neal Walsh, Baton Rouge, for defendant-appellee Houston General Ins. Co.
    Clinton Hyatt, Jr., Baton Rouge, for third party plaintiff-appellee Whirlwind Steel Building and Rocky Powell.
    Robert N. Habans, Jr., New Orleans, for defendant-appellee Admiral Ins. Co.
    France Watts, III, Franklinton, and Robert Ranier, Baton Rouge, for defendant-ap-pellee Vinson Guard Service.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal from judgment as amended by the District Court by Gulf-Wandes Corporation and the Travelers Indemnity Company, two of the plaintiffs. The original summary judgment was granted in favor of defendants, Vinson Guard Service, Admiral Insurance Company and Houston General Insurance Company dismissing the demands of the plaintiffs, and denying the motion for summary judgment insofar as it sought to dismiss the demands of J.D. Atkinson, III, G. W. Leasing Company and the Travelers Indemnity Company (as subrogee of J.D. Atkinson, III). The judgment was amended to read in favor of Vinson Guard Service, Inc., Admiral Insurance Company and Houston General Insurance Company (in its capacity as insurer of Vinson Guard Service, Inc.). We reverse and remand.

It is only where there is no genuine issue of a material fact, and mover is entitled to a judgment as a matter of law, that the motion for summary judgment can be granted. LSA-C.C.P. art. 966; Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977). There is a genuine issue as to material facts presented in the instant case. There exists a serious question concerning the instructions, if any, that Vinson’s supervisor gave to the guard on the night of the fire. There is also a serious question about what extra attention the guard consented to pay to the premises due to an earlier fire, if he did in fact volunteer to pay special attention to the area in question. There is a serious factual question concerning the relationship of the guard to Vinson and/or to Gulf-Wandes, particularly concerning the issue of “borrowed employee.”

In determining the genuineness of the issue, the courts are not permitted to consider the merits of the facts at issue, the credibility of witnesses, or whether or not the party alleging the fact will be able to sustain the burden of proving it. All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973). A motion for summary judgment can never take the place of a trial on the merits; It is just not a substitute for a trial. Fly v. Hand, 376 So.2d 1016 (La.App. 1 Cir. 1979).

The instant case is not in a posture for a summary judgment. The judgment is reversed, and the case is remanded for a trial on the merits. The costs of this appeal are to be paid by the appellees. All other costs are to await final determination of the case.

REVERSED AND REMANDED.


text:
    Irene M. SAMANIE v. JOHNSTON TESTERS, INC., Janice Sanders, The Travelers Insurance Company, and Continental Assurance Company.
    No. 13715.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Philip J. McMahon and Rudolph D. Har-gis, Jr., Houma, for appellant and defendants.
    Danny J. Lirette, Houma, for appellant and plaintiff.
    William O. Bonin, New Iberia, for appel-lee and third party defendant Continental Assurance Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is an appeal by Johnston Testers, Inc. and its insurer, The Travelers Insurance Company, defendants-appellants, from an adverse judgment holding them liable for injuries sustained by the plaintiff-appel-lee, Irene M. Samanie, in a four car collision on U. S. Highway 90 in Houma, Louisiana.

On the afternoon of August 24, 1976, plaintiff was proceeding in a westerly direction on Highway 90 in her 1969 Buick. U. S. Highway 90 in this area is a two lane paved highway with traffic flowing generally in easterly and westerly directions. She had come to a complete stop behind an unknown vehicle which had stopped to make a left-hand turn. Stopped immediately behind the plaintiff was Raymond Theriot, driving a pickup truck. The third vehicle was a 1971 Chevrolet owned by Walter Sanders and being driven by his daughter, Janice Sanders. Following the Sanders vehicle was the Johnston Testers 1976 Chevrolet, driven by its employee, Raymond Duncan.

After the Samanie and Theriot vehicles had come to a stop behind the unknown car turning left, the Theriot vehicle was hit from the rear by the Sanders vehicle, propelling it into the rear end of the Samanie vehicle and causing injury to Mrs. Sama-nie’s neck, back and left arm. The Sanders car in turn had been hit from the rear by the Johnston Testers automobile.

Appellants contend that Mrs. Samanie’s injuries were caused solely by the rear ending of the Theriot truck by Janice Sanders. Appellants do admit that its vehicle struck the rear end of the Sanders vehicle, but claim that collision was after the impact between the Sanders and Theriot vehicles.

Janice Sanders, driving an uninsured car, claims that the Johnston Testers car struck the rear end of her automobile which resulted in the chain reaction collisions.

At the time of the accident, The Travelers Insurance Company had in force a policy of liability insurance covering the Johnston Testers car. Raymond Duncan was employed by Johnston Testers and was proceeding home after a day’s work.

Plaintiff instituted suit against Johnston Testers, The Travelers Insurance Company, and Janice Sanders. Plaintiff later amended her petition to include the Continental Assurance Company, her uninsured motorists carrier. Continental filed a reconven-tional demand against the plaintiff seeking credit for $1,000.00 it had paid to the plaintiff under the medical coverage portion of her policy. In addition, Continental third partied Johnston Testers, The Travelers Insurance Company, Janice Sanders and Raymond Duncan.

The trial court held that the sole cause of the accident was the negligence of Mr. Duncan, the driver of the Johnston Testers vehicle. In its reasons for judgment, the court stated:

* * * * * *
“While the court concedes there are at least three possible explanations of how the accident happened, one possible way the accident could have occurred and which is more probable in the opinion of this court than any other, is that explanation given by the State Trooper called to investigate the accident. His report is filed in the record by agreement of all counsel, and the court quotes the conclusions of Trooper Douglas Brunet from said accident report.
‘Vehicle # 2 (Sanders) was slowing down to stop behind vehicle # 3 (Ther-iot) and vehicle # 4 (Samanie) when struck into the rear by vehicle # 1 (Duncan). After the collision between vehicles 1 (Duncan) & 2 (Sanders), vehicle # 2 (Sanders) was pushed into vehicle # 3 (Theriot). Vehicle # 3 (Theriot) was pushed into vehicle # 4 (Samanie). Vehicle # 4 (Samanie) was stopped behind an unknown vehicle which was stopped waiting to make a left turn.’
“While these conclusions only represent an opinion of the investigating officer, and ordinarily are not admissible in evidence, based on testimony and evidence adduced at the trial, the court believes the conclusions of the officer as expressed above are correct and fully justified. While the accident may have occurred in the way claimed by Mr. Duncan, the court is of the opinion the evidence preponderates in favor of the factual conclusion reached by the officer.”
sk * * # sjc ¡fc

The plaintiff is totally free from fault in this case. The appellants contest the trial court’s ruling holding them solely liable for the damages caused by the accident. They contend that the sole cause of the accident was the actions of Janice Sanders and, in the alternative, that it was the joint negligence of both Sanders and Raymond Duncan. Appellants base their contentions on what they consider the physical facts surrounding the accident and insist that the trial court committed manifest error in its factual determinations.

The rule of appellate review of a trial court’s determination was stated in the case of Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error

The rule was later clarified by the Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978), in the following manner:

“. .. We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).”

Neither Mrs. Samanie nor Mr. Theriot could testify as to what transpired behind them prior to the collisions of their respective vehicles. This leaves only the two other drivers to testify as to what transpired prior to the collisions.

Miss Sanders testified by deposition taken in April of 1979. Stating that she saw the brake lights on the two proceeding vehicles in front of her go on, she applied her brakes. She looked in her rearview mirror and knew the following vehicle would hit her. She stated she came to a stop before being hit and denied that she hit the truck before being hit by Mr. Duncan.

On the other hand, Mr. Duncan testified at trial that he was slowing down as he approached the Sanders vehicle, going about 20 to 25 miles per hour. He quickly glanced down at his speedometer and heard two booms. He looked up and did not see any taillights on the Sanders vehicle. He claims that he was a ear’s length away when he looked up but could not avoid striking the rear end of her car.

The investigating officer did not testify but his report indicates that the Sanders vehicle was moving when it was struck in the rear by the Johnston Testers vehicle. It further indicates that the collision between these two vehicles occurred prior to the collision with the Theriot vehicle.

The trial court accepted the trooper’s version. The trooper who investigates an accident generally determines points of impact and the manner in which an accident occurred by reference to the physical evidence at the scene of the accident. The accident report prepared by the trooper was jointly admitted into evidence without reservation so that the factual contents, as distinguished from the conclusions therein, were properly considered by the trial court. We agree with the trial court’s determination that the initial impact was between the Sanders vehicle and the Johnston Testers vehicle at a time when the Sanders vehicle was still traveling, but slowing, and before it reached the stopped Theriot vehicle. The propelling force of this initial impact and its detrimental effects upon Miss Sanders’ braking attempt were causes in fact of this accident. This initial impact was caused solely by the negligence of Mr. Duncan. The trial court was therefore correct in holding that appellants are liable to the plaintiff.

Appellants next contend that the trial court erred in not holding Sanders jointly liable. Appellants argue that the substantial damage to the front end of the Sanders vehicle as compared to the minor damage to the rear end of the Sanders vehicle and to the front end of the Johnston Testers vehicle indicates that the great amount of force necessary to propel the Theriot vehicle into the Samanie vehicle came from the Sanders vehicle, rather than solely from the Johnston Testers vehicle.

The greater damage to the front end of the Sanders vehicle could be the natural consequence of the initial impact as before explained or it could be the result of some independent act of negligence on the part of Miss Sanders. No independent act of negligence on the part of Miss Sanders has been proven. Further, from the collision sequence as found herein and the evidence, we are unable to conclude that the degree of damages alone is sufficient to establish negligence on the part of Miss Sanders. The case of Leftwich v. Molony, 322 So.2d 438 (La.App. 4th Cir. 1975) is distinguishable from this case. In the Leftwich case, supra, Molony, who was in a similar position to that of Miss Sanders herein, was found to have committed an independent act of negligence which contributed to the occurrence of the accident and resulting injuries. The trial court therefore did not err in holding appellants solely liable for Mrs. Sa-manie’s injuries.

Appellee, Samanie, answered the appeal contending that the amount awarded to her was insufficient in relation to the pain and suffering she sustained. The trial court granted Mrs. Samanie $35,000.00 for general damages in addition to her special damages of $6,513.21.

As stated in Reck v. Stevens, 373 So.2d 498, 501 (La.1979):

“However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).”

The following is a summary of the trial court’s review of Mrs. Samanie’s injuries with which we agree:

“... After the accident she consulted Dr. William H. Marmande, a general practitioner, in Houma, Louisiana, and she was treated by said physician for a whiplash injury to her neck. His medical treatment of Mrs. Samanie consisted mostly of medication and her wearing a neck brace for a period of about three weeks. Thereafter, Dr. Marmande referred plaintiff to Dr. Chris Cenac, an orthopedic surgeon, who put her in Terrebonne General Hospital in traction. A myelogram was performed on Mrs. Samanie while she was a patient in said hospital. After about nine or ten days in the hospital, she was discharged and instructed by Dr. Ce-nac to participate in physical therapy treatments about three times a week. After a period of physical therapy treatments, Mrs. Samanie was referred to Dr. Kenneth E. Vogel, a neurologic surgeon, in New Orleans, Louisiana, who diagnosed Mrs. Samanie’s injuries as being a subcapsular herniated cervical disc and an acute lumbosacral strain. A discogram confirmed the diagnosis of herniation and as a consequence Dr. Vogel performed an operation on Mrs. Samanie called an anterior cervical fusion. The operation appears to have been successful and after a period of convalescence Mrs. Samanie was discharged with an evaluation by Dr. Vogel that she had incurred an approximate 10 to 15% permanent partial total body medical impairment with further restrictions. According to Dr. Vogel the acute lumbosacral strain apparently unti-mately resolved itself and she needed no further treatment for that injury. When she was discharged, she had reached the maximum medical improvement.”

Under the facts of this case, we do not find that the trial court abused its discretion in the award to Mrs. Samanie for general damages. The cases cited by plaintiff for similar injuries are not controlling in the determination of awards. As the court explained in Reck, supra:

“The use of such a scale of prior awards, made for merely generically similar medical injuries, has been expressly and repeatedly disapproved by Gaspard and the succeeding jurisprudence. Such a hypothetical scale of hypothetical awards cannot be used to determine whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case.” (Footnote omitted).

Further, the trial court did not abuse its discretion in not allowing recovery of the sum of $435.00 allegedly paid for household work during her period of convalescence. As stated by the trial judge, the need for such help was not sufficiently established.

Because of our holding herein, we need not consider the answer filed by Continental Assurance Company, the uninsured motorists carrier on the Samanie vehicle.

For these reasons, the judgment of the trial court is affirmed at appellants’ costs,

AFFIRMED


author: LEAR, Judge.

text:
    Delores D. HOLLOWAY v. John T. HOLLOWAY.
    No. 13716.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Ralph W. Brewer, Baton Rouge, for defendant-appellant John T. Holloway.
    William J. Staser, Baton Rouge, for plaintiff-appellee Delores D. Holloway.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

The only issue involved in this matter concerns the amount of permanent alimony under C.C. art. 160, as amended by Act 72 of 1979, to be paid by the husband.

The issue of fault was litigated at the separation level.

The record indicates that Mrs. Holloway has a 17 year old son born of a prior marriage and Mr. Holloway has two children born of a prior marriage. One child, age 7 years, was born of their marriage. Mrs. Holloway works part time and earns approximately $428.00 per month. Mr. Holloway earns $3,970.00 per month from his employment, plus a little over $200.00 per month from other activities.

The trial court, in a well-written opinion, considered all of the factors involved and awarded Mrs. Holloway $300.00 per month as alimony and $300.00 per month child support.

In view of Hope v. Hope, 271 So.2d 317 (La.App. 2nd Cir. 1972), an award of alimony assessed against a husband for maintenance of his former spouse is within the sound discretion of the trial court and should not be disturbed on appeal absent a clear showing of an abuse of discretion. See also Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953).

We find no evidence in the record of an abuse of discretion by the trial court. Therefore, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . “Art. 160. Alimony after divorce
      “Art. 160. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      “In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      “This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”


text:
    Sarah Watson CARTER v. Charles Robert CARTER.
    No. 13717.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    James Don Thomas, II, Baton Rouge, for plaintiff-appellee, Sarah Watson Carter.
    Ralph Brewer, Baton Rouge, for defendant-appellant, Charles Robert Carter.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by defendant from a judgment on a rule for injunctive relief brought by the plaintiff, Sarah Watson Carter, against her former husband, Charles Robert Carter. The judgment enjoined the defendant from withdrawing the proceeds from described certificates of deposit claimed to be community property and from removing the certificates from the State. The defendant was also enjoined from entering certain safe deposit boxes until the contents thereof could be inventoried.

The injunctive relief sought is but another incidental matter to a divorce action instituted in May of 1979 by plaintiff. In connection with the divorce action there have been a number of court appearances by the parties involving child custody, child support, alimony and contempt of court. This aspect of the suit, however, is only concerned with the injunctive relief granted on March 27, 1980.

There is no merit to this appeal. The law specifically provides that in divorce actions either the husband or the wife may obtain injunctive relief, without bond, prohibiting the other party from alienating or encumbering community property. LSA-C. C.P. art. 3944; see also LSA-C.C. art. 149. The evidence presented to the Family Court on this rule by the wife was uncontrovert-ed. The Family Court properly granted the relief sought by Mrs. Carter. We affirm at appellant’s costs.

AFFIRMED.