text:
    SUCCESSION OF Cedric Jack TRUE.
    No. 12441.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Writ Denied April 16, 1982.

      Levy, Marx, Lucas & Rosen, William W. Rosen, New Orleans, for appellant, Mrs. Anne True Meyer.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for appellee, Wallace Rubin, M. D.
    Before GULOTTA, BYRNES, and WILLIAMS, JJ.
   GULOTTA, Judge.

The sole and only heir, Mrs. Anne True Meyer, daughter of the decedent, appeals from the dismissal of her opposition to the first, second, third and final accounts of the testamentary executor, Dr. Wallace Rubin.

While claiming evidentiary errors by the trial judge, the primary thrust of the opponent’s opposition is to the executor’s payment to himself and the succession’s attorney salary and fees totaling $131,964.77. In addition, Mrs. Meyer seeks reimbursement to the estate of statutory penalties at the rate of 20% per annum of the amount illegally withdrawn from the succession. See LSA-C.C.P. Art. 3222.

Cedric Jack True died in the city of New Orleans on July 27, 1972. He was survived by one major daughter, Anne True Meyer, and a widow by a second marriage, Juana True. At the time of death, decedent was a 100% shareholder of Aztec Corporation, a land and real estate development company. The corporate assets constituted in excess of 80% of the $1,629,409.55 succession assets. These assets consisted of separate funds of the decedent and property in community with his surviving spouse. Decedent’s last will directed that 20% of his separate estate be held in trust for the surviving spouse and the “remaining fractional share” of all property in his estate be held in trust for the benefit of his daughter Anne. The Hibernia National Bank in New Orleans was named trustee, Dr. Wallace Rubin executor, and Louis A. DiRosa attorney for the executor. The will further stated:

“I direct that the trustee upon my death liquidate the Aztec Corporation.”

At the time of death, the corporation owned rental property and was constructing a shopping center. After assuming responsibility as executor of the succession, Dr. Rubin conducted the affairs of the corporation and exercised the responsibility for collecting rent, finishing the construction of corporate property, and paying corporate business obligations. Despite the recitation in the will that the trustee liquidate the corporation upon death of decedent, it was not liquidated until March, 1977.

The complaint against the executor and the attorney for the succession is that by permitting the corporation to remain unliq-uidated for approximately five years subsequent to the death of the decedent (contrary to the dictates of the will) they received unnecessary salary and fees for services rendered to the unliquidated corporation.

The opponent-heir contends that the executor violated his fiduciary responsibility to the succession in appointing himself president of Aztec Corporation without prior court approval and receiving $107,600.00 from the corporation in salary for the same services required of him as executor and for which he received an additional $45-50,-000.00 executor’s fee. The opponent seeks reimbursement of the salary paid and claims further that, because of negligence and mismanagement of the succession, the executor overpaid the federal estate tax to the extent of $80,000.00. She also contends the executor benefitted financially in his personal dealings with a bank where he purchased succession certificates of deposit over which he had sole control. Finally, she complains that $20,100.00 was paid to the succession’s attorney, without court approval, in addition to his fee as attorney for the succession.

Dr. Rubin, in answer to the appeal, claims $100,000.00 in damages for “personal anguish” and injury to his reputation and honesty caused by the appeal.

Finding no merit to these contentions, we affirm.

The trial judge in well-considered and well-articulated reasons for dismissing the opposition, stated in pertinent part:

“The remaining opposition items are those headed “F” and “K”. Item “F” having reference to the payment of $107,-600.00 as salary paid by the corporation which was wholly owned by the Succession, the salary having been paid to the same individual who was the Executor of the estate. Item “K” refers to the sum of $20,100.00 paid to the corporation’s attorney who was the same attorney who represented the Executor.
The sole question for determination in respect to items “F” and “K” is whether or not Dr. Rubin was legally entitled to be paid a fee as Executor of the estate and another fee for acting as President of the corporation, the stock of which was wholly owned by the succession. The Court has examined the authorities referred to by both parties to this litigation, but does not find that the facts in the cited cases are analogous to the facts in this case. Hence, the matter may well be res nova.
The decedent, prior to his death owned the stock of a corporation which was operating and its principal asset was real estate forming a large shopping area. Whether there were problems in connection with the operation and management of the property of the corporation, at the time the decedent made his will, is unknown to the Court, no evidence of that fact having been introduced into evidence. However, in the testator’s will he specifically directed that upon his death the ‘Trustee’ liquidate the corporation. Since the Trustee must have been ac-quáinted with the provisions of the will and took no steps to ask that the provision of the will be carried out; and since neither the other legatee nor opponent herein (the sole heir at law) took any steps to have the corporate stock of the corporation turned over to the Trustee, it must be presumed that all were in agreement that there were reasons why the corporation should not be liquidated at that time. The record shows that it was on the advice of the auditors that the executor did not dispose of the corporate stock, but he actively operated the corporation until it was disposed of.
At this point it must be noted that had the executor turned the stock of the corporation over to the Trustee, as soon as possible, after he became executor, he would nevertheless been entitled to the same amount of an executor’s fee as was paid to him after servicing as executor for some six or more years.
As previously set forth, neither the legatees nor the sole heir of the decedent, who was for some time an officer of the corporation, voiced any objection to the Executor becoming the President of and managing the corporation’s operations. On the contrary, the opponent herein was employed by the corporation and drew a salary along with the Executor, who served as President of the corporation. The evidence also indicates that the opponent was in attendance at many, if not all, of the corporate meetings and had full knowledge of the fact that the Executor was drawing a salary as President of the corporation.
As also previously stated herein, the record shows that the opponent attended many, if not all, of the corporate meetings. Not only did the opponent attend, but her husband, a highly respected member of the bar, also attended one or more meetings. The record would further indicate that Mr. Meyer was well acquainted with most of the problems of the corporation and the status of the projects undertaken by the corporation, which, at one stage, apparently required financing which Mr. Meyer attempted to secure for the corporation. Yet, at no time was it ever suggested that the Executor was not acting properly in drawing a salary (along with Mrs. Meyer) in the operation of the corporation.
The Court is of the opinion that in the absence of specific statute or code Article prohibiting an Executor from acting as President of a corporation in which the succession is part or full owner of the corporate stock, the Court must hold that the position of the opponent is not well taken.”

The record amply supports the conclusions reached by the trial judge.

Anne True Meyer testified that as vice president of the corporation prior to her father’s death she had the responsibility of collecting rent, doing bookkeeping and signing checks. She stated that she had received $1,000.00 per month in salary subsequent to the death of her father in 1972 until the corporation was liquidated in 1977. Despite her claim that she was unaware until May 31, 1975 that Dr. Rubin was receiving a salary from the corporation, she acknowledged that she had attended meetings annually with her husband Donald Meyer, Dr. Rubin, John McGrath (the accountant with A.A. Harmon & Company, the accounting firm handling the corporation), the decedent’s surviving spouse, and the attorneys representing succession interests. She acknowledged also that she had been furnished corporate balance sheets and had made no objection to Rubin’s salary, or the executory and attorney’s fees until 1975.

Although Mrs. Meyer testified she was not aware that office rent was being paid to the succession attorney and that secretarial services were being charged to Aztec, she further stated she had access to the corporate books prior to her father’s death and for a very short time subsequent to his death and admitted she had made no request to see the corporate check books. Her explanation was that she was not allowed in the office.

Donald Meyer, Anne’s attorney-husband until 1976, testified he had accompanied his wife to the succession and corporate meetings attended by the executor, the respective parties in interest and their attorneys. Although not representing his wife in the succession, he was of the opinion that the inventory expenses were unnecessary but he acquiesced because the estate was being handled by the succession attorneys and Dr.Rubin. He acknowledged that he had made no objection to the premature payment of the executor and attorney’s fees and at these meetings had agreed to assist in obtaining financing for the corporation because of a limited cash flow problem. It was his understanding that the explanation given by the accountants for the corporation was that liquidation of the corporation shortly after the death of the decedent might accelerate payment of the federal estate tax and thereby not allow the succession to pay the tax in installments.

Dr. Wallace Rubin, the executor, testified that he had attended several meetings with the heirs and the respective attorneys, as well as the corporation accountant. At these meetings the agenda was handled by the accountant, and a year-end financial report was furnished to all persons present. He stated that he received from the corporation $20,000.00 per year for his services as president.

According to Dr. Rubin, the construction superintendent of Aztec left the corporation after Cedric True died. There existed serious problems regarding completion of construction of corporate property that had commenced prior to True’s death. Rubin stated that he was concerned with early completion of these projects to satisfy shopping center tenants. Repair problems to the property and collection of rent occupied a great deal of his time, according to his testimony. Although he initially intended to liquidate the corporation in 1973, it became evident from the advice of the corporation accountants that the early liquidation would result in tax disadvantages. At the meetings with all parties in interest, profit and loss statements, work sheets, and projections were furnished.

Rubin testified further that no complaints were made about him or his salary as president until August, 1975, and no complaints were made to him about the executor or attorney’s fees or the inventory. He denied ever refusing to accept the services of Anne Meyer, and stated that in addition to the $1,000.00 per month paid her from the corporation, she received a $114,-000.00 advance on her inheritance. Finally, Dr. Rubin testified that no one offered assistance to him in carrying out the day-today operations of the corporation and that his earning capacity as a physician was reduced because of the time devoted to the corporation.

Joseph L. Barbe, an associate with A. A. Harmon & Company, testified that his accounting firm had handled the corporations business before and after True’s death. It was upon Harmon’s advice that the corporation was not liquidated because of fear of acceleration of the federal tax liability. The accounting firm was concerned with the cash-flow shortage and the drain on the corporation. This witness acknowledged, however, that a refund of $60,-000.00 was being sought by the succession from the Internal Revenue Service because of an estate tax overpayment. Apparently this had occurred because the inventory value of the corporate assets exceeded subsequent sale prices received.

Barbe’s testimony was disputed by Curt D. Steiner, a certified public accountant who made a financial analysis of the corporate structure subsequent to True’s death. This witness testified on behalf of the opponent. According to Steiner, had the corporation been liquidated earlier in accordance with the requirements of the will it would have saved approximately $28,000.00 in Louisiana income tax. According to this expert, the earlier liquidation would not have necessarily required immediate payment of the state tax and would not have prevented the succession from paying the tax in installments. Because of over-valuation of the corporate stock and assets, an overpayment was made in federal estate tax. Steiner recognized, however, that one of the reasons the liquidation had been delayed was to allow for negotiations of beneficial financial arrangements concerning mortgages and other matters. It was his impression that all parties were present at a meeting in February, 1973 when they concluded that the liquidation of the corporation would not be to the best interests of the succession or the corporation.

Norman P. Landry, a business acquaintance of the decedent and employee of R. M. Walmsley, decedent’s partner in the construction and management of the shopping center, stated that Dr. Rubin had handled the affairs of the corporation on an almost daily basis. According to this witness, corporate buildings were completed and defects in construction were rectified through Rubin’s efforts. Landry added that discussions were had with Rubin on renovations and air conditioning, plumbing, electrical and leasing problems.

Finally, Russell J. Schonekas, attorney for Juana True Coughran, the surviving spouse, stated that he had attended annual meetings of the corporation until it was liquidated. On at least three or four occasions, he had attended with Anne and Donald Meyer who were furnished financial information. The May 31,1973 balance sheet, according to Schonekas, showed that both Rubin and Anne Meyer were receiving salaries from the corporation. He learned shortly after commencing his representation of the surviving spouse that Rubin was receiving corporation pay, and his client was aware of this also. According to Schonekas, neither Anne nor Donald Meyer disputed or complained at the first meeting concerning Rubin’s corporate pay or to payment of the executor and attorney’s fees. Insofar as the time of liquidation, Schone-kas testified that it was agreed by the parties in interest attending these meetings that the accountant’s advice would be followed.

Considering this evidence, together with the exhibits, we conclude that the record supports the trial judge’s determinations. We find no error in his factual conclusions. While complaints are made in this appeal regarding evidentiary error involving the violation of the sequestration rule, failure to allow production of Dr. Rubin’s income tax return, failure to allow into evidence a copy of a U.S. District Court indictment and sentence of Dr. Rubin, and failure to allow the production of bank records of Dr. Rubin to ascertain information on his personal loan, we find no prejudice to the opponent. We fail to understand how the presence or absence of the surviving spouse’s attorney in the courtroom would have added or detracted from his testimony. Furthermore, the attempt by the opponent to offer evidence of Dr. Rubin’s financial and personal matters was irrelevant to the factual and legal issues in this opposition. Having so concluded, we find no prejudice to the opponent in the evidentiary rulings made by the trial judge.

As stated by the judge in his reasons, the legal issue is whether any prohibition exists, statutory or otherwise, to prevent an executor from receiving, apart from his executor’s fee, an additional salary from a succession business where the services required for conducting that business are above and beyond the normal executor’s responsibilities. We have been cited and have found no Louisiana authority prohibiting this additional remuneration.

Although it is true that Dr. Rubin did not obtain court authorization under LSA-C.C.P., Art. 3224 to continue the business of the decedent’s corporation, it is apparent he acted in “the best interest of the succession” and with actual or constructive knowledge of Anne True Meyer and all parties concerned. Under the circumstances, we find no error in the trial court’s refusal to reimburse the estate as sought by the opponent-heir. Likewise, because there is no showing that Dr. Rubin violated his fiduciary duty under LSA-C.C.P. Art. 3191 or misapplied succession or corporate funds, we find no abuse of the trial court’s discretion in denying penalties under LSA-C.C.P. Art. 3222.

Finally, we deny Dr. Rubin’s request for damages raised in his answer to the appeal. No demand, in reconvention or otherwise, was made for this claim in the trial court, and we cannot now consider it. See Bell v. Dewitt, 27 So.2d 433 (La.App. 1st Cir. 1946), rehearing refused, 27 So.2d. 924 (La.App. 1st Cir. 1946).

Accordingly, finding no error, we affirm the judgment of the trial court.

AFFIRMED.

      . Mrs. Meyer claims the trial judge erred: when he permitted the attorney for the widow of decedent to testify although he had participated in the trial and was present during the entire proceedings in violation of the sequestration order rendered by the judge; when he quashed the subpoena duces tecum for the production of bank records of personal loans of the executor; when he denied the instanta subpoena for the tax return of the executor; when he denied the right to offer into evidence the certified copy of the U.S. District Court record of the indictment and sentencing of the executor; and, when he refused to permit the opponent-heirs counsel to be made counsel of record for the Hibernia National Bank, the named trustee for the succession.

      . Joseph L. Barbe, Jr. an associate with A.A. Harmon and Company, the accounting firm used by the corporation prior to and subsequent to decedent’s death testified that the corporate assets constituted 89.77% of the $1,629,409.55 succession inventory.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Neoma G. PENSE v. WINN-DIXIE LOUISIANA, INC.
    No. 5-126.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    William Bassett, Jr., River Ridge, for Winn-Dixie Louisiana, Inc. defendant-appellant.
    Robert J. Stamps, New Orleans, for Neo-ma G. Pense plaintiff-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

A plaintiff sues her employer seeking Workmen’s Compensation benefits due to a work-related accident which occurred on August 11, 1979. The trial judge awarded the plaintiff Workmen’s Compensation benefits from the day of the accident until August 15, 1980. The defendant appeals arguing that the plaintiff is only entitled to receive benefits until March of 1980. We affirm.

Mrs. Neoma Pense incurred an injury to her lower back lifting a turkey while working for Winn-Dixie Louisiana, Inc. She filed suit contending that the pain in her lower back had slowly moved up her spine causing other complications and that as a result of her condition she was totally and permanently disabled. The trial judge heard all the evidence and stated in his reasons for judgment that her upper back condition was not in any way related to the accident in question. Accordingly, she was not entitled to receive compensation benefits after her lower back pain subsided. Nevertheless, the trial judge awarded her compensation benefits through August 15, 1980, despite hearing testimony which specified that her lower back pain had dissipated in March of 1980. This apparent contradiction in action and thought creates a situation which appellant believes justifies our reversal.

Our consideration of the record leads us to conclude that the plaintiff did indeed have some residual lower back pain and we cannot say with any degree of certainty that she is not entitled to receive the total amount of compensation awarded. Dr. Frank Guidry testified that the complications which manifested in the upper back area could have possibly been caused by her already weakened condition. In addition, he testified that his records showed her suffering from back pain from the time of the injury until his last examination on January 15,1981. Mrs. Pense testified that the accident caused her a great deal of pain in the lower back and that within a few months the pain began to slowly move up her back. She testified that the pain felt like a tight knot which eventually manifested itself directly under her right shoulder blade sometime in January of 1980.

In his reasons for judgment, the trial judge determined that the lower back sprain from the accident was superimposed on an already imperfect back and that during 1980, she did have muscle spasms which moved up her back. From the record, this judgment appears to be justified and we do not find that the credibility decisions made by the trial judge are manifestly erroneous.

Accordingly, we affirm the lower court judgment awarding Workmen’s Compensation benefits to be paid to Mrs. Neoma Pense by Winn-Dixie Louisiana, Inc., until August 15, 1980.

AFFIRMED.


text:
    Thomas POWELL, Sr. v. JOHNS-MANVILLE SALES CORPORATION, et al.
    No. 5-148.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      M. H. Gertler, New Orleans, for Thomas Powell, Sr. plaintiff-appellee cross-appellant.
    Thomas M. Nosewicz and Donna G. Klein of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Johns-Manville Sales Corp. a/k/a Johns-Manville Products Corp. defendant-appellant cross-appellee.
    Before BOUTALL, CHEHÁRDY and KLIEBERT, JJ.
   BOUTALL, Judge.

In this Workmen’s Compensation suit judgment was rendered in favor of the employee decreeing him partially disabled and awarding benefits. The employer appealed and the employee also appealed.

Thomas Powell, Sr., was an employee of the defendant, Johns-Manville Sales Corporation for thirty-nine years doing various jobs involving labor. About April 10, 1980, he was examined and found to be suffering from asbestosis. At this time he was working as a forklift operator, and was experiencing shortness of breath, tiredness and pain in his joints. By June 3, 1980, he determined that he could no longer work, and made demand against his employer for Workmen’s Compensation benefits. A trial resulted in a finding that Powell had contracted asbestosis and he was decreed partially disabled within the intendment of L.R.S. 23:1221(3) and entitled to benefits not beyond the maximum of 450 weeks. The judgment also granted attorney’s fees of $3,500.00, but did not grant the twelve percent penalty provided in L.R.S. 23:1201.-2.

The employer took a suspensive appeal from this judgment, but after the record was lodged in this court, it abandoned that portion of the appeal relating to the disability benefits and paid those benefits up to date at the time of abandonment. Thus, the only issue posed by defendant’s appeal is the award of attorney’s fees. The trial judge in his reasons for judgment concluded that the evidence did not support a finding that the employer withheld benefits and medical expenses arbitrarily, capriciously and without probable cause, referring to L.R.S. 23:1201.2 and the case of Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App. 1st Cir. 1975). The judge then concluded that plaintiff was not entitled to a penalty but then further concluded that an award of $3,500.00 for attorney’s fees should be made. We point out that both the twelve percent penalty and attorney’s fees come within the provisions of L.R.S. 23:1201.2 and result from the same cause. Either plaintiff is entitled to both or he is entitled to neither.

We have examined the record to determine the correctness of the judge’s finding that the employer did not withhold benefits arbitrarily, capriciously and without probable cause and we conclude that this finding is correct. There is a direct dispute in the medical evidence relating to this man’s condition and his ability to perform work and we agree with the trial judge’s conclusions. Accordingly, the award of attorney’s fees must be vacated and set aside.

Plaintiff contends that even though he may not be entitled to the penalties based on initial refusal to pay, that nevertheless he is now entitled to the penalties because the defendant abandoned its appeal on the issue of disability, arguing that we should extend the principles in Chivoletto v. Johns-Manville Corporation, 330 So.2d 295 (La., 1976) to this case. We point out that the procedural sequence upon which that case was decided is entirely different than the procedural sequence upon which this case comes before us. In that case there was no timely application for writs to review the judgment of the Court of Appeal and accordingly it became final thus establishing plaintiff’s rights to a legal certainty. Withholding payment of compensation thereafter became arbitrary and capricious entitling plaintiff to the penalties prescribed.

In the instant case the defendant timely took a suspensive appeal, and later during that appeal decided to abandon the issue of disability. At the same time that it made the decision of abandonment, it paid all of the benefits to date. Had the defendant-appellant made its decision to abandon, yet not pay the benefits thereafter, then it would seem the principles of Chivoletto would apply. However, in this case, the appellant has complied with the requirements of Chivoletto by immediate payment and that case is not applicable. We point out that the defendant is granted a right to a suspensive appeal, and is entitled to exercise that right. If we should penalize him for abandoning a portion of that right and paying the judgment, we would effectively prevent any appellant from ever settling his appeal, while at the same time requiring that we examine into the motive of every litigant who may appeal. The legislature has granted him an absolute right to a suspensive appeal, and this court should not attempt to limit that right.

The plaintiff has also filed an appeal in this case contending that he is entitled to a judgment decreeing permanent total disability under the provisions of L.R.S. 23:1221(2).

There is no issue raised in this case as to whether or not plaintiff has asbestosis. This is not ohly established by the facts of the case, but is now conceded by the defendant. The issue is narrowed to the extent of the disability of plaintiff. Powell had complained of shortness of breath and pains in his joints for some time and had been treated by his family physician. In April of 1980, he was referred to Dr. Morton Brown whose examinations revealed that Powell was suffering from asbestosis, due to having ingested large amounts of asbestos fiber during his long work period with Johns-Manville. Dr. Brown admitted Powell to West Jefferson Hospital in May for a series of tests, and based upon the results of those tests concluded that he was going to consider him not disabled and he should continue working, remarking that further evaluation as to Powell’s ability to work would be made on an out-patient basis. Powell returned to work as a forklift operator for several weeks, and in July, 1980, felt that he could no longer continue to work. Using the clinical approach, Dr. Brown then concluded that Powell was unable to work as a forklift operator and could not work as a general laborer involving walking, lifting and climbing. We further note that in his explanation as to why he quit work, plaintiff complained not only of his shortness of breath and tiredness but also complained of pain in his joints and particularly his arms when he attempted to turn the wheel of the forklift. Dr. Brown’s opinion was that Powell was suffering also from rheumatoid arthritis resulting from his exposure to asbestos fibers and the asbestosis condition, along with silicosis resulting from exposure to silica and dust.

In opposition to this evidence, the defendant presented as a witness Dr. Hans Weill, who also examined plaintiff in relation to his symptoms. Although Dr. Weill agreed with Dr. Brown that plaintiff was suffering from asbestosis, he concluded that the extent of disability was not nearly as great as Dr. Brown had stated, and that Powell could work, although he had some limitations. The doctor compared in detail his findings on the various tests with the findings on tests previously administered at West Jefferson Hospital, as well as x-rays taken by other doctors. He concluded that Powell’s impairment of physical function was minimal and that he had a capacity which was considered at the low level of normal. Dr. Weill further stated that although some medical experts consider that there may be a relationship between asbestosis or exposure to asbestos fibers and development of rheumatoid arthritis, that in his opinion there was no association between them. He found no evidence of silicosis occurring in Powell.

It is apparent in his reasons for judgment that the trial judge gave long and serious consideration to the evidence presented by both doctors as well as the other evidence and testimony relating to Powell’s condition. After discussing the medical evidence, he found that the evidence amply supported diagnosis of asbestosis, however, the evidence was lacking to convince him that Powell was also suffering from silicosis. Although the judge made no finding as to the condition of arthritis and its relationship to the asbestosis, we conclude that the evidence is similarly lacking to show a correlation of work related problems to that condition.

Based upon all of the evidence the judge concluded that plaintiff was partially disabled because he cannot perform the duties of a laborer, which position he held with defendant for thirty-nine years. We find no error in this conclusion. It is apparent from the testimony of Dr. Weill that there are some limitations upon this man and the best he can. do is function at the low level of normal. Such a condition imposed upon a laborer convinces us that the trial judge is correct in finding that this man is unable to perform those arduous duties within the provisions of the Workmen’s Compensation laws. At the same time, we are equally convinced that this man is able to perform less arduous tasks and is not totally disabled.

We are concerned that this man’s condition may worsen in the future, because the nature of the disease of asbestosis is defined as a slow gradual development over a period of years which normally worsens with time. We have considered that a workman such as Powell may be considered disabled within the “odd lot” doctrine as stated in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), however, the evidence of disability of this man is not such as to require us to apply that principle here. The evidence of the extent of his disability at this time is not that great so as to lead us to believe that he cannot perform work of some reasonable character within' his abilities. His situation is similar to that considered in Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, (La.1982). Accordingly, we agree with the conclusions of the trial judge.

There remains only one other matter. The judgment rendered, although specifying that the partial disability is as provided in LRS 23:1221(3) simply computed the benefits at $128.00 per week so long as plaintiff’s disability continues not beyond a maximum of 450 weeks. The benefits under that section are modified by wages that may be later actually earned. In order to clarify the decree we amend it to add that the benefits shall be paid in accordance with LRS 23:1221(3).

For the reasons assigned, that portion of the judgment in favor of Thomas Powell, Sr., awarding attorney’s fees in the amount of $3,500.00 is reversed and set aside. That portion of the judgment awarding the weekly benefits is amended to add at the end: “The benefits shall be paid in accordance with LRS 23:1221(3).” As thus amended, the remainder of the judgment is affirmed. Costs in both courts to be paid by Johns-Manville Sales Corporation a/k/a Johns-Manville Products Corporation.

REVERSED IN PART, AFFIRMED IN PART.


text:
    Rodney Stephen MORGAN v. June Valley, wife of Rodney Stephen MORGAN.
    No. 12313.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Harry R. Cabral, Jr., Metairie, for Rodney S. Morgan, plaintiff-appellee.
    George H. Jones, New Orleans, for June Valley Morgan, defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

ON ISSUE OF MOOTNESS OF APPEAL

June Valley Morgan appealed a judgment dismissing her separation suit. After the appeal was argued on January 6, 1982, the court was apprised of the fact that a judgment of divorce was signed on January 8, 1982 decreeing a divorce in favor of Rodney Stephen Morgan and finding June Valley Morgan “not to be free of fault and therefore, not entitled to permanent alimony... ” We then requested briefs from the parties on the question of mootness of the appeal in this separation suit.

Generally, a decree of divorce between the parties renders moot an appeal concerning a judgment of separation. See Randle v. Randle, 239 La. 646, 119 So.2d 495 (1960) and cases cited therein. However in this case a suspensive appeal has been taken from the judgment of divorce. Accordingly that judgment is not yet final and it does not become effective or executory while the appeal is pending. Eiermann v. Modenbach, 198 La. 1062, 5 So.2d 335 (1941); Smith v. Smith, 378 So.2d 509 (La.App. 4th Cir. 1979). Until that judgment becomes final, the issues on this separation appeal remain justiciable, and we proceed to a consideration of them.

ON THE MERITS

A husband brought suit for a separation on the grounds of cruel treatment and the wife reconvened on the grounds of cruel treatment and abandonment. At trial, the husband stipulated as to his fault and attempted to show mutual fault on behalf of his wife. Both actions were dismissed by the trial court for lack of the proper evidence necessary to carry his or her burden of proof. The wife appeals that decision claiming that she had proven all the elements required to entitle her to receive a separation on the ground of her husband’s abandonment. We agree and reverse that part of the judgment appealed.

Rodney Morgan filed a petition on January 30, 1980, seeking a separation on the grounds of cruel treatment alleging that his wife had been living in a separate bedroom for the last three years and that during that time period she had also refused to have marital relations with him. June Morgan reconvened alleging cruel treatment and abandonment by her husband on January 31, 1980, without just cause. In addition, she alleged that he had refused to return to the matrimonial domicile after repeated requests for him to return.

At the outset of trial, the husband stipulated to his fault and he attempted to show that he was entitled to a separation based on mutual fault. He bases the fault of his wife on his testimony that she voluntarily moved out of his bedroom and refused to have marital relations with him. He also testified that one of the main reasons for their difficulties was due to his wife’s animosity towards his sister. He complained that this resentment became so intense that she refused to allow his family to even visit the matrimonial domicile. The wife responded that she did not refuse him marital relations but that he was impotent. She also testified, and her husband conceded, that he left the matrimonial domicile against her wishes. In addition, she testified that she asked him to return home at a deposition on August 6, 1980, and again on the day of trial. When asked if he would be willing to resume the marital relationship, the husband testified that he would be opposed to such a condition.

In view of the stipulation by the husband concerning his fault as well as the facts contained in the record, we believe the trial judge erred in dismissing June Morgan’s demand. To rule otherwise would disregard the effect of a stipulation. In this instance, the stipulation obviously influenced the way she attempted to prove Her right to a separation. Nevertheless she introduced sufficient evidence in accordance with LSA C.C. Article 145 to prove a separation based upon abandonment as provided in C.C. Article 143:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.”

The necessary elements of abandonment were proven by stipulation to fault on the husband, and his admission of leaving the matrimonial domicile against the wife’s wishes, her testimony that she requested that her husband return home on several occasions and the testimony of both concerning his refusal. Accordingly the wife was entitled to a decree granting a separation on the ground of abandonment.

For the reasons assigned, we reverse that portion of the judgment appealed which dismissed June Morgan’s reconventional demand and grant judgment in her favor decreeing a separation based on her husband’s abandonment.

REVERSED.


author: SCHOTT, Judge.

text:
    RESERVE FLEETING AND HARBOR SERVICE, INC. v. T. M. BEADLE, T. M. Beadle & Co., Inc.
    No. 12436.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    William L. Von Hoene, New Orleans, for plaintiff-appellant.
    Hugh D, Aldige, Metairie, for defendant-appellee.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   SCHOTT, Judge.

This is a suit by plaintiff, Reserve Fleeting and Harbor Service, Inc., against defendants, T. M. Beadle and T. M. Beadle & Co., Inc., real estate brokers for an accounting of $15,000 advanced to them for obtaining options and leases for plaintiff. Also made defendant was Aetna Casualty & Surety Co., as surety on the bonds furnished by defendants pursuant to LSA-R.S. 37:1447 as written before Act 514 of 1978. The trial court awarded plaintiff $15,000 subject to a credit of $7,399.89. Defendants, Beadle and his company, appealed but have filed no brief in this court. Aetna has not appealed. Plaintiff has appealed seeking an increase in the judgment to the full $15,000 claimed and to have judgment against Aetna in the amount of $5,000. The issues are essentially factual, that is, whether the testimony and documentary evidence support the trial court's allowance of the credit in favor of defendants.

This rather confused record shows that around the beginning of 1976 one Leroy Buras was operating a company called East-West Towing Company and employed T. M. Beadle, a real estate broker, to obtain leases on the Mississippi River batture property in a designated area of St. John the Baptist Parish to be used in a barge fleeting operation. On February 26, 1976, East-West issued its check to Beadle for $5,000 as an advance of funds to be used by Beadle in the procurement of the options and leases. This check was returned by the bank as NSF but on March 3 Buras delivered a cashier’s check to Beadle for the $5,000. Between February 28 and May 13, 1976, Beadle did obtain a number of. options and leases in behalf of East-West Towing Company.

While the project was progressing in the name of East-West William Von Hoene became involved by applying for the permit for the operation from the Corps of Engineers on January 9, 1976. However, the application was in the name of Reserve Fleeting and Harbor Service, Inc., a corporation which he later formed on April 2. In any event, Von Hoene, an attorney, issued two additional checks for $5,000 each to Beadle on May 3 and May 13, 1976, and he apparently bought Buras’ interest in the project on May 7 for the account of Reserve Fleeting.

Plaintiff sought to prove that it got nothing in return for the $15,000 it had advanced to Beadle. In pleadings and argument plaintiff alleged that Beadle never delivered any of the leases and options he had supposedly obtained in plaintiff’s behalf until the suit was filed despite repeated demands on Beadle for an accounting. In support of its position plaintiff offered the deposition of Leroy Buras who testified that he had given the initial $5,000 to Beadle for the purpose of securing options and leases, he was subsequently advised by Beadle that he had obtained some, but in spite of numerous attempts to see the documents at Beadle’s office he was never allowed to do so. His testimony was contradicted by Beadle.

Beadle’s version of the facts are as follows: He had never heard of plaintiff but at all times understood that Buras was acting in behalf of East-West Towing. He accepted the employment and the first $5,000 from Buras and had obtained a number of options and leases for East-West. He produced at the trial three signed options and six leases signed by the lessors only, along with canceled checks to the various lessors and optionors for $5,164.80. He contacted Buras right after the leases and options were obtained and was instructed by Buras simply to hold onto the documents in his office and to continue with his efforts. When he received the checks from Von Hoene he assumed that Von Hoene was East-West’s attorney but still had no knowledge of plaintiff’s involvement in the case. The arrangement made with Buras was that he would be paid commissions for and reimbursed for all expenses he incurred in obtaining the leases and options. He employed one Jerry Roberson to assist him with the project and incurred some of expenses for Roberson’s salary and an automobile leased for his use.

Beadle produced only two signed options at the trial of the case, one from Malcolm McDonaldson and the other from Landmark Land Company. In connection with these he produced his canceled checks of $53 to McDonaldson and $578 to Landmark. Although he produced no written lease in favor of Elmer Lapeyrolerie he did produce a canceled check for $85 for the option on that individual’s property. The trial judge allowed Beadle a credit for $5,164.80 which included the $716 spent by Beadle on the options. The remaining $4,448.80 credit allowed Beadle was based on Beadle’s canceled checks issued to lessors appearing in six lease forms produced by Beadle.

These lease forms are for bilateral contracts requiring the signature of a lessee. For some reason not explained in the record, Beadle apparently paid the full first year’s rent to each one of these prospective lessors without having any of the agreements signed by the lessees, although the lease form called for the lessee’s signature. Furthermore, the final paragraph in each lease (which Beadle stated he insisted on being included in the leases) provided for a commission payable to Beadle “at the signing of this lease.” Nevertheless the trial judge gave Beadle full credit for all of the sums expended in securing both options and leases. In doing so he apparently accepted Beadle’s testimony as true and rejected the testimony of Buras. He likewise resolved in favor of Beadle the conflict in testimony over Beadle’s right to be reimbursed for his expenses. For our purposes on appeal we accept this credibility call and accept the testimony of Beadle as true. However, for other reasons we do not reach the same ultimate conclusion as did the trial judge.

With respect to the credit of Beadle for the sum paid to the prospective lessors, it seems clear that Beadle is not entitled to such credit. Common sense dictates that Beadle was supposed to secure options and only if the necessary options were obtained in order to make the project work would leases be signed with the optionors. In effect, plaintiff, or its predecessor East-West, wanted to reserve the right to see if sufficient options were obtained before signing any lease. Thus, the lease agreements called for execution by lessees and Beadle exceeded his authority when he made rental payments before the leases were signed by plaintiff or East-West. On the other hand, taking Beadle’s testimony as true it seems clear that defendants were entitled to be reimbursed for the $716 he spent in securing the options. As to the expenses, the trial judge awarded defendants a credit of $2,235.09 which was 90% of the amount defendants claimed on the basis of Beadle’s testimony that 90% of Roberson's time was spent on plaintiff’s project. While Roberson, in deposition, testified that he spent only 50% of his time on the project the trial judge resolved that conflict in favor of Beadle, and the resolution of such conflicts will not be disturbed on appeal. Thus, we have concluded that the defendants are entitled to a total credit of only $2,951.09.

Plaintiff also seeks a judgment against Aetna Casualty & Surety Company in solido with the Beadle defendants for $5,000. Aetna had issued two separate surety bonds, one to the Beadle Company and the other to Beadle personally for $5,000 each. On March 20, 1979, plaintiff obtained a default judgment against Aetna that in the event there be judgment rendered against Beadle personally there would be judgment against Aetna for the $5,000 on the personal bond. Aetna subsequently paid off the $5,000 on this bond. Since plaintiff has now obtained judgment against the Beadle Company and since we will amend that judgment to an amount in excess of $5,000 plaintiff is entitled to a judgment against Aetna on the bond written for the Beadle Company.

Accordingly, the judgment appealed from is amended and is recast to read as follows: There is judgment in favor of plaintiff Reserve Fleeting & Harbor Service, Inc. and against defendants T. M. Beadle, T. M. Beadle & Co., and Aetna Casualty & Surety Company jointly and in solido for $5,000 with interest from date of judicial demand until paid. Further, there is judgment in favor of plaintiff and against T. M. Beadle and T. M. Beadle & Co., jointly and in solido for an additional $2,048.91, with interest from date of judicial demand until paid. All costs are assessed against the three defendants.

AMENDED, AFFIRMED AND RECAST.

      . Insurance Company of North America was erroneously named as the surety in plaintiffs original petition but was released from the suit.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Henry A. LEROY, III v. DEPARTMENT OF WELFARE.
    No. 12556.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Salvador Anzelmo, City Atty., Charles J. Willoughby, Asst. City Atty., New Orleans, for Dept, of Welfare.
    Frank Pola, Jr., Staff Atty., New Orleans Legal Assistance Corp., New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

This is an appeal by the Department of Welfare of the City of New Orleans from a decision of the Civil Service Commission of the City of New Orleans reinstating Henry A. Leroy III to his civil service position from which he had been discharged by his appointing authority.

Leroy was employed as an institutional house parent at the Milne Boys’ Home in New Orleans. He was dismissed for striking a resident of the Home. In the letter of dismissal from the Department Leroy was advised that he was being discharged because of the seriousness of the alleged incident and also because of previous incidents of being under the influence of liquor on three occasions, using physical discipline on inmates on two occasions and refusing to work overtime on two occasions. The evidence was taken by a hearing examiner and the Commission concluded that the appointing authority failed to carry its burden of proof as to the incident for which Leroy was dismissed.

The Commission’s disposition of Leroy’s appeal was governed by Art. 10, § 8(A) of the Louisiana Constitution which provides in part: “The burden of proof on appeal, as to the facts, shall be on the appointing authority.” Under Art. 10, § 12, of the Constitution, the Commission’s action is subject to review on Law and fact. Thus, we have reviewed the record to determine whether the Department has, as it contends, carried its burden of proof to support the dismissal of Leroy from the classified civil service.

Tyronne Carter testified that he was in the television room of the Home to which he was assigned along with a number of other boys when someone called Leroy “brown teeth” whereupon Leroy struck Carter in the chest. There was always a good bit of horse play between Leroy and the boys but Carter denied that this was the setting at this time. However, he did not think that Leroy hit him in anger.

On the other hand, Leroy testified that he simply tapped Carter on the chest after the other boys were laughing and playing and someone called him “brown teeth” and that it was done in the spirit of fun and not with any anger or in a disciplinary context. His testimony was corroborated by Tyronne Baptist, another boy in the group, who gave the following impression of the atmosphere at the time of the alleged incident:

“Everybody — all of the staff and residents clown with each other. They usually tell them something and hit them behind their back or something. And turn around and usually catch them doing something, and hit them; just hit them in the seat. Walk up and hit them; surprise them or something, playing with them.”

While Carter described the blow as hard enough to knock the wind out of him, Leroy and Baptist described it as a light tap on the chest which caused Carter no apparent difficulty.

We have concluded that the Commission did not err in concluding that the Department failed to carry its constitutionally imposed burden of proof, and accordingly the decision of the Commission is affirmed.

AFFIRMED.

REDMANN, J., concurs with assigned reasons.

REDMANN, Judge,

concurring.

Because there was, to Leroy’s knowledge, a rule against striking the boys in custody, and because Leroy struck Carter (albeit lightly) not in the course of some continuing horseplay but in response to being called “brown teeth Leroy” by another boy, the appointing authority’s Director Jeff did not act wholly arbitrarily in concluding to dismiss him. The problem of distinguishing between permissible touching as necessary or in play, on the one hand, and impermissible corporal discipline, on the other, is surely a difficult one, and it is difficult to fault Director Jeff. On the other hand, it is at least equally difficult to fault the Civil Service Commission, which has the constitutional obligation of review and which heard all of the witnesses. The commission’s conclusion that the appointing authority did not carry its burden of proving that this striking was corporal punishment in violation of the rules is supported by this record notwithstanding that a different factual conclusion might also have been reached.


text:
    Marilyn BEAL v. LOMAS AND NETTLETON CO., United American Life Insurance Co., American Bankers Life Assurance Co., Fortune Manino, Pierre Villemarette, Bill Marettie.
    No. 12561.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      A. Patrick Dehon, Jr., Brian D. Zeringer, New Orleans, for plaintiff-appellee.
    George J. Richaud, Young, McMahon & Levert, New Orleans, for defendants-appel-lees (Lomas and Nettleton Co. and American Bankers Life Assurance Co. of Florida).
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   SCHOTT, Judge.

This is a suit by plaintiff, Marilyn Beal, against defendants, Lomas and Nettleton Company (hereinafter Lomas) and American Bankers Life Assurance Company of Florida (hereinafter American), for death benefits arising out of the accidental death of plaintiff’s husband, Howard Beal, Sr. Lomas carried the mortgage on a home purchased by the Beals in 1970. In 1972 the Beals purchased a policy of accidental death insurance on Mr. Beal through Lomas from United American Life Insurance Company. In 1973 this policy was cancelled and the Beals were notified by Lomas that coverage had been secured with American. However, the coverage provided by American did not include accidental death but only disability protection. Beal was killed in an accident in December, 1974, and after plaintiff filed her claim with American she was advised that there was no coverage. She alleged in her petition that she and her husband had been intentionally misled as to the extent of coverage under American’s policy. The trial court awarded her a judgment for $19,840 against Lomas and American who have taken this appeal. The issue is whether the facts support the judgment against these defendants on the theory of negligent misrepresentation.

In September, 1973, Lomas sent a copy of the following letter to its customers, including the Beals:

[SEAL]
The Lomas & Nettleton Company
2001 Bryan Tower
P. O. Box 5644
Dallas, Texas 75222
Telephone 214 748-0511
Dear Homeowner:
The United American Life Insurance Company has decided to discontinue writing the type of accident and health insurance as of October 1, 1973, afforded you by the policy in your possession.
Therefore, in order to provide you with uninterrupted coverage, we have made arrangements to continue this type of coverage with American Bankers Life Assurance Company of Florida.
The enclosed policy, effective as of October 1, 1973, has been issued at the same premium. you are now paying monthly and provides you with monthly disability income to make your monthly mortgage payments during periods that you may be unable to work as a result of sickness or accident for as long as five years (one year for those age 50 and over) after you have been disabled for more than 30 days. The United American Life Insurance Company, the present carrier on your policy until October 1,1973, will continue to pay all benefits now pending in the same manner as heretofore and will be responsible for any claims which may develop prior to October 1, 1973, the time the enclosed policy issued by American Bankers becomes effective.
If you have any questions relative to the enclosed new policy or are in need of any information, please contact our nearest regional office by telephone, 214/748-0511, or send your mail inquiries to American Bankers Life Assurance Company, 600 Brickell Avenue, Miami, Florida 33131.
Very truly yours,
/s/ P. Warren Smith
P. Warren Smith Vice President

Attached to the letter was an insurance policy providing for monthly indemnity in the event of Beal's disability but no accidental death benefits.

Plaintiff testified that she and her husband interpreted this letter to mean that they were getting from American the same coverage, including accidental death benefits, as had been provided under the United American policy. She stated that they were originally motivated to purchase this policy from United American because Beal was accident prone and had lived with the conviction that he would die not from natural causes but from accidental causes.

Defendants produced an official from Lo-mas who testified that in April, 1974, Lo-mas had sent a copy of the following letter to its customers, including the Beals:

Dear Customer:
Accidental death benefits are not included in your new Accident and Health Policy which became effective October 1, 1973 and is underwritten by American Bankers Life Assurance Company of Florida. Many borrowers have requested that we offer to them this form of protection with the premium included in their monthly mortgage payment.
Accordingly, we have made arrangements to offer Accidental Death and Dismemberment, underwritten by American Bankers Life Assurance Company of Florida, which will pay $10,000 in the event of Accidental Death to those enrolled who are under age fifty and $5,000 to those between the ages of fifty and sixty-five, at a cost of $1.50 per month. This premium will be included in your monthly mortgage payment.
If you are interested in the purchase of this coverage which is offered to you on a voluntary basis, complete the application, return it to us in the self-addressed envelope, enclosed for your convenience, and a policy will be forwarded to you with the premium included in the first monthly mortgage payment after you have been accepted.
If you are NOT interested in the purchase of this coverage, disregard this letter. We plan to hold open the opportunity. to enroll at this time for a period of only sixty days.
Sincerely,
/s/ P. Warren Smith
P. Warren Smith Vice President
PWS:jk Enclosures
P.S. If you desire to double the benefits at a monthly cost of $3.00, please indicate your desire for double coverage on the application.

However, this official admitted he had not mailed the letter himself and could not testify that such a letter was properly addressed and mailed to the Beals. He also testified that Lomas got no commissions on the sale of this insurance but did collect the premiums and receive some compensation from American for handling funds. He also admitted that it was beneficial to Lo-mas for accidental death policies to be written in that such policies would provide Lo-mas with some additional security for the mortgage loans.

Lomas first argues that the letter of September, 1973, was not misleading and relies on the third paragraph of the letter to support that argument. The trial judge found, and we agree, that a reasonable person reading the first two paragraphs of the letter would be led to believe that the coverage offered by American was identical to that offered by United, and that the third paragraph was simply descriptive of some minor change with respect to the disability provisions of the policy. Lomas argues further that the Beals breached their own duty to read the American policy which was attached to this letter. However, once the Beals were misled into believing that the coverage was the same, they were under no duty to read the attachment. The ultimate determination by the trial judge was a factual one, namely, that the Beals were misled and that the letter was misleading to a reasonable person. His findings in this connection will not be disturbed on this appeal.

The next argument by Lomas is that the Beals received the letter of April, 1974, offering accidental death benefits. Mrs. Beal denied that they received this letter and in the absence of a testimony that the letter was properly addressed and mailed no presumption of receipt by the Beals applies. DiRosa v. Bosworth, 225 So.2d 42 (La.App. 4th Cir. 1969).

Louisiana recognizes a cause of action for negligent misrepresentation based on LSA C.C. Art. 2315; Devore v. Hobart Manufacturing Company, 367 So.2d 836 (La.1979). In order for the doctrine to apply there must be a legal duty on the part of the defendant to supply correct information, there must be a breach of that duty, and the breach must have caused damage to plaintiff. In this case, special relationship between Mrs. Beal and Lomas arose when Lomas first put United American in touch with the Beals and continued during the period when Lomas was collecting the premiums on the United policy. When it undertook to substitute American’s policy for United’s with the substantial change of deletion of accidental death benefits it had a duty to convey that information correctly to the Beals. It breached this duty by sending a letter to the Beals which was in fact misleading with respect to the new coverage. Plaintiff’s testimony, which was accepted as true by the trial judge, was that they were primarily interested in accidental death benefits and relied to their detriment on Lomas’ representation that such benefits were included in the new policy. We have concluded that plaintiff carried her burden to prove facts which support recovery against Lomas for negligent misrepresentation.

On the other hand, there are no facts which support the judgment against American. The letter of September, 1973, was written by Lomas and its only connection with American was by reference in the letter and a copy of the certificate of insurance issued by American. We know of no theory of law which would make American liable because Lomas misrepresented to plaintiff and her husband the contents of American’s policy.

Accordingly, the judgment in favor of plaintiff, Marilyn Beal and against Lomas and Nettleton Company, is affirmed, but the judgment in favor of plaintiff against defendant, American Bankers Life Assurance Company, is reversed and set aside, and there is judgment in favor of American, dismissing plaintiff’s suit against it at her cost.

AFFIRMED IN PART REVERSED IN PART AND RENDERED.


author: GARRISON, Judge.

text:
    Steve HANDY and L. C. Lee v. Manzy CHEATUM, State Farm Mutual Automobile Insurance Company and the City of New Orleans.
    No. 12179.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Suzanne M. Jones, Asst. City Atty., George R. Sim-no, III, Deputy City Atty., New Orleans, for defendants-appellants.
    D. Douglas Howard, Jr., New Orleans, for plai ntif f s-appellees.
    Lobman & Carnahan, Edward P. Lobman and David V. Batt, Metairie, for defendants-appellees.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing the action of Leonard Carr, a New Orleans Police Department officer, against various parties and granting damages to Steve Handy in the amount of $9,573.40 against State Farm, Manzy Cheatum and the City of New Orleans, as well as granting damages to L. C. Lee in the amount of $9,674.83 against State Farm, Manzy Cheatum and the City. From that judgment, Leonard Carr appeals.

On appeal Carr argues (1) that the trial judge was manifestly erroneous in his factual determination, and (2) that he was not concurrently negligent in causing the accident. The court below provided the following written reasons for judgment:

“This Court does not believe the testimony of the Police Officers that they were traveling 20 m. p. h., therefore, the Court finds that Officer Carr and the City of New Orleans are concurrently negligent with Mr. Cheatum in causing the accident.
“The Court finds that Mr. Lee and Mr. Handy were both in their parked car at the time of the accident and no negligence has been shown on their part.
“The Court has pro-rated the $10,000.00 deposited by State Farm Mutual Automobile Insurance Company among the three claimants entitled to recover.
“There has been no plea of contributory negligence as to Officer Stukes.”

The record reflects that on August 30, 1977, N.O.P.D. Officers Leonard Carr and Romallis Stukes were on duty in a marked car when they received a call to proceed to the St. Bernard Project. A 1971 Pontiac, owned and driven by L. C. Lee, was parked in front of a seafood market. Steve Handy was a passenger in the parked car. Manzy Cheatum was driving a black Buick and was proceeding in an easterly direction on Broad Street, the same direction as the police car.

The police testified that Cheatum’s vehicle pulled directly into the path of the “lights flashing, siren sounding” police car and that Leonard Carr slammed on the brakes in order to avoid hitting the Chea-tum vehicle. The police car then skidded into the parked Lee vehicle.

The parties in the Lee vehicle testified that the Cheatum car had already been in the flow of traffic and had passed their car somewhat before the approach of the police vehicle; the police car then skidded into their vehicle. It was drizzling rain at the time of the accident.

At this point the testimony becomes widely divergent. The police testified that they were traveling at 20 to 35 miles per hour with lights and siren to answer a “shootout” call. L. C. Lee testified that the police car was traveling at an excessive rate of speed, 60 to 65 miles per hour. David Belfield, the only witness not a party, testified that he could not estimate the speed of the police vehicle, but he did not think it was over the speed limit. Some witnesses testified that L. C. Lee was not in his vehicle at the time of the accident, but rather was in the seafood market. Lee and Handy testified that they were both in the parked vehicle. The trial judge specifically stated in his reasons for judgment that he did not believe the testimony of the police and that he found that both Lee and Handy were in the parked car at the time of the accident.

Great weight is to be given to the credibility determinations of the trier of fact who has the opportunity to observe the demeanor of the witnesses. Accordingly, the standard of review to be applied by this court is whether the trier of fact was manifestly erroneous in his factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We cannot conclude that the trial judge is manifestly erroneous in his factual determinations.

The last argument presented by the City refers to the Municipal Code of the City of New Orleans, § 38-240, relative to parking. The City argues, for the first time on appeal, that the Lee vehicle was illegally parked under the statute. There is no evidence that Lee was cited for such a violation and this argument was not made below. Accordingly, this argument is improperly before the court and will not be addressed.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Steve HANDY, L. C. Lee, Leonard Carr and Romallis Stukes.
    No. 12180.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Suzanne M. Jones, Asst. City Atty., George R. Sim-no, III, Deputy City Atty., New Orleans, for defendants-appellants.
    D. Douglas Howard, Jr., New Orleans, for plaintiffs-appellees.
    Lobman & Carnahan, Edward P. Lobman and David V. Batt, Metairie, for defendants-appellees.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 12179, Handy v. Cheatum, 410 So.2d 322 (La.App.1982) the judgment of the district court is affirmed.

AFFIRMED.


text:
    Romallis STUKES v. Manzy CHEATUM and State Farm Insurance Company.
    No. 12181.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Suzanne M. Jones, Asst. City Atty., George R. Sim-no, III, Deputy City Atty., New Orleans, for defendants-appellants.
    D. Douglas Howard, Jr., New Orleans, for plaintiffs-appellees.
    Lobman & Carnahan, Edward P. Lobman and David V. Batt, Metairie, for defendants-appellees.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 12179, Handy v. Cheatum, 410 So.2d 322 (La.App.1982) the judgment of the district court is affirmed.

AFFIRMED.


text:
    Leonard CARR v. L. C. LEE, Manzy Cheatum and State Farm Automobile Insurance Company.
    No. 12182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Suzanne M. Jones, Asst. City Atty., George R. Sim-no, III, Deputy City Atty., New Orleans, for defendants-appellants.
    D. Douglas Howard, Jr., New Orleans, for plaintiffs-appellees.
    Lobman & Carnahan, Edward P. Lobman and David V. Batt, Metairie, for defendants-appellees.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 12179, Handy v. Cheatum, 410 So.2d 322 (La.App.1982) the judgment of the district court is affirmed.

AFFIRMED.


text:
    CITY OF NEW ORLEANS v. Manzy CHEATUM.
    No. 12183.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Suzanne M. Jones, Asst. City Atty., George R. Sim-no, III, Deputy City Atty., New Orleans, for defendants-appellants.
    D. Douglas Howard, Jr., New Orleans, for plaintiffs-appellees.
    Lobman & Carnahan, Edward P. Lobman and David V. Batt, Metairie, for defendants-appellees.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 12179, Handy v. Cheatum, 410 So.2d 322 (La.App.1982) the judgment of the district court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Shirley Pena RODRIGUEZ, wife of/and Ignacio Rodriguez v. BROWN & ROOT, INC.
    No. 5-139.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Nick F. Noriea, Jr., Eldon E. Fallon, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Darryl J. Foster, New Orleans, for defendant-appellee.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiffs, Shirley Pena Rodriguez, wife of/and Ignacio Rodriguez, appeal a district court decision in favor of defendant, Brown & Root, Inc., and against the plaintiffs, maintaining the exception of no cause or right of action filed by the defendant and dismissing the plaintiffs’ suit at their cost.

It is uncontested that on September 10, 1980, plaintiffs’ deceased son was employed by the defendant and was performing work within the course and scope of his employment as an iron worker’s helper when an iron beam struck the decedent, causing his death. The plaintiffs further admit that they were not dependent on their son for their support. Plaintiffs argue on appeal, however, that the provisions of LSA-R.S. 23:1231 should be applied retroactively allowing them each workmen’s compensation benefits of $20,000.

Prior to its amendment in 1980, LSA-R.S. 23:1231 provided:

“For injury causing death within two years after the accident there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided, for a period of four hundred weeks. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

By Acts 1980, No. 509, § 1, the following paragraph was added by amendment to that statute, effective September 12, 1980:

“However, if the employee leaves no legal dependents, the sum of twenty thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.”

This court said in Green v. Liberty Mut. Ins. Co., 352 So.2d 366, 368 (La.App. 4th Cir. 1977):

“As a general rule, laws are deemed to be prospective in effect unless their language clearly indicates otherwise. C.C. art. 8; R.S. 1:2; Churchill Farms, Inc. v. Louisiana Tax Com., 338 So.2d 963 (La.App. 4th Cir. 1976); Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3d Cir. 1974); 1 Planiol Treatise on the Civil Law (La.St.L.Inst. transí. 1959) §§ 254 and 255 at page 181. Exceptions to this principle are laws which are (1) interpretative (Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975); (2) remedial or curative (Fullilove v. U. S. Casualty Company of New York, 129 So.2d 816 (La.App. 2d Cir. 1961); and (3) procedural.”

In addressing itself to this issue in relation to LSA-C.C. art. 2315 and its 1961 amendment allowing major children the right to recover damages for the wrongful death of their mother and the right to maintain a survival action, even though the husband survives, the court said in Manuel v. Carolina Casualty Insurance Company, 136 So.2d 275 (La.App.3d Cir. 1961), at 278-279:

“In our opinion, Act 30 of 1960 creates, defines and regulates rights. We think counsel for plaintiff is in error in interpreting it as a statute merely prescribing the method of enforcing rights which previously existed, or of maintaining redress for their invasion. Prior to the date on which Act 30 of 1960 became effective, a major child had no right to recover damages for the wrongful death of his mother, or for the damage which his deceased mother may have recovered had she lived, if the decedent left a surviving husband. This act, however, creates a new obligation in favor of the major child where no such obligation existed before, and at the same time it reduces or limits the rights formerly provided for the surviving spouse.”
The court also continued at 279-280:
“Plaintiff contends, alternatively and in the event that it is determined that Article 30 of 1960 makes a change in the substantive law of this State, that the statute is remedial legislation, and that it accordingly should be applied retroactively. A ‘remedial statute’ is defined in Black’s Law Dictionary, Fourth Edition, as:
‘One that intends to afford a private remedy to a person injured by the wrongful act. That is designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good. * * *
‘A statute giving a party a mode of remedy for a wrong, where he had none, or a different one, before, * * *’
Also, in Paulsen v. Reinecke, supra [181 La. 917, 160 So. 629, 630], the Supreme Court said: ‘A remedial statute is one which confers a remedy and a remedy “is the means employed to enforce a right or redress an injury.” ’
“We find the following statement of law relating to ‘Remedial Statutes’ in 82 C.J.S. Statutes § 416:
‘While the general rule that statutes are construed as prospective only applies to remedial statutes, remedial or procedural statutes which do not create, enlarge, diminish, or destroy vested or contractual rights but relate only to remedies or modes of procedure are generally held to operate retrospectively and to apply to pending actions or proceedings, unless such operation or application would adversely affect substantive rights’ (Emphasis added.)
“In 50 American Jurisprudence, Statutes, Sec. 15, the following language is used:
‘Sec. 15. Statutes Regarded as Remedial. — Legislation which has been regarded as remedial in its nature includes statutes which abridge superfluities of former laws, remedying defects therein, or mischiefs thereof implying an intention to reform or extend existing rights, and having for their purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society or of the public generally. Another common use of the term “remedial statute” is to distinguish it from a statute conferring a substantive right, and to apply it to acts relating to the remedy, to rules of practice or courses of procedure, or to the means employed to enforce a right or redress an injury. It applies to a statute giving a party a remedy where he had none or a different one before. A statute which gives a remedy for an injury against the person by whom it is committed to the person injured, and limits the recovery to the amount of loss sustained, or to cumulative damages as compensation for the injury sustained, falls within the class of remedial statutes. Sometimes, the statute itself declares its remedial nature.’ (Emphasis added.)
“Counsel for plaintiff concedes that the term ‘remedial’ is sometimes used interchangeably with the word ‘remedy,’ referring to procedure. It is argued, however, that this term is also used to refer to the ‘reform’ or ‘correction’ of undesirable legislation. In either case, he argues, remedial legislation is to be applied retrospectively unless the contrary appears.
“It seems to us that the term ‘remedial statute’ has been applied (1) to a law relating to procedure, that is a law which relates solely to the remedy which may be employed to enforce or to protect a right which already exists; or (2) to a statute which makes a change in the substantive law of the State, but which is designed to correct an inadvertent error made in some prior statute or to change a law which has been found to be undesirable in some respect. If the statute is remedial in the sense that it makes only a procedural change in the law, then we think such a statute generally should be given retroactive effect unless the legislature has indicated by appropriate language that it should not be applied retroactively. If the statute, on the other hand, makes a change in the substantive law of the State whether such change is designed to correct errors in provisions of prior laws or simply to amend the law for the public good, then we think such a statute should be construed to operate prospectively only, unless the words employed show a clear intention that the statute should have a retroactive effect. McGuirt v. Gillespie, 141 La. 586, 75 So. 419; Dehan v. Hotel and Restaurant Employees, etc., La.App. 2 Cir., 159 So. 637; Paulsen v. Reinecke, supra; Oil Well Supply Co. v. Red Iron Drilling Co., 210 La. 222, 26 So.2d 726; General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417; Rossville Commercial Alcohol Corp. v. Dennis Sheen Transfer Co., Inc., Orl., 18 La.App. 725, 138 So. 183 (Cert. denied).
“In this case we have already determined that Act 30 of 1960 makes a change in the substantive law, that it is not remedial legislation in the sense that it relates only to procedure, and accordingly we conclude that it cannot be given retroactive effect unless the Legislature has specifically indicated that it should be given that effect.”

We cannot agree with appellant’s contention that the amendment to LSA-R.S. 23:1231 does not “create” a new cause of action but that it simply provides a different means by which parents can recover death benefits under the act, and is, therefore, remedial or procedural. Prior to the date on which the amendment to LSA-R.S. 23:1231 became effective, a non-dependent parent did not have a right to receive workmen’s compensation benefits in the event of the death of his or her child. This amendment creates a new cause of action, therefore, where none existed before. It is, accordingly, substantive and cannot be applied retroactively.

For the reasons assigned, the trial court decision is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    In the Matter of Robert A. ANDRAS and his spouse Patricia Fenerty Andras.
    No. 12486.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert C. Lowe, New Orleans, for plaintiff in rule (wife) appellant-appel-lee.
    Powers, Nass & Associates, Rhett M. Powers and Theodore W. Nass, New Orleans, for defendant in rule (husband) appellant-appellee.
    Before BARRY, KLEES and LOBRANO, JJ.
   BARRY, Judge.

This appeal involves separate judgments rendered during the course of domestic litigation. Robert and Patricia Andras filed a joint petition for separation and the judgment awarded custody of their children to Mrs. Andras and ordered Mr. Andras to pay child support of $2,500.00 per month. The judgment was subsequently amended on August 3, 1979 to provide child support of $400.00 per month for each of the five minor children and alimony pendente lite of $400.00 per month. On October 6, 1979 one of the minor children, Jaye, began living with her father.

On December 28,1979 Mrs. Andras filed a rule for past due alimony and child support alleging her husband made unauthorized deductions from his payments. The matter was tried on January 29 and February 4, 1980 and a judgment signed on June 3,1980 which dismissed the motion because: “The court is of the opinion from the evidence produced that child support and alimony are current through January, 1980.” Mrs. An-dras appeals the trial court judgment which, in effect, sanctioned the deductions from her court-ordered support payments.

On April 21, 1980 Mrs. Andras filed another rule claiming the April 17, 1980 support payment was not made. On May 6, 1980 Mr. Andras was held in contempt for an arrearage of $700.00 and the Trial Judge awarded attorney’s fees of $350.00 to Mrs. Andras. Mr. Andras appeals only the award of attorney fees claiming the amount was set without evidence to determine the value of the legal services or if any legal fee was actually charged.

Concerning Mrs. Andras’ appeal, she argues that the alimony and child support payments were not current because her husband made deductions without her consent. She claims he should have paid $14,-400.00 from August 1, 1979 through January, 1980 representing $2,400.00 per month, but only $10,185.70 was paid.

Part of the claimed balance is $1,600.00 representing the four months when Jaye moved in with Mr. Andras after which he suspended paying $400.00 per month child support. It is well settled that a non-custodial parent may not unilaterally reduce or eliminate child support and a judgment remains in effect until the court modifies or discharges the obligation. However, in Dubtoc v. Dubroc, 388 So.2d 377 (La.1980) the court stated:

“The Civil Code nowhere mandates a lawsuit for a change in alimony, and the Code of Civil Procedure merely provides for the proper procedure in seeking ar-rearages ...”.
“There is no prohibition, however, expressed by the law against a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance .. . ”.
“For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child ... [I]f the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.” Id. pp. 379, 380 (Emphasis in Original)

The test, then, is to determine if the parties “clearly agreed” to the suspension of child support payments.

Mrs. Andras contends Dubroc is not applicable because there was no clear agreement and mere acquiescence by her does not establish necessary consent. Mr. Andras was emphatic in testifying that his wife not only consented to Jaye living with him but also agreed to a suspension of the $400.00 per month contingent upon his payment of the child’s tuition which was in arrears in an amount that exceeded the support due. The Trial Judge concluded that the parents did agree Jaye would live with her father and it was the parents’ understanding that the support payments would terminate.

The record reflects that from August, 1979 to January, 1980 Mr. Andras deducted other amounts from his payments as follows:

Car note. Mr. Andras testified that his wife received a Corvette and Camaro in their property settlement. The $329.26 monthly car note for August, September and October was apparently deducted from his paycheck because the loan was from his credit union and he had no control over the automatic payroll deduction. Mrs. Andras did not contradict that the payments were made on her behalf.
Life insurance. A premium of $56.10 was deducted each month for an insurance policy on Mr. Andras’ life. The mortgagee of Mrs. Andras’ home (which she acquired in the property settlement) required the policy as security. Mr. Andras owned the policy but the homestead would not release this collateral. Mr. An-dras testified that his wife verbally authorized him to make this deduction and that any proceeds from the insurance would go to Mrs. Andras.
Bank debit of $164.33. Mr. Andras testified his wife had a bank loan which she assumed in the community settlement. The bank deducted from his account the amount she owed, but a later adjustment by the bank only credited back one-half to his account, the effect being that he paid $164.33 of his wife’s debt. Mrs. An-dras confirmed that the payment was on her loan which was delinquent. This item is not included in Mrs. Andras’ brief. Utility bills. Bills for electricity and water were incurred by Mrs. Andras but paid by Mr. Andras because the accounts were still in his name and mailed to his address. The utility company disconnected Mr. Andras’ service when his wife’s bill became delinquent and he had no alternative but to pay these amounts on behalf of his wife.

Mrs. Andras argues that alimony and child support must be paid directly to her and Mr. Andras cannot satisfy his legal obligation by making payments to others on her behalf. Thompson v. Courville, 372 So.2d 579 (La.App. 3d Cir. 1979). She urges that her husband’s only remedy is to have the judgment amended through the courts in order to preserve the integrity of the judgment. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). She contends Dubroc, supra, does not apply to child support since there was no clear agreement between her and Mr. Andras permitting the various deductions. She concludes that the trial judge misconstrued the law on this point because the reasons for judgment do not state there was an agreement, and in the absence of an agreement the lower court judgment was contrary to law.

Mr. Andras counters there was a clear agreement to elimination of the $400.00 monthly support payment when Jaye moved in with him and that Mrs. Andras consented to his paying the various other deductions which were her obligations.

The judgment provides payments for each of the five children plus alimony pendente lite and an agreement to suspend the mother’s right to receive child support while the father maintains the child in his home is enforceable. Dubroc, supra. The relinquishing parent, Mrs. Andras, does not question her husband’s ability or desire to take good care of the child and there is no question before us concerning the best interest of the child. Our courts have consistently said that the wife may, through agreement with her former husband, make arrangements for payment of alimony or child support in a way other than direct payments to her and may waive rights under a previous alimony judgment. Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2nd Cir. 1978); Henson v. Henson, 350 So.2d 979 (La.App. 2nd Cir. 1977); Caraway v. Caraway, 321 So.2d 405 (La.App. 2nd Cir.), writ ref. 323 So.2d 479 (La.1975).

The Trial Judge found, and we agree, that Mrs. Andras consented to her minor child’s living with Mr. Andras and agreed to a suspension of the $400.00 child support payments; further, we are satisfied that payments made by Mr. Andras to other parties on behalf of his wife were made with her knowledge (she certainly knew she didn’t have to make the payments) and consent and enured to her benefit.

Mr. Andras complains because the trial court awarded Mrs. Andras attorney fees without evidence. Attorney fees, other than those provided by contract, may only be awarded when authorized by statute. Attorney fees are authorized in suits to accrue past due alimony by LSA-R.S. 9:305:

“When the court renders judgment in an action to make past due alimony or child support executory, except for good cause, the court shall award attorney fees and court costs to the prevailing party.”

The attorney fees resulted when Mr. Andras was found in contempt of court for failure to make timely support payments. A court does not have to hear evidence concerning time spent or hourly rates charged in order to make an award since the record will reflect much of the services rendered. The attorney may present additional evidence but he is not required to do so. Jones v. Bryant, 283 So.2d 307 (La.App. 4th Cir. 1973); Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1st Cir. 1979). The trial court is in the best position to assess a reasonable fee. Mouton v. Mouton, 383 So.2d 447 (La.App. 4th Cir. 1980). We find no error in the $350.00 legal fee awarded to Mrs. Andras which amount should bear legal interest from the date of the lower court judgment.

For the foregoing reasons the judgment of the District Court is amended to provide legal interest on the $350.00 attorney fee from the date of the lower court judgment and in all other respects is affirmed. Costs of appeal are assessed equally to the litigants.

AMENDED IN PART AND AS AMENDED AFFIRMED.

      . The June 3, 1980 judgment incorrectly states the hearing was held on May 6, 1980.

      . These payments by Mr. Andras resulted from property and obligations assumed and transferred in the community property partition on April 16, 1979.

      . Mrs. Andras claimed $381.21 was deducted. Mr. Andras testified $376.24 was for electricity and $47.25 for water.

      . Approximately $3,900.00 was deducted and paid to third parties. The amounts claimed by testimony are different from the amounts in the briefs. Mr. Andras admits $12,800.00 due for the six month period (eliminating $400.00 per month child support for four months), claims $11,185.70 was paid directly to his wife, and $2,239.69 paid to others on behalf of his wife.

      .A consent judgment reducing child support by $400.00 was signed February 25, 1980.

      . Bruner v. Bruner, 373 So.2d 971 (La.App. 2nd Cir. 1979).


text:
    William H. DOWTY, Walter Nunes, Henry J. Knoll, Jr. and Steven Kahn v. BLUE CROSS OF LA., d/b/a Louisiana Health Service & Indemnity Company.
    No. 12499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Writ Denied April 15, 1982.
    Robert J. Caluda, New Orleans, for plaintiffs-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Howard E. Sinor, Jr. and David G. Radlauer, New Orleans, for defendant-appellant.
    Before BARRY, KLEES and LOBRANO, JJ.
   BARRY, Judge.

Defendant appeals a judgment requiring it to pay insurance commissions after the plaintiff agents left employment. The only issue is whether there was an agreement between the parties to pay commissions after termination of employment.

The four plaintiffs were employed as non-group sales agents for the defendant insurance company. Their compensation included enrollment fees on specified policies, the first month’s premium on certain riders or endorsements, and a 5% commission on premiums for as long as the policy remained on the company’s books for a maximum of 24 months. The latter, known as “renewal commissions”, formed a substantial portion of the agents’ pay and was used as an inducement by the company in hiring agents. The commissions were paid every six months after a minimum of fifty policies were sold during that “bonus” period. Effective January 1,1979, the bonus period was changed to four months and the minimum policy sales reduced to thirty.

Two of the four plaintiffs, Kahn and Nunes, voluntarily ended their employment in February, 1979 and filed suit alleging breach of contract when their renewal commissions were not paid. The other two plaintiffs, Dowty and Knoll, were fired in June, 1979 after they refused to sign an inter-staff memo issued to “All Nongroup Agents” which contained the following clause:

“7. In the event a Nongroup agent terminates his association with Blue Cross of Louisiana or is terminated from Blue Cross of Louisiana prior to the 4-month cut-off date, he will not be eligible to receive the renewal commissions for that 4-month period or any future renewal commissions.”

In Written Reasons the court stated that prior to the memo there was no specified agreement for payment of commissions after employment. The Trial Judge held that the defendant’s memo attempted to “change” the procedure for renewal commissions, i.e. the reverse of the new procedure was in effect prior to the change (i.e. payments would have been due even if the employee was terminated). The court concluded plaintiffs earned a commission upon sale of a policy and that after their employment ended, prior to the memo or because of their refusal to sign it, their commissions should be paid during the two year period.

Defendant argues two criteria must be met in order to earn a commission and asserts neither was: (1) employment on the day the commission is payable; (2) sale of the requisite number of policies during the bonus period. Defendant maintains the trial court erred because plaintiffs failed to prove the contract terms which were allegedly breached and the trial court’s reliance on LSA-C.C. Art. 1965 was error because it should be read in conjunction with Art. 1964 .

Defendant contends plaintiffs did not meet the Art. 1964 requirement because no evidence was produced showing they “supposed” equity would supply their contract on this point. To the contrary, defendant asserts, the evidence revealed that Blue Cross had a policy that compensation ended upon termination of employment and it never intended equity would create a contract with plaintiffs. Defendant urges Art. 1965 is inapplicable since there is no missing element in plaintiffs’ contract with Blue Cross and it is not necessary to include in an employment contract a provision that compensation stops when employment ends.

Plaintiffs state the evidence shows when they were hired they were told commissions would be paid up to 24 months and payment was not qualified or limited. They assert terms of their employment were clear and unambiguous and never qualified until the memo. Plaintiffs urge that if their oral contract was ambiguous it should be construed in their favor and against the party “from whom the words proceed.” Kuhn v. Stan A. Plauche Real Estate Co., 249 La. 85, 185 So.2d 210 (1966); Housing Authority v. Fidelity & Deposit Co. of Md., Inc., 309 So.2d 920 (La.App. 3d Cir. 1975). They argue the law is also settled that this rule applies where the obligor has failed to explain the limit of his obligation. Wurzlow v. Placid Oil Company, 279 So.2d 749 (La.App. 1st Cir.) writ refused 282 So.2d 140 (La.1973); LSA-C.C. Art. 1956, 1957, 1958.

Plaintiffs point to the testimony of defendant’s manager, Mr. Smith, who hired three of the four plaintiffs, who testified it was his understanding that plaintiffs would receive commissions for two years. Mr. Smith stated commissions were not to cease upon termination of employment and no one (until the memo) told either of the plaintiffs they would be ineligible for commissions if they left the company. Plaintiffs contend in the absence of an express agreement and until the memo, defendant clearly implied its promise to pay the commissions.

Whether defendant’s memo altered its employment obligation is a question of fact and the Trial Judge’s determination should not be disturbed absent manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). Defendant’s argument that all agents had to sign the memo because new agents were being hired (and it was necessary for them to understand the policy) is without merit. If this were true only new agents would have been required to sign and those with the company for three years (Knoll and Dowty) would not have been fired for refusing to sign.

We agree with the trial court’s conclusion that the defendant’s memo styled “Change of Procedure” did, in fact, make a change, and the reverse procedure was in effect prior to the memo. We find there was an implied agreement between the parties whereby commissions were earned and payable after the minimum number of policies were sold during the specified period and employment thereafter was not a prerequisite for payment of the commissions.

The judgment of the District Court is affirmed with defendant to pay all costs of appeal.

AFFIRMED.

      . The plaintiffs also sought recovery of overpaid social security taxes because they were characterized as self-employed. The lower court dismissed this claim because the taxes were paid voluntarily and a refund could be sought. No appeal was taken.

      . LSA-C.C. Art. 1964. “Incidents supplied by law, equity or usage. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”

      . LSA-C.C. Art. 1761. “Contract, definition. A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.