author: CUTRER, Judge.

text:
    Kenneth L. KNOTTS et ux., Plaintiffs-Appellants, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 8004.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writs Refused May 6, 1981.

      Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.
    Provosty, Sadler & DeLaunay, Ronald J. Fiorenza, Alexandria, for defendant-appel-lee.
    William J. Doran, Jr., Baton Rouge, for defendant-appellee-appellant.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a suit arising from a one-car accident in which Kirsten Lynn Knotts, eleven year old daughter of Mr. and Mrs. Kenneth L. Knotts, Sr., was killed. Kirsten was a passenger in the vehicle being driven by her brother, Kenneth Knotts, Jr., a minor. The accident occurred on Louisiana Highway 153, which had been undergoing reconstruction by J. W. McDonald as contractor for the State of Louisiana Department of Highways (now Department of Transportation and Development). This highway is in Natchitoches Parish. There was a drop-off of approximately four inches from the road surface to the shoulder. The accident occurred when young Knotts allowed the right wheels of his vehicle to drop off the road surface onto the shoulder and lost control of the car when he attempted to re-enter the highway, causing the accident and death of Kirsten.

Mr. and Mrs. Kenneth Knotts, Sr., brought suit against the State of Louisiana through the Department of Transportation and Development (Department), J. W. McDonald (McDonald), the contractor engaged in the reconstruction of the highway, and Allstate Insurance Company (Allstate), insurer of the vehicle. The Department filed a third party demand against Kenneth L. Knotts, Sr., seeking contribution toward any amount that may be awarded to Mrs. Knotts against the Department. McDonald filed a third party demand against Knotts, Sr., and Knotts, Jr., along with Allstate, the liability insurer of the automobile, seeking contribution for any judgment that may be rendered against McDonald.

The trial court found that McDonald and the Department were negligent, which negligence caused the accident. The court found Kenneth Knotts, Jr., free of negligence. Judgment was rendered against the Department and McDonald and in favor of Mr. and Mrs. Knotts for general damages in the amount of $75,000.00 each. Mr. Knotts was also awarded $1,000.00 property damage for the loss of the car and $2,435.00 for funeral expenses. The third party demands were dismissed.

The Department and McDonald appeal and plaintiffs appeal insofar as the judgment rejects its demands against Allstate.

The issues presented by the assignments of error are as follow:

(1) Whether the Department should be held liable;
(2) Whether McDonald should be held liable;
(3) Whether Kenneth Knotts, Jr., was negligent and, if so, whether such negligence was a cause in fact of the accident; and
(4) Whether the awards of $75,000.00 to each of the parents, for general damages, was excessive.

The undisputed facts surrounding the occurrence of the accident are as follows:

Kenneth Knotts, Jr., and his eleven year old sister, Kirsten, were returning to their home from school in Natchitoches on the afternoon of May 22, 1978. They were traveling North along Highway 153 which is commonly known as the Creston-Ashland Highway. This highway had been undergoing reconstruction by the Department through McDonald as contractor. This highway is two lane, approximately twenty feet wide and has shoulders approximately three to four feet wide. The roadway was relatively straight and level. The reconstruction began in the Fall of 1977 and, at the time of the accident, the overlay had been completed but the shoulders had not been brought up to the grade of the traveling surface. At the time of the accident, a drop-off of four inches existed on each side of the road surface.

Knotts, Jr., with his eleven year old sister as passenger, allowed the car to drift too far to his right causing the right wheels to drop off the travel portion of the highway onto the shoulder. He subsequently attempted to re-enter the highway and, upon doing so, lost control of the car causing it to overturn, resulting in the death of his sister.

LIABILITY OF THE DEPARTMENT

The general duties of the Department toward the traveling public are set forth in the recent case of Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), where the Supreme Court held as follows:

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.
“Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.”

With these principles in mind, we will examine the facts surrounding the known four inch drop-off condition that existed at the time of the accident.

On July 15,1977, the Department entered into a contract with McDonald for the reconstruction and resurfacing of Highway 153 for a distance of approximately thirteen miles extending from Ashland South to Crestón, Louisiana.

According to Wayne Marchand, the project engineer for the Department, the work on the highway began in the fall of 1977. Marchand stated that the subsurface work was completed and an asphalt overlay, two and one-half inches thick, was laid for a distance of six and one-half miles South of Ashland. In March 1978, the two and one-half inch asphalt overlay was completed on the remainder of the project. A second layer of one and one-half inches of asphalt overlay was applied later. This layer was completed May 17, 1978, five days before the accident. Marchand stated that, at the site of the accident, the one and one-half inch layer was laid on May 11, 1978.

Marchand, as project engineer, was in constant contact with the work performed by McDonald. Marchand had inspectors who reported to him daily as the work progressed. Marchand stated that he visited the project approximately every other day. The Department had continuous knowledge of the shoulder condition presented when the asphalt overlay was applied.

The Department contends that it should be absolved from liability due to the fact that the last of the four inch overlay was not completed until May 17, 1978, five days before the accident and it would not be reasonable to require it to bring the shoulder up to grade at an earlier time.

Marchand stated that a contractor normally completes his overlay operation, then cleans and shapes the shoulders and does “his surface course operation.” He stated that in this case McDonald brought the shoulder up to grade level and finished the shoulder work along the thirteen miles in six days. This shoulder work was not done until after the accident.

The question arises as to whether the Department performed the duty to protect the public against the hazardous conditions under the facts presented.

A review of this record convinces this court that the trial judge was correct in finding the Department negligent under the circumstances presented. The two and one-half inch overlay, which had created a two and one-half inch drop-off, had been installed on the north half of the project, which would include the site of the accident, in the late fall of 1977. This was approximately six months before the accident. The remainder of the two and one-half inch layer was completed by March 1978. The existence of this two and one-half inch drop-off presented a hazardous condition which was allowed to exist for approximately six months at the site of the accident. Such condition existed along the remainder of the route for approximately two and one-half months before the accident. This court has held that a drop-off of more than two inches created a dangerous condition. Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3rd Cir. 1979), writ den., 376 So.2d 1269 (La.1979). The fact that McDonald installed an additional one and one-half inch only increased the hazardous nature of an existing hazardous condition.

We recognize the necessity of construction work along our highways and that hazards will often necessarily exist during the course of construction. We are aware that the general duty of the Department to maintain the highways in a reasonably safe condition are relaxed somewhat in connection with construction activities. This duty, however, is relaxed according to the reasonable necessities of the circumstances. Hazardous conditions, created by construction work on a highway, must be remedied within a reasonable length of time. It is a breach of the Department’s duty to allow a hazardous condition to exist for an unreasonable length of time, particularly when it is within the capability of the Department to eliminate the hazard.

“What constitutes a reasonable time to complete construction and to eliminate construction defects depends upon the circumstances of each case and involves consideration of factors such as the extent of the project, emergencies, availability of materials and manpower, priorities of projects, safety and economic aspects of construction, the nature and degree of the hazard created, the ability to adequately warn, and other factors.”

Brandon v. State, Through Dept. of Highways, 367 So.2d 137, 143 (La.App. 2nd Cir. 1979), writs ref’d, 369 So.2d 141 (La.1979).

The record herein falls short of demonstrating that either economic or safety priorities made it impossible or unreasonable for the Department to require its contractor, McDonald, to bring the shoulders up to grade at an earlier time. Good construction practice is set forth in the Department’s maintenance manual. The manual provides that anytime shoulders are more than one inch below the road surface they should be brought up to grade.

For the Department to allow the existence of this hazardous condition for the long period of time discussed herein is unreasonable and constitutes negligence.

As to whether such negligence of the Department is a cause in fact of the accident is answered in the case of Sinitiere v. Lavergne, supra, where the Supreme Court held as follows:

“Negligence is only actionable where it is both a cause in fact of the injury and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character. Dixie Drive It Yourself System v. American Beverage Co.. 242 La. 471, 137 So.2d 298 (1962); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973). Using a ‘but-for’ test to determine cause in fact clearly results in a finding that the accident would not have resulted had the road shoulder been substantially even with the travel portion of the road....”

As we apply the “but-for” test to the circumstances herein, we conclude that the negligence of the Department was a cause in fact of the accident. Further, there is a substantial relationship between the failure to correct the highway defect and the automobile accident, the type of risk encountered by Knotts, Jr., and his sister.

LIABILITY OF McDONALD

The contractor, McDonald, in addition to making the same arguments as the Department concerning causation and the question of whether the project was in fact conducted in a negligent manner, argues that it should not be held to share responsibility with the Department. McDonald contends that its responsibility is to fulfill the contract requirements to the satisfaction of the Department. McDonald feels that he should incur no liability since he was following the usual, customary way of doing the work under the contract. This argument lacks merit in that the evidence revealed that the Department in no way mandated a time that the shoulders of the road should be brought up to grade. While the contract provided no specifics on this matter, Section 107.7 of the Standard Specifications for Roads and Bridges, made a part of the contract between the Department and McDonald, states:

“107.7. The contractor shall at all times conduct his work so as to assure the least possible obstruction to traffic.
“When the road under construction is to be kept open for the use of the traveling public, special attention shall be paid to keeping both the subgrade and newly laid surfacing reasonably free from dust and in such condition that the public can travel the road in safety. The safety and convenience of the general public and the residents alone: the highway and the protection of persons and property shall be a primary responsibility of the contractor.” (Emphasis added.)

The jurisprudence holds that anyone contracting with the Department to do road repair is obligated not to expose the traveling public to undue hazards. Hale v. Aetna Casualty & Surety Co., 273 So.2d 860 (La. App. 2nd Cir. 1973), writ den., 275 So.2d 867 (La.1973).

Thus McDonald owed a duty to the public beyond the literal fulfillment of the plans and specifications of its contract with the Department. The difference in elevation between the road and the shoulders was a hazardous condition. It was allowed to continue for an unreasonable length of time. McDonald could not rely on the Department to coerce a proper course of action in every phase of the project but must also bear responsibility for its negligent acts. The same reasoning on cause in fact and legal cause set forth in the discussion of the Department’s liability applies to McDonald.

The trial court correctly held McDonald liable.

NEGLIGENCE OF KENNETH KNOTTS, JR.

The trial court found Kenneth Knotts, Jr., was not negligent in the operation of the automobile, citing the case of Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979), on remand, 376 So.2d 525 (La.App. 3rd Cir. 1979). We conclude the trial court erred in this finding. The testimony of Knotts, Jr., reveals that he was fully aware of the dangerous condition of the shoulder. He had driven the road many times while the improvement project was in progress. He had driven it that morning. He admitted that he was aware that it would be dangerous to allow the car to leave the road surface.

The case of Sinitiere v. Lavergne, supra, discusses the significance of knowledge of the defect on the part of the driver. The Supreme Court states:

“In Rue, supra, this Court stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The reason for this statement was the jurisprudentially recognized rule that a motorist has a right to assume that highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect. This language does not establish the highway shoulder as a ‘zone of recovery’ for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability vis-a-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger. Thus, if a person is chargeable with knowledge of a shoulder defect that could cause serious injury and, nevertheless, disregards his own safety and the safety of others, the law considers his actions in leavinsr the main travel portions of the roadway to be a breach of his duty to himself and to the others who can reasonably be expected to be injured by his actions. Rodgers v. Department of Highways, 376 So.2d 1295 ([La.App.] 2nd Cir. 1979); Morrow v. Department of Highways. 377 So.2d 430 ([La.App.] 2nd Cir. 1979).” (Emphasis added.)

Applying these principles to the facts herein, we find that Knotts, Jr., was clearly negligent when he left the highway. Likewise, we conclude that he was negligent upon his re-entry onto the highway. Knotts, Jr., testified that he was traveling approximately 45 miles per hour when he left the hard surface. He stated that he traveled on the shoulder for some distance without slowing his car. He then attempted to re-enter the highway. He lost control as the right wheels came up over the four inch drop-off. The car went across the road and as it came back it overturned, causing the death of his sister.

There is nothing in the record to show that Knotts, Jr., could not have stayed on the shoulder until he had slowed his car enough that re-entry could have been made safely. Under these circumstances, the actions of Knotts, Jr., were negligent in his attempt to make a re-entry without slowing his vehicle.

Having found that Knotts, Jr., was negligent, this means that the portion of the judgment dismissing the suit against Allstate must be reversed. The plaintiffs would be entitled to judgment against Allstate in addition to judgment against the Department and McDonald.

ABILITY OF THE FATHER TO RECOVER, AND DISPOSITION OF THE THIRD PARTY DEMANDS

We have found that, not only was the Department and McDonald guilty of actionable negligence, but also, Knotts, Jr., was likewise guilty of such negligence.

This raises the question of whether the father, Kenneth Knotts, Sr., can recover for damages he suffered, that is, general damages for the loss of the child, automobile damages and funeral expenses.

A minor’s concurring causative negligence is not the equivalent of contributory negligence on the part of the father. Article 2318 of the Civil Code, which makes the father liable for damages caused by a minor son who resides with him, does not impute such negligence of the minor son to the father. This article merely attaches financial responsibility to the father for the del-icts of his minor child. Deshotel v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (La.1971); Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (La.1968). Thus the father, Knotts, Sr., is entitled to recover his damages from the Department and McDonald. Also, he can recover from Allstate, the liability insurer of the vehicle Knotts, Jr., was driving. The father, Knotts, Sr., and Allstate, however, could be held liable for contribution under the third party demands of the Department and McDonald. Scott v. Behrman, 273 So.2d 661 (La.App. 4th Cir. 1973).

As to the third party demands herein, McDonald joined, as third party defendants, Knotts, Sr., Knotts, Jr., and Allstate for contribution for any judgment that may be rendered against him. The Department, however, joined only Knotts, Sr., as third party defendant, seeking contribution for only that part of the judgment that would make an award to Mrs. Knotts. Judgment will be granted in favor of the third party plaintiffs accordingly.

EXCESSIVE GENERAL DAMAGES

The trial judge awarded $75,000.00 each to Mr. and Mrs. Knotts for the loss of their child. The Department and McDonald contend this is excessive.

The trial court, in its reasons for judgment, made the following comments as its reasons for awards:

“The testimony of Kenneth L. Knotts, Sr. and Bettye Cheatwood Knotts, father and mother of the child, and that of Mrs. Lois Penefield and Mrs. Reva Campbell convinced the Court that Kirsten was an unusually gifted, bright, intelligent and talented 11-year-old girl. It is clear from the testimony of these witnesses and from the results of the Stanford Achievement Test that Kirsten was a person of superior capabilities. She possessed the unique qualities of being blessed with the innocence of youth and she had not been hardened by exposure to the adult world and harsh realities of life; while, at the same time, her achievement test results indicated she had attained a school grade equivalent of 10.5 (The equivalent of someone half-way through the tenth grade.) She was her mother’s constant companion and a combination sister, tutor, teacher, nurse and loving sibling to her 3-year-old, afflicted brother.”

As we consider the principles enunciated in the case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), we find the awards herein to be somewhat generous but they are within the very broad discretion accorded trial court judges in fixing awards.

For the reasons set forth herein, that portion of the trial court judgment, dismissing plaintiff’s suit against Allstate Insurance Company, is reversed and Allstate Insurance Company shall be cast for judgment along with the Department and McDonald.

The portion of the trial court judgment dismissing the third party demands of McDonald and the Department is reversed and set aside.

As to the third party demand of McDonald, we hereby grant judgment in favor of McDonald and against third party defendants, Knotts, Sr., Knotts, Jr., and Allstate Insurance Company for contribution for the judgment rendered against McDonald. As to the third party demand of the Department, we hereby grant judgment in favor of the Department and against third party defendant, Knotts, Sr., for contribution for only that portion of the judgment rendered in favor of Mrs. Knotts and against the Department.

In all other respects the judgment of the trial court is affirmed.

The liability of Allstate Insurance Company, under the judgment rendered in the main demand, combined with the judgments rendered in the third party demands, shall not exceed its policy limits of $10,-000.00.

All costs of this appeal shall be paid one-third by the Department, one-third by J. W. McDonald and one-third by Allstate Insurance Company.

REVERSED IN PART; RE-CAST IN PART; AND AFFIRMED.

      . Knotts, Jr., reached majority after the accident and before trial.

      . The liability of Allstate shall not exceed its policy limits of $10,000.00.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Carolyn Ann Shockley LEWIS, Plaintiff-Appellee, v. Robert Lee LEWIS, Jr., Defendant-Appellant.
    No. 8020.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Downs & Downs, James C. Downs, Alexandria, for defendant-appellant.
    Glynn W. Reynolds, Alexandria, for plaintiff-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

This is an action by Carolyn Ann Shockley Lewis (Plaintiff) seeking to make execu-tory past due alimony pendente lite for herself and the support of the children of her marriage to Robert Lee Lewis, Jr. (Defendant).

The defendant brings this appeal from a judgment of the trial court in favor of plaintiff.

The issue is whether a valid judgment of divorce rendered by a Texas court has the same effect with regard to the termination of alimony pendente lite under Louisiana law as does a valid judgment of divorce rendered by a Louisiana court.

FACTS

The following is a chronological listing of the significant events in this action:

1) November 15, 1976 — Petition for separation filed by plaintiff in Rapides Parish, Louisiana.
2) December 14, 1976 — Judgment of separation in favor of plaintiff.
3) January 20, 1977 — Judgment on rule awarding plaintiff child support at $325.00 per month commencing January 1, 1977.
4) February, 1977 — Defendant travels to Texas, lives with brother-in-law, and looks for a job while still employed in Rapides Parish, La.
5) April, 1977 — Attempted reconciliation between the parties.
6) April 25, 1977 — Defendant moves to Texas, starts working there, and establishes a domicile.
7) July 7,1977 — Second petition for separation filed by plaintiff in Louisiana with accompanying rule for alimony and child support.
8) July 11, 1977 — Defendant served in Louisiana.
9) September 15, 1977 — Defendant files suit for divorce in Texas.
10) September 29, 1977 — Plaintiff served in Louisiana with defendant’s Texas divorce suit.
11) October 21,1977 — Judgment on Louisiana rule awarding plaintiff child custody, $375.00 per month child support and $100.00 per month pendente lite alimony effective September 15, 1977.
12) January 18, 1978 — Divorce judgment granted defendant ex parte in Texas requiring him to pay plaintiff $225.00 per month child support.
13) September 13,1979 — Petition filed by plaintiff to make past due alimony and child support executory plus raise child support to $600.00 per month. (By agreement of the parties, the issue of the increase in child support was not to be heard by the trial court at this time.)
14) October 8, 1979 — Plea of abatement filed by defendant.

Plaintiff and defendant were married in Melder, Louisiana, on November 7, 1964. There were three children born of this marriage: Chadwick Nathan Lewis; Tate Jerome Lewis and Rebecca Nanette Lewis, all presently minors.

Plaintiff obtained a judgment on October 21, 1977, on a rule she had previously filed in a separation proceeding which ordered the defendant to pay alimony pendente lite in the sum of $375.00 per month for support of the children, and $100.00 per month for plaintiff.

The defendant then obtained a judgment of divorce from a court of the State of Texas on January 18, 1978, which required him to pay $225.00 per month child support and made no mention of alimony for plaintiff. The defendant stopped paying the alimony pendente lite ordered by the Louisiana court and began paying the child support ordered by the Texas court.

The plaintiff filed a rule on September 13, 1979, to make the alleged past due alimony pendente lite executory. The defendant met plaintiff’s demand with a plea of abatement, and the trial court held hearings on the rule on February 4,1980, and February 12, 1980. The parties entered into a joint stipulation which was filed on June 6, 1980, in which they agreed that the alleged arrearages in alimony pendente lite for plaintiff and the support of the children totaled $6,750.00.

The trial court rendered judgment in favor of plaintiff on June 12, 1980, and ordered the back due alimony pendente lite made due and exigible. The defendant was granted a devolutive appeal from that judgment.

EFFECT OF TEXAS JUDGMENT OF DIVORCE

The trial court found that defendant-appellant had obtained a valid judgment of divorce in the State of Texas on June 18, 1978. Plaintiff-appellee has raised no issue regarding this finding on appeal, and we affirm.

Appellant argues that, as a matter of Louisiana procedural law, once a final divorce is obtained, be it by decree of a Louisiana court or a court of a sister state, the effect is the same. That is, any suit for separation between those two parties and all incidents of that suit are abated and rendered moot.

It is appellant’s contention that when he obtained the divorce decree from the Texas court, the effect was that the award of alimony pendente lite, being an incident of the suit for separation, was abated or terminated; therefore, appellee has no cause of action to seek arrearages for alimony pendente lite which she claims accrued after appellant had obtained a final judgment of divorce.

It is unnecessary to bring an action to terminate alimony pendente lite when a judgment of divorce has been rendered. It is terminated by operation of law. Our Supreme Court recognized this in Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), when it stated on page 1016 that:

“... alimony pendente lite is terminated by the signing of a final judgment of divorce when the divorce decree makes no mention of future alimony...”
See also Bruner v. Bruner, 373 So.2d 971 (La.App. 2 Cir. 1979); Davidson v. Jenkins, 216 So.2d 682 (La.App. 3 Cir. 1968); Worley v. Worley, 247 So.2d 254 (La.App. 3 Cir. 1971).

The same principle applies when dealing with child support awarded incidental to a separation or divorce proceeding. Our Supreme Court, in White v. Morris, 109 So.2d 87 (La.1959), stated on pages 88 and 89 that:

“It is well settled that a judgment requiring payment of alimony pendente lite is automatically terminated and of no further effect after the rendition of a final decree of divorce. Bowsky v. Silverman, 184 La. 977, 168 So. 121; Bienvenue v. Bienvenue, 186 La. 429, 172 So. 516; Eals v. Swan, 221 La. 329, 59 So.2d 409.
Although the dissolution of marriage does not dissolve the obligation of support for the children, yet this obligation must be judicially enforced and until that is done there can be no recovery of alimony. The alimony awarded during the penden-cy of a suit for divorce ceases upon the rendition of a final judgment of divorce. Bowsky v. Silverman, supra. In the Bow-sky case the alimony awarded pendente lite was not only for the support of the wife but for the support of a minor son.” See also Fellows v. Fellows, 267 So.2d 572 (La.App. 3 Cir. 1972); Tisby v. Tisby, 382 So.2d 1053 (La.App. 2 Cir. 1980); Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4 Cir. 1972).

It is clear that if appellant had obtained a valid judgment of divorce from a Louisiana court that his alimony pendente lite obligations would have terminated by operation of Louisiana law. We find that the result should be the same when a valid divorce decree is obtained by a party from the courts of a sister state.

Hampson v. Hampson, 271 So.2d 898 (La. App. 2 Cir. 1972) dealt with the effect of a valid Arkansas judgment of divorce on child support awarded as an incident to a Louisiana separation proceeding. There, on page 905, the Court stated that:

“The Arkansas divorce judgment rendered in May, 1968, had the effect of abating the Louisiana separation proceedings and all incidents thereto including the judgment for child support. Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir. 1967). Certainly the obligation of the father to support and maintain his children as prescribed by LSA-Civil Code Article 227 continued, but it was necessary for the mother with custody to bring a separate action to enforce the parental obligation of support for the children. Plaintiff was not entitled to an executory judgment for child support payments accruing after the effective date of the Arkansas divorce judgment.”
See also Adoption of Hakenjos, 343 So.2d 1201 (La.App. 4 Cir. 1977).

Appellee cites the case of Golson v. Golson, 341 So.2d 1229 (La.App. 1 Cir. 1976), reversed, 351 So.2d 100 (La.1977). The husband in that case had been ordered to pay his wife alimony in a judgment of separation which he had obtained. Subsequently, he moved to Tennessee, and there secured a judgment of divorce. The decree was silent as to alimony pendente lite or any other type of maintenance or support obligation on the part of the husband. The husband failed to pay alimony pendente lite after the divorce judgment was rendered and the wife sued to collect the arrearage.

The Louisiana First Circuit Court of Appeal found the divorce to be valid and ruled in favor of the wife. However, the Louisiana Supreme Court in Golson v. Golson, supra, reversed and found the Tennessee divorce obtained by defendant’s husband to be invalid under Tennessee law. Therefore, the court did not reach the issue of the effect of a valid foreign divorce on alimony pendente lite awarded by a Louisiana court. As such, Golson is of no comfort to plaintiff-appellee in the case sub judice.

Appellee argues that to allow a Texas court to modify or terminate an award of alimony pendente lite under the circumstances of this case is to allow the Texas court to exercise in personam jurisdiction over her. The trial court expressed the same concerns in its reasons for judgment. We find these concerns to be based on a misunderstanding of the exact circumstances present here.

Appellee cites Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572 (1948); and Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957) in support of her argument. We find these cases to be inapposite to the situation herein as in each of those cases the law of the state of domicile of the party seeking action provided for that type of action. Here, Louisiana law expressly provides that an award of alimony pendente lite automatically terminates upon the rendition of a final judgment of divorce.

For the above and foregoing reasons, the judgment of the trial court ordering appellant to pay to appellee certain amounts as back due alimony pendente lite for appellee and for the children, which amounts accrued after the marriage was dissolved, is reversed, vacated and set aside.

All costs of this appeal and in the trial court are assessed against plaintiff-appel-lee.

REVERSED.


author: GUIDRY, Judge.

text:
    TOLEDO BEND PROPRIETORS, Plaintiff-Appellee, v. SABINE RIVER AUTHORITY OF the STATE OF LOUISIANA, and the Joint Operating Board, Toledo Bend Project, Defendants-Appellants.
    No. 8024.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writ Refused May 18, 1981.

      William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Sam Nelken, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is an injunction suit instituted by several persons, who operate commercial establishments on the shores of the Toledo Bend Dam Reservoir, to enjoin defendants, Sabine River Authority, State of Louisiana, and the Joint Operating Board, Toledo Bend Project (hereafter sometimes collectively referred to as Sabine River Authority), from discharging, or causing to be discharged, from Toledo Bend Dam and Reservoir, either through the hydroelectric power plant gates or the spillway floodgates, any amount of water which would at anytime lower the reservoir level to less than the “normal pool stage”, designated as the contour of 172 feet above mean sea level, except when withdrawals are absolutely necessary to maintain the absolute minimum required downstream flow at the ruliff gauge for which defendants may be obligated.

We previously denied writs in this matter, our docket numbers 6883 and 7219, declining to review interlocutory judgments of the trial court which overruled exceptions of jurisdiction, no cause of action and nonjoinder of indispensable parties.

Following rendition of the interlocutory judgments and our refusal of writs the defendants filed answer and by third party demand sought the joinder as third party defendants of the following named entities:

A) The Sabine River Authority of Texas
B) The Texas Department of Water Resources
C) The United States Corps of Engineers
D) Gulf States Utilities Company
E) Central Louisiana Electric Company
F) Louisiana Power and Light Company
G) E. I. Dupont and Company
H) Allied Chemical Corporation
I) Owens-Illinois, Inc.
J) Gulf Oil Corporation
K) Georgetown Texas Steel Corporation
L) The City of Huxley, Texas
M) The City of Hemphill, Texas
N) Sabine Investment Company of Texas
O) Toledo Beach Water Company
P) Cities Service Oil Company
Q) Firestone Synthetic Rubber & Latex Company
R) Olin Corporation
S) PPG Industries, Inc.
T) The City of Logansport, Louisiana
U) The City of Mansfield, Louisiana
V) The City of Many, Louisiana
W) Chase Manhattan Bank

under allegation that such parties “have a community of interest with the parties to this suit in that each of them has vital interests which will be affected in the event plaintiffs are successful in obtaining injunc-tive relief... ”.

Subsequently, plaintiffs filed a motion for a rule to show cause seeking dismissal of the third party demand on the ground that the parties sought to be made third party defendants are the identical parties previously held by the trial court not to be indispensable or necessary parties and accordingly, the third party demand was filed solely for the purpose of delay. After a hearing on this rule but before rendition of judgment the defendants, alleging that the Clerk of the 11th Judicial District Court had refused to make service of the third party demands without an advance deposit of costs, filed a motion for a rule to show cause against the Clerk of Court seeking an order requiring the Clerk of Court to make service of the third party demand without the advancement of costs pursuant to the provisions of LSA-R.S. 13:4521. This latter rule has not been heard or disposed of by the trial court.

By judgment dated June 6, 1980 the trial court ordered the third party demand filed by the Sabine River Authority dismissed. In the judgment referred to the trial court found dismissal of the third party demand to be warranted on the following grounds: (1) “a literal reading of Civil Code of Procedure Article 1111 does not allow for the impleading of Third Parties as in the instant case (2) “... since this Court ... already held that the inclusion of these same Third Party Defendants as necessary and indispensable parties to this suit is not necessary, ... the attempt by the original defendant to implead the same parties by the use of another procedure is an attempt to circumvent what has already been ruled upon”; and, (3) “Dixie Buick, Inc. v. Lockett, La.App.1972, 263 So.2d 56, and White Factors, Inc. v. F. & B. Supplies, Inc., La. App.1968, 211 So.2d 754, are authority and the courts have so held that ‘Defendant could not be permitted to delay orderly process of suit for indefinite period simply by filing petition against third party’ ”.

Defendants have appealed from the judgment dismissing their third party demand. Following issuance of the order of appeal defendants filed in this court exceptions of No Cause of Action and Lack of Jurisdiction, identical in form and substance to the exceptions previously considered and overruled by interlocutory judgments of the trial court which judgments we declined to review in our denial of writs in the matters bearing docket numbers 6883 and 7219.

Considering the present posture of this suit the issues to be decided on this appeal are, (1) whether this court should consider and dispose of the peremptory exceptions filed for the first time in this court; and, (2) correctness of the trial court’s dismissal of the third party demand filed by defendants. We will consider these issues in the order set forth above.

An appellate court may consider and dispose of a peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if the proof of the ground of the exception appears of record. (LSA-C.C.P. Article 2163) This grant of authority however, assumes that at the time the exception is filed the appellate court has jurisdiction over the action or proceeding to which exception is taken.

The exceptions filed by appellants with this court seek dismissal of the principal demand, i. e., the demand of plaintiffs for an injunction.

The appeal in this case is solely from the judgment of the trial court which dismissed appellants’ third party demand. The principal demand has not been tried on its merits and no final judgment has been rendered thereon. Therefore, jurisdiction over such demand vests exclusively in the trial court (Art. V, Sec. 16, La.Const. of 1974; LSA-C.C.P. Articles 2082, 2083 and 2088), subject only to the exercise by this court of the supervisory powers granted by LSA-C.C.P. Article 2201. As aforesaid we previously declined to exercise our supervisory power to consider correctness of the trial court’s interlocutory judgments overruling these same exceptions. We are therefore without the legal power and authority to consider the exceptions filed in this court which seek a dismissal of plaintiff’s demand for injunctive relief.

The remaining issue concerns correctness of the trial court judgment which dismissed the third party demand instituted by the Sabine River Authority. We affirm the trial court’s dismissal of the third party demand but for reasons other than those given by the trial court.

C.C.P. Article 1031 provides as follows:

“A demand incidental to the principal demand may be instituted against an adverse party or against a third person. Incidental demands are reconvention, intervention, and the demand against third parties.”

C.C.P. Article 1033 provides in pertinent part as follows:

“An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed ...”

The demand filed by the Sabine River Authority is a “demand against third parties”. The procedure and requirements for institution of such a demand are embodied in C.C.P. Articles 1111 et seq. In order to state a cause of action for relief against a third party under C.C.P. Article 1111, the defendant in the principal action must allege facts showing that such third party in his warrantor or that such party is liable to him for all or part of the principal demand.

In its third party demand the Sabine River Authority does not assert that the entities made third party defendants are its warrantors or that all or any of them are liable to them for all or part of the principal demand. Rather the third party plaintiffs simply allege facts which, if accepted as true, reflect that the third party defendants have a community of interest with the Sabine River Authority in resisting plaintiffs’ demand in that each of them has vital interests which will be affected in the event plaintiffs are successful in obtaining injunc-tive relief. This alleged community of interest may authorize an intervention by the third party defendants under C.C.P. Article 1091 et seq., but such circumstance does not give rise to a cause of action in favor of the Sabine River Authority against the named entities as third party defendants.

Incidental actions are subject to the same defenses which may be urged against the principal action, including the failure to disclose a cause of action which may be noticed by the appellate court of its own motion. C.C.P. Articles 1034 and 927.

For these reasons we notice the failure of third party plaintiffs to state a cause of action against third party defendants and affirm the judgment of the trial court which dismissed such demand.

Costs of this appeal, to the extent they may be legally imposed, are assessed against the defendants-appellants.

AFFIRMED.


text:
    Laura Landor WALKER, Plaintiff-Appellant, v. Eugene WALKER, Defendant-Appellee.
    No. 8027.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Marcia Finkelstein, Lafayette, for plaintiff-appellant.
    Eugene Walker, in pro. per.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff, Laura Landor Walker, filed a rule for contempt and to make past due child support executory. The defendant, Eugene Walker, filed no pleadings; he appeared in proper person at the hearing of the rule on June 2, 1980. At the hearing the trial court reduced the child support payments from $180.00 per month to $120.00 per month. The plaintiff appeals this reduction. We reverse.

There is no testimony in the record. In her brief the plaintiff’s counsel contends that the trial court’s reduction in the amount of child support payments was error for the reason that there was no evidence introduced at trial to show a change in circumstances which would warrant a reduction in the child support award.

It appears from the transcript of the proceedings that the trial court had conducted a pre-trial conference with counsel for plaintiff and defendant in proper person. The court states, in part, as follows:

"... Pursuant to a pre-trial conference in this matter, the Court at this time would entertain an oral motion by Mr. Walker to reduce the child support that is being paid. And accordingly, the Court will reduce the child support payments from a hundred and eighty dollars ($180.00) a month to a hundred and twenty dollars ($120.00) per month, in keeping with his earnings which is [sic] computed to be three hundred and forty dollars ($840.00) per month, net, at this time....”

The last paragraph of LSA-C.C.P. art. 1551, which deals entirely with pre-trial conference, reads, in part, as follows:

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

This provision requires the trial court to render an order setting forth the agreements and stipulations of the parties entered into in a pre-trial conference. Maurer v. Caballero, 278 So.2d 880 (La.App. 1st -Cir. 1973). In this case no pre-trial order was issued. There was no recitation of any agreements that may have been made at the pre-trial conference. While we may surmise that an agreement was reached, that justified a reduction in defendant’s child support payments from $180.00 to $120.00 per month, this is not supported by the record. Without such an order of the trial court, there is no eviden-tiary basis in the record for the reduction of child support. It is well settled that one seeking modification of an award for child support must show a change in the circumstances of the recipients or of the person obligated to pay. Fisher v. Fisher, 320 So.2d 326 (La.App.3rd Cir.1975). Under these circumstances the trial court judgment reducing the child support payments must be reversed.

We do not find it necessary to remand. Child support payments are always subject to review and change by the appellate court. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); LSA-C.C. art. 232. The defendant is free to file a rule to reduce the future installments of child support.

For the above reasons, the judgment of the trial court is reversed and set aside insofar as it reduces the obligation of defendant, Eugene Walker, for child support from $180.00 to $120.00 per month. In all other respects the judgment of the trial court is affirmed. Defendant-appellee is to pay all costs of this appeal.

REVERSED IN PART; AFFIRMED.

      . Past due child support in the amount of $2,079.00 was also made executory and the defendant was found in contempt. The defendant has not appealed, thus the propriety of these holdings is not before us.


author: STOKER, Judge.

text:
    Cheryl Y. JONES, et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8070.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.

      C. 0. Brown, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   STOKER, Judge.

This is a suit for personal injuries and property damages brought by Cheryl Y. Jones and John W. Jones, a brother and sister. The damage claimed grows out of an automobile accident which occurred in the City of Alexandria on July 15, 1978. Several parties were sued, but the only defendant left in the case and involved in this appeal is State Farm Mutual Automobile Insurance Company (State Farm). The plaintiffs settled and compromised their claims against all others and entered into an agreement in which they reserved their rights against State Farm Mutual Automobile Insurance Company.

The principal issue in the case is whether or not the plaintiffs lost their rights against State Farm Mutual Automobile Insurance Company through the release of the other defendants, and alternatively, whether or not the policy of automobile insurance issued by State Farm fails to cover the particular incident involved.

FACTS

According to plaintiffs’ petition the accident occurred when defendant, Kenny Hunter, drove a 1968 Chevrolet automobile on Wise Street in Alexandria. In turning onto Vance Avenue, he struck a 1975 Suzuki motorcycle driven by John W. Jones and owned by Cheryl Y. Jones. It is alleged that the motorcycle was completely demolished and that John W. Jones received serious injuries.

The 1968 Chevrolet automobile driven by Kenny Hunter was owned by one George Rue. It was alleged that the George Rue automobile, the 1968 Chevrolet automobile, was insured by Allstate Insurance Company. (This allegation was apparently in error and the actual insurer of the Rue vehicle was Commercial Union Insurance Company.) It was alleged that State Farm had issued a policy of automobile insurance to Kenny Hunter. State Farm answered admitting the accident and issuance of the policy to Kenny Hunter, but it generally denied any liability and specifically alleged that at the time of the accident its insured, Kenny Hunter, was engaged in the automobile business of servicing and repairing automobiles and was test driving the George Rue vehicle. Therefore, State Farm takes the position that since the George Rue vehicle was insured by another insurer which was the primary insurer, State Farm did not cover Kenny Hunter’s liability under the circumstances. In addition to this defense, State Farm raised the defense of contributory negligence on the part of plaintiff John W. Jones. State Farm filed a motion for summary judgment on the basis of its lack of coverage. George Rue filed an exception of no right or cause of action. The trial court overruled the motion for summary judgment filed by State Farm but sustained the exception of no cause of action filed on behalf of George Rue.

On March 24, 1980, the plaintiffs entered into a compromise settlement and agreement with Commercial Union Insurance Company and released George G. Rue, Kenny Hunter, and Commercial Insurance Company from all claims in connection with the accident for the sum of $1,125.00. In the compromise settlement agreement, plaintiffs reserved their rights as against State Farm Mutual Automobile Insurance Company. State Farm then amended its answer to specifically plead the release executed by the plaintiffs as a bar of the right of plaintiffs to recover in this action against State Farm.

On March 26, 1980, the plaintiffs’ suit against all defendants except State Farm was dismissed. On April 10, 1980, the trial against State Farm took place. Following trial the district court ruled from the bench. In oral reasons the judge granted judgment in favor of the defendant, State Farm Mutual Automobile Insurance Company. Judgment was signed on April 14,1980, and on April 15, 1980, the plaintiffs filed an application for a new trial. On July 28, 1980, plaintiffs moved for and were granted a devolutive appeal to this court.

Prior to trial as noted above, State Farm filed a supplemental and amending answer in which it specifically pleaded the defense grounded on the release of the co-defendants. In that supplemental and amending answer, State Farm alleged that Commercial Union Insurance Company was the primary insurer of Kenny Hunter. Although the petition alleges that Allstate Insurance Company was the insurer of the George Rue automobile, attached to the motion for summary judgment filed by State Farm is an affidavit by George Rue in which he states that he obtained his insurance through the assigned risk plan and that he was advised it was written by Commercial Union Assurance Company. Along with the State Farm policy there was filed in evidence a copy of what purports to be a family combination automobile policy issued by Commercial Union Insurance Company in favor of George G. Rue.

LIABILITY

When the trial began counsel for State Farm offered to stipulate that Kenny Hunter was guilty of negligence in connection with the accident. Plaintiffs’ counsel, however, insisted upon calling the investigating officer and indicated his intention to offer evidence as to fault on the part of Kenny Hunter. Under the circumstances, counsel for State Farm withdrew its stipulation. At the end of the trial, the trial court made a ruling from the bench. In its ruling, the court held that the case against State Farm should be dismissed for the reason that Commercial Union was the primary insurer and State Farm was the excess insurer and the damages did not exceed the limits of $5,000 specified in the Commercial Union policy.

In the slightly more than one page brief filed on behalf of plaintiff-appellants, counsel has addressed solely the question of liability or fault of Kenny Hunter and the damages which plaintiffs sustained. We feel that the record adequately establishes that Kenny Hunter was at fault, and perhaps the trial judge was of that opinion. However, under his ruling the question of fault on the party of Kenny Hunter was actually immaterial insofar as State Farm was concerned.

Effect of compromise and release.

Appellee recognizes that an injured party may settle and compromise claims against one or more solidary obligors and legally reserve all rights against all other solidary obligors. Futch v. Fidelity & Casualty Co., 246 La. 688, 166 So.2d 274 (La.1964) and Wirick v. Wyble, 300 So.2d 571 (La.App. 3rd Cir. 1974). Defendant-appel-lee relies, however, on the principle that the cited cases apply only where claims of the plaintiffs exceed the limit of liability of the primary coverage. In this case the total demand of the two plaintiffs amounted to $3,177.00 which was below the limits of the coverage afforded by Commercial Union Insurance Company.

In addition to the above defense, State Farm relies upon a policy exclusion (Exclusion h) under the liability provisions of its policy. Under that exclusion the policy does not apply to a non-owned automobile while it is maintained or used by any person while such person is employed or otherwise engaged in the automobile business of the insured or any other person or organization. In the case before us the Rue vehicle was being used in the automobile business of Kenny Hunter and therefore was excluded under the provision relied upon. Meyers v. Government Employees Ins. Co., 303 So.2d 882 (La.App. 1st Cir. 1974), writ refused, 307 So.2d 369 (La.1975).

For either of the two reasons set forth above, we believe the trial court was correct in dismissing the claims of plaintiffs against State Farm Mutual Automobile Insurance Company. Therefore, the trial court judgment will be affirmed.

AFFIRMED.

      . On August 7, 1980, the district court overruled the application for a new trial.


author: DOMENGEAUX, Judge.

text:
    James Keith EAVES, Plaintiff-Appellee, v. McLEOD BROTHERS CONTRACTORS, INC. et al., Defendants-Appellants.
    No. 8072.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writ Refused May 18, 1981.
    Woodley, Barnett, Cox, Williams & Fen-et, J. L. Cox, Lake Charles, for defendants-appellants.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   DOMENGEAUX, Judge.

A jury awarded plaintiff, James Keith Eaves, $5,000.00 for personal injuries and $10,000.00 for property damages sustained when the truck and fully loaded dump trailer which he owned and . was operating crashed into the rear of two trucks owned by defendant, McLeod Brothers Contractors, Inc., and being operated by two of defendant’s employees. In a 9-3 verdict, the jury found that defendant’s drivers were negligent and that plaintiff was not contributorily negligent. McLeod and its insurer, Insured Lloyd’s (which was also named as a defendant) filed a motion for new trial or remittitur which was denied by the trial court. Defendants then appealed.

Defendants argue that plaintiff was negligent and that defendants were not negligent; that the jury’s award was excessive and was not supported by the evidence; and that the court erred in failing to grant defendants’ motions for a directed verdict and for a new trial or remittitur.

We reverse because we find the jury’s determination that plaintiff was free of contributory negligence was clearly wrong and contrary to the evidence.

The three vehicle mishap occurred on the Calcasieu River Bridge in Allen Parish on October 21, 1977, at 11:30 A.M. The bridge is located on Highway 26, a two-lane highway, between the towns of Oberlin and Mittie. The weather was clear, sunny, and dry. Visibility was good. The eastern approach to the bridge was straight and level for at least a half mile.

Collin W. Honea and John L. Spikes were the drivers of the McLeod Brothers’ trucks. They were traveling west. Honea was first on the narrow two-lane bridge in a large truck which had a lowboy trailer attached to it. A tractor was being transported atop the lowboy. Spikes followed in a flatbed pickup truck.

Both Honea and Spikes testified that they were traveling about the speed limit on the highway but slowed to between 15 and 30 miles per hour while crossing the bridge. Each denied that he stopped on the bridge or that he left his truck while on the bridge.

Spikes testified he first noticed plaintiff approaching the bridge from the east through the rear view mirror of his pickup truck when plaintiff was quite some distance away. A few seconds later, when he next saw plaintiff through his mirror, he knew that plaintiff would not be able to stop before crashing the truck and dump trailer into his pickup truck so he swerved the pickup from behind the lowboy and into the left lane of the bridge to avoid being smashed between plaintiff’s truck and the lowboy. Moments later, the dump truck smashed first into the rear of the lowboy and then into the rear of the pickup truck before halting.

Plaintiff’s version of the accident differs appreciably from the account given by Ho-nea and Spikes. Plaintiff testified he first saw the two trucks on the bridge when he was about 150 yards away and was traveling west at 40 miles per hour in his truck and dump trailer. When he was 50 yards away, he testified that he noticed for the first time that both men were standing on the bridge out of their trucks, and that the trucks were stopped. He was still traveling at 40 miles per hour but when he saw that the men were standing on the bridge he began braking and blowing his horn. He said the men returned to their trucks and that the pickup truck then swerved into the left lane, preventing him (plaintiff) from passing the two vehicles. Within moments, he crashed into the lowboy and the pickup truck.

Neither Honea nor Spikes was injured. Plaintiff suffered only a four inch cut above his right ear and a couple of bruises on his leg and elbow. He was not hospitalized. The impact totally destroyed plaintiff’s truck and the pickup truck driven by Spikes. Plaintiff’s dump trailer was damaged, but was reparable.

Plaintiff’s trial testimony at times conflicts with his earlier deposition, which is in the record. However, he did admit that the defendant’s trucks were on the bridge from the time he first saw them when he was 150 yards away until the time that he struck them from the rear. Although plaintiff contends he first became aware that the trucks were stopped when he was only 50 yards away, he testified at trial and in his deposition that he never saw the vehicles moving. He also testified that his attention was never distracted, nor was his vision or view of the trucks ever impaired or obstructed. He further believed that he could have stopped his dump truck before impact if he had begun to apply the brakes when he was only 100 yards distant. Yet he maintained his original speed of 40 miles per hour and he did not begin braking until he was only 50 yards away, and that simply was not enough time to halt his fully loaded dump truck.

We believe that the evidence, consisting entirely of testimony given by Honea, Spikes, and the plaintiff, establishes beyond question the contributory negligence of the plaintiff, regardless of which version of the accident is believed. Even if Honea and Spikes negligently stopped upon the bridge, plaintiff was contributorily negligent because he just saw the defendant’s trucks when he was 150 yards away, yet he failed to brake his vehicle in time to avoid the accident. Marcelle v. Chin-Bing, 364 So.2d 1345 (La.App. 4th Cir. 1978); Laird v. State Farm Insurance Co., 290 So.2d 343 (La.App. 4th Cir. 1974) (See Court’s discussion re negligence of Ballam). Had plaintiff been maintaining a proper lookout, he could have stopped in time.

Plaintiff claims that he did not brake earlier because he could not tell that the trucks were stopped on the bridge. He explained that the beams over the bridge cast shadows upon the bridge preventing him from noticing that the trucks were stopped.

Plaintiff is nonetheless guilty of contributory negligence even if we accept as true his assertion that the bridge was shadowy or dark, because he continued to travel as if there was perfect clearance ahead (by not slowing down), even though he knew that defendant’s two trucks were on the bridge and he had not seen them move. McCain v. State Farm Mutual Automobile Insurance Company, 236 So.2d 922 (La.App. 3rd Cir. 1970).

Near the end of the trial plaintiff testified that Spikes’ actions in swerving the pickup into the left lane prevented him (plaintiff) from passing up the defendant’s trucks, thereby averting the accident. However, Spikes testified he only swerved into the left lane when it became apparent to him that the dump truck would strike him from behind in the right lane. Immediately after Spikes swerved, plaintiff struck the rear center of the lowboy. Absolutely nothing in the record suggests that plaintiff contemplated a passing maneuver. In fact, defendant’s drivers and plaintiff all testified that the bridge was very narrow. No evidence establishes that the bridge was wide enough to accommodate both plaintiff’s 18-wheel truck and dump trailer and the large truck hauling the lowboy.

Thus, we find that plaintiff’s failure to keep a proper lookout and failure to keep his vehicle under control amount to contributory negligence, thereby barring his recovery. The jury was clearly wrong in finding otherwise.

For the above and foregoing reasons the judgment of the district court which affirmed the jury’s findings in favor of the plaintiff, James Keith Eaves, is reversed. It is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of the defendants McLeod Brothers Contractors, Inc. and Insured Lloyd’s dismissing plaintiff’s suit. All costs, at trial and on appeal, are assessed against plaintiff.

REVERSED AND RENDERED.

      . Spikes was unable to estimate plaintiffs distance when he first noticed plaintiff approaching. Apparently the distance was great enough so that Spikes was not then concerned about an impending collision.

      . According to the treating physician, plaintiffs cut required about 40 stitches to mend. These stitches were removed about ten days after the accident and the scar is now completely hidden by plaintiffs hair. Plaintiff suffered no disabling injuries and could have returned to work immediately after his stitches were removed had his dump truck not been totally destroyed.

      . Plaintiff attributes his inability to stop in time to the short distance between the trucks when he began to brake and the momentum of his full load (between 16 and 18 cubic yards) of dirt. When the accident occurred, plaintiff was only 21 years old and had purchased his 18-wheel dump truck rig only one week before the accident. He had never operated a vehicle that large with a full load on a highway until only three days before the accident.

      . Plaintiffs testimony on this point was refuted by the officer who investigated the accident. According to the officer, the bridge was not immersed in shadows; instead, the sun shown brightly on the bridge and visibility was unhampered. Interestingly, plaintiff claimed at first that the bridge was covered but he later retracted this testimony.

      .Act 431 of 1979 incorporated the doctrine of comparative negligence into Louisiana law. Section 4 of Act 431 of 1979 provided that its provisions did not apply to claims arising before the effective date of the Act, August 1, 1980. Since plaintiffs claim arose on October 21, 1977, the doctrine of comparative negligence is not applicable.


author: LABORDE, Judge. DOMENGEAUX, Judge,

text:
    Lee LEACH, Plaintiff-Appellee, v. Bill FREEMAN d/b/a Freeman’s Automotive Service, Defendant-Appellant.
    No. 8075.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writ Refused May 6, 1981.
    Gravel, Robertson & Brady, Robert L. Royer, Alexandria, for defendant-appellant.
    Davis & Murchison, James D. Davis, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Lee Leach, brings this action for alleged defective automobile repairs against Bill Freeman, defendant. The trial court awarded plaintiff $1,326.83 for repairs, $50.00 for a wrecker fee, and $1,500.00 for inconvenience, mental anguish and worry. We amend and affirm.

On June 26,1979, Leach brought his 1975 Ford Elite to Freeman’s Automotive Service for repairs to the engine. Freeman installed used cylinder heáds and two new head gaskets on the V-8 engine for a fee of $406.53, which was paid by Leach. A day after the repairs, Leach complained to Freeman about loss of power in the engine. Freeman checked the engine, made adjustments, and returned the car to Leach. Leach admitted the car ran slightly better. After a few days on short trips within the city of Alexandria, Leach decided to travel to Cottonport, Louisiana. Approximately 5 to 6 miles south of Alexandria, the car overheated and stopped. It had to be towed back to the city. Leach testified that the car was taken back to Freeman’s garage. Freeman testified he did not remember seeing the car again.

Shortly thereafter, Leach’s car was taken to Holton’s Repair Service and was dismantled by E. W. Holton and Franklin Maddox. Both Holton and Maddox, mechanics of extensive experience who were accepted by the trial court as experts, testified without contradiction that the head gaskets on the engine had been installed backwards which stopped the flow of water through cylinder block and cylinder head. The lack of water flow through the block caused the engine to overheat, the heads to crack, the pistons to melt and the rings to collapse.

Leach paid Holton’s Repair Service $1,326.83 to repair his damaged engine. He was without the use of his car froih June 26, 1979 to August 28, 1979.

Freeman contends the trial court erred as follows:

1. By awarding plaintiff $1,500.00 for the inconvenience, mental anguish, and worry inasmuch as the procuring of intellectual enjoyment was not a principal object of the contract to have his car repaired.
2. By awarding plaintiff $50.00 for the wrecker bill when plaintiff sued for a $10.00 wrecker bill and when there is no evidence in the record to support the award.
3. By holding that the damage to plaintiff’s car was caused by defendant’s improper installation of the head gaskets.
4. By holding that plaintiff had no obligation to mitigate the damage to his vehicle.

We find that the trial court erred in awarding damages for inconvenience, mental anguish and worry. Our Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976) held that:

“... Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as á consequence of nonfulfillment of that object are not recoverable.”

The evidence presented by plaintiff does not suggest the object of the repair agreement was anything other than the repair of a movable. While strong arguments in favor of recovery for mental anguish were made by Justice Dixon in his dissent in Meador, supra, and by Judge Domen-geaux in his concurring opinion in Martin v. AAA Brick Company, Inc., 386 So.2d 987 (La.App.3rd Cir. 1980) we conclude that the record does not establish that intellectual enjoyment was a principal or exclusive object of the contract entered into between plaintiff and defendant. Nonpecuniary damages as a result of the breach of said contract are not recoverable. LSA-C.C. art. 1934(3). Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979).

We agree with Freeman’s second specification of error. Leach itemized his damages in paragraph 8(C) of his petition listing a wrecker fee of $10.00. Leach testified that “I believe I was charged $10.00 for the wrecker fee”. No other evidence was offered to support the wrecker fee award. It is obvious that the trial court’s award of $50.00 was an oversight and we reduce the award to $10.00.

Defendant’s assignments of error 3 and 4 are without merit. The record is clear that defendant’s employees installed the head gaskets backwards on Mr. Leach’s car engine causing its total loss. Both Hol-ton and Maddox testified that the gaskets were relatively new and the heads were clean indicating a recent repair. The only recent repair on Leach’s car was done by Freeman. It is the task of the trial judge to determine the credibility of the witnesses and this determination will not be disturbed absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Our review of the entire record indicates that the decision of the trial court is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the above reasons, the judgment of the trial court is amended to reduce plaintiff’s award from $2,876.83 to $1,336.83. In all other respects, the judgment of the trial court is affirmed.

Costs of the appeal are taxed one-half against plaintiff, Lee Leach, and one-half against defendant, Bill Freeman.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree with this decision but wish to reiterate my disagreement with the jurisprudence set out by the Louisiana Supreme Court concerning non-pecuniary damages for mental anguish in contract cases. See footnotes 2 and 3 in the case of Elliott v. Louisiana Intrastate Gas Corporation, 390 So.2d 571 (La.App.3rd Cir. 1980), which I authored. See also the enlightening article by Professor Saul Litvinoff on “Moral Damages” appearing at 38 La.L.Rev. 1.