author: GUIDRY, Judge. DOMENGEAUX, Judge,

text:
    Danny W. BASS, Plaintiff-Defendant-in-Rule-Appellant, v. Marsha V. BASS, Defendant-Plaintiff-in-Rule-Appellee.
    No. 82-33.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-defendant-in-rule-appellant.
    Charles F. Wagner, Pineville, for defendant-plaintiff-in-rule-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Defendant-in-rule, Danny W. Bass, appeals from a judgment of the trial court increasing an award of child support to plaintiff-in-rule, Marsha Y. Bass.

Marsha Y. Bass and Danny W. Bass were at one time married to each other and are the parents of two minor children, Shannon, age 7 and Ashley, age 5. Marital relations between the parties broke down in the year 1978 resulting in a judgment of separation from bed and board. The aforesaid judgment awarded custody of the two children to Marsha. Additionally, she was awarded $200.00 per month in alimony pendente lite and $200.00 per month for the support of the parties’ two minor children. By a judgment dated January 9, 1980, the parties were divorced. This judgment awarded permanent custody of the minor children to Marsha, and in addition, by consent of the parties, Marsha was awarded $200.00 per month in child support. On July 16, 1981, Marsha filed the instant rule seeking an increase in the award of child support previously fixed. The district court rendered judgment in favor of Marsha granting an increase in child support from $200.00 per month to $400.00 per month. It is this judgment from which defendant-in-rule now appeals. Plaintiff-in-rule has neither answered the appeal nor appealed from the aforesaid judgment.

The issue presented for consideration is the correctness of the trial court’s judgment increasing the award of child support from $200.00 to $400.00 per month.

A review of the testimony in the record reveals that since their divorce, both Marsha and Danny have remarried. Both parties testified at trial regarding their present income and expenses. Marsha stated that her expenses have significantly increased since the time of the original consent judgment. In this regard, she testified that her rent has increased from $75.00 to $240.00; food costs have risen from between $250.00-300.00 to between $300.00-350.00; utilities have increased from $70.00-130.00; transportation costs have risen from a negligible amount to more than $250.00; the children’s medical and dental expenses have increased to some degree and now average between $25.00-50.00 per month; and, the cost of the children’s school lunches has risen from $12.00-24.00 since both are now in school. According to an affidavit submitted in connection with her testimony, the total monthly expenses for Marsha and her family, including her two children, amounts to the sum of $1,195.00. This affidavit reflects the total gross family income to be the sum of $1,060.00, however, this affidavit does not include as income the $200.00 per month child support which plaintiff-in-rule receives. Plaintiff testified that she was not working at the time of the parties’ divorce and she is not presently employed. Thus, plaintiff’s sole source of income with the exception of defendant’s child support payments is the salary of her second husband.

Danny Bass stated that since his remarriage, he and his second wife have had a child who, at the time of trial, was eleven months old. Defendant verified that his gross income for the years 1979 through 1981 was $23,261.83, $24,568.42, and $16,-706.98 (this last figure represents the first eight months of the year 1981), respectively. Defendant stated that his financial condition has changed for the worse since his divorce. In this regard, he testified that although he has received a $.71 per hour raise since that time, the hours which he is permitted to work have been decreased. According to Mr. Bass’s testimony and an affidavit submitted in connection therewith, his gross monthly income averages $2,000.00 and his total monthly expenses amount to $1,665.22. Mr. Bass testified that his living expenses have increased appreciably since his divorce as a result of his remarriage. The record contains no evidence which would suggest that the expense itemiza-tions of either of the parties are exaggerated.

On appeal, defendant-in-rule maintains that in order for the courts to modify a previously-fixed child support award, the record must clearly reflect a change in circumstances. In this regard, defendant-in-rule avers that it is the burden of the party seeking a change in such award to establish such a change in circumstances, and that, in the instant matter, plaintiff-in-rule has failed to sustain her burden of proof.

At the outset, we observe that the trial court is vested with much discretion in fixing the amount of alimony and/or child support and such award will not be disturbed on review unless there has been a clear abuse of discretion or manifest error in the trial court’s factual appreciations.

Vestal v. Vestal, 216 So.2d 386 (La.App. 3rd Cir. 1968); Hyams v. Hyams, 365 So.2d 527 (La.App. 3rd Cir. 1978).

In Howell v. Howell, 391 So.2d 1304 (La. App. 4th Cir. 1980), our brethren of the Fourth Circuit in discussing the modification of awards of support stated;

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

See also: Hyams v. Hyams, supra; Johnson v. Johnson, 357 So.2d 69 (La.App. 4th Cir. 1978), writ denied, 359 So.2d 197 (La.1978); Ducote v. Ducote, 339 So.2d 835 (La.1976); Stolier v. Stolier, 357 So.2d 1334 (La.App. 4th Cir. 1978), writ denied, 359 So.2d 621 (La.1978); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir. 1975).

Our review of the jurisprudence reflects that, almost without exception, our courts have refused to either increase or decrease a previously-fixed alimony and/or child support award absent a showing that there has been a substantial change in the circumstances of either the party receiving such award or the party obligated to pay the same although the wisdom of rigidly applying such a rule, especially in the case of consent judgments fixed without judicial intervention, has been questioned. See Quistgaard-Petersen v. Quistgaard-Petersen, 135 So.2d 669 (La.App. 2d Cir. 1961); see Judge, now Justice, Lemmon’s concurrence in Willis v. Willis, 355 So.2d 999 (La.App. 4th Cir. 1978), writ denied, 356 So.2d 1389 (La.1978). In the aforecited concurring opinion in the Willis case, Judge Lem-mon, within the context of a rule to discontinue LSA-C.C. Art. 160 alimony awarded to an ex-spouse, stated:

“When estranged spouses agree to an alimony figure without judicial intervention, this agreement should be regarded as a trial setting, entitled to extremely great weight if later questioned, but not entitled to the absolute status of a judicial admission (which is not usually the intention of the parties).1 Under the Bernhardt case an oversolicitous (or underrepresented) spouse who later determines that he or she was too generous in the agreement, has no practical recourse for a substantial period of time. The net result is to discourage alimony settings by consent and to promote distasteful litigation (and in cases of alimony pen-dente lite such unnecessary litigation often forecloses any chance of reconciliation).
The preferable procedure, in my opinion, is to allow the trial judge (who exercises vast discretion in this area) the discretion to reconsider alimony awards previously set by consent, if the motion makes out a ease for reconsideration. Allowing sparing use of discretion will not open flood gates of litigation, while easing the inflexible rule absolutely prohibiting reconsideration will prevent injustice such as occurred in the present case.” (footnote omitted)

We agree with Justice Lemmon that a strong argument can be made for a less rigid application of the “change of circumstances” rule in instances where an alimony or child support award has been fixed via a consent judgment and it is evident that there has been overreaching by one of the parties to the consent judgment and/or where such award is grossly inadequate or excessive. Although we question, as have other courts, the rigid application of the aforesaid rule, we conclude that the matter before us does not present a case where the child support award as previously-fixed by consent of the parties is grossly inadequate. Thus, it is upon the plaintiff-in-rule to establish that there has been a change in circumstances which mandates a modification of the prior award.

The record does establish that the living expenses of the children have increased somewhat since the parties were divorced. The record likewise establishes, however, that Marsha, who at the time of the divorce was unemployed and presumably without any finances, is now in a position, by reason of her second marriage, to contribute to the support of her children. Fazzio v. Krieger, 226 La. 511, 76 So.2d 713 (1954); Connell v. Connell, 316 So.2d 421 (La.App. 3rd Cir. 1975), writ granted, 321 So.2d 362, 331 So.2d 4 (La.1976). In contrast, the evidence establishes that defendant-in-rule’s financial condition has worsened. The raise in his salary is negligible, especially in light of his uncontroverted testimony that his working hours have decreased. He has increased financial obligations and two additional dependents. In connection with this latter our court in Meyers v. Bohrer, 176 So.2d 3 (La.App. 3rd Cir. 1965) stated:

“Counsel for appellee, in brief, states that the primary obligation of the father is to support, maintain and educate his children from his first marriage, and, although he has a right to remarry, he may not be allowed to assert the second marriage as a basis for relief of the obligation he owes his children of his first marriage. Laiche v. Laiche, 237 La. 298, 111 So.2d 120. This is a correct statement of law. Nevertheless, the necessary living expenses of a remarried father may be taken into consideration as one of the items in fixing alimony to a child or children born of the first marriage. Harris v. Harris (La.App., 3 Cir., 1961), 127 So.2d 747.”

The above being considered we conclude that the evidence fails to establish such a change in the children’s needs or the defendant-in-rule’s ability to pay as would warrant an amendment of the latter’s previously fixed child support obligation. The increased needs of the children are not shown to be substantial and are clearly offset by plaintiff-in-rule’s recently acquired ability to contribute to their support. Thus, we determine that it was clear error for the trial court to increase the previously fixed child support award.

The only other issue for consideration concerns an evidentiary ruling by the trial court in which the presentation of testimony regarding plaintiff’s alleged motivation for filing the present matter was disallowed by the trial judge. Having already concluded that the trial court was in error in increasing the award of child support, we conclude that even if such ruling was error, it was harmless error. Naquin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3rd Cir. 1975), writ denied, 313 So.2d 598 (La.1975).

For the above and foregoing reasons, the judgment of the trial court increasing the child support award owed by defendant, Danny W. Bass to plaintiff, Marsha V. Bass from $200.00 per month to $400.00 per month is reversed and set aside and plaintiff’s rule is dismissed with prejudice. All costs at the trial level and on appeal are taxed to plaintiff, Marsha V. Bass.

REVERSED AND RENDERED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I agree with this reversal. I am inclined to disagree however with the statement of Judge Lemmon contained in his concurring opinion in Willis, of which reference is made in the majority opinion here.

My impression is that consent alimony and child support payments generally result only after the parties have pretty well figured out their respective situations and needs. Those agreements usually evolve into a fair bargain, designed and intended for permanency, unless of course, a change of circumstances intervenes.

Accordingly, I feel that whether the judgment is by consent or judicial intervention, the jurisprudential “change of circumstances” rule should be applied with equal rigidity.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Michael M. WAHLDER, Plaintiff-Appellant, v. Richard H. OSBORNE, Defendant-Appellee.
    No. 82-35.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Michael M. Wahlder, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, F. A. Little, Jr., Alexandria, for defendant-ap-pellee.

      Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

In this proceeding plaintiff-lessor, Michael Wahlder, is attempting to evict defendant-lessee, Richard Osborne, from property owned by plaintiff in Alexandria, Louisiana. From the trial court’s judgment refusing to cancel the lease and thereby evict defendant, plaintiff appeals. We affirm.

On May 22,1972, plaintiff granted a lease to defendant to operate a filling station which contained the following relevant provisions:

“Lessee shall pay as rent for the leased premises for each calender month during the term of this lease, in cash or by check to the order of ‘Mike Wahlder,’ and mail same to ‘Mike Wahlder, P. 0. Box 1787, Alexandria, Louisiana 71301.’
A. The sum of $50.00 on or before the 1st day of each month.
B. An additional sum equal to DM for each gallon in excess of 3333 gallons of gasoline and diesel oil sold on the premises during each month as shown by Lessee’s records, payable on or before the 15th day of the following calendar month.
C. An additional sum of 5% of the gross sales, cash and on credit, sold on the leased premises during each month as shown by Lessee’s records, excepting only gasoline and diesel oil, payable on or before the 15th day of the following calendar month.
In connection with the operation of the service station it is expressly stipulated that lessor will receive 5% of the gross sales, cash and on credit, of all tires, but minor accessories such as batteries, headlights, lubricating oil and greases, etc., are excluded.”
$ ‡ * sfc # *
“Lessee agrees to remain open and carry on business seven (7) days per week for at least fourteen (14) hours per day—
at least eight (8) of said 14 hours during daylight.”
“It is stipulated and agreed that should Lessee fail or neglect to remain open for continuous business as heretofore set out then and in that event Lessee shall pay Lessor $20 per day for each such day Lessee fails or neglects to remain open for continuous business in lieu of the additional percentage rental for such day. In addition thereto Lessor may cancel this lease at his option.”

The undisputed facts establish that during the summer of 1979 a Presidential proclamation requested service stations to close on Sundays because of a gasoline shortage. Also at this time and because of the shortage, gasoline was being rationed to defendant’s service station. Defendant admits that during this period he closed the leased service station on four or five Sundays in order to keep from depleting his gasoline supply before receiving his next month’s allotment. Defendant also allowed the station to close for a few hours on certain holidays, namely Christmas, New Years, and Thanksgiving. According to defendant, the station was partially closed on these holidays to allow his employees to have dinner with their families. Defendant did not pay plaintiff any penalty, as such, for the days that he was partially closed. Defendant testified that he sold all the gas he had available to sell during the energy shortage, and rationed the sale of his limited supply during the month. Cigarette and coke machines, the only other items sold at the station, were on the outside of the building and available to individuals, whether the gas pumps were open or not. Also located on the leased premises was a car wash which was not operative during closed hours.

Plaintiff brings this suit for eviction on the grounds that defendant did not pay a $20.00 per day penalty for each day that the leased premises were not open fourteen consecutive hours as called for in the lease agreement.

The issues presented on appeal are:

(1) Whether or not defendant’s actions entitle plaintiff to dissolution of the lease? and

(2) Whether or not the defendant is entitled to recover $20.00 per day for the days that defendant’s station was closed or partially closed?

Cancellation of leases is not favored in Louisiana, Atkinson v. Richeson, 393 So.2d 801 (La.App. 2nd Cir. 1981); Tullier v. Tanson Enterprises, Inc., 359 So.2d 654 (La.App. 1st Cir. 1978), so a lease will be dissolved only when it has been shown that the lessor is undoubtedly entitled to such cancellation. Atkinson, supra; Arbo v. Jan-kowski, 39 So.2d 458 (La.App.Orl.Cir.1949).

In this suit plaintiff’s only grounds for eviction is defendant’s failure to pay the stipulated $20.00 penalty. Defendant admits that he did not open or did not remain open for the stipulated time period on certain days. Defendant also admits that he did not pay the penalty, as such, for any day in question. The trial court took judicial notice of the fact that in 1978 and 1979 there was a gasoline shortage. La.R.S. 15:422(6). The district court also judicially recognized the reduced allocations of gasoline to retail dealers, and the Presidential proclamation concerning Sunday closing of service stations.

La.C.C. Article 2120 establishes exceptions to enforcement of penalty provisions. It reads as follows:

“The penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance, such as inevitable accident, or irresistible force.”

In Niblett Farms, Inc. v. Markley-Bank-head, et al., 202 La. 982, 13 So.2d 287 (1943) our Supreme Court made the following observations concerning La.C.C. Art. 2120, to-wit:

“In the case of Williams v. Hunter, 13 La.Ann. 476, the court, in commenting on this article, said that ‘inevitable accident’ and ‘irresistible force’ are not the only excuses for the nonperformance of the principal obligation, but are merely illustrations of what may be deemed a lawful excuse. The court said that the impossibility for defendant to execute an agreement was an excuse, ‘such as ‘inevitable accident or irresistible force,’ inasmuch as this impossibility did not originate from her fault or fraud.’ ”

There is little authority on what constitutes “lawful cause” for failing to comply with a lease obligation, and although we do not feel that the aforesaid occurrences made it impossible (as defined in Niblett Farms, Inc., supra) for defendant to open his station on Sunday during the gasoline crunch, we nevertheless feel that they represented a legal excuse for defendant to close. Defendant testified and the trial court took cognizance of the fact that the gasoline allocations at that time were so low that rationing had to be utilized in order to avoid selling out before the next month’s allocation arrived. Defendant decided not to sell gas on Sunday (a) in compliance with the President’s proclamation and, (b) simply because he did not want to deplete his very limited supply. As such we think defendant had a legal excuse under La.C.C. Article 2120, supra, to close on the four or five Sundays during this period.

Additionally, the record reflects that even though defendant closed his station on the Sundays in question, the vending machines would remain accessible to the public. The penalty clause in the lease agreement states that any penalty was due “in lieu of the additional percentage rental for such day.” As we read this proviso, if plaintiff received $20.00 in percentage rentals from these vending machines for the days that defendant was either closed or partially closed, he was due nothing more whether or not a specific and special penalty payment was made. The burden rests upon plaintiff to prove by a preponderance of the evidence that he was due a penalty. The trial court found that plaintiff failed to prove he was owed a penalty inasmuch as he did not establish that his percentage rentals amounted to less than $20.00 per day for the days closed. We cannot say that the district judge was clearly wrong.

Although defendant’s decision to partially close on Thanksgiving, Christmas, and New Years is not legally excusable, we find that plaintiff is not entitled to cancellation of the lease based upon these grounds. As aforesaid, plaintiff failed to establish that the percentage rentals on gasoline and vending machine sales collected on these days did not at least equal any penalties allegedly due, and, as previously discussed, the $20.00 penalty is due only “in lieu of percentage rentals.” Having failed in his proof, we find that the trial court correctly held that plaintiff was not entitled to cancellation of the lease nor was he entitled to recover any penalty.

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

AFFIRMED.

GUIDRY, J., concurs.

      . Plaintiff had previously filed suit seeking to evict defendant predicated upon other grounds. In that case, No. 117,101 of the Ninth Judicial District Court, the trial judge refused to cancel the lease and we affirmed. See Wahlder v. Osborne, 410 So.2d 808 (La.App. 3rd Cir. 1982).

      . La.R.S. 15:422(6) reads as follows:
      “Judicial cognizance is taken of the following matters:
      * * * * * *
      (6) The laws of nature, the measure of time, the facts disclosed by the calendar, the facts of geography, the geographical and political divisions of the world, the facts of history and the political, social and racial conditions prevailing in this state;”


author: GUIDRY, Judge.

text:
    Archie Lee BRODNAX, et ux., Plaintiffs-Appellants, v. Kathleen B. WILLIAMSON, et al., Defendants-Appellees.
    No. 82-39.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.
    Gary W. Partney, Alexandria, for plaintiffs-appellants.
    Garrett, Ryland & Nunnally, Charles F. Nunnally, Alexandria, for defendants-ap-pellees.

      Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiffs filed this suit seeking a judicial partition by licitation of property situated in the Parish of Rapides described as Lots 1 and 2 of the Jodie M. Brodnax Estate located in the N/2 of NE/4 of NW/4 Section 31, Township 2 North, Range 3 West, alleged to be owned 45Aaths by plaintiffs and Visth each by Kathleen Brodnax Williamson, Jo Ellen Brodnax Johnson and Clara Brodnax Lew-ing. Defendants filed exceptions of prematurity, vagueness, non-joinder of a necessary party, no cause of action and non-join-der of indispensable parties. The exception of vagueness was sustained however, all other exceptions were overruled. Plaintiffs thereafter amended their petition in order to comply with the trial court’s ruling on the exception of vagueness and defendants filed answer generally denying the allegations of plaintiffs’ petition. When the matter was called for trial on its merits, presumably with the trial court’s acquiesence, defendants re-filed and re-urged their exception of non-joinder of indispensable parties. On this occasion the trial court, for written reasons assigned, sustained the exception and ordered a dismissal of plaintiffs’ suit. Plaintiffs appeal.

The facts giving rise to the instant controversy and necessary for a decision of the issues presented on appeal are not in dispute.

Jodie Brodnax and Nannie Brodnax died owners of two tracts of land, a twenty acre tract of land located in Section 31, T. 2 N., R. 3 W., and a 30 acre tract of land located in Section 9, T. 1 N., R. 4 W., Rapides Parish, Louisiana. In due course their ¡successions were opened and the heirs of Jodie and Nannie Brodnax were judicially recognized as owners and sent into possession of their estates including the two tracts of land. Thereafter, in the year 1979, all-heirs of Jodie and Nannie Brodnax, with the exception of the three named defendants, entered into a conventional partition in kind of both tracts of land. As a result of the partition referred to Archie Lee Brodnax received that portion of the 20 acre tract of land described as Lots 1 and 2 of the Jodie M. Brodnax Estate, as per survey of Barrett Gremillion dated August 6, 1968, the property here in controversy. Presumably, either before or following this conventional partition, plaintiffs built a home and other improvements on the property. In the latter part of the year 1979 plaintiffs instituted this suit against defendants seeking a partition by licitation of that portion of the 20 acre tract of land allotted to plaintiffs in the conventional partition and reimbursement for the enhancement in value of the property resulting from the improvements constructed thereon by plaintiffs.

From the record it appears that this matter was tried on its merits but the trial court did not reach the merits but rather, concluded that plaintiffs’ suit should be dismissed for lack of indispensable parties. In so concluding, the trial court opined as follows:

“The plaintiffs rely on L.S.A. — RS 18:4985, et seq. which reads as follows, to-wit:
‘Where real property is partitioned, either in kind or by licitation, by either judicial or conventional partition the fact that one or more coowners (sic) are not parties thereto shall not affect the validity of such partition as to the co-owners who are parties thereto or their heirs or assigns; provided that the rights of any co-owner not a party to such partition shall not be affected thereby and the interest of such co-owner in the property partitioned shall remain the same as if the property had not been partitioned. Acts 1952, No. 408, § 1. (Emphasis added)
The defendants argue that since they were not parties to the voluntary partition the plaintiff cannot partition Lot 1 and Lot 2 without partitioning the entire 20 acre tract. It is the contention of the defendants that they continue to be collectively, owners in indivisión of a aAsths interest in the entire twenty acre tract.
Whether the plaintiff can force a judicial partition of Lot 1 & Lot 2 will necessarily depend on the interpretation of the second phrase of L.S.A.-RS 18:4985, which reads as follows:
provided that the rights of any co-owner not a party to such partition shall not be affected thereby, and the interest of such co-owner in the property sh^_remajnthe_same_^Jfthe_prppz ertv had not been partitioned.’ (Emphasis Added)
The plaintiffs cite Llovd J. Lewis, et al. v. Henry Bell, et aL 137 So.2d 706 (3rd Cir., Jan. 29, 1962), for authority to further partition Lot 1 & Lot 2 of the twenty (20) acre tract. Lewis v. Bell, (supra) does not interpret the second phrase of RS 13:4985, but only finds that all co-owners do not have to be parties to a partition for it to be valid, between the parties to the partition. This applies to both judicial & conventional partitions.
The courts, however, have not interpreted the statute with respect to the rights of a co-owner not a party to the partition. Does the co-owner, not a party to the partition, retain his undivided interest in and to the entire acreage that was partitioned or does he now own an undivided interest in a number of small tracts of land? Do the defendants own an undivided aAs interest in the complete twenty (20) acres, or do they own 3As interest in a number of smaller lot size tracts of land?
If I were to declare the defendants to be co-owners in each of the several small tracts that the other co-owners have created I would in fact be adversely affecting their rights and their interest would not be the same. They would have a aAs ths interest in several contiguous (sic) tracts and not in the twenty (20) acre tract as a whole and this is exactly what is prohibited. The other co-owners are trying to force a partition in kind by private act and this cannot be done.
Accordingly plaintiffs (sic) suit is dismissed at their costs.”

Appellants urge that the trial court erred in failing to render judgment in favor of plaintiffs and in the alternative urge that it was error to dismiss the proceeding without allowing plaintiffs the opportunity to join other parties and/or amend the lawsuit to include additional property pursuant to the authority granted by LSA-C.C.P. Article 934.

We need not address appellants’ alternative specification of error as we conclude, for the reasons which follow, that the trial court erred in sustaining the exception of non-joinder of indispensable parties and dismissing plaintiffs’ suit.

As a result of the 1979 partition, which is admittedly valid as to all heirs of Jodie and Nannie Brodnax other than the defendants (LSA-R.S. 13:4985; Lewis et al. v. Bell et al., 137 So.2d 706 (La.App. 3rd Cir. 1962), plaintiffs acquired a 45/4sth interest in Lots 1 and 2 of the Jodie M. Brodnax Estate in exchange for their interest in the balance of the 20 acre tract. Defendants admittedly own the remaining 3/«ths interest in Lots 1 and 2, there being no other persons owning any interest in such property. Since co-ownership is the basis for the action of partition and since no one can be compelled to hold property with another (C.C. Articles 1289 and 1308) plaintiffs are vested with the absolute right to demand a partition of Lots 1 and 2 of the Jodie M. Brodnax Estate. This is what they have demanded in their petition for judicial partition. Further, there are no parties necessary or indispensable to a determination of this demand who are not parties to the action.

The trial judge clearly erred in concluding that plaintiffs cannot demand a partition of Lots 1 and 2 of the Jodie M. Brod-nax Estate without demanding a partition of the entire twenty acre tract because defendants continue to be collectively owners in indivisión of a %8ths interest in the entire twenty acre tract.

Even if we concede, for purpose of argument only, that defendants retain theft undivided 3/48th interest in the 20 acre tract, this does not alter the fact that plaintiffs have no interest whatever in the balance of the 20 acre tract and have no right to demand a partition thereof. In fact under the admitted facts only defendants, be they owners of an undivided %8th interest in the 20 acre tract or owners of a like interest in several contiguous tracts, can demand a partition of the entire 20 acre tract. Such a demand is clearly not embodied in their demand for a dismissal of plaintiffs’ suit for non-joinder of indispensable parties.

We do not reach the issue as to the intent and meaning of LSA-R.S. 13:4985, insofar as it applies to co-owners not parties to a judicial or conventional partition, for assuming arguendo that its meaning is that attributed to it by the trial judge and defendants retain an undivided 3/4sths interest in the whole of the 20 acre tract as opposed to several contiguous tracts, the fact remains that this suit, in its present posture, is one for partition of Lots 1 and 2 of the Jodie M. Brodnax Estate; such property is owned in indivisión by plaintiffs and defendants with no others owning an interest therein; and, plaintiffs have an absolute right to demand a partition thereof.

For these reasons, we conclude that the trial court erred in sustaining the exception of non-joinder filed by defendants and dismissing plaintiffs’ suit.

Since this matter was not considered on its merits by the trial court, we believe that a remand is in order for further proceedings, with the opportunity being allowed all parties for the filing of any additional pleadings which they might wish to v file along with the right to introduce any additional evidence deemed necessary.

For the above and foregoing reasons the judgment of the trial court is reversed and set aside, defendants’ exception of non-join-der of indispensable parties is overruled and this matter is remanded to the trial court for further proceedings consistent with the views expressed.

REVERSED AND REMANDED.

      . The record reflects that the exception of non-joinder first filed by defendants was. considered by District Judge Robert P. Jackson. The later re-filed exception was considered by District Judge Richard E. Lee.


author: CUTRER, Judge.

text:
    Leon BOURQUE, Plaintiff-Appellee, v. Mrs. Easton SINGLETON, Defendant-Appellant.
    No. 82-40.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      DeJean, DeJean & DeJean, Robert F. De-Jean, Sr., and James T. Genovese, Opelou-sas, for defendant-appellant.
    Frank P. Trosclair, Jr., Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Leon Bourque filed a petitory action against defendant, Mrs. Easton Singleton, on April 18, 1977. Trial on the merits was held and judgment was rendered in favor of plaintiff on February 14, 1980.

On March 14, 1980, defendant filed a motion and order of appeal, which order was executed by the court on that date upon condition that defendant furnish estimated costs in the amount of $300.00. The return date of the appeal was May 9, 1980.

The estimated costs were not paid. Subsequent to May 29, 1980, the defendant submitted to the minute clerk of the district court another motion and order for appeal with attached affidavits seeking to appeal in forma pauperis. The trial court declined to execute this new motion and order for appeal. On June 26, 1980, defendant’s counsel, after being advised of this denial, mailed to this court a request for execution of this motion and order for appeal. By letter from the clerk of this court dated September 11, 1980, the motion and order for appeal was returned unsigned to counsel for defendant advising him that the order should be presented to the district court under the provisions of LSA-C.C.P. art. 2126.

On November 24, 1980, counsel for defendant filed a motion for devolutive appeal without payment of costs. A hearing on this motion to appeal was held, and in reasons for judgment dated March 5, 1981, the district court denied defendant’s motion to appeal.

Formal judgment denying defendant’s motion to appeal was executed on September 12,1981. Defendant has appealed from this adverse judgment. We affirm.

The district court, in its reasons for judgment dated March 5, 1981, correctly denied the appeal of defendant indicating that the months of delay, without any effort being made to proceed in forma pau-peris or to pay the estimated costs of appeal, constituted more than mere tardiness, and that to allow this appeal not only would be counter to legislative intent but, in effect, would make appeals endless.

An order allowing a person to further prosecute his case without prepayment of court costs or to furnish bond, roust be obtained during the time provided by law for perfecting this appeal. The time limitations for perfecting an appeal may not be successfully circumvented by seeking an order to proceed in forma pauperis after the delays for perfecting an appeal have elapsed. Brumfield v. Community Mobile Homes, Inc., 315 So.2d 901 (La.App. 1st Cir. 1975).

In this case, no effort was made by defendant to pay or to object to the estimated costs contained in the motion and order for appeal dated March 14,1980, and in fact, no attempt was made to appeal in forma pau-peris until more than 105 days after the judgment on the merits and more than 74 days after the filing of the first motion and order for appeal containing the estimated costs.

The defendant waited another 74 days after receiving the unsigned motion and order for appeal from the clerk of this court before presenting a new motion for appeal to the district court for determination.

The reasoning of the court in the case of Le Duff v. Prudential Ins. Co. of America, 345 So.2d 72, 74 (La.App. 1st Cir. 1976) is applicable to the case at hand. The court in Le Duff stated as follows:

“The pauper statutes do not grant an indigent person an infinite length of time in which to ask for this special privilege. They grant such a person relief from the obligation of paying court costs in advance, so that he will not be deprived of his day in court merely because of his poverty or lack of means.
“In the instant case, it is not the poverty or lack of means of the appellant which bars her further prosecution of this suit. The right existed; however, the effort to exercise such right was not well-timed.”

Accordingly, the judgment of the trial court is affirmed. All costs are assessed against the defendant-appellant.

AFFIRMED.


text:
    PINECREST STATE SCHOOL, Plaintiff-Appellant, v. STATE of La., OFFICE OF EMPLOYMENT SECURITY, et al., Defendants-Appellees.
    No. 82-49.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    James D. Caldwell, Jonesboro, for plaintiff-appellant.

      Kramer & Hammill, Bernard Kramer, Alexandria, Willie D. Maynor, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a suit for judicial review of an administrative determination that Maxie F. Ellis is entitled to unemployment compensation benefits. LSA-R.S. 23:1634.

Ellis was employed by the Pinecrest State School, an institution for mentally and physically impaired persons. Ellis’ duties were to care for and supervise the care of the patients in a cottage. She was supervisor over other employees who attended to the needs of the patients in the cottage. She was terminated from her employment on April 3, 1981, for the abuse of a patient by striking him and the improper administration of drugs on three occasions, once each year for 1979, 1980 and 1981.

Ellis filed a claim for unemployment compensation benefits which were denied by the Agency. Upon appeal of this ruling and, after a hearing, the appeals referee reversed the Agency determination and found Ellis qualified for benefits. The Board of Review affirmed the decision of the referee upon appeal by Pinecrest. Pine-crest then sought judicial review of the Board’s determination. The trial court, without reasons, affirmed the determination of the Board of Review. Pinecrest appeals. We affirm.

The issue on appeal is whether the trial court erred by affirming the determination of the Board of Review.

At the outset, we note that the scope of judicial review of a decision of the Board of Review is limited by LSA-R.S. 23:1634 which provides that findings of fact by the Board of Review, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the courts shall be confined to questions of law. The employer bears the burden of proving that a discharge resulted from disqualifying misconduct.

FACTS

James Loque was a patient at Pinecrest and was assigned to the cottage supervised by Ellis. Loque was approximately 5 ft. 7 in. tall, weighed 137 pounds and was in his 20’s. He was blind, retarded and could not communicate. He could not take care of any of his personal needs. He would spontaneously become very disturbed and was classified as a “head-banger.” He was not dangerous to those around him as he was blind, but when he went into one of his tantrums, he would flounce around somewhat wildly on the floor, hitting the floor repeatedly with his head. Loque had been assigned to Ellis’ cottage shortly before the alleged incident of March 17, 1981.

Marjorie Carter, an employee of Pine-crest, was assigned to the cottage supervised by Ellis and in which Loque was located. This witness testified that on March 17, 1981, Loque was lying on the floor hollering and hitting his head on the floor. She described Loque’s actions as creating quite a commotion. She stated that Ellis was attempting to quiet Loque and to get him to sit up. Carter stated that it was their duty to keep such patients from injuring themselves.

This witness stated that when Loque did not respond to Ellis’ attempt to get him to sit up, Ellis placed her feet upon Loque’s hands on the floor and struck him on the shoulder with a tennis shoe. She stated that the incident left a red mark on Loque’s shoulder. She stated that Kenneth Baker was present when the incident occurred.

It was brought to Carter’s attention on cross examination that her oral testimony varied from that of the typed statement previously made by her in connection with the investigation of the alleged incident.

Kenneth Baker, also an employee on duty at the time of the alleged incident, testified that he was not present in the room when the alleged incident took place. He did not see Ellis abuse Loque. He stated that when he came into the room, Ellis was standing near Loque telling him to get up and sit in a chair. Mrs. Carter showed him where Loque’s shoulder had a red mark. Baker explained that Loque could have gotten the red mark by “banging and crawling around bumping into something.” He explained this type of patient commonly got red marks on their body by their own actions. The red mark had disappeared by the following morning. Baker also stated that Mrs. Carter called him after the incident and told him that she wanted to get with him to get their stories straight.

Ellis, an employee of Pinecrest for eight and one half years, was supervisor of the cottage. She emphatically denied having abused Loque by striking him with a tennis shoe. Faced with this evidence, the referee made the following findings of fact:

“... The claimant was accused of standing on a patient’s hands while he was lying on the floor and hitting him with a tennis shoe on his shoulders. The claimant denied this. The patient is known as a head-banger and is also blind. The patient’s name is James Logue (sic), and when he becomes upset, he lies on the floor and bangs his head and flounders around. On the afternoon of March 17, 1981, the patient, James Logue (sic), became upset and did not want to take his medicine and laid down on the floor and was floundering around and banging his head on the floor. The claimant tried to calm him down so he would not hurt himself. Mrs. Margie Carter reported that the claimant had the patient, James Logue (sic), lying face down and arms straightened out with the palms of his hands facing down and stood on his hands and was hitting the patient with a tennis shoe, trying to make him behave. The claimant denied this. Mrs. Carter reported the incident to the next Charge who came on duty, who in turn reported it to Mr. Winniferd Sibley, Supervisor. Mr. Sibley went to the cottage and found a red mark on the patient’s shoulder. The next morning, the red mark was gone. The claimant states the patient could have gotten the red mark by hitting the floor or something when he was floundering around and denied she had hit him. No one else saw the claimant do anything wrong.. ..
“From the evidence and facts presented, it is not clear to the Referee if the claimant actually hit the patient or not. It is clear that the patient was known as a head-banger and did get upset easily and could have hit something that put a red mark on him. However, the mark was gone the next morning. Mrs. Carter, witness for the employer, is the only party that claims she saw the claimant hit the patient which the claimant denies doing....”

We conclude that the Board of Review, in affirming the decision of the appeals referee, is supported by the record. The conflict of testimony was resolved in favor of Ellis. The referee has both the authority and the duty to make findings of fact based upon the testimony or other evidence according to his impressions of credibility of same. We conclude that the employer failed to establish by a preponderance of the evidence that Ellis committed the abuse of the patient, James Loque.

Ellis was also charged with wrongfully giving medication to patients. The charges involve one incident in each of the years of 1979, 1980 and 1981. The medication was given to the patients in two dosages; one at 4:00 P.M. and the other at 8:00 P.M. Ellis was accused of giving double dosages at 8:00 P.M. instead of giving the dosages at 4:00 P.M. and 8:00 P.M. as required by the attending physician.

Ellis, testifying at the hearing, stated that she told Mr. Stuckey, the superintendent of Pinecrest, that she had given double dosages of medicine once in 1979 and once in 1980. She clarified the circumstances surrounding each occurrence. In 1979, the 4:00 P.M. medicine was overlooked and her supervisor at that time, Ms. Aycock, told her to give both dosages at 8:00 P.M., but not to let it happen again. In 1980, Marjie Carter was bitten by a patient as she tried to give the 4:00 P.M. dosages and the medicine was not administered. No supervisor could be reached so Ellis, relying on Ms. Aycock’s prior statement, administered both dosages at 8:00 P.M.

As to the March 17, 1981 dosages, Ellis stated that she was not present at the 4:00 P.M. dosage as she was in a medicine training class. The 4:00 P.M. double dosage was given by an employee, James Tolbert. Ellis stated that she did not instruct Tolbert to give both dosages at 4:00 P.M. She learned of the double dosage at 5:30 P.M. when she counted the medicine.

The evidence fully supports the findings of the referee which was affirmed by the Board of Review and the trial court. Ellis did not commit any intentional wrong on the three occasions with which she was charged with the wrongful administering of medications.

The record supports the Board of Review and the trial court in the conclusion that Ellis is qualified for unemployment compensation.

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    SLINE INDUSTRIAL PAINTERS, INC, Plaintiff-Appellant, v. Cleveland GODEAUX, Jules J. Perodin, Julius Bourque and Administrator of the Department of Employment Security, State of Louisiana, Defendants-Appellees.
    No. 82-48.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Raggio, Cappel, Chozen & Berniard, Christopher M. Trahan, Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellee.
    Willie D. Maynor and James A. McGraw, Baton Rouge, Barker, Boudreaux, Lamy, Gardner & Foley, Joseph M. Abrams, New Orleans, Newman & Thibodeaux, Ulysses Gene Thibodeaux, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this case, plaintiff, Sline Industrial Painters, Inc. (hereafter Sline) seeks judicial review of awards of unemployment compensation benefits to several of its employees under the Louisiana Employment Security Law (LSA-R.S. 23:1471 et seq). This matter was consolidated at the trial level and remains consolidated on appeal with the case entitled Julie W. Jolly v. Administrator, Division of Employment Security and Sline Industrial Painters, Inc., which latter case bears our docket number 82-47, 417 So.2d 85 (La.App.). A question as to the timeliness of Jolly’s appeal to the Appeals Referee required a separate filing, however, ultimately it was determined that Jolly’s appeal to the Appeals Referee was timely and this determination is now final. The issues in both suits are identical and although we will discuss such issues in one opinion, we will render a separate decree in the Jolly case.

On May 1, 1980, as a result of a contract dispute, Iron Workers Local No. 678 went on strike. Pursuant to the aforesaid strike, the iron workers established picket lines at a majority of the industrial plants in the Lake Charles, Louisiana area. The claimants in the present suit were unemployed from May 1, 1980 to May 24, 1980, which represents that period of time in which the iron workers were on strike. It is this period of time for which claimants sought unemployment benefits. Multiple claims for unemployment compensation benefits were filed and such claims were consolidated for decision. All of the claimants were employees of Sline at the time in dispute. None of the aforementioned claimants were members of Iron Workers Local No. 678.

The claimants initially filed for unemployment benefits with the Office of Employment Security, a division of the Louisiana Department of Labor (hereafter the Department). The Department denied their claims after concluding that the claimants were disqualified from receiving benefits because they were unemployed as a result of a labor dispute in which they were participating and/or in which they were interested. LSA-R.S. 23:1601(4).

The claimants timely appealed their disqualifications and all appeals were consolidated for hearing pursuant to LSA-R.S. 23:1631. After a joint hearing the Appeals Referee reversed the decision of the Department. In his written decision, the Appeals Referee extensively reviewed the testimony of the several witnesses who testified and ultimately concluded as follows:

“From the facts and testimony presented and a review of the records in this case it must be concluded that the claimants were unemployed as a result of a labor dispute. However, the claimants have shown that they in no way participated in, were not interested in, nor did they benefit in any way from the outcome of the labor dispute. Further, it has been shown that equipment had been cleaned and secured and some of the equipment had been removed from the job site prior to the pickets being established. Further, although the employer contends that work was available there was not any supervision on the job site nor were safety permits, which are required on a daily basis, picked up by the employer. The employer did not make any effort to secure people to man the job sites in question. Based on the above, it must be concluded that the claimants in this instant case could not have performed work on the job site since they did not have any supporting crafts nor did they have equipment needed to perform their jobs.”

Sline timely appealed the decision of the Appeals Referee to the Louisiana Board of Review. LSA-R.S. 23:1630. After reviewing all the testimony, evidence, and the records in the instant matters, the Board of Review concluded that the claimants would have reported to work and would have worked had work been available in their craft. Additionally, the Board concluded that the claimants did not assist or participate in the iron workers strike; were not involved in any dispute with Sline at the time; and did not benefit in any way from the strike. The Board ultimately concluded that the decision of the Appeals Referee was supported by sufficient evidence and affirmed the same. Thereafter, Sline filed a petition for judicial review with the Fourteenth Judicial District Court for the Parish of Calcasieu, Louisiana. LSA-R.S. 23:1634. The district court, after reviewing the evidence received during the prior administrative proceedings, affirmed the decision of the Louisiana Board of Review. Sline appeals from that judgment.

On appeal, Sline contends that the administrative bodies and the district court erred in concluding that the claimants are entitled to unemployment compensation benefits because the claimants failed to sustain their burden of proof regarding their lack of participation or interest in the subject labor dispute. In this regard, Sline argues that the record lacks sufficient evidence to support the findings of the Appeals Referee which were subsequently affirmed by the Board of Review.

In Cotton Brothers Baking Company, Inc. v. Bettevy, 367 So.2d 1274 (La.App. 3rd Cir. 1979), our court, in setting forth the scope of appellate review of suits arising under the Louisiana Employment Security Law stated:

“At the outset, we note that the scope of our appellate review in cases arising under the Louisiana Employment Security Law is expressly limited by statute. In unemployment compensation cases, our jurisdiction is confined to questions of law and the findings of the Board of Review as to facts, if supported by sufficient evidence, and in the absence of fraud, is conclusive. La.R.S. 23:1684; Lingo v. State of Louisiana, Department of Employment Security, 364 So.2d 1367 (La.App. 3rd Cir. 1978).”

There has been no allegation of fraud. Thus, the issue presented to this court involves a determination of (1) whether the factual findings of the Board of Review are supported by sufficient evidence in the record; and, (2) whether the Board, after making such findings of fact, correctly applied the law to the same.

We have carefully reviewed the record of the evidentiary hearing before the Appeals Referee and conclude that there was sufficient support for each of the findings of fact made by him.

Having concluded that the factual conclusions of the Appeals Referee, subsequently affirmed by the Board of Review and the trial court, are supported by the record, we must now determine whether or not the Board of Review correctly applied the law in determining that the claimants are entitled to unemployment benefits for the period in dispute. Our review of the record and the applicable statutory authority reveals that the Board of Review correctly applied the law in its conclusion that the claimants are entitled to unemployment benefits. LSA-R.S. 23:1601 sets forth the circumstances under which a claimant for unemployment benefits can be disqualified from receiving the same. Pertinent to our discussion is subsection 4 of that statute which pertains to disqualification due to ongoing labor disputes. The aforesaid subsection provides:

“An individual shall be disqualified for benefits:
* * sfs * * *
(4) For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment. For the purposes of this Sub-section, if separate branches of work which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall be deemed to be a separate factory, establishment or other premises.”

Since the claimants have affirmatively shown that they were not interested in nor participated in the labor dispute which caused their unemployment, there appears to be no prohibition regarding the award of such benefits to them. Thus, we find that the Board of Review correctly applied the law to the facts of the instant matter.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff, Sline Industrial Painters, Inc.

AFFIRMED.

      . This matter involves the claims of some 107 employees of Sline, all of whom sought unemployment compensation benefits for the period from May 1, 1980 through May 24, 1980.


text:
    Julie W. JOLLY, Plaintiff-Appellee, v. ADMINISTRATOR, DIVISION OF EMPLOYMENT SECURITY and Sline Industrial Painters, Inc., Defendants-Appellants.
    No. 82-47.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Raggio, Cappel, Chozen & Berniard, Christopher M. Trahan, Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellee.
    Willie D. Maynor and James A. McGraw, Baton Rouge, Barker, Boudreaux, Lamy, Gardner & Foley, Joseph M. Abrams, New Orleans, Newman & Thibodeaux, Ulysses Gene Thibodeaux, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons this day assigned in the companion suit bearing out docket number 82 — 48, Sline Industrial Painters, Inc. v. Cleveland Godeau, et al., 417 So.2d 82, La.App., the judgment of the district court is affirmed. Sline Industrial Painters, Inc. is cast for all costs of this appeal.

AFFIRMED.


text:
    Ronald LACOUR, et al., Plaintiffs-Defendants in Reconvention-Third Party Plaintiffs-Appellees, v. STATE FARM INSURANCE COMPANY, Defendant-Plaintiff in Reconvention-Third Party Plaintiff-Appellant, and Louisiana Department of Transportation and Development, Defendant-Third Party Defendant-Appellee.
    No. 82-52.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Gist, Methvin, Hughes & Munsterman, Victor H. Sooter, Alexandria, for defendant-plaintiff in reconvention-third party plaintiff-appellant.
    Knoll & Knoll, Kerry L. Spruill, Marks-ville, for plaintiffs-defendants in reconvention-third party plaintiffs-appellees.
    L. Gordon King, Baton Rouge, Brittain & Williams, R. Stewart Wright, Natchitoches, for defendant-third party defendant-appel-lee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Ronald Lacour and his wife, Donna Lacour, originally instituted this suit against State Farm Insurance Company (State Farm), defendant-appellant, for property damage resulting from a vehicular collision involving two automobiles, one driven by Mrs. Lacour and the other driven by State Farm’s insured. The claim was subsequently amended to include the Louisiana Department of Transportation and Development (DOTD) as an additional party defendant. Various incidental actions were filed, including a reconventional demand by State Farm against plaintiff, a third party demand by plaintiffs against DOTD for contribution as per State Farm’s reconventional demand, and a third party demand by State Farm against the DOTD, and the Town of Moreauville.

Finding the sole legal cause of the accident to be the negligence of State Farm’s insured, the trial judge rendered judgment in favor of plaintiffs and against State Farm in the amount of $685.07. Similarly, he dismissed all other pending incidental demands. State Farm appeals urging that the trial court erred in finding its insured negligent, and in dismissing its reconven-tional and third party demands. Plaintiffs answered the appeal urging affirmation of the judgment below, and alternatively suggesting that the trial judge erred in dismissing their demands (direct, and third party) against the DOTD.

The substantial issues on appeal are:

(1) The negligence of State Farm’s insured;
(2) The negligence of plaintiff, Mrs. Lac-our; and
(3) The negligence of the State.

The accident in question occurred at the intersection of Louisiana Highway 114 and Louisiana Highway 451 in the town of Mor-eauville, Louisiana. A schematic sketch (prepared by a traffic engineer for the Department of Transportation and Development and attached to this opinion as Appendix 1) accurately depicts the accident scene. Because of the peculiarity of this intersection, Appendix 1 is invaluable in fully understanding the layout of the accident scene, which defies simple narrative description.

The facts, which are essentially undisputed, reflect that State Farm’s insured, Donna Tassin, was traveling in a generally northerly direction (as per Appendix) on Louisiana Highway 114 with the intent to proceed in a generally straight direction onto Louisiana Highway 451. (The Appendix reflects that one branch of Louisiana Highway 451 turns into Louisiana Highway 114 approximately at the point of impact— Point B). The record clearly indicates (as portrayed by the Appendix) that there were no signs facing Mrs. Tassin instructing her to stop or yield before she proceeded through the intersection. As Mrs. Tassin approached the intersection, plaintiff, Donna Lacour, was proceeding in a generally westerly direction on Louisiana Highway 114 with the intention of remaining on Louisiana Highway 114 as it veered to the left heading in a generally southwesterly direction. Mrs. Lacour testified that she yielded to traffic proceeding on Louisiana Highway 451 and turning left onto Louisiana Highway 114 (see Appendix), and then proceeded into the intersection. The impact occurred at the point where the lanes in which the respective drivers were traveling merged. (See Appendix — Point B).

The trial judge held that the yield sign at Point A (see Appendix) did not control Mrs. Lacour’s lane of travel throughout the intersection, and with the absence of any other control signs in the vicinity of the intersection to direct either driver, this was in effect an unmarked intersection. In so finding, the trial judge then held for plaintiffs and against State Farm applying La. R.S. 32:121 which provides:

“A. When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.
B. The right of way rule declared in Subsection A is modified at through highways and otherwise as hereinafter stated in this part.”

We reverse in part and affirm in part.

It is abundantly clear that the intersection in question was not uncontrolled. Buck Morton, The District Traffic Operations Engineer for the DOTD, testified that there are plenty of signs controlling and directing traffic at this intersection. He adds, that there are so many signs “it’s unbelievable”. The Appendix supports his testimony.

Our jurisprudence has long held that the directional right-of-way favoring the vehicle on the right in La.R.S. 32:121 applies only at uncontrolled intersections. Zemo v. Louviere, 349 So.2d 420 (La.App. 4th Cir. 1977); writ denied, 351 So.2d 161 (La.1977); Barnum v. Crayton, 186 So.2d 452 (La.App. 1st Cir. 1966). When traffic signals or signs control the intersection then those signals or signs designate the favoring highway or lane of travel. La.R.S. 32:123. Accordingly, we feel that the trial judge was manifestly erroneous in concluding that this intersection was an unmarked one, and thereby finding that State Farm’s insured was negligent in failing to yield the right-of-way to plaintiffs’ vehicle as mandated by La.R.S. 32:121, supra.

A review of the record clearly shows that Mrs. Tassin, State Farm’s insured, faced no control signs as she approached the intersection. Additionally, the record is void of any evidence tending to establish any negligence on her part. Mrs. Tassin testified that she proceeded towards the intersection well below the speed limit, and she did not notice plaintiff’s vehicle until Mrs. Lacour pulled into her path, at which point it was too late to avoid the accident. We fail to discern any negligence on the part of State Farm’s insured.

For the reasons hereinafter stated we find that the sole proximate cause of the collision was the negligence of the DOTD in improperly signing the poorly designed intersection.

As aforesaid, the Tassin vehicle faced no traffic signs as she proceeded through the intersection. We agree with the trial judge who found that the yield sign located at point A of the Appendix, which is approximately 150 feet away from the point of impact, did not control Mrs. Lacour’s lane of travel throughout the intersection. Instead, the aforesaid yield sign directs the motorist traveling on Louisiana Highway 114 to yield to traffic traveling from Louisiana Highway 451 onto Louisiana Highway 114 in an easterly direction. To hold otherwise simply is not plausible (see Appendix). Consequently, we find that Mrs. Lacour was not negligent in assuming that she could proceed safely through the intersection as the favored lane of travel once she yielded to traffic traveling east off of Louisiana Highway 451 onto Louisiana Highway 114.

The apparent right-of-way granted both drivers obviously emanates from the improper signing of this poorly designed intersection by the DOTD, rather than any negligence on the part of either driver. This Court, in Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975) discussed the issue of the liability of the Department of Highways as follows:

“The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonably prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974); Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).”

In finding liability on the part of the state, as outlined above, we need look no further than the testimony of Buck Morton, District 8 Traffic Engineer. It is Mr. Morton’s responsibility for the design of intersections as well as the placement and maintenance of traffic control devices on state routes within District 8 (which includes the intersection involved here). In his testimony, Mr. Morton admitted that he did not like, from a professional standpoint, this particular intersection, and that it had existed without correction for over eleven years. Mr. Morton indicated that this intersection could be described as being “bad”, and “not well designed”. He further admitted that the yield sign (located at point A of the attached Appendix) should have been closer to the intersection where the collision occurred. By the testimony of the DOTD’s own engineer, it is clear that this intersection is confusing and lacking proper design. This patently dangerous condition or defect has been allowed to persist in excess of eleven years, yet the DOTD failed to take any steps to alleviate its danger. Accordingly, we feel the record overwhelmingly supports a finding that the sole proximate cause of the collision was the negligence on the part of the DOTD. Therefore, plaintiffs are entitled to judgment against the DOTD as prayed for in their principal demand below.

For the above and foregoing reasons the judgment of the trial court is reversed and recast as follows:

It is Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs, Ronald and Donna Lacour, and against defendant, the Department of Transportation and Development, in the amount of $685.07, plus legal interest thereon from date of judicial demand.

It is further Ordered, Adjudged, and Decreed that all other demands of plaintiffs and defendant, State Farm, be dismissed.

Costs at trial and on appeal are assessed against defendant, Louisiana Department of Transportation and Development.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

■APPENDIX 1

      . Plaintiffs’ property damage claim is predicated upon an automobile repair estimate of $685.07 made part of this record.

      . State Farm’s reconventional demand is for property damage in the amount of $362.23 evidenced by a repair estimate receipt and a sub-rogation receipt for a like amount.

      .The town of Moreauville was subsequently dismissed pursuant to a motion for summary judgment. No appeal was taken from that judgment.

      . Ibid 1.

      . DOTD, defendant herein, was formerly entitled the Louisiana Department of Highways.


author: CARTER, Judge.

text:
    Barbara Jean HILL v. Tina E. HAMILTON, et al. Nolan OUBRE v. Tina E. HAMILTON, et al.
    Nos. 14988, 14989.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Russell T. Tritico, Lake Charles, for plaintiff, appellee Hill.
    Edward P. Lobman, Metairie, for defendant, appellee Hamilton, et al.
    Robert F. Shearman, New Orleans, for plaintiff, appellant Oubre.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge.

This is an appeal by Nolan Oubre, the surviving spouse of the deceased, Alnita Mott Oubre, from a judgment of the trial court awarding Barbara Jean Hill, the surviving daughter of the deceased, two-thirds of the sum deposited in the registry of the court ($13,333.33), and the husband one-third of the deposited sum ($6,666.67).

This case arises out of an accident on January 10, 1980, in which Alnita Oubre, age 50, was instantly killed when struck by a vehicle being driven by Tina E. Hamilton in Covington, St. Tammany Parish, Louisiana, as Mrs. Oubre walked along the edge of a public roadway. The liability of the driver of the vehicle was conceded and is not an issue in this case.

At the time of the accident, there was a liability insurance policy carried by State Farm Mutual Automobile Insurance Company and an uninsured motorist clause in the liability policy of the deceased carried by Aetna Insurance Company. The insurance policies were in the amount of $10,000 each, making a total of $20,000 available coverage. These funds were deposited in the registry of the court, and a restrictive dismissal was granted to the defendants, with rights reserved to “litigate the apportionment of the settlement funds.”

The claimants to the funds are Barbara Jean Hill, the major daughter of the deceased, 28 years of age, and Nolan Oubre, the surviving husband of the deceased, 50 years old. The record reflects that Mrs. Hill had been married for 13 years and had resided with her husband and two children in the State of Missouri since 1972. The trial court found that “Mrs. Hill was very close to her mother, that her mother thought a great deal of her and her children.” The evidence in the record reveals that the Oubres lived together for about six years before their marriage and that they had been married for only a brief time. Nevertheless, the trial court found that Mr. Oubre had a “close relationship” with the deceased.

We accept the factual findings of the trial court, as quoted above, but we think the trial court erred in allocating the funds on the basis of two-thirds to the major child and one-third to the husband. The law is settled that damages for wrongful death should be shared equally by the survivors. Davis v. Owen, 368 So.2d 1052 (La.1979), and the cases cited therein. There is nothing in LSA-C.C. art. 2315 to suggest that there should be a preference among members of the primary class of those to whom actions survive. See Austrian v. City of Baton Rouge, 282 So.2d 434 (La.1973). Hence, we amend the judgment to award $10,000 to each claimant; the award to Mrs. Hill is reduced to $10,000; and the award to Mr. Oubre is increased to $10,000.

For the foregoing reasons, we amend the judgment appealed and as amended, affirm. We assess the costs of this appeal equally between appellant and appellee.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Two separate lawsuits were filed, one by Barbara Jean Hill, the major daughter of the deceased, and the other by Nolan Oubre, the surviving husband of the deceased, Alnita Ou-bre.

      . The deceased had married Nolan Oubre on December 24, 1979, and was killed on January 10, 1980.


text:
    Linda ALEXANDER, Plaintiff-in-rule-Appellee, v. Claude ALEXANDER, Defendant-in-rule-Appellant.
    No. 82-59.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Saunders & Walker, Anthony L. Walker, Ville Platte, for defendant-in-rule-appellant.
    James P. MacManus, Lafayette, for plaintiff-in-rule-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is an appeal from a judgment ordering defendant-in-rule-appellant, Claude Alexander, to pay to plaintiff-in-rule-appellee, Linda Alexander, his former wife, the sum of $100.00 per month for child support. At the time of the trial of the rule, which resulted in the judgment appealed from, appellant was incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. The trial court, cognizant of appellant’s unemployable status due to his imprisonment, fashioned its judgment awarding child support to appellee so that, although the sum owed begins to accrue as of September 1, 1981, such child support payments are not due until six months subsequent to appellant’s release from prison pursuant to the sentence which he is now serving. In addition, the trial judge ordered that such payments are not due until a hearing is conducted by the trial court to determine a reasonable payment schedule for those amounts which will be owed at the time of his release. The trial court further ordered that the appellant shall not be held in contempt for failure to pay the child support payments until six months after his release and after the trial court has held a hearing to formulate a suitable payment schedule. Claude appeals from that judgment. Linda has neither answered his appeal nor appealed from the aforesaid judgment.

Appellant and appellee were married on September 13,1975. One child, Kisha Alexander, was born of this union. The parties separated in November of 1979 and a judgment of separation from bed and board was obtained by Linda on January 25,1980. No award of custody and no award of alimony and child support was made in the latter judgment. Sometime during the year 1980 Claude was convicted of an undisclosed crime and thereafter incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. By judgment dated January 28, 1981, the parties were divorced with custody of the minor child being awarded to Linda. The latter judgment contains no award of alimony or child support. Sometime in the interim between the separation decree and the divorce decree, appellant instituted a suit for settlement of the community of acquets and gains. This latter suit was settled by compromise, as a result of which Linda received appellant’s interest in the family home in consideration of a payment by her to Claude of the cash sum of $5,000.00. Although the exact date of this settlement is not set forth in the record, the record does make clear that the $5,000.00 payment was made to Claude immediately prior to the filing of the instant rule. On August 31, 1981, Linda filed the instant rule seeking an award of child support for her minor daughter, Kisha.

Claude testified that shortly following receipt of the $5,000.00 cash payment, he paid his attorney the sum of $3500.00 for legal services to be rendered in connection with a hearing before the parole board scheduled for some two months subsequent to the hearing in this matter. As to the $1500.00 remaining, according to Claude and his mother, the same was expended in satisfaction of various other debts previously incurred by him. Claude’s mother, Mrs. Agnes Alexander, testified that she paid some of Claude’s debts with the remaining $1500.00 and that as of the time of the instant hearing, she no longer possessed any funds belonging to him. Such testimony stands uncontroverted. According to the record, at the time of trial, Claude owned no property or other assets whatever and he was totally unemployable by reason of his incarceration in the State Penitentiary.

Claude contends that the trial court erred in awarding child support to Linda since, at the time of trial of the instant rule, he was without means and absolutely unemployable.

LSA-C.C. Article 227 provides that parents have a mutual obligation of support, maintenance, and education of their children. The degree of support is determined by the needs of the child, as well as the circumstances of those who are obligated to pay it. See LSA-C.C. Articles 230 and 231; Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir. 1981); Moore v. Moore, 380 So.2d 180 (La.App. 2nd Cir. 1980); Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978). Although the circumstances of one obligated to pay support must be con sidered, it appears to be fairly well settled that a parent cannot be excused from the obligation of providing minimal financial assistance to his or her child absent a showing that he or she is without any means whatever and totally unemployable. Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir. 1975); Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir. 1973), writ denied, 278 So.2d 508 (La.1973); Viser v. Viser, 179 So.2d 672 (La.App. 2nd Cir. 1965); Mosley v. Mosley, 348 So.2d 225 (La.App. 3rd Cir. 1977), writ refused, 350 So.2d 1213 (La.1977). We believe it to be implicit that, in the application of these principles of law, an award in conformity therewith must be formulated in light of the circumstances which exist at the time the award is made, although, as to this latter, our courts have repeatedly refused to countenance a showing of inability to pay where such inability arises from the parents’ own voluntary acts which render the performance of the obligation difficult if not impossible. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (La.1959); Moore v. Moore, supra; Baer v. Simon, 334 So.2d 796 (La.App. 3rd Cir. 1976); Dugas v. Dugas, 374 So.2d 1278 (La.App. 3rd Cir. 1979). In Guinn v. Guinn, supra, we stated:

“The support obligation imposed on the father and the mother of minor children by LSA-C.C. Article 227 is firmly entrenched in our law and is a matter of public policy. Neither equity (LSA-C.C. Art. 21), nor practical inability to pay (LSA-C.C. Art. 232) overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure.” (citations omitted) (Emphasis ours)

Although this jurisprudential exception is usually applied in cases involving rules to reduce previously fixed alimony and child support awards, we believe such jurisprudential exception to be likewise applicable to an initial award as was the case in Guinn v. Guinn, supra.

In the present case, there is no dispute as to the need for an award of child support and although the evidence adduced establishes appellant’s practical inability to pay any award, the record, likewise, clearly reflects that the latter circumstance exists because of appellant’s voluntary use of assets, acquired shortly before a hearing in this matter, for the payment of a secondary obligation. As previously indicated, when the instant rule was filed plaintiff was possessed of sufficient means with which to provide some financial assistance to his child and thus, satisfy his obligation of support under C.C. Article 227. In deliberate disregard of this primary obligation, appellant contracted a subsequent obligation, and as a result, paid the sum of $3500.00 in legal fees to his attorney in connection with a future parole board hearing. Under such circumstances, we conclude that, although at the time of trial, appellant demonstrated his practical inability to respond in judgment, he should not be relieved from the payment of his support obligation under C.C. Article 227. As stated in Laiche v. Laiche, supra

“... the provisions of Article 232 of the Civil Code which, as applied to this case, declares that, when a person who gives alimony ‘ * * * is replaced2 (placed) in such a situation that the one can no longer give, * * * reduction of the alimony may be sued for and granted.’ This simply means that, if the person who is required to provide alimony becomes unable to do so, by reason of fortuitous events or other circumstances beyond his control, such as the loss of his position or illness, relief will be granted as it would be highly unjust to exact from the obligor a strict compliance with his duty under those conditions. But it would be contrary to the letter and spirit of the law to conclude that one required to pay alimony should be relieved therefrom, either wholly or partially, when he has brought about his own unstable financial condition by voluntarily incurring subsequent obligations, secondary to the alimony obligation, which render him unable to meet that obligation. Note the language of the codal article. It states he ‘is replaced (sic) in such a situation that the one can no longer give * * * ’, connoting an involuntary condition.
It is to be borne in mind that it is the primary obligation of plaintiff to support, maintain and educate his children (Article 227, Civil Code)8.... Indeed, any voluntary act by a parent which renders it difficult or impossible to perform the primary obligation of support and maintenance of his children cannot be countenanced as a ground for release, either wholly or partially, from the obligation.” (Emphasis ours) (footnotes omitted)

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to defendant-in-rule-appellant, Claude Alexander.

AFFIRMED.

      . Appellee in her brief to this court indicates that on two occasions previous to August 31, 1981, she filed rules seeking an award of child support, however, without success because of the defendant-in-rule’s lack of means. There is no evidence in the record to support this assertion other than a colloquy between counsel for appellee and the trial judge.


text:
    Vince CASTILLE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION and Wilson Motor Company, Inc., Defendants-Appellees.
    No. 82-61.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

The plaintiff, Vince Castille, appeals the judgment of the City Court for the City of Lake Charles and Ward 3, of Calcasieu Parish, dismissing the suit against Wilson Motor Company, Inc. (Wilson Motors) and General Motors Corporation (General Motors) for a reduction of the purchase price of a new 1979 Oldsmobile Cutlass. We affirm.

The only testimony presented at trial was that of the plaintiff. He testified that he purchased the car from Wilson Motors on February 28, 1979. Within a week he noticed a noise in the transmission. The transmission would hesitate or jerk as it went through its procedure of shifting. He returned it to Wilson Motors for repairs. Following this repair, the condition did not improve. He stated that the condition continued to exist and that he returned it to Wilson Motors numerous times for repair. Wilson Motors did not alleviate the problem. The last time he took it to Wilson Motors for the transmission problem was on December 28, 1979. After this attempt to repair, the condition was not remedied.

As to the situation after December 28, 1979, Castille testified as follows:

“Q. Oh, now, after December the 29th of 1979, did you continue to have these problems with your transmission?
“A. Yes sir, I did.
“Q. So, it’s been a continuous thing, even after December the 28th of 1979 .. . uh . . . you had . . . you continued to have problems of the same nature that you were complaining before?
“A. Yes sir.
“Q. What did you do about it?
‘A. Nothing.
“Q. Did you do anything about it? Did you take it back to Wilsons? Did you take it to any other repair shop? Did you ... uh ... or did you just keep on driving the car?
‘A. Figured since the ... uh ... Wilson Oldsmobile service department could not fix it, then who could? So, nothing was done about it.
“Q. But you didn’t take it to any other mechanic to see what they thought about it, is that correct?
“A. No sir, I trusted the service department where I bought the car.”

The plaintiff continued to drive the car even though the transmission problems persisted. On October 13,1980, plaintiff drove from Lake Charles to Baton Rouge. As he was driving around Baton Rouge, he noticed the noise getting louder and that it began to shift into first gear “a lot harder” than it had done before. It was also hesitating as it shifted into the higher gears. With the increase in noise and hesitation, the transmission failed completely. The car was not driveable.

The plaintiff had the transmission repaired by Aamco Transmission Company of Baton Rouge. This company installed a rebuilt transmission in the car for the sum of $705.02.

After amicable demand was made without results, plaintiff filed suit seeking a reduction in price for the cost of the repair of the transmission, damages and attorney’s fees. By answer, Wilson Motors and General Motors denied liability and pleaded prescription of one year. The trial judge gave oral reasons for judgment of dismissal concluding that plaintiff’s action had prescribed.

Plaintiff, on appeal, urges several assignments of error but we shall only discuss the issue of prescription as our conclusion on this issue disposes of the suit.

LSA-C.C. art. 2534 provides, in part, as follows:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.”

The jurisprudence is settled, however, that in the event the seller attempts to remedy a defect in the object sold, the one year prescription of art. 2534 begins to run only from the time the seller abandons his attempts to repair the defect. Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App. 3rd Cir. 1972).

In the case at hand, the plaintiff stated that the last repairs were made by Wilson Motors on December 28, 1979. The defective condition of the transmission continued thereafter, but he did not return it to Wilson Motors for further repairs. The condition of the transmission finally culminated in its complete failure on October 13, 1980. Suit was filed on March 28,1981, which was approximately one year and three months after the last repairs were made by Wilson Motors on December 28, 1979. Plaintiff’s suit for redhibition had clearly prescribed.

Plaintiff contends that his suit was timely filed as prescription did not begin to run until the failure occurred on October 13,1980. We disagree with this contention. The failure of October 13, 1980 was the culmination of a long period of transmission problems beginning one week after the purchase in February 1979. The noise, hesitation and jerking of the transmission began at that time and, by plaintiff’s own testimony, continued until October 13, 1980. On that date the noise and hesitation or jerking increased in severity resulting in the failure. This being the only testimony in the record, we can come to no other conclusion other than the plaintiff was put on sufficient notice that a defect existed in the transmission when the hesitation and noise first began, one week following purchase. The condition persisted and continued up and until the ultimate failure on October 13,1980. Prescription began to run December 28, 1979, the last repair performed by Wilson Motors, and not on October 13,1980.

For these reasons, the judgment of the City Court of the City of Lake Charles and Ward 3 of Calcasieu Parish, is affirmed. The plaintiff-appellant is to pay all costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    SIGUE TRUCKING, INC., Plaintiff-Appellant, v. INSURED LLOYDS, Defendant-Appellee.
    No. 82-84.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Haik, Broussard & Haik, Edwin S. Patout and Richard T. Haik, New Iberia, for plaintiff-appellant.
    Roy, Forrest & Lopresto, Alex A. Lopres-to, III, New Iberia, for defendant-appellee.
    Before FORET, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff filed suit against its collision insurer to recover an amount in excess of the sum tendered by the defendant. Following trial on the matter judgment was rendered in favor of plaintiff. From that judgment plaintiff has appealed seeking an increase in quantum, and defendant has answered the appeal seeking a reduction of same and reversal of the trial court’s award of penalty and attorney’s fees. We amend and affirm.

On November 2, 1977, a 1973 Mack tractor belonging to plaintiff, Sigue Trucking, Inc., and insured against damage by defendant, Insured Lloyds, was damaged when a portion of the trailer gave way while the driver was negotiating a turn, causing the load to shift and the tractor to be turned over on its side. The provider of the collision insurance was thereafter duly notified of the accident, whereupon the insurer hired the adjusting firm of Crawford and Company to prepare repair estimates. Crawford and Company assigned Mr. Ed Fontenot, who thereafter qualified as an expert in large truck repair, to prepare the estimate, which he did six days after the accident. His estimate of repair, involving repair and realignment of the damaged cab, in addition to the other work not in dispute, totalled $4,568.71. In arriving at this sum Mr. Fontenot took into consideration the fact that the cab was badly rusted prior to the accident. The estimate was conveyed to Mr. Donald Sigue, president of plaintiff corporation, who was also advised that Roper GMC and White Truck Sales had agreed to make the repairs for the price quoted. Mr. Sigue expressed dissatisfaction with the estimate and arrangements were made for additional inspection.

On December 18, 1978, the vehicle was again inspected by Mr. Fontenot who was accompanied by Mr. Marshall Thibodeaux, service manager for Roper GMC Truck Sales. Although Mr. Thibodeaux agreed that the work could probably be done as indicated in the original appraisal, they could not warrant same because of the preexisting rusting condition which had caused structural damage to the roof support. To be able to warrant the work, Mr. Thibo-deaux stated it would be necessary to replace the cab. A replacement cab would, in his opinion, increase the cost of repair. Mr. Fontenot failed to relate this information to his principal, Insured Lloyds.

On January 10, 1979, Insured Lloyds unconditionally tendered $4,318.71, representing the amount of the Roper estimate less a $250.00 deductible, to Sigue Trucking, nonetheless it was rejected.

Plaintiff thereafter, on March 15, 1979, contacted Lafayette Highway Equipment Company, the local Mack truck dealer, whose service manager, Mr. John Cross, estimated the cost of repair, using a new cab, at $9,444.75. This information was conveyed to the adjuster, Mr. Fontenot.

On June 6, 1979, plaintiff filed suit for money judgment in the sum of $20,000 against its collision insurer. Additionally penalties and attorney’s fees were sought pursuant to LSA-R.S. 22:658. Thereafter defendant Insured Lloyds filed a motion and order to deposit funds into the registry of the court admitting that plaintiff had suffered property damage but only to the extent of $4,318.00. The only element of damages seriously in dispute is the cost of repairing the cab. In determining the damages suffered, the trial judge noted that there was no evidence directly relative to the cost of restoration (as opposed to replacement) of the cab inasmuch as Mr. Thi-bodeaux testified that he could not warrant the repairs due to the pre-existing rust condition. The trial judge considered utilization of another test — cost of replacement, less depreciation, if the value before and after the damage cannot be reasonably determined or if the cost of repair is more than the value — to be inapplicable as there was no evidence in this regard. Accordingly the trial judge determined damages according to value differential: difference in value prior to and subsequent to damage. In doing so, he based the cost of a new cab at $4,900, which is supported by the estimates, and reduced that figure by 80% to account for the depreciated value of plaintiff’s cab prior to the accident, thereby reaching a total repair cost of $5,524.75. Reducing this figure by the $250.00 deductible renders a $956.04 differential between the amount tendered by the insurer ($4,318.71) and the sum found due by the court ($5,524.75).

With regard to plaintiff’s claim for penalties and attorney’s fees pertaining to the dispute as to the extent of damage, the trial judge reasoned that the preponderance of information possessed by the insurer indicated the cab would have to be replaced; therefore, their valuation of the loss at or lower sum than awarded constituted arbitrary, capricious conduct.

Therefore judgment was rendered in favor of plaintiff and against defendant in the sum of $5,274.75, subject to a credit of $4,318.71 together with legal interest on the sum of $956.04 from date of judicial demand until paid, all costs $274.75 as penalties and $1,500.00 as attorney’s fees. From that judgment plaintiff has appealed. Defendant has answered the appeal.

Two issues are presented for our review: first, the proper measure of property damage in this case; and secondly, whether the award of penalties and attorney’s fees was proper.

Plaintiff contends that the trial judge erred in depreciating the value of the replacement cab. Defendant contends that the trial judge erred in awarding its insured the value of the replacement cab, less depreciation, because the only problem with the original repair estimate was the fact that the work could not be warranted due to the rusted condition that existed prior to the accident, thus the cost of restoration is the proper test for determination of damages. In support of their respective positions each party places reliance upon Roshong v. Travelers Insurance Company, 281 So.2d 785 (La.App. 3rd Cir. 1973), wherein it was stated:

“In awarding property damages to a party who has been injured through the legal fault of another, the primary objective is to restore the injured party in as near a fashion as possible to the state in existence at the time immediately preceding the injury. Several tests have been formulated in order to realize this goal. In Granger v. Bouillion, 220 So.2d 764 (La.App. 1 Cir. 1969), and in Davis v. Roberts, 194 So.2d 772 (La.App. 1 Cir. 1967), it was recognized that three tests have been utilized in determining damages. The first is the cost of restoration, if the damaged object cannot be adequately repaired. The second is the difference in value of the damaged property preceding and subsequent to the injury. The third is if the value before and after damage cannot be fairly determined or if the cost of repairs exceeds the value of the thing damaged, damages should equal the replacement cost less depreciation.
In order to maintain the flexibility necessary to promote substantial justice to the parties in each instance, the test for damages selected, if one is appropos [sic] at all, is the one best fitted to the particular facts of each case.”

Applying the aforementioned principles to the facts of the Roshong case, which are not unlike those in the case at bar, the court concluded:

“The first test is inapplicable, since the damaged object can be adequately repaired. If the third test was applied, damages would be excessive, since Rosh-ong would then have $26,000 (a sufficient amount to construct a house of similar nature), and would still own the damaged structure. It was shown that the structure is currently neither valueless nor uninhabitable. Application of the third test would thus put Roshong not in a position similar to that in which he was situated prior to the blasts, but in a far superior one.”

No mechanical rule can be applied with exactitude in assessment of property damage; each case must rest on its own facts and circumstances as supported by proof in the record. Coleman v. Victor, 326 So.2d 344 (La.1976). We are satisfied from the record that the award granted is best fitted to the particular facts of the case and promotes substantial justice. Roshong v. Travelers Insurance Company, supra. Furthermore, we believe the result reached is consistent with the intention of the parties as reflected in their contract. The cost of restoration test is not per se apropos as the evidence indicates the damaged truck could be adequately repaired. The third above-mentioned test is not applicable as the cost of repair does not exceed the damaged item’s value and the value before and after damage can (and was) reasonably determined. Application of the third test would result in Sigue being placed in a superior position. The decision of dhe trial court achieves substantial justice; Sigue was not entitled to a new cab without an offset for depreciation of the damaged item, nor was it required to accept a questionably repaired cab in a rusted condition.

LSA-R.S. 22:658 provides in pertinent part for a penalty of 25% “of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount.” Under the circumstances presented, and consistent with the strict construction applied to penal statutes, we cannot say that the insurer’s method of estimation made their actions arbitrary, capricious or without probable cause. A bona fide dispute existed as to whether the cab could be repaired or whether replacement was necessitated. Accordingly, we amend the judgment to delete the award of penalties and attorney’s fees.

For the reasons set forth above the judgment appealed is amended to vacate the award of attorney’s fees and penalties. In all other respects the judgment is affirmed.

AFFIRMED AS AMENDED.

      . On our own motion we observe that this sum exceeds the statutory maximum of 25% of the difference ($956.04) between the amount tendered and the amount found to be due.