author: LABORDE, Judge. FORET, Judge,

text:
    Edgar M. SHIPP et ux, Plaintiffs-Appellees, v. CITY OF ALEXANDRIA et al, Defendant-Appellant.
    No. 7743.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, III, Alexandria, for defendant-appellant.
    Stephen E. Everett, Alexandria, for plaintiff-appellee.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant appeals from the trial court’s decision awarding plaintiff $5,000 in general damages and $864.50 in special damages. Plaintiff, Mrs. Edgar M. Shipp, had sustained a severely sprained left ankle when she stepped off an eleven inch curb onto De Soto Street which was a street built and maintained by defendant in its capacity as the municipal government of the city of Alexandria. The reason for her injury was alleged to be a defective expansion joint which had eroded and buckled, creating a pot-hole.

The trial court held that C.C. Art. 2317 applied and therefore the City would be strictly liable unless an intervening factor had caused the accident. Defendant appeals, arguing that strict liability under Loescher v. Parr, 324 So.2d 441 (La.1975) does not apply to public bodies and cites our decision in Gallien v. Commercial Union Insurance Company, 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ refused 354 So.2d 1379. Defendant also appealed the general damage award of $5,000 as being excessive.

The issue of whether or not C.C. Art. 2317 applies to public bodies has been raised several times since the Supreme Court decided Loescher v. Parr, 324 So.2d 441 (La.1975). The First Circuit in American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1977) held that C.C. Art. 2317 applied to the State Department of Highways; in Durbin v. City of Baton Rouge, 366 So.2d 1020 (La.App 1st Cir. 1978) and Jones v. City of Baton Rouge, 376 So.2d 1003 (La.App. 1st Cir. 1979) held the article applicable to the City of Baton Rouge; and in Joffrion v. Allstate Ins. Co., 374 So.2d 694 (La.App. 1st Cir. 1979) held the article applicable to City of Donaldsonville.

We have held that Art. 2317 did not apply to public bodies in Hebert v. Town of Ville Platte, 373 So.2d 229 (La.App. 3rd Cir. 1979) and Gallien v. Commercial Union Ins. Co., supra. However, we have in the past held public bodies subject to strict liability under C.C. Art. 667. Romero v. Town of Welsh, 370 So.2d 1286 (La.App. 3rd Cir. 1979).

We find no language in Art. 2317 which precludes its application to public bodies. It has been suggested that Romero, Durbin and similar cases reflect the waiver of liability in the 1974 constitution. “The Work of the Louisiana Appellate Courts for the 1978-1979 Term — Local Government Law,” 40 La.L.Rev. 681, 715 (1980). We agree that the modern trend is for public bodies to be treated in the same manner as private individuals unless policy considerations suggest otherwise. Therefore, we hold that the trial court was correct in applying Art. 2317 to this case.

In addition to urging the inapplicability of Art. 2317, appellants argue that a review of the facts presented to the trial court would show that Mrs. Shipp was at fault and therefore, the defendant is not liable. Under Art. 2317, defendant is liable unless the harm was caused 1) by the fault of the victim 2) by the fault of a third person or 3) by an irresistible force. Loescher v. Parr, supra. Fault has been interpreted to mean substantial factor. Loescher v. Parr, supra. Using the standard of review enunciated in Arceneaux v. Dominique, 365 So.2d 1330 (La.1978), we have reviewed the record and find no manifest error in the trial court’s holding that the victim was without fault.

We are also asked to review the award in this case. Under the standards enunciated in Coco v. Winston, 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979) in order to alter the court’s award, we must find a clear abuse of the trier of fact’s much discretion under C.C. Art. 1934(3). The trial judge awarded plaintiffs $864.50 for special damages and $5,000 for general damages. Mrs. Shipp suffered a severe sprain of her left foot and ankle on January 15, 1979. Her doctor testified that Mrs. Shipp’s ankle was still painful and swollen when he examined her on April 24, 1979. Mrs. Shipp testified that her foot and ankle are weaker than before and “turned easily,” therefore requiring the use of a cane. Mrs. Shipp was still using the cane at the time of trial on November 9, 1979. Based on plaintiff’s uncontradicted testimony and her doctor’s deposition, we find no abuse of the trial court’s much discretion; and accordingly, we affirm the award.

For the above reasons, the trial court judgment is affirmed in all respects. Cost of this appeal are taxed to appellant.

AFFIRMED.

FORET, J., dissents for reasons assigned.

FORET, Judge,

dissenting.

I respectfully dissent for the reasons stated by this Court in Hebert v. Town of Ville Platte, 373 So.2d 229 (La.App. 3 Cir. 1979) and Gallien v. Commercial Union Insurance Company, 353 So.2d 1127 (La.App. 3 Cir. 1977), writ refused, 354 So.2d 1379. In both of these cases, we refused to apply LSA-C.C. Article 2317 to a public body, for policy considerations, if for no other reason. I still adhere to the view and the long-standing jurisprudence that public bodies can be held liable under circumstances such as this only after a showing of actual or constructive knowledge of the defect. I therefore respectfully dissent.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Roger Dale DAVIS, Plaintiff-Appellee, v. John KEIFFER et al., Defendant-Appellant.
    No. 7820.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendant-appellant.
    Charles W. Seaman, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

This is a workmen's compensation suit. The only issue on appeal is whether the claimant, Roger Dale Davis, was employed by the defendants at the time of his injury.

On November 21, 1978, plaintiff was injured while in the company of Dennis Keif-fer, an employee of K. & K. Ranch, Inc. Keiffer was repairing a wheel on a hay wagon owned by his employer. In order to do so, he had to remove certain damaged parts from one of the wagon’s axles. When he struck the damaged parts with a hammer to effect their removal, a small piece of metal flew into plaintiff’s right eye, where it became imbedded and caused extensive damage. The eye had to be surgically removed, and a non-functioning prosthesis was installed in its place.

Plaintiff brought this suit against Dennis Keiffer, K. & K. Ranch, Inc., and two of the latter’s co-owners, John Keiffer and Arnold Kirkpatrick, seeking benefits for total and permanent disability. After a trial, the district court found that he was not employed by the defendants when he was injured and dismissed his suit. He appealed.

The evidence concerning plaintiff’s alleged employment by the defendants was conflicting. Plaintiff and his witnesses testified that although he had another full time job, he usually worked for the defendants on Tuesdays, his day off. He claimed that he was paid in cash, and that there was therefore no record of his employment. Plaintiff and his wife further testified that on the day that he was injured, Dennis Keiffer went to their home to see if plaintiff could work that day.

The defendants, on the other hand, denied that plaintiff was ever employed by K. & K. Ranch, Inc. Dennis and John Keiffer testified that plaintiff had worked for the Keiffers at an earlier time but that the employment relationship had been severed because they were unsatisfied with his performance. They further testified that when temporary employees were hired on an intermittent basis to help Dennis Keif-fer, who was the only full time employee of the corporation, they were always paid by check. The introduced into evidence the corporation’s checking account ledger to corroborate that claim. Dennis Keiffer also denied having gone to plaintiff’s home on the date that he was injured. He testified that he had met plaintiff at the Keiffers’ store in Winn Parish, and that plaintiff had asked to accompany him because he had nothing else to do that day.

Since there was virtually no objective evidence on which a decision could be based, the conflict in the testimony had to be resolved by evaluating the credibility of the various witnesses. This is an area that is peculiarly within the trial judge’s domain, because of his opportunity to observe the witnesses. Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3rd Cir. 1978). In this case, he obviously found the defendants’ witnesses more credible, and we find nothing in the record to show that he erred by doing so. Given that evaluation, we believe that the evidence clearly supports the judgment that was rendered.

For these reasons, the judgment appealed by plaintiff is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Ike BRADLEY and Mary S. Nolley, Plaintiffs-Appellants, v. James H. McKNIGHT, Natchitoches Parish Registrar of Voters, Defendant-Appellee.
    No. 8145.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 1980.

      Hargrove, Guyton, Ramey & Barlow, Jos-peh L. Shea, Shreveport, for plaintiffs-appellants.
    Michael Henry, Natchitoches, Charles E. Grey, Jr., and David E. Henderson, Baton Rouge, for defendant-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   FORET, Judge.

This is a mandamus suit brought pursuant to the provisions of LSA-R.S. 18Í197. The plaintiffs, Ike Bradley and Mary S. Nolley, registered voters in Natchitoches Parish School Board District No. 1, instituted this action pursuant to LSA-R.S. 18:197 against the Honorable James H. McKnight, the Natchitoches Parish Registrar of Voters, to compel him to remove thirteen voters (challenged registrants) from the registration rolls of Natchitoches Parish School Board District No. 1. Specifically, plaintiffs contend that the challenged registrants actually reside within the limits of School Board District No. 10, and are therefore not qualified electors of School Board District No. 1. Barney L. Kyzar, one of the challenged registrants and a candidate for the Natchitoches Parish School Board from District No. 1, intervened, contending that this action is actually a challenge to his candidacy and that such action has. prescribed. Prom a judgment denying their demands, the plaintiffs have perfected this appeal.

The boundary lines for Natchitoches Parish School Board Districts No. 1 and 10 were established by a resolution of the Natchitoches Parish School Board on July 16, 1972, and approved by the Federal District Court for the Western District of Louisiana on July 22,1972 in “Harry H. Turpin, et al v. Natchitoches Parish Police Jury, et al” Civil Action No. 14,659 on the docket of said court. The boundary lines of School District No. 1 were established as follows:

“School District # 1
Begin at a point where Williams Avenue intersects the East boundary of the City of Natchitoches, from this point of beginning, travel West on Williams Ave. to East 5th Street, thence South & East on East 5th St. to a point 900 feet North of Short St. and East 5th St. intersection, thence West to Cane River Lake, thence South along Cane River Lake to St. Denis St., thence West on St. Denis St. to Third St., thence North on Third St. to Texas St., thence West on Texas St. to T & P Rwy., thence North on T & P Rwy. to Ash St., thence West on Ash St., to Dixie St., thence South on Dixie St. to the NE corner of Lot 3 of Springville Addition, thence in a Northwesterly direction to the City limits, thence in a Northeasterly direction along the city limits to the point of beginning.”

A map, specifically outlining the boundary lines of the district was attached to the resolution and judgment. It is undisputed that the July 16,1972 resolution adopted by the School Board placed the challenged registrants in School Board District # 10.

In 1977, the City of Natchitoches annexed certain territory along Williams Avenue, lying in School District No. 10, thereby extending the city limits eastward. The contested registrants all reside within this annexed area. Although the Natchitoches Parish School Board took no action after the annexation to change the area or limits of School Board Districts No. 1 or 10, the Natchitoches Parish Registrar of Voters removed the challenged registrants from the registration rolls of School District No. 10 and placed them on the registration rolls of School District No. 1.

Defendant and Intervenor contend that the boundaries of School Board District No. 1 expanded automatically when the area in question was annexed in 1977, because the definition of the boundaries of the district established in 1972 can be construed to include the annexed area. This contention is without merit. The fact that the 1972 resolution included a map specifically delineating the boundaries of the district indicates that the school board did not intend to define flexible boundaries. Once a boundary line of a political entity is fixed along a pre-existing natural or artificial boundary, and that pre-existing boundary subsequently changes, it is presumed that the boundary of the political entity runs as it did at the time the boundary was fixed. See Parish of Caddo v. Parish of Bossier, 164 La. 378, 113 So. 882 (1927).

Due to the failure of the school board to take any subsequent action to change the boundaries of School District No. 1, we must conclude the boundaries of the district are the same as defined by the 1972 resolution. LSA-R.S. 17:1371 gives school boards the complete discretion in fixing the boundaries of its districts. Though the trial court specifically found that the registrar acted in good faith, a conclusion in which we concur, nonetheless only the school board has authority to fix and refix the boundaries of its districts and we must conclude, therefore, that the action of the registrar in changing the registration of the challenged registrants from School Board District No. 10 to School Board District No. 1 was ultra vires.

We now turn to intervenor’s contention that this action is actually a collateral attack upon his candidacy for membership on the school board. The qualification requirements for school board membership are set forth in LSA-R.S. 17:52, as amended by Act 285 of 1980. To qualify as a candidate for school board, one must be able to read and write, be eighteen years of age, have resided in the state for the preceding two years, and have been actually domiciled in the district from which he seeks membership. This suit contests the right of the intervenor and the other challenged registrants to vote in School District No. 1. This cannot be construed as a collateral attack on intervenor’s candidacy because applicable law, specifically R.S. 17:52 as amended, does not require that a candidate for parish school board be a registered voter of the district from which he seeks election. Additionally, the plaintiffs, in brief and at oral argument, assert that this action is not a challenge to intérvenor’s candidacy and concede that if the interve-nor receives a majority of votes in the runoff election, he can and must be seated as the duly elected board member from School Board District No. 1.

With this view we do concur, for the law is well settled that the qualifications of a candidate must be contested within the time limits fixed by law. In the absence of such a timely contest, that candidate must be seated, if elected, irrespective of whether or not he meets the qualifications for that office. Evans v. West, 357 So.2d 916 (La.App. 2nd Cir. 1978).

In summary, we hold that the boundaries of Natchitoches Parish School District No. 1 have not changed since the 1972 resolution of the Natchitoches Parish School Board, therefore, the challenged registrants were improperly placed on the registration rolls of School Board District No. 1.

For the above and foregoing reasons, the judgment of the District Court is hereby reversed and set aside, and it is ordered, adjudged and decreed that Arlene C. Burg-dorf, Sherrill Arlene Burgdorf, Sherwood Burgdorf, George Leopold Celles, IV, George L. Celles, Henry Cole Gahagan, Jr., Sharon Turcan Gahagan, Barney L. Kyzar, Emily Hardin Kyzar, Van Hardin Kyzar, Ramon Joseph Triche, Claudia Moore Triche and John B. Whitaker are ineligible to vote in the November 4, 1980 election for school board member of the Natchitoches Parish School Board District No. 1. Accordingly, the rule issued herein is made absolute, and pursuant to the provisions of LSA-R.S. 18:197 the Honorable James H. McKnight, Natchitoches Parish Registrar of Voters, is ordered to remove and erase from the records of his office the names of the above persons as duly qualified electors and/or registered voters in Natchitoches Parish School Board District No. 1.

REVERSED AND RENDERED.

      . LSA-R.S. 18:197: If the registrar fails or refuses to mail the notice, make the publication, or cancel a registration as required in connection with a challenge of registration made under provisions of R.S. 18:196, the person making the affidavit may apply to the district court for the parish, without cost, for a rule on the registrar, returnable within forty-eight hours after service, excluding Sundays and legal holidays, to cause the registrar to show cause why he should not do so. The rule shall be tried in a summary way and by preference, in term time or in vacation, and immediately upon conclusion of the hearing the court shall enter its order in the premises. If the rule is granted, the court shall fix a period of not more than three days after the date of the order within which the registrar shall comply therewith. Upon failure to do so, the registrar shall be held in contempt of court and punished accordingly.

      . The Challenged Registrants are: Arlene C. Burgdorf, Sherrill Arlene Burgdorf, Sherwood Burgdorf, George Leopold Celles, IV, George L. Celles, Henry Cole Gahagan, Jr., Sharon Tur-can Gahagan, Barney L. Kyzar, Emily Hardin Kyzar, Van Hardin Kyzar, Ramon Joseph Triche, Claudia Moore Triche and John B. Whitaker.

      . LSA-R.S. 18:493: An action objecting to candidacy shall be commenced in a court of competent jurisdiction within ten days after the close of qualifications for candidates in the primary election, or within ten days after the date when the defendant filed notice of his candidacy, whichever is later. After the expiration of the later of the time periods set forth in this Section, no action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492.


text:
    Leroy J. THIBODEAUX and Lucy L. Thibodeaux, Plaintiffs-Appellants, v. Mark CARLOCK et al., Defendant-Appellee.
    No. 7878.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      Reuvan N. Rougeau, Lake Charles, for plaintiffs-appellants.
    Anderson, Leithead, Scott, Boudreau & Savoy, Everett R. Scott, Lake Charles, for defendant-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

This is a wrongful death action arising out of a collision between a pickup truck and a train. At issue, is whether the Missouri and Pacific Railroad Company was negligent.

Don Walter Thibodeaux, a guest passenger in the pickup truck, was killed. His parents sued the driver of the pickup truck, the insurer of the pickup truck and the railroad. Prior to trial, a compromise was reached between the plaintiffs and the insurer of the pickup truck releasing all the defendants except the railroad. The trial court found the railroad was not negligent. Plaintiffs appealed.

The appellants contend the railroad is negligent in two respects: 1) the train engineer failed to keep a proper lookout and 2) past malfunctions of the crossing signals, which caused them to activate when no train was on the tracks, lulled the driver of the pickup truck into believing he could cross the tracks without watching for approaching trains.

Additionally, the appellants contend the trial court erred in refusing them an opportunity to prove subsequent repairs to the crossing.

The collision occurred at approximately 12:30 a. m. June 8, 1978, at the Missouri Pacific Railroad crossing on Louisiana Highway 14 in Lake Charles, Louisiana. Highway 14 is a four-lane highway running north and south. One set of tracks cross Highway 14 running east and west. The crossing is equipped with overhead flashing lights and ringing bells, which are activated automatically upon the approach of a train. It is uncontested the lights were flashing and the bells ringing at the time of the collision.

The train’s engineer testified the train’s headlight, bells, class lights, number lights and gauge lights were operating at the time of the collision. The engineer further testified he was blowing the train’s whistle as he approached the crossing. The train was traveling east at a speed of approximately 3-4 miles per hour. Upon feeling the impact of the pickup truck, the engineer immediately applied the emergency braking system. The engineer did testify his view to the north down Highway 14 was partially obscured by a control panel in the engine. He never saw the pickup truck approaching the crossing. The members of the train crew substantiated his testimony.

The driver of the pickup truck testified he was traveling south on Highway 14 in the right lane at approximately 40-45 miles per hour. About a half-mile before the crossing, he saw the crossing lights flashing and two cars in the left lane going south. The two cars crossed over the crossing approximately 110 feet in front of him. The driver testified he had crossed over the crossing on three previous occasions that evening when the crossing signals were functioning and he had not seen a train approaching. On each of these occasions he had slowed down and looked for an approaching train. At the time of the collision, the driver never slowed down, applied his brakes or saw the train.

The passenger side of the pickup truck, beginning at the headlight, caught the engine’s plow ripping off the passenger side of the pickup truck. The pickup truck continued over the crossing coming to rest about sixty feet from the crossing. The .front end of the engine stopped just west of the crossing.

It is well settled that the train crew can assume drivers will bring their vehicles to a stop when all crossing signals are functioning properly unless the vehicle’s approach is so unusual as to place an ordinarily prudent man on notice the vehicle cannot be brought to a stop in time to avoid a collision. Edwards v. Missouri Pacific, 291 So.2d 483 (La.App. 3rd Cir., 1974).

The appellants argue that an exception to this rule operates in areas where traffic is heavy, requiring a train to be operated at speeds which permit its being stopped in time to avoid injury. And, had the engineer in this instance been able to see the pickup truck approaching, the slow speed of the train would have allowed him to stop, avoiding the collision.

The expert testimony showed that at the time the engineer would have become aware the pickup truck’s approach represented a hazard, there was nothing the engineer could have done to prevent a collision. The burden to stop is placed upon the driver of a vehicle since a vehicle can stop in a much shorter distance than a train. LSA-R.S. 32:171; 45:563. The train crew did all that it was required in warning approaching vehicles of the train’s presence. LSA-R.S. 45:561. There is no showing the train crew violated any duty it owed the driver of the pickup truck.

In their second argument, the appellants draw an analogy to the “dangerous trap” doctrine contending the driver of the pickup truck was relieved of his duty to stop at the crossing by the earlier malfunction of the crossing signals. The driver believed that no train would be approaching since he had not seen a train when he had crossed over the crossing several times earlier in the evening under the same conditions.

Discussing the “dangerous trap” doctrine in McRay v. Illinois Central Railway Co., 244 So.2d 877 (La.App. 1st Cir., 1971) the court stated:

“That doctrine may be applied where the physical circumstances are such that stopping, looking and listening will do the motorist no good or that he must place himself in a perilous position to discover an approaching train.”

The evidence is overwhelming that had the driver of the pickup truck stopped at the crossing, he would have seen the train. The driver of a vehicle cannot be relieved of his duty to stop at a railroad crossing simply because he believes the crossing signals are malfunctioning.

The appellants presented several witnesses who said they had crossed over the crossing when the crossing signals were functioning and had not seen a train. Only two of them were able to state when such instances occurred and done of those instances coincided with a testing of the crossing signals. The testimony of the signal maintenance man and his inspection logs showed the crossing signals functioned properly before and after the collision. The appellants failed to prove by a preponderance of the evidence the crossing signals had malfunctioned earlier.

The trial court was correct in refusing to admit evidence of subsequent repairs to the crossing. See Givens v. DeSoto Building Co., 156 La. 377, 100 So. 534 (La.1924); Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1st Cir. 1980).

The decision of the trial court is affirmed. Appellants are to pay the costs of this appeal.

AFFIRMED.


text:
    Roger J. DONAHUE, Plaintiff-Appellant, v. DUPONT MANUFACTURING, INC. and Sunset Industries, Inc., Defendants-Appellees.
    No. 7893.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.
    Privat & Regan, Kenneth O. Privat, Crowly, for plaintiff-appellant.
    Cline, Miller, Richard & Heinen, L. Paul Gianfala, Rayne, for defendants-appellees.
    Before FORET, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Roger J. Donahue sued his employer, Sunset Industries, Inc., to recover penalty wages and attorney’s fees under LSA-R.S. 23:631 and 23:632. From a judgment in defendant’s favor, dismissing his suit, he appeals. We reverse.

Plaintiff was employed by defendant as a tool and dye maker at a salary of $11.00 per hour. On May 15, 1979, he telephoned defendant’s business office in Rayne, Louisiana and informed Mr. John Kudela, one of defendant’s officers, that he was terminating his employment. At that time, he had worked a total of 23 hours for which he had not been paid. Plaintiff testified that he did not demand his final wages, however, because Mr. Kudela hung up on him after learning of his resignation. Four days later, he telephoned a second time, allegedly to demand his wages, and asked to speak to defendant’s president, Mr. Clifton Dupont. However, he hung up after being kept waiting three minutes.

On June 6, 1979, after making a third fruitless attempt to call and demand his wages, plaintiff filed a complaint with the Louisiana Department of Labor. On June 12, 1979, an employee of that Department contacted Mr. Dupont by telephone. Mr. Dupont testified that he assured the person he spoke to that a check would be mailed to plaintiff as soon as he signed and returned a time card, which had been mailed to him on June 11, 1979. On June 13, 1979, defendant received the time card, which had been signed by plaintiff, and issued a check to him for the amount of the unpaid wages. Plaintiff received the check by mail on August 20, 1979.

There is no question about the fact that plaintiff’s wages have been fully paid by defendant. The issues which remain to be decided are: (1) Did defendant breach the obligation imposed on it by LSA-R.S. 23:631?, and (2) If defendant did breach its obligation, what is the amount due plaintiff for penalty wages and attorney’s fees under LSA-R.S. 23:632?

LSA-R.S. 23:631 and 23:632 read as follows:

LSA-R.S. 23:631:
“A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be* deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.”
LSA-R.S. 23:632:
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee eithér for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

Defendant contends that plaintiff is not entitled to penalty wages and attorney’s fees under the above provisions, because he failed to demand his wages at defendant’s business premises, where he was customarily paid during his employment. It cites the decisions in Lowery v. Cenla Beverage, Inc., 333 So.2d 435 (La.App. 3rd Cir. 1976) and Mitchell v. Fein, 281 So.2d 463 (La.App. 4th Cir. 1973) in support of the proposition that a demand made by telephone is sufficient only if it is made to someone with authority, who refuses to pay the wages.

This argument overlooks the fact that defendant’s president told the Louisiana Department of Labor employee, who contacted him in plaintiff’s behalf, that a check would be sent to plaintiff as soon as he signed and returned his time card. When that statement was made, defendant was fully aware of plaintiff’s claim for unpaid wages. Furthermore, defendant admitted in its answer to plaintiff’s petition that the amount of those wages was not in dispute after it received the time card from plaintiff. We believe that under those circumstances plaintiff’s demand was sufficiently made when he complied with defendant’s request to sign and return the time card. Thereafter, he was entitled to rely on Mr. Dupont’s assurance that the check would be mailed to him, rather than traveling from his home in Shreveport to defendant’s business premises in Rayne to demand his wages in person.

Mr. Dupont testified that he received plaintiff’s signed time card on June 13, 1979. Defendant attempted to establish through the testimony of Mr. Dupont and his daughter, Janice Claire Dupont, that the check had been mailed the same day. However, defendant admitted in its answer to plaintiff’s petition that the check had been mailed on August 16,1979, the day before it was postmarked, and defendant is bound by that admission. LSA-C.C. Art. 2291.

In view of the above, we find that there was a 64-day delay between plaintiff’s demand for his wages and defendant’s tender of them. Plaintiff is entitled to penalty wages in the sum of $88.00 (his daily rate of pay) for each of those 64 days, or a total of $5,832.00. In addition, plaintiff is entitled to a reasonable attorney’s fee, which we set at $750.00.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside, and it is adjudged, ordered and decreed that there be judgment herein in favor of plaintiff, Roger J. Donahue, and against defendant, Sunset Industries, Inc., in the sum of $5,832.00, plus an attorney’s fee of $750.00, which is taxed as a court cost. All costs in the trial and appellate courts are assessed against the defendant.

REVERSED AND RENDERED.


text:
    James E. BREAUX, Plaintiff-Appellee, v. George N. MAY, Defendant-Appellant.
    No. 7902.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      Bailey & Hollier, George J. Bailey, Lafayette, for defendant-appellant.
    McBride & Brewster, Norman P. Foret, Lafayette, for plaintiff-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

This suit arises out of a dispute over the interpretation of a written contract entered into by plaintiff, James E. Breaux, and defendant, George N. May, on May 15,1969. Pursuant to the agreement, the parties associated in the practice of paleontology from May, 1969 to July, 1978. Their practice consisted of examining samples obtained by operators of petroleum exploration wells, and reporting significant fossils and the depth at which they were found. This information aids well operators in directing drilling operations.

Prior to their association, defendant had practiced paleontology for 24 years. During that time, he established a regular clientele and acquired office facilities and furnishings. In addition, he accumulated an estimated 2,406 copies of written well reports, which have a market value in the petroleum industry. Plaintiff, who had practiced paleontology for 10 years, moved into defendant’s offices, and together they did business under the title “George N. May & Associates”.

Following the termination of their professional relationship, a conflict arose over the ownership of the assets of the business. Plaintiff claimed an undivided 25% interest in all of those assets, including the well reports and office furniture, which defendant had acquired prior to their association. Defendant acknowledged plaintiff’s interest in the assets that they accumulated while working together. However, he challenged plaintiff’s claim to the assets that he had acquired prior to that time.

Plaintiff brought this suit, seeking a declaration of his ownership and an accounting by defendant of the status of the business. Following a trial, judgment was rendered in plaintiff’s favor, recognizing his ownership of the interest that he claimed, and ordering defendant to render an accounting of the status of the business within a reasonable time. From that judgment, defendant appealed.

The sole issue presented by this appeal is whether the trial judge erred in finding that plaintiff owns an interest in the business assets that defendant amassed prior to May 15, 1969.

The trial judge’s finding was based on the language of the contract, which provides in part:

“I will give you 5% of the business a year for five years or a total of 25%. In the event of my retirement or death during the first five years, you may purchase the remaining interest of mine for $10,-000.00, excluding my microscope and light. If, however, I continue to work five years, you may purchase 24% for a total of 49% for $4,900.00. In the event of my retirement or death • after five years you will have earned my 51% interest.
* * * * * *
“If you are totally disabled or killed during the first five years, your wife will be paid at the rate of $1,000.00 per year for the portion of the business you have earned to that time. If you decide not to stay in this business for at least three years, you forfeit all interest except on wells we have done.” (Emphasis added.)

He concluded that within the context of the agreement, and in particular the language highlighted above, the term “business” clearly and unambiguously refers to all of the assets of the business, including those acquired prior to the date that the contract was executed. He therefore rejected parol evidence proffered by defendant to prove that the parties intended to limit its meaning to future assets and liabilities.

On appeal, defendant argues that the trial judge erred in excluding his parol evidence. We disagree. It is well settled that when the terms of a written contract are clear and unambiguous, the contract cannot be varied, explained or contradicted by parol evidence. In such cases, the meaning or intent of the parties to the contract must be sought within the four corners of the instrument. LSA-C.C. Art. 2276; Capizzo v. Traders & General Insurance Company, 191 So.2d 183 (La.App. 3rd Cir. 1966); Liberty Mutual Insurance Company v. Ads, Inc., 357 So.2d 1360 (La.App. 4th Cir. 1978).

Our examination of the contract has not convinced us that the trial judge was clearly wrong in concluding that it is free from ambiguity and uncertainty. The term “business” is ordinarily understood to mean all of the assets and liabilities associated with an enterprise. We find nothing in the language of the agreement suggesting that the parties intended to limit its meaning to future assets and liabilities. On the contrary, the contract clearly shows that by joining in defendant’s ongoing venture, plaintiff was to acquire more than an interest in the results of their joint efforts subsequent to the date of the agreement. We therefore find no error in the trial judge’s rejection of defendant’s parol evidence, or in his rendering judgment in plaintiff’s favor.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Carrol D. MARR, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO. et al., Defendants-Appellees.
    No. 7925.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      Richard N. Ware, Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   DOMENGEAUX, Judge.

In this tort suit, plaintiff, Carrol D. Marr, seeks recovery for injuries sustained while he was horseback riding when the saddle strap or girth securing the saddle to the horse broke, causing plaintiff to fall from the horse. Plaintiff sued James Rex Fair, the owner of the saddle, and St. Paul Fire & Marine Insurance Co., the liability insurer of Mr. Fair. After trial the court rendered judgment in defendant’s favor. Plaintiff has appealed. Defendants have filed a motion to dismiss the appeal for the reason that it was untimely filed.

MOTION TO DISMISS

The trial court rendered judgment on July 6, 1979. On July 12, 1979, plaintiff timely filed application for a new trial. A hearing on this application was held on August 30, 1979, but the matter was taken under advisement. On December 6, 1979, the application for a new trial was denied. The opinion was filed with the minute clerk on December 10, 1979, but the opinion or order was never entered in any of the court minutes. Instead, a copy of the opinion was placed in the private box reserved for each party’s attorney on December 11,1979.

On March 5,1980, plaintiff’s counsel filed an application for a devolutive appeal to this Court. The district court signed this order making the return date in the Court of Appeal on May 5, 1980. On March 17, 1980, counsel for defendants filed a rule directing plaintiff to show cause why his application for appeal should not be dismissed as having been filed more than sixty days after denial of the motion for a new trial. After a hearing, the defendants’ motion to dismiss was denied by the trial court because the clerk failed to make a minute entry in accordance with La.C.C.P. Article 1914.

The district court lacked jurisdiction to hear defendants’ motion to dismiss the appeal. La.C.C.P. Art. 2088 provides that the jurisdiction of the trial court is divested, and that of the appellate court attaches, in the case of a devolutive appeal, from the granting of the order of appeal. Since the order granting the devolutive appeal was signed on March 5, 1980, the trial court could not hear defendants’ subsequently filed motion to dismiss. The only court which could consider defendants’ motion to dismiss was the Court of Appeal, whose jurisdiction to hear the motion attached when the order of appeal was signed.

We have considered defendants’ motion to dismiss. We believe it has merit and should be sustained.

La.C.C.P. Article 2087 provides that a devolutive appeal may be taken within sixty days of “... [t]he court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914 ... . ” Article 1914 provides that the applicant is entitled to notice of such refusal only if he has filed a written request therefor. Plaintiff filed no written request for notice of the court’s refusal to grant a new trial in this instance, therefore he was not entitled to notice. Consequently, under Article 2087, the sixty day period within which plaintiff could file an appeal began to run on December 7, 1979, the day after the court’s refusal to grant the application for a new trial, and expired sixty days thereafter on February 4, 1980. Since the order of appeal was not signed until a month later on March 5, 1980, plaintiff’s application for appeal was untimely and must be dismissed.

The trial court believed the application for appeal was timely filed because the order denying plaintiff’s application for a new trial was never entered into the minutes of the court. We do not agree. Official Revision Comment (b) beneath Article 1914 explains that the requirement of a minute entry was intended to afford counsel (presumably those that do not request written notice of the order) a ready opportunity of checking on the matter. However, it is undisputed that plaintiff’s counsel received notice of the court’s refusal to grant a new trial. The trial court found that the minute clerk placed a copy of the refusal order in plaintiff’s attorney’s private box on December 11,1979, and counsel has not denied receiving this notice. Since notice of the order was received in some other fashion, the fact that a minute entry was never made is immaterial in this instance.

For the reasons assigned, the appeal is hereby dismissed. All costs of this appeal are assessed against the plaintiff.

APPEAL DISMISSED.

      . That part of Article 1914 provides: “When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.” (Emphasis added).

      . While Article 2088 recognizes certain circumstances in which jurisdiction of the trial court continues after the granting of the order of appeal, the hearing of a motion to dismiss the appeal as untimely filed is not one of those circumstances.

        . Trailwood Forest-Calcasieu, Ltd. v. Coursey, 372 So.2d 615 (La.App. 3rd Cir. 1979) does not hold to the contrary. We said in that case that the signing of an order of appeal, after an untimely application for appeal, cannot transfer jurisdiction to the Court of Appeal. However, we had jurisdiction to consider the motion to dismiss.

      . According to La.C.C.P. Art. 5059, in computing a period of time, the date of the act after which the period begins to run is not included.


text:
    Ralph L. PRIMEAUX, A.I.A., Plaintiff-Appellee, v. Alfred E. HARMON, M.D., Defendant-Appellant.
    No. 7961.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.
    Cline, Miller, Richard & Heinen, Barry J. Heinen, Rayne, for defendant-appellant.

      Ronald E. Dauterive, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   DOMENGEAUX, Judge.

This case involves a dispute over the amount owed under a verbal contract. Plaintiff, Ralph L. Primeaux, a licensed architect, sued defendant, Dr. Alfred E. Harmon, to recover the amount of $5,330.00. allegedly due for architectural services rendered by plaintiff. In his answer, defendant admitted engaging the services of plaintiff for architectural work, and that plaintiff was entitled to a fee, but he denied that he owed the amount claimed by plaintiff.

About ten days before trial defendant filed an “amended answer” which was really a reconventional demand, in which he alleged that the amount sought by plaintiff should be reduced by $2,458.78, the amount it would take to remove a stairway built from allegedly defective plans submitted by Mr. Primeaux, which defect rendered the stairway unusable. Since defendant’s re-conventional demand was not filed until after the answer was filed, leave of court was required under La.C.C.P. Article 1033. Leave of court was never obtained prior to trial, so the matter was taken up when the trial proceedings commenced. The judge did not allow the reconventional demand to be filed as worded because he did not think plaintiff was ready to go to trial on the reconventional demand, especially since defendant’s allegation of “improper design” indicated that defendant contemplated a malpractice suit against plaintiff. The court also commented that defendant should file his reconventional demand at a later date so that the original suit could be tried without further delay. Then, after an in-chambers conference, defense counsel orally amended his reconventional demand to reflect that no malpractice claim was being made. Defense counsel further stated:

“Strictly, the claim that is being made is for a reduction in the amount of the claim being made by the plaintiff; strictly that. No other claims are being made or intended...”

Thus, the only issues to be decided involved the accuracy of plaintiff’s calculation of the number of hours spent on Doctor Harmon’s renovation project and the reasonableness of charging $40.00/hr. for said services. The court felt that defendant’s amended reconventional demand merely contested the number of hours spent and the method of calculating a fee based on the work done. It later developed, however, that defendant was asking for a reduction in the amount claimed by plaintiff because of an allegedly defective stairway design.

After a trial on the merits, the trial judge awarded plaintiff the amount prayed for, and rejected Doctor Harmon’s request for a reduction. The trial court held that plaintiff proved he expended 150 hours working on Doctor Harmon’s renovation project and that the $40.00 per hour that he charged for such work was a reasonable architect’s fee for renovation type work.

Once plaintiff proved his case, it became incumbent upon defendant to prove that plaintiff’s claim was excessive or that the services rendered were unreasonable or unnecessary. The trial court decided defendant did not discharge his burden of proof. The court also found that the plaintiff’s design was not defective, so he rejected defendant’s demand for a reduction in the price owed. For the reasons below, we affirm.

The evidence shows that in late 1978, Doctor Harmon decided to renovate the second floor and attic of his home in Crowley, Louisiana. In October or November of that year he initially contacted Mr. Pri-meaux to ask him to do the architectural work necessary to accomplish the renovation. Doctor Harmon intended to do the contract work himself. Mr. Primeaux agreed to do the architectural work but did not begin until February of 1979. It is undisputed that the parties never discussed the cost of Mr. Primeaux’s services prior to Doctor Harmon’s receipt of plaintiff’s bill.

On October 2, 1979, plaintiff presented defendant with a bill for $5,330.00. The bill reflected a charge of $6,000.00 ($40.00 per hour for 150 hours), less $750.00 (a $5.00 per hour discount), plus a bill for $80.00 from a firm of consulting engineers, leaving a total of $5,330.00. After receiving this bill, which he though was inordinately excessive, defendant terminated the business relationship that existed between the plaintiff and himself, explaining to the plaintiff that he could no longer afford the architect’s services. Plaintiff thereafter demanded payment of the bill tendered to defendant on October 2nd, which defendant refused to pay. Subsequently this suit was brought.

We think the testimony of plaintiff, his expert witness Mr. Charles Hugh Crane, and the calendar exhibits of the plaintiff adequately support a finding that plaintiff expended 150 hours on the project. Plaintiff’s-calendar records show that between February and September of 1979 he spent about 150 hours on Doctor Harmon’s renovation project. This included time spent traveling, consulting, making on-site measurements, and preparing drawings. Extensive cross-examination of Mr. Primeaux concerning his calendar entries failed to establish that Mr. Primeaux spent his time unnecessarily or that he charged Doctor Harmon for more hours than he actually spent on the project. Also, both Mr. Crane and defendant’s expert witness, Mr. Frank J. Vicari, an architect from Baton Rouge, testified that renovations are considerably more difficult and time consuming for an architect than are completely new projects. Mr. Crane felt the hours claimed by Mr. Primeaux were commensurate with the type of work being done.

There was also ample evidence, as shown by the testimony of Mr. Primeaux and both of the expert witness architects that $40.00 an hour for renovation type work was an acceptable architect’s fee. Thus, even though the parties did not agree on a particular fee or a particular method of calculating the fee, the amount prayed for, based on an hourly rate, represents a reasonable fee for the amount of work done. Kleinschmidt, Brassette & Associates v. Ayres, 368 So.2d 1153 (La.App. 3rd Cir. 1979).

. Some testimony by Mr. Vicari indicated that Mr. Primeaux’s bill was excessive because his drawings were incomplete and not usable by Doctor Harmon or any contractor. The court chose to discount his testimony in favor of testimony by plaintiff and Mr. Crane that the hours spent and work done by Mr. Primeaux, to the date his services were terminated, were reasonable. The court did not manifestly err in minimizing Mr. Vicari’s testimony. Mr. Primeaux’s bill was for work done to that date. No evidence shows that Mr. Primeaux felt his part of the job was finished or that his plans were thought to be final when he submitted his bill. Indeed, the final architect’s fee was expected to be much higher as the difficult renovation project neared completion.

We do not necessarily agree with the trial court’s finding that the stairway design was not defective, but for the reasons below we affirm the court’s judgment rejecting defendant’s demand for a reduction of the amount claimed by plaintiff.

The testimony and exhibits establish that the architectural drawing of the stairway from the second floor to the attic reflected a head clearance of 83 inches from the center of a landing on the stairwell to a valley rafter supporting .the roof. Mr. Pri-meaux testified he calculated this measurement himself. Mr. Vicari testified that he measured Doctor Harmon’s construction of the stairway against the measurements called for in the drawing and found a variance of only xh inch. However, he found that the head clearance from the stairway landing to the valley rafter varied from a low of 53 inches on one side of the 43 inch wide stairway to a high of 87 inches on the other side. Doctor Harmon measured the clearance from the center of the landing to the rafter. Instead of being 83 inches, as the plans indicated it would be, the clearance was only 72 inches. Photographs vividly corroborated this measurement. Doctor Harmon, standing at 6'2" tall, could negotiate that portion of the stairwell beneath the valley rafter only by walking on the part with the most clearance and then only by stooping. This was most inconvenient for Doctor Harmon because the attic was going to be transformed into the master bedroom, making him a frequent user of the stairway.

The miscalculation in the amount of head clearance was discovered after Doctor Harmon had done a substantial amount of work on the stairway, including cutting a hole in the second floor ceiling. After learning of the error, Mr. Primeaux advised Doctor Harmon that he (defendant) could remedy the low clearance situation by lowering the landing by fractions of inches, or by modifying the valley by stiffening it, or by replacing part of the rafter with a steel sandwich “U” channel member. Mr. Vicari also testified that the problem could be remedied by lowering the landing. Doctor Harmon did not want to replace that part of the rafter over the stairwell with a steel “U” channel member because he though it would be too costly and would involve structural problems. He did not say why he did not agree to lower the landing.

We recognize that Doctor Harmon has encountered serious problems by using Mr. Primeaux’s stairway design. Yet, even if we assume that the dimensioning error is attributable to Mr. Primeaux, and that Mr. Primeaux failed to warn Doctor Harmon of this miscalculation prior to the construction of the stairway, we must reluctantly conclude that defendant is not entitled to a reduction of the fees on that basis. Defendant emphasized during the trial that he was not asking for a reduction because the stairway design was defective. Instead, defendant asked for a reduction by the amount it would cost to remove the stairway and fix the hole in the ceiling, or in other words, to restore the second floor room where the stairway was located to the condition it was in before renovation had begun.

Mr. Ivey Richard, an estimator for Central Lumber Company, testified it would cost $2,458.78 to restore the room. However, defendant did not testify he intended to remove the stairway from its present location, and neither of the experts testified removal was necessary. Indeed, Mr. Primeaux and Mr. Vicari both mentioned the lowering of the landing as a means of obtaining more head clearance, and nothing in the record establishes that the stairs must be removed in order to lower the landing. At the same time, no evidence in the record establishes the approximate cost of lowering the landing or of inserting a steel sandwich “U” channel member in the place of that part of the valley rafter that intrudes upon the head space above the stairwell. Since the record contains no evidence establishing the cost of remedying the defect, we must conclude that defendant simply did not prove his entitlement to a reduction of the fee.

For the above and foregoing reasons, the judgment of the district court is affirmed. All costs are assessed against defendant, Doctor Alfred Harmon.

AFFIRMED.

      . Plaintiff explained that he gave defendant a $5.00 per hour discount because he considered Doctor Harmon to be part of the family.


author: LABORDE, Judge.

text:
    George A. FLOURNOY, Plaintiff-Appellee, v. Susan Burnham FLOURNOY, Defendant-Appellant.
    No. 7984.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      J. Michael Small, Alexandria, for defendant-appellant.
    David A. Sheffield, Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a child custody case. The children involved are Christopher Ryan Flournoy, now six years old, and Benjamin Matthew Flournoy, now three years old. The trial court awarded custody to the father, George Flournoy. The mother, Susan Burnham Flournoy, appeals. The issue on appeal is whether the granting of permanent custody to the father is in accordance with the best interest of the children. From our review of the record, we conclude that the trial court was within its discretion in holding that the best interest of the children requires that custody be awarded to the father. We affirm.

The Flournoys were married in 1969. Two children were born of the marriage. They are the children involved in this custody dispute.

Due to marital difficulties, in September of 1979, George obtained a judgment of separation from Susan on the grounds of constructive abandonment. On October 17, 1979, George filed suit for divorce on grounds of adultery. Included in his petition was a prayer for both temporary and permanent custody of Christopher Ryan and Benjamin Matthew. George obtained a temporary order of custody on October 17, 1979.

On February 22,1980, following a trial on the suit for divorce, the trial judge granted a judgment of divorce in favor of George. Also on that date, the trial judge scheduled a hearing for March 31, 1980, to determine the provisional or permanent custody of the two children. On May 21, 1980, the trial judge, for reasons orally assigned, awarded permanent custody of the two children to the father, George Flournoy. Susan Flour-noy appeals only the judgment of custody.

Louisiana Civil Code Article 157 provides the applicable law concerning an award of custody. That article, in pertinent part, provides:

“A. In all cases of separation and divorce, ... permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent ...”

The issue on appeal then, is whether the trial court’s judgment granting permanent custody to the father is in the best interest of the children.

The standard of appellate review of custody cases was recently discussed by our Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The Court announced:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco [259 La. 1122, 254 So.2d 603], supra; Cleeton v. Cieeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1380 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

Armed with this standard of review, we now proceed to review the record.

The record shows that both parents are loving parents who shared the responsibilities of caring for the children and attending to their needs. Standing alone, this would make the question of custody an extremely close one. However, because no written reasons were assigned, we must also consider the possibility that the trial judge was influenced by evidence that the mother was morally unfit.

At the custody hearing, abundant evidence was offered concerning the alleged adulterous relationship of Susan with Edward D. Gutierrez. Both Susan and Mr. Gutierrez admitted that after the legal separation, they began a sexual relationship. The relationship included overnight trips. Two of these were to Las Vegas where they even registered as Mr. and Mrs. Gutierrez. In addition, and perhaps more injurious to Susan’s chances of gaining custody of the children, there was testimony detailing the occasions Susan and Mr. Gutierrez spent the night together at Susan’s former marital residence while the children were in her custody and present in the house. The testimony of several witnesses, including Susan and Mr. Gutierrez, along with the investigative reports filed into evidence indicate that the children at least observed Mr. Gutierrez in their house in the morning.

Susan and Mr. Gutierrez make no effort to hide their relationship. They admit that they are still engaged in a sexual relationship which they plan to continue. There was some evidence that they planned to marry, preferably in the Catholic Church as soon as Susan secures an annulment of her marriage to George. However, no formal annulment proceedings have been initiated.

The record reflects that Susan is engaged in open, adulterous conduct and shows no indication of repentance or reformation of her conduct. If the trial judge concluded that she is morally unfit, we find no abuse of discretion in that regard.

There was also some testimony concerning George’s moral unfitness. However, the evidence concerning him was much less damaging than that concerning Susan. For example, even though George engaged in an adulterous relationship with Linda Flowers, that relationship was discreet. There were no overnight trips or nights spent together while the children were present in the home. In addition, shortly after George’s divorce from Susan he and Linda were married.

The facts also showed that George shared and took an active part in rearing the children. The children are loving and well adjusted. George is a professional with an adequate standard of living to support the children. In the settlement of the community, George acquired the family home which has adequate furnishings for the children. The facts also showed that the children were fond of Linda and felt comfortable around her. Linda was likewise fond of them.

On appeal, counsel for Susan urges that the natural bond existing between mother and child and resulting from the care and affection the mother has provided the child from birth be considered. In essence, counsel seeks application of the maternal preference rule which is to the effect that unless the mother is proved unfit or unable to care for the minor children, custody must, be awarded to her. The maternal preference rule is no longer a rigid rule but is merely one of the factors to be considered and weighed in determining the best interest of the children. We must assume that the trial judge did consider and weigh this factor before concluding that the interest of the children was best served by awarding custody to the father.

After review of the record in light of the above cited principles, we conclude that the award of custody of the two children to the father was within the discretion accorded the trial judge.

For these reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.