author: COVINGTON, Judge.

text:
    Sardo PALERMO, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 14803.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Victor Marcello, Donald Carmouche, Don-aldsonville, for plaintiffs & appellees.
    Anthony Clesi, Jr., Baton Rouge, for Allstate Ins. Co. appellee.
    J. Arthur Smith, III, Baton Rouge, for Willie Dunn appellee.
    David K. Balfour and William J. Doran, Jr., Baton Rouge, for DOTD-State of La. appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

The State of Louisiana, Department of Transportation and Development, defendant, appeals the judgment rendered by the trial court against it in favor of plaintiffs, Roy Dimm, Wilson Lewis, Sadie Lewis, Sar-do Palermo, Mary Palermo, and Sharon Dimm Rousseau. Sardo and Mary Palermo answered the appeal, questioning the trial court’s dismissal of their claim for certain damages.

This is a suit to recover damages for personal injuries and for wrongful death arising out of a collision on September 15, 1978, between a 1975 Ford Pinto station wagon driven by Sharon Dimm Rousseau, and a tractor-trailer truck, owned by Mat-lack, Inc. and driven by Willie Dunn, an employee of Matlack, on Louisiana Highway 1, a two-lane highway, in the Parish of Iberville, near Plaquemine, Louisiana. Passengers in the Pinto automobile included Glinda Palermo Dimm Steib, Roy Dimm, Jr., Randy Dimm and Grover C. Lewis.

Immediately prior to the accident, the Matlack truck was proceeding in a northerly direction on the two-lane highway, and the Rousseau vehicle was going in a southerly direction. The accident allegedly occurred in the northbound lane of traffic when the Rousseau vehicle swerved into the truck’s lane of traffic after striking a large, deep hole or rut immediately adjacent to the paved portion of the roadway. The way in which the accident happened is one of the facts in dispute. Only the drivers of the two vehicles, Dunn and Rousseau, survived the collision. All of the passengers in the Pinto were killed. There were no passengers in the truck.

The claimants in the suit are Sardo Palermo and Mary Palermo, the parents of Glin-da Steib, Roy Dimm, the father of Roy, Jr. and Randy Dimm, both minors, Sharon Dimm Rousseau, and Wilson Lewis and Sadie Lewis, the parents of the minor, Grover C. Lewis. The suit was instituted against Allstate Insurance Company, insurer of Sharon Rousseau; the Travelers Indemnity Company, insurer of the Lewises; State Farm Mutual Automobile Insurance Company, insurer of Roy Dimm; Willie Dunn, the driver of the Matlack truck; Matlack, Inc., Dunn’s employer; and the State of Louisiana through the Department of Transportation and Development, Office of Highways. By supplemental petition, Ford Motor Company was also made a defendant. Travelers, State Farm and Allstate were dismissed on motion by plaintiffs; summary judgments were granted in favor of Ford Motor Company, Matlack, Inc., and Willie Dunn. Thus, the various claims against all defendants, except DOTD, were settled pri- or to trial.

Plaintiffs asserted at the trial that the collision was caused by a large, deep rut on the southbound shoulder of Highway 1, approximately 6-7 inches in depth, located in the vicinity of the point of impact. DOTD denied that the road condition was substandard and that the road condition caused the accident; and alleged that the accident was caused by the negligence or contributory negligence of Sharon Rousseau.

After trial of this suit, the trial court found liability on the part of the State of Louisiana, Department of Transportation and Development, pursuant to LSA-C.C. art. 2317. The lower court found no negligence on the part of Sharon Rousseau. The court awarded Roy Dimm the sum of $100,-000.00 for the wrongful death of his two minor children, Roy Dimm, Jr. and Randy Dimm; and Wilson Lewis and Sadie Lewis, the sum of $50,000.00 each for the death of the minor, Grover C. Lewis. Funeral expenses were also awarded to these plaintiffs.

With regard to the claim of Sardo and Mary Palermo, the trial court found that Glinda Steib, although legally separated from Farrell Steib, was still married to him, so that he was considered a surviving spouse under LSA-C.C. art. 2315; hence, the claim of the Palermos, as surviving parents, for the death of their daughter, Glinda Steib, was dismissed. Concerning the claim of the Palermos as beneficiaries of the Estate of Glinda Steib, the trial court found that Mrs. Steib survived her minor children, so that, as her beneficiaries, her parents were entitled to the sum of $100,-000.00, which is the sum the mother (Mrs. Steib) would have been awarded for the deaths of her minor children, Roy, Jr. and Randy Dimm.

The court awarded Sharon Rousseau the sum of $400,000.00 in general damages, $278,956.00 for loss of future earnings, and $3,422.84 for loss of wages. In addition, she was awarded $23,582.24 for medical expenses. The court taxed DOTD for all costs, including cost of depositions used at the trial and cost of expert witness fees.

In reaching its conclusion that DOTD was liable, the trial judge, in his reasons for judgment, made the following factual findings:

“Plaintiffs’ theory of the case is that the accident was caused by a large rut on the southbound shoulder approximately six inches in depth located near the point of impact. Mr. Dunn, the driver of the truck, testified that prior to the accident he saw the Pinto vehicle go out of control and slide sideways into his lane of traffic. Due to a serious brain injury suffered in the accident Sharon Rousseau has no memory whatsoever of the events immediately prior to or following the accident. The only other witnesses to testify were Janice and Richard Stone who were traveling immediately ahead of the Pinto at the time of impact. Their testimony was to the effect that after reaching a point parallel to the trailing edge of the tractor-trailer vehicle being driven by Mr. Dunn at a time when they were driving at approximately 45 miles per hour, they heard the impact, looked back, and noted sparks apparently caused by the collision. “The plaintiffs offered the testimony of Colonel Joseph Andre, an accident reconstruction expert, who based upon this testimony and physical evidence concluded that the rut on the shoulder of the road was the cause in fact of the accident. His opinion was that Sharon Rousseau was trapped in the rut and in an attempt to extricate her vehicle therefrom, she oversteered and went into a broadside skid.
“The defendant offered the testimony of Drs. Ivey and Dart, also accident reconstruction experts, who reached a contrary conclusion. Their opinion was that the Pinto was executing a U-turn at the time of the accident.
“After considering carefully the various theories posed by these respected experts, and after considering the factual evidence and testimony in the record, the court concludes that Colonel Andre’s opinion is the most likely and feasible one under all of the evidence. Dr. Ivey, who possessed impressive qualifications, testified that there were only two possible causes in fact of the accident — these being the ‘rut’ theory and the ‘U-turn’ theory. He admitted under cross examination that his U-turn theory would have to be disregarded if the testimony of Janice and Richard Stone was accepted as factually correct for the reasons that in order to execute a U-turn the Pinto would have been compelled to slow substantially thus lengthening the distance between it and the Stone vehicle far in excess of that testified to by the Stones. The court was impressed with the testimony of the Stones who were the only two disinterested fact witnesses to testify and the court believes their testimony to be credible and reliable.
“Both Dr. Ivey and Dr. Dart relied heavily on the absence of what were termed ‘yaw marks’. However, both Colonel Andre and Dr. Jack Humphries testified that the accident could have been caused by the rut without the appearance of perceptible yaw marks. Dr. Humphries also noted that the right front tire of the Rousseau vehicle exhibited evidence of melting consistent with a broadside skid orientation. He also pointed to marks on the tire which were consistent with an attempt on the part of Rousseau to re-enter the road from the shoulder.
“The testimony of the truck driver to the effect that he saw the Pinto lose control and slide sideways into his vehicle is also consistent with the rut theory. If the vehicle were executing a U-turn it would not have been in a broadside skid. Furthermore, physical facts discovered subsequent to the accident, such as the position of the rut in relation to the point of impact, the depth of the rut and the appearance of the vehicles following the collision as well as the markings on the right front tire of the Rousseau vehicle are all substantiating factors in favor of the rut theory.
“While the issue is not all together free from doubt, the plaintiff who has the burden of proof, must only prove that one set of facts is more likely so than not or more likely so than the opposing set of facts. In this case the court has no difficulty in concluding that the preponderance of the evidence lies in favor of the rut theory as opposed to the U-tum theory. There is nothing whatsoever in the record to indicate any reason for making a U-turn at the particular point in question. There is nothing in the previous history of Sharon Rousseau to indicate any irresponsible conduct particularly in view of the number of people in the vehicle or anything that would indicate that she had any reason whatsoever to attempt to execute a U-turn in the face of an oncoming truck.
“The court particularly places a great weight upon the testimony of the Stones which while not entirely conclusive certainly lends strong weight to the rut theory as opposed to the U-turn theory.”

Primarily, the Department argues that there was no evidence connecting the alleged highway defect to the accident.

The Department has the basic responsibility for the maintenance of State highways. LSA-R.S. 48:21, 191. It is required to maintain highways in a reasonably safe condition for motorists exercising ordinary care and ieasonable prudence. Although the Department is not an insurer of the safety of motorists using State highways, it can not knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Watson v. Morrison, 340 So.2d 588 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 1134 (La.1977). The maintenance of the shoulders of highways in a reasonably safe condition is included within the duties of DOTD. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979); Watson v. Morrison, supra; Willis v. State, Louisiana Department of Highways, 321 So.2d 819 (La.App. 1 Cir. 1975), writ denied, 325 So.2d 280 (La.1976).

The liability of the State is established. In Scott v. State, Department of Transportation and Development, 392 So.2d 482 (La.App. 1 Cir. 1980), writ denied, 396 So.2d 921 (La.1981), it was held that strict liability under LSA-C.C. art. 2317, as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975), applied to governmental agencies, such as the Department of Transportation and Development.

We find that the evidence in the instant case fully establishes that the shoulder of the highway in the vicinity of the collision was defective. On the morning after the accident, Alvin Doyle, an automotive consultant and reconstruction expert, retained as an expert by Crawford and Company for Matlack, Inc., noted a long rut in the shoulder, approximately six to seven inches deep, the center of which was located 216 feet from the gouge marks indicating the point of impact of the two vehicles. Trooper Jeffrey L. Diaz and Richard C. Stone returned to the scene the next day and noted the same deep rut. Joseph Andre, a reconstruction expert, examined the rut a few days after the collision. Andre measured approximately 200 feet of the shoulder, taking photographs at ten-foot intervals, and distinguished a “deep area” of the rut approximately 73 feet in length, and approximately six inches in depth, at its deepest point. The photographs exhibit a considerable erosion of the roadway itself in the area of the interface between the roadway and the shoulder.

The Department of Transportation and Development’s maintenance manual suggests that shoulders be maintained level with the roadway surface and requires repair when the shoulder is two inches below the roadway. Carl S. (Carlisle) Richard, the District Administrator of the Highway Department, quoted from the manual as follows:

“... On edge ruts, let them get at least two inches deep before routinely scheduling repair. Edge ruts that exceed five inches in depth should be treated as an emergency condition and be repaired immediately.” (Emphasis added.)

The purpose of these requirements was expressed by Dwayne T. Evans, consulting traffic engineer, as follows:

“The purpose of a shoulder covers several things. One of them is to provide stability to the roadways. It’s a physical thing to provide support for the road-way. Another purpose the shoulder serves is for an emergency area that a vehicle can leave the road-way safely and stop momentarily or for some length of time depending upon the emergency and not without [sic] impeding the flow of traffic on the paved surface. The shoulder, also, provides an area where a vehicle can leave the road-way whether it be intentionally or inadvertently and enter the road-way again in a safe manner. And in order to do this the road-way needs to be as flush with the ... the shoulder needs to be as flush with the paved surface as possible.”

Evans expressed an opinion that the rut had been present for a considerable period of time prior to the collision. We find, as did the trial judge, that the rut rendered the roadway defective. The testimony of all experts indicates that such a rut constituted a hazardous condition to motorists using that highway. The negligence of DOTD in allowing such a hazardous condition to exist has been recognized in the cases of Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), and Rue v. State, Department of Highways, supra. We agree with the trial judge’s conclusion that this hazardous condition was a cause in fact of the collision.

Plaintiffs’ experts espoused a road defect (rut) theory to show causation; defendant’s experts espoused a U-turn theory to show that the accident was not caused by a highway defect. Both of defendant’s experts agreed that these were the only two “reasonable hypotheses” as to the issue of causation.

As stated by the Court in Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395, 397 (1963):

“Causation may, of course, be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.”

It is sufficient to sustain the plaintiffs’ burden of proving causation if the circumstantial evidence excludes other reasonable hypotheses only with a fair amount of certainty so that it is more probable than not that the harm was caused by the tor-tious conduct of the defendant. Swanson v. Estate of Augusta, 403 So.2d 118 (La.App. 4 Cir. 1981).

The evidence obtained regarding the existence and extent of the roadway erosion and shoulder rut is set out above. Upon inspection of the accident scene, Joseph Andre noted gouge marks indicating the point of collision located approximately 197 feet from the end of the deep part of the rut. On the day he measured the rut, Andre travelled to a wrecker yard in Plaquemine to inspect the Pinto, and observed that the damage indicated that the automobile was at approximately a 90° angle to the truck, impacting near the hinge of the front door, and extending back eight feet towards the rear of the automobile. Andre also examined pictures of the undercarriage of the vehicle, and noted the front wheels turned in and jammed in a straight-forward position.

The right front tire of the vehicle was examined by Edwin Kurt, a tire expert, Joseph Andre, and Jack Humpheries. Kurt testified that the tire contained no defects which could, have contributed to the accident. Humpheries and Andre stated that striations and markings on the inside wall of the tire were indicative of an attempt to climb out of the rut. Humpheries also noted that on the inside at the edge of the tire where the tread rolls around into the sidewall, there was rubber which had been moved from right to left, which is consistent with the plaintiffs’ experts’ reconstruction of the accident. Jack Riden-our and Lawrence Daniels, mechanical engineers, examined the Pinto for mechanical defects which could have contributed to the accident; they found no such defects.

Willie Dunn, Richard Stone, and Janice Stone provided the only “witness” evidence regarding the collision sequence. Willie Dunn testified that when he finished unloading his truck in Paincourtville at approximately 7:00 p. m. and departed for Plaquemine, a misty rain was falling. He stated that at 7:30 p. m. “as I was proceeding northbound on Highway 1, I met a string of traffic here. All of the traffic was southbound. From the string of traffic, this was one vehicle that was lingering behind. And as we proceeded closer, this vehicle got out of control. It spun directly into my truck.” Dunn further noted that the Pinto approached him in a sideways position prior to the collision. Dunn did not see the station wagon slowing before the impact. Dunn immediately applied his brakes, and swerved in an attempt to avoid colliding with the Pinto. He was unable to prevent the collision. He remembers nothing after the impact.

Richard Stone testified that on the night of the accident he left Plaquemine with his wife, grandmother and three children, proceeding south on Highway 1. Before crossing the railroad tracks just south of Plaque-mine, he noticed a car about one-fourth of a mile behind him. Stone was going approximately 40-50 M.P.H. He then testified:

“The point of impact was about to the best I can recall it was about a half mile, three quarters of [a] mile at the most past the railroad tracks where I had last looked in my rearview mirror. I was concentrating all my attention on the oncoming traffic which by that time I had seen a ... I could tell it was a large truck coming to meet me. As the truck got ... the front of the truck was about ... well, the front of the trailer of the truck was about even with the front of our car, I heard a funny noise coming from the truck. And at that moment I didn’t realize what the noise was. The truck went past me making this noise and just as the trailer had passed my door, the trailer of the truck had passed my door I heard a bang and I looked out my rear-view mirror and seen sparks flying.
* * * * * *
“Well, I remember looking in my rear-view mirror and seeing sparks flying out for about, I guess the truck must have skidded it looked like for 100 yards or so. And it went a little bit over into my lane and then went off into the ditch and into the trees. At this time I started slowing down.”

Stone stated on cross-examination that the tractor-trailer rig was either right at his car door, or had just passed the door when he heard the noise. Janice Stone confirmed her husband’s observations, stating that the back wheels of their car were about even with the back wheels of the truck when the accident happened.

Based upon the above physical and testimonial evidence, Joseph Andre, plaintiffs’ accident reconstruction expert, concluded that the rut on the shoulder of the road was the cause in fact of the accident. The defendant’s reconstruction experts, Olin K. Dart and Don Ivey, concluded that Rousseau was executing a U-turn which caused the accident when she came into the truck’s lane of traffic. The trial judge carefully explained why he accepted Andre’s opinion as the more probable under the circumstances of the case. We agree. We consider that, from all of the evidence, it is unlikely that Rousseau was making a U-turn. We find that the accident was caused by the defective condition of the highway; the evidence in the instant case fully establishes that the shoulder of the highway at the point of the accident was defective, because a substantial drop-off from the paved portion to the shoulder existed and the shoulder was in a dangerously rutted condition. We agree with the trial judge’s conclusion that this hazardous condition was the cause in fact of the accident; the rut constituted a hazard to a reasonably prudent driver.

With respect to the requirement that the Department have actual or constructive knowledge of the condition of the shoulder, the evidence establishes that the Department had employees working on the highway who had ample opportunity to observe the condition of the roadway and shoulder on frequent occasions. Earl Quatrevingt testified that DOTD required roadway and shoulder inspections on a weekly basis, and that he should have been able to observe the severe drop-off in his inspections. Evans also testified that the defect in the shoulder was not one that would develop in a short period of time, but rather one that would require weeks, or even months, to deteriorate and develop to the condition which was discovered immediately after the instant accident. When shown a picture of the crumbled asphalt on the interface between the highway and shoulder rut, Qua-trevingt agreed that it would take quite some time for such a condition to develop. The pictures introduced into evidence clearly reveal a severe deterioration of the side of the roadway in addition to the development of a deep depression in the shoulder itself. Richard Stone recalled seeing the rut there several weeks before the accident.

Such circumstances are tantamount to the requisite constructive knowledge, as the courts found in Harrison v. State, Department of Highways, 375 So.2d 169 (La.App. 2 Cir. 1979), and Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978).

On the question of contributory negligence, the trial judge stated in his Reasons:

“There is no evidence in the record to support a finding of fault or contributory negligence on the part of Sharon Rousseau .... Ms. Rousseau obviously was in a very poor position to ascertain the reason for her loss of control. It would be unreasonable to impose upon Ms. Rousseau the burden of executing a considered and safe re-entry under the circumstances presented here.”

Sharon Rousseau was proceeding down a dark highway on a misty night. She apparently found herself in a deep rut composed of a defective shoulder and a crumbling asphalt highway. It appears that Rousseau may have inadvertently steered into the rut, or slipped into the rut due to the eroded asphalt. Whatever the cause of her entry into it, the Department can not argue that such entry constituted substandard conduct. See Rue v. State, Department of Highways, supra.

As stated in Rue, at page 1199:

“A motorist has the right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition.”

It should be noted that the Department has made no claim of negligent re-entry by Sharon Rousseau. See Sinitiere v. Lavergne, supra. Other than its attempt to prove Sharon Rousseau was executing a U-turn, the Department has failed to offer any evidence, or develop any theory of negligence or contributory negligence on the part of the driver of the Pinto.

We have carefully reviewed the record in the case at bar and find that the findings of the trial court are amply supported by the evidence, as discussed herein. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The appellant next argues that the trial court erred in allowing Sardo and Mary Palermo recovery for the death of their grandchildren as beneficiaries of the estate of their daughter, Glinda Steib. The court made the award on the theory that they were beneficiaries of the estate Glinda Steib; ergo, they could recover on her behalf for the death of her two children. The trier concluded that there was sufficient evidence in the record to show that Glinda Steib survived her two minor children for a short period of time. of

We find that there is evidence in the record, which evidence preponderates, that Glinda Steib survived her minor children. Richard Stone testified that after the accident, he went to the scene, and saw a body on the road. Then he walked over to the car and noticed a body which appeared to be the body of a 13 or 14 year old boy draped over the back of the car. He then saw two individuals inside of the car, one of whom seemed to be severely injured. Walking further towards the front of the Pinto, he noticed another body lying directly in front of the car. Upon arriving at the location of the car, he testified that he heard another individual who had arrived at the accident scene stating that the person in the passenger side of the car seemed to be alive:

“It was briefly after that the next man arrived. And he came and got on top of the hood of the car and I helped him lift the lady up out of the car. And then I carried her to the road. At the same time we noticed another woman in the car. I couldn’t tell if it was a woman or not but another body between the front seat and the front door. And we also noticed another body mangled in front of the wheels of the car. * * * And some other ... someone else said that this one is still alive. Speaking of the person that was caught between the front door and the seat. And all my attention at that time was put on the woman that I was pulling out of the car.” (Emphasis added.)

Trooper Diaz identified the passenger in the front seat of the vehicle as Glinda Steib. Thus, we hold, as did the trial court, that she survived her children for a short time after the accident.

Ms. Steib is a member of the first class of beneficiaries under LSA-C.C. art. 2315, and by virtue of her having survived her minor children, she had a claim for their wrongful death. This claim for wrongful death was inherited by her parents, Sardo and Mary Palermo.

Finally, DOTD argues that the trial court awarded an excessive amount of damages to these plaintiffs.

The judge, in his Reasons for Judgment, stated:
“On the question of damages the testimony of Roy Dimm indicates a very close relationship between father and sons with frequent mutual participation in recreational activities. Although the father did not have the legal custody the children practically lived with him a great deal of the time. An award of $100,000.00 to Roy Dimm for the death of his two minor children is appropriate. See Dixon v. Wiley, 325 So.2d 653 [La.App.]; Alizzi v. Employers Insurance of Wausau, 351 So.2d 258 [La.App.]. Mr. Dimm is also entitled to an award of $5,067.53 for funeral expenses.
“The testimony of Wilson and Sadie Lewis reveal a similar close relationship to Grover Lewis. Although Grover was one of several children he was a very religious child who exhibited a notable respect and affection for his parents. Thus an award of $50,000.00 to Wilson Lewis and an award of $50,000.00 to Sadie Lewis for a total of $100,000.00 would be appropriate plus the funeral expenses of $2,700.36. “Plaintiffs Sardo and Mary Palermo claim damages for the death of their daughter, Glinda Steib. At the time of the accident Glinda Steib was legally separated from Farrell Steib. Plaintiffs argue that the term ‘surviving spouse’ under Civil Code Article 2315 is not intended to include a legally separated spouse. The court however finds that Article 2315 is clear and controls. Therefore the claims of Sardo and Mary Palermo for the death of Glinda Steib will be dismissed.
“They also claim damages as the beneficiaries of the Estate of Glinda Steib. They urge that the claim of Glinda Steib for the deaths of her only two children should be awarded to them. The court believes there is sufficient uncontradicted evidence in the record to show that Glin-da Steib survived her minor children for a short period of time and in addition the weight of authority compels the application of Civil Code Article 938 thus reaching the same result. See Hoy v. Stuyvesant Insurance Company, 141 So.2d 908 [La.App.] and Doucet v. Travelers Insurance Company, 916 [91] F.Supp. 864. The court finds that an award of $100,000.00 to Glinda Steib for the deaths of her minor children would have been appropriate had she survived. The exception of no cause of action filed by the Defendant with regard to the claims of Sardo and Mary Palermo as beneficiaries to the Estate of Glinda Steib will be dismissed. “Plaintiffs failed to produce any evidence which would indicate that any of the decedents in the accident suffered conscious pain and suffering prior to death. While the court believes that there is some evidence to demonstrate that Glinda Steib was living a short period after the accident there is no evidence to indicate that she suffered conscious pain and suffering. Thus all claims in this category will be dismissed.
“Sharon Rousseau suffered numerous serious permanent injuries as a result of this collision. She incured [sic] a generalized brain contusion, a chest injury with fractured ribs, a pneumothorax, a fractured femur, a fractured clavicle, a basi-lar skull fracture, and a brachial plexus stretch injury. She was hospitalized from September 15, 1978, to October 29, 1978. While her leg fracture healed without complications she will always walk with a limp and according to Dr. Messina she will suffer residual weakness in the quadruceps muscles. Her brain contusion and brachial plexus stretch injury have resulted in substantial impairment of the use of her right arm. Dr. Clifford testified that Ms. Rousseau will always have difficulty in performing general manual duties, household duties and work related duties.
“Her brain injury has also resulted in substantial personality changes including inappropriate behavior, slovenly appearance, and what is termed ‘a devil-may-care attitude’. Ms. Rousseau may also experience some loss of memory, loss of concentration, and a slightly increased chance of epilepsy. These brain injuries are considered to be permanent. Due to these extremely severe injuries the court is of the opinion that an award of general damages for pain, suffering, and mental anguish of $400,000.00 is appropriate. See Carollo v. Wilson, 353 So.2d 249 [La.]; Gregorie v. Hartford Accident and Indemnity Company, 348 So.2d 186 [La.App.], writ denied, 350 So.2d 1210; and Stanley v. Wiley, 325 So.2d 661 [La.App.]. “In addition due to the substantial personality changes suffered by the Plaintiff, the impairment of the use of her right arm, her various brain injuries, her limited education and work experience prior to the accident, Sharon Rousseau is totally and permanently disabled from the performance of any substantially gainful activity. At the time of the accident she was earning approximately $236.53 per month as a clerk in a bakery owned and operated by her brother. In the recent case of Folse v. Fakouri, 371 So.2d 1120 [La.] (1979), the Supreme Court stated that damages for loss of earning capacity should be based upon the injured person’s ability to earn money rather than actual earnings prior to the injury. Dr. Randolph Rice, an economist, testified that assuming that Ms. Rousseau could perform the work of the lowest level secretary hired by the State of Louisiana the present value of her loss of future earnings from the date of the trial would be $308,316.00.
“Plaintiff returned to work for her brother in October of 1979. Her employer testified that due to her limited capacity to use her right arm he had to design a special job of cashier for her. He further stated that her present employment was largely in the nature of a gratuity offered to his sister because of their relationship. She currently earns approximately $200.00 per month. Assuming that she is able to continue in this employment her future earnings discounted to present value would be $29,359.00 according to the calculations of Dr. Rice. It is obvious to the court that Ms. Rousseau will be unable to compete in the job market or to obtain any substantial employment other than from friends and relatives. Viewing this present employment as an attempt at mitigation of damages and allowing a credit for these earnings, the plaintiff’s award for loss of future earnings should be limited to $278,956.00. In addition plaintiff was unemployed for a period of twelve months after the accident and for this period she is entitled to an award of $2,838.36 based upon her salary at the time of the accident. For the remaining fourteen months between the time of her return to work and the time of the trial she is entitled to an award of $584.48. Thus she is entitled to a total award for loss of wages prior to the trial in the amount of $3,422.84. “Medical bills introduced into evidence justify an award for medical expenses in the amount of $23,572.24. No proof was presented with regard to any future medical expenses and no allowance is made for this claim.”

We turn now to a consideration of the amount of the several awards. The State argues that the trial court awarded excessive amounts of damages to these plaintiffs.

First, plaintiffs Sardo and Mary Palermo were awarded the sum of $100,000, as beneficiaries of the Estate of Glinda Steib for the deaths of Mrs. Steib’s two minor children. We feel compelled to conclude that the trier of fact abused his discretion in making an excessive award in this respect. Although the evidence supports the fact that Glinda Steib was alive for a brief moment, there is no showing that she ever fully regained consciousness. Thus, to assume that Mrs. Steib was aware of the deaths of her two children would be based on sheer conjecture. Nevertheless, and however minimally, Glinda Steib did suffer the loss of her two small children. She was entitled to general damages for this loss— this loss of love and affection. We feel that this loss is akin to the brief span of pain and suffering borne by the deceased in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). The court awarded the sum of $15,000 for such loss in Cheatham. Surely one could not gainsay a like amount in the present case. We note in Wiggins v. Lane, 298 F.Supp. 194 (E.D.La.1969), the court allowed to stand a jury award of $10,000 for conscious pain and suffering before death where the deceased suffered but two seconds. In accordance with our findings, we believe that $15,000 for the loss of love and affection of each child is the highest point reasonably within the discretion of the trial court in the case at bar. Hence, pursuant to Reck v. Stevens, 373 So.2d 498 (La.1979), and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), we reduce the award to plaintiffs Sardo and Mary Palermo, as beneficiaries of the Estate of Glinda Steib, to the sum of $15,000 for the loss of each child, or a total of $30,000.

We next consider the issue of quantum for plaintiff Roy Dimm. For the loss of love and affection of his two sons, the trial court awarded the sum of $100,000. The award is somewhat disproportionate to awards heretofore made in similar cases.

In Knotts v. State, Department of Highways, 395 So.2d 419 (La.App. 3 Cir. 1981), writs denied, 400 So.2d 669, 670 (La.1981), the court found that awards of $75,000 to each parent for the loss of “an unusually gifted, bright, intelligent and talented 11-year-old girl” were “somewhat generous but they are within the very broad discretion accorded trial court judges in fixing awards.” The child was “her mother’s constant companion and a combination sister, tutor, teacher, nurse and loving sibling to her 3-year-old, afflicted brother.”

An award of $50,000 was made to each parent for the loss of their 21 year old son, residing with them but making no financial contribution for support, in Williams v. State Farm Mutual Automobile Insurance Company, 349 So.2d 1275 (La.App. 1 Cir. 1977), writs denied, 351 So.2d 175 (La.1977). The trial judge was impressed with the “profundity of their loss”; both parents expressed “deepest love and affection” for their son.

In Lapoint v. Breaux, 395 So.2d 1377 (La.App. 1 Cir. 1981), writ denied, 399 So.2d 611 (La.1981), the court, taking into consideration that the parents of an 18 year old boy were “very fond of their child, and his loss was a great blow to them”, awarded $50,000 to each parent. The son also contributed to his parents’ support, for which they were granted an additional sum of $30,000.

In Walker v. St. Paul Insurance Companies, 343 So.2d 251 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 61 (La.1977), the court reduced a jury award of $107,512 to $40,000 for each parent for the loss of a major child, not living with his parents or contributing to their support.

In Youngblood v. Oil Well Chemical Company of Louisiana, 352 So.2d 316 (La.App. 4 Cir. 1977), the court affirmed an award of $40,000 to the mother of an 18 year old girl, who helped at home and helped with the other children.

In Gunter v. Wiley, 325 So.2d 654 (La.App. 3 Cir. 1975), the court affirmed an award of $40,000 to each parent for each child killed in a vehicular accident (a boy, age 14; a girl, age 10). The record showed that the parents established “a community of interest, love, and affection.”

In Foster v. Houston General Insurance Company, 407 So.2d 759 (La.App. 2 Cir. 1981), the court affirmed an award of $40,-000 to the mother of a 17 year old mentally retarded son for loss of love and affection.

Other awards, while not used for achieving uniformity, do serve as aids in determining whether a particular award is so out of line as to be an abuse of discretion. Walker v. St. Paul Insurance Companies, supra.

We have considered the close relationship between father and sons and their frequent mutual participation in recreational activities, as well as the fact that they lived with him a good deal of the time notwithstanding the fact that he did not have legal custody of the children. Considering the guidelines for appellate review of damage awards, as enunciated in Reck v. Stevens, supra, and Coco v. Winston Industries, Inc., supra, we do not find that the trial court’s awards to Mr. Dimm are so much higher than awards in other similar cases as to be an abuse of discretion.

Accordingly, we affirm the award to Roy Dimm; nor do we disturb the award for funeral expenses, the sum of $5,067.53.

With regard to the award for wrongful death to Mr. and Mrs. Lewis, the trial court fixed the amount at $50,000 for each parent, with funeral expenses of $2,700.36. The record establishes a similar close relationship between Wilson and Sadie Lewis and their son, Grover. For the reasons assigned for affirming the award to Mr. Dimm, we also affirm the award to Mr. and Mrs. Lewis for the loss of love and affection of their son.

The trial court fully explained the basis for its award to Sharon Rousseau, as set out above. . The record substantiates that she sustained numerous serious permanent injuries, including a brain injury which “resulted in substantial personality changes.” The record also supports the award for her loss of earning capacity and loss of wages. The medical bills in evidence support the award for medical expenses to her.

Considering the principles enunciated in Reck v. Stevens, supra; Coco v. Winston Industries, Inc., supra; and McDaniel v. State, Department of Transportation and Development, 398 So.2d 88 (La.App. 3 Cir. 1981), writs denied, 404 So.2d 277, 279 (La.1981), we do not find the award to Sharon Rousseau to be excessive. Our careful review of the record and the jurisprudence satisfies us that the award to her was fair and proper. Carollo v. Wilson, 353 So.2d 249 (La.1977); Swanson v. Estate of Augusta, 403 So.2d 118 (La.App. 4 Cir. 1981).

Sardo and Mary Palermo also asserted a claim for the death of their daughter, Glin-da Steib. The trial court dismissed this claim, and the Palermos answered the Department’s appeal, reurging this claim.

We find that the lower court correctly denied the claim of the Palermos for the death of their daughter. At the time of the accident, the daughter was legally separated from Farrell Steib, but the marriage had not yet been terminated. She was still the wife of Farrell Steib. Clark v. Tenneco, Inc., 353 So.2d 418 (La.App. 4 Cir. 1977), writ denied, 355 So.2d 266 (La.1978), holds that surviving parents are precluded from recovery for the death of their married child where there has been no termination of the marriage by divorce. LSA-C.C. art. 2315.

Accordingly, for the reasons assigned, we modify the awards to Mr. and Mrs. Palermo and amend the judgment to reflect said reduction. In all other respects the judgment is affirmed.

Costs of this appeal are assessed against the State of Louisiana, Department of Transportation and Development in the amount of $1936.21.

AMENDED, AND AS AMENDED, AFFIRMED.

COLE, J., concurs in the result as regards liability, and concurs in all respects as regards the treatment of quantum.

      . At the time of the accident, Glinda Steib was married to but legally separated from Farrell Steib. Glinda Steib was the mother of Roy, Jr. and Randy Dimm. The Palermos claim damages for the death of their daughter, Glinda Steib, and they also claim that, as beneficiaries of the Estate of Glinda Steib, they are entitled to damages for the wrongful death of the minor children of Glinda Steib.

      . Ferdinand Dimm was made a party plaintiff in the original petition. Mrs. Ferdinand Dimm, Sidney Palermo, David Palermo and Angeline Blanchard were made parties plaintiff in the second amending petition. The judgment does not allude to any of these five plaintiffs and it must be presumed that their claims were denied by the court.

      . Also spelled “Humphries” and “Humphreys” in the record.

      . We do not consider the insufficiency of the award as that issue was not raised by plaintiff, Roy Dimm.


source: Caselaw Access Project

author: PONDER, Judge. SAVOIE, Judge,

license: Public Domain

text:
    Dale M. ERDEY v. The AMERICAN HONDA CO., INC., et al.
    No. 14807.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Paul H. Due, Baton Rouge, for plaintiff-appellee.
    Donald Phelps, Baton Rouge, for defendants-appellants.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Some of the defendants, Dr. Allen Jackson, Dr. Allen Jackson-Dr. Richard L. Bolton, Ltd., and St. Paul Fire and Marine Insurance Company, appealed from the overruling of the exception to the venue and the exception of improper cumulation of actions.

The issues are the venue of a medical malpractice action and the cumulation of that action with one of products liability.

We affirm and remand.

Plaintiff received a broken leg in a motorcycle accident in Livingston Parish, where he is domiciled. He was examined at Dixon Memorial Hospital in Livingston but was transferred to Baton Rouge General Hospital in order to secure the services of Dr. Jackson, an orthopedic surgeon. After treatment, including application of a cast, Dr. Jackson suggested hospitalization but plaintiff elected to return home. When troubles with the leg developed, plaintiff and his parents talked over the telephone to Dr. Jackson. Plaintiff went back to Dixon Memorial Hospital where additional treatment was given by a physician who conferred via telephone with Dr. Jackson. The trouble worsened, and ultimately plaintiff suffered an amputation, which was performed in East Baton Rouge Parish.

In the suit for damages filed in Livingston Parish, plaintiff named as defendants, The American Honda Company, Inc.; Honda Motor Company, Ltd.; G. N. Gonzales, Inc.; Dr. Allen Jackson-Dr. Richard L. Bolton, Ltd., a Professional Medical Corporation; Allen Jackson, M.D.; and St. Paul Fire and Marine Insurance Company, the first three with allegations of defects in the motorcycle and the latter three with allegations of medical malpractice.

After other procedures not pertinent here, the medical malpractice defendants filed an exception to the venue and an exception of improper cumulations, alleging that Dr. Jackson lives in East Baton Rouge Parish, the corporation was formed there and the insurer has its domicile in East Baton Rouge Parish for venue purposes. The court overruled the exceptions.

The general rule of La.C.C.P. Art. 42 that an action should be brought in the parish of the defendant’s domicile, has a number of exceptions, two of which are provided by Art. 73, that joint or solidary obligors may be sued in any parish of proper venue as to any defendant, and Art. 74, that an action arising from an offense or quasi-offense may be brought in the parish where the offense occurred or in the parish where the damages were sustained. Appellees seek to justify venue in Livingston Parish for the medical defendants on both exceptions.

Venue for the products liability defendants seems to be proper since Livingston Parish was where the damages were sustained. Appellees contend that the medical malpractice defendants were solidary obli-gors along with the products liability defendants, at least to the extent of the damages sustained from the time of the initial treatment by the medical defendant.

A tort feasor is responsible for the aggravation of injuries caused by the treatment of the physician. Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (4th Cir. 1972); Hudgens v. Mayeaux, 143 So.2d 606 (3d Cir. 1962). The physician and his insurer are also liable for the damages caused by malpractice. An obligation in solido occurs when each of the debtors may be compelled for the whole. C.C. Art. 2091; Foster v. Hampton, 381 So.2d 789 (La.1980). Under these circumstances, we believe the obligation to be solidary.

Appellants argue that this is not true because the products liability defendants are responsible for more, the damages accrued to plaintiff prior to the beginning of the medical treatment. However, the fact that the first defendants may be responsible for an additional sum over that for which the doctors may be responsible does not prevent the doctors and the other defendants being responsible for the whole of the damages accruing after the treatment was begun. See Berger v. Fireman’s Fund Insurance Company, 305 So.2d 724 (4th Cir. 1974).

Appellants’ reliance upon Duhon v. Lafayette General Hospital, 286 So.2d 166 (3d Cir. 1973), we believe to be misplaced. The doctors sought to be held as joint tort fea-sors had no connection with plaintiff’s admission to the hospital where he had been allowed to fall from his bed. The court held that the doctors did not act with or assist the hospital in the commission of the alleged tort, was not solidarily liable with the hospital and therefore could not be sued along with the hospital in the latters’ domicile.

Because we find venue proper under C.C.P. Art. 73, we need not address the application of Art. 74.

Without expressing any opinion as to the facts of the case, it may be impossible to allocate some of the damages as resulting solely from the original accident and the alleged medical malpractice. See Wilson v. Swinford, 324 So.2d 582 (2d Cir. 1975).

Appellants assert the actions are improperly cumulated because of improper venue and lack of community of interest. The question as to venue has been answered above.

The concept of community of interest cannot be precisely defined but is related to the presence of facts at issue in the claims against the multiple defendants. The facts of the treatment, the extent of the injuries and other facts would be admissible in cases against each of the defendants. We find that there is a community of interest.

For these reasons the judgment overruling the exceptions is affirmed at appellants’ costs for the appeal and the case is remanded for further proceedings.

AFFIRMED AND REMANDED.

SAVOIE, J., concurs in the result.

SAVOIE, Judge,

concurring.

I concur, but feel that C.C.P. Article 73 does not provide venue in Livingston Parish in the instant case.

Where there is a substantive difference in the remedy available from each tort feasor, there is no solidarity, even though the tort feasors may have acted concurrently.

What we have here are essentially two torts:

TORT A: The improperly constructed motorcycle causing an accident in Livingston Parish.
TORT B: The malpractice of the Doctor in East Baton Rouge Parish.

The tort feasor in Tort A is American Honda and it is well settled that American Honda is responsible for the aggravation of injuries caused by treatment of the physician.

The tort feasor in Tort B is the Doctor. However, the Doctor is not responsible for the injuries caused by American Honda.

Therefore, insofar as Tort A is concerned, there are no joint tort feasors. However, insofar as Tort B is concerned, American Honda and the Doctor are joint tort feasors.

Applying the foregoing rationale C.C.P. Art. 73 dictates that joint obligors may be sued in any parish of proper venue as to any defendant. C.C.P. 42 dictates that the action should be brought in the parish of the defendant’s domicile. That would be East Baton Rouge for the Doctor, and East Baton Rouge for American Honda. Further, the alleged Tort B occurred in East Baton Rouge Parish.

Accordingly, I would reject the contention that Article 73 provides venue in Livingston Parish in the instant case. There is not now nor was there ever any joint obligation by the Doctor and American Honda as to the injuries sustained in Tort A.

The only way that I see Livingston Parish as the proper venue for both American Honda and the Doctor is under the wording of Article 74, which reads to the effect that an action can be brought where the offense occurred or in the parish where the damages were sustained. It can reasonably be stated that the damages resultant from the alleged malpractice were sustained in Livingston Parish.

      . The following quotation is from page 728:
      “It is obvious that a negligent physician would be liable for damages resulting from his negligence but not for the initial damages where they could be separated. Thus, as to the subsequent damages only, the original tort feasor and the physician might be liable in solido.”

      . If this were not the case, American Honda and the Doctor would never be joint tort fea-sors, but rather only successive tort feasors.


author: COLE, Judge.

text:
    Roseluce CHARPENTIER v. The LOUISIANA LAND AND EXPLORATION COMPANY.
    No. 14808.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Thomas Guzzetta, Thibodaux, for plaintiffs-appellants Viola Eymard, Doris Char-pentier, Steven Charpentier, Alvin Char-pentier, Lawrence Charpentier and Henry Charpentier.
    Donald L. Peltier, Thibodaux, and Lawrence K. Benson, Jr., New Orleans, for defendant-appellee The Louisiana Land and Exploration Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff, Roseluce Charpentier, filed a suit for declaratory judgment, seeking to be declared the owner of a certain tract of land located in sections 37 and 38 of T-19S, R-22-E near Golden Meadow, Louisiana. Plaintiff alleged the judgment was necessary because defendant, The Louisiana Land and Exploration Company (LL&E), was adversely claiming parts of this property by virtue of a recorded deed.

After hearing the evidence the trial court determined plaintiff’s title contained conflicting descriptions in that the boundaries described and the measurements given did not coincide. The property was described as follows:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche, at about forty-six (46) miles below the City of Thibodaux, having a front on Bayou Lafourche of one hundred nine (109') feet by a depth of forty (40) arpents and a width on the forty (40) arpent line of one hundred fifty-four and one-half (154V2') feet, more or less; bounded above by the property of Ernest Eymard, now or formerly, and bounded below in part by land of Louisiana Meadow Company, now or formerly, the lower line of petitioner’s said property being sixty (60') feet above and parallel with the upper or northern line of Lot or Section Number 31, Township 19 South, Range 22 East of the Southeastern Land District of Louisiana.”

The court noted although the property was described as having a width of 154V2 feet at the 40 arpent line it was also described as being bounded above by the property of Ernest Eymard and bounded below by a line running 60 feet above and parallel to the section 31 line. These two boundaries were in reality much more than 154V2 feet apart at the 40 arpent line. He found plaintiff and his ancestors in title to have possessed in accordance with the measurement of 109 feet fronting on the bayou and 154V2 feet at the 40 arpent line, but such possession ran along the Eymard property rather than along the section 31 line. While the court found plaintiff’s title to contain these defects it found defendant to have a perfect title traced back to the sovereign.

Various witnesses testified concerning acts of possession exercised on behalf of each party. After hearing the evidence the court concluded plaintiff had failed to prove any of the alleged acts took place on the disputed tract whereas defendant had established corporeal possession of the area in question. The court rendered judgment against plaintiff and in favor of LL&E, on the basis of record title as well as ten years acquisitive prescription. Plaintiff filed this appeal.

Plaintiff raises eight errors as the basis for his appeal. After examining the record we conclude the trial court did not err in its judgment, therefore we affirm. We address briefly each of the eight errors and we adopt the reasons of the trial court as a part of this opinion.

In considering the eight errors we note some are addressed to determinations of fact and some to determinations of law. Appellants raise four factual errors but all are variations of one common complaint, that the trial court erred in finding defendant, rather than plaintiff, to be in corporeal possession of the disputed tract.

As we have stated in innumerable opinions, the trial court is granted much discretion in its determination of facts and its conclusions will not be disturbed unless the record shows manifest error has been committed. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Dupree v. Pechinay Saint Goban Co., 369 So.2d 1075 (La.App. 1st Cir. 1979), writ refused 1979.

The record here contains testimony of various witnesses for each side, reciting certain acts of possession allegedly exercised over the disputed tract. Plaintiff and his witnesses (permittees) testified they had trapped, hunted or grazed cattle on plaintiff’s property for many years but the exact location of these activities was never established. The testimony indicated much of the activity was in the northern portion of the eastern half of section 37 rather than in the southern portion, which is the area in question.

Defendant’s witnesses testified concerning various activities on or near the disputed strip. Beginning in 1955 LL&E dug canals along the midsection line of section 37 and 15 feet inside the section line of section 31. These canals surround the controverted land. “Posted” signs were placed at intervals along the canal. LL&E initiated a reclamation project in 1952 whereby the swampy land near the disputed area was pumped dry.

Viewing the evidence as a whole, we are satisfied the trial court did not commit manifest error in deciding defendant rather than plaintiff had exercised corporeal possession sufficient to establish ownership by acquisitive prescription of ten years.

The remaining errors deal with legal matters and will be considered individually. The first is that the trial court erred in failing to hold plaintiff and his ancestors in title were presumed to possess to the full extent of the limits of their title. Plaintiff bases this argument on Civil Code art. 3498 which reads:

“When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.”

The trial court stated, “... plaintiff failed to establish any acts of possession either corporeal or civil preceded by corporeal over the disputed property or that he intended to possess as owner to the limits of this title sufficient for constructive possession.” We agree that under the cited code article plaintiff is presumed to possess to the limits of his title. Assuming, arguendo, it was erroneous for the court to require plaintiff to prove such an intention, we find the error to be insignificant because this presumption is rebuttable and was refuted by the evidence showing defendant’s corporeal possession. See, Norton v. Addie, 337 So.2d 432 (La.1976); Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir. 1978).

Plaintiff contends the court erred in refusing to allow him to amend his petition during trial, after he had rested his case. The purpose of the proposed amendment was to increase the rear width of the described property from 154V2 feet to 380 feet. Plaintiff’s attorney alleged that through evidence adduced at trial he found it necessary to change the property description in order to rebut a possible claim by defendant that the plaintiff was possessing beyond the limits of his deed.

The general rule on this matter is that the trial court has much discretion in refusing or allowing amendment after an answer is filed and such ruling will not be disturbed unless there has been an abuse of discretion. Independent, Inc. v. Watson, 394 So.2d 710 (La.App. 3d Cir. 1981); Calvary Tabernacle v. Louisiana Central Bank, 384 So.2d 814 (La.App. 3d Cir. 1980), reversed on other grounds 393 So.2d 708 (La.1981). It has been held to be an abuse of discretion for the trial court to allow such an amendment where the other party didn’t have adequate time to prepare to meet the new issue. Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1st Cir. 1964). Here the plaintiff attempted to expand the property description, and therefore the amount of property in dispute, after plaintiff had rested his case and during defendant’s presentation. The entire trial had gone forth on the basis of the initial property description and any changes in that description would certainly change the issues at trial to some extent. We find no abuse of discretion in the trial court’s refusal to allow the amendment at that late date.

Plaintiff’s next complaint is that the trial court erred in failing to grant him a new trial. In his application for a new trial he mentioned the court’s refusal to allow the supplemental petition and then stated he desired a new trial “for the submission of documentary evidence to establish the upper line of his property according to title without which evidence the court can not determine the fixed boundaries of the property described in plaintiff’s deeds.”

The granting of a new trial is peremptory in some cases and discretionary in others. According to La.Code Civ.P. art. 1972, there are two circumstances where a new trial (in a non-jury case) shall be granted. One, where the judgment is contrary to the law and evidence and two, where the party has discovered new evidence which he could not have obtained before or during trial. It is clear from plaintiff’s petition he did not and could not urge the first ground. If he is urging the second ground the trial court properly denied the new trial because of plaintiff’s failure to submit a verifying affidavit as required by La.Code Civ.P. art. 1975. It has been held a trial court acts correctly when it refuses to grant a new trial because of the failure to include the verifying affidavit. McDonald v. O’Meara, 149 So.2d 611 (La.App. 1st Cir. 1962).

Plaintiff contends he is not basing his request on the “newly discovered evidence” ground and therefore does not need the verifying affidavit. If he is not urging this ground then it is entirely within the discretion of the trial court whether or not to grant the new trial (La.Civ.P. art. 1973) and we find no abuse of discretion in the court’s action.

Plaintiff’s final error concerns a stipulation made by the parties. Plaintiff’s suit was filed originally as a declaratory judgment and then amended to become a possessory action. By stipulation of counsel and apparently at the trial court’s suggestion, the suit was reconverted to a declaratory judgment action. The stipulation was entered into the record as follows:

“It is stipulated between counsel that the matter fixed for trial today will go back to the suit as originally filed, a suit for declaratory judgment, limited to the issue of plaintiff’s title by acquisitive prescription, the result of which will be to remove from the suit the issue of possession necessary for possessory action.”

In its reasons for judgment the court stated this stipulation meant plaintiff conceded defendant had a better record title. Plaintiff urges the trial court erred in this conclusion.

We agree with plaintiff the stipulation did not mean plaintiff conceded defendant had a better record title. The stipulation did not address directly the issue of record title but only indicated acquisitive prescription would be the key issue. However, this remark by the trial court does not affect the outcome of the case because the court found defendant had in fact proved he had a better title (therefore making plaintiff’s alleged “concession” immaterial) and also because the matter was decided not on record title alone but also on defendant’s acts of possession which established acquisitive prescription.

For the foregoing reasons, and for the reasons expressed by the trial court and adopted as a part of this opinion, the judgment of the trial court is affirmed. Appellants are to pay costs.

AFFIRMED.

ROSELUCE CHARPENTIER * 17TH JUDICIAL DISTRICT COURT
VERSUS NO. 38936 * PARISH OF LAFOURCHE
THE LOUSIANA LAND & EXPLORATION COMPANY * STATE OF LOUISIANA

REASONS FOR JUDGMENT

This is an action by the plaintiff, Rose-luce Charpentier, against the defendant, The Louisiana Land and Exploration Company, for a declaratory judgment declaring him to be the owner of certain lands situated in the Parish of Lafourche and ordering the cancellation from the records of La-fourche Parish any instrument asserting title to the said property by the defendant.

Plaintiff alleges that he is the owner of the aforementioned property by virtue of prescriptive title of ten and thirty years, that the defendant adversely claims ownership to portions of said property and, that he is entitled to a declaratory judgment recognizing his ownership of said property.

The defendant answered denying the allegations of the petition, alleging ownership of the disputed property on the basis of record title and alternatively, likewise pleading ten years acquisitive prescription.

By joint stipulation of counsel entered into the record on January 23, 1980, the parties agreed that the suit would be limited to the issue of plaintiff’s ownership by virtue of acquisitive prescription, hence plaintiff has, in essence, conceded that the defendant has the better record title.

The property in dispute consists of the rear two-thirds of a tract of land in T19S-R22E, near Golden Meadow, Louisiana, described as follows:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche, at about forty-six (46) miles below the City of Thibodaux, having a front on Bayou Lafourche of one hundred nine (109') feet by a depth of forty (40) arpents and a width on the forty (40) arpent line of one hundred fifty-four and one-half (154V2') feet, more or less; bounded above by the property of Ernest Eymard, now or formerly, and bounded below in part by land of Louisiana Meadow Company, now or formerly, the lower line of petitioner’s said property being sixty (60') feet above and parallel with the upper or northern line of Lot or Section Number 31, Township 19 South, Range 22 East of the Southeastern Land District of Louisiana.”

The tract is situated in such a manner that it fronts on the east bank of Bayou Lafourche at the mid-point and along the outside edge of a curve in the bayou. From there it extends outward from the bayou between diverging lines in generally an east-northeasterly direction through the lower side of section 37 and into a portion of the west side of fractional section 38 to the forty (40) arpent line. The disputed property is that portion of this tract lying between the midsection line of section 37, which is approximately 14 arpents from the bayou, and the forty (40) arpent line.

The plaintiff acquired title to the whole of the previously described tract by two separate conveyances of roughly one-half of the property in each deed. The first was a transfer of the lower portion of said property by act of sale dated March 24,1934, from Manuel Pitre, recorded at Book No. 71, Folio 185, in the conveyance records of the parish, containing the following description:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of the Bayou Lafourche, at about forty-six miles below the Town of Thibodaux, measuring fifty-four feet six inches in front along the said Bayou Lafourche by the ordinary depth; of forty arpents, bounded above by the said vendor and below by the Louisiana, Meadow, Company, together with all the buildings and improvements thereon, and all the rights, ways, privileges and servitudes thereto belonging or in any wise appertaining. Being the said property acquired by the said Manuelle Pitre, from Unesie Pitre.”

The second was a transfer of the upper portion of said property by act of sale dated February 14, 1952, from Eugene Cheramie, recorded at Book No. 159, Folio 122, containing the following description:

“A certain lot of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche, at about forty-six (46) miles below the town of Thibodaux, Louisiana. Said property measuring fifty-four and one-half (54V2') feet along Bayou La-fourche on the east side of the property by a depth of forty (40) arpents by a width on the rear at the forty arpent line of one hundred (100') feet more or less. Bounded on the west by Bayou La-fourche, on the north by property of Ernest Eymard, now or formerly, on the east by Louisiana Land on the south by purchaser. Being of the same property acquired by vendor from Dr. Stork by an act of sale passed before Harvey Peltier, Sr., Notary in and for the Parish of La-fourche, State of Louisiana.”

From these deeds the plaintiff traces his title as follows:

1) By act of sale dated April 1, 1943, recorded at Book No. 106, Folio 2, Eugene Cheramie acquired the upper portion of said property from Dr. Thomas Stark;
2) By sheriff’s sale dated April 8, 1939, recorded at Book No. 90, Folio 130, Dr. Thomas Stark acquired the upper portion of said property in the suit of Octave J. Gisclair vs. no. 7535 Manuel Pitre;
3) By act of sale dated March 7, 1928, recorded at Book No. 60, Folio 409, Manuel Pitre acquired the whole of said property from Anecy Pitre;
4) By act of partition among the heirs of Livaudais Pitre dated September 15, 1919 and recorded at Book No. 50, Folio 525, Anecy Pitre acquired the whole of said property as a part of his share in the partition;
5) By act of partition among the heirs of Livaudais Pitre (Sr.) dated February 17, 1917, recorded at Book No. 47, Folio 477, Livaudais Pitre acquired the whole of said property as a part of his share in this partition.

The property partitioned by the heirs of Livaudais Pitre (Sr.) on February 17, 1917, is described as follows:

“A certain tract of land, situated in the Parish of Lafourche, on the left descending bank of Bayou Lafourche, at about fifty miles below the town of Thibodaux, measuring twenty-eight (28) arpents, less, sixty feet by forty arpents in depth, bounded above by lands of Dominique Gisclar, and below by lands of Louisiana Meadows Company, together with all the buildings and improvements thereon.
Being the same property acquired by said Livaudais Pitre, from the United States Government about fifty years ago.”

The sixty (60') foot strip referred to in the preceding description was sold by the widow and heirs of Livaudais Pitre, Sr. to the Louisiana Meadows Company in 1909.

The defendant, Louisiana Land, formerly Border Research Corporation, acquired title to all of the east half of section 37 and to all of section 38, which sections include the disputed property, by act of sale dated February 2, 1926, from Henry H. Timken, recorded at Book No. 57, Folio 538. The defendant traces it’s title to the east half of section 37, by an unbroken chain of transfers, to patent number 5071 dated May 11, 1883 from the State of Louisiana to Jules Lapene. The defendant traces it’s title to section 38, by an unbroken chain of transfers, to patent number 7879 dated May 23, 1901 from the State of Louisiana to J. M. Dresser.

In 1929, after his acquisition from Anecy Pitre, plaintiff’s ancestor in title, Manuel Pitre, went into possession of property located in sections 37 and 38 under the following property description:

“A certain tract of land situated in the Parish of Lafourche, State of Louisiana, on the left descending bank of Bayou Lafourche, at about fifty miles below the Town of Thibodaux, measuring, one hundred nine feet and three and one-half inches, front along the said Bayou La-fourche, by forty (40) arpents in depth; bounded above by the land of Voltaire Pitre, and below by the land belonging to the Louisiana, Meadows Company, together with all the building and improvement thereon. The said vendor acquired the above described property from an act of partition between his brother and sister, passed before George Raymond, a Notary Public, on September 15, 1919.”

The possession thus entered into by Manuel Pitre placed his lower boundary sixty (60') feet above the upper line of section 31 and his upper boundary one hundred and nine (109') feet above his lower boundary, at the front Une. At this time however there had been no surveys of the property, there were no boundary markers, and possession in the rear was exercised without regard to boundaries. Also, possession was predominately confined to the front fourteen (14) arpents due to the low elevation and marshy nature of the property beyond that point. Just east of the forty (40) arpent line however there was a high ridge referred to as Point de Lomme or Point Blue which runs generally in a northwest to southeast direction. By coincidence the fourteen (14) arpent line falls at or just west of the midseetion line of section 37. From 1929 and during the time that he owned it Manuel Pitre exercised possession of this property by constructing a house on it and by residing there with his brother-in-law, Louis Gisclair. He also allowed his father, Voltaire Pitre, to cultivate the area between his house and the fourteen (14) arpent line and to trap the area between the fourteen (14) arpent line and the forty (40) arpent line. During this time no one ever told Manuel Pitre and his family that they were trespassing or that they were possessing beyond the limits of their deed.

With his acquisition of the lower half of the property in 1934, the plaintiff went into possession in much the same manner as Manuel Pitre and his family had done in previous years. He moved into the house constructed by Manuel Pitre and allowed Voltaire Pitre to continue trapping in the rear in exchange for Voltaire’s mule and plow. In that year he began digging a trainasse behind the house from about the fourteen (14) arpent line to the ridge (Point de Lomme) at the forty (40) arpent line. To keep it open the trainasse had to be cleaned out each year. The plaintiff also cultivated portions of the front and he hunted and trapped in the rear. In 1952 he purchased the upper half of the original tract from Eugene Cheramie. He paid property taxes, granted oil, gas, and mineral leases, granted verbal grazing leases and cut the grass. Until 1952 there were no signs or other evidence of boundaries or of adverse possession and no one ever told him that he was trespassing or possessing beyond the limits of his title. Again, his possession of the rear was exercised without regard to bounds. After 1952 the plaintiff’s activities in the rear of the property gradually diminished due to his age, and at the time of trial it had been fifteen (15) or twenty (20) years since he had personally been all the way to the forty (40) arpent line. During this period however he continued to grant oil, gas, and mineral leases and verbal grazing leases. The only written grazing lease granted by the plaintiff was in 1972 and it was not recorded. However this lease was still in existence and the lessee purportedly had cattle on the disputed property at the time of trial.

After its acquisition from Henry H. Timken in 1926 and continuously during the period of from 1931 to the early 1950’s the defendant, Louisiana Land & Exploration Company, granted trapping and grazing leases covering the entire area within the east half of section 37 and the western portion of fractional section 38. In 1952 the defendant began surveying and posting the property. Between 1952 or 1953 and 1955 the defendant began digging canals around the perimeter of these sections and began reclamation of the land by pumping. From this time until the time of trial the defendant has granted trapping, grazing and mineral leases covering all of the east half of section 37 and the west side of fractional section 38, and portions of it have been fenced in since 1972 by one of its grazing lessees. This grazing lessee also purportedly had cattle on the disputed property at the time of trial.

Plaintiff contends that he and his ancestors in title have been in continuous corporeal or civil possession preceded by corporeal possession of the disputed property as owners thereof under deeds translative of title since 1929. Alternatively, he contends that he and his ancestors in title have been in constructive possession of the disputed property under deeds translative of title since 1929 and, therefore, that he is owner of the property in dispute by virtue of acquisitive prescription of ten (10) and thirty (30) years.

The defendant contends that it has been in corporeal and/or civil possession preceded by corporeal possession of the disputed property as record title owner thereof since its acquisition in 1926 and that the plaintiff has never been in corporeal or constructive possession of the disputed property. The defendant further contends that the rules of constructive possession are inapplicable insofar as the plaintiff’s claim is concerned.

To enable one to acquire the ownership of immovable property by acquisitive prescription of either ten (10) or thirty (30) years it is essential that he possess the thing as owner. La.R.C.C. Article 3487 and La.R. C.C. Article 3500.

His possession need not be exercised over every part of it; however it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries. La.R.C.C. Article 3437.

When a person has a title and possession conformable to it, he is presumed to possess according to the title and to the full extent of its limits. La.R.C.C. Article 3498.

As used in La.R.C.C. Article 3437, the word “boundaries” means the limits or marks of inclosures if the possession be without title, or the boundaries or limits stated in title deed if the possession be under a title. Leader Realty Company vs. Taylor, 147 La. 255 [256], 84 So.2d [So.] 648 (1920), Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir. 1978). However, constructive possession of a part of a tract of land by reason of possession of the whole under color of title, cannot prevail over the adverse possession, whether the latter’s possession be civil or corporeal, of the other party under a better or earlier title. Buras v. United Gas Pipe Line Company, 127 So.2d 271 (La.App. 4th Cir. 1961), certiorari denied; Case v. Jeanerette Lumber & Shingle Company, 79 So.2d 650 (La.App. 1st Cir. 1955).

The Court finds that the evidence fails to establish that the plaintiff or his ancestors in title have ever exercised any acts of corporeal possession on the disputed property or that they have ever had constructive possession of the disputed property sufficient for purposes of acquisitive prescription of either ten (10) or thirty (30) years.

Although the evidence reflects that the plaintiff granted grazing leases and that he and before him, Manuel Pitre, hunted and trapped on some property in sections 37 and 38 to the rear of their possession in the front, the property over which their possession was exercised was never identified as being the property in dispute.

At trial it was established that the plaintiff’s titles contain conflicting description of his upper boundary line. Whereas his deeds describe the property as having a front footage of one hundred and nine (109') feet widening to one hundred fifty-four and one-half (154V2') feet at the forty (40) ar-pent line with the lower boundary running parallel with the sixty (60') feet above the northern boundary line of section 31, they also describe the property as being bounded above by Ernest Eymard, now or formerly. Although these descriptions coincide at the front line, they become conflicting as the line extends to the rear for the reason that the lower Eymard line diverges or widens from the upper line of section 31 at a greater angle than that called for in the description by measure. Thus the description of the plaintiff’s upper line as being the lower Eymard line includes substantially more footage along the forty (40) arpent line than that called for by the description by measure.

The evidence also reflects that when the plaintiff and prior to him, his ancestor in title, Manuel Pitre, went into possession of the tract described in their deeds, as shown on the attached exhibit, they went into possession of a tract which extends perpendicularly from their front line to the northeast rather than parallel with and in conformity with the upper line of section 31 which extends at approximately a 60 degree angle from their front line to the east-northeast. Thus, their possession in the rear was exercised on a tract which was similar to the tract as described by measure, but which was actually located some distance above the disputed property south of and along a line subsequently described as the lower Eymard line. With the exception of a small triangular portion in the front of the property where the plaintiff’s possession along the Eymard line overlaps with the description by measure taken from sixty (60') feet above the upper line of section 31, their possession has been confined to the area along the lower Eymard line as projected to the forty (40) arpent line.

Considering the evidence, it is clear that when the plaintiff and his ancestors in title went into possession of the property described in their deeds (when viewed from the forty (40) arpent line for purposes of explanation), it was their intention to possess from the lower Eymard line south for one hundred and fifty-four and one-half (15414') feet and not north for one hundred fifty-four and one-half (1541/2') feet from sixty (60') feet above the upper line of section 31. Nor was it their intent to possess from the lower Eymard line to sixty (60') feet above the upper line of section 31.

Therefore, neither the plaintiff nor his ancestors in title had the intent to corporeally or constructively possess as owner the property in question although the property is within the limits of their title as described by bounds.

Further, the Court finds that the defendant is an adverse possessor under a better title than that of the plaintiff. The evidence in this respect discloses that the defendant has title to the disputed property which it traces by an unbroken chain of transfers to the sovereign and corporeal possession, as owner, of substantial portions of sections 37 and 38, including the disputed tract from 1952, at the latest, to the present. In view of the foregoing law the plaintiff’s claims of constructive possession cannot prevail over an adverse possessor who has civil or corporeal possession under a better title.

To summarize, the Court finds that the plaintiff failed to establish any acts of possession either corporeal or civil preceded by corporeal over the disputed property or that he intended to possess. as owner to the limits of this title sufficient for constructive possession. Further, the Court finds that the defendant is an adverse possessor by corporeal possession and/or civil preceded by corporeal possession of the disputed property under a better title than that of the plaintiff.

For these reasons the plaintiff’s claims of prescription will be denied and there will be judgment in favor of the defendant declaring it to be the owner of the disputed property on the basis of record title as well as on the basis of ten (10) years acquisitive prescription.

Subsequent to the trial on the merits the plaintiff died survived by his widow and heirs who have since been substituted as parties plaintiff in his place. This will be reflected in the judgment.

Judgment will be rendered accordingly.

May 11, 1981

Respectfully submitted:

/s/ W. J. Falgout

W. J. FALGOUT, JUDGE 17TH JUDICIAL DISTRICT COURT DIVISION “C”

      . For clarity, see exhibit attached to trial court’s reasons.

      . Plaintiff died after trial. His widow, Viola Eymard, and his children, Doris Charpentier, Steven Charpentier, Alvin Charpentier, Lawrence Charpentier and Henry Charpentier, were substituted as parties plaintiff.

      . CCP 1973:
      “A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by ¡aw.”


text:
    Jeanelle Cheramie ALLEMAND v. Jimmy Paul ALLEMAND.
    No. 14811.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Maurice J. Serpas, Galliano, for plaintiff-appellee Jeanelle Cheramie Allemand.
    Harold J. Sonnier, Thibodaux, for defendant-appellant Jimmy Paul Allemand.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Jeanelle Cheramie Allemand filed suit seeking a separation from bed and board, custody, alimony, and child support from her husband, Jimmy Paul Allemand. She sought the separation on the ground of cruel treatment. Mr. Allemand denied her allegations and reconvened for a separation from bed and board in his favor on the ground of abandonment.

After trial of this matter was held on June 15,1981, judgment was signed on June 16, 1981, in favor of Mrs. Allemand and against the defendant, granting plaintiff 1) a separation from bed and board, 2) permanent custody of the minor child bom of the marriage, and 3) alimony and child support in the amount of $138.60 per week. Defendant’s reconventional demand was denied. He has devolutively appealed from this judgment.

The Allemands were married on May 3, 1974. They apparently experienced marital difficulty for some time prior to the incidents giving rise to this suit. They had a trial separation in July of 1980. That separation led to Mrs. Allemand filing suit against her husband for a separation on the ground of abandonment. When the parties reconciled in August, 1980, that suit was dismissed. During their marriage, the parties argued frequently over a number of things. The wife admitted that she had a quick temper, but said that, after the August reconciliation, she made an attempt not to lose her temper. She testified that following their reconciliation, they argued much less than before. She said that Mr. Allemand deliberately provoked her by missing work for no reason, a subject over which they had often quarreled, and by deliberately trying to make her lose her temper. She stated that his missing work and then depending upon his parents to pay his bills was, in fact, one of the main problems with the marriage. Additionally, she said that her husband had told a friend of his that he had reconciled with her in August only because it was cheaper than paying alimony and child support.

Appellee testified that she and Mr. Alle-mand had an argument on November 21, 1980, which resulted in her leaving their common dwelling the following day. This argument concerned an invitation to accompany some friends on a hunting trip to Alexandria. Mrs. Allemand did not feel that they could afford the expense of the trip. She testified that, despite her explanation to Mr. Allemand about why she did not want to go, an argument took place. During this argument, appellant told her that he no longer loved her and wanted a divorce, and that she should leave. She testified that appellant told her that, if she “wanted to stay, he would make my life miserable.” She said that he told her he wasn’t leaving because she had sued him for abandonment the last time they separated and he wasn’t going to “give me that satisfaction.”

She admitted that, during the course of this argument, she told appellant that she too wanted a divorce. She testified that she may also have told him that she no longer loved him, but could not honestly recall whether she had done so.

Mrs. Jeanette Cheramie, appellee’s mother, testified that she was a witness to a couple of disagreements between the parties which occurred between August and November of 1980. She testified that, during one of these arguments, Mr. Allemand told Mrs. Allemand that “it was best that she leave.”

The defendant denied having told his wife to leave, or that he would make her life miserable if she stayed. He denied having told her that he was not leaving because he did not want to be sued for abandonment again and have to pay alimony and child support. Mr. Allemand also denied telling her, during this argument, that he no longer loved her and wanted a divorce. Generally, appellant denied all of the material allegations of his wife’s testimony, with the exception of the fact that an argument had occurred on November 21, 1980. He further testified that she told him during this argument that she no longer loved him and wanted a divorce. According to his testimony, he simply told her that she had the choice to do whatever she wanted, either go or stay.

Appellant testified that he never requested that appellee return and, in fact, had not even known where she was staying. He attempted to contact her on only one occasion; that was in order to get their income tax return signed. He stated that she had contacted him on only a few occasions, always with regard to alimony. He admitted that he did not love his wife any more, and did not want her to come back to him.

On appeal, the husband contends that the trial court erred in granting a judgment of separation in favor of the wife on the facts and circumstances in evidence.

Since the parties’ versions of the incidents occurring in the November 21 argument differ substantially, resolution of the case rests to a large extent upon the issue of credibility, and upon whose version should be believed. The trial judge’s determinations in this regard should not be disturbed absent a finding of manifest error. Morris v. Morris, 336 So.2d 254 (La.App. 1 Cir. 1976).

Having found in favor of plaintiff, the trial judge apparently accepted her version of the incidents of November 21. His comments, dictated into the record, indicate his belief of the wife’s willingness to make the marriage work following their reconciliation. The comments clearly indicated that he found the defendant to be at fault in prompting the argument and in causing the break-up of this marriage. The judge stated that he found that the husband did not love his wife, did not want her back, and made no effort to get her to return to their home.

Cruel treatment in any form which renders living together insupportable is a legal ground for a separation from bed and board. LSA-C.C. art. 138; McVay v. McVay, 276 So.2d 926 (La.App. 3 Cir. 1973); Baggett v. Baggett, 311 So.2d 501 (La.App. 4 Cir. 1975). In the present case, there is ample evidence in the record to support the judgment in the wife’s favor. She testified that Mr. Allemand deliberately provoked her and tried to make her lose her temper on many occasions. More importantly, during the November 21 incidents, her husband told her that he no longer loved her, wanted a divorce, and would make life miserable for her if she chose to stay. In effect, by telling her that he would make her life miserable if she stayed, appellant forced his wife from their home. To force a wife out of the marital domicile by such a threat is a form of cruel treatment. This fact, along with the other evidence in the record, establishes the cruel treatment necessary to support the granting of the judgment of separation in her favor.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge. LEAR, Judge,

text:
    In re Widless Joseph BRUNET and Aline Kahl Brunet Applying for Adoption of Allison Aline Moneyhon.
    No. 14504.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Dissenting Opinion June 2, 1982.
    Writ Denied July 2, 1982.
    Edward T. Diaz of Diaz & Cheramie, Golden Meadow, for petitioners-appellees Widless Joseph Brunet and Aline Kahl Brunet.
    Larry P. Boudreaux, Thibodaux, Eddie N. Pullaro and Robert P. Cuccia, Houma, for petitioners-appellants David S. Moneyhon and Margaret Smith Moneyhon.
    Before EDWARDS, LEAR, WATKINS, CARTER and CHIASSON, JJ.
   CHIASSON, Judge.

We granted a rehearing to reconsider our prior judgment in this matter before a panel of five judges. This appeal is from a judgment of the juvenile court allowing maternal grandparents to adopt their grandchild even though the adoption was objected to by the non-resident father of the child. The facts are fully set forth in our prior judgment rendered in this same matter. See In Re Brunet, 408 So.2d 433 (La.App. 1st Cir. 1981). In our prior ruling, we reversed the trial court’s judgment allowing the adoption. On rehearing, appel-lees contend we were wrong in our original decree and that Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966), upon which we relied, is factually distinguishable.

The issue before us is whether under La. R.S. 9:422.1 the non-custodial grandparents are among those entitled to adopt their grandchild without the consent of the nonsupporting parent.

While we concede that the issue presented to the Supreme Court in Roy v. Speer, supra, is not identical to the one presently before us, all of the arguments which appel-lees now urge have been previously decided adverse to their contentions in Roy v. Speer, 184 So.2d 796 (La.App. 3rd Cir. 1966).

For the reasons stated in our prior judgment in this same case and for the additional reasons stated by the Third Circuit Court of Appeal in the Roy v. Speer case, we reinstate our original judgment in this matter.

JUDGMENT REINSTATED.

LEAR, Judge,

dissenting.

Although I joined the majority in our prior judgment rendered in this matter (see In Re: Brunet, 408 So.2d 433 (La.App. 1st Cir. 1981), after further consideration of this matter, I now believe that the judgment of the juvenile court should be affirmed.

At the time of the filing of the petition, LSA-R.S. 9:422.1 provided:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second, or the first and third, conditions exist:
“(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father had been granted custody of the child by a court of competent jurisdiction, and
“(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year, or
“(3) The other legitimate parent is a non-resident of this State and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”

The first condition, which must exist in every case, requires a prior granting of custody. However, this provision does not, in my view, require that the adopting person must first have been granted custody. Part of this provision allows adoption if the “mother or the father have been granted custody of the child.” Considering this language, I do not believe that the legislature could have intended this provision to be read as a requirement that the adopting person first have been granted custody of the child. In no case would a mother or father seek to adopt their own child, and thus be required to obtain custody of the child first. I believe that this provision is more properly read to require that the mother or father (one of the child’s legitimate parents) have been granted custody of the child prior to a grandparent’s petitioning for adoption. This seems even more clear when reading the remaining sections of the statute which dispense with the consent of the “other legitimate parent,” meaning the noncustodial parent.

The history and legislative evolution of this statute further convinces me that the clear intent of the legislature was to allow the grandparents, who did not themselves have custody, to adopt their grandchild where one of the legitimate parents had custody and the other legitimate parent comes within the second or third provision of the law.

This statute’s original form was contained in Act 501 of 1958, Section 1, which allowed only the spouse (the step-parent) of the custodial parent to adopt where the other parent had refused or failed to comply with a court order of support for a period of three or more years. The law was then expanded by Act 268 of 1960, Section 1, which added a grandparent or grandparents of the child to the class of persons allowed to adopt without the consent of the other legitimate parent where the other parent has refused or failed to comply with a court order of support for a period of one year or more. This addition, however, further required that the grandparent or grandparents themselves have been granted custody of the child by a court of competent jurisdiction. Thus, at this point a grandparent or grandparents were required to have been awarded custody of their grandchild prior to seeking to adopt the child.

A further amendment of the statute, Act 106 of 1962, Section 1, added the words, “or the mother or the father” to the custody requirement contained in the subsection (1). Act 106 also added subsection (3), which made the consent of the other legitimate parent unnecessary if that parent is a nonresident and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents. This language in subsection (3) appears to further confirm the legislature’s intent to allow the award of custody to the mother or father to meet the custody requirement where a grandparent or grandparents seek to adopt their grandchild.

For these reasons I find that an award of custody to the mother or father will satisfy the custody requirement contained in R.S. 9:422.1(1), and I therefore respectfully dissent.