author: SARTAIN, Judge.

text:
    Elizabeth FERGUSON v. STATE FARM FIRE AND CASUALTY COMPANY and Dr. Alvin Pailet.
    No. 11334.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearings Denied May 15, 1981.

      Garon, Brener & McNeely, Milton E. Brener and Carol B. Hart, New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, Ben C. Toledano and Margaret Anne Bretz, New Orleans, for defendants-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., Norris S. L. Williams, and James P. Farwell, New Orleans, for third party defendant, Sears, Roebuck & Co.
    Before BOUTALL, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

Plaintiff, Elizabeth Ferguson, sustained serious back injuries when a chair in defendant’s office (Dr. Alvin Pailet) collapsed beneath her. She initially sued Dr. Pailet and his liability insurer, State Farm Fire and Casualty Company. She later amended to include the vendor of the chair, Sears, Roebuck and Company, as an additional defendant. Dr. Pailet and State Farm filed a third party claim against Sears for full indemnification in the event of any judgment against them in favor of the plaintiff.

The trial court rendered judgment in favor of plaintiff against Dr. Pailet and State Farm only, rejected these defendants’ defense of contributory negligence, and denied their third party claim against Sears. State Farm and Dr. Pailet have appealed, contesting liability, quantum, and the rejection of their third party claim against Sears. Plaintiff has also appealed as to quantum and the rejection of her claim against Sears. We affirm.

Plaintiff is a trained registered nurse. At the time of the accident, March 1, 1977, she was 52 years of age. Her employer was Dr. Pailet, a veterinarian, who owns and operates a small animal clinic. Plaintiff had worked for Dr. Pailet approximately four years before the accident. Her duties involved anything to do with the care, handling, and tending of small animals in the clinic, such as lifting them, cleaning their cages, assisting in surgery, and taking care of the surgical instruments.

About a month before the accident plaintiff took a leave of absence from her employment to undergo surgery for a condition not pertinent to this litigation. She returned to the clinic on March 1 for the purpose of having Dr. Pailet sign hospitalization insurance forms in connection with that surgery. Her intention was to return to work the following week. While waiting to see Dr. Pailet she was invited by the receptionist to have a seat. She did so and the chair collapsed almost immediately.

The chair was one of two identical chairs purchased by Dr. Pailet from Sears in January, 1969. It can best be described as a typical secretarial chair. The seat and back support are attached to a single shaft (spindle) which is supported by a four-pronged pedestal on rollers. The chair collapsed when the housing, located at the base of the pedestal, broke.

It is undisputed that the plaintiff used the chair frequently and on an almost daily basis. Dr. Pailet used the chair, although not as frequently as plaintiff, but almost on a daily basis.

The trial judge in his written reasons for judgment concluded that plaintiff had no cause to suspect any weakness in the chair and found her free from contributory negligence. The judge a quo, however, found that Dr. Pailet was under a greater duty to inspect the chair and, having failed in that duty, imposed liability upon him and his insurer for the injuries sustained by plaintiff. Dr. Pailet also stated that he had no reason to question the sturdiness of the chair and had only oiled it on one occasion in the past nine years when it “squeaked.”

We would ordinarily question the conclusion that an inspection by Dr. Pailet would have alerted him to any possible failure of the chair. The experts, highly trained engineers and metallurgists, could not agree. This issue, however, need not be addressed because its resolution is not material to a determination of Dr. Pailet’s liability in the premises. The liability of Dr. Pailet should not have been considered as it was under conventional negligence-fault under C.C. art. 2315, but should have been determined under the provisions of C.C. art. 2317 pertaining to strict liability-without-fault. The latter article provides in pertinent part:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

Without going into the jurisprudential evolution of strict liability under C.C. art. 2317, it suffices here to cite the Supreme Court decision in Loescher v. Parr, 324 So.2d 441 (La.1976), which now stands for the imposition of strict liability upon proof of certain requisites. These requisites are (1) that the thing which caused the damage be in the custody of the defendant-owner, (2) that the thing which caused the injury be defective, and (3) that the injuries (damages) were caused by the defect. The defenses to strict liability under the article are (1) fault of the victim, (2) fault of a third party, or (3) the result of an irresistible force. 324 So.2d 441, 449. In Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980), strict liability was imposed upon the municipality when plaintiff fell into a defective catch-basin. In Hunt v. City Stores, 387 So.2d 585 (La.1980) the custodian of an escalator was held strictly liable for injuries to a youth. Defective brakes occasioned the imposition of strict liability in Smith v. Crown Zellerbach Corp., 385 So.2d 307 (La.App. 1st Cir. 1980). In South Central Bell Tel. Co. v. Hartford Acc., 385 So.2d 830 (La.App. 1st Cir. 1980) damages were awarded under strict liability where gas leakage from the premises of a filling station damaged plaintiff’s underground cables and conduit. In Cardwell v. Jefferson Rentals Dlv., 379 So.2d 255 (La.App. 4th Cir. 1979) strict liability was imposed on the lesser of a chain hoist which broke almost immediately after being put into use by the lessee.

In the matter before us there is no dispute that the chair was in the custody of Dr. Pailet, that it was defective and collapsed, and that its collapse injured plaintiff. Proof of the essential requisites of C.C. art. 2317 is satisfied and strict liability should be imposed.

Knowledge, constructive or actual, on the part of Dr. Pailet of any defect in the chair is immaterial to plaintiff’s right to recovery. Sikes v. McLean Trucking Co., 383 So.2d 111, 115 (La.App. 3rd Cir. 1980). Only fault on plaintiff’s part can preclude her recovery against Dr. Pailet and State Farm. These defendants argue that plaintiff, by her constant use of the chair over a period of four years, either noticed or should have noticed its “wobbly” and weakened condition. She denies such knowledge. The “wobbling” referred to was described by one of the experts as within 1/1000 of an inch. The trial judge properly concluded that this condition is “unnoticeable” to the user of a chair on rollers. Even assuming that plaintiff was under some type of duty to inspect the chair by virtue of her employment we find that such an inspection by her would have revealed nothing to her untrained eye. Another expert could find no indication of metal fatigue until the set screw (which adjusts the height) was removed to examine the assemblage or the chair was turned upside down. Even then the problem would still remain “concealed from the ordinary person’s eye.”

Fault of the victim sufficient to preclude recovery under C.C. art. 2317 has been determined to be conduct of such a nature and to such an extent as to constitute a cause in fact of the accident. See Sullivan v. Gulf States Utilities Co., 382 So.2d 184 (La.App. 1st Cir. 1980) for a detailed discussion of cases relating to the fault of the victim. We agree with the determination by the trial judge that the actions of the plaintiff herein fall far short of such conduct as to constitute a cause in fact of the accident so as to defeat her recovery.

The supporting mechanism of the chair consists of the main shaft which is attached to the seat and runs through a pair of sleeves, sometimes also referred to as the “inner and outer tubes” which are permanently secured to the base of the pedestal. The inner tube is composed of a heavy duty metal. It fits within and is welded to the outer tube, which is constructed of light weight chromium with little weight bearing capacity. The height of the seat is controlled by a set screw which passes through a hole in the outer tube, threads in the inner tube, and presses against a groove in the shaft. It is undisputed that at some previous point in time the inner tube weakened and cracked, causing a break in the weld between it and the outer tube. When this occurred the weight from the seat was no longer transmitted vertically through the heavier inner tube to the pedestal but rested upon the set screw which in turn transferred the weight horizontally to the lighter outer tube. The “collapse” occurred when the light weight outer tube also separated from the pedestal.

It is the position of Dr. Pailet and State Farm that the collapse of the chair was the result of faulty design. One expert (Mr. Harold P. Myers) concluded that the above described assemblage permitted just a sufficient amount of lateral movement between the shaft and the heavier tube to eventually cause the latter metal to fatigue and crack. Defendants’ other expert (Dr. Courtney C. Busch) opined that the heavier (inner) tube was not of sufficient strength to withstand the stress placed on it over a prolonged period of time.

Mr. Stephen Teleshak, Sear’s expert, performed extensive metallurgical examinations on both chairs, the one that collapsed and its companion chair. As noted above, these chairs were purchased by Dr. Pailet at the same time. His tests revealed that both chairs had received equal use. However, he found none of the wear or stress indications in the companion chair that caused the eventual failure and collapse of the other chair. From this comparison, he was of the opinion “that the failed chair was subject to some unusual stresses, which resulted in fatigue cracking”, which he further clarified as “an unusual abnormal stress”, which occurred very early in the use of the chair.

The testimony of each of these experts is highly technical. The trial judge accepted the testimony and the conclusion reached by Mr. Teleshak (Sears) as the most reasonable and plausible of the three experts. We find no manifest error in this determination. Canter v. Koehring Company, 283 So.2d 716 (La.1973); St. Pierre v. Gabel, 351 So.2d 821 (La.App. 1st Cir. 1977). Accordingly, plaintiff’s claim and Dr. Pailet’s and State Farm’s third party demands against Sears were properly rejected.

Very shortly after the fall plaintiff experienced pain and discomfort in her lower back and sought medical attention. Conservative treatment proved unsuccessful and she ultimately underwent surgery (lam-inectomy) on June 26, 1977. The surgery confirmed an earlier diagnosis of a herniated lumbar disc at the L-3 and L-4 levels.

Defendants raise the issue of causation and the possibility that the surgical procedure adopted by plaintiff’s physician was not necessary. This issue finds its basis in fact that plaintiff had suffered some low back discomfort for a number of years prior to the accident which her own doctor concedes was occasioned by a degenerative disc condition. He did not rule out the possibility that even without the accident this disc disease might have eventually required surgery. However, the clear import of all the medical experts, except defendants’, is that the accident itself precipitated the present herniation of the disc.

The record reflects that prior to the accident plaintiff was fairly active. She cycled, worked in her garden, shared household work with her sister, and performed all of her duties at the animal clinic, noted above. She now claims that she is unable to cycle, work in the garden, do heavy household chores, tires very easily, and is unable to perform her chores at the animal clinic which require heavy lifting, bending and stooping. One orthopedic specialist placed her disability at 20% to 25% “loss of function of the low back”. Her treating neurosurgeon conceded that some of her present back complaints could be attributed to the degenerative disc disease.

We note that plaintiff’s recovery was slow. She returned to work (with Dr. Pail-et) on a parttime basis in October, 1977. Her activities at the time of the trial were limited. However, Dr. Pailet gave no indication of any dissatisfaction with her work. She has received an increase in salary since returning to her employment.

The trial judge awarded plaintiff judgment for medical expenses ($6,637.40) and loss of past wages ($4,690.00), which are not contested, and $85,000.00 for “past and future pain and suffering and for her loss of physical capacity.” In her appeal Ms. Ferguson contends that the award of $85,000.00 is grossly inadequate and leaves her to the mercy of her present employer. Included in this sum is the recognition by the trial judge that plaintiff was entitled to an award for “future loss of her earning capacity.” The exact amount allotted for this item is not known to us because the trial court made no further itemization.

Intermediate appellate review is governed by the decisions in Reck v. Stevens, 373 So.2d 498 (La.1979) and Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977). Under Reck we are to determine, before an award may be considered either excessive or inadequate, by an analysis of the facts and circumstances of each case that there has been a clear abuse of the much discretion accorded the trier of fact. Upon the determination of an abuse of discretion under Coco we may than reduce an excessive award to the highest or increase an inadequate award to the lowest amount that is considered to be within the sound discretion of the trier of fact.

In the instant matter we find no abuse of discretion. For these reasons the judgment of the trial court is affirmed at defendants’, Dr. Pailet and State Farm and Casualty Company, costs.

AFFIRMED.

      . Tunc, Louisiana Tort Law at the Crossroads, 48 Tul.L.Rev. 1111 (1974); Verlander, We Are Responsible, 48 Tul.L.Rev. 754 (1974); and Zeringer, Tort in Strict Liability for Damages Done By Things In One’s Possession, 51 La.L.Rev. 403 (1977).

      . Distinguished on the facts in Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), decided March 2, 1981, the court said: "... Plaintiffs have not shown that the area in the street where Mrs. Shipp fell was a defect in the sense that the risk of falling and suffering injury due to this imperfection in the street pavement was so unreasonable as to justify the imposition of non-negligent liability.”

      . The remaining defenses to strict liability under C.C. art. 2317 are not an issue as to these defendants. The question of defective design on the part of Sears is an issue pertinent to plaintiffs and these defendants’ third party demands against Sears and will be discussed later in this opinion.

      . Mr. Stephen Teleshak.

      . Mr. Harold P. Myers.

      . Harold P. Myers and Courtney C. Busch, expert witnesses for State Farm.

      . “Fault of the victim” as a defense to strict liability under C.C. art. 2317 has often been couched in terms of “contributory negligence.” See Comment: Fault of the Victim ...” 38 La.L.Rev. 993 (1978).


source: Caselaw Access Project

author: HUGHES, Judge.

license: Public Domain

text:
    Jack ZIBLICH & Bozo Ziblich, Jr. v. AMERADA HESS CORPORATION.
    No. 11714.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Greenberg & Dallam, Gretna, Nathan Greenberg, Gretna, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Robert J. Oberfell, New Orleans, for defendant-appel-lee.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   HUGHES, Judge.

Plaintiffs-appellants, Jack and Bozo Zib-lich, Jr., owners of a state oyster lease in Barataría Bay filed suit against Amerada Hess Corporation, a state oil and gas lessee, claiming $66,607.25 in damages resulting from defendant-appellee’s drilling operation over water bottoms leased to plaintiffs for the cultivation of oysters. After reviewing pleadings, interrogatories, and depositions, the trial judge granted a motion for summary judgment in defendant’s favor. Plaintiff appeals this judgment contending that there is a disputed issue of material fact, i. e., whether the defendant damaged the oyster lease owned by plaintiffs-appellants.

Pre-trial discovery evidence in the form of interrogatories, depositions and expert reports filed on each side below reveal that plaintiffs based their claim for damages on a report prepared by the Louisiana Department of Wildlife and Fisheries. They contend that approximately 4.38 acres near the southeastern corner of their lease # 18785 was churned up by tugs maneuvering an oil rig into position, thereby softening the bottom of the bedding ground and turning it into sludge, useless for oyster cultivation. The two Louisiana Wildlife and Fisheries Commission marine biologists who made the report indicated that in their opinion the bottom was damaged. They also reached" other conclusions some of which could be viewed as favorable to plaintiffs and some of which were not.

In support of the motion for summary judgment defendant relied on a report prepared by a marine expert who concluded that there was no discernible damage on the leased water bottom. They also relied on deposition testimony that plaintiffs were not cultivating oysters on the lease when the rig was moved into and out of the drilling site.

The trial court in written reasons indicated that since plaintiffs acknowledged that they were not cultivating oysters in the approximately 35 acres under lease, that both the claim for property damage and the claim for mental anguish allegedly resulting from the property damage were susceptible to dismissal by summary judgment. We disagree.

The evidence submitted by plaintiffs indicates among other things that the plaintiffs regarded the lease as a bed they could use if they chose to do so were it not for the damage allegedly caused by movement of tugs maneuvering defendants’ rig across the lease. Their claim relates not only to oysters but also to the bed itself.

We are of the opinion that La.Code of Civil Procedure Article 966 precludes rendition of a summary judgment as a substitute for trial even in those circumstances that cause the trial court to conclude that a plaintiff is not likely to prevail on trial of the merits. Summary judgment is available only when reasonable minds would inevitably conclude that mover is entitled to judgment on the basis of undisputed facts. Accordingly, we reverse the summary judgment granted below and remand the case for trial.

Reversed and Remanded.


text:
    STATE of Louisiana In the Interest of Keith G. FORET and Kevin Lavergne.
    No. 11742.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Writs Denied June 22 and July 17, 1981.

      William C. Credo, III, Asst. Dist. Atty., State of Louisiana, Gretna, for plaintiff-ap-pellee.
    J. William Starr, Gretna, for defendant-appellant.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   HUGHES, Judge.

This is a custody dispute in which a mother claims that her right to custody of her children is superior to the right of the State to terminate parental rights. The children’s natural mother appeals a judgment rendered against her by the Juvenile Court for Jefferson Parish which terminated her rights to the children and placed her two sons in custody of the Louisiana Department of Health and Human Resources. The issue presented is whether the trial court committed reversible error in finding that Darlene Foret Dills abandoned her children under circumstances that would permit termination of parental rights under LSA-R.S. 9:403 et seq. We find that it did err and reverse.

Kevin Wayne Lavergne was born December 24, 1976 and Keith George Foret was born February 2, 1978. They are both sons of Darlene Foret. On February 20, 1979, Darlene Foret went to juvenile authorities in Jefferson Parish and informed them that she could no longer care for her children because she had no place to live and no money to buy food and because of other serious circumstances. She was interviewed by a social worker and later appeared in Juvenile Court. There she informed the Judge that she could not support herself or care for the children and she explained the other circumstances. She indicated that Mr. and Mrs. Adrian Creech were willing to assume responsibility for Kevin Lavergne. She had gone to school with Mr. Creech and believed they would care for her son. She also advised the court that Mr. and Mrs. Denis Moreau were appropriate persons to take care of Keith For-et. All parties agreed to this custody arrangement and therefore no home study of the prospective custodians was conducted. No record was made of these proceedings but orders were granted placing the children in custody of Mr. and Mrs. Creech and Mr. and Mrs. Moreau.

Nine months later, in November of 1979, Darlene Foret filed a Motion to Revoke Custody of both children and requested that they be returned to her. This was followed by the filing of affidavits of abandonment pursuant to LSA-R.S. 9:403. Appropriate authorities then sought to permanently terminate the parental rights of Darlene Foret regarding her sons.

Hearings were conducted on December 20, 1979 and January 4, 1980 after which judgment was rendered declaring that Darlene Foret had indeed abandoned her children. The trial court additionally found that the persons to whom custody had been granted on February 20, 1979 were caring for the children in a highly unsatisfactory manner. The court therefore placed custody of the children in the Louisiana Department of Health and Human Resources. It was from this judgment that Darlene Foret appealed.

The trial court’s rulings as they relate to the parties who were granted custody on February 20, 1979 were appealed and assigned our docket numbers 11743 and 11744. We note that these appeals by Moreau and Creech were abandoned by request of those parties. They shall be dismissed today in separate opinions, State in Interest of Foret, 398 So.2d 82; State in Interest of Lavergne, 398 So.2d 82.

The finding of the lower court that Darlene Foret had abandoned her children was made pursuant to LSA-R.S. 9:403, the statute under which the affidavits of abandonment were filed. It reads as follows:

a. If any child has been deserted for a period of at least four months by his parent and the whereabouts of his parent are unknown and the parent has made no provision for the child’s care, or the parent has refused to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid all parental responsibilities, the child shall, after proceedings as hereinafter set forth, be considered an abandoned child. However, this Part shall not be construed to require physical care of a child by a parent to whom custody has been denied or from whom custody has been removed by a court of competent jurisdiction.
* * * * * *
d. For the purposes of Subsection A, custody shall be deemed to have been removed or denied to a parent only when such denial or removal is incidental to an action for divorce or separation from bed and board.

Appellant contends that the fact that she voluntarily surrendered her children in February of 1979 in consideration of their best interest so that she could get back on her feet precludes a finding that her children may be considered as abandoned children under LSA-R.S. 9:403. She contends that the statute refers to a parent who has made no provision for the child’s care, whereas, she made an effort to place the children in the hands of responsible persons subject to the jurisdiction of the juvenile court. She thus contends that she made provision for their care.

The evidence revealed that Darlene moved to North Carolina during the month following her relinquishment of the children. She remained in North Carolina until the end of October in 1979 when she returned for the purpose of regaining custody of her sons.

Mr. and Mrs. Creech testified that they had not heard from Ms. Foret during the nine months of her absence. They acknowledged that she did see the children two or three times before leaving the state and had offered a small amount of money for their support. They testified that the amount of money offered was approximately $5.00, whereas Darlene Foret contended it was $140.00. The Creeches testified that they refused the money tendered because they were of the view that Ms. Foret probably needed it more than they did.

Ms. Foret testified that she did attempt to reach Mr. and Mrs. Creech through Mr. Creech’s mother, but her one collect phone call was refused and she gave up trying to reach them thereafter. A similar state of affairs was related as to Mr. and Mrs. Mor-eau. At the trial it was established that both Mr. and Mrs. Creech and Mr. and Mrs. Moreau had unlisted phone numbers.

Ms. Foret testified at the trial that on October 29, 1979 she married Jule Von Dills and that he was willing and able to support her two illegitimate sons and another child who was born since she has been married to Mr. Dills. After her marriage a home study was made that was favorable to Mrs. Dills.

In written Reasons for Judgment, the trial court emphasized that in the change of custody order which was signed in February, the court directed Darlene Foret to stay in contact with her children and to provide whatever financial support possible. In the trial court’s view, the mother shirked this responsibility and obligation when she moved to North Carolina without informing the Moreaus or the Creeches of her address, thereby making it impossible for them to contact her. While we do not question that the trial court orally instructed Ms. Foret to attempt to support her children and to maintain contact with them, the order granting custody before us does not contain either order.

It has been repeatedly held that the abandonment statutes must be strictly construed and that the failure even refusal of a parent to support a child is not sufficient cause to justify a decree of abandonment; the evidence must clearly show a manifestation of an intent to permanently avoid all parental responsibility and all reasonable doubt should be resolved against such a conclusion because a decree of termination parental rights is in derogation of the natural rights of parents. In the Interest of Shumaker, 341 So.2d 583 (La.App. 2nd Cir. 1977); In the Interest of Jackson, 312 So.2d 912 (La.App. 4th Cir. 1975); Henderson v. Spears, 292 So.2d 801 (La.App. 1st Cir. 1974); State in Interest of Fischbein, 194 So.2d 388 (La.App. 4th Cir. 1967).

We are of the view that a mother who voluntarily goes through legal proceedings to temporarily transfer custody of her children to people whose reputation she was acquainted with, even though the trust was misplaced, cannot be held to have clearly shown a manifestation of intent to permanently avoid all parental responsibility. She did not leave her children until she felt assured, through legal process, that her children would be cared for and supervised. This fact can not be ignored when considering the requirements of LSA-R.S. 9:403, no matter how remiss the mother may have appeared in her performance as parent during the subsequent nine months. Likewise, the favorable North Carolina home study report that the mother could provide an adequate home should not have been ignored.

Darlene Foret Dills now wants and feels able to resume permanent custody of her children. To deny her this right is to make the children wards of the State because of the abandonment of appeal by the temporary custodians. To categorize these children as “abandoned” violates the requirement that LSA-R.S. 9:403 be strictly construed and it is thus a manifestly erroneous determination. Therefore, the judgment of the trial court granting custody of the children to the Louisiana Department of Health and Human Resources is reversed and custody of the two minors, Keith Foret and Kevin Lavergne is returned to their mother, Darlene Foret Dills.

REVERSED.

IN RE: APPLICATION FOR REHEARING OF WILEY J. BEEVERS AS COUNSEL APPOINTED TO REPRESENT THE INTEREST OF KEVIN LAVERGNE (AGE 4) AND KEITH FORET (AGE 3) IN THESE PROCEEDINGS.

On April 13, 1981, Mr. Beevers on behalf of Kevin Lavergne and Keith Foret filed an application for rehearing and a stay order seeking review of our decision in this case rendered on April 7, 1981. We saw no reason to stay our order on April 7, 1981 as we were of the view it would not be immediately executory pending the lapse of time permitted to seek review by the Louisiana Supreme Court or pending action by the Supreme Court should it grant a writ in response to an appropriate and timely application for relief from our order.

Having previously considered the interests of these two young children and being fully aware of the consequences of our ruling, we do not believe a rehearing would serve a useful purpose. We disagree with the applicant’s assertion that our ruling was contrary to the trend of jurisprudence concerning parental rights. If there has been a trend, it has been toward restriction of the right of the State to deprive parents of custody of their children.

The application for rehearing and a stay pending rehearing is denied.


text:
    STATE of Louisiana In the Interest of Keith George FORET.
    No. 11743.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Writs Denied June 22 and July 17, 1981.
   This case is a companion ease to State of Louisiana in the Interest of Keith G. Foret and Kevin Lavergne decided this date. 398 So.2d 78 (La.App. 4th Cir. 1981). The attorney for appellant has indicated to us that the appellant did not wish to pursue the appeal. It is therefore dismissed.


text:
    STATE of Louisiana In the Interest of Kevin Wayne LAVERGNE.
    No. 11744.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Writ Denied July 17, 1981.
   This case is a companion case to State of Louisiana in the Interest of Keith G. Foret and Kevin Lavergne decided this date. 398 So.2d 78 (La.App. 4th Cir. 1981). The attorney for appellant has indicated to us that the appellant did not wish to pursue the appeal. It is therefore dismissed.


author: EDWARD J. STOULIG, Judge Pro Tern.

text:
    Robert N. RANNEY v. Steve DURKIN.
    No. 11899.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.
    Rehearing Denied May 15, 1981.
    Writ Denied July 2, 1981.

      Babin & Scheuermann, Wayne H. Scheuermann, Houma, for plaintiff-appel-lee.
    Steve Durkin, in pro. per.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   EDWARD J. STOULIG, Judge Pro Tern.

This is an appeal from -a judgment awarding plaintiff a reduction of $640.07 in the sales price of the property which he purchased from the defendant. No appeal was taken by plaintiff from the denial of his request for attorney fees, and therefore this issue is not before us.

The undisputed facts in this matter are that on January 28, 1978 plaintiff entered into an agreement to purchase from the defendant the residence bearing the municipal number 2316 North Friendship Drive, Harvey, Louisiana. The agreement, in part, specifically provided:

“All ... air conditioning/heating unit ... to be in proper working order at or prior to the act of sale. Buyer to inspect after tenants have been removed and pri- or to act of sale.”

Pursuant to the terms of the agreement to sell, plaintiff, on March 20,1978, inspected the premises in the presence of defendant’s wife and the real estate agent, J. DeLand. Plaintiff visually inspected the property, checked the dishwasher for leaks, and noted that the thermostat and the blower on the heating and air conditioning system were in operating condition. Because there was no gas service to the house he did not check the heating unit in the attic.

Again on March 28,1978 plaintiff inspected the premises in the presence of Mrs. Durkin and Mr. DeLand. On this occasion gas service was being provided and he went into the attic to inspect the furnace. He was able to light the pilot light; however, he was prevented from testing the burner because he could not open the gas valve by hand and no tools for this purpose were available.

Some six months later, with the advent of the fall season, plaintiff attempted to use the heater. Both the pilot light and blower functioned properly but he was unable to activate the burner despite a high temperature setting on the thermostat. Union Service and Maintenance Company was contacted to check the unit and determine the cause of its malfunction.

Plaintiff was advised that the gas valve, pilot light, switch, and heat exchange would have to be replaced at a cost of $640.07 for parts and labor. Defendant was immediately notified of this situation by plaintiff’s letter and he was requested to advise his proposed disposition to the demand that he bear the cost of these repairs. Upon defendant’s refusal to undertake the repairs or pay for the cost of repairing the heating unit, plaintiff had the work performed in accordance with the estimate. This action for a reduction in the purchase price resulted.

An action in quanti minoris is applicable to sales of real estate and an inadequate or defective heating system is a re-dhibitory vice within the contemplation of the codal articles. In Cipriano v. Superior Realty & Construction Company, 228 La. 1065, 84 So.2d 822 (1955) the Supreme Court held:

“When a house is sold with a heating system already installed, the heating system forms as much a part of the house as does the foundation or the roof and is covered by the vendor’s warranty. If the heating system proves to have hidden vices which existed at the time of the sale and which were such as to render it useless and unsuited for its purpose, the buyer has an action for redhibition or diminution of the purchase price.”

See also Guillory v. Sarpy, 177 So.2d 403 (La.App. 4th Cir. 1965); Dunn v. Pauratou, 387 So.2d 1227 (La.App. 1st Cir. 1980).

In addition to the implied warranty in every sale against hidden defects imposed by Civil Code Articles 2475 and 2476 there is an expressed warranty in the agreement to purchase against such vices in the household appliances, including the heating system. It therefore follows that plaintiff is entitled to a reduction in the purchase price, provided he establishes the following elements: (a) that there was a defect or vice in the residence within the contemplation of Civil Code Articles 2^20 and 2521; (b) that the defect existed at the time of the sale; (c) that it was not known by purchaser and was not apparent to him after a reasonable visual inspection; and (d) that the vendor would or could not correct the defect when given the opportunity to do so. Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3rd Cir. 1979).

The trial judge found, and the record amply supports his conclusion, that the plaintiff did sustain his right to recover $640.07, the amount expended to correct the defects.

Plaintiff’s expert, Donald Dufour of Union Service and Maintenance Company, testified as to the dangerous condition of the heating unit to produce carbon monoxide and the need for the replaced parts. He indicated that this condition had existed for some time, from which it must be concluded that the defect predated the sale. This testimony is unrefuted.

There is no evidence to support that plaintiff knew of the vice in the heating system at the time of the sale. The inspections made by plaintiff on March 20 and on March 28, 1978 clearly attest to the thoroughness with which he sought to determine if there were any defects in the heating system. Unquestionably he more than fulfilled the requirement of a reasonable visual inspection and, despite his efforts, he was unable to discover the defective burner and other allied vices in the equipment.

The notice of the defect, coupled with the opportunity to correct, was afforded the defendant by plaintiffs registered letter of October 23,1978, which was received by the vendor on the following day. Some thirty-six days elapsed before plaintiff had the heating unit repaired at a cost of $640.07. Both notice and opportunity requirements were met.

For these reasons the judgment of the trial court is affirmed. Appellant to bear all costs of this appeal.

AFFIRMED.

      . Pursell v. Kelly, 139 So.2d 12 (La.App. 4th Cir. 1962); Civil Code Articles 2476, 2520 and 2521.


author: GUIDRY, Judge.

text:
    Patricia Ann Locke BURCH, Plaintiff-Appellee, v. Emmett BURCH, Jr., Defendant-Appellant.
    No. 8180.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1981.

      Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellant.
    Charles W. Seaman, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

This is a child custody case. The trial court awarded the pendente lite custody of twenty-eight month old Darlene Burch to the child’s mother, Patricia Ann Locke Burch. Emmett Burch, the child’s father, appeals from that judgment.

Appellant contends on appeal that the trial court abused its much discretion in awarding pendente lite custody of young Darlene Burch to her mother. In support of this contention, appellant urges that the trial court applied the legislatively overruled “maternal preference rule”.

The facts in the instant case, although the subject of some dispute, present clearly the difficult position of the trial court in evaluating the competing interests of each parent. Patricia Ann Locke Burch and Em-met Burch, Jr. were married in September of 1975. One child, Darlene Burch, was born of that union. Mr. and Mrs. Burch, while living together, resided with Darlene and Mr. Burch’s father, Emmett Burch, Sr., in a small woodframe house located in rural Simsboro, Louisiana.

Conflicting testimony was introduced regarding living conditions in the Burch home. However, photographs admitted into evidence showed an old and small wo-odframe house filled with worn and somewhat dilapidated furniture. Evidence indicated that the house consists of two bedrooms and one bathroom which, although equipped with a shower, has no bathtub. Testimony revealed that the house had been without running water for a two month period and had only recently been repaired to correct a leaky roof and deteriorated porch. The trial judge noted in his reasons for judgment that the evidence indicated that the plumbing, bathroom and kitchen facilities were “very primitive”. Space limitations in the home required that the child sleep with her grandfather.

The record discloses that Mr. Burch, Jr. is employed at a particle board plant where he is required to work long hours, seven days a week. Mr. Burch stated that he generally works from 3:00 p. m. until 11:00 p. m. although frequently he works overtime. Testimony received at trial indicates that if custody of the child is awarded to the father the young girl will be left solely in the care of her sixty-five year old grandfather for long periods of time. The elder Mr. Burch has a history of heart disease and fainting spells.

The record reflects that the Burches have had recurring marital problems which have resulted in Mrs. Burch leaving the matrimonial domicile on numerous occasions. Each time that Mrs. Burch departed, she went to her mother’s home in Marthaville, Louisiana. Mrs. Burch testified that she did not take her young daughter with her when she departed the matrimonial domicile, but rather left the child in the care and custody of Mr. Burch and his father. Testimony at trial revealed that Mr. Burch and his father were the primary caretakers of the child even on those occasions when Mrs. Burch resided in the family dwelling. At trial Mrs. Burch made vague references to the fact that she was afraid to take the child from her husband although she gave no reason for her fear. We note that Mrs. Burch has suffered some degree of mental disturbance since the death of her father, approximately eight years ago. Shortly after the birth of her child, Mrs. Burch voluntarily entered Central Louisiana State Hospital for treatment of postpartum psychosis, a relatively common stress-induced condition related to childbirth. She was released after two months and continues to receive outpatient care from the Natchitoches Mental Health Clinic on a regular basis. Mrs. Burch is presently taking medication to control her condition. Her treating physician, Dr. Strother Martin, a psychiatrist, testified that Mrs. Burch exhibits no psychotic symp-tomatology at the present time. Further, Dr. Martin stated that with the continued use of medication, there appears to be no psychological disorder which would prevent Mrs. Burch from being a good mother.

Mrs. Burch presently resides with her mother in a spacious four bedroom brick house. Although unemployed, Mrs. Burch receives $119.00 per month from Supplemental Security income. Mrs. Burch’s mother, Mrs. Locke, is employed on a part-time basis and has indicated her willingness to aid her daughter in caring for her infant granddaughter.

Louisiana Civil Code Article 146, which governs the award of custody of children pending litigation decreeing a separation from bed and board, and Article 157, which governs the award of permanent child custody, were amended in 1979 to eliminate any legal preference in favor of the mother in custody disputes. LSA-C.C. Article 146, as amended, provides in pertinent part:

“If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or the wife, in accordance with the best interest of the children. In all cases, the court shall inquire into the fitness of both the mother and the father and shall award custody to the parent the court finds will in all respects be in accordance with the best interest of the child or children...”

The language of C.C. Article 146 seeks to place both mother and father on an equal footing at the outset of proceedings involving an award of custody of their children and the role of the court is to determine the best interest of the child based on relative fitness and ability of competing parents in all respects to care for the child. See Thornton v. Thornton, 377 So.2d 417 (La. App.2d Cir. 1979). Thus, the welfare of the child is always the paramount consideration in custody proceedings. We agree with our brethren of the Second Circuit, in Thornton, supra, who in commenting on the effect of the 1979 amendments to Articles 146 and 157, stated:

“The legislative amendments do not, however, do away with the real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors that favor the father. It is correct, however, that this concept does not create a preference or presumption in favor of the mother that must be overcome by proof of the mother’s unfitness or incapability.

In his oral reasons for judgment, which were transcribed in the record, the trial judge noted that courts traditionally award custody of children of tender age to the mother. In addition, the trial court noted that the record was barren of any evidence indicating that Mrs. Burch was unfit to have custody of her daughter. Appellant urges that these statements indicate the trial judge applied the legislatively overruled “maternal preference rule” in formulating the award of custody in the instant case. We disagree. We do not consider the trial court’s observation that generally the mother is awarded custody of very young children to be an indication that he was applying the “maternal preference rule” in violation of the amended provisions of LSA-C.C. Article 146. Rather, we consider such statement to be a recognition, as stated by our brethren of the Second Circuit, of the “real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother”. We consider the court’s observation as to the lack of evidence reflecting the mother’s unfitness for custody as merely a statement in support of the court’s finding that an award of custody to Mrs. Burch was in the child’s best interest. In this latter connection, there is nothing in the record to sustain appellant’s argument that the trial court placed any burden of proof on the appellant to establish Mrs. Burch’s unfitness.

The trial court in its determination to award custody of the Burch’s twenty-eight month old daughter to her mother considered the living conditions of both parties, the child care arrangements, the current mental health of Mrs. Burch, and the working hours of the parties and concluded that it was in the best interest of the child that custody be awarded to Mrs. Burch. Our courts have repeatedly held that great weight is to be accorded to the discretion of the trial judge in custody matters, and absent a finding of abuse of such discretion, the judgment will not be disturbed. Montgomery v. Montgomery, 383 So.2d 1384 (La. App. 4th Cir. 1980); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Bourque v. Leger, 322 So.2d 784 (La.App. 3rd Cir. 1975), writ refused, 325 So.2d 788 (La.1976); Nethken v. Nethken, 307 So.2d 563 (La. 1975). We discern no abuse of the trial court’s much discretion in the instant case. The trial court had the opportunity to view the opposing parties and to evaluate the competing interests. The trial judge concluded that the welfare of the child mandated that custody pendente lite be awarded to Mrs. Burch. We find no error.

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

AFFIRMED.


author: LABORDE, Judge. GUIDRY, Judge, SWIFT, Judge,

text:
    Richard Brady McDANIEL, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8179.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Felix A. DeJean, III, and Mel Credeur, Opelousas, for plaintiff-appellee.
    John T. Bennett, Marksville, for plaintiff-appellee-appellant.
    McLure & McLure, John C. Pickels, Alexandria, for plaintiff-appellee-appellant.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

This case is one of two tort actions based upon common facts and for that reason consolidated for trial. The cases remain consolidated on appeal and we this day render a separate decision in the companion case entitled Wagley v. McDaniel, 398 So.2d 93 (La.App. 3rd Cir. 1981).

Plaintiffs, Richard Brady McDaniel and David Randal Wagley filed separate tort actions against the Louisiana Department of Transportation and Development (Department) for damages each sustained as a result of a head-on collision allegedly caused by the negligence of the Department. The trial court found that the Department was negligent, which negligence was the sole cause of the accident. The court found Richard Brady McDaniel free of negligence. Accordingly, judgment was rendered in favor of the plaintiffs in both suits. In the suit which bears our docket number 8179, Richard McDaniel was awarded the total sum of $233,497.60. In the companion matter bearing our docket number 8178, David Wagley was awarded the total sum of $44,057.72.

The Department appeals the lower court decisions in both suits. Plaintiffs, McDaniel and Wagley, answer requesting an increase in the trial court’s awards. We affirm both judgments and both awards.

The issues presented are as follows:

(1) Whether the Department should be held liable.
(2) Whether McDaniel was contributorily negligent; and
(3) Whether each damage award was proper.

FACTS

On August 6,1980, at approximately dusk or shortly thereafter, Richard McDaniel was driving his Triumph TR7 on Louisiana Highway 29, proceeding from Cottonport toward Evergreen, Louisiana. David Wag-ley was also traveling the same highway but was proceeding in the opposite direction. Highway 29 is a two lane highway with many curves along its course. It had been undergoing reconstruction which involved resurfacing work. According to the record, the riding surface of the highway had been overlayed approximately four months earlier and, at the time of the accident, the shoulders had not been brought up to the level of the traveling surface. As a result, a drop-off of anywhere from four to ten inches existed on each side of the road surface.

While proceeding in opposite directions, both the McDaniel and Wagley vehicles began entering the same “S” curve at about the same time, each from his respective direction. McDaniel testified that as he began negotiating the curve, he faced the lights of two on-coming vehicles, one of which was being driven by Wagley. McDaniel testified that the cars appeared to be heading right at him. Due to this illusion, McDaniel steered his vehicle to the right causing his right wheels to drop off the travel portion of the highway and onto the shoulder. He subsequently lost control of his car causing it to veer across the highway, graze, one of the two on-coming vehicles and collide head-on with the other which was the Wagley vehicle. Both McDaniel and Wagley were seriously injured.

LIABILITY OF THE DEPARTMENT

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

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.”

With the Department’s duty in mind, we will review the facts surrounding the accident.

The record supports that the overlay was completed approximately four months prior to the date of the accident. At the site of the accident, there existed a four to ten inch drop-off presenting a hazardous condition which the Department knew or should have known of yet nonetheless allowed to exist for approximately four months. This court has held that a drop-off of more than two inches created a dangerous condition. Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3rd Cir. 1979) writ denied, 376 So.2d 1269 (1979).

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

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

Applying the “but for” test to the circumstances here, we hold that the negligence of the Department was a cause in fact of the accident. Further, there is a substantial relationship between the Department’s failure to correct the low shoulder and the type of risk encountered by both McDaniel and Wagley, namely an automobile accident.

NEGLIGENCE OF RICHARD BRADY McDANIEL

The Department cites the recent Supreme Court case, among others, of Sinitiere v. Lavergne, supra, in support of its contention that McDaniel was contributorily negligent and should be barred from any recovery against the Department. The Department also contends that McDaniel’s contributory negligence bars Wagley from recovering his entire judgment against the Department.

A motorist owes the duty of reasonable care which includes the additional duties of keeping his vehicle under control and maintaining a proper lookout for hazards. Sinitiere v. Lavergne, supra. The court in Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979), stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. However, the Court in the Sinitiere case stated that this language in Rue “does not establish the highway shoulder as a ‘zone of recovery’ for every straying motorist.” The Supreme Court’s point is well-taken. However, we do not believe the Court intended to leap to the other extreme and automatically deny recovery to every motorist who strays onto the shoulder and thereafter does not accomplish a safe re-entry back onto the roadway’s riding surface. Instead, we feel it our duty to, on a case-by-case basis, focus on the facts and circumstances presented in each case to determine whether the straying motorist breached his duty to drive reasonably.

Under the facts and circumstances here presented, we hold that McDaniel was free from negligence in straying from the highway and in his actions taken once he had slipped off the riding surface.

The accident occurred in the early evening, just as it was beginning to grow dark. McDaniel testified that he was traveling about fifty miles an hour along the highway and was having no difficulty with his car. As he began going around an “S” curve, he faced the lights of two on-coming cars which, due to an illusion, appeared to be encroaching on his lane of travel. To compensate, McDaniel steered his vehicle to the right to allow more room for these on-coming vehicles. As he did, his right tires slipped off of the pavement and onto the low shoulder.

McDaniel testified that while he was aware of the existing road construction, he did not know how dangerously low the shoulder was. He did not recall seeing any low shoulder signs, plastic cones, flashing lights, or other roadway devices warning of the roadway’s dangerous shoulder. Nor were there edge markings or lines or center stripes or reflectors present on the roadway’s riding surface to guide him in gaining a proper perspective in relation to the oncoming vehicles.

Based on these facts, McDaniel’s straying onto the shoulder does not constitute a breach of his duty to drive in a safe and reasonable manner. Sinitiere v. Lavergne, supra; Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976) writ denied, 342 So.2d 218 (1977).

We now address whether McDaniel’s actions subsequent to his leaving the roadway amounted to a breach of a duty owed.

We begin by noting that when McDaniel’s tires slipped off of the roadway, he did not have the advantage of daylight to illuminate the way before him. Instead it was dusk, almost dark. In addition, the headlights of the approaching vehicles, which only seconds before he believed were coming straight at him, were still beaming towards him — adding to his difficulty in seeing the way ahead of him. Also, and very important we think, McDaniel was not traveling along a straightaway when his tires slipped off of the pavement. Instead, he was in the process of negotiating an “S” curve and was traveling on the curve’s outside moving to its left. The curve itself, along with its steep pavement-shoulder drop-off, also had a steep shoulder-ditch drop-off.

In addition to all of this, the record contains conflicting evidence as to whether McDaniel, after slipping off of the roadway, ever again regained sufficient control of his vehicle such that a safe re-entry maneuver could be attempted. For this reason, we discount the testimony of the Department’s expert who testified that a straying motorist has a duty to slow his vehicle down to a speed at which a re-entry onto the riding surface can be safely accomplished as it presumes the motorist has control of his vehicle, a fact not supported by the record.

Under the facts and circumstances outlined above, we cannot say that the trial court was clearly or manifestly erroneous in concluding that McDaniel was free from negligence. This conclusion will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

QUANTUM

Plaintiffs Richard McDaniel and David Wagley, answered the Department’s appeal requesting an increase in the award of damages.

The record indicates that McDaniel was trapped in his vehicle following the accident. His left knee was crushed and his right knee was pinned with a rod of steel that had to be forcibly removed through his knee to free him. The hospital emergency records show his major injuries as follows: (1) intra-articular fracture of the supracon-dylar level of the left femur; (2) bi-malleo-lar fracture of the left ankle; (3) severe laceration with avulsion fracture of the medial femoral condyle of the right knee; (4) laceration of the dorsum of the right ring and little fingers at the PIP joint; (5) deep laceration of the left knee; (6) multiple fractures of the mandible; and (7) fracture of the right calcaneus. These injuries and attendant complications have required multiple hospitalizations and surgical procedures and will require further surgery. They also render McDaniel permanently and almost totally disabled. The trial court awarded McDaniel $133,497.60 in special damages and $100,000.00 in general damages.

The record also indicates that as a result of the accident, Wagley suffered a collapsed right lung as well as a severely bruised rib area. As a result, Wagley has a painful, permanent breathing impairment. The trial court awarded Wagley $4,057.72 in special damages and $40,000.00 in general damages.

It is well settled that before a Court of Appeal can disturb the quantum award made by the trial court, the record must clearly reveal that the trier of fact abused its much discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). After a careful review of the record, we conclude that the lower court is not guilty of such abuse in making either award.

For the above and foregoing reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed against the appellant, the State of Louisiana, Department of Transportation and Development in the amount of $350.50.

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

SWIFT, J., dissents and assigns reasons.

GUIDRY, Judge,

concurring.

I fully concur in the majority opinion in this case but consider a short written concurrence necessary in order to explain my decision in this case in light of the recent decision of this court in Knotts v. State of Louisiana, Department of Highways, 395 So.2d 419 (1981). In Knotts, supra, a decision in which I participated as a member of the panel, our court determined that the driver of a motor vehicle who inadvertently drove onto the shoulder of the road in a construction area was negligent in leaving the highway. In my view the factual circumstances of this case are clearly distinguishable from those present in Knotts. In Knotts, the accident occurred in broad day light. The accident in this case happened at night. In Knotts, the driver was fully aware of the dangerous condition of the shoulder and the severe extent of the shoulder drop-off. In the instant case, McDaniel, although aware that he was driving in a construction area, he did not know that the drop-off varied from four inches to ten inches. In Knotts, the driver of the vehicle complained of no difficulty in discerning the extent of his lane of travel in relation to the opposite lane of travel or the shoulder of the road. In the instant case because of darkness, the pitch-black surface of the roadway, the lack of any edge markings and the headlights of oncoming vehicles, McDaniels was unable to gain a proper perspective of his lane of travel in relation to the opposing lane of travel and the shoulder area. In Knotts, the accident happened on a straightaway and the driver was faced with no actual or seeming emergency. In the instant case McDaniel strayed onto the shoulder as he proceeded through an “S” curve when, because of an illusion, on-coming ears appeared to be encroaching on his lane of travel, a factual situation similar to that presented in Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writ denied, 342 So.2d 218 (La.1977). In Knotts, the record clearly revealed that Knotts maintained control of his vehicle after straying onto the shoulder and only lost control when he attempted a re-entry at too sharp an angle and at too great a speed. In the instant case, in my view, the preponderance of the evidence shows that McDaniel lost driver control as soon as the right wheels of his vehicle dropped off of the travel portion of the highway. In this latter connection I consider the testimony of the investigating state trooper to the effect that the McDaniel car did not travel down the shoulder but “came right back on” to be most probative. (Tr. pg. 98)

For the above reasons I fully concur that the record in this ease supports the trial court’s conclusion that McDaniel was not negligent when he inadvertently drove his vehicle onto the shoulder of the road in a known construction area. I likewise fully concur with the majority opinion in its treatment of the other issues presented on this appeal.

SWIFT, Judge,

dissenting.

I respectfully dissent as I am convinced that plaintiff, Richard D. McDaniel, was guilty of contributory negligence and thus is barred from recovery. Sinitiere v. Lavergne, 391 So.2d 281 (La.1980).

      . David R. Wagley originally filed suit against McDaniel and his insurer as well as his own under-insurer. The Department was later added as a defendant through a supplemental and amending petition. Prior to trial, Wagley settled with and released all defendants except the Department against which all rights were reserved.

      . Although the opinion in this case indicates the lack of center striping on Louisiana Highway 29 at the time of accident, the record does reflect that the center line was designated by the presence of temporary center line tape tabs spaced 20 to 30 yards apart. However, in my opinion, the presence of these temporary tape tabs, spaced as they were, was not sufficient to allow McDaniel a proper perspective of his lane of travel in relation to the opposing lane of travel and the shoulder of the road.


author: LABORDE, Judge. SWIFT, Judge,

text:
    David R. WAGLEY, Plaintiff-Appellee, v. Richard McDANIEL et al, Defendants-Appellants.
    No. 8178.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Rehearing Denied May 28, 1981.
    William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Felix A. DeJean, III, and Mel Credeur, Opelousas, for plaintiff-appellee.
    John T. Bennett, Marksville, for plaintiff-appellee-appellant.
    McLure & McLure, John C. Piekels, Alexandria, for plaintiff-appellee-appellant.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   LABORDE, Judge.

For the reasons assigned in the companion matter entitled Richard Brady McDaniel v. State of Louisiana, Department of Transportation and Development, 398 So.2d 88, our docket number 8179, the judgment rendered by the trial court in favor of the plaintiff, David R. Wagley, and against the defendant, State of Louisiana, Through the Department of Transportation and Development, is affirmed. Costs of these proceedings on appeal are taxed against the appellant in the sum of $377.50.

AFFIRMED.

SWIFT, J., dissents and assigns reasons.

SWIFT, Judge,

dissenting.

I respectfully dissent as to the amount awarded the plaintiff, David R. Wagley, in the judgment against the defendant, State of Louisiana, Department of Transportation and Development. In my opinion both DOTD and Richard B. McDaniel were guilty of negligence that proximately caused plaintiff’s injury. Sinitere v. Lav ergne, 391 So.2d 821 (La.1980). The latter having settled with McDaniel and his insurer, DOTD is only liable for one-half of the amount awarded by the trial judge. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3 Cir. 1964).


text:
    Jimmy HARPER, Plaintiff-Appellant-Appellee, v. BROWN AND ROOT, INC. et al., Defendants-Appellants-Appellees.
    No. 7544.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Kramer and Laird, Harry Hammill, Alexandria, for plaintiff-appellant-appellee.
    Trimble, Randow, Smith & Wilson, Lon P. Wilson, Alexandria, for defendant-appel-lee-appellant.
    Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Provosty, Sadler & deLaunay, Albin A. Provosty, Alexandria, for defendants-appellants-appellees.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

In this suit, which was before us previously (383 So.2d 1079-La.App. 3rd Cir. 1980), plaintiff sought recovery against his employer, Brown & Root, Inc., for the value of certain tools owned by him which mysteriously disappeared from a job site on which he was working. The trial court dismissed plaintiff’s demands against Brown & Root. We affirmed this finding, stating in pertinent part:

“Considering the facts and circumstances of this case in light of these settled principles we determine that the trial court correctly concluded that no deposit relationship existed between plaintiff and Brown & Root....”

The Louisiana Supreme Court granted a writ of certiorari to review this finding and ultimately reversed concluding that a depositor-depositary relationship existed between plaintiff and Brown & Root and since the defendant “did not meet its burden of proving the loss did not result from its fault, . . plaintiff is entitled to recover his damages resulting from the loss”. (391 So.2d 1170, (La.1980). This matter is now before us on remand to fix the amount of damages to which the plaintiff is entitled.

Under our law the depositary is bound to restore the precise object which he received however, if unable to return the precise object received he is responsible to the depositor for its value. LSA-C.C. Article 2944; Beyris v. Spor, 22 La.Ann. 16 (La.1870); Holmes v. Longstreet State Bank, 8 La.App. 514 (1928).

A complete list of the tools deposited by plaintiff with Brown & Root and the value of each item shown thereon appears in the record as Plaintiff’s Exhibit I. The accuracy of this listing of tools is not assailed in the record. The tools itemized bear either the brand name “Proto” or the brand name “Craftsman”. Plaintiff’s experts, Wentz Brister, a Proto dealer, and Kenneth Rutledge, Manager of Sears hardware department, testified that the prices shown on Exhibit I represent the retail sales price of a new tool of like description as of August, 1978. Mr. Brister testified that although the prices for “Proto” tools were as shown Proto dealers would allow their customers a 25% discount. These experts testified further that “Proto” and “Craftsman” tools, with the exception of a few items, bear a lifetime guarantee and are replaced without charge to the customer if damaged or broken. This lifetime guarantee runs in favor of any possessor of such tools whether he be the original purchaser or not. According to these experts certain items appearing on such list having a total retail sales value of $642.86 would not enjoy the lifetime guarantee.

In our view the tools itemized on the aforesaid list which enjoyed a lifetime guarantee should be valued at the retail sales price of such items as of August, 1978. As to the other items, there is no evidence in the record concerning value except the retail sales value as of August 1978. Plaintiff offered no evidence as to the age of such items or their condition at time of loss. By the same token defendant, although insisting that such items were subject to depreciation, offered no evidence in support of such contention. Under the circumstances we consider that allowing plaintiff the retail sales value of these items less a 30% depreciation factor will do substantial justice to both parties. Accordingly, we calculate the amount due plaintiff as follows:

(a) Value of Proto tools as per Exhibit I less 25% .$1689.70
(b) Value of Craftsman tools as per Exhibit I .$ 538.93
(c) Value of tools without lifetime guarantee less 30% depreciation.$ 450.00
TOTAL.$2678.63

For the above and foregoing reasons, it is now ordered that there be judgment in favor of plaintiff, Jimmy Harper, and against defendant, Brown & Root, Inc., in the full sum of $2678.63, together with legal interest thereon from date of judicial demand until paid.

All trial and appellate costs are assessed to defendant, Brown & Root, Inc.

REVERSED AND RENDERED.


author: CULPEPPER, Judge.

text:
    Carolyn Crowe GLASSCOCK, Plaintiff and Appellant, v. Robert E. GLASSCOCK, Defendant and Appellee.
    No. 8038.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Gerald C. deLaunay, Lafayette, for plaintiff and appellant.
    Simon & Dauterive J. Minos Simon and Ronald Dauterive, Lafayette, for defendant and appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

This suit was instituted by the plaintiff-appellant, Carolyn Crowe Glasscock, seeking an increase in child support from her former husband, Robert E. Glasscock. Mr. Glasscock responded seeking to have the $300 per month alimony payments terminated. ’ The trial court increased the child support payments from $350 per month to $600 per month, but terminated the alimony award to Mrs. Glasscock. The trial court also awarded Mr. Glasscock $75 as expenses and attorney’s fees for bringing a motion to compel discovery because of the refusal of Mrs. Glasscock to answer certain questions at a discovery deposition. From this judgment, Mrs. Glasscock has perfected this appeal. We affirm.

The Glasscocks were divorced in 1974. The divorce judgment awarded to Mrs. Glasscock the custody of their minor child, $350 per month for the support of the minor child and $300 per month alimony. In 1979, Mrs. Glasscock filed suit seeking to annul the community property settlement agreement made in 1974. Thereafter, Mrs. Glass-cock filed a motion seeking to have the child support increased contending that circumstances have changed to warrant such an increase. Mr. Glasscock then filed a motion to terminate the alimony payments to Mrs. Glasscock contending she has adequate resources for her own support. After Mrs. Glasscock refused to answer certain questions at a deposition, Mr. Glasscock filed a motion to compel discovery. The motions to increase child support, to terminate alimony, and to compel discovery were consolidated for trial.

The trial judge found Mrs. Glasscock has a present gross income of about $1,700 per month, that she holds approximately $70,-000 in interest-bearing certificates of deposit, and that she owes no substantial debts. The court terminated alimony payments to the wife, and she does not contest this portion of the judgment on appeal.

The issues on appeal are (1) whether the trial court’s award of $600 per month as child support is manifestly inadequate, and (2) whether the trial court erred in awarding Mr. Glasscock attorney’s fees in connection with his rule to compel discovery.

In determining child support, the trial court is vested with wide discretion. Such a determination will not be disturbed by an appellate court unless a review of the record indicates that the trial judge abused that discretion. Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir. 1979); Dupre v. May, 365 So.2d 1173 (La.App. 3rd Cir. 1978); Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976).

LSA-C.C Article 227 provides that both parents have the obligation to support and maintain their children. This support shall be granted in proportion to the needs of the child and the financial circumstances of the parents who are to pay. LSA-C.C. Article 231. Children living with their mother following divorce are entitled to the same standard of living as if they resided with their father if the financial circumstances of the father permit. Ducote v. Ducote, 339 So.2d 835 (La.1976).

The record indicates that Mrs. Glas-scock and her son presently live in a large townhouse apartment in a desirable neighborhood in Houston, and that her son attends a private school and is adequately cared for. Mrs. Glasscock has failed to show the trial judge abused his discretion by awarding child support insufficient to maintain the child’s standard of living as that which would be afforded him if he lived with his father. The fact that Mr. Glasscock receives a substantial annual income does not compel us to reach a different conclusion. In Ducote, supra, the Supreme Court concluded that $600 per month was adequate support for three minor children even though their father’s annual income was in excess of $163,000. We conclude that the trial court did not abuse its discretion in awarding $600 per month for the support of the minor child.

Mrs. Glasscock also contends that the trial court erred in awarding Mr. Glass-cock $75 pursuant to a motion to compel discovery under LSA-C.C.P. Article 1469(4). The court determined that Mrs. Glasscock’s refusal to answer certain questions at a discovery deposition was unjustified. The trial judge has much discretion in determining whether or not such refusal was without substantial justification. Smith v. Richardson, 200 So.2d 897 (La.App. 2d Cir. 1967); Duplechien v. McNabb, 260 So.2d 789 (La.App. 4th Cir. 1972); writ denied, 262 So.2d 395 (La.1972); Chiasson v. Widman, 376 So.2d 350 (La.App. 3rd Cir. 1979). Such factual determination will not be disturbed absent clear error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Our review of the record does not reveal that the trial court’s judgment is clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiff-appellant, Carolyn Crowe Glasscock.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    E. Hester CURRY, d/b/a Curry Bonding Service, Plaintiff-Appellant, v. Tom WINNFIELD, Jr. and Alice Rose Jones Winnfield, Defendants-Appellees.
    No. 8043.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      Thomas R. Willson, Alexandria, for plaintiff-appellant.
    Edward Larvadain, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a suit on a promissory note. The defendants pled prescription of five years and the trial court sustained the exception dismissing plaintiff’s suit. Plaintiff appeals. We affirm.

The issues are: (1) Did the promissory note prescribe? (2) If so, did the defendants renounce the accrued prescription in a letter postmarked April 9, 1980?

Plaintiff, E. Hester Curry, Jr., d/b/a Curry Bonding Service was the holder of a promissory note executed by defendants, Tom Winnfield, Jr. and Alice Rose Jones Winnfield, on June 26, 1973. The note was secured by a real estate mortgage and was payable in thirty-six monthly installments, commencing July 26, 1973. The defendants made no payments on the note.

Included in the note is the following acceleration clause:

“In the event that any of the two within described installments in principal and interest in whole or in part, shall not be paid when due, then and in that event without notice of demand and without necessity of putting in default, same being hereby expressly waived, the entire remaining balance in principal, interest, attorney’s fees and costs then due under the within described note, shall immediately mature and become due and exigi-ble just as if said note had been matured by the lapse of time.”

Where a note is payable in monthly installments and contains an automatic acceleration clause like the one above, the note is fully matured and prescription begins running when the maker first defaults on the note. Morgan’s Discount Corporation v. Belote, 338 So.2d 1222 (La.App. 3rd Cir. 1976); A Second Mortgage Company of Baton Rouge, Inc. v. Gatlin, 233 So.2d 583 (La.App. 1st Cir. 1970); Dassau v. Seary, 158 So.2d 243 (La.App. 4th Cir. 1963). Therefore, the liberative prescription period of five years, made applicable to promissory notes by La.C.C. Art. 3540, began to run on August 26, 1973, when the second monthly installment became due. However, suit was not filed until March 24, 1980, more than five years after default. Hence, the note had already prescribed when plaintiff filed suit.

In a letter postmarked April 9, 1980, and written to plaintiff’s attorney, one of the defendants said, “Please write me if I could work out some kind of agreement with the note.” The plaintiff contends that this is an acknowledgment sufficient to interrupt prescription. However, at the time the letter was written the note had already prescribed so the letter did not interrupt prescription. Thus, the issue is whether the letter is sufficient to renounce the accrued prescription.

Where a civil action is barred by prescription a natural obligation still exists. La.C.C. Art. 1758. A natural obligation is a sufficient consideration for a new contract, La.C.C. Art. 1759, but there must be a new promise to pay the debt to renounce the accrued prescription. Landry v. Guidry, 210 La. 194, 26 So.2d 695 (1946). Since the language contained in the letter does not amount to a new promise to pay the debt, the defendants have not renounced the accrued prescription.

The decision of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.

      . The note has been lost. However, the plaintiff has complied with the requirements of La. C.C. Art. 2280 and the defendants admit the existence of the note. The terms of the note are stated in the act of mortgage.
      La.C.C. Art. 2280 reads as follows:
      “In every case, where a lost instrument is made the foundation of a suit or defense, it must appear that the loss has been advertised, within a reasonable time, in a public newspaper, and proper means taken to recover the possession of the instrument.”


author: STOKER, Judge. FORET, Judge,

text:
    SEASHELL, INC., Plaintiff-Appellant, v. Dennis SIMON, Defendant-Appellee.
    No. 8065.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.

      D. Warren Ashy, Lafayette, for plaintiff-appellant.
    Domengeaux & Wright, James Parkerson Roy, Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
    FORET, J., dissents and assigns written reasons.
   STOKER, Judge.

This is a suit on an open account. The plaintiff Seashell, Inc., seeks to recover from the defendant, Dennis Simon, $2,840.85 due it for goods sold to Gulf Atlantic Services Corporation. Seashell, Inc., alleges that Simon agreed to be personally liable for the debts of Gulf Atlantic. The trial court granted a motion for summary judgment in favor of Simon. From this judgment Seashell, Inc., has perfected this appeal. We affirm.

The sole issue on appeal is whether parol evidence may be admitted on behalf of Seashell, Inc., to prove that Simon verbally agreed to become liable for the debts of Gulf Atlantic.

In September and October, 1978, Gulf Atlantic charged $2,840.85 worth of shells on open account with Seashell, Inc. The invoices were made out to Gulf Atlantic and signed by Gulf Atlantic’s secretary-treasurer, Leonard Buteaux. Gulf Atlantic has not paid the amount due and has since gone bankrupt. Seashell, Inc., alleges that it initially refused to extend credit to Gulf Atlantic but did so after Simon, Gulf Atlantic’s president, agreed to be personally liable for the debts of Gulf Atlantic in the event that Gulf Atlantic failed or refused to pay. Paragraph four of the petition states:

“4.
“That defendant, Dennis Simon, agreed to be personally liable for the debts of this company, Gulf Atlantic Services Corporation, in the event that Gulf Atlantic Services Corporation failed or refused to pay the debt owed to petitioner.”

It is undisputed that no written agreement was ever entered into between Seashell, Inc., and Simon. Simon contends that parol evidence cannot be introduced to prove a promise to pay the debt of a third person; therefore summary judgment was proper because no written agreement was entered into.

Article 2278 of the Civil Code provides, in part, as follows:

“Parol evidence shall not be received:
3. To prove any promise to pay the debt of a third person.”

Parol evidence may not be used to establish either suretyship under LSA-C.C. art. 3035 et seq. or the promise to pay the debt of another under LSA-C.C. arts. 1890 and 1902. Altex Ready-Mixed C. Corp. v. Employers Com’l U.I. Co., 308 So.2d 889 (La. App. 1st Cir. 1975), writ denied, 312 So.2d 872 (La.1975).

Plaintiff-appellant contends there is an exception to the rule that parol evidence is inadmissible to prove a promise to pay an obligation of a third party in those instances in which the oral promise to pay is prompted by pecuniary or business motivation on the part of the promisor. For this proposition appellant cites the case of Rube v. Pacific Insurance Company of New York, 131 So.2d 240 (La.App. 1st Cir. 1961). It is true that the Rube case makes such an unqualified statement in a portion of the opinion, and in a few instances such an unqualified statement may be found in other cases. However, a reading of the Rube case will indicate that a mere pecuniary interest or business motivation on the part of the promisor is not sufficient in itself to take an oral promise out of the general rule.

As a reading of the Rube case itself will indicate the so-called exception applies only in those instances where the promisor by promising to pay the debt of a third person assumes a primary obligation rather than a secondary or collateral obligation. In the latter instance the promise is in the nature of suretyship.

We think that the matter is made clear in the case of Kemp Furniture Company v. Murrell, 227 So.2d 659 (La.App. 3rd Cir. 1969). In deciding that case this court stated:

“The applicable law is succinctly stated in Star Sales Company v. Arnoult, La.App., 169 So.2d 178 (4th Cir. 1964);
‘A distinction must be made between a promise to pay for goods delivered by another person, thus creating a primary obligation of the person making the promise, and one where the promis- or stands good for the account as a guarantor. The question which must be determined is if the promise constitutes a primary or collateral obligation. An examination of the relationship of the parties and the motive and pecuniary interest of the party making the promise may throw light upon the intent and is therefore pertinent in deciding the question: to whom was the credit given? Collier v. Brown, 11 La. App. 567, 141 So. 405 (2d Cir. 1932). This distinction is discussed more fully in National Materials Co. v. Guest, 147 So. 771 (La.App. Orleans 1933), citing Watson Bros. v. Jones, 125 La. 249, 51 So. 187 (1910).’ ”

Other cases which illustrate this construction of Civil Code article 2278 are Fuselier v. Hudson, 93 So.2d 266 (La.App. 1st Cir. 1957); Montelepre Memorial Hospital v. Kambur, 170 So.2d 214 (La.App. 4th Cir. 1964); Custom Contract Co. v. Nims, 145 So.2d 374 (La.App. 4th Cir. 1962); and B. & B. System, Inc. v. Everett, 34 So.2d 521 (La.App. 2nd Cir. 1948). The only case of recent vintage that we have noted in which the exception urged by plaintiff-appellant is stated in unqualified terms is the case of Powell Lumber Company v. Afco Corporation, 288 So.2d 697 (La.App. 3rd Cir. 1974). However, for the proposition in question this court in Powell cited the case of Custom Contract Co. v. Nims, supra, and B. & B. System, Inc. v. Everett, supra. In the latter case the court stated “parol evidence is competent to prove the assumption of debt by one who is activated by a pecuniary interest of his own in making the agreement, which in effect becomes an independent undertaking and may be established by any competent evidence. (Emphasis supplied.) An independent undertaking would be a primary obligation rather than a secondary or collateral obligation. Custom Contract Co. v. Nims, supra, also follows this construction of the exception. Hence, Powell must be read in light of these two cases.

In the present case, the plaintiff stresses the fact that Simon had a pecuniary interest in seeing that Gulf Atlantic was extended credit. In Kemp Furniture Company v. Murrell, supra, we stated:

“In the present case, plaintiff emphasizes the fact that Murrell had a pecuniary interest in seeing that the furniture was shipped to Buras for the new store. Of course, this is a fact to be considered, but it is not controlling. The question of whether the obligation is primary or collateral is factual.”

Characterization of the question as factual might ordinarily indicate that this is not a case susceptible of determination on a motion for summary judgment. In a counter affidavit filed in opposition to the motion for summary judgment the following assertion is made:

“Lynn Romero avers that as President of Gulf Atlantic Services, Inc., Dennis Simon had a business or pecuniary interest in obtaining the credit for his company.”

As we have indicated above, even if this is true, it is not sufficient alone to be determinative of the case. The most important factor to be considered at this point is the allegation of paragraph four of plaintiff-appellant’s petition. It will be noted from this allegation quoted above that plaintiff takes the position that Dennis Simon agreed to become guarantor or a surety for the Gulf Atlantic Services Corporation “in the event that Gulf Atlantic Services Corporation failed or refused to pay the debt owed to petitioner.” Plaintiff-appellant has itself pleaded that the agreement entered into by Simon was not a primary obligation but a secondary or collateral undertaking as a guarantor or surety. Under these circumstances we consider any parol evidence which might be offered to be inadmissible under sub-paragraph three of Article 2278 of the Civil Code.

For the foregoing reasons the decision of the trial court granting the motion for summary judgment in favor of the defendant, Dennis Simon, is affirmed. All costs are assessed to plaintiff-appellant, Seashell, Inc.

AFFIRMED.

FORET, Judge,

dissenting.

I respectfully dissent from the decision of the majority.

The granting of the motion for summary judgment was improper. I see a genuine dispute to an issue of material fact. If plaintiff can show, at trial on the merits, that the defendant, Simon, as President of Gulf Atlantic Services, Inc., had in fact a pecuniary or business motivation in personally securing plaintiff’s extension of credit to Gulf Atlantic, such evidence should be admitted as an exception to the rule that parol evidence is inadmissible to prove a promise to pay the obligation of a third party.

I am of the opinion that the summary judgment should be reversed and the matter remanded for trial on the merits.


author: FORET, Judge.

text:
    Welmon B. CHAMBERS, Plaintiff-Appellant, v. PAROCHIAL EMPLOYEES’ RETIREMENT SYSTEM OF LOUISIANA, Defendant-Appellee.
    No. 8066.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1981.
    Writ Denied June 5,1981.

      Brittain & Williams, Joseph Payne Williams, Natchitoches, for plaintiff-appellant.
    William C. Toadvin and Carmack M. Blackmon, Baton Rouge, for defendant-ap-pellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

Welmon Chambers (Plaintiff) brought this action against the Parochial Employees’ Retirement System of Louisiana (Defendant) claiming that supplemental retirement benefits are due him. The trial court rendered judgment in favor of defendant. Plaintiff appeals and presents two issues:

(1) Whether all requirements of law were met entitling plaintiff to receive supplemental retirement benefits and, if not,
(2) Whether defendant is estopped from denying these benefits to plaintiff because of information it gave him on which he relied.

FACTS

There is little dispute with respect to the facts giving rise to this action. Plaintiff had been employed by the Sabine Parish Police Jury (Police Jury) for some twenty-five years before January 1, 1979, the date on which he retired. Plaintiff, upon his retirement, began receiving two checks a month in the amount of $228.35 in regular retirement benefits and $173.68 in supplemental retirement benefits from defendant. However, plaintiff stopped receiving his supplemental retirement benefits some five months later when defendant determined that he was ineligible for such payments.

Plaintiff instituted this action on August 15, 1979, alleging that he was indeed entitled to receive supplemental retirement benefits and that defendant was wrongfully withholding payment of them. The action was tried on February 6,1980, and the trial court rendered judgment in defendant’s favor. Plaintiff was granted a devolutive appeal from that judgment.

REQUIREMENTS OF LAW

Plaintiff argues that all requirements of law were met with respect to his eligibility for supplemental retirement benefits.

The legislature enacted LSA-R.S. 33:6131.2 to give each parish the option of cancelling coverage of its employees under the Federal Social Security Act and to amend its agreement with defendant to provide those employees with supplemental retirement benefits. This act required each entity seeking such benefits to officially terminate its coverage under and to cease making contributions to the social security system.

The Police Jury, pursuant to that act, passed a resolution on July 20, 1976, immediately terminating Social Security coverage of parish employees and amending its agreement with defendant to provide those employees with supplemental retirement benefits. The resolution was sent to the Public Employees Board, the party that had contracted on behalf of the State with the Federal Government for Social Security coverage of state and parish employees. The Board was the proper entity to give official notice to the Secretary of the Department of Health, Education and Welfare (now Department of Health & Human Services) of the intent of a certain group of employees to withdraw from Social Security coverage. See LSA-R.S. 42:1001 et seq.

However, on August 4, 1976, the Public Employees Board informed the Police Jury that the resolution was improper in that the State was required to give two years’ advance notice, in writing, to the Secretary of H.E.W. before Social Security coverage for a designated group of employees could be terminated. See 42 U.S.C.A. § 418(g)(1).

The Police Jury failed to react to this information until March 21, 1979, at which time it amended its earlier resolution to comply with its agreement with the Public Employees Board. Social Security coverage for Sabine Parish employees will now terminate on December 31, 1981. Therefore, Sabine Parish employees were ineligible for supplemental retirement benefits, at the time plaintiff retired, since their Social Security coverage still existed instead of being officially terminated as required by LSA-R.S. 33:6131.2.

We hold that plaintiff was covered by Social Security at the time he retired and, therefore, was ineligible for supplemental retirement benefits.

ESTOPPEL

Plaintiff argues that, even if it is determined that there was a failure to comply with the requirements of law, defendant should be estopped from denying him those benefits because of certain representations, both oral and written, made to him.

Bobbie Maggio was an employee of the defendant who held the title of Secretary-Manager and whose duties included making determinations of eligibility for retirement benefits. Plaintiff inquired as to his eligibility for such benefits in the fall of 1978. Mrs. Maggio told plaintiff that he was eligible for both regular and supplemental retirement benefits.

Plaintiff claims that he relied on this information in making his decision to retire, which reliance was detrimental to him as the benefits he now receives are inadequate for his needs. He therefore argues that defendant should be estopped from denying him supplemental retirement benefits.

There are three elements of estop-pel:

(1) A representation by conduct or word;
(2) A justifiable reliance on such representation by the person to whom it is made; and
(3) A change in position to one’s detriment because of the reliance.

Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); State ex rel. Porterie v. Gulf, Mobile & N. R. Co., 191 La. 163, 184 So. 711 (1938); American Bank and Trust Company v. Trinity Universal Insurance Company, 194 So.2d 164 (La.App. 1 Cir. 1966), affirmed, 251 La. 445, 205 So.2d 35 (1967); Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La. App. 1 Cir. 1972).

Estoppels are not favored in our law. Wilkinson v. Wilkinson, supra; G. J. Deville Lumber Co., Inc. v. Chatelain, 308 So.2d 428 (La.App. 3 Cir. 1975), writ denied, 313 So.2d 239 (La.1975); Rodden v. Davis, 293 So.2d 578 (La.App. 3 Cir. 1974), writ denied, 296 So.2d 832 (La.1974). They will be applied, however, when the evidence warrants it and when the ends of justice demand it. G. J. Deville Lumber Co., Inc. v. Chatelain, supra. Being an equitable remedy, it must be applied with equity. Rodden v. Davis, supra; Harvey v. Richard, 200 La. 97, 7 So.2d 674 (1942); Taylor v. Turner, 45 So.2d 107 (La.App. 2 Cir. 1950); Henderson v. Rossi, 185 So.2d 92 (La.App. 4 Cir. 1966); Muhleisen v. Allstate Insurance Company, 203 So.2d 847 (La.App. 4 Cir. 1967).

The evidence shows that defendant (The Parochial Employees’ Retirement System of Louisiana) and the Public Employees Board were two entirely separate and distinct state agencies that rarely communicated with each other. Defendant received a copy of the resolution passed by the Police Jury in July, 1976, which purported to terminate Social Security coverage immediately and which had been forwarded to the Public Employees Board. Defendant then marked its records to expect the first contribution to the supplemental plan from the Police Jury for the fourth quarter of 1978 and then amended its agreement with the Police Jury to extend the coverage of the supplemental plan to parish employees. Mrs. Maggio testified that, based on the copy of the resolution defendant received, she believed that the Police Jury had given proper notification to the Federal Government or the Public Employees Board that they would terminate Social Security coverage as of September 30, 1978.

Defendant learned of the improper notification given by the Police Jury in late February or early March, 1979, which was some time after Mrs. Maggio had conferred with plaintiff. Defendant then sought an opinion from the Attorney General and, pursuant to that opinion, returned all contributions paid by or on behalf of Sabine Parish employees to the supplemental plan and rescinded its amended agreement with the Police Jury. There was apparently no requirement that either the Police Jury or the Public Employees Board certify to defendant that Social Security coverage had in fact terminated, and defendant relied solely on the information contained in the resolution of the Police Jury.

We hold that it would be inequitable and contrary to the ends of justice to allow plaintiff to invoke the doctrine of “equitable estoppel” against the defendant under the circumstances present here. Further, equitable considerations cannot be permitted to prevail when in conflict with positive written law. LSA-C.C. Article 21; Packard Florida Motors Co. v. Malone, 208 La. 1058, 24 So.2d 75 (1945); Port Finance Co. v. Ber, 45 So.2d 404 (La.App.Orl., 1950). The positive written law effective at the time plaintiff retired provided that a person was ineligible for supplemental retirement benefits if his Social Security coverage had not been officially terminated.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The subject matter of LSA -R.S. 33:6131.2 as enacted bv Acts 1968, # 538, § 1; and amended by Acts 1974, # 441, § 1 and Acts 1975, # 396, § 1, has been transferred to R.S. 33:6104 by Acts 1979, # 765, § 1, which became effective after plaintiff had retired and is inapplicable to the case before us.

      . The Louisiana Department of the Treasury, Division of Social Security now administers the Social Security coverage for the State. See LSA R.S. 36:769.

      . Section G of that agreement provides:
      "(G) TERMINATION BY THE POLITICAL SUBDIVISION
      The POLITICAL SUBDIVISION, upon giving at least two years’ advance notice in writing to the STATE AGENCY, may terminate this agreement, effective at the end of a calendar quarter specified in the notice, provided, however, that the agreement may be terminated only if it has been in effect not less, than five years prior to receipt of such notice.
      The above clause is put into such agreements by the Public Employees Board to facilitate compliance with 42 U.S.C.A. 218(g)(1).”