text:
    CENTRAL FIDELITY BANK, Plaintiff & Defendant-In-Intervention-Appellant, v. Kenneth Lee GRAY, Defendant, Joseph H. Nelson, Defendant & Plaintiff-In-Intervention-Appellee.
    No. 82-290.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Edward A. Kaplan, Alexandria, for plaintiff & defendant-in-intervention-appellant.
    Stafford, Stewart & Potter, Walter E. May, Alexandria, for defendant & plaintiff-in-intervention-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is an appeal by Central Fidelity Bank (Central) from a judgment in favor of Joseph Nelson, plaintiff-in-intervention, awarding him damages for tortious conversion. We affirm.

The automobile which is the subject of this litigation, a 1979 Mark Five, was security for a loan made by Central to Kenneth Gray. Both of these parties are domiciled in Virginia. Upon Gray’s default in payment on the loan, Central began efforts to repossess the car. Gray signed a statement saying that he had loaned the car to Nelson in Alexandria, Louisiana, and authorized Central to assign it for repossession. After an unsuccessful attempt to repossess the car from Nelson, Central filed suit for non-resident attachment against Gray for his default on the loan and named Nelson as garnishee.

A writ of attachment was issued to Nelson for the car, but the serial number on it was incorrect. Nelson then filed his petition of intervention seeking damages for wrongful issuance of the writ and asserting ownership of the car by virtue of purchase from Gray for $7,000 plus an additional $2,000 to be paid when he received the certificate of title. Gray never supplied the title. Another writ of attachment with the correct serial number was issued to Nelson on July 24, 1980, by which time Nelson had reported that the car had been stolen.

On July 31, 1980, Central dismissed its suit against Gray on its own motion, leaving only the demand by Nelson in intervention to be litigated. Nelson amended his petition on August 14, 1980, seeking damages for tortious conversion of the ear by Central. By this time Nelson had determined that the car was back in Central’s possession. In answers to interrogatories propounded to it Central indicated it was informed on August 14,1980, by Gray that he had the car and that it could be picked up at his home.

After trial on the merits, the trial court rendered judgment in favor of. Nelson ordering Central to either return the car or refund the purchase price of $7,000 to him. The court awarded Nelson damages in the amount of $1,500 arising from what it determined to be a conversion.

The primary issues raised by appellant are the correctness of its contentions that: (1) Nelson did not own the ear and, therefore, he did not have a valid cause of action against Central, and (2) Nelson did not prove that Central took the car.

In support of its contention that Nelson did not own the car, Central cites numerous authorities holding that a certificate of title is necessary to support a valid sale in Virginia. It also cites authority for the proposition that a foreign chattel mortgage, valid under the laws of the state in which it was executed, should be enforceable against a good faith purchaser in Louisiana. However, in each of the cases cited in brief, the lienholder was seeking relief through proper legal remedies and not availing himself on self-help. There is little doubt that Central would have prevailed against Nelson through the use of legal remedies.

The common law tort of conversion has been long recognized in Louisiana as a quasi offense under LSA-C.C. art. 2315 and defined as an “... act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein.” Lincecum v. Smith, 287 So.2d 625 (La.App. 3rd Cir.1973), writ refused, 290 So.2d 904 (La.1974). Although the jurisprudence of this state indicates that the plaintiff in a conversion action must be the owner of the disputed property, we do not reach the issue of ownership here inasmuch as we base our decision on other grounds.

In this ease, Nelson offered sufficient evidence to show that he was the rightful possessor of the car by virtue of his purchase from Gray despite the fact that Central might have prevailed in proper proceedings to enforce its lien. As the rightful possessor, Nelson is entitled to bring an action for damages against Central under LSA-C.C. art. 2315.

In McVay v. McVay, 318 So.2d 660 (La.App. 3rd Cir.1975), a dispute arose between parties who were judicially separated when the husband deliberately took a community owned car then in the possession of his wife, hid it, and deprived her of its use. (The community had not been partitioned, and the car was therefore owned in indivi-sión by the husband and wife.) This court awarded damages to the wife under LSA-C.C. art. 2315. Although the issue in that case was co-ownership rather than non-ownership, the principle established there is applicable here. Nelson had a legal right to retain the car until proper proceedings were brought against him and until such time as he was ordered by the court to release it to Central.

Louisiana has recognized the rights of possessors in other matters. In Folse v. State, Department of Highways, on remand, 377 So.2d 511 (La.App. 3rd Cir.1979), compensation was awarded to possessors of land which was expropriated even though they could not prove title. The plaintiffs were compensated for the value of their possession of the land. A party who may have superior rights cannot avail himself of extra-judicial remedies and plead non-ownership of the possessor as a defense.

Central also asserts that Nelson failed to prove that it took the car. In support of this claim Central refers to this court’s statement in Lincecum, supra, holding that:

“One is not liable for a conversion by another person where he did not direct, advise, participate in, or benefit from it, and he does not bear such a relationship to the latter person as would make him responsible for his act.”

Despite the fact that Lincecum clearly dealt with a conversion, the standard of proof set out therein may well be applicable in similar situations. However, it was clear in Lincecum that another person had actually committed the act of conversion. In the case at bar, the identity of the individual who actually took the car is not established. It is undisputed, however, that the car was ultimately found in Central’s possession.

In McGuire v. Monroe Scrap Material Co., 189 La. 573,180 So. 413 (1938), the Supreme Court found the defendants liable for tor-tious conversion because the circumstances created a presumption that defendants had appropriated plaintiff’s machines. The defendants were found in possession of the machines, parts of which had been severed by a blowtorch. It was certain that defendants used a blowtorch in their business. The court held that defendants’ testimony that they had no idea how the machines came into their possession did not rebut the presumption that they had appropriated the machines..

Central explains its possession of the car through responses to discovery questions by assertions that Gray had contacted them and told them to pick up the car at his house. Two weeks prior to Gray’s contact Central had voluntarily dismissed its suit against Gray, but it was nevertheless aware that Nelson’s intervention for damages was still pending in which he asserted his ownership of the car. The circumstances of this case were sufficient to support the trial court’s finding that Central was liable to Nelson for damages suffered because of loss of the ear. The trial court’s evaluation of the evidence and determination of credibility are not clearly wrong. The judgment awarding Nelson the return of the purchase price or the car plus $1,500 in damages is not excessive.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-in-intervention appellant, Central Fidelity Bank.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    HUNTER’S GROVE HOMEOWNERS ASSOCIATION, et al., Plaintiffs-Appellants, v. CALCASIEU PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 82-293.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Rester & Van Norman, John L. Van Norman, III, Lake Charles, for plaintiffs-appellants.
    Mike Bercier, Lake Charles, for defendants-appellees.
    McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for intervenor-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Hunter’s Grove Homeowners Association and Acadian Acres Homeowners Association (plaintiffs) brought this action for a declaratory judgment against defendants, Calcasieu Parish Zoning Commission (Zoning Commission) and Calcasieu Parish Police Jury (Police Jury), seeking to have two ordinances adopted by the Police Jury declared to be invalid, null and void. These ordinances changed the zoning classifications on two tracts of land located in Calca-sieu Parish. John L. Gayle (intervenor), one of the owners of these tracts of land, filed a petition of intervention, aligning himself with defendants.

The trial court, after trial on the merits, rendered judgment in favor of defendants and intervenor, and against plaintiffs, dismissing plaintiffs’ action with prejudice.

Plaintiffs appeal and present the following issues:

(1) Whether the trial court erred in finding that defendants had used the proper procedures, mandated by law, in adopting the rezoning ordinances;
(2) Whether defendants’ actions in rezoning the tracts of land constituted illegal “spot zoning”, and
(3) Whether the trial court erred in finding that no evidence was presented to indicate that the Police Jury had acted in an arbitrary, capricious, or unreasonable manner in rezoning the tracts of land.

FACTS

Plaintiffs brought this action in response to the adoption, by the Police Jury, of ordinances # 2097 and # 2112. These ordinances were adopted on the basis of recommendations made to the Police Jury by the Zoning Commission. Ordinance # 2097 was adopted by the Police Jury on January 22, 1981, and provided:

“... that Calcasieu Parish Zoning Ordinance No. 1927 and the. Comprehensive Zoning District Map of Calcasieu Parish, Louisiana, be and they are hereby amended insofar as said ordinance and map pertain to the following property in Ward Three of this parish: from ‘R-l’ Single Family Residential to ‘R-2’ Mixed Residential property described as Prien Prairie Subdivision Part 1 as per plat recorded in Plat Book 29, Page 32 of Calcasieu Parish, Zoning Case W3-05-81 ...” (Tract Number 1).

Ordinance # 2112 was adopted by the Police Jury on February 19, 1981, and provided:

“. .. that Calcasieu Parish Zoning Ordinance No. 1927 and the Comprehensive Zoning District Map of Calcasieu Parish, Louisiana, be and they are hereby amended insofar as said ordinance and map pertain to the following property in Ward Three of this parish: from ‘R-l’ Single Family Residential to ‘R-2’ Mixed Residential property described as: The south half of the Southwest Quarter of Section 35 less Prien Prairie Subdivision, Part 1, Ward Three, Calcasieu Parish, Louisiana. Zoning Case W3-07-81 ...” (Tract Number 2).

The main distinction to be noted for our purposes is that the R-l Single Family Residential zoning regulation permits the construction of single family dwellings, excluding mobile homes, while the R-2 Mixed Residential zoning regulation permits the construction of single family dwellings, including single unit mobile homes (1 per lot).

Plaintiffs are composed of a majority of the individual landowners in Hunter’s Grove Subdivision (Hunter’s Grove) and Acadian Acres Subdivision (Acadian Acres). Both subdivisions are located near the rezoned land, and both are still zoned R-l. Intervenor is in the process of developing the rezoned land, and mobile homes have been placed on some of the lots therein. Plaintiffs brought this action mainly because of the concern of their members that property values in the subdivision would be adversely affected by the presence of mobile homes. In addition to seeking a judgment declaring the above mentioned ordinances to be invalid, plaintiffs also sought to have the trial court issue a writ of mandamus directed to defendants

“... to show cause . .. why they should not perform their ministerial duties by giving proper notice as to hearings which concern rezoning TRACT NUMBER 1 and TRACT NUMBER 2 and by conducting public hearings in accordance with applicable law”.

Finally, plaintiffs requested that the trial court issue a stay order, staying the effect of the Police Jury’s decision to rezone the land, pending further orders of the court.

In response, defendants filed dilatory exceptions of vagueness and unauthorized use of summary proceedings. The trial court, after conducting a hearing on defendants’ exceptions, rendered judgment, sustaining the exception of unauthorized use of summary proceedings, and denying plaintiffs’ request for the issuance of a writ of mandamus.

Intervenor then filed an “EXCEPTION OP PRESCRIPTION OR PREEMPTION OR MOTION TO DISMISS FOR FAILURE TO TIMELY FILE SUIT.” Immediately prior to the trial on the merits, the trial court conducted a hearing on intervenor’s exception. After the hearing, the trial court stated that it, “... finds that the exception is well founded as to the first ordinance, which was 2097. It’s not well founded as to the second one." The minutes of court for February 4, 1982, recite that:

“... the Court maintains the exception as to Ordinance Number 2097 and overrules the exception as to Ordinance Number 2112”.

However, a review of the record shows that no formal judgment sustaining intervenor’s exception was signed by the trial court. Plaintiff was allowed to introduce evidence with respect to Ordinance Number 2097 under a proffer of proof, and we will consider plaintiffs’ arguments on the merits as to both ordinances.

DEFENDANTS’ ALLEGED PROCEDURAL ERRORS

Plaintiffs contend that the trial court committed error in finding that defendants had complied with the requirements of law setting forth the procedure to be followed in enacting zoning ordinances. Plaintiffs argue that defendants violated certain provisions of Acts 1960, Number 196 (the enabling act), which authorizes the Police Jury to adopt comprehensive zoning plans, and to make changes in those plans. Specifically, plaintiffs point to Section 4 of the above mentioned act, which provides:

“Section 4. The police jury of the Parish shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established and enforced, and from time to time, amended. No regulations or restrictions shall become effective until after a public hearing at which parties in interest have an opportunity to be heard. A public hearing in relation to the regulations may be held by the governing authority of the parish. In such case, notice of the time and place of the hearing shall be published once a week in three different weeks in the official journal of the parish, or, if there be none, in a paper of general circulation therein. At least fifteen days shall elapse between the first publication and the date of the hearing.”

(Emphasis ours)

Plaintiffs argue that the Police Jury chose to conduct public hearings on the proposed zoning changes, when it considered the Zoning Commission’s recommendations regarding those changes at its regular meetings. We disagree.

Section 6 of Acts 1960, Number 196 provides:

“Section 6. The Parish Planning Commission created and established by the provisions of Sub-Part A of Part IV of Chapter 1 of Title 33 of the Louisiana Revised Statutes of 1950 shall be the Zoning Commission for the Parish of Calca-sieu and shall exercise all powers, duties and functions herein provided. It shall be the duty of said Zoning Commission to recommend the boundaries of the various original districts as well as the restrictions and regulations to be enforced therein, and any supplements, changes or modifications thereof. Before making any recommendation to the police jury of the parish, the Zoning Commission shall hold a public hearing. Notice of the time and place of the hearing shall be published at least three times in the official journal of the parish, or if there be none, in a paper of general circulation therein, and at least ten days shall elapse between the first publication and date of the hearing. After the hearing has been held by the Zoning Commission, it shall make a report of its findings and recommendations to the police jury of the parish. The police jury shall not hold its public hearings or take action until it has received the final report of the Zoning Commission.”

(Emphasis ours.)

It is clear that, before making any recommendation to the Police Jury concerning zoning changes, the Zoning Commission “shall” hold a public hearing, and that notice of the time and place of that hearing “shall” be advertised as set forth in Section 6 of the enabling act. The evidence clearly shows that the Zoning Commission held public hearings on both of the proposed zoning changes, and that notice of the time and place of both of the hearings was advertised in accordance with law.

It is equally clear that Section 4 of the enabling act leaves it to the discretion of the Police Jury to decide whether it will conduct a public hearing on proposed zoning changes. It is our opinion that the decision of the Police Jury to consider proposed zoning changes at its regular meetings does not constitute a “public hearing” on the proposed changes, as contemplated by Section 4 of the enabling act, and that the Police Jury is not required to give notice of the time and place of its regular meetings simply because it will consider proposed zoning changes at that time.

The trial court correctly found that defendants had complied with the procedural requirements of law in adopting Ordinance Number 2112, and we find that the same is true with respect to Ordinance Number 2097.

Plaintiffs next contend that, before a zoning board rezones property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood has changed to such an extent that reclassification ought to be made. Further, that the burden of proof of the original mistake or the need of substantial change in zoning of the property is on the proponents for the change. Plaintiffs cite Dufau v. Parish of Jefferson, 200 So.2d 335 (La.App. 4 Cir.1967), in support of their contentions. We find Dufau to be distinguishable from the present action on its facts.

A reading of Dufau shows that plaintiff and intervenors therein were owners of property which had been rezoned by the Jefferson Parish Council. Thus, they had vested property interests in the land rezoned. In the action sub judiee, plaintiffs’ members have no vested property interest in the land rezoned. They merely own property adjacent to, or in the vicinity of, this land. There is no merit to plaintiffs’ contention.

ALLEGED SPOT ZONING

Plaintiffs contend that the action of the Police Jury in rezoning the tracts of land constitutes illegal “spot zoning”.

Spot zoning is the practice of giving a small parcel of land a different classification from the surrounding area for the benefit of the owners of the small parcel. Trustees Under Will of Pomeroy v. Town of Westlake, 357 So.2d 1299 (La.App. 3 Cir.1978), writ denied, 359 So.2d 205 (La.1978); Cook v. Metropolitan Shreveport Board of Appeals, 339 So.2d 1225 (La.App. 2 Cir.1976), writ denied, 341 So.2d 1123 (La.1977).

Sears, Roebuck & Company v. City of Alexandria, 155 So.2d 776 (La.App. 3 Cir.1963), writ denied, 245 La. 83,157 So.2d 230 (1963), quoting from 101 C.J.S. Verbo Zoning, Section 34, pages 741-742 stated that:

“Spot zoning is an attempt to wrench a single lot from its environment and give it a new rating that disturbs the tenor of the neighborhood, and which affects only the use of a particular piece of property or a small group of adjoining properties and is not related to the general plan for the community as a whole, but is primarily for the private interest of the owner of the property so zoned; and it is the very antithesis of planned zoning. It has generally been held that spot zoning is improper, and that one or two building lots may not be marked off into a separate district or zone and benefited by peculiar advantages or subjected to peculiar burdens not applicable to adjoining similar lands.
“It appears, however, that so-called ‘spot zoning’ is not illegal in all cases, and whether it is so depends on the particular facts of the case, and on whether the municipality’s action is properly related to the public health, safety, morals, and general welfare, designed to serve the best interest of the community as a whole, and in accordance with a comprehensive zoning plan. The mere fact that an ordinance creates numerous small zones indiscriminately scattered throughout the city, frequently consisting of only one lot, does not render it invalid, and a mere allegation that a certain order constitutes spot zoning does not necessarily make the order illegal.
“Whether a zoning ordinance is invalid as an entirety in that it is mérely spot zoning depends on more than the size of the ‘spot’, although the size is an important consideration; and, where it does not appear that there is a singling out of one lot for treatment different from that accorded to similar surrounding land indistinguishable from it in character, such spot zoning is not illegal.”

The evidence shows that the tracts of land rezoned are adjacent to each other and contain approximately 40 acres. The land has been owned by intervenor’s family for at least 75 years, and had been farmed by them on and off for some 30 years. Intervenor testified that the family still farmed land located immediately west of that rezoned. However, they had to cease farming operations on the land in question because the development of Hunter’s Grove precluded aerial spraying, which was necessary to make the operation profitable. Photographs introduced in evidence, together with testimony adduced, clearly show that much of the land surrounding the tracts rezoned is basically rural and open fields. Further, there are two tracts of land in the area presently zoned to permit the development of mobile home parks, and they have been developed in this manner.

Under these facts and circumstances, we see no need to conduct an extensive analysis of the evidence in light of the factors enumerated in Sears, Roebuck & Company v. City of Alexandria, supra, to make a determination as to whether the action of the Police Jury constituted illegal spot zoning. Here, we are concerned with a fairly large tract of land situated in an area that is still rural and undeveloped to a large extent, rather than an urban area where small tracts of land have been rezoned. It is our opinion that there is no merit to plaintiffs’ contentions that the Police Jury engaged in illegal spot zoning.

REASONABLENESS OF POLICE JURY’S ACTION

Plaintiffs contend that the Police Jury acted arbitrarily, capriciously, and unreasonably in rezoning the tracts of land. They argue that no rational reason was given for taking this action.

Zoning ordinances adopted in accordance with the procedures set out in the enabling statutes are presumed to have been adopted by the governing authorities for valid purposes. All such ordinances are presumed to be valid and the burden is on the party attacking a zoning ordinance to overcome this presumption of validity. The court will uphold the ordinance unless it is clearly shown that the action of the governing authority was arbitrary or unreasonable, or that the action taken violated a provision of the constitution or of the enabling statutes. Doubtful cases will be decided in favor of the validity of the zoning law. Kirk v. Town of Westlake, 373 So.2d 601 (La.App. 3 Cir.1979), writ denied, 376 So.2d 1268 (La.1979); Hardy v. Mayor & Board of Aldermen, City of Eunice, 348 So.2d 143 (La.App. 3 Cir.1977), writ denied, 350 So.2d 1212 (La.1977); Sears, Roebuck & Co. v. City of Alexandria, supra.

A court will not substitute its views for those of the governing body as to the wisdom of or the need for a change in the zoning regulations, except when it appears that there has been an abuse of discretion or an excessive use of power. The exercise of its police power by a governing authority in establishing or amending zoning regulations will not be upheld, if it is shown that there has been an abuse of discretion or the excessive use of power, or that the action taken was arbitrary or unreasonable, or that it bears no relation to the health, safety, or general welfare of the public. Kirk v. Town of Westlake, supra; Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1 Cir.1966).

James J. Vickers, Planning Director for the Police Jury, testified as to his reasons for recommending to the Zoning Commission that the land be rezoned. He first noted that, under the R-2 zoning regulation, the only additional use permitted would be that a single family mobile home could be placed on each lot. Thus, the change in zoning would generate no more traffic, nor worsen the drainage in the area, than would the construction of standard single family dwellings on each lot. Vick-ers also noted the fact that a great need existed in the area for this type of development as economic conditions precluded the construction of standard single family dwellings by many people. He testified that it was virtually impossible to locate a mobile home within the city of Lake Charles.

Intervenor testified that his family had initially considered developing the land for standard single family dwellings. However, economic conditions deteriorated to the point that few people were buying land on which to construct that type of housing. They then decided to develop the land as a mobile home subdivision. Once they did this, the 27 lots comprising the first tract of land were sold within a two-month period. The second tract of land, which is about three times as large as the first, was divided into lots for sale in November of 1981, and approximately % of those lots were sold within three months.

We find that the Police Jury’s action in rezoning the tracts of land was related to the general welfare of the public. There was a great need for the adequate and affordable housing that could be provided by developing the land as a mobile home subdivision. Robert Doyle, an expert appraiser, testified that between 75% to 80% of those currently purchasing housing were opting for mobile homes. He opined that the development of the mobile home subdivision would have no detrimental effect on property values in either Hunter’s Grove or Acadian Acres. Daniel Plauche, another expert appraiser, also testified as to the need for this type of development. It was his opinion that, given the current trends, this type of development could become the predominant type for the future in the area. The trial court evidently accepted the opinions of these experts as opposed to that of the expert appraiser called by plaintiffs, which was to the contrary.

The trial court’s finding, that plaintiffs failed to present any evidence to show that defendants had acted in an arbitrary, capricious, or unreasonable manner, is correct.

Finally, plaintiffs contend that the trial court failed to give proper consideration to Section 3 of the enabling act in reaching its decision. Section 3 of the act provides:

“Section 3. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the public streets; to secure safety from fires; to promote health and the general welfare; to provide adequate light and air; to avoid undue concentration of population; to facilitate adequate transportation, water supply, sewerage, schools, parks, and other public requirements. The regulations shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout the Parish.”

The evidence shows that defendants are presently in the process of developing a comprehensive plan for zoning all land, other than the incorporated areas, in Calcasieu Parish. There has been no showing made that the rezoning of the tracts of land was made in any manner, other than pursuant to this developing comprehensive plan. The analysis of the evidence, set forth above, indicates that neither defendant violated the provisions of Section 3 of the enabling act. A review of the trial court’s oral reasons for judgment shows that it did not specifically mention Section 3 therein. However, the oral reasons for judgment support a conclusion that the trial court did consider the provisions of this section in rendering its judgment. The record contains much evidence pertinent to a resolution of the issue of whether defendants had complied with these provisions. There is no merit to plaintiffs’ contention.

DECREE

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

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . Both plaintiffs are unincorporated associations. In this action, Hunter’s Grove Homeowners Association appeared through and was represented by its President, Paul K. Hall, while Acadian Acres Homeowners Association appeared through and was represented by its President, Steven R. Guillory.

      . Defendants subsequently withdrew their exception of vagueness.


author: STOKER, Judge.

text:
    Alfred V. DAVIS, Plaintiff-Appellee, v. Camillia Spilker DAVIS, Defendant-Appellant.
    No. 82-295.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Harrington & Harrington, Eric R. Harrington, Natchitoches, for defendant-appellant.
    Don M. Burkett, Many, for plaintiff-ap-pellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This appeal results from the trial court’s award of permanent custody of the parties’ minor children to the husband after a hearing on a rule to show cause. The husband had been granted provisional custody pending the hearing. A judgment was rendered granting a divorce to Mr. Davis as well as permanent custody, but only the portion of the judgment awarding custody was appealed. We conclude that' the trial court did not commit manifest error and did not abuse its discretion in finding that an award of permanent custody to the husband was in the best interests of the children.

FACTS

Mr. Davis remains in the house which is the former matrimonial domicile and with which the children are familiar. It is a single family dwelling in rural Sabine Parish. Living nearby are the husband’s parents, who are willing to care for the children when Mr. Davis is away. The older child will catch the bus at her paternal grandparents’ home to go to school each morning and return there in the afternoon. A next door neighbor testified that he, also, would be able to look after the children in an emergency.

Mutual friends of both Davis’ testified that Mr. Davis was a good father and their testimony indicates that he is quite capable of caring for the children’s needs.

Mrs. Davis currently lives in a two bedroom apartment in an apartment complex in Natchitoches. Her arrangements for taking care of the children while she is working or in an emergency are not as well planned as Mr. Davis. She testified she had a friend who might be able to take care of the children on the two nights a week that she works, but she was no more specific than that. Although Mr. Davis would occasionally be away over night, the grandparents or neighbor would take care of the children. Mrs. Davis’ testimony indicates that making arrangements to get the children to and from school and a Day Care Center would be a hardship and possibly detrimental to her work.

Mrs. Davis testified that Mr. Davis and the older child, Veronica, age five and one-half years at the time of the trial, have a close relationship and that Mrs. Davis has a hard time with her. In fact, Mrs. Davis voluntarily gave Mr. Davis custody of Veronica after she had left the home with the children and found she could not cope with Veronica. Although the six month old is not old enough to have developed an affec.tion for one parent or the other, the trial judge said he would be loathe to separate the children.

ARGUMENT

Appellant, Mrs. Davis, contends the trial judge erred in giving undue emphasis in the explanation of his ruling to Mrs. Davis’ illicit and continuing affair with a married co-worker. Although it is true that illicit sexual activity alone is not sufficient to deprive a parent of cústody, its detrimental effects on the children can be rightfully considered in the determination of what is in the best interests of the children.

On two occasions, Mrs. Davis’ co-worker spent most of the night at her apartment. On the first occasion, both children were present at the apartment. On the other occasion, the younger child was there. Mrs. Davis admitted that sexual intercourse took place on one of those occasions. The trial judge concluded that in view of this evidence and the testimony of Mrs. Davis regarding the continuing nature of this affair that such exposure would be detrimental to the children.

Counsel for Davis strenuously urges that we give special consideration to Mrs. Davis’ position as mother of the two children. Although recognizing that the maternal preference rule formerly embodied in LSA-C.C. art. 146 has been legislatively abolished, counsel still urge that the mother should be given preference assuming all other factors are equal. Counsel stresses the pronouncement of Thornton v. Thornton, 377 So.2d 417 (La. 2nd Cir.1979) quoted in Burch v. Burch, 398 So.2d 84 (La.App. 3rd Cir.1981). That pronouncement was:

“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.”

While this concept is a factor to be considered, it is only a factor. In Thornton itself the court said: “It is correct, however, that the 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 incapacity.” (Emphasis supplied.)

In this case it may be a close question as to what will properly serve the best interests of the children. Nevertheless, there are substantial factors in favor of the father and his home situation as against the mother and her situation.

CONCLUSION

Without deciding this case on the basis of the conduct of the mother in engaging in the affair with her co-worker, we are of the opinion that the trial court arrived at the proper decision. Considering all the facts of this case, especially the relationship of Mrs. Davis with the older child, the trial court did not commit manifest error.

DECREE

For the foregoing reasons, the part of the judgment appealed from is affirmed, and it is further ordered, adjudged, and decreed that appellant pay all costs of this appeal.

AFFIRMED.


author: LABORDE, Judge.

text:
    Arvil NOLEN d/b/a Nolen Construction Co., Plaintiff-Appellant, v. TOMPKINS AND COMPANY, Defendant-Appellee.
    No. 82-296.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Thomas R. Willson of Rivers & Willson, Alexandria, for plaintiff-appellant.
    Asa Allen Skinner, Mark Kramer, Lees-ville, for defendant-appellee.
    F. Clay Tillman, Jr., Leesville, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, Lake Charles, for garnishee-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

This appeal arises as a result of a suit filed by plaintiff, Arvil Nolen, to recover payment pursuant to a contract entered into with defendant, Tompkins and Company. Tompkins, an Oklahoma Corporation, filed a declinatory exception of lack of jurisdiction over the person. Nolen filed a memorandum in opposition to this exception and Nolen further petitioned the court to fix a trial date for a hearing on the declinatory exception. The trial court denied Nolen’s motion to fix a trial date. Nolen appeals this interlocutory judgment. We dismiss the appeal finding that irreparable injury has not been shown.

A better understanding of the case can be gleaned from a review of the record. On May 24, 1979, Nolen instituted a suit by attachment seeking payment under a contract entered into with Tompkins. Tompkins responded by filing a declinatory exception of lack of jurisdiction and Tompkins further moved to dissolve the attachment. On January 23, 1981, the trial court held a hearing on this exception. The trial court ruled that Tompkins owned no property that could be attached to confer jurisdiction, therefore the exception was sustained. A judgment reflecting this ruling and dismissing Nolen’s suit was signed on June 24, 1981.

On December 31, 1981, Nolen, after obtaining the services of a new counsel, filed a second petition under the same docket number seeking payment under the contract with Tompkins. In this petition, Nolen alleged that jurisdiction over Tompkins was conferred by the Louisiana Long Arm Statute. LSA-R.S. 13:3201, et seq. Tompkins again filed a declinatory exception denying the court’s jurisdiction. Nolen responded on March 24,1982, by filing a memorandum in opposition to the exception and Nolen also petitioned the court to set a trial date for a hearing on this exception. On March 30,1982, the trial court signed the following order.

“The exception to the jurisdiction was maintained and the suit was dismissed at the cost of plaintiff on June 24, 1981. It was impermissible to file the petition for breach of contract under this same docket.
Accordingly, the motion and order for trial setting will be denied.
Issued and signed at Leesville, Louisiana, this 30th of March, 1982.”

Nolen appeals from this adverse ruling.

We note that the judgment being appealed is not a final judgment. LSA-C. C.P. Article 1841. The judgment denying Nolen’s motion to fix a trial date for the declinatory exception is an interlocutory judgment. LSA-C.C.P. Article 1841. An appeal may be taken from an interlocutory judgment only when it is made to appear that it may cause irreparable injury. LSA-C.C.P. Article 2083; Sonnier v. Gray Tool Co., 359 So.2d 1111 (La.App. 3rd Cir.1978) writ denied, 362 So.2d 800 (La.1978).

The trial court’s refusal to. set a trial date on the declinatory exception stems from its refusal to recognize a new petition for breach of contract filed under the same docket in which his suit had been dismissed. In effect, Nolen filed an amending petition to a suit that had already been dismissed. The trial court correctly refused to hear the exception in this instance. Nolen’s remedy is the filing of a new suit not the filing of a new petition in a suit that has been dismissed.

Since Nolen has the remedy available of filing another suit and proceeding with his case, no irreparable injury can be discerned resulting from the interlocutory action of the trial court. Therefore, since irreparable injury has not been shown this appeal is not properly before us. We thereby dismiss Nolen’s appeal for lack of jurisdiction. LSA-C.C.P. Article 2162.

For the foregoing reasons, Arvil Nolen’s appeal is dismissed at his cost.

APPEAL DISMISSED.


text:
    LOUISIANA POWER & LIGHT COMPANY, Plaintiff-Appellant, v. Allen Ray HOLMES, et ux., Defendants-Appellees.
    No. 82-297.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Writ Denied Jan. 10, 1983.

      Theus, Grisham, Davis & Leigh, Robert Lee Curry, III, Monroe, for plaintiff-appellant.
    Ben C. Bennett, Jr., Marksville, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

The major issue involved herein is to what extent, if any, may a landowner whose property is burdened with a St. Ju-lien servitude in favor of an electric utility company construct buildings or other improvements beneath the company’s power transmission lines.

Louisiana Power and Light Company (plaintiff) sought and obtained a temporary restraining order (TRO) directed to defendants, Allen and Jacqueline Holmes, prohibiting them, or anyone acting in concert with them, from constructing any buildings or improvements beneath plaintiff’s electric lines or on its right-of-way. Plaintiff also sought preliminary and permanent injunctions to the same effect.

Defendants responded by filing a motion to dissolve the TRO, and an answer and reconventional demand denying plaintiff’s right to injunctive relief and seeking to recover damages resulting from the alleged improper issuance of the TRO.

By agreement of the parties, the trial court’s hearing was limited to those matters pertaining to the preliminary and permanent injunctions and the motion to dissolve the TRO.-

Upon conclusion of the hearing, the trial court rendered judgment in favor of defendants and against plaintiff, declaring that the TRO had been wrongfully issued and awarding defendants $850 in attorney’s fees. The trial court further denied plaintiff’s demand for a preliminary and permanent injunction.

Plaintiff appeals from the trial court’s judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff had no servitude on defendants’ land for the purpose of operating and maintaining its electric lines;
(2) Whether the trial court committed manifest error in finding that the construction of the proposed building by defendants would not render defendants’ land unsuitable for the exercise of plaintiff’s servitude;
(3) Whether plaintiff is entitled to in-junctive relief prohibiting defendants from constructing a building beneath its electric lines; and
(4) Whether defendants are entitled to an award for attorney’s fees incurred by them in filing their motion to dissolve the TRO, and if so, is an award of $850 for said attorney’s fees excessive?

PACTS

On August 4,1977, defendants purchased a vacant lot in Avoyelles Parish and constructed a home thereon. Plaintiff has electric lines crossing this property which have been in existence since at least 1950. On March 24, 1982, defendants commenced construction of a storeroom-garage (the building) on their property, beneath' plaintiff’s electric lines. One of plaintiff’s employees noticed the construction activity taking place shortly thereafter and immediately reported this to his supervisor. Plaintiff requested that defendants cease construction of the building because of the alleged hazards involved in doing so, and offered to relocate its lines, if defendants would bear the cost of doing so. Defendants refused to bear these costs and informed plaintiff that they would proceed with the construction of the building. It was after these informal negotiations that plaintiff sought injunctive relief.

PLAINTIFF’S ALLEGED SERVITUDE

Plaintiff admits that it has been unable to locate any written and/or recorded instrument whereby it acquired a servitude over defendants’ property. However, it contends that it has acquired such a servitude, as a matter of law, by operation of the St. Julien Doctrine. It argues that the trial court committed manifest error in finding that it had failed to prove that it had acquired a servitude in this manner.

The St. Julien Doctrine was first set forth in St. Julien v. Morgan Louisiana and Texas Railroad Company, 35 La.Ann. 924 (La.1883). Under this doctrine, a public or quasi-public corporation having expropria-tory powers can acquire a servitude over the land of another where the landowner consents or acquiesces in the construction of facilities for a public purpose. The landowner is precluded from reclaiming his property and is limited to an action for compensation for the value of the property taken and damages, both determined as of the date of the taking. Rogers v. Louisiana Power & Light Co., Inc., 391 So.2d 30 (La.App. 3 Cir.1980); Veillon v. Columbia Gulf Transmission Co., 192 So.2d 646 (La.App. 3 Cir.1966), writ denied, 250 La. 256, 195 So.2d 143 (La.1967); A.K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, 117 So.2d 60 (La.1960).

As Judge Culpepper of this Court noted in Rogers v. Louisiana Power & Light Co., Inc., supra, at page 33:

“In Lake, Inc. v. LP&L, 330 So.2d 914 (La.1976), our Supreme Court, disenchanted with this extra-codal establishment of predial servitudes, overruled the St. Julien doctrine insofar as it applied to the acquisition of discontinuous servi-tudes. As in the present case, the Lake decision involved an electric transmission power line which, the Court stated, is a discontinuous apparent servitude. See Nash v. Whitten, 326 So.2d 856 (La.1976).
[5] The district court, in its written opinion, held the St. Julien doctrine inapplicable to the facts of this case in light of the Lake decision. However, in Lake the Supreme Court expressly stated that its ruling was to be applied prospectively only, affecting conduct occurring after the finality of the Lake judgment. Here the transmission line was constructed in the early 1950s. Thus, the present case is clearly unaffected by the Lake decision. Plaintiffs’ claim must be decided under St. Julien.” (Emphasis ours.)

In the action sub judice, as in Rogers, the claims of the parties must be decided under St. Julien as the electric lines were constructed no later than 1950.

The trial court made three findings in reaching its conclusion that plaintiff had failed to prove that it had acquired a servitude over defendants’ land. These findings are:

“.... first of all, plaintiff admits that it has no written easement or written permission from any owner of the subject property to cross the property in question with its power line. Secondly, plaintiff has not proved that it has ever obtained the consent, written or verbal, of any particular owner of the property in question to cross the property with its power line. Thirdly, plaintiff has not proved today that it has acquired a right of way across the property in question under Louisiana law regarding good faith ten year prescription or bad faith thirty year prescription.”

It appears that the trial court either failed to apply the St. Julien Doctrine, or did so erroneously. There is no doubt that plaintiff has expropriatory powers. See LSA-R.S. 19:2(7). There is also no doubt that the electric lines, constructed by plaintiff across defendants’ land, are used for a public purpose. Thus, all that plaintiff had to prove to show the existence of a servitude across defendants’ land was that the owner of the land, at the time the electric lines were constructed, either consented to the construction or acquiesced in it. If the landowner at that time did so, then subsequent owners took the property subject to the servitude, even' if it was unrecorded. See discussion on this point in Rogers v. Louisiana Power & Light Company, Inc., supra; Webster Sand, Gravel & Construction Co. v. Vicksburg, S. & P. Railway Co., 129 La. 1096, 57 So. 529 (1912); Perret v. Louisiana Southern Railway Co., 118 So.2d 510 (La.App.Orl.Cir.1960).

Alton Calhoun, plaintiff’s Division Land Superintendent, testified that the Marks-ville area (where the lines in question are located) has been in his division since 1977. He stated that his office has never received any complaints regarding the location of the electric lines. Kenneth Laborde, a utility man employed by plaintiff, corroborated Calhoun’s testimony. The evidence is un-contradicted that the electric lines have been in their present position since 1950, if not earlier.

We find that plaintiff has proven, by a preponderance of the evidence, that a previous owner of defendants’ land did at least acquiesce in the construction of the electric lines across it. We note that plaintiff attached the affidavit of one Rueben C. Olson to its motion for a new trial filed in the trial court. This affidavit is part of the record before us. In it, Olson stated that he had owned the land in question from 1947 until 1975, and that in or about the year 1950, he consented to the construction of the electric lines so that Carleton Ford, one of the defendants’ grandparents, could obtain electricity. The trial court’s finding, that plaintiff failed to prove that it had acquired a servitude over defendants’ land for the operation and maintenance of its electric lines, is clearly wrong.

EXTENT OF THE SERVITUDE

Plaintiff contends that the construction of the building beneath its electric lines will interfere with its use of the servitude. Further, such construction will create certain hazards presenting a danger to plaintiff’s electric lines, defendants’ building, and to persons who may come into contact with the line while that building is being constructed or who may climb on top of it once construction is completed. Plaintiff argues that the construction of the building will, as a matter of law as well as of fact, constitute interference with and will diminish the rights to which it is entitled by virtue of its servitude.

Defendants, on the other hand, contend that plaintiff has acquired a legal servitude on their land and nothing more. They argue that the extent of plaintiff’s servitude is limited to the air space actually used, and that their only duty is not to deprive plaintiff of access to its electric lines. It is their position that their building, when completed, will not interfere with plaintiff’s use of its servitude.

It is incorrect to classify plaintiff’s servitude as a legal servitude. A legal servitude is a predial servitude, and constitutes a limitation on ownership established by law for the benefit of the general public or for the benefit of particular persons. See LSA-C.C. Article 659. Legal servitudes are charges on an estate, established by law, in favor of another estate. Here, the servitude on defendants’ land has been established by law in favor of a juridical person, 1.e., plaintiff. Thus, it is classified as a limited personal servitude, rather than a legal servitude, and confers in favor of plaintiff a specified use of an estate less than full enjoyment. See LSA-C.C. Article 639; Exposé des Motifs, Title III of Book II of the Louisiana Civil Code.

These servitudes are governed by the provisions of LSA-C.C. Articles 639-645. LSA-C.C. Article 642 provides:

“Art. 642. Extent of the servitude
A right of use includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property unless otherwise stipulated in the title.
(Acts 1976, No. 103, § 1, eff. Jan. 1, 1977.)” (Emphasis ours.)
LSA-C.C. Article 645 provides:
“Art. 645. Regulation of the servitude A right of use is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude.
(Acts 1976, No. 103, § 1, eff. Jan. 1, 1977.)”
LSA-C.C. Article 651 provides:
“Art. 651. Obligations of the owner of the servient estate
The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate.
(Acts 1977, No. 514, § 1, eff. Jan. 1, 1978.)” (Emphasis ours.)

In connection with natural and legal ser-vitudes, the law implies that the owner of the servient estate is charged with the duty to keep his estate fit for the purposes of the servitude. See Wild v. LeBlanc, 191 So.2d 146 (La.App. 3 Cir.1966); Brown v. Blankenship, 28 So.2d 496 (La.App. 2 Cir.1946), writ denied (La.1947); Comment to LSA-C.C. Article 651.

We find that defendants are charged with the duty to keep their estate in suitable condition for the exercise of plaintiff’s servitude. Our finding is based on the provisions of LSA-C.C. Article 642 and, by analogy, LSA-C.C. Article 651 and the above mentioned jurisprudence. Thus, the issue is whether the construction of the building by defendants would constitute a violation of their duty to keep their property fit for the purposes of plaintiff’s servitude.

The evidence shows that the electric lines crossing defendants’ property are distribution lines carrying approximately 8,000 volts of electricity. Dudley J. Bertrand, plaintiff’s Division Engineer for the Northern Division, testified that, based on the specifications for the building as testified to by Allen Holmes and the height of the electric lines over that portion of defendants’ land where the building is to be constructed, there would be approximately nine feet of clearance between the roof of the building and the phase conductor, and six feet of clearance between the roof and the neutral conductor. Bertrand testified that, if defendants’ building were to burn, it could cause the wires to melt, which in turn would disrupt service to other customers served by the electric lines. He further stated that the presence of the building could prevent automatic safety devices from functioning properly, if the wires broke and fell across the building, allowing a wire to remain energized in such a position that persons may come into contact with it or that it might cause fire. He did admit that the construction of this one building might not interfere with plaintiff’s ability to maintain its lines. However, the presence of many buildings under these distribution lines could definitely interfere with plaintiff’s ability to do so.

Clifford Lafleur, a Land and Right-of-Way Manager for CLECO, testified regarding the hazards of constructing a building under an electric line. He stated that all utility companies have become very strict in refusing to allow the construction of buildings beneath their lines. He stated that the greatest danger in allowing such a practice is that people climbing on top of these buildings have a tendency to come into contact with the electric lines, causing them to suffer either serious bodily injury or death. He reiterated Bertrand’s testimony to the effect that a structure burning beneath electric lines can cause serious disruptions in service to other customers served by that line. He was of the definite opinion that buildings beneath an electric line present an obstacle to the maintenance of that line.

We find that defendants’ construction of this building will constitute a violation of their duty to maintain their land in such a manner that it is suitable for purposes of plaintiff’s servitude. The trial court’s finding, that plaintiff failed to prove that the construction of the building would create any hazard or would constitute an obstacle to the maintenance of the electric lines, is clearly wrong.

INJUNCTIVE RELIEF

The trial court denied plaintiff’s request for injunctive relief to protect its possession of the servitude stating that:

“Plaintiff has completely failed to prove any irreparable injury, loss or damage will result from the construction of the proposed garage by defendants herein. Therefore, even if plaintiff had some type of right-of-way or easement which it has not this morning proved, across the property of defendants, plaintiff has not complied with the requirements of law relative to the issuance of an injunction in this case.”

Plaintiff contends that the evidence does show that it will suffer irreparable injury, loss or damage, if it is not granted injunc-tive relief. However, plaintiff also contends that, even if the record fails to show the existence of irreparable injury, loss or damage, it is still entitled to injunctive relief under the provisions of LSA-C.C.P. Articles 3601 and 3663.

LSA-C.C.P. Article 3601 provides, in pertinent part:

“Art. 3601. Injunction, grounds for issuance; preliminary injunction; temporary restraining order
An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; ...” (Emphasis ours.)
LSA-C.C.P. Article 3663 provides:
“Art. 3663. Sequestration; injunctive relief
Sequestration of immovable property of or a real right therein involved in a possessory or petitory action during the pendency thereof is available under the applicable provisions of Chapter 1 of Title I of Book VII.
Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment. Amended by Acts 1981, No. 256, § 1.” (Emphasis ours.)

LSA-C.C.P. Article 3663 provides for in-junctive relief in two separate cases: (1) as an ancillary remedy in a possessory action; and (2) as the relief to be granted in an injunction suit brought to enjoin trespassers and other disturbers, and which is neither a possessory nor a petitory action. See Official Revision Comments to LSA-C.C.P. Articles 3663; Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1 Cir.1980), writ denied, 394 So.2d 615 (La.1980).

Plaintiff contends that its servitude constitutes a real right and that it is entitled to injunctive relief to protect its possession thereof. Plaintiff claims the enjoyment of its real right in defendants’ land, and that it has had possession of this real right for more than a year prior to the time that its possession was disturbed by defendants’ actions in attempting to construct their building. Plaintiff argues that it is entitled to injunctive relief to protect its possession of its real right under the provisions of LSA-C.C.P. Article 3663(2), without making a showing that it will suffer irreparable injury, loss or damage.

Before plaintiff can obtain an injunction under LSA-C.C.P. Article 3663(2), it must have been in possession of the immovable or real right for a year before the disturbance. See Louisiana Irrigation and Mill Co. v. Pousson, 265 So.2d 756 (La.1972).

We have already found that the real right (the servitude) claimed by plaintiff does, indeed, exist in its favor. The evidence clearly shows that plaintiff had possession of this real right for more than a year prior to defendants’ disturbance of that possession, and that it brought this action within a year of said disturbance. It is our opinion that, under these facts and circumstances, plaintiff is entitled to in-junctive relief under the provisions of LSA-C.C.P. Article 3663(2), without a showing of irreparable injury. See Patin v. Richard, 357 So.2d 1285 (La.App. 3 Cir.1978). Unlike most actions for injunctive relief, an action brought under the provisions of LSA-C.C.P. Article 3663 requires no showing of irreparable harm by plaintiff. Ryan v. Pekinto, supra; David v. Dixie Rice Agricultural Corporation, 379 So.2d 62 (La.App. 3 Cir.1979), writ denied, 382 So.2d 166 (La.1980); Patin v. Richard, supra. The trial court’s finding, that plaintiff is not entitled to in-junctive relief, is clearly wrong. We will remand this case to the trial court with instructions that it order the issuance of a permanent injunction in the form set forth in our decree.

Plaintiff contends that the award of $850 by the trial court to defendants for attorney’s fees incurred by them in filing their motion to dissolve the TRO is erroneous, and that, even if proper, the award is excessive. We find that the issues raised by plaintiff on the basis of this contention are moot since we have found that it was entitled to injunctive relief.

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed. Judgment is hereby rendered in favor of plaintiff and against defendants, remanding this case to the trial court with instructions that it order the issuance of a permanent injunction, enjoining and restraining defendants, their agents, servants and employees, successors or assigns, from interfering with plaintiff’s servitude by placing buildings or other improvements beneath its electric lines which would render defendants’ land unsuitable for the exercise of its servitude. Judgment is further rendered in favor of plaintiff and against defendants, dismissing defendants’ reconventional demand.

All costs of this appeal, and in the trial court, are assessed against defendants-ap-pellees.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . Also, by agreement of the parties, the trial court’s judgment specifically reserves defendants’ rights to proceed further on their recon-ventional demand seeking to recover damages resulting from the alleged wrongful issuance of the TRO. Because of our decision herein, defendants’ reconventional demand will be dismissed.

      . It is further explained in the Expose’ des Motifs that: “Rights of use servitudes are real rights that confer on a person limited advantages of use or enjoyment over an immovable belonging to another person. See Yiannopou-los, Personal Servitudes § 123 (1968). They constitute an intermediate category between personal and predial servitudes. Like usufruct, use, and habitation, they are charges on property in favor of a person rather than an estate; like predial servitudes, they are necessarily charges on an immovable belonging to another person and are confined to certain advantages of use or enjoyment.”


author: YELVERTON, Judge.

text:
    Gail Gibbens STICKLEY, Plaintiff-Appellant, v. Foster R. STICKLEY, Jr., Defendant-Appellee.
    No. 82-302.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Gail Gibbens Stickley appeals from a judgment dismissing her suit for separation based on grounds of cruel treatment and from the granting of a judgment of separation in favor of her husband, Foster Stiek-ley, in reconvention, based on grounds of abandonment. We affirm.

The Stickleys were married in 1955. Foster Stickley is a physician and Gail Stickley is an artist and art instructor. They lived in Crowley, Louisiana.

Around August 5, 1981 Mrs. Stickley moved out of the family home. Two days later, August 7, she filed suit for separation based on grounds of cruel treatment.

Sometime shortly after August 10, 1981, Dr. Stickley moved to a small town in Texas.

The day after her husband moved to Texas, Mrs. Stickley moved back into the family home.

On October 6,1981, Dr. Stickley answered and denied his wife’s allegations of cruel treatment and reconvened seeking a separation based upon abandonment. The recon-ventional demand alleged that Mrs. Stickley had refused to move to Texas with her husband in violation of her obligation under La.Civ.Code art. 120 to follow her husband wherever he chose to reside, and that the refusal constituted a legal abandonment of the marriage. Mrs. Stickley answered the reconventional demand alleging that La. Civ.Code art. 120 violates the Louisiana Constitution of 1974 and the United States Constitution.

After trial on the merits the trial court found that Mrs. Stickley had abandoned her husband based on her refusal to follow him to Texas. The trial court overruled the plea of unconstitutionality as to La.Civ. Code art. 120.

The issues presented by this appeal are: 1) whether the trial court erred in dismissing plaintiff’s demands for separation based upon cruelty; and 2) whether the trial court erred in granting the defendant’s reconven-tional demand for separation based upon abandonment.

DISMISSAL OF SEPARATION BASED ON CRUELTY

The marriage had been in trouble for several years. The couple had separated once earlier but resumed living together. After this, according to Mrs. Stickley, the arguments, anger, and violence continued and worsened. It got to the point before the final parting that there was a total lack of communication. Mrs. Stickley stated that the couple had not had sexual relations for weeks prior. to the separation. Her testimony does not disclose any specific acts of cruel treatment on the part of her husband. She never indicated by whose fault the arguments, anger and sexual inattention happened, saying only that these problems described the relationship.

There was no other testimony offered to support the charge of cruel treatment. We agree with the trial judge that this is insufficient evidence to support the granting of a separation from bed and board in favor of the wife on the grounds of cruelty. See Mahmud v. Mahmud, 384 So.2d 823 (La.App. 4th Cir.1980). We accordingly find that the trial court correctly dismissed the demands of Gail Stickley.

PROOF OF ABANDONMENT

The wife argues that the trial court erred in finding she had abandoned her husband. She contends that the obligation of the wife to follow her husband under La.Civ.Code art. 120 cannot be utilized as a basis for granting a separation on the grounds of abandonment because that article violates the Equal Protection Clause of the United States Constitution and Article 1, § 3 of the Louisiana Constitution of 1974.

A plea of unconstitutionality should not be considered unless necessary to the disposition of the case. Benson & Gold Chevrolet, Inc. v. Louisiana Motor Vehicle Commission, 403 So.2d 13 (La.1981); and Collins v. Division of Foster Care, Etc., 377 So.2d 1266 (La.App. 4th Cir.1979).

We find that the trial court need not have considered the application of La.Civ. Code art. 120 in determining whether Mrs. Stickley abandoned her husband. The facts of this case do not present the simple situation of a husband leaving his wife to establish a new marital domicile and the wife refusing to follow as contemplated by Civ. Code art. 120. Here, Mrs. Stickley withdrew from the family home prior to the departure of her husband to Texas. She did so for the express purpose of separating from him and to enable her to file suit. On these facts the application of La.Civ.Code art. 143, and not article 120, is appropriate to the determination of the case.

The elements of proof of abandonment under La.Civ.Code art. 143 require a showing of (1) withdrawal from the common dwelling (2) absence of lawful cause for withdrawal, and (3) refusal of the spouse who withdrew to return to live with the other. Civ.Code art. 143; and Mahmud v. Mahmud, supra.

Mrs. Stickley withdrew from the family home around August 5,1981. A few days later Dr. Stickley moved to Stephen-ville, Texas to establish a medical practice there which would be less stressful than his practice in Crowley. He testified that he invited his wife many times to reside with him in Texas but that she refused. This testimony was corroborated by the couple’s daughter and the stipulated testimony of one of their sons. The plaintiff admitted that her husband told her she could go live with him in Texas. She never returned to live with him. Thus the first and third elements of proof of abandonment exist because Mrs. Stickley withdrew from the common dwelling and refused to return to live with her husband.

The remaining element of proof is whether Mrs. Stickley left without lawful cause. As the court said in Levine v. Levine, 373 So.2d 1380 (La.App. 4th Cir.1979), the “... ‘lawful cause’ necessary to justify a spouse’s leaving the matrimonial domicile need not be such as to constitute lawful grounds for separation”. In that case the facts presented to show lawful cause were that the couple did not have sexual relations prior to the separation, and that the husband had a weight problem and an explosive temper. The trial court found that these facts did not amount to lawful cause for the wife’s withdrawal. Finding no manifest error in this factual determination, the appellate court affirmed.

In the present case Mrs. Stickley testified that the couple argued and had a total lack of communication and that they had not had sexual relations for several weeks before she left the home. It is also obvious from the record that Mrs. Stickley did not want to move to Texas. The trial court in determining that Mrs. Stickley had abandoned her husband, even under the rationale of Civ.Code art. 120, necessarily found that Mrs. Stickley lacked lawful cause in refusing to follow her husband. Considering the similar reasons for the wife refusing to return to her husband in Levine, supra, and the result in that case, we cannot state that the trial court’s finding that Mrs. Stickley lacked lawful cause for leaving was clearly wrong.

For the reasons assigned the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . The date he moved to Texas is uncertain but he was still in Crowley on August 10 as the record reveals personal service of a restraining order on him on that date.


text:
    Felton HALFORD, Plaintiff-Appellant, v. Peggy DUGAS, et al., Defendants-Appellees.
    No. 82-304.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Roy, Forrest & Lopresto, Alex Lopresto, III, New Beria, Davidson, Meaux, Sonnier, McElligott, Richard C. Meaux, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   LABORDE, Judge.

Plaintiff, Felton Halford, appeals an adverse ruling of the lower court on a peremptory exception of res judicata. The lower court sustained the exception filed by defendant, Bernard Flynn and dismissed all claims by Halford against Flynn. We affirm. The sole issue on appeal is whether the trial court properly sustained the peremptory exception of res judicata.

The record reveals that on April 11,1979, Felton Halford was involved in an automobile accident. As a result of this accident, Halford filed suit on September 14, 1979, naming Peggy Dugas and USAA Casualty Insurance Company as defendants therein. On April 11, 1980, Halford filed a Supplemental and Amending Petition naming Bernard Flynn and State Boat Company as additional defendants. On May 12, 1980, a “Judgment of Dismissal” was signed by the trial judge. This Judgment of Dismissal was signed by counsel for plaintiff and by counsel for the defendants. It purports to be “On motion of all parties to this action ... ”. It states that all issues have been compromised and it orders an unqualified dismissal of Halford’s suit with full prejudice to all his rights. After the judgment of dismissal, Halford attempted to pursue his claim against Flynn. Flynn filed a peremptory exception of res judicata which was sustained by the trial court.

Halford asserts that the judgment of dismissal with full prejudice was not intended to release Flynn, but was only intended to be a release of defendants Peggy Dugas and USAA Casualty Insurance Company with whom Halford had reached a compromise. This argument is made despite the fact that the judgment of dismissal contained an unqualified dismissal of all claims of Halford and despite the fact that the judgment states that it is on motion of “all” parties to the action of which Flynn was included.

It is well established that parties may enter into transactions or compromises which settle litigation by mutual consent and these transactions have effect equal to that of the thing adjudged. LSA-C.C. Articles 3071, 3078; Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir.1975).

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties and they may not be attacked for an error of law or lesion but may be rescinded for: (1) error in the person or on the matter in dispute; (2) fraud, or (3) violence. LSA-C.C. Article 3073 and 3079; Matthew v. Melton Truck Lines, Inc., supra.

A reading of the judgment shows that the parties contemplated a complete bar to any further action by the parties. Halford has neither alleged or established error in any regard nor has he alleged or shown fraud or violence.

We conclude that the unconditional judgment of dismissal with full prejudice bars Halford from pursuing his claim against Flynn.

The judgment of the lower court sustaining the peremptory exception of res judica-ta is affirmed and all costs are to be assessed to plaintiff, Felton Halford.

AFFIRMED.


text:
    Maude E. FONTENOT, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 82-306.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Kramer & Hammill, Bernard Kramer, Alexandria, for plaintiff-appellant.
    Trimble, Randow, Percy, Smith, Wilson & Foote, James Michael Percy, Alexandria, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Maude E. Fontenot appeals the judgment dismissing her workers’ compensation claim on an exception of prescription filed by her employer, South Central Bell Telephone Company. We affirm.

Plaintiff has been employed by South Central Bell since 1968. On February 20, 1979, while training for a new position as installer repair technician, she fell from a telephone pole from a height of six feet, striking her head and suffering temporary unconsciousness. No untoward results were detected on medical examination and she returned to work immediately.

Nothing happened until late 1980 when she began to experience occasional strange “feelings” which lasted but a few seconds then disappeared. She did not see a doctor and continued normal living and working routines. On May 12, 1981 while at home she had a seizure and was hospitalized. She remained off work until August 1981, receiving sick leave benefits throughout this time.

The undisputed medical testimony of two neurosurgeons who saw and treated her following the May Í2, 1981 incident was that on that date she suffered a grand mal seizure. There being no prior medical history of epilepsy and considering her age of 32, these doctors felt the February 20, 1979, accident was the cause of her condition. They advised that she do no work that might require climbing.

On August 5, 1981, when plaintiff returned to work she was assigned to the job of customer clerk. Her new pay rate was less than what it had been three months earlier but more than what it was on the date of her accident two and one-half years earlier.

Suit was filed August 28, 1981, two and one-half years after the accident.

There are three prescriptive periods provided by LSA-R.S. 23:1209 applicable to workers’ compensation claims. They are: (a) one year from the date of the accident, or (b) one year after the last payment of compensation, except in cases of partial disability, when the period is three years after the last payment of compensation, or (c) one year from the time the “injury develops” if the injury “does not result at the time of, or develop immediately after the accident”, but in no event more than two years after the accident.

Although plaintiff filed suit within one year of the development of the injury, the injury did not develop until over two years after the accident. To avoid prescription, therefore, plaintiff was required to show that the two year period was interrupted or that the three year period for cases of partial disability was available to her.

Plaintiff urges that the partial disability provision and its limitation of three years is available to her for two reasons: (1) she was partially disabled and the three year prescriptive period for partial disability, as the latest expression of the Legislative will, controls over the two year period in the case of a conflict, and (2) prescription has been interrupted because of payments she has received since the injury.

We agree that the three year period is controlling in a case of conflict. Miller v. Belden Corporation, 386 So.2d 974 (La.App. 3rd Cir.1980). However, there is no conflict here because no weekly compensation benefits were ever paid plaintiff. The partially disabled claimant is granted three years for filing suit only when compensation payments have been made then discontinued. The three year period is counted from the date of the last payment of compensation. When no compensation benefits have been made the three year period never comes into operation. In these circumstances the longest prescription that can be applicable for developing injuries is the two year period.

The plaintiff urges us to hold that medical payments and sick leave benefits constitute “payments” sufficient to interrupt the prescription provided by Section 1209. It is now well settled that only weekly compensation payments will interrupt prescription. Lester v. Rebel Crane and Service Co., 393 So.2d 674 (La.1981); Malone and Johnson, Workers’ Compensation Law and Practice, 2d Ed., 1980, § 384, page 241. Plaintiff did not allege or prove that weekly compensation payments had been paid. Plaintiff suggested only that the defendant had made medical payments to Mrs. Fontenot. There was no evidence of medical payments but, even so, the payment of medical expenses does not interrupt the running of prescription. LSA-R.S. 23:1204; Comeaux v. Delcambre Seafood Market, 346 So.2d 1277 (La.App. 3rd Cir.1977). The only evidence of payments of any kind are three South Central Bell forms which indicate that sick leave benefits were provided to plaintiff. In Bell v. Gulf Insurance Co., 313 So.2d 277 (La.App. 3rd Cir.1975) this court held that sick leave payments do not interrupt prescription. See also Rattliff v. Diamond Crystal Salt Co., 365 So.2d 543 (La.App. 3rd Cir.1978) involving facts very similar to the present case.

There is no error in the trial court determination that plaintiff’s claim has prescribed. The judgment is affirmed at plaintiff’s costs.

AFFIRMED.

      . “§ 1209. Prescription
      “In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”


text:
    A.V. SMITH CONSTRUCTION CO., INC., Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, et al., Defendants-Appellees.
    No. 82-307.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Gus Voltz, Jr., Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

This is an appeal from the dismissal of a suit on an exception of no cause of action and a motion for summary judgment. We reverse and remand.

A.V. Smith Construction Co., Inc. (Smith) had a contract with the Rapides Parish School Board to do certain construction work at Tioga Junior High School. The contract included the demolition of two buildings. Smith subcontracted the demolition to Lando Patton Construction Company (Lando Patton). On June 12,1980 a fire occurred in one of the buildings being demolished. Before it was brought under control the fire spread to nearby school buildings which were not involved in the construction work. Smith repaired this damage so that school could open on time.

Smith then sued Lando Patton, his demolition subcontractor, alleging that it was the latter’s negligence that caused the fire. Smith sought recovery from Lando Patton of $18,033.75, the value of the repairs Smith had made to the damaged buildings. Alternatively, Smith sued the School Board for payment.

An exception of no cause of action as well as a motion for summary judgment were filed by Lando Patton. The exception was sustained and summary judgment was granted, and Smith’s suit against Lando Patton was dismissed. This appeal followed.

The dismissal of the action was apparently done in reliance upon Forcum-James Co., Inc. v. Duke Transportation Company, 231 La. 953, 93 So.2d 228 (1957). That case stands for the proposition that there can be no recovery for the indirect damages resulting from negligent interference with contractual obligations.

The trial court gave no written reasons for judgment. However, it is apparent from a colloquy in the record between the court and counsel that Forcum-James was the decisive principal. To reach these results (no cause of action based on the pleadings and summary judgment for defendant based largely on the deposition of A.V. Smith), the trial court must have interpreted the record to mean that Smith under his contract with the School Board was obliged contractually to repair the damage and therefore, even if Lando Patton was negligent, Smith had no action against Lando Patton for negligent interference with the supposed contract between Smith and the School Board.

Smith’s predicament may be summed up as follows: He subcontracted the demolition work to Lando Patton; the subcontractor’s negligence caused damage to buildings outside the scope of Smith’s repair contract; at the insistence of the School Board and to enable school to open on time, Smith made the repairs, not being sure he owed it but confident in the expectation somebody’s insurance coverage would reimburse him; that expectation was not forthcoming; the School Board, having been paid, has no further interest in the matter; Smith does not have a conventional subrogation from the School Board; Lando Patton denies liability, first on the principle of Forcum-James, and second on the theory that Smith is not legally subrogated to the School Board’s rights under La.Civ.Code art. 2161.

In subscribing to these results the trial court misinterpreted the petition (and the deposition as well). Neither the pleadings nor the deposition indicate that Smith was contractually responsible to the School Board to repair the damage. The pleadings and the deposition can be interpreted, at most, to mean only that Smith may have at one time thought he was responsible. His petition presently seeking recovery from Lando Patton and alternatively from the School Board rather clearly positions him as one who did not owe an obligation but paid another’s debt by mistake.

This interpretation of the pleadings means that the Forcum-James principal does not preclude Smith’s right of action against Lando Patton.

It is not even suggested that Smith owed the debt of Lando Patton on some vicarious theory of liability.

We believe that Smith’s petition has stated a cause of action against Lando Patton under La.Civ.Code art. 2310, which reads:

“Art. 2310. He who, through mistake has paid the debt of another to whom he believed himself indebted, has a claim to restitution from the creditor.
“This right ceases, if, in consequence of the payment, the creditor has destroyed or parted with his title; but the recourse still remains to the person paying against the true debtor.”

The second paragraph of this article recognizes a quasi contract between the person who paid by mistake and the true debtor, provided the creditor who received payment has destroyed or parted with his title. The creditor (School Board) in this case having been paid, may have no further interest in the matter, and it is possible that no suit has been filed by the School Board against Lando Patton (there is none in this record). If that is the case, the claim of the creditor against the true debtor may have prescribed. Planiol suggests that a “destroyed title” includes a claim lost by prescription. See 2 Planiol Civil Law Treatise, Part 1, § 861 at 458 (1959).

Smith has also stated a cause of action for reimbursement of the theory of negotiorum gestio. See La.Civ.Code articles 2299 and 2134; Standard Motor Car Co. v. State Farm Mutual Automobile Insurance Co., 97 So.2d 435 (La.App. 1st Cir.1957), and the French authorities therein discussed.

For these reasons, the judgment appealed from is reversed. The cause is remanded for further proceedings. Costs of appeal are assessed to defendant-appellee Lando Patton.

REVERSED AND REMANDED.

      . In fact, Lando Patton’s brief to us, arguing that Smith was not legally subrogated to the School Board under La.Civ.Code art. 2161(3), which provides that subrogation take place of right “For the benefit of him who, being bound with others, or for others, for the payment of the debt, has an interest in discharging it”, properly points out that Smith as contractor was not liable for the torts of his subcontractor Lando Patton over whom he had no control, citing Trapani v. Parish of Jefferson, 180 So.2d 850 (La.App. 4th Cir.1965).


text:
    Fred VALSIN, et al., Plaintiffs-Appellants, v. Charles BERNARD, et al., Defendants-Appellees.
    No. 82-314.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      McBride & Foret, Norman P. Foret, Lafayette, for plaintiffs-appellants.
    Roy & Hattan, M. Candice Hattan, One-bane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Richard J. Petre, Jr., Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

This is a wrongful death action whereby plaintiffs, Fred and Gloria Valsin, are seeking to recover damages for the wrongful death of their minor daughter, Miranda, who died as a result of a pedestrian-truck accident on April 6, 1978. Named as defendants are Charles Bernard, the driver of the truck, Joseph Romero, Mr. Bernard’s employee who is doing business as G & J Trucking Company, Canal Indemnity Company, the liability insurer of Mr. Bernard, Mr. Romero and G & J Trucking and Bostic Concrete Company who allegedly was involved in a joint venture with G & J Trucking. The matter was tried before a jury which returned an unanimous verdict in favor of defendants specifically finding that Charles Bernard was not guilty of negligence or fault which caused the accident. Pursuant to this verdict, judgment was rendered in favor of defendants on December 22, 1981. Mr. and Mrs. Valsin appealed from this adverse judgment. We affirm.

The main issue presented on appeal is whether the jury was manifestly erroneous in concluding that Charles Bernard was not negligent.

The accident which took the life of seven year old Miranda took place on April 6, 1978, at approximately 6:30 P.M. Defendant, Charles Bernard, was operating an International eighteen-wheeler tractor and trailer owned by defendant Joseph Romero. Mr. Bernard was traveling north on Center Street (Louisiana Highway 14) toward the town of New Iberia. This portion of Center Street is a four laned highway with two lanes of traffic running to the north and two lanes running to the south. Mr. Bernard was operating his vehicle in the right lane (outside lane) of traffic as he passed through the intersection of Center Street and Admiral Doyle. After crossing this intersection Mr. Bernard noticed a man attempting to cross Center Street. The man, later identified as Mr. Valsin, had passed the dividing line of the north/south lanes and was headed for the right lane of the north bound lanes. At this point, Mr.- Bernard “tooted” the horn of the truck to draw Mr. Valsin’s attention to the oncoming truck and in addition Mr. Bernard steered the truck farther to the right. Immediately thereafter, Mr. Bernard observed Miranda darting into the path of the eighteen-wheeler. Mr. Bernard quickly reacted by slamming on his brakes and swerving to the right. Mr. Bernard’s efforts were to no avail for Miranda was struck by the truck and died shortly thereafter at the scene of the accident. Mr. and Mrs. Valsin filed this suit in an attempt to recover damages for Miranda’s death.

At trial, conflicting testimony was heard on how the accident occurred. Mr. Bernard testified that he did not see Miranda until she darted into the path of the truck while Mr. Valsin testified that Miranda had already reached the sidewalk when the truck came upon her.

Mr. and Mrs. Valsin presented expert testimony attempting to establish that Mr. Bernard should have seen Miranda in ample time to avoid hitting her but failed to do so. Defendants attempted to show that Miranda was blocked from view by Mr. Valsin or that she was blocked from view by ears that were stopped in the south bound lane of Center Street.

The jury received and evaluated this and all other testimony and evidence presented at the trial. The trial judge’s instructions to the jury included the applicable Louisiana law regarding pedestrian-motorist accidents as set forth in Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978). After hearing the testimony and after being instructed as to the applicable law, the jury rendered an unanimous verdict finding that Mr. Bernard had not been guilty of negligence or fault that caused the accident.

We note that factual findings of the jury, particularly those based on credibility, should not be reversed on appeal unless manifestly erroneous or clearly wrong. McElroy v. Vest, 407 So.2d 25 (La.App. 3rd Cir.1981), writ denied 412 So.2d 83 (La.1982); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). After reviewing the testimony and evidence contained in the record we are unable to conclude that the jury was erroneous in its decision. The evidence and testimony presented furnished a reasonable factual basis for the verdict that was reached. Therefore, the lower court’s judgment will not be disturbed.

Mr. and Mrs. Valsin also assert that the trial court erred by allowing evidence and by instructing the jury as to the negligence, if any, of Mr. Valsin in the defendant’s third party demand. Outside the presence of the jury the trial court had ruled that evidence as to the negligence of Mr. Valsin was admissible in defendants’ third party demand against Mr. Valsin for contribution, but the evidence as to his negligence was not admissible for any purpose with regard to the principal demand. The jury was asked to return a special verdict in the form of interrogatories. Interrogatory Number One requested a finding as to the negligence vel non of Mr. Bernard, the truck driver. After answering this question in the negative, the jury did not address any of the remaining seven questions, among which was an interrogatory concerning the negligence of Mr. Valsin.

The argument of Mr. and Mrs. Val-sin is that, the jury having been allowed to hear evidence regarding Mr. Valsin’s negligence, and having been instructed as to the allegations of Mr. Valsin’s negligence in the third party demands, this improperly influenced the jury in its determination that the truck driver was not negligent. Our review of the record does not support this argument. While we are not expressing an opinion on the ruling of the trial judge regarding the admissibility of evidence of the father’s negligence, or the adequacy of the jury instructions pertaining thereto, we note that the jury was properly instructed as to the high standard of care governing the conduct of the truck driver in the circumstances. Our review of the facts causes us to conclude that the truck driver could not and did not discover the child’s peril soon enough to avoid the accident. We further conclude the jury based its verdict on the evidence presented regarding the conduct of Mr. Bernard, and, having concluded he was not negligent, it was not necessary to consider the remaining interrogatories.

For the foregoing reasons the judgment of the lower court is affirmed. All costs are to be paid by the plaintiffs-appellants.

AFFIRMED.

      . After plaintiffs rested, Bostic Concrete Company moved for a directed verdict which was sustained by the trial court.


text:
    Ella SMITH, Plaintiff-Appellee, v. Varice SMITH, Jr., Defendant-Appellant.
    No. 82-316.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Ulysses Gene Thibodeaux of Newman, Thibodeaux & Marshall, Lake Charles, for defendant-appellant.
    Nathan A. Cormie, Lake Charles, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Ella Smith brought this rule to increase child support against Varice Smith, Jr., seeking $350.00 per month as support for their minor child, Shantell Marie Smith. The defendant had heretofore been under order of court requiring him to pay $60.00 per month, although at the time of the hearing on January 28, 1982, he was in fact paying $100.00 per month for the support of the child.

At the conclusion of the hearing, the trial judge ordered defendant to pay $250.00 per month for support of the child, and additionally ordered him to pay 50% of all medical, drug, doctor and hospital bills incurred by plaintiff on behalf of the child. From this ruling, defendant has appealed.

The issue presented herein is whether the trial judge abused his wide discretion in ordering an increase in child support and partial payment of medical expenses.

Trial courts are vested with considerable discretion in fixing the amounts which parents should contribute for the support of their children, and the judgment of the trial court in these matters will not be disturbed unless there appears to be an abuse of that discretion. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3 Cir.1980); Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3 Cir.1981).

The law is clear that absent a showing of changed circumstances, an initial award of child support should not be altered. Ducote v. Ducote, 339 So.2d 835 (La.1976). We find, however, that in this ease, the circumstances have indeed changed.

The court order which defendant is presently under, ordering him to pay the sum of $60.00 per month for the support of the child in question, was rendered in October of 1978, almost four years prior to these present proceedings. At the time of the proceedings, defendant was unemployed and was collecting $67.00 per week in unemployment compensation. He is presently employed, and has been so employed for approximately two years, as an insurance salesman, earning almost $19,000.00 per year. Defendant, therefore, is in a much improved financial condition.

Additionally, since the rendition of the 1978 judgment of support, the cost of living has dramatically increased and the ordinary and special needs of the child have likewise increased.

This factor has been compounded by the extraordinary needs of the child. She is, at the present time, twelve years old, and is suffering from several serious medical problems, e.g., a heart problem which will necessitate open heart surgery; a bone disorder requiring the regular attention of a “bone specialist”; Turner’s Syndrome, which will require her to undergo hormone therapy; and, she is presently seeing a psychologist. Mrs. Smith, in her testimony, estimated that the present monthly cost for these professional services and the medication associated therewith totals approximately $175.00 per month.

Mr. William L. Menton, the supervisor of defendant, testified that Smith has insurance through the company with which he is employed that would cover a great deal of the child’s medical expenses. He further testified that should the limits of the insurance coverage ($2,000.00) be exhausted, the company with which they are employed, “picks up the tab irregardless whether it’s a million, two million, three million dollars” (tr., pg. 105), and that they would pick up 100% over the $2,000.00 limit.

Having taken all of the above facts and circumstances into consideration, the learned trial judge, in the exercise of his wide discretion, concluded that the amount of support that the defendant should contribute for the maintenance of his minor daughter should be increased. His increased earning capacity, coupled with his access to insurance benefits provided by his employer, justifies such an increase. Our review of the record discloses no error in this conclusion.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed, at appellant’s costs.

AFFIRMED.