author: SHORTESS, Judge.

text:
    COURTESY FINANCIAL SERVICES, INC. v. John A. HUGHES and Teresa Hughes.
    No. 82 CA 0308.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Robin Poirier, Baton Rouge, for plaintiff-appellant.
    Thomas D. Benoit, Baker, for defendants-appellees.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Courtesy Financial Services, Inc. (plaintiff) filed suit against John A. Hughes and Teresa Hughes (defendants) for $1,025.43, the unpaid balance due on a promissory note executed for the purchase price of a used car. Finding that plaintiff was not a holder in due course, and that defendants established a failure of consideration in that the car was defective, the trial judge dismissed plaintiff’s suit.

On October 13, 1978, defendants purchased a used 1976 Plymouth Fury Station Wagon from Security Motors. Paul A. Crumrin, Jr., handled the transaction both as salesman for Security Motors and as loan officer for plaintiff. One month after the sale, defendants experienced problems with the brakes and replaced them. During the two years that defendants drove the car, numerous other problems arose: the ceiling liner inside the car fell out and emitted a musty smell; the gas tank rusted and leaked; the water pump went out; the radiator overheated; the electrical system shorted and the brake lights ceased to function; the heater, air conditioner and power steering went out, etc. As the various problems arose, defendants attempted to repair the car themselves. However, they finally “gave up the ghost” in June of 1980. Since that time, the car has been sitting in defendants’ front driveway.

Defendants’ last payment was made on July 1, 1980. Payments stopped because breakdowns were causing defendants to be late for work, and because defendants felt that they were “getting further and further in the hole trying to keep the car running.” Prior to July 1, 1980, defendants continued to make payments even though they were both out of work. Defendants paid approximately $2,502.06, the difference between the amount financed ($3,527.49) and the amount sued upon ($1,025.43) before they ceased making payments. When payments were made, defendants informed plaintiff that they were having problems with the car. In fact, defendants asked plaintiff for a loan of $600.00 so they could get repair work done. In response to plaintiff’s suit, defendants raised the affirmative defense of failure of consideration, asserting that the car was defective, rendering it totally unfit for normal use.

Plaintiff says that: (1) the trial judge erred in entering judgment based on the defense of failure of consideration, and (2) the trial judge erred in finding that the plaintiff was not a holder in due course.

In a suit on a promissory note by a payee against the maker, the plaintiff will be given the presumption that the instrument was given for value received unless the maker casts doubt upon the consideration. Once the maker has cast doubt upon the issue of consideration, the burden shifts to the payee to prove consideration by a preponderance of the evidence. Brashears v. Williams, 294 So.2d 246 (La.App. 1st Cir.1974).

Defendants testified as to the various malfunctions in the car and cast doubt on the issue of consideration. Plaintiff did not offer any evidence to rebut the testimony of defendants or to establish that consideration was given. Whether defendants’ testimony alone was sufficient to cast doubt on the issue of consideration was a question of fact which the trial judge, by judging the credibility of the witnesses, was most competent to determine. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The trial judge found that:

“Defendants have presented evidence, largely uncontradicted, of an impressive array of defects and malfunctions for even a two-year old used automobile. This court is persuaded that, taken as a whole, they manifest a failure of consideration.”

We agree with the conclusion of the trial court that a failure of consideration existed.

Although the original payee on the note, plaintiff claims the status of holder in due course, and thus an exemption from the defense of failure of consideration.

“After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.” La.R.S. 10:3-307(3)

Plaintiff says that La.R.S. 10:3-302(2) gives a payee the status of a holder in due course. However, said provision only states that a “payee may be a holder in due course.” La.R.S. 10:3-302(2); (emphasis added). Although a payee may be a holder in due course, said status is not automatic. When the payee deals with the maker through an intermediary (remitter) and does not have notice of defenses, such an isolated payee may take as a holder in due course. In most instances, however, a payee will not be a holder in due course because said payee will usually have notice of defenses and claims by virtue of the fact that he has dealt directly with the maker. In order for a payee to be a holder in due course, all of the basic requirements must be met. A holder in due course is a holder who takes the instrument (1) for value, (2) in good faith, and (3) without notice that the instrument is overdue or has been dishonored or of any defense or claim affecting the instrument. La.R.S. 10:3-302. Thus, a payee who is an immediate party to the transaction is not automatically entitled to holder in due course status.

In this case, Security Motors, the vendor, and plaintiff were owned by the same person and occupied the same building. Paul A. Crumrin, Jr., the branch manager for plaintiff, testified that he handled the sale both as salesman for Security Motors and also as loan officer for plaintiff, as he was employed by both corporations. The trial court correctly found that plaintiff, a payee who was an immediate party to the transaction, was not entitled to holder in due course status. Thus, defendants may properly assert the defense of failure of consideration.

Failure of consideration is a defense to an action by one who does not have the rights of a holder in due course. La.R.S. 10:3-306(c), La.R.S. 10:3-408. Since defendants cast doubt upon the issue of consideration, and plaintiff did not meet its burden of proving consideration by a preponderance of the evidence, the trial judge correctly dismissed plaintiff’s claim. Brashears v. Williams, supra. Because plaintiff is not entitled to the rights of a holder in due course, the personal defense of failure of consideration can be used to defeat plaintiff’s claim. La.R.S. 10:3-306(c); La.R.S. 10:3-408; Fisher v. Childs Inv. Co., Inc., 411 So.2d 1180 (La.App. 4th Cir.1982), writ denied, 416 So.2d 115 (La.1982).

Accordingly, this appeal is affirmed at plaintiff’s costs.

AFFIRMED.

      . When the maker of a negotiable instrument establishes failure of consideration, the burden shifts to the alleged holder in due course to prove that he is a holder in due course before maturity in good faith and for valuable consideration. Equitable Discount Corp. v. Jefferson Television S. & S., 169 So.2d 567 (La.App. 4th Cir.1964); Credit Industrial Co. v. Jewell, 58 So.2d 239 (La.App. 1st Cir.1952).

      . Prior to the enactment in 1975 of Title 10 of the La. Revised Statutes, a payee was not entitled to holder in due course status. La.R.S. 7:52; See Republic Finance of Gramercy, Inc. v. Davis, 289 So.2d 891. (La.App. 4th Cir.1974).

      . Contra, Ford Motor Credit Company v. Williams, 225 So.2d 717 (La.App. 1st Cir.1969). In this case, the plaintiff was not the named payee on the note, but took the note by endorsement. In addition, a sufficient connection between the plaintiff and the vendor was not proven.

      . A Federal Trade Commission regulation requires that notice be given that the holder of a consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller. 16 CFR 433.1, 433.2. However, it is the inclusion of the required language that prevents a subsequent holder from becoming a holder in due course. Capital Bank and Trust Co. v. Lacey, 393 So.2d 668 (La.1980). Even if the present transaction was a consumer credit transaction, plaintiff is not automatically precluded from being a holder in due course because the requisite notice did not appear on the face of the instrument. See also, Jefferson Bank and Trust Co. v. Stamatiou, 384 So.2d 388 (La.1980).

      . See Bartolotta v. Gambino, 78 So.2d 208 (La.App.1955), for the proposition that the buyer can assert the defense of failure of consideration in seller’s action for purchase price and is not required to bring an action to annul the sale on the ground of redhibitory vice.


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    Jacqueline Resnick KEE v. James D. McFARLAND.
    No. 82 CA 0311.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Allen R. Boudreaux, Craig L. Raster, Baton Rouge, for plaintiff-appellant Jacqueline Resnick Kee.
    Jack N. Rogers, Baton Rouge, for defendant-appellee James D. McFarland.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from a judgment rejecting plaintiff’s demand against her former husband for a partition of the community of acquets and gains which formerly existed between them. The trial court found that the parties had entered into a community property settlement during their marriage that was ratified by the parties subsequent to a judgment of separation. We affirm.

The only issue presented on this appeal is whether or not there was a ratification of the community property agreement after a judgment of separation.

The appellant, Jacqueline Resnick Kee, and appellee, James D. McFarland, were married on December 5, 1947. The parties were judicially separated on June 17, 1975, and subsequently divorced on July 20, 1976. On June 5,1978, appellant filed this suit for partition of the community property belonging to the community of acquets and gains previously existing between the parties. In answering this suit, appellee introduced a document entitled “Subject: Payments and Agreement,” dated March 14, 1975, which he contends to have been a settlement of the community.

Appellant contends that this settlement agreement is null and void because it was signed prior to the signing of a judgment of separation between the parties, and that the evidence presented does not establish ratification of the agreement by the parties after the judgment of separation.

At the time the agreement to partition the community property was entered into by the parties, applicable Louisiana law declared such contracts nullities. LSA-C.C. art. 1790, 2446. James v. James, 393 So.2d 162 (La.App.1st Cir.1980); Clay v. Clay, 358 So.2d 649 (La.App.1st Cir.1978). Nevertheless, such an agreement could be expressly or impliedly ratified after the judicial separation or divorce. Clay v. Clay, supra; Smith v. Warmack, 342 So.2d 1210 (La.App.2d Cir.1977); Lewis v. Hagar, 326 So.2d 519 (La.App.3rd Cir.1976).

The ratification of a contract can only be deduced from facts, when those facts evince clearly and unequivocally the intention to ratify. Lacaze v. Kelsoe, 185 So. 676 (La.App.2d Cir.1939); Copeland v. Mickie, 17 La. 286; Rivas’ Heirs v. Bernard, 13 La. 159.

This agreement between appellant and appellee was reaffirmed when Mrs. Kee wrote letters to appellee which specifically referred to the settlement agreement. A letter dated June 14, 1976 stated: “... as stated in our agreement...” and makes reference to “... the cash settlement still owed to me.” A letter dated August 1, 1976 states “I’ve carried my end of the bargain,” and then demands that the appel-lee honor his part of the agreement.

The trial court correctly found that the most plausible interpretation of these statements is that they refer to the March 14, 1975 community property settlement. The unrebutted testimony of the appellee supports this interpretation.

Therefore, up to the time the judgment of separation was signed on June 17, 1975, the parties lacked the legal capacity to bind themselves in the manner which they attempted to do, but thereafter the legal impediment of incapacity was removed and the parties had the right to bind and obligate themselves as any other major. Consequently, the parties had the right to subsequently ratify what they had attempted to do in the community property agreement.

Both parties discharged obligations pursuant to the community property agreement after the judgment of separation. Further, we cannot say that the trial court was manifestly erroneous in its finding that appellant had the agreement prepared, and that both parties, by their actions and statements subsequent to the judgment of separation, confirmed and ratified the agreement in numerous ways.

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

AFFIRMED.

      . LSA-C.C. art. 1790 provided as follows:
      “Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.”
      LSA-C.C. art. 2446 provided as follows:
      “A contract of sale, between husband and wife, can take place only in the three following cases:
      1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”


author: COLE, Judge.

text:
    Ann D. HEARD v. Albert HEARD.
    No. 82 CA 0312.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Joel B. Dickinson, Baton Rouge, for plaintiff-appellant Ann D. Heard.
    A.J. Paul Fredrickson, II, Baton Rouge, for defendant-appellee Albert Heard.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue in this case is whether or not the trial court erred in granting a divorce based on mutual fault.

The procedural history of this case is complex and parts of it are irrelevant. The pertinent procedural aspects are as follows. In July of 1979 plaintiff Ann Heard filed a suit for a separation, based on abandonment. No judgment was rendered. In September of 1979 she amended her petition to sue for a divorce on the basis of adultery. No further action was taken at this time, allegedly because of a reconciliation.

In December of 1980, plaintiff, using the same suit number, filed another petition and alleged she was entitled to a divorce based on the fact she and her husband had lived separate and apart for more than one year. A trial was held and in February of 1981 judgment was rendered in plaintiffs favor. The court granted her alimony and child support.

In March of 1981 defendant filed a motion for a new trial as to the alimony and child support issues, which the court minutes reflect was granted. No further action was taken until some six months later, when in November of 1981 plaintiff filed a supplemental and amending petition, alleging she was entitled to a divorce based on defendant’s adultery. This matter proceeded to trial and in January of 1982 judgment was rendered in favor of plaintiff, based upon the parties’ “mutual fault.” Child support, but not alimony, was awarded.

Plaintiff appealed this judgment, arguing the court erred in finding her at fault and therefore denying her alimony.

We note at the outset the court erred in granting a judgment based on “mutual fault.” The concept of mutual fault is rooted in La.Civ.Code art. 141 which states a judgment of separation “... shall be granted although both spouses are mutually at fault....” However, this mutual fault is not an independent basis for separation (or divorce); rather, the fault contemplated by this article must be fault which is an existing independent ground for separation, such as those found in La.Civ.Code art. 138. Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir.1978). Mutual incompatibility alone is not considered a grounds for separation or divorce. See Dixon, supra.

Having concluded the trial court erred in granting a divorce based on mutual fault, we must consider whether or not there was sufficient evidence for the court to have rendered a judgment based on the adultery charge. In oral reasons, the court stated Mrs. Heard had not sufficiently proved adultery. The only evidence concerning adultery was Mr. Heard’s admission he was in fact living with another woman. An admission of adultery, without other evidence, is insufficient proof upon which to dissolve a marriage. Ogea v. Ogea, 378 So.2d 984 (La.App. 3d Cir.1979), writ refused 1980. Mere uncorroborated testimony of one spouse, whether denied or admitted by the other spouse, does not constitute a preponderance of the evidence required to justify a judgment of separation or divorce. Ellois v. Ellois, 145 So.2d 123 (La.App. 4th Cir.1962). Therefore, we agree the proof was insufficient. Since there are no such grounds as “mutual fault” and since the evidence of adultery was insufficient, we must reverse the judgment of the trial court.

Plaintiff contends since there is no judgment in the record showing the granting of a new trial, but only a minute entry to that effect, the judgment rendered by the court on February 6, 1981, is still viable. (That judgment granted plaintiff a divorce based on living apart, and alimony.) We disagree. We note the record in this case is in an utter state of confusion and we have attempted to understand the proceedings as best as possible. It is true there is no signed judgment granting the motion for the new trial, nor are there any proceedings showing a “new trial” (within the meaning of Code of Civ.P. art. 1971, et seq.) was actually conducted. We have only one trial and judgment in February of 1981, the minute entry showing the granting of a new trial and then the next proceeding is a hearing on a rule for alimony arrearages which was on January 7 of 1982.

For reasons unknown to us, the new trial was apparently never pursued. However, the record does indicate Mrs. Heard amended her petition in November of 1981, seeking a divorce based on her husband’s adultery. This matter proceeded to trial on January 22,1982 with full participation by both parties and their counsel. If plaintiff had considered the judgment of February 1981 to have been viable and definitive then she would not have amended her petition and gone to trial in 1982. It simply defies logic for plaintiff to proceed to trial on a matter and then on appeal to argue the trial was not necessary because there was a previous judgment which adjudicated the matter finally. In essence, plaintiff is raising the objection of res judi-cata for the first time on the appellate level. The objection is one raised through the peremptory exception and may be pleaded only prior to submission of the case in the trial court. La.Code Civ.P. arts. 927, 928. Her failure to do so at the trial level means she has waived her right to raise the objection.

Because of the rather unique posture of this case, we remand it to The Family Court for further proceedings. Plaintiff’s 1980 petition was based on living separate and apart. She amended and supplemented the petition in late 1981 to also allege adultery. Therefore, when the case was tried in January of 1982 plaintiff could have gone forth on both grounds. The record shows only the adultery claim was pursued. In light of this, rather than dismissing the case, substantial justice would be done by remanding the case to The Family Court for the purpose of admitting evidence concerning the claim of living separate and apart. In addition, we find the record to be incomplete as to the issue of Mrs. Heard’s fault. We, therefore, also remand for evidence as to fault.

For these reasons the judgment of The Family Court is reversed; the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are to be paid by appellant, Ann Heard.

REVERSED AND REMANDED.

      . The transcript of this trial is not a part of the record.

      . Counsel for plaintiff attempted to offer the testimony of Reverend Peter Bell which allegedly would have established Mr. Heard admitted to him he was residing with another woman. The court disallowed the evidence and its proffer due to the “priest-penitent” privilege. We need not decide the privilege issue because such evidence, even if admitted, has no probative value in establishing or corroborating adultery. If Mr. Heard’s admission under oath in court cannot be given effect, then certainly his admission to a third party out of court is of no moment.

      . Judgment on a motion for a new trial is an interlocutory judgment. Only final judgments need be signed. Code of Civ.P. arts. 1841, 1911. See also Code of Civ.P. art. 1914.

      . We cannot determine from the minute entry the issues upon which a new trial was granted and, if less than all issues were involved, whether or not the judgment was to be held In abeyance as to all issues. Code of Civ.P. art. 1971.

      .In a suit for divorce based on living separate and apart wherein a party seeks alimony, fault becomes an issue. Latino v. Latino, 400 So.2d 1152 (La.App. 1st Cir.1981).


text:
    Mayola HERNDON, et al. v. Roy J. NEAL, et al.
    No. 82 CA 0320.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Kenneth W. Manuel, New Orleans, for plaintiffs and appellants.
    John D. Schoonenberg, Houma, for defendant and appellee — Roy J. Neal.
    Jerry H. Schwab, Charley J. Schrader, Jr., Houma, for defendant and appellee— Cajun Welding & Pump Service, Inc.
    Laurence E. Best, Houma, for defendant and appellee-intervenor, Commercial Union Assur. Companies.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issues in this personal injury suit are whether or not defendant Roy I¿eal was in the course and scope of his employment at the time of the accident and whether or not the damages awarded were adequate.

The litigation arose from the following facts. On January 17,1976, a head-on collision occurred on Louisiana Highway 3040 in the Houma tunnel. A 1974 Cadillac driven by Roy Neal crossed the center line and collided with a car driven by Lillie Cox. Plaintiffs, Mayóla Herndon, age 50, and her daughter, Marla Herndon, age 10, were guest passengers in the Cox vehicle. As a result of the accident Mrs. Herndon received many serious injuries including fractures of both legs and multiple fractures of the face. Marla sustained fractures to the left hip, her right leg and her right foot. Both plaintiffs required extensive hospitalization and therapy.

Mrs. Herndon and Marla filed suit against Roy Neal and his employer, Cajun Welding and Pump Service, Inc. Commercial Union Assurance Companies (the insurer of the Cox automobile) intervened for sums expended under its medical payment and uninsured motorist coverage. After a trial on the merits, Cajun Welding was dismissed from the suit and judgment was rendered in favor of plaintiffs and against Roy Neal. Judgment was also rendered in favor of Commercial Union. Plaintiffs have appealed.

Plaintiffs argue the court erred in finding Roy Neal was not engaged in the course and scope of his employment at the time of the accident. We disagree. The record shows clearly Mr. Neal was engaged in a personal mission when the collision occurred. He testified he and his brother were equal shareholders in their incorporated welding business. He reported to the welding shop at approximately 9:00 A.M. Saturday, January 17. He remained there until shortly before noon at which time he closed the shop and left in his personal car. On his way home he stopped at a local lounge to visit a girlfriend and remained there until mid or late afternoon. Immediately after leaving the lounge he was involved in the accident.

Plaintiffs argue even though the shop was closed on the afternoon of the accident, Cajun Welding is liable under the doctrine of respondeat superior because Mr. Neal was “on call” 24 hours a day and was therefore engaged in the course and scope of his employment at the time of the accident. We find absolutely no merit in this argument.

The testimony at trial showed at the time of the accident Cajun Welding was a new business. In order to take advantage of any available work, Roy and his brother, Alvin, readily accepted any call, regardless of the time of day or the day of the week. Alvin testified he received most of the calls and if the job required the presence of two people, he would call Roy to assist him.

We conclude this informal type of “on-call” situation does not mean the employee is within the course and scope of the employment every second of every day. This is particularly true when the individual allegedly “on-call” is socializing in a lounge for several hours immediately prior to the accident. It would be ludicrous to say at the time of this accident Mr. Neal was in any way pursuing his duties as an employee of Cajun Welding. Therefore, we affirm the dismissal of Cajun Welding from the suit.

Plaintiffs argue further the damages awarded them were insufficient. We consider first Marla’s claims. Marla sustained fractures to her left hip, her right lower leg and her right foot. Immediately after the accident, surgery was performed involving an open reduction of the hip fracture, and she was placed in a two-leg body cast that extended from her ribs to her toes. Metal pins were placed in her hip which were removed in a subsequent operation. She remained in the hospital for one month and was unable to walk for approximately six months after the accident. She had to use crutches or a walker in order to walk for the next six months. Dr. Pete Rhymes, an orthopedic surgeon who treated Marla, testified he believes she is likely to develop arthritis in her hip and at least once during her life an artificial hip will have to be inserted. He recommended she do as little walking, standing or climbing as possible so as to avoid any stress to her hip. He predicted she would never be able to run and participate in the activities enjoyed by most girls her age.

We conclude the trial court abused its discretion in awarding only the sum of $45,000 for Marla. She obviously suffered severe pain of an extended duration from the initial injury and surgery. At the time of the trial, five years after the accident, she stated her hip hurts by the end of each day. She testified she feels grossly disfigured by the scar on her hip (measuring 8 inches by 3 inches) and therefore does not dress as her friends do, in shorts or bathing suits. Although a healthy and active child before the accident, Marla must now be a mere spectator as she observes her friends running, dancing, skating and participating in sports. These aspects of her injury are grave in themselves, but the most egregious aspect is that she must anticipate at least one, and probably several, serious operations whereby the natural bone of her hip will be replaced by plastic and steel. Dr. Rhymes testified once the artificial hip is inserted, it would have to be replaced every ten to fifteen years. (For this reason he wanted to delay the initial surgery for as long as possible.) Therefore, depending upon the date of the first operation, Marla could face as many as seven such operations during her lifetime.

As an appellate court, we can raise the award only to the lowest amount which the trial court could have reasonably granted. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), rehearing denied 1977. Because of the young age of the plaintiff, her gross disfigurement, her permanent disabilities and the probability of future pain, suffering, and medical expenses, we feel the lowest amount the trial court could have reasonably granted is $100,000. We therefore amend the award to this amount.

We now consider the adequacy of the $125,000 award granted Mrs. Herndon for her general damages. The evidence showed she too suffered serious and permanent injuries. In addition to both legs being fractured Mrs. Herndon suffered multiple fractures to her facial bones which were so severe she could not breathe on her own. A tracheotomy was performed and a breathing tube remained in place for several weeks, during which time she was fed intravenously. For several months after the accident her jaws were wired shut so the only way she could eat was to use a syringe and inject liquid foods into her mouth through her clenched teeth. She remained in the Terrebonne General Hospital for more than three months and then was transferred to Ochsner Clinic in New Orleans, where she underwent plastic surgery for her face. Testimony at trial indicated her facial features were so altered she looked like a different person after the accident.

When Mrs. Herndon was released from the hospital she was in two long leg casts which she wore until August 1976. She could not walk unassisted until almost a year and a half after the accident. At the time of trial she stated she still endured pain in her lower legs by the end of each day. Her left leg is bowed as a result of the fracture. She testified her ankles were swollen nightly and she found it hard to move around.

Dr. Rhymes testified the accident had caused an osteoporosis condition of the left foot which would become aggravated as the years go by. He recommended she do only the absolute minimum amount of walking and standing and advised her not to climb stairs. He stated Mrs. Herndon suffers a 20% impairment of the lower extremities which equates to a 25% permanent disability-

After reviewing the record, we conclude there was no abuse of discretion by the trial court in awarding Mrs. Herndon $125,000 for her general damages. Therefore we affirm the amount of the judgment as to her.

For these reasons, the judgment is amended in part and as amended, affirmed. That portion rendered in favor of Richard Herndon and Mayóla Herndon, as administrators for the use and benefit of their minor daughter, Marla Faye Herndon, and against the defendant, Roy J. Neal, is amended to increase the sum of $45,000 to the sum of $100,000. All other aspects of the judgment, including the preferential amounts awarded to intervenor, Commercial Union, are affirmed. Costs are to be paid by appellee Roy Neal.

AMENDED IN PART AND AS AMENDED, AFFIRMED.

      . Defendant Roy Neal stipulated as to his liability so the issue was not contested at trial.

      . Mr. Neal testified his reasons for going to the lounge were purely personal: he made no business calls while there nor did he receive any.


author: WATKINS, Judge.

text:
    Wayne E. ROBERTSON v. CHRYSLER CORPORATION, et al.
    No. 82 CA 0329.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    A. Wayne Stewart, Denham Springs, for plaintiff-appellant.
    Nita R. Gorrell, Hammond, for defendant-appellee Parish Motors.
    Richard Creed, Jr., Baton Rouge, for defendant-appellee Chrysler Corp.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action in redhibition filed by the purchaser of a 1979 Dodge Sweptline pickup truck against Chrysler Corporation, the manufacturer, and Parish Motors, Inc., the dealer who sold Robertson the truck. Defendants each filed a peremptory exception of prescription, which the trial court sustained after a combined trial on the exception and on the merits. We affirm.

The truck was purchased by Robertson from Parish Motors, Inc., Hammond, Louisiana, on February 2, 1979. Robertson had many mechanical problems with the truck, beginning long before the 12,000 mile warranty had expired and continuing after expiration of warranty. Before the warranty expired, Robertson on all occasions took the truck to Parish Motors for repairs and thereafter he had the repairs performed by independent repairmen. The last repair made by Parish Motors, the trial court found, was on June 22, 1979. The vehicle was purchased on credit, with a chattel mortgage having been given Chrysler Credit Corporation. It cannot be determined from the record whether Chrysler Credit Corporation is a subsidiary of Chrysler Corporation or an independent entity. In any event, Robertson had his fiancee write a letter to Chrysler Credit Corporation dated December 26, 1979, in which he complained about the mechanical problems which he had had with the truck. The letter contained the following closing paragraph:

“I can no longer afford this pathetic vehicle. It has been returned to the dealership (sic) from whom I purchased it as of November 1979. The dealorship (sic) is: Parish Motors of Hammond, Louisiana. I shall not agree to pay any more towards this piece of junk. You can have it! From what I see and hear, I am not the only consumer dissatisfied with the products of the Chrysler Corporation, especially these later model vehicles.”

The record reveals that Robertson did in fact return the truck to Parish Motors in November of 1979. On January 29, 1980, the truck was seized by the sheriff of Tan-gipahoa Parish under a writ of seizure and sale obtained by Chrysler Credit Corporation. In February of 1980, Parish Motors made repairs on the truck at the request of Chrysler Credit Corporation, to prepare the truck for sale. The truck was subsequently sold.

Robertson did not file the present action in redhibition until January 19, 1981, more than one year after the last repairs were made upon the truck by Parish Motors at Robertson’s instance.

The action in redhibition prescribes in one year from the date of sale under the provisions of LSA-C.C. art. 2534. An exception is made to this general rule if the seller attempts to remedy the defect in the object sold. In such a case, the one-year prescriptive period does not commence to run until all attempts to repair the defect are abandoned by the seller or until the last promise of repair is made by the seller to the buyer. White v. International Harvester Co., Inc., 415 So.2d 658 (La.App. 3d Cir.1982); Insurance Planning Serv. v. Mercedes Benz, 387 So.2d 658 (La.App. 1st Cir.1980); Robertson v. Jimmy Walker Chrysler-Plymouth, 368 So.2d 747 (La.App. 3d Cir.1979), writ denied 371 So.2d 833 & 834 (La.1979).

In the present case the trial court found that Parish Motors made the last repairs on the truck at Robertson’s request on June 22,1969, more than one year before the suit was filed on January 19,1981. We have carefully reviewed the entire record, including the transcript of testimony, and are satisfied the trial court was correct in that factual determination. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). As suit was filed more than one year after the last work was done by Parish Motors at Robertson’s instance, we find, as did the trial court, that prescription has run.

It is true that Parish Motors performed work on the truck in February of 1980. However, this work was done after the truck had been repossessed under a writ of seizure and sale, and was undertaken at the instance of Chrysler Credit Corporation, not that of Robertson. The work was done to prepare the vehicle for sale, not to please Robertson. Parish Motors had made no promise to Robertson concerning repair of the truck after the truck was seized. As the subsequent repairs were not the outgrowth of a commitment by Parish Motors to Robertson, the date of the repairs done by Parish Motors after repossession cannot be considered to constitute the date from which prescription is to be measured. White v. International Harvester Co., Inc., supra. Rather, the last day repairs were made by Parish Motors before repossession, the date of the last such repairs having been June 22, 1979, is the date the running of prescription commenced. Prescription had run before suit was filed on January 19, 1981.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: CARTER, Judge:

text:
    Dorothy Landry RODRIGUE v. Ferdinand P. RODRIGUE.
    No. 82 CA 0331.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      David M. Richard, Thibodaux, for plaintiff-appellee Dorothy Landry Rodrigue.
    Garland R. Rolling, Metairie, for defendant-appellant Ferdinand P. Rodrigue.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a judgment rendered by the trial court in favor of plaintiff, Dorothy Landry Rodrigue, and against defendant, Ferdinand P. Rodrigue, awarding permanent alimony to plaintiff in the amount of $600.00 per month and ordering that Mr. Rodrigue pay the house note on the family residence in the amount of $141.00 per month.

Defendant appeals assigning as error the decision of the trial court finding plaintiff to be free from fault in causing the divorce and thus eligible for permanent alimony under LSA-C.C. art. 160. Defendant further contends that in the event alimony is due, the amount awarded by the trial court is excessive.

On November 6,1980, Mrs. Rodrigue filed a petition for separation on grounds of abandonment against Mr. Rodrigue. On October 20, 1981, Mr. Rodrigue reconvened for divorce on grounds that he and his wife had been living separate and apart in excess of one year. In this reconventional demand, Mr. Rodrigue asserted that Mrs. Ro-drigue had been guilty of acts of cruelty, outrages, and habitual intemperance of such a nature as to constitute fault under LSA-C.C. art. 160 and thereby deny her the right to receive permanent alimony. Mrs. Rodrigue filed an answer to the reconven-tional demand which denied the allegations of fault. On January 25, 1982, a judgment of divorce “a vinculo matrimonii” was rendered between the parties in favor of Mr. Rodrigue and against Mrs. Rodrigue based on living separate and apart in excess of one year. This judgment also found Mrs. Rodrigue to be free of fault and condemned Mr. Rodrigue to pay $600.00 per month as permanent alimony, plus pay $141.00 per month representing the house note on the family residence.

Under LSA-C.C. art. 160, a spouse is entitled to alimony after divorce only when he or she has not been at fault. In Pearce v. Pearce, 348 So.2d 75 (La.1977), the Louisiana Supreme Court set forth the applicable principles for an award of alimony under LSA-C.C. art. 160, as stated at page 77:

“We have held that, under this statute respecting an award of alimony to a wife without ‘fault’, the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir.1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir.1972). We have recognized that a trial court’s findings of fact on the issue of a wife’s ‘fault’ will not be disturbed on appeal unless found to be manifestly erroneous. Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948).

The spouse seeking alimony after divorce has the burden of proving freedom from fault in order to be entitled to such alimony. Lauro v. Lauro, 399 So.2d 1297 (La.App. 4th Cir.1981); Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3d Cir.1981); Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir.1978); Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir.1963).

With respect to the allegations of habitual intemperance on the part of Mrs. Rodrigue as constituting such fault as would support a judgment of separation in favor of Mr. Rodrigue under LSA-C.C. art. 138, we conclude that the record supports the conclusion of the trial judge that Mrs. Rodrigue was free from fault. Both spouses drank during their entire ‘lifetime’ together, and each consented to, participated in, and encouraged the other’s drinking. In Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1979) the court held that a course of conduct approved and consented to by both spouses is not mutual fault.

We also find that the facts and circumstances of this case do not present a sufficient showing of cruel treatment by Mrs. Rodrigue with respect to her contributions to the arguments between the parties. Admittedly there was quarrelling and bickering between the parties, but there is nothing to suggest that it was anything other than such bickering as would ordinarily occur in a marriage. Lauro v. Lauro, supra.

We therefore hold that the trial court was not manifestly erroneous in its finding that Mrs. Rodrigue was free from fault and thus entitled to permanent alimony under LSA-C.C. art. 160.

The often repeated rule in alimony cases is that the trial judge is vested with much discretion in determining an appropriate amount of alimony. Only if the judge has abused his “much discretion” and gone beyond the acceptable range of alimony awards, given the circumstances of the parties, is the award to be adjusted or reversed. Super v. Super, 397 So.2d 1084 (La.App. 4th Cir.1981), writ denied, 399 So.2d 583.

Mr. Rodrigue is an employee of Brown & Root. His gross income for the year of 1980 amounted to over $2500.00 per month. Of this figure, testimony revealed that Mr. Rodrigue’s net income was almost $1500.00 per month. In considering “income” in LSA-C.C. art. 160, the trial judge is allowed to consider both gross income and net income. Super v. Super, supra; Shelton v. Shelton, 395 So.2d 899 (La.App. 2d Cir.1981); Ballard v. Ballard, 367 So.2d 1220 (La.App. 2d Cir.1979). Therefore, the award of $600.00 per month, plus the house note of $141.00 per month to the plaintiff is below the maximum awardable under LSA-C.C. art. 160. The trial judge determined this amount as necessary to provide the plaintiff with food, clothing, and shelter, and we cannot say that this is manifestly erroneous.

In considering whether Mrs. Rodrigue’s ability to work should preclude or lessen her right to alimony, we conclude that due to crippling arthritis from which she has been suffering since 1965, Mrs. Rodrigue’s chances of employment are almost nonexistent. Thus, any argument as to her ability to work as a sitter is without merit. We find no abuse in the trial judge’s discretion.

The judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-C.C. art. 160 provides as follows:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, in-eluding their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

      . LSA-C.C. art. 138 provides as follows:
      “Separation from bed and board may be claimed reciprocally for the following causes:

        1. In case of adultery on the part of the other spouse;
      2. When the other spouse has been convicted of a felony and sentenced to death or to imprisonment at hard labor in the state or federal penitentiary;
      3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable;
      4. Of a public defamation on the part of one of the married persons towards the other;
      5. Of the abandonment of the husband by his wife or the wife by her husband;
      6. Of an attempt of one of the married persons against the life of the other;
      7. When the husband or wife has been charged with a felony, and shall actually have fled from justice, the wife or husband of such fugitive may claim a separation from bed and board, on producing proofs to the judge before whom the action for separation is brought, that such husband or wife has actually been guilty of such felony, and has fled from justice;
      8. On account of the intentional non-support by the husband of his wife who is in destitute or necessitous circumstances, or by the wife of her husband who is in destitute or necessitous circumstances.
      9. When the husband and wife have voluntarily lived separate and apart for one year and no reconciliation has taken place during that time.
      10. When the spouses have lived six months separate and apart, voluntarily and without reconciliation; provided that both spouses shall execute an affidavit attesting to and testifying that they have so lived separate and apart and that there exists irreconcilable differences between the spouses to such a degree and nature as to render their living together insupportable and impossible. In all such cases, the proceedings shall be entitled ‘In the matter of_(petitioner) and his (or her) spouse_


text:
    Clark Joseph DUGAS v. Claudette Ann Domangue DUGAS.
    No. 82 CA 0332.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Robert Barrios, Houma, for plaintiff and appellant.
    Stanwood R. Duval, Jr., Houma, for defendant and appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The main issue presented in this domestic relations case is the meaning of the term “lawful cause” in a suit for abandonment.

The facts are as follows. Plaintiff, Clark Dugas, and defendant, Claudette Do-mangue Dugas, were married in 1956. Six children were born of this marriage. In July of 1981, Mr. Dugas informed Mrs. Du-gas he was moving out as of August 2nd. Although the testimony at trial was conflicting as to his reasons for leaving, Mr. Dugas argues in his brief the main reason he left was because he was allergic to Mrs. Dugas’ cats and she refused to get rid of them. In addition, Mr. Dugas contends the house was so unkempt it was uninhabitable.

Mr. Dugas filed suit for separation based on Mrs. Dugas’ cruel treatment. Mrs. Du-gas answered and reconvened, seeking a separation based on Mr. Dugas’ abandonment. The matter proceeded to trial and after plaintiff put on his evidence concerning the cruel treatment charge, the court granted a directed verdict for defendant. The case proceeded on the reconventional demand and the court rendered judgment in favor of Mrs. Dugas (plaintiff-in-recon-vention) on the abandonment charge. Mr. Dugas has appealed.

Plaintiff-appellant argues the trial court erred in granting the directed verdict and in finding abandonment on his part.

We find no error in the court’s granting the directed verdict. La.Code Civ.P. art. 1810(B) provides a directed verdict may be rendered after the plaintiff presents his evidence if “... upon the facts and law, the plaintiff has shown no right to relief....” The evidence put on by plaintiff consisted only of his own testimony. He stated he and his wife argued frequently and that he was very unhappy about the condition of the house and the presence of many cats. We agree with the trial court this evidence does not establish defendant was guilty of cruel treatment.

Plaintiff argues the court erred in finding he had abandoned his wife. The requirements for proof of abandonment are set forth in Civil Code art. 143. The proof consists of three distinct elements: that the party has withdrawn from the common dwelling, that the party has left without lawful cause, and that the party has constantly refused to return to live with the other.

There is no dispute over the first element: all parties agree Mr. Dugas left the matrimonial domicile on August 2, 1981. The controverted matter is whether he left with or without lawful cause.

The meaning of the phrase “lawful cause” under article 143 has been much disputed among the circuits. The Fourth Circuit has stated unequivocally the lawful cause under article 143 need not be the equivalent of lawful cause necessary to obtain a legal separation under article 138. Mahmud v. Mahmud, 384 So.2d 823 (La.App. 4th Cir.1980); Levine v. Levine, 373 So.2d 1380 (La.App. 4th Cir.1979); Sykes v. Sykes, 321 So.2d 805 (La.App. 4th Cir.1975). In each of these cases the court indicated that such reasons as “irreconcilable differences,” (Mahmud), “incompatibility” (Sykes) and the fact that living together had become “insupportable” (Levine), were sufficient causes for the withdrawing spouse to leave.

This circuit, however, has yet to veer from the more traditional view that a party is not justified in-leaving the matrimonial domicile unless that party has reasons which would amount to grounds for a separation under article 138. Denbo v. Denbo, 345 So.2d 1257 (La.App. 1st Cir.1977). The Second Circuit applies the same rule. Quinn v. Quinn, 412 So.2d 649 (La.App. 2d Cir.1982), writ denied 1982; Loftin v. Loftin, 304 So.2d 869 (La.App. 2d Cir.1974). See also Johnson v. Welsh, 334 So.2d 395 (La.1976) and Berry v. Berry, 310 So.2d 626 (La.1975).

We see no reason to deviate from the rule set down by this circuit. We fear setting a dangerous precedent were we to agree with the Fourth Circuit that a spouse is justified in leaving the matrimonial domicile based on mere incompatibility. Such a standard is susceptible to much subjective interpretation with inevitably inconsistent results. We prefer to adhere to the more objective standard and require the leaving spouse to show the reasons they left were reasons which would give that spouse sufficient grounds for obtaining a separation.

We note here although we agree with the trial court Mr. Dugas failed to prove his main demand for a separation based on cruel treatment, this does not mean he automatically loses on the abandonment charge. Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir.1979). The abandonment claim, as a reconventional demand, must be proved by the party asserting it. The crucial question then, is whether Mrs. Dugas proved Mr. Dugas left the matrimonial domicile without grounds that would have given him a basis for a suit for separation under article 138.

Both parties testified as to their version of the cause of Mr. Dugas’ withdrawal. Mrs. Dugas stated there were problems created by her husband’s mother. She was aware Mr. Dugas did not like the cats but alleged she tried to accommodate him by keeping the cats outside most of the time. She denied having been informed he was leaving because of his allergies to the cats. She stated it was difficult to keep a straight house because eight people lived in the small house containing only three bedrooms and one bath. She insisted he told her the only reason he was leaving was because they were incompatible. She alleged she begged him not to leave up until the day of his actual departure.

On the other hand, Mr. Dugas stated he could not continue to live in the cluttered, filthy conditions. He offered photographs, some taken as many as five years before the trial and some taken only days before he departed. The photographs showed a house in a state of total disarray. He alleged he was also allergic to dirt and found it almost impossible to live in such a dirty house. He claimed he was bothered by numerous roaches and fleas. At one point in his testimony he stated he did not recall if he informed his wife he was leaving because of the allergies and at another point he said he did so inform her. He admitted he made up his mind to leave shortly after getting the results of the allergy tests and therefore was determined to fulfill his commitment to himself and leave upon the appointed date. He testified Mrs. Dugas had asked him not to leave. He also testified as far as he was concerned, the marriage had ended years before and he had remained only for the sake of the children.

After reviewing the record we have reached a conclusion as to why Mr. Dugas left. Although his decision to leave may have been influenced somewhat by the allergy problem and the unkempt condition of the house, we conclude his basic reason for leaving was a general dissatisfaction with his marriage and mutual incompatibility of the parties.

In light of this evidence, we have no difficulty in saying Mr. Dugas did not have “lawful cause” for leaving. Mutual incompatibility or a general dissatisfaction with a relationship is not grounds for one party to obtain a separation from the other.

Appellant contends even if he left the matrimonial domicile without lawful cause, appellee has failed to prove he has constantly refused to return. We disagree. While no direct testimony was taken on this issue, we feel a reasonable inference can be made from the record. Mr. Dugas moved out of the house on August 2, 1981, and filed suit for separation on August 7. The fact he sought a legal separation, in itself, indicates he was not planning to return to the matrimonial domicile. In other words, this was not a case where the abandoning party simply got fed up and impulsively moved out of the house with the idea he would return if the parties later reached an agreement over their differences. Obviously, Mr. Dugas had carefully considered the matter and intended to terminate the marriage. There is no evidence in the record of any significant contact or negotiations between the parties after the initial break-up. Prom these facts we can infer Mr. Dugas remained firm in his conviction to remain away from the matrimonial domicile. See Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980) and Belou v. Belou, 231 So.2d 580 (La.App. 4th Cir.1970), writ refused 1970.

For these reasons, the judgment of the trial court is affirmed. Costs are to be paid by appellant, Clark Dugas.

AFFIRMED.

      . In these cases the issue was whether the plaintiff-wife had established a separate domicile sufficient to allow her to sue in a jurisdiction away from the original matrimonial domicile. The cases note the general rule is a married woman may establish a domicile away from her husband if she is abandoned or if she is justified in leaving her husband because of his misconduct. The court notes such misconduct is substantially equivalent to conduct that would constitute grounds for a separation. Although the issue in these cases is different from the one at hand, the reasoning lends support to the argument “lawful cause” for leaving is the same as “lawful cause” for a separation decree.

      . Civil Code art. 138(10) allows spouses a separation based upon their living separate and apart for six months and filing an affidavit attesting to their “irreconcilable differences.” However, this requires an agreement on the part of both spouses and is not a ground for one spouse obtaining a judgment against another.


author: LOTTINGER, Judge.

text:
    Annette RUFFIN v. TRAPP CHEVROLET INCORPORATED and Bellefonte Insurance Company.
    No. 82 CA 0333.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Lawrence Arcell, New Orleans, for plaintiff and appellant.
    Burt K. Carnahan, Metairie, for defendants and appellees.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for a slip and fall. Plaintiffs, Annette Ruffin and Floyd Ruffin, sued Trapp Chevrolet, Inc. (Trapp) and Bellefonte Insurance Company for injuries Mrs. Ruffin sustained when she fell in Trapp’s showroom at its automobile dealership in Houma. From judgment of the trial court in favor of defendants, dismissing plaintiff’s suit, plaintiffs have appealed.

FACTS

The accident occurred on September 18, 1979. Mrs. Ruffin entered Trapp’s showroom through a metal and glass door on the side of the building. She walked across a commercial-type mat that had been placed at the door, and as she stepped from the mat onto the showroom’s terrazo floor, she fell suddenly, injuring her back.

Mrs. Ruffin’s sister, Hallet Celestine, who was in Trapp’s service department at the time, was called to the showroom. She testified that she did not remember the mat being present, but that she slipped during her first step through the door. Ms. Celes-tine caught her balance and did not fall. She testified also that she subsequently observed a Trapp employee wiping the floor area near the door with a rag or paper towel. Both Mrs. Ruffin and her sister testified that they did not observe any foreign substance on the floor, nor did they examine the floor to find out what caused Mrs. Ruffin’s fall; however, Ms. Celestine testified that the floor felt “slippery” under her feet, and Mrs. Ruffin testified she felt something “like grease” under her feet.

No Trapp employees witnessed Mrs. Ruf-fin’s fall; one, Neil Bordelon, helped Mrs. Ruffin regain her feet. Bordelon testified that he saw no foreign substances on the floor or the mat. Several other present and former employees of Trapp who were in the showroom at the time of the accident testified that they observed no foreign substances on the floor and did not see any person wiping the floor with a rag or paper towel. Nicholas Ledet, general manager and vice-president of Trapp, testified that a janitorial service cleaned the showroom premises six nights per week, and that another company replaced the doormat weekly. Ledet testified that any spills in the showroom during office hours were cleaned by Trapp personnel when they occurred.

TRIAL COURT

The trial court found that Mrs. Ruffin failed to prove the existence of any foreign substance on the floor which caused Mrs. Ruffin’s fall, and accordingly dismissed plaintiff’s suit at their costs.

SPECIFICATIONS OF ERROR

Plaintiffs argue on appeal that the trial court applied the wrong standard as to plaintiff’s burden of proof in a slip and fall case; that plaintiff sustained her burden of proof, shifting to defendant the burden of demonstrating reasonable care; and that res ipsa loquitur should apply to the instant case.

LAW

The Ruffins assert that the plaintiff’s burden in slip and fall cases is twofold; a plaintiff must prove that a hazardous condition existed and that such condition caused the fall and injury, citing Albritton v. J.G. Penney Company, Inc., 385 So.2d 549 (La.App. 3rd Cir.1980), writ den. 393 So.2d 727 (La.1980). Plaintiffs contend that they proved a hazardous condition existed which caused Mrs. Ruffin to fall.

Under Louisiana law, a storekeeper owes an affirmative duty to those who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a safe condition, which includes a duty to make reasonable efforts to keep objects off of the floor which might give rise to a slip and fall. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975). In Kavlich, supra, the Supreme Court held that upon a plaintiff’s showing that there was a foreign substance on the floor which caused the fall and resulting injury, the burden of proof shifts to the defendant to produce evidence which would exculpate itself from the presumption of negligence.

Plaintiffs contend that they are not obliged to prove exactly what substance caused the slip, fall, and injury, citing Al britton, supra, and Hanzo v. Travelers Insurance Company, 357 So.2d 1346 (La.App. 4th Cir.1978). While we do not disagree with this contention, we are of the opinion that plaintiffs still have the burden of proving the existence of some foreign substance on the floor. Under Kavlich and Gonzales, supra, the presumption of defendant’s negligence arises only upon a showing by the plaintiff that there was a foreign substance on the floor and that it caused the fall and injury. Such showing also would be necessary to meet the “hazardous condition” requirement of Albritton, supra, relied upon by plaintiffs.

We note that in Hanzo, supra, while the foreign substance on the floor was not precisely identified, the plaintiff testified that after his fall his hair, clothes, and hands were wet, and the trial court found as fact that the floor was “damp.” In Albritton, the jury found as fact that the plaintiff had slipped on a tire valve stem. Thus, even the cases relied upon by plaintiffs entailed a showing that there was a foreign substance on the floor which caused the fall.

This court in Stillwell v. Winn-Dixie Hill, Inc., 146 So.2d 707 (La.App. 1st Cir.1962) held that in the absence of testimony showing that there was a foreign substance on the floor, there was no basis on which the defendant storeowner could be held negligent. We are of the opinion that such a requirement has not been disposed of by the holdings of the Supreme Court in Kavlich and Gonzales, supra; in fact, such showing is requisite in establishing the presumption of negligence elucidated in those cases.

No witness at trial testified as to seeing any foreign substances on Trapp’s showroom floor. The only circumstantial evidence in this regard was that of plaintiff and her sister, who stated that the floor felt slippery underfoot, and Ms. Celestine testified that she saw someone wiping the floor. All other witnesses, including Mrs. Ruffin, stated that they saw no one wiping the floor; however, even accepting Ms. Celes-tine’s testimony at face value, same is not necessarily probative that there was a foreign substance on the floor. It is equally plausible, for example, that the person whom Ms. Celestine saw wiping the floor was attempting to remove a scuff mark from the terrazo tiles caused by Mrs. Ruf-fin’s fall. Thus, in light of the scant evidence presented, the trial court did not err in holding that plaintiffs failed to prove the presence of a foreign substance on the floor. Inasmuch as no allegation has been made that the floor itself was excessively slippery, and no evidence has been adduced sufficient to prove the presence of a foreign substance thereupon, there is no basis for finding the defendants negligent.

Under these circumstances, the defendant’s negligence cannot possibly be the most plausible explanation of the injury; thus, res ipsa loquitur is inapplicable, see Gonzales and Stillwell, supra.

In light of the above, we expressly pre-termit discussion of exculpatory evidence introduced by the defendants.

Therefore, for the above and foregoing reasons, judgment of the trial court in favor of defendants, dismissing plaintiffs’ suit, is hereby affirmed. All costs, both in this court and in the trial court, are assessed to plaintiffs-appellants, Annette Ruf-fin and Floyd Ruffin.

AFFIRMED.


text:
    Robert KEICH, et al. v. BARKLEY PLACE, INC., et al. Bennie W. ARCHIE, et al. v. BARKLEY PLACE, INC., et al.
    Nos. 82 CA 0335, 82 CA 0336.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Stephen M. Irving, Baton Rouge, for plaintiffs-appellees Robert Keich, et al. and Bennie L. Archie et al.
    Michael H. Rubin, John Dale Powers, Baton Rouge, for defendant-appellant Michael Costanza.
    Stephen R. Wilson, Baton Rouge, for defendant-appellant City of Baton Rouge, Parish of East Baton Rouge.
    Albert Dale Clary, M. O’Neal Walsh, Baton Rouge, for defendant-appellee Wiggins & Associates, Inc.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal by the City of Baton Rouge and the Parish of East Baton Rouge from a trial court judgment which permanently enjoined the City-Parish from “approving any plans and allowing any development of the 146 acres south of Barkley Place Subdivision until adequate drainage is developed from Perkins Road to Ward’s Creek

The plaintiffs in these two consolidated suits are homeowners in a subdivision in East Baton Rouge Parish, Louisiana. The subdivision is located on the south side of Perkins Road, west of Seigen Lane. Defendants are Barkley Place, Inc. (owner and developer of the land), Wiggins and Associates, Inc. (consulting engineers for the design of the subdivision), Michael A. Costan-za (first owner of lot 2), J. & H. Builders, Inc. (first owners of lot 4), and the Department of Public Works for the City and Parish of East Baton Rouge. Plaintiffs sued for various amounts of money for damages, expenses, and for the decrease in the value of their homes and alternatively for return of the purchase price of the homes. The Keiches sought an injunction against the Department of Public Works to restrain the Department from doing or authorizing any action which would increase the frequency or amount of flooding on their property.

Judgment was rendered in favor of the Keiches and against J. & H. Builders, Inc., Barkley Place, Inc., and Wiggins & Associates, Inc. for $2,500.00 and for the Archies in the same amount against Mr. Costanza, Barkley Place, Inc., and Wiggins & Associates, Inc. Plaintiffs were also awarded attorney fees against Barkley Place and Wiggins. Mr. Costanza was allowed indemnification against Barkley Place and Wiggins & Associates. (J. & H. Builders, Inc. did not file a third-party demand seeking indemnification). All third-party demands made by Barkley Place were dismissed. The court further ordered that the City-Parish be permanently enjoined from approving any plans and allowing any development of the 146 acres south of Barkley Place Subdivision until adequate drainage is developed from Perkins Road to Ward’s Creek. The only part of the judgment on appeal is the injunction against the City-Parish.

FACTS

Barkley Place, Inc. began development of Barkley Place Subdivision in 1976. The subdivision, consisting of 148 residential lots, is located on the south side of Perkins Road, west of Siegen Lane, in Baton Rouge, Louisiana. Wiggins & Associates, Inc. was retained as consulting engineers for the design of the subdivision. The preliminary plans submitted by Wiggins to the Department of Public Works showed that the building sites were to be filled to a minimum elevation of 31.5 feet and provided that a 60-inch drainage pipe would be placed under Perkins Road for drainage. These plans were ultimately approved by the Department of Public Works.

On August 26, 1977, Wiggins wrote Mr. Henry K. Schott, subdivision engineer for the Department of Public Works, suggesting that Barkley Place, Inc. be allowed to post a bond to guarantee completion of the subdivision. The letter listed certain aspects of the project that were incomplete. Neither lot elevation nor installation of the 60-inch pipe were included on the list of incomplete items.

Barkley Place, Inc. posted a bond in the amount of $49,375.00 and then sold lot two to the Costanzas and lot' four to J. & H. Builders. J. & H. Builders constructed a house on lot four and sold it to the Keiches on June 28, 1978, for $62,900.00. Mr. Cos-tanza constructed a house on lot two and sold it to the Archies on October 30, 1978, for $66,500.00.

Mr. Costanza testified that the house on lot two had flooded but that he had refurnished it before he sold it to the Archies and had advised them that it had flooded. The Archies denied knowledge of the flood. Mr. Keich testified that he had noticed a mudline on the exterior of the house before he purchased it, but was told the culverts under Perkins Road had stopped up, causing the high water.

Final plats of subdivisions are required to be filed with the Department before developers can sell lots. The Department further requires that lots subject to flooding be shaded on the subdivision plats. The purpose of this requirement is to alert buyers to potential flooding problems. The trial court found that Wiggins & Associates, Inc. and Barkley Place, Inc. purposefully misled prospective purchasers of the lots in question by showing the elevation of the lots to be 31.5 feet and that defendants never intended to fill the lots to these elevations or to install the 60" culvert. Defendants, knowing that the lots ultimately purchased by plaintiffs had not been filled and were thus subject to flooding, failed to shade the lots on the final plat. Because plaintiffs’ lots were not filled, they remain vulnerable to flooding.

Plaintiffs testified that on June 3, 1979, they noticed water rising on their property and upon checking the existing drainage pipes under Perkins Road learned that plywood and other debris had blocked the drainage, thus causing the water to back up on their property. They worked through the night to unblock the pipe and now fear that flooding may occur whenever there is a heavy rain. Plaintiffs further testified that on several other occasions water rose on their property. They often worked for hours unclogging the drain under Perkins Road so that water could flow more feely.

Barkley Place Subdivision is located south of Perkins Road. Drainage in this area runs generally from south to north across Perkins Road to Ward’s Creek. Originally there were two 40" culverts under Perkins Road to facilitate drainage. Since development of the subdivision, a 60" culvert has been constructed by the State of Louisiana.

There are about one-hundred forty-six acres of undeveloped property south of plaintiffs’ homes in the same drainage area. Testimony of various representatives of the Department substantiates plaintiffs’ claims that if considerable additional development is allowed south of Barkley Place Subdivision before adequate drainage to Ward’s Creek is developed, plaintiffs’ property will be more susceptible to flooding. The trial judge permanently enjoined the City-Parish of East Baton Rouge from “approving any plan and allowing any development of the 146 acres south of Barkley Place Subdivision until the City-Parish of East Baton Rouge has adequately developed drainage from Perkins Road to Ward’s Creek...”

A departmental memorandum was prepared on March 20, 1981, by Joseph A. Donohue, drainage engineer, for Henry K. Schott, Civil Engineer, on the subject of “Drainage, Barkley Place Subdivision”. It was made at the request of Robert G. Graves, Director of the Department of Public Works. The memorandum stated that flooding in Barkley Place is a result of the lack of capacity at the culverts under Perkins Road. Surveys showed that five houses flooded in 1978 and that since then three more houses were constructed and will flood if the water rises to 30.4 feet again (the level of inundation reached in the 1978 flood). The study said that based on a 5-year storm, the houses would flood again unless a new culvert of adequate size is constructed at Perkins Road. Mr. Donohue recommended that a 4 barrel, 6 feet by 4 feet concrete box culvert be constructed at Perkins Road. He further recommended that the outfall ditch on the other side of Perkins Road be cleaned before enlarging the culvert at Perkins Road and that a larger culvert be constructed under the railroad (downstream from Perkins Road) to provide for adequate drainage to Ward’s Creek.

Mr. Schott testified that the design requirements for subdivisions in East Baton Rouge Parish are for a 5-year frequency flood. He testified that it is likely that plaintiffs’ homes will flood during a 5-year flood, but he said that if the steps recommended would be taken, that he believed the houses would not flood. He further said that development of other property upstream of plaintiffs’ homes would speed the rate of runoff and increase the burden of flooding on property downstream and make it more likely that plaintiffs’ homes would flood. Mr. Schott testified that the Donohue report was, in his opinion, accurate.

William A. Wintz, Jr., a retired professor at L.S.U., testified as an expert witness for plaintiffs. He is a registered professional engineer in civil engineering and land surveying. Professor Wintz made a visual survey of plaintiffs’ lands. He testified that for plaintiffs’ lots to flood, water has to accumulate on the south side of Perkins Road (plaintiffs’ side). Since the water cannot get under Perkins Road, it rises in a lake behind the lots and rises up and over Perkins Road and as the lots are approximately the same elevation as Perkins Road, the lots will flood when Perkins Road floods. He said that if nothing was done to the existing 60" culvert, the lots will flood again sometime in the future. Professor Wintz had reviewed Mr. Donohue’s memorandum and said that it reflected basically what he believed, that the outfall below Perkins Road would have to be cleaned to lower the flood level in Barkley Place. Other than having plaintiffs build a levee around their homes, he was of the opinion that the only way to protect plaintiffs was for the City-Parish to get the drainage open from Perkins Road north all the way to Ward’s Creek. He felt that though the present 60" culvert might be adequate for just Barkley Place, it may not be enough for new developments. He also testified that in 1978, if there had been a clean, unclogged culvert, plaintiffs’ lots would not have flooded.

Mr. Donohue testified concerning the memorandum he prepared. He was qualified as an expert civil engineer with expertise in drainage engineering. He testified that limited development upstream of Barkley Place would not have much effect on drainage, but that if the whole watershed were developed, there would be more frequent flooding. He said that to the best of his knowledge, no one in the Department of Public Works disagreed with his report. He was of the opinion that under existing conditions in a 5-year storm, water would flood Perkins Road and plaintiffs’ lots. He emphasized that installation of a new culvert before the whole drainage system is cleaned out would probably just move the problem downstream and flood Oakbrook Subdivision or other developments to the north.

Mr. Ray Burgess was Director of the Department of Public Works during the time Barkley Place Subdivision was being built. He testified that the area is a major drainage facility in East Baton Rouge Parish and that the drainage problems downstream of Barkley Place need improving at public expense. He said that the Department required the 60" culvert to be placed there in connection with the development of Barkley Place because the Department felt that this culvert would take care of the contributory amount of drainage generated by Barkley Place that would flow into the canal. He said the Department could not legally have required Barkley Place to do more than supply this one culvert and that if it had required a multi-barrel culvert without improving the outfall drainage downstream from Oakbrook Subdivision (across Perkins from Barkley Place), then Oakbrook would have flooded.

Mr. Burgess testified that by developing land upstream (south) from this culvert, the flow through the culvert is accelerated. He also said that the Department could decline to approve emptying additional water in the Barkley Place drainage system until and unless improvements were made to accommodate the additional drainage that was being placed in the system.

Mr. Charles Hair was accepted as a fact witness and as an expert witness in civil engineering particularly with regard to drainage calculations. He had been Chief Engineer of the Department for 13 years. He said that he became concerned about drainage problems in Barkley Place because the culverts under Perkins Road would not be adequate. He said to correct this, he required a 60" culvert, but that it was not added until much later and at state expense.

He testified in regard to the memorandum prepared by him on October 13, 1977 and addressed to Mr. Ray Burgess; The memorandum concerned Oak Hills Subdivision which is located south of Barkley Place and was developed soon after Barkley Place. This memorandum stated that even with the new 60" culvert, the water from Oak Hills Place would cause Perkins Road to flood. The memorandum also addressed the problems with Oakbrook Subdivision (across Perkins, north of Barkley Place) and the area downstream across the railroad, and to Ward’s Creek. Nothing was ever done pursuant to his memorandum. He testified that the recommendations in Mr. Donohue’s memorandum were basically the same as his. He said he though the plaintiffs’ homes would never be completely secure because they are below the elevation of Perkins Road, but that the frequency of flooding would be less with improvements. If the property upstream of Barkley Place continued to be developed, however, without making any improvements, the frequency of flooding will increase.

Plaintiffs argue that the testimony is unequivocal that their homes will flood with future development and that the trial judge has done nothing more than require the City-Parish to do what every one of its experts has recommended to prevent the flooding of their homes.

The Department argues that plaintiffs’ homes have never flooded and that the testimony at trial concerning possible future flooding was of a speculative and theoretical nature. The Department also argues that plaintiffs have an adequate remedy for damages under Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (La.1971), in the event they do suffer damages from flooding caused by the Department’s actions. Primarily the Department contends that the injunctive relief granted by the trial court was an unnecessary use of an extraordinary remedy that could not be justified under the facts of this case.

It is true that plaintiffs’ homes have not flooded since plaintiffs have purchased them, but they did flood once before they were purchased by plaintiffs. On several occasions the water had come up in plaintiffs’ yards, and on those occasions plaintiffs and others worked many hours to unclog the culverts to facilitate the flow of water under Perkins Road. The sum of the testimony of the representatives from the Department is that any significant development of land upstream and south of Barkley Place before certain improvements are made in the drainage area will cause Perkins Road to flood more frequently and cause plaintiffs’ homes to flood. This testimony was given by experts and was based on sound engineering calculations; the evaluations and conclusions are not just theoretical speculations.

However, the writ of injunction is a harsh, drastic, and extraordinary remedy and should issue only where the party seeking it is threatened with irreparable loss or injury without adequate remedy at law. Greenberg v. De Salvo, 254 La. 1019, 229 So.2d 83 (La.1969). Irreparable injury for which an injunction will lie is that for which an injured party cannot be compensated adequately in money damages, or for which damages cannot be measured by a pecuniary standard. Wood v. Gibson Construction Company, Inc., 313 So.2d 898 (La.App.2d Cir.1975), writ refused, 320 So.2d 549. In the Wood case, a homeowner sued for an injunction to compel a subdivision developer to prevent alleged unnatural drainage onto the homeowner’s property. The issue in Wood, as in the instant case, was whether the homeowner had shown he would suffer irreparable injury, loss, or damage in the absence of injunctive relief. The court in Wood found that the threat of flooding existed, but that it had been reduced by defendant’s efforts and would further be reduced by the addition of shrubbery in defendant’s subdivision. Further, the flooding plaintiff had experienced had occurred during abnormally heavy rainfall.

We also note that in Wood a major cause of the flooding on plaintiff’s lot was the failure of the developer of the subdivision where Wood’s home was located, to install a subsurface drainage system. In the instant case, it is undisputed that if Wiggins had complied with the plans submitted to the Department to increase the elevation of the lots to 31.5 feet from approximately 30 feet, plaintiffs’ homes would not flood. The court concluded in Wood that the record did not support a finding that if flooding did occur, the damage would be so extensive that it could not be adequately measured and compensated by a money award if it were determined that the defendant was legally responsible.

In the instant case, the flooding that has occurred has not been so extensive as to cause irreparable injury. Though the threat of flooding undoubtedly causes plaintiffs worry and inconvenience, these factors are not enough to impose such a drastic sanction on the City-Parish. Testimony reveals that a limited amount of additional development should not further endanger plaintiffs. The Department is fully aware of the need for improvements in this drainage area. The Department knows what effect considerable development of the acreage south of plaintiffs’ homes will have.

In the case of Eschete v. City of New Orleans, supra, plaintiffs filed suit for damages to their home and for personal injuries caused by the flooding of the Pines Village Subdivision. Their petition alleged that the city had known of the “dangerous drainage situation” in the subdivision for years and that knowing in advance that the authorization of new subdivisions in the area would cause flooding, the city “deliberately and therefore maliciously” authorized new subdivisions which caused flooding during “any ordinary heavy rainfall.” The lower court maintained the city’s exception of no cause of action, but the Supreme Court reversed, finding that plaintiffs’ petition contained all of the elements of a cause of action under LSA-C.C. art. 2315. If the Department performs such acts in the future, i.e. approving additional subdivision development south of plaintiffs’ property that damage plaintiffs, then plaintiffs have an adequate remedy under Eschete, supra.

For the above reasons, the judgment of the trial court is reversed at appellee’s costs.

REVERSED.

      . Areas referred to as upstream are south of Barkley Place Subdivision and areas referred to as downstream are north of Barkley Place Subdivision.


author: EDWARDS, Judge.

text:
    Rebecca Bennett PITTMAN v. Byron Lee GEORGE.
    No. 82-CA-0337.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Patrick W. Pendley, Plaquemine, for plaintiff-appellant Rebecca Bennett Pittman.
    James Farrier, Baton Rouge, for defendant-appellee Byron Lee George.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Rebecca Pittman appeals and seeks an increase in the award of child support ar-rearages rendered against Byron George. We affirm.

BACKGROUND FACTS

Ms. Pittman filed this suit on January 21, 1981, for child support arrearages accruing under a March 19, 1975 Mississippi divorce judgment awarding her custody of the minor child and granting her $35.00 per week child support against Mr. George, the father. By stipulation of the parties, Ms. Pittman’s claim was limited to the three-year period prior to suit (January 21,1978— January 21,1981), admitting that any other arrearages had prescribed. After submission of the case upon joint stipulation, the Family Court for East Baton Rouge Parish, Judge E. Donald Moseley presiding, awarded Ms. Pittman the sum of $805.00, representing child support arrearages for the period of January 21,1978 to June 29,1978. The court held that on the latter date Ms. Pittman’s right to child support was terminated by an ex parte order of Judge Leon Ford of the Twenty-First Judicial District Court, Parish of Livingston. This order granted the temporary custody of the minor child to Mr. George pending a hearing set for July 18, 1978. On August 15, 1978, Judge Samuel T. Rowe of the Twenty-First Judicial District Court ordered that custody be transferred to Mr. & Mrs. Hugh Bennett, the maternal grandparents.

On appeal, Ms. Pittman urges that the trial court erred in recognizing the judgments of the Twenty-First Judicial District Court, and that her right to child support continued to accrue until at least January 21, 1981. She contends that the Twenty-First Judicial District Court did not have jurisdiction of the proceedings and therefore, the above custody orders are nullities. Alternatively, she argues that if jurisdiction was present, the ex parte order of Judge Ford was invalid because there was no hearing or notice afforded to her, and thus no legal effect can flow therefrom.

NULLITY OF JUDGMENTS

Ms. Pittman’s contentions that the Twenty-First Judicial District Court’s custody orders are null constitute a collateral attack upon these judgments. However, only absolutely null judgments are subject to collateral attack. Barron v. Oden, 345 So.2d 998 (La.App. 2nd Cir.), cert. denied, 349 So.2d 335 (La.1977); Board of Commissioners v. Hollybrook Land Company, 191 So.2d 724 (La.App. 2nd Cir.1966), cert. denied, 193 So.2d 528 (La.1967). Therefore, unless Ms. Pittman demonstrates that these judgments are absolutely null, this court must recognize their terminating effect upon her child support payments.

The sole ground offered for the nullity of these judgments is the allegation by Ms. Pittman that the Twenty-First Judicial District Court lacked jurisdiction of the custody action filed by Mr. George. She admits that Mr. George was domiciled in Livingston Parish and the child was visiting him prior to the custody action being filed. These facts suggest the court had jurisdiction of the matter under La.C.C.P. Art. 10(5). However, she contends that the visiting child’s brief presence in Louisiana is not a sufficient predicate for jurisdiction under Smith v. Ford, 288 So.2d 71 (La.App. 4th Cir.1974) and the Uniform Child Custody Jurisdiction Law (R.S. 13:1700 et seq.).

Smith held that the brief temporary presence of a child does not confer jurisdiction upon a court under La.C.C.P. Art. 10(5) unless an emergency exists. The Uniform Child Custody Law similarly provides that absent an emergency, a child must reside within the court’s jurisdiction for at least six months prior to suit.

However, we find these arguments unpersuasive. First, the Uniform Child Custody Law has no application to the instant case, as its effective date of October 1,1978, was after the rendition of the judgments in question. Secondly, the case of Rafferty v. Rafferty, 313 So.2d 356 (La.App. 4th Cir.1975), overruled Smith and interpreted La.C.C.P. Art. 10(5) to confer jurisdiction on a court if the minor is in the state, regardless of the method utilized to obtain the presence of a child. We find Rafferty to be the controlling law at the time these custody orders were rendered. Consequently, the Twenty-First Judicial District Court possessed jurisdiction of the custody suit, and their judgments are recognized by this court. Ms. Pittman has failed to demonstrate the absolute nullity of these judgments, thereby precluding any collateral attack.

LACK OF HEARING

However, Ms. Pittman alternatively claims that if jurisdiction were present, the lack of a contradictory hearing and notice prior to the ex parte order of Judge Ford violated due process of law and, therefore, such order can have no effect. Admittedly, it is settled that a court may not render an ex parte order without providing an opportunity to be heard. Saizan v. Saizan, 311 So.2d 281 (La.App. 1st Cir.1974). However, in this case, Judge Ford’s ex parte order set the matter for a subsequent hearing which would serve to satisfy due process. On the record before us, there is no evidence to suggest that the hearing did not occur, or that Ms. Pittman lacked notice thereof. Thus, having failed to meet her burden of proof, we reject appellant’s claim of due process violation.

DECREE

Accordingly, for the above reasons, we affirm the decision of the trial court at appellant’s cost.

AFFIRMED.

      . If a judgment is relatively null, it can only be attacked by a direct action in the court of rendition. La.C.C.P. art. 2006; Barron v. Oden, supra.


text:
    ELLIOT CONSTRUCTION CO., INC. v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 82 CA 0338.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Murphy J. Foster, III, Baton Rouge, for plaintiff-appellant Elliott Const. Co., Inc.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee U.S. Fidelity and Guar. Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issue in this case is the appropriate prescriptive period in a suit by a general contractor against his subcontractor. The facts are as follows:

Plaintiff, Elliot Construction Co., Inc., was principal contractor for a state construction project involving construction of a Community Education Center on the Baton Rouge campus of Southern University. Elliot subcontracted with Jackson Painting Company for certain painting and wall-covering work. Defendant, United States Fidelity and Guaranty Company (USF & G), as surety for Jackson Painting, issued a bond in the amount of $84,436.00. Jackson began work in January of 1974 and received payments from Elliot totalling $47,981.00. Sometime thereafter Jackson failed to perform its obligation and was put into formal default by Elliot on July 7,1975. Elliot was forced to complete Jackson’s portion of the contract at its own expense and on October 20, 1981, filed suit for sums expended.

USF & G filed the peremptory exception urging the objection of prescription, under La.Code of Civ.P. art. 927. Without assigning reasons, the trial court granted the exception and dismissed the suit. Elliot has appealed.

USF & G argues that as surety for a subcontractor, they are protected by La.R.S. 38:2189, which at the time of this default read as follows:

“Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration or repair of any public works let by the state or any of its agencies, boards or sub-divisions shall prescribe three years from the registry of acceptance of such work or of notice of default of the contractor unless otherwise limited in this said chapter.”

The basic question presented is whether or not a suit by a contractor against a subcontractor falls within the ambit of this article. We conclude it does not for several reasons.

We note at the outset the term “contractor” is not defined in Title 38, which deals with public contracts, works and improvements. Appellee argues we should accept the definition of contractor as provided in La.R.S. 37:2157 and 2162. Title 37 is entitled “Professions and Occupations.” Article 2157 A defines contractor, “For the purpose of this Chapter....” and article 2162 reads, “The following terms used in this Chapter shall have the definition as herein ascribed to them.. .. ” Assuming, arguendo, these statutes include a subcontractor within the definition of “contractor,” the definitions are limited to the provisions found within that chapter and should not be allowed to dictate the meaning of the term in other titles of the revised statutes. Moreover, we think a better interpretation of R.S. 37:2157 is that a “subcontractor” is not a “contractor” because he does not “in any manner assume charge of the construction”; and, under R.S. 37:2162, a “subcontractor” is not a “contractor” because he does not contract directly with the owner. In the latter regard, R.S. 2162(3) specifically defines “Subcontractor” as one “who contracts directly with the primary contractor for the performance of a part of the principal contract, or with another subcontractor for the performance of a part of the principal contract.” Reading these two provisions in pari materia suggests a clear delineation between the two concepts.

For this reason we also reject appellee’s argument that the case of United Stage Equip. v. Chas. Carter & Co., 342 So.2d 1153 (La.App. 1st Cir.1977), stands for the proposition the term contractor includes the term subcontractor. The case so held, but only for purposes of licensing requirements, a matter governed by Title 37 and one not relevant to the issue now under consideration.

We note, too, although there is one case which addresses the applicability of the statute in another context (to be discussed below), there appear to be no Louisiana cases dealing specifically with the statute as it applies to suits against subcontractors. Therefore this specific issue is res nova. Without a specific definition or definitive case law on the matter, we must employ the traditional methods of statutory interpretation.

According to La.Civ.Code art. 15 we should interpret terms of art or technical terms according to the way they are used in the trade. The word “contractor” is ordinarily used in the building industry to refer to the general (or principal) contractor, i.e., one who contracts with the owner, rather than with the subcontractor. Frank v. Waters, 162 La. 255, 110 So. 413 (1926).

Article 16 tells us when the meaning of a word is dubious, we should examine the context in which it appears. We note the text of the statute at issue speaks only in the singular, i.e., “the contractor,” “the contract,” “the bond,” “the surety,” “on the bond furnished by the contractor,” etc. This indicates the statute is addressing only one person as the contractor on a job, as opposed to the many subcontractors associated with a state building project.

Article 17 mandates laws on the same subject matter should be interpreted in reference to one another in order to clarify their meanings. Various other statutes in Chapter 10 of Title 38 speak specifically of “the contractor of subcontractor.” See 38:2241 A & B, and 2242. This indicates to us that when the legislators wanted a statute to apply to both contractors and subcontractors, they so stated. If they provided specifically for subcontractors in some parts of the law it would be erroneous for us to assume they also intended to include subcontractors when the term “contractor” appears alone.

The Louisiana Supreme Court commented upon the meaning of the term “contractor” in 38:2189 in State ex rel. Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976). The issue there was whether or not the architect on a state project was protected by the short prescriptive period afforded “contractors.” When the case was before us (314 So.2d 477, 481), we concluded, “the legislature ... used the term ‘contractor’ in the broad sense, i.e., ‘any one who contracts.’ ” Therefore, we concluded since the architect had indeed contracted, he was covered by the statute.

The Supreme Court granted writs and reversed, heartily disagreeing with this court’s conclusion that the term “contractor” included anyone who contracted. The court stated at page 484:

“Under the terms of La.R.S. 38:2189, the short three-year prescriptive period obviously applies to the liability of the general contractor and his surety on the public construction contract.” (Emphasis added.)

The court gave a brief overview of the statute and noted in some parts of the law specific provisions were made for architects and engineers. The Supreme Court concluded, apparently as we did herein, that if the legislators specifically provided for architects in some provisions of the law, they did not intend architects to be included in the general term “contractor.”

In the Simoni case the Supreme Court stated clearly this court’s previous interpretation of “contractor” in the “broad sense” was incorrect. Although the Simoni court was concerned about the applicability of the statute as to architects rather than as to subcontractors, we feel the same reasoning applies here. We decline to err again by interpreting “contractor” in a broad sense, but instead interpret it in the more narrow sense as it is used in the construction business and as the statute indicates it should be interpreted: to include only the primary or general contractor.

As a final observation, the Simoni court noted ambiguous prescription statutes must be strictly construed against prescription and in favor of the obligation sought to be extinguished by it, citing United Carbon Company v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956).

In conclusion, a subcontractor is not protected by R.S. 38:2189. The matter here is a simple contract between a subcontractor and a general contractor. The relationship is not governed by the Public Works Act but instead by general contract law. Therefore the applicable prescriptive period is found in La.Civ.Code art. 3544 and is ten years. The judgment dismissing plaintiff’s case is reversed. Costs are to be paid by defendant, United States Fidelity and Guaranty Company.

REVERSED.

      . The statute was amended in 1975, (effective September 12, 1975) to change the applicable time period to 5 years.

      . Art. 15: “Terms of art or technical terms and phrases, are to be interpreted according to their received meaning and acceptation with the learned in the art, trade or profession to which they refer.”

      . Art. 16: “Where the words of a law are dubious, their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences may be corn-pared, in order to ascertain their true meaning.”

      .Art. 17: “Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”