author: STOULIG, Judge Pro Tempore.

text:
    Dwight PERRILLOUX v. FIRST STANDARD LIFE INS. CO.
    No. 11493.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied April 20, 1981.
    Writ Denied June 5,1981.
    Sylvia E. Taylor, Reserve, for plaintiff-appellee.
    Cameron C. Gamble, New Orleans, for defendant-appellant.
    Before CHEHARDY and GARRISON, JJ., and STOULIG, J. Pro Tern.
   STOULIG, Judge Pro Tempore.

This is an appeal by defendant, First Standard Life Insurance Company, from a judgment awarding plaintiff, Dwight Per-rilloux, $5,000.00 for the loss of his leg under a group policy issued to his employer.

The undisputed and stipulated facts are that the defendant issued an “Accidental Death, Dismemberment and Loss of Sight” group insurance policy to Pellerin Milnor Corporation and that plaintiff was an employee included under the policy. On November 5, 1977, plaintiff injured his left leg in a motorcycle accident. Subsequently, some 166 days after the accident, plaintiff’s left leg was amputated. Claim was made under the policy for loss of a member which was rejected and the instant suit resulted.

The adjudication of the merits of this appeal involve the interpretation of the following provisions of the contract of insurance:

“Upon receipt of notice and due proof, as required herein, that any employee, while insured for Accidental Death, Dismemberment and Loss of Sight Benefits under the policy, shall have sustained any of the losses listed in the following Table of Losses as the direct result of accidental bodily injury and independently of all other causes, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy), and the date of occurrence of such injury is not more than ninety days prior to the date such loss was sustained, the Company Agrees to Pay, subject to the terms and conditions hereof, the amount of insurance specified for such loss in the Table of Losses, in accordance with the Full Amount of Insurance applicable to such employee as specified in the Schedule of Benefits.
TABLE OF LOSSES
In the Event of Loss of:
One Foot — One Half the Full Amount of insurance.
With respect to hands or feet, “loss” means dismemberment by severance at or above the wrist or ankle joint.”

Appellant contends that since the amputation was performed 166 days after the injury, the loss of the leg by severance did not occur within the 90 day period prescribed in the contract of insurance and therefore no coverage was afforded by the policy. It relies upon the case of Matthews v. Standard Life Insurance Company, 213 So.2d 128 (La.App. 3rd Cir. 1968) in support of its position.

Appellee does not urge that these provisions of the policy are ambiguous or uncertain but maintains the 90 day limitation is unconscionable and against public policy because it works an unreasonable mental, as well as a physical, hardship in that it requires him to make a decision concerning an irreversible medical procedure involving a physical member without affording him sufficient time to receive conservative medical treatment in an effort to avoid the loss of his leg. In addition, he cites Interstate Life & Accident Co. v. Waters, 213 Miss. 265, 56 So.2d 493 (1952) for the proposition that when a contract is subject to several interpretations, the court must construe it in the most equitable sense, ever mindful of the intent and expectation of the parties.

The trial court in its reasons for judgment stated:

“. . . I am satisfied that the loss in this particular case is covered by the insurance policy, and arrive at that conclusion based upon the medical records as well as the testimony of the treating physician, Dr. Book. To the effect that the osteo-myelitis became apparent on November 18, 1977, was never brought under control, continued to be a constant threat of amputation, and that the loss of the member was effected within the policy period.”

Appellee’s medical history reflects that on the date of the accident he was admitted to East Jefferson General Hospital emergency room, where he was seen by Dr. Marshall K. Book, an orthopedic surgeon, the treating physician. Dr. Book observed that Perril-loux sustained a deep laceration over his knee with a fragment of the distal femur protruding 4 inches through the skin. He diagnosed the injuries as an open commi-nuted fracture of the distal left femur, dislocation of the left knee and a comminuted fracture of the left patella.

Upon his admission to the hospital, appel-lee was advised there was a possibility that amputation of his leg may be necessary. Understandably, he wanted every effort made to save this extremity. After surgery on November 18, 1977 he was discharged from the hospital on December 3, 1977 and placed on oral antibiotics. He was readmitted to the hospital on December 19, 1977 because of infection and underwent surgery on December 20,1977. It was on the latter date that osteomyelitis — an infection of the bone — was first indicated. The infection was attributed to organisms present at the time of the injury. Osteomyelitis of the distal femur eventually necessitated the amputation of the member.

Dr. Book continued to conservatively treat appellee hoping to save the leg. Due to a lack of funds, plaintiff was referred to Charity Hospital on January 26, 1978. At Charity conservative treatment was administered until approximately April 7, 1978 when amputation procedures were initiated and the actual surgery performed on April 21, 1978, some 166 days after the accident.

The trial court’s determination that the osteomyelitis became apparent within the 90 day period and that it necessitated the subsequent amputation of the leg is amply supported by the record. However, in construing the legal effect of the pertinent provisions of the contract of insurance we are governed by the rules laid down by the Supreme Court of this State in Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72 (1939) wherein it decreed:

“The risk assumed by the insurer is stated in the policy in clear and unambiguous language. The language of the policy so clearly speaks the intent of the parties that there is no room left for speculation as to its meaning. As relates to the two members of the body, the hand and the foot, it is a “Dismemberment Insurance” policy. It says so. On its face, it speaks of “Accidental Death and Dismemberment Insurance”, and specifies the sum to be paid for “loss of one hand by severance at or above the wrist-joint”. The indemnity specified is for the loss of a hand or a foot “by severance”. The word “severance”, according to Webster’s Dictionary, means the “Act of severing, or state of being severed; partition; separation”. According to the same authority, the word “sever” means: “1. To separate, as one from another; to cut off from something; to divide; to part in any way, esp. by violence, as by cutting, rending, etc.; as, to sever the head from the body. 2. To cut or break open or apart; to divide into parts; to cut through; to disjoin; as, to sever the arm or leg”.
Admittedly plaintiff’s right hand was not severed from the arm. The third and little fingers were severed from the metacarpus, or hand proper. But there was no severance of the hand.
The theory upon which plaintiff relies for recovery is “that it was the loss of the use of the hand, as such, that was covered by the insurance”, that “the true intent and purpose of the insurance was for indemnity against the loss of the use of the member, as such; and that, where by actual severance, either in whole or in part, the entire use of the member is wholly and totally lost, a liberal construction in line with the logical intention should be applied and recovery allowed”.
But the overwhelming weight of authority is to the effect that, where an insurance policy provides indemnity for the “loss of a hand”, or the “loss of a foot”, or the “loss of an arm”, and provides in the policy a definition or a specific statement as to what shall constitute a loss of such member, effect must be given to this qualifying definition or explanation.”

These principles of interpretation were reaffirmed by the Court in Benton Casing Service, Inc. v. Avemco Ins., 379 So.2d 225 (La.1979) and Hall v. National Life & Acc. Ins. Co., 383 So.2d 74 (La.App. 3rd Cir. 1980).

Appellee does not contend that these provisions of the contract are ambiguous or their intent uncertain. No statutory prohibition against this limitation has been cited to the court, nor do we know of any. The court’s attention has not been directed to any statute or jurisprudence which condemns such imposition of conditions limiting liability as being contrary to public policy. We can find no basis for concluding that the interpretation of these contractual provisions does not fall within the purview of the Muse case.

In the case of Matthews v. Standard Life Insurance Company, 213 So.2d 128 (La.App. 3rd Cir. 1968), which is factually apposite and contains, verbatim, the identical policy provisions, the Third Circuit construed coverage to apply only when the dismemberment by severance occurs within 90 days of the injury.

As pointed out in the Matthews case, Interstate Life & Accident Co. v. Wafers, supra, cited by appellee, can be distinguished because the medical decision to amputate was made within one week of the accident but was delayed beyond the prescribed period because of the plaintiff’s weakened condition and the risk involved in attempting surgery sooner.

The Matthews case also distinguishes the Westenhover v. Life & Casualty Ins. Co., 27 So.2d 391 (La.App. 2nd Cir. 1946) on the ground that the contractual provisions are different.

While this court sympathizes with plaintiff’s plight, we are constrained to admit that the constructions placed on the coverage by Matthews is correct. Though at first blush it may appear to be harsh, this interpretation is in accord with the guidelines expressed in the Muse case.

We conclude there is no ambiguity in the contractual provisions defining loss and the time limitation within which coverage is afforded. Appellant had the contractual right to restrict its liability to a prescribed period and in so doing did not contravene any declared public policy of this state, nor was its right to do so inhibited by statute.

For the reasons assigned the judgment of the trial court is reversed and judgment is rendered in favor of defendant, First Standard Life Insurance Company, and against the plaintiff, Dwight Perrilloux, dismissing plaintiff’s demand.

REVERSED.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Royal J. McGEE v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 11507.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Andry & Andry, Jerald N. Andry, Gilbert V. Andry, III, Leonce J. Malus, III and Lowell Dye, New Orleans, for plaintiff-ap-pellee.
    John A. Gordon, Sp. Counsel, Vincent T. LoCoco, Associate Counsel, Gerard M. Victor, Associate Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

The Sewerage and Water Board of New Orleans (Board) appeals from a decision of the Civil Service Commission of New Orleans (Commission) which reduced the dismissal of Royal McGee (Water Service Emergency Inspector II) to two weeks suspension without pay. We reverse and uphold the dismissal.

The employees of the Board’s Emergency Department work in three eight-hour shifts commencing at 12 midnight, 8:00 a. m. and 4:00 p. m., respectively. The shifts are rotated in the above order. Following six days of work and two day off, the employee then reports to the next shift. Because the midnight shift receives fewer calls an employee on that shift is frequently “pulled off” his regular shift and is assigned to one of the other shifts. However, the shift rotation schedule does not change and at the conclusion of the sixth working day and two days off, the employee reverts back to the regular schedule.

McGee’s regular shift was the midnight shift and on Monday he was to have rotated to the 8:00 a. m. shift. During the latter part of the previous week he was pulled off his regular shift and assigned to the day shift (8:00 a. m.). At the conclusion of his two days off he reported to the 4:00 p. m. shift instead of the 8:00 a. m. shift.

The letter of dismissal stated (1) that on Sunday, June 17, 1979 he called at approximately 11:00 p. m. and notified his supervisor that he was “too tired” to come to work at his scheduled midnight shift, and (2) that on June 25, 1979 he was due to report at 8:00 a. m. and did not do so until 4:00 p. m.

McGee had received two prior suspensions without pay. On May 13, 1978 he was suspended for two weeks for leaving the job before being relieved. On May 26, 1978 he was suspended for thirty-four days for taking his assigned truck home and sleeping for five hours while on duty. In the letter informing McGee of the suspension the Executive Director of the Board warned McGee: “Any further deviation from the rules or policies of the Sewerage and Water Board will be cause of your immediate dismissal from its services.” Both of these suspensions were appealed to and upheld by the Commission.

In its written reasons for judgment the Commission concluded that the “record preponderates” that McGee was “confused” about the shift change and that his reporting to work at 4:00 p. m. instead of 8:00 a. m. was not a “conscious dereliction of duty”. With respect to the two prior suspensions the Commission stated: “He was assessed a stiff penalty for these derelictions and in effect, paid for them.” The Commission then reduced the dismissal by the appointing authority to two weeks suspension.

The Board contends here that the decision of the Commission is contrary to the facts and that by substituting its own opinion for that of the rights and prerogatives of the Appointing Authority it has contravened this court’s holding in Branighan v. Department of Police, 362 So.2d 1221 (La. App. 4th Cir. 1978); cert, denied 365 So.2d 247 (La.1978).

The Commission submits that its decision was a fair and reasonable one under the circumstances and adds: “An elementary principle of appellate practice is that the decision of the trial court is presumed correct and should not be disturbed absent the appellant’s clear showing of manifest error. [Citations omitted] This is especially true when questions regarding credibility of witnesses and weight of evidence are important. [Citations omitted].”

Before addressing the merits, we deem it necessary to discuss two related matters. One such matter is the question of whether the report of the hearing examiner (Referee) should be made a part of the appellate record and, if so, what weight should be accorded that report. The other matter pertains to the standard of review to be employed by an appellate court when the decision of the Commission is based on evidence adduced at a hearing conducted by a Referee.

Initially, this record did not contain the report of the hearing examiner and the Board objected. The Commission took the position that the Referee’s report, if one was rendered, was a privileged communication and was not a part of the appellate record. Following a show cause order and the submission of briefs on the question we resolved the matter by directing the Commission to forward the report for inclusion in the record. The Louisiana Supreme Court denied writs on February 13, 1981 and the report is now a part of the record before us.

On the question of what weight, if any, should be given the report the Commission appears to fear that by including the report in the record its constitutionally sanctioned authority to judge and decide its own cases will be diluted. Art. 10, § 12, La.Const. 1974. Our purpose here is to dispel such thoughts. The Commission’s “exclusive power and authority” to decide its cases cannot be questioned. Inherent in this authority is the Commission’s prerogative to attach to the report such weight as it deems appropriate based on the record before it. For the purposes of appellate review we consider the report as advisory to the Commission and in no other light.

With the adoption of the Louisiana Constitution of 1974 the decisions of the Civil Service Commission became subject to review on law and fact. Prior to the advent of the use of a Referee to conduct such hearing the scope of appellate review was determined to be essentially the same as in other civil matters. Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976); writ refused 343 So.2d 1078 (La. 1977). The usual guidelines for the manifest error rule as set forth in Canter v. Koehring, 283 So.2d 716 (La.1973) and as clarified in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) were applicable. However, in Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir. 1980), rehearing denied December 19,1980, where, as here, the hearing was conducted by a Referee, the court held the rule to be inapplicable. In doing so it noted that “the great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination.” The court then resolved to make its independent review of the record to determine “whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong.” We adhere to that ruling here. Cf. Subdivision Planning Engineers, Inc. v. Manor Development Corp., 290 So.2d 375 (La.App. 4th Cir. 1974).

Initially, our review of the record compels us to differ with the conclusion reached by the Commission that the evidence “preponderates that appellant (McGee) was confused.” The Commission noted that McGee’s supervisor “who also testified” did not deny that McGee stated to him that he would report for the 4:00 p. m. shift. The supervisor specifically denied recalling any such statement. Only McGee stated that he was confused. He conceded that he was familiar with the shift rotation schedule and had followed it without failure for the previous twenty-two months. (September 1977 to June, 1979). Two other co-employees (both called as McGee’s witnesses) testified that the rotation schedule was well known by all members of the Emergency Department, including McGee, and presented no particular problem. The schedule was in the supervisor’s office (desk) and available for all to see upon request.

The Board urges that its emergency personnel are charged with the responsibilities the name implies. They are to respond to emergency calls where the rupture or malfunction of a main water line poses a potential hazard to life and property. Reliability and punctuality on the part of such personnel are essential characteristics. It argues that the failure of McGee to report timely on June 25, 1979, coupled with his two prior infractions, clearly evidence either his unreliability or his indifference to the requirements of his job and constitute ample cause for his dismissal. We agree.

For these reasons the decision of the Civil Service Commission is reversed and set aside and Royal McGee’s appeal to the Commission is dismissed.

      . The Commission did not find it necessary to resolve the conflict in the testimony relative to the June 17 incident as to whether McGee called in “sick” or “too tired to work.” We agree.

      . The Referee recommended two weeks suspension without pay.

      . Art. 10, § 12 reads as follows:
      “Each commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission, within thirty calendar days after its decision becomes final.”

      . See Transcript, pages 74 and 75.


author: GARRISON, Judge.

text:
    Jerry DUNCAN v. CAMPBELL SOUP COMPANY et al.
    No. 11582.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Marco A. Rosamano, Law Offices of Charles J. Pisano, New Orleans, for plaintiff and appellant.
    Monroe & Lemann, Jerry A. Brown, Jonathan C. McCall, A. Justin Ourso, III, New Orleans, for defendants and appellees.
    Before BOUTALL, KLIEBERT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s case for injuries allegedly sustained by him on October 23-24, 1974, when he fell ill after ingesting a can of Campbell’s Pork and Beans. Plaintiff purchased the beans at Zummo’s Super Market, hence Zummo and its insurer were also named defendants. Zummo and its insurer were dismissed as of non-suit without prejudice by the trial judge. After a hearing on the merits, the court concluded that there was not “one iota of proof ... shown that the food was spoiled or in any way unfit to eat.” From that judgment which we affirm, plaintiff appealed.

From the record it is evident that plaintiff did suffer from gastroenteritis, however, there is no evidence to link the malady with the ingestion of the foodstuff in question. In the instant appeal, there is no showing that “food poisoning” occurred. Indeed, the plaintiff testified that the beans looked, smelled and tasted unspoiled.

The medical expert indicated that gastroenteritis may be caused by a number of things, including, but not limited to post-nasal drip and influenza. Additionally, the expert testified that he could not link Mr. Duncan’s illness with the beans.

We cannot conclude that the trial judge was manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1978); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Accordingly, the judgment of the district court is affirmed.

AFFIRMED.


author: HUGHES, Judge.

text:
    Anne E. GAMBINO v. Adolph E. GAMBINO, a/k/a Frankie Brent.
    No. 11612.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied April 20, 1981.

      Moliere, Flanagan & Arceneaux, James T. Flanagan, Metairie, for plaintiff-appel-lee.
    Tooley, Waldmann & Weidner, John F. Tooley, Jr., Gretna, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., 24th Judicial District Court for the Parish of Jefferson, William C. Credo, III, Asst. Dist. Atty., Gretna, for State of Louisiana, Parish of Jefferson.
    Before REDMANN, SCHOTT and HUGHES, JJ.
   HUGHES, Judge.

This is an action for child support initiated on March 16, 1978 in New Jersey and transferred to Louisiana under the Uniform Reciprocal Enforcement of Support Act. It was filed in the Juvenile Court for Jefferson Parish on April 7, 1978. The plaintiff, Anne Gambino, sought alimony for the support of her daughter, Nicole Gambino, and on February 14, 1980 the trial court condemned the defendant-father, Adolph Gam-bino, to pay the amount demanded which was fifty dollars per week from the date of judicial demand and continuing during the child’s minority. The defendant was also ordered to pay the child’s future medical and dental expenses, but certain claimed medical expenses were denied. Defendant appealed and we affirm.

A variety of issues are raised by this appeal. The defendant contends: (1) that the juvenile courts of Louisiana do not possess jurisdiction over URESA actions; (2) that URESA is unconstitutional; (3) that the plaintiff’s claim for support was subject to a laches, estoppel or prescription defense; (4) that the support award should not be retroactive to the date of judicial demand; (5) that the trial court erred in failing to require plaintiff to prove that the child was in necessitous or destitute circumstances; (6)that the medical expense provision of the judgment was not supported by the evidence and the amount of support was excessive, and; (7) that the trial court erroneously applied the Full Faith and Credit Clause to the certification of the New Jersey Court.

These parties were married on November 9,1966 in Virginia and on May 29,1967 they acquired a residence and some apartments in New Jersey. Later they had a child, Nicole Gambino, who was born on January 20, 1968. In December of 1969, defendant conveyed to plaintiff all of the New Jersey property which they had acquired in 1967 in the names of Adolph F. Gambino and Anne E. Gambino. Then, on April 11, 1972, they were divorced in New Jersey by a judgment which granted custody of Nicole to her mother, but it made no mention whatsoever of child support.

In this action, Mrs. Gambino claims that she has received no child support since the divorce in 1972 but she testified that Mr. Gambino paid the mortgage payments on her property for about a year after they separated in 1969. Mr. Gambino contends that he conveyed the New Jersey property to Mrs. Gambino in full settlement of all future claims to alimony for herself or for support of Nicole. Defendant acknowledged Nicole as his legitimate child and that he has not been paying anything for her support beyond that which he provided for her benefit when he gave her mother the property in New Jersey.

THE JURISDICTIONAL ISSUE

The trial judge was initially concerned about challenges bearing on the jurisdiction of the Juvenile Court for Jefferson Parish but ultimately resolved the issue against defendant who suggests that we should remand the case to the 24th Judicial District Court in Jefferson Parish where defendant resides.

The Louisiana Constitution of 1974 provides in Article V, Section 18 that the Juvenile and Family Courts have jurisdiction as provided by law. The Revised Uniform Reciprocal Enforcement of Support Act (1968), La. R.S. 13:1641, et seq., specifically provides that jurisdiction over URESA proceedings is vested in the juvenile courts. La. R.S. 13:1664. Venue provisions declare that the petition may be filed in the parish where the defendant resides. La. R.S. 13:1673(B). These jurisdictional details were carried over into the Louisiana Code of Juvenile Procedure which became effective on January 1,1979 which declares that exclusive original jurisdiction over URESA support actions is vested in courts exercising juvenile jurisdiction. La.Code of Juv. Proc.Art. 16(A)(4). We conclude that under either La. R.S. 13:1664 or the La.Code of Juvenile Procedure, the Juvenile Court of Jefferson Parish had exclusive jurisdiction over this action for support.

Plaintiff contends on appeal that because this was tried as an action within the scope of URESA he was denied Equal Protection of the Laws and Procedural and Substantive Due Process. This is predicated on his assertion that the Juvenile Court refused to consider and honor his contractual settlement with Mrs. Gambino, specifically the 1969 transfer of property to her in full settlement of all future claims for support for herself or for Nicole. At oral argument plaintiff’s counsel contended also that he was denied the opportunity to confront witnesses and to recover his property.

The civil enforcement provisions of URE-SA have been challenged as unconstitutional elsewhere and here, unsuccessfully. Missouri and Tennessee courts have held that URESA does not violate due process requirements. Ivey v. Ayres, 301 S.W.2d 790 (Mo.1957) and Sinclair v. Sinclair, 196 Tenn. 538, 268 S.W.2d 573 (1954). California courts have held that URESA does not deny equal protection of law. Harmon v. Harmon, 160 Cal.App.2d 47, 324 P.2d 901 cert, denied, 358 U.S. 881, 79 S.Ct. 120, 3 L.Ed.2d 110 (1958) and Smith v. Smith, 125 Cal. App.2d 154, 270 P.2d 613 (1954). In Pennsylvania and Louisiana URESA survived arguments that it unconstitutionally denied a right to confrontation. Commonwealth of Pa. v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430 (1954); Freeman v. Freeman, 226 La. 410, 76 So.2d 414 (1954).

It is our view that URESA as enacted in Louisiana does not violate any procedural or substantive right of due process or any right to equal protection or any right to confrontation of witnesses in a civil proceeding. Furthermore, the evidence and record before us would not support any of the constitutional objections raised by defendant.

There were four hearings in the Juvenile Court in Jefferson Parish and defendant was permitted to submit written interrogatories to plaintiff and to take oral testimony from her and from a former employer in New Jersey in the initiating court. Defendant’s Louisiana counsel represented him in New Jersey and interrogated both witnesses who testified there. He was also permitted to examine land records, bank records, Mrs. Gambino’s check registers, her personal financial records and her tax returns. There is no indication that he was denied access to any place where public records were kept or refused permission to examine anything he wanted to see or that he was not allowed to represent Mr. Gambi-no in New Jersey.

The Juvenile Court in Jefferson Parish allowed Mr. Gambino to testify and present hearsay and opinion evidence. The trial judge, acting within the limits of his discretion, afforded Mr. Gambino every opportunity to submit evidence bearing on defenses which Mr. Gambino’s counsel thought were relevant. Defendant was allowed to submit all of the evidence he apparently possessed bearing on the economic situations of Nicole and her mother and bearing on the purported contract between himself and plaintiff and concerning him own economic situation. It is our view that after everything was introduced, whether it was properly admitted or not, Mr. Gambino simply failed to prove the existence of any contract concerning alimony and child support. Even viewing the evidence most favorably to defendant, he really claimed nothing more than an oral agreement with Mrs. Gambino’s sister. Mrs. Gambino testified without contradiction that defendant paid the mortgage installments on the property for a year or so after he transferred the property to her which tends to contradict his contention that the 1969 property conveyance was a final settlement. Mrs. Gambino also flatly denied that she ever made any agreement concerning Nicole’s support. Even the deed between the parties fails to support defendant’s claim that there was a settlement contract. The conveyance was on a plain warranty deed form which recited that the consideration was “One Dollar and Other Valuable Consideration.” The deed also contained a recital that the property was subject to a $22,-000.00 mortgage with a balance due at the time of sale of $18,000.00. Mr. Gambino’s intention was mentioned but that paragraph in the deed said nothing about an agreement concerning support for Nicole. The trial judge indicated that he viewed the 1969 conveyance as simply a transaction that allowed Mr. Gambino to rid himself of a burdensome asset at a time when he was traveling extensively and not earning a great deal. He apparently was of the opinion that the alleged contract was not proved. The evidence amply supports that conclusion and we agree with it.

As far as equal protection is concerned, it is our view that Mr. Gambino is obliged to provide the same support for his daughter that any other Louisiana parent owes his child. The fact that this action is under the aegis of URESA does not impair or diminish any of his rights and it does not increase or add anything to his duty to support his daughter and there is no evidence of any unequal or discriminatory treatment either provided for by law or practiced or condoned by the trial court or the initiating court.

DELAY IN INITIATING DEMAND

It is defendants contention that plaintiff should not be allowed to wait six years before initiating her demand for support. This contention was in part based on his assertions that Mrs. Gambino enjoyed the benefit of the alleged lump sum alimony and child support settlement which we have concluded was not proven to exist.

The trial court held that in this case no principle of laches or equitable estoppel would warrant that court to refuse to grant an award for support in these proceedings. It is our view that there are no prescriptive limitations on the right to initiate an action for support of an unemancipated minor child, during the child’s minority. We likewise agree with the trial court’s conclusion that neither laches nor estoppel bar a long delayed demand for the support of a minor child.

ARREARAGES

Defendant contends that the trial court erred in granting arrearages and in ruling that the duty to support commenced on March 30, 1978. The word arrearages means money that has not been paid when due. La. R.S. 13:1663 specifically permits enforcement of claims for arrearages. In this case, however, there was no demand for any support allegedly due before this action was instituted and the trial court made no award for any period prior to March 30, 1978. We therefore find that no arrearages were claimed and none awarded. There was a long delay between initiation of the suit and rendition of judgment, on February 14, 1980. The trial court was fully authorized and empowered to award support for the period of time between the date of demand and the date of judgment.

We note also that defendant was allowed a year in which to pay the support that occurred between demand and judgment. This had the effect of a suspension of the duty to pay support. According to the judgment of February 14,1980, all sums due should have been paid by now, but plaintiff’s counsel asserts that they have not. The trial court correctly ruled that defendant was not entitled to a suspensive appeal from the February 14, 1980 judgment and we will not further suspend defendants obligation to pay support forthwith.

NECESSITOUS CIRCUMSTANCES

Defendant contends that the trial court should have required plaintiff to prove that the child was in destitute or necessitous circumstances before making any award of support. The trial judge correctly resolved this contention against defendant. The record does reflect that there initially was some confusion in this case concerning the applicability of the criminal neglect of family provisions of the Louisiana Criminal Code, La. R.S. 14:74. Nevertheless this action, even though initiated in New Jersey under URESA, must be considered in Louisiana like any other suit or rule for enforcement of the civil obligation to support a minor child. Freeman v. Freeman, supra.

MEDICAL EXPENSES

Defendant contends that there was no evidentiary support for the trial court’s order directing plaintiff to pay the medical and dental expenses of his daughter. We note that the trial court properly refused to require defendant to pay for surgery on Mrs. Gambino.'

Mrs. Gambino testified that she and Nicole had an annual drug expense of $120.00 and annual dentist expense of $100.00 and an annual doctor expense of $480.00 for a total medical expense of $700.00. She testified that about one half was for Nicole and one half for herself.

As we appreciate the trial court’s judgment, it does not require Mr. Gambino to pay any medical expenses prior to the date of judgment, February 14, 1980. Mrs. Gambino’s uncontradicted testimony that the child has some normal routine medical expenses is sufficient evidence to support the trial court’s order that Mr. Gambino pay all the child’s medical and dental expenses in the future.

FULL FAITH AND CREDIT

If the trial court considered the petition certified by the initiating court to be a judgment entitled to Full Faith and Credit under Art. IV, Sec. 1 of the Constitution of the United States, it was in error. The judge of the appropriate court in the initiating state must certify the petition. As we see it, the certification requirement for petitions should be considered by the judge of the responding court as merely an indication that the certifying judge believes that a duty to support probably exists and that the claim probably is entitled to be considered by the responding court as a URESA case. It has been viewed as being similar to the probable cause requirement in warrant cases; it does not result in a determination that binds the court later in adjudication of the merits of the case. Kirby v. Kirby, 338 Mass. 263,155 N.E.2d 165 (1959). We are not aware of any reported case in Louisiana or in any other State that a petition certified under URESA is a judgment entitled to Full Faith and Credit. The law is clear that the responding court must make its own independent determination of whether or not a duty of support exists. La. R.S. 13:1678.

In' the final hearing conducted in the Juvenile Court of Jefferson Parish on May 7, 1980, the trial judge stated:

... I had my doubts as to whether or not the child actually fit the criminal neglect statutes of the State of Louisiana. However, .. . that is not actually what we are doing. What we are doing here is in effect, enforcing the Uresa statutes and the judgment of another court, or the orders of another court. . .. (W)hat I’m saying is that I’m having to go by what the jurisdiction in New Jersey could have ruled, not necessarily the jurisdiction of Louisiana. I don’t think I’m going by the Louisiana task (sic).

We find that in spite of this comment, the Reasons for Judgement filed by the trial judge indicate that he correctly decided this case on the basis of Louisiana law and without apparent application of Art. IV, Sec. 1 of the Constitution of the United States.

We therefore affirm the judgment rendered below and order Adolph E. Gambino to immediately pay all past due support and future payments of support to the Clerk of Court of the Juvenile Court for the Parish of Jefferson for the benefit of Anne Gambi-no and transmittal to the Clerk of the Juvenile and Domestic Relations Court in and for the County of Cape May New Jersey as required by LSA R.S. 13:1682. The Clerk of the Juvenile Court for the Parish of Jefferson is hereby directed to send a copy of this opinion and order to the Clerk of the Juvenile and Domestic Relations Court in and for the County of Cape May, New Jersey as required by La. R.S. 13:1679. All costs of this appeal are taxed to appellant.

AFFIRMED.

      . Orders of support that might be entitled to Full Faith and Credit can be certified and forwarded to Louisiana La. R.S. 13:1677.


author: BOUTALL, Judge.

text:
    Samuel H. TAYLOR, Jr. v. George R. MURPHY, Individually and d/b/a Murphy Cleaners, et al.
    No. 11666.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Vincent Paciera, Jr., Heisler, Wysocki & De Laup, New Orleans, for Samuel H. Taylor, plaintiff-appellant.
    Michael R. Daigle, Dillon & Cambre, New Orleans, for Géorge R. Murphy, d/b/a Murphy Cleaners, et al., defendants-appellees.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   BOUTALL, Judge.

Seeking damages arising out of a two-vehicle collision, Samuel H. Taylor, Jr. sued the driver of the other vehicle, Jimmy Lee Dorsey, her employer, George R. Murphy, d/b/a Murphy Cleaners, and his insurer, Fireman’s Insurance Company. The trial judge found negligence on defendants and contributory negligence on plaintiff, dismissing plaintiff’s suit. Taylor appeals.

Taylor was driving west on Louisiana Highway 541 (the River Road) in Harvey, Louisiana and was attempting a left turn from the highway into the entranceway of the Hydril plant, where he worked. Dorsey had been following the automobile for some time driving a van owned by Murphy in the scope of her employment with Murphy. Some distance before the plant entrance, Dorsey pulled into the left or opposing lane of traffic in an attempt to pass Taylor, and Taylor began his left turn maneuver. As Taylor’s vehicle turned, its left front fender struck the defendant’s right rear fender. In the area in which this maneuver and collision took place, La. 541 is a two lane highway and the opposing lanes are separated by a double yellow line indicating a no-passing zone.

Our examination of the record convinces us that the defendant driver is guilty of negligence by virtue of attempting to pass in a no-passing zone, contrary to the provisions of L.R.S. 32:77. A considerable argument has developed between the opposing attorneys as to the purpose of the yellow lines in this area in an attempt to pigeon-hole the duty risk principle by a narrow interpretation of the act. Suffice it to say that an overtaking motorist should always proceed with care, and where there are yellow lines prohibiting his maneuver he is subject to a much greater burden of care. We further note that the defendant utilized this road several times a day and was well aware of the general road condition, i. e. the road is bordered on the right by the Mississippi River levee, and on the left, by a number of industrial plants. Hence, one could expect to encounter a number of drivers turning left on this roadway.

We also agree with the finding of contributory negligence on the part of plaintiff. A left turn is always a hazardous maneuver, and in this regard we refer to L.R.S. 32:104, which imposes upon a motorist the duty to ascertain that his turn can be made with reasonable safety. Plaintiff testified that as he began his turn maneuver he did not look behind him to see if the way was clear. Considering the point of contact between the vehicles we conclude, as did the trial judge, that plaintiff would undoubtedly have seen the van attempting to pass, had he looked. He was aware that the van had been following him. for some distance and had last seen her a considerable distance back from the left turn.

We agree with the finding of negligence and contributory negligence resulting in dismissal of suit. The judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Joseph HORDE v. Gerald FOUCHA and Vanguard Underwriters Insurance Company.
    No. 11648.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Rehearing Denied April 20, 1981.

      John T. Cooper, Cooper & Hingle, New Orleans, for defendant-appellant.
    George O’Dowd, O’Dowd & O’Dowd, New Orleans, for plaintiff-appellee.
    Before REDMANN and SCHOTT, JJ., and EDWIN R. HUGHES, Assigned Judge.
   SCHOTT, Judge.

Defendant, Vanguard Underwriters Insurance Company, has appealed from a judgment pursuant to a jury verdict which awarded plaintiff, Joseph Horde, $108,000 damages for injuries he sustained when defendant, Gerald Foucha, shot him with a rifle. The essential issue is whether the jury committed manifest error in finding that liability coverage extended by Vanguard to Foucha in a homeowner’s policy was excluded in this case by the terms of the policy.

The essential facts are not in dispute. Plaintiff had performed some brick-laying work for Foucha and went to Foucha’s house on a Saturday morning to collect the balance due him for the job. Although there was some dispute as to the amount still owed, defendant admitted owing $45. Plaintiff rang the front doorbell of Fou-cha’s house and was greeted by Mrs. Fou-cha. Thereafter, Foucha came out of the house armed with a rifle. Plaintiff turned around and walked toward his automobile parked on the street in front of the house and a nextdoor neighbor called to warn him that Foucha was preparing to shoot him. Plaintiff ran around the automobile to the driver’s side chased by Foucha who fired three or four shots at plaintiff before striking him in his right arm. Plaintiff then managed to get into his automobile and was driven away by a companion. Vanguard’s liability insurance policy provides that it does not apply:

“To bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

At the conclusion of the trial the case was submitted to the jury on special verdicts which included the following:

“3. We, the jury, find that VANGUARD UNDERWRITERS INSURANCE COMPANY, is not liable as the insurer of GERALD FOUCHA because the bodily injury of JOSEPH HORDE was expected or intended from the standpoint of GERALD FOUCHA and the exclusion provision of the policy of insurance is applicable. If answer is No, please continue.
4. We, the jury, find that VANGUARD UNDERWRITERS INSURANCE COMPANY is liable as the insurer of GERALD FOUCHA because of bodily injury of JOSEPH HORDE was not expected or intended from the standpoint of GERALD FOU-CHA and the exclusion provision of the policy of insurance is not applicable.”

The jury answered No to No. 3 and Yes to No. 4.

We are thus confronted with the jury’s conclusion that Horde’s bodily injury was not expected or intended from Foucha’s standpoint even though Foucha chased after Horde firing a rifle at him and eventually struck him after firing three or four shots. Our constitutional duty to review the facts requires us to make a determination that the record establishes that the finding is not clearly wrong in order to affirm this judgment. Arceneaux v. Dominique, 365 So.2d 1330 (La.1978).

In attempting to circumvent the obvious conclusion that a man who shoots at another five times and then succeeds in striking him does expect or intend plaintiff to suffer bodily injury. Foucha relies on his own testimony to the effect that after plaintiff came to his door and asked for his money he started arguing and told Foucha that he was going to get him on the street; he started walking rapidly toward his car as if he was going to obtain something, so at this time Foucha ran to the closet to get a weapon. His testimony continued:

“I loaded it up, and that was when I started to shoot.
Q. When he turned away from you, while you and he were outside, he turned away and walked away with his back towards you, did he not?
A. I don’t think. I think he was facing me. I can’t remember exactly, but I think he was facing me.
Q. And he went toward what part of the vehicle?
A. I think the driver’s side. I can’t remember exactly.
Q. Now, did you have a gun in your hand at this time?
A. Yeah, I had the gun after he made the statement he made that was when I got me a gun. When he was heading toward his car I thought he was going to his trunk. He was in the back of his car. After he seen me with the gun that is when he ran around the other side. When I come out, I was afraid. I was so afraid, I thought the man was going to get something. And I come out and I started shooting, (crying) I didn’t mean to hurt the man really. I ain’t never wanted to hurt nobody.
Q. Did you intend to shoot him, Mr. Foucha?
A. No, sir.
Did you expect from your shooting that you would hit him, hurt him, or harm him? Q.
A. No, sir. I just, I don’t know what I was thinking. My mind was all messed up. I was so afraid. I thought the man was trying to hurt me. I don’t know.
Q. Did you at that time, Mr. Foucha, know as a fact you had struck him with a bullet?
A. Yes, sir.
Q. Do you know how many shots you had fired?
A. About three, four.
Q. Prior to that time, had you ever fired the rifle?
A. No, sir.”

Foucha argues that this testimony is sufficient to provide the jury with a basis to conclude that he did not expect or intend plaintiff to suffer bodily injury.

While we might give Foucha the benefit of every doubt in conceding that he may have been afraid and momentarily carried away, its strains our credulity to suppose that this defendant who fired on an unarmed plaintiff several times and finally struck him, when plaintiff was off of his premises and attempting to get into his automobile, did not intend to hurt him. We add that there is nothing in this record to suggest that defendant is mentally incompetent or was under the influence of alcohol or drugs at the time this incident occurred.

Additionally, the jury verdict is inconsistent with all of the decisions interpreting this kind of an insurance policy exclusion.

In Lawrence v. Moore, 362 So.2d 803 (La. App. 4th Cir. 1978), we held that a similar exclusion prevented coverage as to a defendant who struck plaintiff with his fist. In that case, plaintiff attempted to show that defendant was intoxicated preventing him from having the requisite intent but the evidence of the intoxication was insufficient. In the case we found a conflict with Rambin v. Wood, 355 So.2d 561 (La.App. 3rd Cir. 1978), but we do not even find the same conflict in the instant case.

In the Rambin case the court focused its attention on the question of whether serious injuries sustained by plaintiff were expected or intended by the defendant who simply pushed plaintiff causing him to fall from a tractor. The court there concluded that the evidence reasonably supported the trial judge’s conclusion that the shoving or pushing of plaintiff by defendant was intentional but that the resulting injuries were not expected or intended. The court further characterized defendant’s actions as negligent but not “an intentional injury.” Significantly, the court distinguished the Rambin case from Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975), with the following language:

“... but the instant case is distinguished from Monk which involved an assault or battery exclusion, because the holding there was that one intends what is substantially certain to follow. In Monk, the insured fired a pistol from about eight feet away at plaintiff.- This court held that the insured reasonably must have intended the result, that is, the bullet striking and injuring plaintiff. 312 So.2d 380.”

As we might paraphrase language of the Rambin case, this insured, Foucha, must have intended one of his bullets to strike plaintiff after chasing after him and firing several times in his direction.

Plaintiff has cited Doffiemyer v. Gilley, 384 So.2d 435 (La.1980), but that case is clearly distinguishable. There Gilley was operating his automobile in a reckless manner and ran over plaintiff, but the court was satisfied that the act was unintentional from such circumstances as the prior friendship between the parties, defendant’s denial that he intended to strike plaintiff and the fact that plaintiff had placed himself directly in the path of defendant’s oncoming speeding vehicle in an attempt to stop the vehicle. In this case, as in Rambin, some reasonable doubt existed as to defendant’s intention to injure plaintiff, but in the instant case, as in the Monk case, no such doubt could exist in the reasonable minds of this court or the jury. In effect, the jury committed manifest error and we reverse on that basis.

In view of our conclusion, it is unnecessary to address the other issues raised in this case.

That part of the judgment in favor of plaintiff, Joseph Horde, and against Vanguard Underwriters Insurance Company, is reversed and set aside and there is judgment in favor of Vanguard Underwriters Insurance Company and against plaintiff Joseph Horde, dismissing his suit at his cost. The costs of this appeal are assessed against plaintiff.

REVERSED IN PART AND RENDERED.


text:
    Roger Wayne SMITH v. Daniel E. BECNEL, Jr.
    No. 11669.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      J. Courtney Wilson, New Orleans, for plaintiff-appellant.
    Edward J. Rice, Jr., and Philip 0. Berger-on, Adams & Reese, New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This appeal is from a summary judgment dismissing plaintiff’s legal malpractice clairn against defendant. The issue is whether the pleadings and affidavits are sufficient under LSA C.C.P. Art. 966 to support the judgment as a matter of law.

Plaintiff alleged: He was injured in July, 1977, while employed by Cajun Insulation, Inc. to do work on Union Carbide’s plant. He retained defendant “to represent him in connection with the injury” and in October, 1977, defendant filed a workers’ compensation suit against Cajun. However, plaintiff had a cause of action in tort against Union Carbide and a malpractice case against “the company doctor” who treated plaintiff shortly after the accident which causes of action were both lost because of defendant’s failure to sue.

Defendant’s motion for summary judgment was supported by his own affidavit and that of Cajun’s president. In his affidavit defendant stated the following: In August, 1977, plaintiff sought his services with respect to the accident and informed defendant that he was employed by Cajun as a spray-painter sand-blaster at Union Carbide’s plant. He supplied defendant with his salary figures and the name of his supervisor, and he said the accident occurred when a worker handed him a piece of wire which went into his eye. Defendant’s affidavit then concludes as follows:

“That at the August 8, 1977 conference, Plaintiff specifically told him to recover workmen’s compensation benefits on his behalf from Cajun Insulation Co., Inc. That at no time did Plaintiff request that he initiate tort proceedings against Union Carbide Corporation or against Cajun Insulation Co.’s retained physician.”

The affidavit of Cajun’s president states that plaintiff was Cajun’s employee and not Union Carbide’s; at the time of the accident Cajun was contractually obliged to Union Carbide to perform certain maintenance, repair and construction services at Union Carbide’s plant; and the work being performed by plaintiff when he was injured was required of Cajun by its contract with Union Carbide, “said work being in furtherance of the general business, trade and occupation of Union Carbide.”

In his reasons for judgment, the trial judge, after noting that defendant had filed in plaintiff’s behalf a workmen’s compensation suit against Cajun which was compromised and settled, stated that plaintiff’s only remedy at law was in workmen’s compensation so that there was no malpractice on defendant’s part in failing to sue Union Carbide “and/or ‘The Company Doctor.’ ”

In this court defendant contends first that the affidavit of Cajun’s president was sufficient to establish that plaintiff was the statutory employee of Union Carbide so that his exclusive remedy was in workmen’s compensation. LSA R.S. 23:1032 and 1061.

In Davis v. Copeland Enterprises, Inc., 390 So.2d 891 (La.1980), a summary judgment had been granted dismissing plaintiff’s tort action against Copeland on the ground that Copeland was Davis’s statutory employer. The motion for summary judgment was based on the affidavit of Copeland’s vice president that the maintenance of refrigeration equipment which was contracted to Davis’s immediate employer was part of Copeland’s business. In setting aside the summary judgment the court said:

“We deem Kimball’s affidavit inadequate in that it does not specify with certainty either the nature of Kimball’s connection with Copeland at the time of the accident or the precise nature of Copeland’s business at that crucial time. It does not sufficiently reflect facts which would constitute Copeland as a principal or statutory employer at the time of the accident.”

The affidavit by Cajun’s president in the instant case is even less effective since it is his conclusion as to Union Carbide’s trade, business or occupation and it establishes no specific facts to support such a conclusion.

As to defendant’s failure to file a medical malpractice claim for plaintiff, defendant contends that his own affidavit establishes that he was given no indication of such a claim at the time of his retention as plaintiff’s attorney and notice of such a claim did not take place until after the claim prescribed. Defendant also contends that “the company doctor” was immune to a tort action by virtue of R.S. 23:1032.

Starting with the second contention, the affidavits and pleadings do not establish that this doctor was an employee of Union Carbide. Plaintiff’s allegation that “the company doctor” committed malpractice in no way precludes the possibility that this was an independent doctor to whom plaintiff was referred by Cajun or Union Carbide.

Finally, defendant’s other contention that there was no indication to him of the medical malpractice claim until after the claim prescribed brings under scrutiny his affidavit and the question of its sufficiency for purposes of a summary judgment. In summary, defendant says plaintiff gave him the essential facts and told him to file a workmen’s compensation claim against Cajun but he didn’t tell him to file a tort suit against Union Carbide or the physician. On the other hand, plaintiff’s petition alleges:

“When asked by petitioner whether suit could be filed against Union Carbide, defendant stated that no cause of action existed because the law had recently been changed.”

We thus have a clear cut issue of fact on what was said between the parties concerning a suit against Union Carbide. But what is even more important is the question of whether the defendant’s affidavit leaves at issue facts which relate to the duty owed plaintiff by defendant.

EC 7-8 of the Code of Professional Responsibility places the responsibility on the lawyer to “exert his best efforts to insure decisions of his client are made only after the client has been informed of relevant considerations. It further provides: “A lawyer ought to initiate this decision-making process if the client does not do so.” EC 7-11 provides that the lawyer’s responsibilities “vary according to the intelligence, experience, mental condition or age of a client ... or the nature of a particular proceeding.”

Standing alone, these brief references seem to preclude a summary judgment of dismissal of plaintiff’s malpractice action. Nothing in defendant’s affidavit establishes that he complied with these requirements when plaintiff consulted him. On the contrary, defendant says he simply followed plaintiff’s instructions. It seems clear that defendant was required to interview plaintiff in an attempt to learn all relevant facts, to consider the possibility of causes of action in addition to workmen’s compensation and to advise plaintiff of these possibilities. The amount of time, the degree of investigation, and the extent of explanation necessary would depend on the complexity of the matter and the education and ability of the client to understand the alternatives. From these considerations come many issues of fact not established by the pleadings and affidavits in this case.

Since the presence of genuine issues of material fact precludes the granting of a summary judgment, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff Roger Wayne Smith and against defendant Daniel E. Becnel, Jr., overruling defendant’s motion for summary judgment. All costs of this appeal are taxed against defendant and other costs are to await the outcome of the case. The case is remanded to the trial court.

REVERSED AND REMANDED.

      . This settlement was set aside in Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).


author: GULOTTA, Judge.

text:
    Jean PRATTINI, Wife of Aron L. Daughtry v. Aron L. DAUGHTRY.
    No. 11677.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Edward S. Bopp, Ronald A. Welcker, Arabi, for plaintiff-appellant.
    Before GULOTTA, BOUTALL and HUGHES, JJ.
   GULOTTA, Judge.

In this custody case, the divorced wife appeals from a judgment dismissing her rule for change of custody of her two children. We affirm.

On September 12, 1975, Jean Prattini obtained a divorce from Aron L. Daughtry and was granted custody of William and Deborah, aged seven and six years respectively. Although Jean initially lived with the children at her mother’s residence, Jean and the children moved to a motel in early 1978 because of arguments with her mother. Unable to care for the children, Jean thereafter gave physical custody of them to Aron. William and Deborah stayed with the father for five or six months. Because his living conditions were not suitable for the children, however, he allowed them to live with his brother for approximately three months. In May, 1978, Aron purchased a larger trailer home and the children returned to live with him. On joint motion of the parties returned to live with him. On joint motion of the parties, the trial judge on May 31,1978 granted custody of William and Deborah to the father.

Commencing on October 27, 1978 the mother filed rules for transfer of custody based on the claim that a change in circumstances which compelled her to surrender custody was no longer present and the children were no longer living with their father but with the father’s brother. The trial judge dismissed plaintiff’s rules and it is from the dismissal on March 5, 1980 that the mother appeals. The children had been living with the father almost two years at the time the trial judge rendered the judgment.

In this appeal the mother contends that the consent judgment giving Aron custody was only a temporary arrangement in 'the children’s best interest until she gained more financial stability at which time William and Deborah would be returned to her. According to Jean, the trial court improperly placed on her a “double burden” of showing that the conditions under which the children are living with their father are detrimental to their welfare and that she can and will provide a good home and a better environment. It is her contention that this burden does not apply where temporary custody was voluntarily given to the father. Jean argues that Aron should have the burden of showing that he can provide a better environment for the children’s welfare. Finally, the mother contends the trial judge abused his discretion in allowing the custody of the children to remain with the father. We disagree.

We reject plaintiff’s argument relating to the “double burden” requirement. The Louisiana Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980), interpreting the amended version of LSA-C.C. art. 157, stated that the best interest of the child is the sole criterian applicable to change of custody cases. The Bordelon court pointed out that the language in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), which held that a party seeking a change of custody has a heavy burden of proving that the present custody is deliterious to the children, no longer applies as a substantive criterion for changing custody. In view of the Bordelon decision, our concern is whether the trial judge abused his discretion when he permitted the custody of the children to remain with the father.

Considerable evidence was adduced at trial concerning the children’s environment. The father testified that he has remarried and the two children are presently living in a newly purchased three-bedroom trailer with his present wife and three other children. Debbie has her own single bed in a room shared with another girl and William has a bed in another room with the two other boys. Debbie and William are presently in the first grade. Aron is self-employed and earning approximately $200.00 per week in a salvaging business. He testified that his new wife takes care of the children when he is not home and that they are doing well in school.

Jean, on the other hand, testified that she has remarried and now lives in a two-bedroom apartment. She is presently unemployed and anticipates receiving “disability payments” because of a disc problem in her back. She said that she has a five-percent disability and cannot stand on her feet long or lift anything heavy. She felt that her back condition would not interfere with her ability to care for the children.

Jean’s present husband, George Smith, is retired. He receives $147.00 as a pension and $420.00 Social Security per month. His present monthly rent is $188.00 and he has liquid assets in treasury certificates and savings bonds in excess of $28,000.00. He has had three back operations and cannot work.

Although plaintiff related instances of concern that the children’s father had failed to obtain medical treatment when they required it and though she expressed concern over black and blue marks and cuts on the children, she could not say that Aron was a “bad father.” The testimony of the two children before the judge outside of the presence of their parents indicates that they love their father, although he punishes them by whipping or spanking them when they are bad. Although both children indicated they enjoyed being with their mother, neither knew where he or she wanted to stay permanently.

The evidence considered, we find no abuse of the trial court’s discretion. The judgment is affirmed.

AFFIRMED.

      . LSA-C.C. art. 157 reads as follows, in pertinent part:
      “Art. 157. Custody and tutorship of children; visitation rights of grandparents.
      A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent....”


author: CHEHARDY, Judge.

text:
    Dardanella DUPLESSIS v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 11682.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.
    Writ Denied May 1,1981.
    John S. Keller, New Orleans, for plaintiff-appellant.
    James Maher, III, New Orleans, for defendant-appellee.
    Before SAMUEL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Dardanella Duplessis, appeals a trial court decision in favor of defendant, New Orleans Public Service Inc. (NOPSI), dismissing the plaintiff’s case at her costs.

Plaintiff, a fare-paying passenger on a NOPSI bus, fell as she was alighting from the rear door of the bus and was injured. She testified at trial that after the accident, as the NOPSI supervisor was inspecting the bus, plaintiff noticed a “little bulge” on the bottom step which she had used in making her exit; she admitted, however, that she saw no one else stumble or fall on the steps of the bus between the time she boarded it and the time of her accident.

Stephen J. Carriere, the operator on the bus on which Mrs. Duplessis was riding, testified he saw no one else fall on the morning of the accident. He also testified he visually inspected the steps of the bus after the accident, but did not see a “lump” or a “hump,” nor was he instructed to take the bus out of service after this accident because of any defect on the bottom step.

Joseph A. Stephany, supervisor for NOP-SI, said he was called to the accident scene and a visual check of the bottom step revealed no type of bulge or defect.

Jesse J. Hunter, a claims adjustor for NOPSI, said he checked the steps of the bus two days after the accident, stepping on them for weakness or looseness, and no defects, weaknesses or bulges were discovered, nor were any defect cards made at all concerning the steps for a month and a half before or after the accident. Photographs of the bus steps introduced at trial revealed no defects in the steps of the bus.

In dismissing the plaintiff’s case, the district court judge noted orally:

“Well, it’s obvious to the Court that the plaintiff has not proven her case. Counsel * * * for plaintiff has referred the Court to the case of Galland versus New Orleans Public Service; very recently decided by the Supreme Court, November 1979, in which the Court simply says that because it is a public conveyance, that they must exculpate themselves from any negligence, but in that case, the Court specifically stated that the defendant failed to do that because the [sic] offered no evidence or testimony to rebut that which was presented by the plaintiff or the prima facie case of negligence thereby created. Since the defendant did not prove it is free from negligence, the trial court properly found in favor of the plaintiff.
“Well, in this case, I’m satisfied that the defendant has proved it is free from any negligence by the only method I guess that’s possible; by an inspection of the step which plaintiff claims she slipped on, and there’s no evidence that the step was faulty. I’ll have to dismiss the suit on plaintiff’s cause.”

In the case of Galland v. New Orleans Public Service Inc., 377 So.2d 84, 85 (La. 1979), the court established:

“ * * * We granted, certiorari in order to determine if the court of appeal properly applied the presumption of negligence created in favor of a fare-paying passenger who established that she had been injured and did not reach her destination safely. We find that it did not. In so doing, we hold that the mere showing of an injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself of negligence. Carter v. New Orleans Public Service Inc., 305 So.2d 481, 483 (La.1975).”

It was also stated in Galland, however, at page 85:

“It is well established that common carriers are charged with the highest degree of care to their passengers and that the slightest negligence causing injury to a passenger will result in liability. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Gross v. Teche Lines, 207 La. 354, 21 So.2d 378 (1945). Further, where there is proof of injury to a fare-paying passenger, the burden shifts to the defendant carrier to show that he is free from negligence. Wise v. Prescott, supra; Carter v. New Orleans Public Service, Inc., supra. It is here that the court of appeal erred when it stated that the plaintiff must not merely prove that the injury occurred but that the injury was caused by an incident, occurrence or condition which is attributable to the carrier before the presumption is created in favor of the plaintiff. Properly stated, the rule is that the mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincing by overcoming the prima facie case. Wise v. Prescott, supra.

In the present case, plaintiff presented a prima facie case, but the trial court found defendant had rebutted the presumption of negligence. Plaintiff testified after the accident she saw a bump in the stair covering on which she had tripped. Defendant’s witnesses testified, however, they neither saw a bump nor found a defect. The only issues are those of fact and credibility. The trial court’s findings on either are not to be disturbed on appeal if reasonably supported by the record and not clearly wrong, Arcen-eaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Accordingly, the trial court judgment is affirmed.

AFFIRMED.

      . Plaintiff had boarded the bus at Congress and St. Claude and disembarked at the end of the line at Canal and North Rampart.


author: KLIEBERT, Judge.

text:
    SOUTHERN PACIFIC TRANSPORTATION COMPANY v. NATIONAL MOLASSES COMPANY.
    No. 11692.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1981.

      Chaffe, McCall, Phillips, Toler & Sarpy, Jarrell E. Godfrey, Jr., New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Allen R. Fontenot, New Orleans, for defendant-appellee.
    Before SAMUEL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

This suit arises out of the collapse on August 22, 1972 of a railroad trestle. A truck loaded with barrels of lube oil, ordered by and intended for the “Team Vega”, a boat chartered by National Molasses Company, lying alongside the wharf was driven onto the trestle by Shelton Arcement, an employee of Texaco, Inc. He was accompanied by Edgar Romaguera, another employee of Texaco. The railroad trestle led out to the wharf. The wharf and the trestle belonged to Southern Pacific Transportation Company. Upon the truck reaching a point over the Mississippi River, the trestle collapsed, causing the truck and the employees to fall into the water. Arcement was killed and Romaguera was injured.

Suits for damages were brought in federal court against Southern Pacific. A jury awarded damages of $391,000.00 to Arcement’s heirs, and $50,000.00 to Romaguera. An appeal was taken to the Federal Fifth Circuit Court of Appeal. The federal appeal court upheld the jury awards holding there was sufficient evidence for the jury to find negligence under Article 2315 of the Civil Code because Southern Pacific failed to keep vehicles from driving onto the railroad trestle which had the deceptive appearance of a vehicular roadway access to the wharf, but which was not designed or constructed to bear the weight of vehicles, such as the one involved in the accident here.

Southern Pacific paid the judgment rendered against it in the damage suits and now seeks from the defendant, National Molasses, indemnification or reimbursement of $531,769.12 paid on the judgments, $13,-482.00 cost of repairing the wharf, litigation expenses of $20,000.00, attorney fees of $25,000.00 for defending the original damage suits and $10,000.00 for the present suit or a total of $600,251.72. Southern Pacific advances several theories for recovery.

At the time of the accident, the “Team Vega” was under charter to National Molasses. The vessel was at the dock discharging molasses through a pipe line running beneath the trestle and wharf to tanks belonging to National Molasses. The tanks were located on land leased by National Molasses from Southern Pacific. The lease contained the following indemnification provision:

“With respect to any liability for loss, damage, injury or death arising from or incident to the use of the leased premises, each party agrees that it will assume and indemnify and hold harmless the other party against all liability, cost and expense caused by its actions or omissions (or the actions or omissions of its agents, contractors, employees or invitees) or by defective property in its possession, care, custody or control. In the event of any combination of such factors involving both parties, each shall assume and will indemnify and hold harmless the other party against all liability, cost and expense for loss of or damage to property in its possession, care, custody or control, and for injury or death of its agents, contractors, employees or invitees, and any liability to third parties shall be equally divided between the parties hereto. For the purpose of this Section 13, any violation by Lessee of the provisions of Section 6 hereof shall be deemed the sole cause of any loss, damage, injury or death arising therefrom. The provisions of this Section 13 are solely for the benefit of the parties hereto and shall not give rise to a claim or cause of action by or affect the liability of any other person.”

Counsel for appellant argues that under the clear language of the indemnity agreement (cited above), Southern Pacific is held harmless against all liability resulting from National’s actions or omissions of National’s agents, contractors, employees, or invitees. Accordingly, it argues the negligence of National and/or the negligence of the Texaco employees (who are alleged to be invitees of National) was either the cause in fact of the accident or at least a contributing cause; therefore, Southern Pacific is entitled to indemnification from National under the indemnification provision of the lease. The evidence introduced at the trial did not support appellant’s theory.

Harris Baudoin was the road manager of Southern Pacific at the time of the accident. Baudoin testified that Southern Pacific did not allow vehicles other than trains over the wharf and trestle in question. According to his testimony, Southern Pacific kept a chain across the entrance to the trestle which led to the wharf, and only Southern Pacific train crews and maintenance people had keys to the chain.

James Phillips, III, Vice-President of National Molasses, testified his company did not lease either the wharf or trestle from Southern Pacific, nor did the defendant have control over or maintenance responsibilities of the wharf or trestle. Phillips also stated it was National’s policy not to allow trucks on the wharf.

Conrad Schexnayder, plant foreman at National Molasses in 1972, testified that it was National’s policy to inform the various agents and stevedores servicing the ships that they were not to make deliveries of supplies by truck, but did not recall if he had given this warning to the “Team Vega” on the day of the accident. Further, Schex-nayder recalled that on the date of the accident, the chain across the entrance to the wharf was up when he arrived on the morning of the accident; he noticed, however, it was down when he went to view the accident. Schexnayder stated he did not see any Southern Pacific employees in the area either prior to or after the accident.

Although it is not known who in fact took the chain down, counsel for Southern Pacific argues it is reasonable to assume it could not have been a Southern Pacific employee since there was none around and they had no reason to be there. Further, Southern Pacific argues the only reasonable hypotheses is that some employee of National or some crew member of the vessel took the chain down. We do not agree.

It is an elementary rule of law that one who asserts a fact must carry the burden of proving the same by a preponderance of the evidence. Meyer v. State, Department of Public Safety License Control and Driver Improvement Division, 312 So.2d 289 (La.1975). Proof by a preponderance of the evidence simply means taking the evidence as a whole, such proof shows the fact or cause sought to be proved is more probable than not. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971). The trial court found no negligence on the part of National Molasses. A trial judge’s finding of fact is not to be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We see no manifest error in the trial court ruling.

Counsel for Southern Pacific contends that since the injured Texaco employees were invitees of National Molasses, Southern Pacific is entitled to indemnification under the lease agreement. He refers to the following facts established by stipulations to support his argument: The ship “Team Vega” was under charter to National Molasses. The officer of the vessel placed the order and requested delivery of the lube oil to the ship. At no time was National Molasses consulted by the crew of the ship relative to repairs, maintenance or operations of the ship or purchase of fuel and supplies. The Texaco employees were invitees of the “Team Vega”, i. e., the victims went upon the premises (albeit un-leased premises, but nevertheless, premises which “Team Vega” had permission to use) with the express invitation of the occupant for the mutual advantage of both, Texaco and the “Team Vega”. The ship being on charter to National Molasses, its relationship to National Molasses was that of a contractor. Therefore, the closest relationship which existed between the Texaco employees and National Molasses was that of an invitee of a contractor. This situation clearly does not come within the ambit of the indemnification agreement contained in the lease agreement.

Next, Southern Pacific contends the accident is within the ambit of the indemnification agreement insofar as it was an accident “arising from or incident to the use of the leased premises.” Southern Pacific admits the accident did not occur on the leased premises. However, its counsel contends that since the “Team Vega” was discharging National’s molasses through a pipeline running beneath the wharf and trestle into the tank on the leased premises, the discharging of molasses by the ship was an activity incident to the use of the leased premises.

We cannot agree. No evidence to show why the lube oil was delivered to the “Team Vega” was introduced. According to the stipulation, National Molasses had no knowledge of the order being placed for the oil or the contemplated delivery of the oil. There being nothing in the record to show the contemplated delivery of lubricating oil arose from or was incident to the use of the leased premises, then this theory falls.

Additionally, Southern Pacific argues the trestle which collapsed was under the possession and control of National at the time of the accident and for that reason, it should recover under the indemnification provisions. To support his position, counsel cites federal jurisprudence, holding that the means of ingress and egress to a ship, including the wharf at which it is docked, is an appurtenance of the ship. As an appurtenance of the ship, the vessel owes a duty of care of the wharf to the vessel’s business invitees.

The uncontroverted evidence shows Southern Pacific had the responsibility for the care and maintenance of the wharf. Additionally, the wharf was not included in the lease to National Molasses, nor did National Molasses have keys to the chain which controlled access to the wharf. Under those circumstances, we conclude, as did the trial court, that the trestle and wharf were in the care and control of Southern Pacific, not National Molasses.

Lastly, Southern Pacific advances the theory, apparently in the alternative, that both they and National Molasses were guilty of negligence which caused the accident and therefore, their liability shall be divided equally between them (as per the final sentence of the indemnification agreement). As discussed previously, Southern Pacific has not proved by a preponderance of the evidence that National Molasses was guilty of negligence. Therefore, any contribution by National Molasses would have to be based on interpretation of the indemnification agreement.

Southern Pacific was found to be negligent by the Federal District Court. The judgment has been affirmed. The prevailing rule in Louisiana regarding indemnification to a negligent indemnitee was stated by the Supreme Court in Green v. Taca International Airlines, 304 So.2d 357 (La. 1974), wherein it stated (at 361):

“_a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms. This rule is equally applicable whether the damage is caused by the sole negligence of the indemnitee or the concurrent negligence of the indemnitee and indemnitor.”

The indemnification agreement, above quoted, does not state that Southern Pacific will be indemnified for its own negligent acts. Rather, it states the opposite — that if the actions or omissions of National Molasses results in losses to Southern Pacific, then National Molasses will indemnify Southern Pacific for such losses. If their joint negligence causes the loss, then the losses are divided between them. No mention is made of indemnifying Southern Pacific for its own acts of negligence in the agreement.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.