text:
    Michael C. TABOR, Plaintiff-Appellee, v. Judy Gail TABOR, Defendant-Appellant.
    No. 15024.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      M. Randal Fish, Bossier City, for defendant-appellant.
    Whitmeyer, Thomas & Glassell by Claudius E. Whitmeyer, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   MARVIN, Judge.

The mother appeals a judgment awarding custody of her three-year-old daughter to the father, contending that the trial court abused its discretion. We affirm.

The child was born in December 1979 following the parents’ marriage in 1975. The parents separated in fact about July 1, 1981, and the father shortly thereafter moved to Amarillo, Texas, for about three months before returning to Shreveport and resuming his former job.

The mother admits that she and the child lived in a mobile home with her paramour, J.R., from September 1981 until late January 1982, that J.R. leased an apartment in expectation of their marriage and listed himself, the mother, and her child as the persons who would occupy the apartment. She admitted her adulterous relationship with J.R. after first contending that they occupied separate bedrooms in the mobile home, and does not contest the divorce awarded her husband on these grounds. She acknowledges that she and the child visited the leased apartment after February 1, 1982, but contends that she and J.R. ceased having sexual relations after moving from the mobile home because of reasons of conscience. She said that she had lived with her mother and sometimes with her former sister-in-law after moving from the mobile home. The apartment of the ex-sister-in-law is in the same complex as J.R.’s apartment.

J.R. testified that he “supported” the mother and the child for about three months before they moved in with him in September 1981. It is shown that the father contributed to the support of the family during this time and that the mother went to Amarillo to obtain some support money from him. Since the separation, the mother worked for varying periods up to three months in about three jobs before accepting part time work in a store owned by relatives. The father, with the exception of the job in Amarillo, has held the same job since he graduated from high school. His employer testified that he was respected, stable, and dependable.

The trial court considered the intention of the mother and J.R. to marry when J.R.’s divorce would occur in late 1982. The trial court found that the mother continued to “live with” J.R. after they moved from the mobile home and that she deliberately lied about this relationship. When construed as continuing to live in open concubinage, this finding is not supported by testimony. The mother admitted that she made several daytime visits with J.R. in the apartment. This admission circumstantially supports the trial court’s implied finding that the adulterous relationship continued after the move from the mobile home.

The mother argues that she was “discreet” about her relationship with J.R., that she allowed herself and the child to be presented as J.R.’s wife and daughter to neighbors and landlord and concealed the relationship to her close friends and relatives to avoid any reflection on the child. The mother asserts that “nothing” has occurred in the presence of the child, that there is no suggestion of possible detrimental effect on the child, and that J.R. loves and cares for the child and intends to marry the mother and to help raise the child. She argues that the trial court abused its discretion and sought to “justify” the award of custody to the father by deciding every contested factual issue against the mother. This argument strongly implies that the trial court purposely ignored and disregarded evidence favorable to the mother. The mother contends that the only real reason for the award was the mother’s adultery, which in the absence of a showing of detriment, actual or potential, to the child, is not legally sufficient to support the award. We cannot agree.

In this vein, the mother also contends that she has been the primary nurturing parent, who, since the birth of the child, has continuously loved and cared for the child, and that it would be harmful to the child to break the stable relationship and close bond between her and the child.

The difficulty of child custody cases is most recently illustrated in Bagents v. Bagents, 419 So.2d 460 (La.1982), a 4-3 decision by our highest court. There the mother, with her five-year-old child, had been living in open concubinage with W.B. She moved out of his apartment shortly before trial of the custody rule. After the custody hearing, she married W.B. We adopt here the supreme court’s observations about the law:

“The principal consideration in every child custody case is the best interest and welfare of the child. Past misconduct and moral unfitness, demonstrated in this case by the mother’s open concubinage in the home with the child, is a valid basis for determining the present suitability of a parent.... The present case is complicated by the fact (stipulated at the hearing on the motion for new trial) that the mother married her paramour as soon as it was legally possible to do so, thus eliminating the detriment from the child’s living in the environment of an illicit relationship. However, the marriage did not represent a change in the mother’s moral values or a desire to reform, and the trial judge on motion for new trial refused to recall the change of custody, again stressing that it was not in the best interest of the child to be raised by a parent with this mother’s selfish attitude and immoral outlook.
“In performing its function of deciding custody cases, the trial court is vested with a vast amount of discretion. On appellate review, great deference must be accorded to the decision of the trial court, not only because of that court’s better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts....
“The decision reached by the trial court in this case is not necessarily the decision that the individual judges of this court would have reached. Nevertheless, this court’s function is not to substitute its collective decision for that of the trial court, but to review the decision for error of law. We cannot say in this ease that the trial court erred as a matter of law in deciding that a change of custody was in the child’s best interest.” 419 So.2d at pp. 462-463. Citations omitted.

In civil appeals, our review extends to facts and law. LSA Constn. Art. 5, § 10(B). We recognize the difficulty and futility of attempts to reconcile the many reported opinions in child custody disputes. Appellate courts cannot and do not lay down hard and fast rules and guidelines in these cases and counsel should not take a factor or legal principle from one case and assert that factor or principle as controlling in another case because each case deals with a peculiar parental relationship which will exist prospectively, and then only as long as the circumstances in the relationship do not change in the future. The only common features in these cases are the principles that each case must be determined on its own facts, that the trial courts shall make the determination on the best interest of the child, and that, in the absence of a showing of a clear abuse of discretion, the appellate court will uphold the trial court’s judgment. Bagent, supra. See and compare Nale v. Nale, 409 So.2d 1299 (La.App. 2d Cir.1982) and James v. James, 409 So.2d 1297 (La.App. 2d Cir.1982). In all cases, the appeal is from the judgment, and not from the trial court’s reasons for the judgment. CCP Arts. 2082-2083; State, in Interest of Mason, 356 So.2d 530 (La.App. 1st Cir.1977).

The trial court determined that it was in the best interest of the child to award custody to the father. This determination was made because the mother lived in open concubinage, at least until January 29, 1982, and, although not openly, she continued her relationship with her paramour thereafter and sought to deceive the court about the extent of her relationship with her paramour before and after that date.

Except to the extent modified here, for the reasons assigned below which we have summarized, the judgment is AFFIRMED at appellee’s costs.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Debbie Knepper HUDSON, Plaintiff-Appellee, v. Lee Francis HUDSON, Defendant-Appellant.
    No. 15027.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Gamm, Greenberg & Kaplan by Alex Ru-benstein, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   MARVIN, Judge.

Prom a judgment increasing monthly child support from $150 to $275, the father appeals, contending that the mother failed in her burden of showing a substantial change in circumstances and that the trial court abused its discretion in granting the increase. We affirm.

The trial court found that the $150 award in 1980 was consented to by the parents “because father was not making much money” ($750 per month as a manager of a cocktail lounge). He thereafter obtained employment as a leasehound in the oil and gas business and his earnings reached as much as $3,600 per month, averaging approximately $2,000 per month for the eight months preceding the bringing of this action a year after the 1980 divorce.

The needs of the four-year-old child were found to be $450-$500 per month. The court also found that the mother, who had remarried and was not working, should be entitled to credit for the daily care that she provides the child against her support obligation. CC 227. Ducote v. Ducote, 339 So.2d 835 (La.1976). Determining that a change in circumstances had been shown, the trial court increased the award to $275, slightly more than one-half of $450-$500. The father argues that because the record is devoid of evidence showing the child’s needs at the time of the divorce, it is impossible to determine whether a change of circumstances had occurred and that the mother must be found to have failed in her burden of proof. We do not agree.

Where the current needs of the support obligee are determined from competent evidence and it is shown that the support obligor has the ability to meet those needs because of increased earnings, this showing may be legally sufficient to warrant an increase in the support award. Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1981); Woods v. Woods, 338 So.2d 178 (La.App. 2d Cir.1976). Each case involving modification of a support award must be determined on its own facts.

When a trial court in an action to modify support, considers the circumstances under which the initial award was made, the trial court is weighing and comparing past circumstances and present circumstances in order to deduce what modified amount will satisfy the support obligation in the future. A trial court’s discretion in determining the amount of support must be recognized. In the absence of a showing of an abuse of discretion, the appellate court will not disturb the trial court’s award. Ramsey v. Ramsey, 313 So.2d 911 (La.App. 2d Cir.1975).

In Cowen v. Cowen, 375 So.2d 118 (La.App. 3d Cir.1979), it is shown that Cow-en, when divorced in 1972, earned $800 per month and was ordered to pay $250 towards the monthly support of three children. He reduced his support payment by $50 when the oldest of the three children moved in with him in 1975. His gross income in 1978, when the mother sought an increase in child support, was almost $2,600 per month. The court emphasized the substantial increase in Cowen’s salary and approved an increase in the support award from $250 to $325 per month, “despite the fact that the [mother] has one less child to support.” 375 So.2d at p. 121.

Neither the record nor the husband’s arguments in this appeal shows that the trial court abused its discretion.

At appellant’s cost, the judgment is AFFIRMED.


author: HALL, Judge.

text:
    Mrs. Scott HAYWOOD, Plaintiff-Appellee, v. Gary D. SALTER, Defendant-Appellant.
    No. 15029.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.

      Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellant.
    Leroy H. Scott, Jr., Shreveport, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

The defendant employer appeals from a judgment rendered against him in city court in favor of the plaintiff employee for $432.35 back wages, $2,280 penalty wages, and $600 attorney fees. Plaintiff has answered the appeal asking for a 10 percent increase in the trial court’s judgment for frivolous appeal, and an increase in attorney fees for services rendered in connection with the appeal. In brief, plaintiff appellee also raises an issue as to the timeliness of the appeal. We find the appeal to be timely, amend the trial court judgment to reduce the amount of the award for back wages and to award additional attorneys fees, and as amended, affirm the judgment.

Timeliness of the Appeal

Plaintiff-appellee urges that the appeal was untimely and should be dismissed because appellant’s motion for a new trial was not filed within three days nor was the appeal taken within ten days after a copy of the judgment was mailed to appellant’s counsel as reflected by the minutes of the court. It is also urged that the suspensive appeal was not timely perfected because the appeal bond was not timely, filed.

After trial the case was taken under advisement. The court's written opinion was filed February 10, 1982. Judgment was signed on February 12. A minute entry of that date states: “Copies of judgment mailed to attorneys.”

The record further reflects that on March 24,1982 a notice of judgment was served on defendant’s counsel by the city marshall.

On March 25, 1982, defendant filed a motion for new trial and on March 30 filed a Motion to Vacate Certificate of Mailing of Notice of Signing of Judgment and, Alternatively, Plea of Unconstitutionality. It was alleged that the clerk did not in fact mail a notice of judgment to defendant’s counsel and that counsel did not receive such a notice. Alternatively, defendant pled the unconstitutionality of the applicable procedural statutes if interpreted to mean that mailing, and not receipt, of notice of judgment is sufficient to trigger the delays for appealing.

At a hearing on the motions, defendant’s counsel testified that he did not receive a copy of the judgment in the mail. Plaintiff’s counsel stipulated that this testimony was true and correct. The testimony was that defendant’s counsel first learned that a judgment had been signed on February 26 when he had a conversation with plaintiff’s counsel while on a plane flight. After learning this, defendant’s counsel requested that he be served with notice of judgment and service was made on March 24. The motion for new trial was filed the next day.

The trial court ruled that the motion for new trial was timely, heard argument on the motion, and denied it on March 30. Defendant’s motion for a suspensive appeal was granted that date. A suspensive appeal bond was filed April 12, thirteen days later.

Procedure in trial courts of limited jurisdiction is governed generally by Book VIII of the Code of Civil Procedure, revised and reenacted by Act 46 of 1979, effective January 1, 1980, Articles 4831 — 5011.

In city court cases where the amount in dispute exceeds $3,000, the procedure is the same as in district court, except for the delay for appealing as provided by Article 5003. LSA-C.C.P. Art. 4901. In suits where the amount in dispute is $3,000 or less, the procedure is governed by Articles 4911-4920. LSA-C.C.P. Art. 4902.

The amount in controversy is determined by the amount demanded by the plaintiff, but does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law. LSA-C.C.P. Art. 4841. In this case, the amount sued for by plaintiff was $380 in wages due, plus penalty wages at the rate of $760 per month for three months, and $1,000 attorney fees. Excluding penalties and attorney fees, the amount in controversy is $380 and the provisions of Articles 4911-4920 are applicable.

Article 4917 provides that notice of judgment must be given when the case has been taken under advisement. Where the party who is entitled to notice of judgment has counsel of record, notice of judgment shall be given by mailing or delivering a copy of the judgment to the counsel of record. Although the comment following Article 4917 states that the article incorporates into the procedure for small claims the same provisions for notice of judgment required in larger claims under Article 1913, that statement is not precisely accurate. Article 1913 allows mailing of notice of judgment to counsel or parties not represented by counsel while Article 4917 requires service of notice of judgment on unrepresented parties. Pertinent to this case, Article 4917 does not contain the Article 1913 requirement that the clerk file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the judgment was mailed.

Article 4919 provides that the delay for applying for a new trial shall be three days, exclusive of holidays. Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.

The delay for appeal is established by Article 5003. An appeal from a judgment rendered by a city court may be taken only within ten days from the date of the judgment, or from service of notice of judgment when such notice is necessary. Where an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial when such notice is necessary.

It should be noted that the delay for appealing from a city court judgment commences from date of judgment or service of notice of judgment, and not from the expiration of the delay for applying for a new trial as in appeals from district court judgments. Compare LSA-C.C.P. Arts. 2087 and 2123. However, the timely filing of a motion for new trial in effect interrupts the delay, which commences anew the day after the motion is denied or from service of notice of denial if required. Although the term “service” of notice of judgment is used in Article 5003, when that article is read in conjunction with Articles 4917 and 4919 it is obvious that the ten-day appeal delay commences the day after “mailing” of notice of judgment where mailing is authorized by Article 4917.

The delay for applying for a new trial and for appealing is triggered by the actual mailing of notice of judgment or a copy of the judgment. Although Article 4917 does not contain the same requirement as Article 1913 of the filing of a certificate by the clerk of court, the record in a city court suit should contain a substantially similar official statement by the clerk of court evidencing mailing of notice of judgment. An official minute entry by the clerk showing the date notice was mailed and the counsel or parties to whom notice was mailed should suffice. It is to be noted that in this case the minute entry reflects mailing of a copy of the judgment to “attorneys” without specificity as to names of the attorneys.

The certification by the clerk is presumed to be correct, but not conclusively so, and may be refuted or amended and corrected where it is shown in an appropriate proceeding to be in error. In Soileau v. Tri-State Mutual Insurance Company, 206 So.2d 716 (La.App. 3d Cir.1967), a case on appeal was remanded for the purpose of taking evidence and a decision by the trial court “on the factual issue of whether the Clerk of Court mailed the notice in compliance with LSA-C.C.P. Article 1913” and on “defendant’s request to correct the certificate” which the clerk had filed in the record purporting to show that notice of judgment had been mailed. The court observed that “... the Clerk’s certificate is not conclusively presumed to be correct and could be questioned by a proper proceeding .... ” In Ventre v. Pacific Indemnity Co., 391 So.2d 95 (La.App. 3d Cir.1980), a similar result was reached with the court, using similar language, citing Soileau.

In the instant case, in a proper proceeding to correct the clerk’s minute entry or certificate of mailing notice of judgment, it was established without doubt that notice of judgment was not received in the mail by defendant’s counsel. The reasonable assumption from this evidence is that the notice was not mailed to him by the clerk. The minute entry does not state with specificity that notice was mailed to this particular attorney by name.

Appeals are favored in the law and should not be dismissed unless the law clearly requires a dismissal. In re Salmon, 318 So.2d 897 (La.App. 2d Cir.1975); Penalber v. Blount, 405 So.2d 1376 (La.App. 1st Cir.1981). Considering the lack of specificity in the minute entry and the uncontro-verted evidence that notice of judgment was not delivered to counsel in the mail, stipulated as correct by appellee’s counsel, we conclude the notice was not mailed and, accordingly, the delay for filing a motion for new trial and for appealing did not commence to run on the date of the minute entry.

Nor did the delay commence to run on the date appellant’s counsel obtained actual knowledge of the signing of the judgment. Actual knowledge of the signing of a judgment dehors the record and absent compliance with the mailing or service requirement is not sufficient to cause the new trial and appeal delays to commence. Arnold v. Arnold, 345 So.2d 1020 (La.App. 2d Cir.1977); Broussard v. Annaloro, 265 So.2d 648, 649 (La.App. 3d Cir.1972); Boswell v. Jeff Cantrell Homes, Inc., 333 So.2d 374 (La.App. 2d Cir.1976).

The delay for filing the motion for new trial commenced on the day after notice of judgment was served on appellant’s counsel. The motion for new trial filed the next day was timely and the motion for appeal made and granted the same day on which the motion for new trial was denied was timely.

The suspensive appeal bond was not timely filed within the ten-day period for perfecting an appeal. However, the appeal will be maintained as a devolutive appeal. Southern Mosaic Tile, Inc. v. Alessi, 402 So.2d 225 (La.App. 1st Cir.1981).

On the Merits

The defendant hired plaintiff on November 17, 1980 as a general office worker in defendant’s CPA office. The parties agreed that plaintiff’s salary would be $760 per month payable on the first and fifteenth of each month. Plaintiff’s net semimonthly checks were $328. She received a semi-monthly paycheck for that amount on January 15, 1981. The next day she resigned from employment, after which defendant stopped payment on the check. Plaintiff thereafter made two demands on defendant for the money owed her.

On January 22, 1981, in response to a letter from plaintiff’s attorney offering to compromise the matter, defendant sent the attorney a check for $54.64 representing plaintiff’s net semi-monthly salary less an amount equivalent to wages for 37 hours which plaintiff had missed as the result of sickness during her tenure, five days holiday pay, and the cost of a nameplate purchased by plaintiff without authority. A notation on the check stated “Final Payment on Earnings as per Letter of 1/22/81 to Mr. Harold Vaught”. The check was not cashed and plaintiff filed suit on February 2, 1981 for unpaid wages, penalty wages, and attorney fees under the provisions of LSA-R.S. 23:631 and 632. After trial judgment was rendered in favor of plaintiff for the amounts previously stated.

Defendant complains that the trial court erred in awarding any amount for unpaid wages, particularly any amount above the amount tendered by the defendant to plaintiff’s attorney. Defendant further complains that the trial court erred in awarding penalty wages in view of the fact that there was a bona fide dispute as to the amount owed. Defendant further complains that the trial court erred in awarding attorney fees, particularly in an excessive amount.

LSA — R.S. 23:631(A) provides that upon discharge or resignation of any employee it shall be the duty of the employer to pay the amount due under the terms of employment not later than three days following the date of discharge or resignation. Subsection B requires that in the event of a dispute as to the amount due, the employer shall pay the undisputed portion of the amount due as required by subsection A. Section 632 provides that any employer who fails or refuses to comply with the provisions of Section 631 shall be liable to the employee either for 90 days wages at the employee’s daily rate of pay or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount. Reasonable attorney fees shall be allowed the employee in the event a well-founded suit for any unpaid wages whatsoever be filed by the employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Defendant contends that plaintiff, in accordance with the employment agreement, was not entitled to sick leave or holiday pay until she had been employed for six months. Therefore, from the net $328.64 due January 15, 1981, defendant deducted 37 hours plaintiff was absent due to sickness ($162.06); five holidays (two days at Thanksgiving, two days at Christmas, and one day on New Year’s totaling $175.20); added 5.8 hours ($25.40) for which she had not been paid (24 hours “overtime” less 18.2 hours defendant contends he paid on overtime by way of a Christmas bonus); and also deducted $8.97 for the cost of a nameplate allegedly purchased by plaintiff without authorization. After the above deductions and a deduction for social security, defendant arrived at the figure of $54.64.

The evidence establishes that plaintiff and defendant agreed that she would not be entitled to pay for days when she was absent because of sickness, but that plaintiff could make up this time off by working overtime, which was frequently required. In keeping with the employment agreement defendant was entitled to deduct from the $380 gross pay due the sum of $56.94 for the difference between the days she was off sick and the overtime she worked, leaving a gross amount due of $323.06.

The testimony does not establish that there was an agreement that plaintiff would not be paid for the days she did not work at Thanksgiving, Christmas, and New Year’s when the office was closed. In the absence of a special agreement an employer cannot deduct money from a salaried employee’s paycheck for routine nonworking days on which the employee did not work. See Vanacor v. St. Amant, 379 So.2d 769 (La.App. 4th Cir.1979). The weight of the evidence is that the Christmas bonus was paid to plaintiff in the normal sense of a Christmas bonus and was not designated as payment for overtime to-be worked in the future, as claimed by defendant. Nor does the evidence support the deduction for the cost of the nameplate. Defendant is not entitled to credit for these items from the amount due plaintiff.

The record does not reflect how the amount of $432.35 awarded by the trial court was calculated but, in any event, the amount awarded for unpaid wages will be reduced to $323.06 less appropriate withholding tax deductions.

Defendant contends that the trial court erred in awarding penalty wages because there was a bona fide dispute as to the amount due.

LSA-R.S. 23:631 and 632 are penal in nature, must be strictly construed, and their provisions must yield to equitable defenses. Strickland v. American Pitch Pine Export Company, 224 La. 949, 71 So.2d 338 (1954); Mitchell v. First National Life Insurance Company of Louisiana, 236 La. 696, 109 So.2d 61 (1959); Johnson v. Banner Corporation, 308 So.2d 534 (La.App. 4th Cir.1975). If there is a bona fide dispute over the amount of wages due the courts will not consider the failure to pay as an arbitrary refusal and will refuse to award penalties. Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826 (La.App. 2d Cir.1973); Pace v. Parker Drilling Company and Subsidiaries, 382 So.2d 988 (La.App. 1st Cir.1980); Lazauskas v. Louisiana Offshore Caterers, Inc., 371 So.2d 1183 (La.App. 1st Cir.1979).

Although there was a good faith dispute as to the total amount due to the limited extent discussed above, the defendant was unreasonable and arbitrary and, therefore, not in good faith in claiming a deduction for holidays and for the Christmas bonus.

The conditional tender of the check for $54.64 in final payment of plaintiff’s claim for wages did not constitute compliance with LSA-R.S. 23:631 B as to the undisputed portion of the amount due. See Rush v. Ryan Chevrolet, Inc., 408 So.2d 984 (La. App.2d Cir.1981).

Since we find that the defendant was arbitrary and unreasonable in asserting a defense to a substantial part of the claim for past due wages, and failed to unconditionally tender payment of the amount which he did not dispute was due, it follows that the award of penalty wages is correct.

An employee who brings a well-founded suit for unpaid wages is entitled to mandatory attorney fees irrespective of any defenses which may be raised by his employer. Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978). Since plaintiff established her entitlement to unpaid wages, she is entitled to attorney fees. We find no abuse of discretion by the trial court in awarding the amount of $600. We award plaintiff an additional $150 attorney fees for the services of the attorney rendered in connection with the appeal.

The appeal is clearly not frivolous, particularly in that it resulted in a reduction in the amount of the judgment against defendant. LSA-C.C.P. Art. 2164; Goad v. May, 376 So.2d 340 (La.App.3d Cir.1979).

The judgment of the trial court is amended to reduce the award for back wages from $432.35 to $323.06, less withholding tax deductions, and to increase the award for attorney fees from $600 to $750 and is otherwise affirmed. Costs of the appeal are assessed to the defendant-appellant.

Amended, and as amended, affirmed.


author: SEXTON, Judge.

text:
    David J. ELLIOTT, Plaintiff/Appellee, v. EAST CARROLL PARISH POLICE JURY, Defendant/Appellant.
    No. 15037.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      George F. Fox, Jr., Lake Providence, for defendant/appellant.
    Yoelker, Ragland, Brackin & Crigler by James C. Crigler, Jr., Lake Providence, for plaintiff/appellee.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

The defendant-appellant, the East Carroll Parish Police Jury, appeals from the judgment of the Sixth Judicial District Court, the Honorable Cliff C. Adams, presiding, rendered in favor of the plaintiff-appellee, David J. Elliott, ordering the East Carroll Parish Police Jury to grant the permit to plaintiff to install culverts in a drainage ditch.

This action was commenced by a petition for a writ of mandamus filed by plaintiff-appellee, David J. Elliott, on April 8, 1982, seeking an order directing the defendant-appellant, the East Carroll Parish Police Jury, to grant a permit to plaintiff to install culverts in parish drainage ditch L-6E. The plaintiff farms approximately 1,000 acres in East Carroll Parish under lease from his father, Joe Elliott, and also leases approximately 83 acres from his uncle, Harvey Elliott. The plaintiff farms rice and soybeans, both of which require the use of large heavy equipment.

The property farmed by David J. Elliott is divided by a parish drainage ditch L-6E. On three different occasions, the plaintiff applied to the East Carroll Parish Police Jury for a permit allowing him to install two nine foot culverts in the drainage ditch, thereby giving him a crossing between the two tracts of land divided by the ditch. The plaintiff proposed to install the culverts in the drainage ditch L-6E at a point below the confluence of two lead ditches from a low lying area, approximately 200 feet downstream from the Joseph Elliott metal weir.

The following facts regarding the permit applications are taken from the testimony of Mr. O.C. Reed, the Secretary-Treasurer of the East Carroll Parish Police Jury.

The plaintiff made his first application for a permit on August 26, 1981. At the police jury meeting a letter was read from the Louisiana Office of Public Works which made a recommendation of a drainage structure at plaintiff’s proposed site of two 108 inch diameter tank or boiler type culverts or a bridge of three spans at 17 feet each. In response to plaintiff’s application, the jury authorized the issuance of a permit to construct a bridge, but not to install culverts. The plaintiff made his second written request for a permit on March 24, 1982. The jury, with some opposition, disapproved this request because litigation was “still pending.” On April 4, 1982, the plaintiff made his third written request to install culverts at his proposed site. The jury denied this request, but did authorize a permit for culverts in drainage ditch L-6E1, near where an old steel bridge of insufficient size is still located.

This location the jury approved is upstream from the location plaintiff sought and crosses the smaller ditch, L-6E1. This ditch joins L-6E (which at that point is just about the same size as L-6E1) somewhat above the desired location of the plaintiff, and thus the plaintiff’s proposed location would cross a ditch significantly larger than the ditch the jury authorized plaintiff to cross.

Plaintiff’s location does provide much easier access for him as it would allow him to cross almost directly between fields being farmed by him. Otherwise he would have to travel a significant distance to the north to an existing culvert crossing L-6E (before its joinder with L-6E1), and then travel back the same distance south to cross L-6E1 at the jury’s proposed location.

Plaintiff filed a writ for mandamus seeking to compel the police jury to issue the permit for a crossing at his desired location. An exception of no cause of action and answer were filed by the defendant. The exception was referred to the merits and the case was tried, resulting in the judgment favorable to the plaintiff. The exception was not mentioned in either the judgment or in the trial court’s orally rendered reasons for judgment, and was in effect overruled.

Among its specifications of error, the defendant avers that the trial court erred in overruling the exception of no cause of action, and in holding that mandamus was the proper procedure through which to compel the East Carroll Parish Police Jury to permit plaintiff to install culverts in a parish drainage ditch. We reverse and sustain the exception of no cause of action, and therefore do not reach the remainder of the issues raised by the plaintiff.

The ordinance upon which the police jury relied for its authority provides in pertinent part as follows:

“BE IT ORDAINED by the Police Jury of the Parish of East Carroll, Louisiana that it shall be unlawful to install any bridge, causeway, culvert, low water crossing, dike, dam, weir, fence or any other type of structure or obstruction or (sic) any kind, and neither can any excavation, filling in, widening or any type of alteration be constructed in road ditch, drainage ditch, canel, river, or bayou in East Carroll Parish, excepting within the boundaries of the Town of Lake Providence, without prior approval of the East Carroll Parish Police Jury. Any ordinance or resolution previously enacted in conflict herewith is hereby repealed.” (emphasis added).

Plaintiff counters the jury’s assertion that mandamus is inappropriate in these proceedings by contending that the ordinance procedure is unconstitutional, asserting that Summerell v. Phillips, 282 So.2d 450 (La.1973), allows the use of mandamus as “the proper type of proceeding to test the constitutionality of a public body’s permit procedure.” Actually it was Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971), that dealt with this issue. There the Supreme Court noted that mandamus was a proper vehicle to test the constitutionality of a statute or ordinance that absolutely precluded the action sought. The Summe-rell cited by plaintiff was the appeal after remand and is thus not pertinent to the issue of the appropriateness of mandamus in these circumstances. The pertinent holding of the original Summerell, supra, at 247 So.2d 542, is as follows:

“... Accordingly, we hold that the plaintiff in a mandamus proceeding may attack the constitutionality of a statute or ordinance excusing the defendant’s performance.” (emphasis added).

The court in Bye v. Giarrusso, 292 So.2d 742 (La.App. 4th Cir.1974), rephrased the issue presented in Summerell:

“May a plaintiff in a mandamus proceeding attack the constitutionality of a statute or ordinance which bars the performance sought by the writ?” (emphasis added).

Bye applied the holding in Summerell to answer the above question in the affirmative.

It is important to note that Summerell authorized the use of mandamus to test the constitutionality of a public body’s ordinance which precluded or barred the body from taking the action requested by the plaintiff. In this case it is clear that the ordinance was discretionary and did not excuse or bar the action sought by the plaintiff. The jury obviously utilized discretion in authorizing the plaintiff to put in a bridge (rather than culverts) at the spot he wished and by later authorizing culverts at a different location. Additionally, it is obvious that the police jury considered each of the plaintiff’s applications and weighed the proposed structure with the alternatives, and voted to disapprove the permit applications.

It is well settled that under LSA-C.C.P. Art. 3863, a writ of mandamus may be directed to a public officer “to compel the performance of a ministerial duty required by law.” Our jurisprudence holds that mandamus lies only to compel performance of purely ministerial duties, or to correct any arbitrary abuse of discretion, and that the writ will not be issued in doubtful cases. Smith v. City of Alexandria, 300 So.2d 561 (La.App.3d Cir.1974); Smith v. Dunn, 263 La. 599, 268 So.2d 670 (1972). Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. Messer v. Department of Corrections, Louisiana State Penitentiary, 385 So.2d 376 (La.App. 1st Cir.1980). Also see Lyons v. Bossier Parish Police Jury, 262 So.2d 838 (La.App.2d Cir.1972). As we have noted the police jury indeed used its discretion in considering plaintiffs requests, thus mandamus does not lie as this is not a matter of a ministerial duty but one in which discretion and evaluation must be exercised.

For the foregoing reasons the judgment of the trial court is reversed and the exception of no cause of action is sustained at appellee’s cost.

REVERSED AND RENDERED.

      . Apparently litigation was imminent rather than pending as this suit was filed on April 8, 1982.


author: NORRIS, Judge.

text:
    Mildred BURNELL, Plaintiff-Appellant, v. SPORTRAN TRANSIT SYSTEM COMPANY, et al., Defendants-Appellees.
    No. 15042-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Writ Denied Dec. 20,1982.

      Rice & McWilliams by John Ford McWil-liams, Jr., Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendants-appellees.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff appeals a jury verdict rejecting her claim for damages sustained as a result of personal injuries allegedly sustained while she was a passenger on a “Sportran” bus in Shreveport.

On September 24, 1979, plaintiff boarded bus 606 owned by Transit Management, Inc. [hereinafter referred to as Sportran], insured by. Transit Casualty Company, and operated by Christine Daniels, its driver. The bus is a GMC diesel bus with a 671 motor. Apparently, there was a defect in this particular bus’ air conditioning system which caused an odor to permeate the bus described by witnesses as “fumes” or “something burning.” There was never any fire or smoke, and otherwise, the bus was operating properly. However, after driving for several blocks, the driver became concerned about the odor and stopped the bus at a local convenience store to telephone Sportran’s maintenance supervisor for instructions as to what to do in connection with this problem. After the driver informed the supervisor that she thought she could drive the bus further, he instructed her to drive two or three miles to meet a replacement bus. Before re-boarding the bus, the driver inspected the rear of the bus and found nothing out of the ordinary. She then proceeded to drive the bus about fifty feet when she noticed sparks flying from the tailpipe of the bus. She immediately stopped the bus and told the passengers to “... unload because the bus is sparkling from behind.”

Twenty-five to thirty passengers were aboard the forty-five capacity bus at the time and all but four or five stood up to leave simultaneously. Approximately half of the passengers exited through the door by the driver’s seat and half through the door to the rear of the bus. The bus was stopped on a two lane paved road with its wheels at least a few feet from the edge of the road. The shoulder of the road was dirt and there were six to seven feet of distance between the road and a two foot, gradually sloping ditch which was damp with dew.

According to the testimony, the passengers did not exhibit any panic or unduly loud noise but there is also testimony that there was some anxiety shown as well as pushing and rushing as they exited the bus. There is further testimony that the driver did not provide the passengers with any instructions on the manner in which they were to leave the bus and did not monitor or supervise their leaving. However, the testimony is consistent that she remained calm and did not panic.

Plaintiff’s uncontradicted testimony was that as she was exiting through the rear door of the bus, another passenger pushed her from behind causing her to slip or fall into the nearby ditch. However, none of the witnesses who testified saw the actual pushing of plaintiff nor did they see plaintiff fall. Only one person who testified actually saw her lying in the ditch. Thereafter, several passengers assisted her to her feet and to a chair provided by a nearby resident where she remained until she was assisted aboard the replacement bus and transported to a location where she was taken home by a friend. The medical testimony presented at trial indicates that she suffered a serious injury to her kneecap as a result of this incident rendering her 15 percent permanently disabled.

After hearing all of the evidence, the jury returned a verdict in favor of defendants and against plaintiff. It is from this verdict that plaintiff appeals assigning as her only error that the jury verdict was inconsistent with the law and the facts.

Although a carrier of passengers is not an insurer of safety, it is required to exercise the highest degree of care and is liable for the slightest negligence. Furthermore, when a passenger is injured in an accident and has failed to reach his destination safely, the burden is on the carrier to prove itself free from fault, that it acted with the highest degree of care or that the accident did not occur. See Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884 (La.1981). The rule properly stated is that the mere showing of injury to a fare-paying passenger on a public conveyance and the failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming the prima facie case. At this point the burden shifts to defendant to show that the incident did not occur, that defendant had exercised reasonable care in discharging the plaintiff or that any negligence on its part was not the legal cause of the plaintiff’s mishap. Gallano v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979). Because carriers are charged with the highest degree of care to their passengers, the slightest negligence causing injury to a passenger will result in liability. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (La.1963). A carrier must use the highest degree of care in selecting safe vehicles and equipment for the safety of its passengers which must be vigilantly and regularly inspected. Kendall v. New Orleans Public Service, Inc., 45 So.2d 541 (La.App.Orl.1950).

Our review of the record indicates that there is ample evidence to support a finding that the plaintiff was a fare paying passenger on a public conveyance who failed to reach her destination safely. Therefore, the burden shifted to Sportran to exculpate itself of negligence.

There is no question but that the bus in question suffered from a mechanical problem which resulted in plaintiff’s being forced to evacuate the bus during which she was injured. Charles Garner, the maintenance supervisor for Sportran, was accepted by the court as an expert on diesel bus maintenance. He testified that the sparks that resulted in the termination of this bus service on that date came from the air conditioner’s clutch system when its plate locked causing sparks and fumes. He further testified that Sportran uses a preventive maintenance system and that even with diligent use of the system, a mechanic cannot foresee whether or not the particular parts that malfunctioned would fail. Plaintiff introduced no evidence to refute this, and we conclude that Sportran was not negligent in failing to provide a safe vehicle which was vigilantly and regularly inspected.

However, a more serious question presented for our review is whether or not Sportran discharged its burden of proof in exculpating itself from any negligence in the manner in which the passengers were evacuated from the bus after it malfunctioned. The burden of proof on Sportran in this regard was to show that there was no disregard of its duty or its employee’s duty to the plaintiff and that her injury resulted from a cause which human care and foresight could not prevent. See Johnson v. New Orleans Public Service, 293 So.2d 203 (La.App. 4th Cir.1974). To exculpate itself from negligence Sportran need not establish the manner in which the plaintiff was injured but need only prove that its actions at the time of the injury were not negligent ones. See Duplessis v. New Orleans Public Service, 354 So.2d 768 (La.App. 4th Cir.1978). Any negligence, however slight, will subject Sportran to liability even assuming that the concurring negligence of a third party contributed primarily to the accident. Brown v. Gonzales, 77 So.2d 887 (La.App. Orl.1955).

It is well settled that a common carrier is not an insurer of the safety of its passengers. However, it is also well established that a common carrier is liable for the slightest negligence which contributes to an accident that causes injury to a passenger. The duty placed on such a carrier is to exercise the highest degree of vigilance, care and precaution. In cases where a passenger is injured by another passenger, the high duty of care placed on a common carrier is violated where there exists reason on the part of the driver to anticipate or foresee that injury may occur to a passenger. Skipper v. New Orleans Public Service, Inc., 338 So.2d 771 (La.App. 4th Cir.1976).

The test for holding a carrier liable in these cases was stated in Aime v. Hebert, 282 So.2d 566 (La.App. 4th Cir.1973):

* * * Such a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its execution. [282 So.2d at 568]

Furthermore, the fact that a carrier created the risk or danger and should have reasonably foreseen that the accident which did occur might occur renders it liable notwithstanding the intervening cause of the harm [here, the pushing by a fellow passenger]. See Waggenspack v. New Orleans Public Service, Inc., 291 So.2d 733 (La.App. 4th Cir.1974).

Our review of the record leads us to conclude that the fact finder here [the jury] was clearly wrong and committed manifest error in its finding that Sportran was not liable to plaintiff for her injuries. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, for the following reasons we reverse its finding.

Plaintiff vigorously argues before this court that the driver’s bald announcement that the passengers must exit the bus because of sparks coupled with the smell of fumes on the bus created a situation of panic and the resulting panic allegedly made the plaintiff’s fall foreseeable to the driver. We disagree with plaintiff’s contention that there was a situation of panic created by the driver’s actions. However, we conclude from our reading of the record that although there is little evidence of panic, there is evidence that the 25-30 passengers on the bus were, for the most part, in a hurry to evacuate the bus and there was pushing and jostling. By the driver’s own admission, she simply announced that the passengers would have to exit the bus because “. .. the bus is sparkling from behind.” She further testified that after making that announcement, she sat back down in her seat, gathered up her schedules and transfer forms and waited for the passengers to clear the bus. She offered no instructions to the passengers as to the proper procedure for the evacuation because “I [the driver] didn’t figure that I had to give anybody any reason to panic, so I didn’t feel like I had to watch them like a child.” In other words, her testimony was to the effect that she did not supervise in any respect the evacuation of the bus, she gave no instructions as to the proper method of evacuation, she did not get off of the bus to determine if the passengers could safely disembark at the place where the bus was stopped, and finally, she did not explain that the problem was not serious and that there was no immediate danger to the passengers who were on the bus with the engine still running. It is further noteworthy that she admitted that she had never been given any instructions by Sportran as to the proper procedure to use to evacuate a bus in such an emergency situation.

We conclude under these facts and circumstances that it was certainly foreseeable that at least some of the passengers after smelling the fumes and being told that sparks were coming from the rear of the bus would become anxious and in a hurry to exit the bus. It is equally foreseeable that such a rush could result in passengers pushing and shoving each other to the extent that someone would be exposed to the risk of being pushed by fellow passengers attempting to hurriedly exit through the doors of the bus. Therefore, plaintiff’s injury falls within the ambit of foreseeable risk, and defendant failed to- observe the high degree of care placed upon a common carrier in such instances to avoid such risk. Accordingly, we conclude that the high degree of care placed upon a common carrier was violated when Sportran failed to instruct its driver as to the proper, safe procedure to follow to evacuate a bus in an emergency situation when the bus malfunctions and when its driver failed to properly instruct her passengers as to the proper method to evacuate and to supervise the evacuation. There was a duty imposed upon Sportran to adequately prepare its driver for such foreseeable emergency situations with their resulting risks and there was a corresponding duty imposed upon the driver to take reasonable action to avoid the risks [the risk being here that someone would be pushed and injured by an overanxious, unsupervised passenger]. The failure of Sportran and its driver to take reasonable action under the circumstances breached their duty to plaintiff, and because there was an “ease of association” between the risk and the duty, liability should be imposed. Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 620 (1972).

Because the burden in this case was shifted to the defendant to show that the incident had not occurred, or that Sportran had exercised reasonable care in discharging plaintiff or that any negligence on its part was not the legal cause of the plaintiff’s injury, we conclude that the evidence presented by defendant was insufficient to rebut the prima facie case of negligence thereby created. Since Sportran did not prove itself free from negligence, the jury was clearly wrong in returning a verdict in favor of Sportran. See Galland v. New Orleans Public Service, Inc., supra; Arceneaux v. Domingue, supra.

Having concluded that plaintiff is entitled to recover for her injuries, we consider the issue of damages. Pursuant to La.C. C.P. Art. 2164, Courts of Appeal are empowered to award damages in cases where the trier of fact initially rejects the plaintiff’s demands and the record is complete with regard to damages. McCoy v. Franklin Parish Police Jury, 414 So.2d 1369 (La. App.2d Cir.1982).

Initially we note that the parties stipulated that plaintiff had incurred in connection with her injury medical expenses in the amount of $3200.09 and loss of earnings in the amount of $960. Therefore, we award special damages to plaintiff in the amount of $4160.09 in accordance with that stipulation.

Plaintiff was assisted from the ditch after the accident and placed in a chair provided by a nearby resident. Thereafter, she was assisted aboard the replacement bus and transported to a location where she was transferred to the vehicle of a friend who took her home. She was later taken by another friend to Dr. Palmer who x-rayed her left kneecap and discovered that it was fractured and displaced. She was informed by Dr. Palmer that the injury was too severe for him to treat, and he referred her to Dr. Mead who placed her in the Highland Hospital in Shreveport. When it was discovered that Sportran did not intend to pay plaintiff’s medical bills, because she had insufficient financial means to pay for the required care, she was transferred by ambulance to the LSU Medical Center where she was hospitalized. The final diagnosis of plaintiffs injury was post patella fracture incongruity of the left patella producing chondromalacia. She underwent treatment at LSU for several months as an out patient. Approximately five weeks after the accident, she was also seen by Dr. W.W. Fox who also diagnosed a mild sprain to the cervical and lumbar spine.

Because the patella did not heal satisfactorily, plaintiff was admitted to Schumpert Medical Center on November 9,1980, by Dr. Fox, who performed an arthrotomy of the left knee and drilling and shaving of the patella. She was discharged on November 14, 1980, with a walker. She later used crutches in lieu of the walker and at the time of trial in February, 1982 was able to walk without the aid of crutches or other assistance. The evidence preponderates that a result of her injuries, plaintiff suffered a significant degree of pain for an extended period of time.

Accordingly, we find that $20,000 will adequately compensate plaintiff for her pain and suffering.

For the foregoing reasons, the judgment of the lower court is reversed in its entirety and judgment is rendered in favor of plaintiff, Mildred Burnell, and against defendants, Louisiana Transit Management, Inc., and Transit Casualty Company, in the amount of $24,160.09. This award is to bear interest from the date of judicial demand until paid with all costs of this proceeding to be borne by defendants.

JUDGMENT REVERSED AND RENDERED.

      . It was stipulated by the parties that Christine Chambers was an employee of defendant Transit Management, Inc., (Sportran) on September 24, 1979 and was within the scope of her employment while driving the bus in question. It was further stipulated that Transit Casualty Company had issued a policy of public liability insurance to Transit Management, Inc. prior to the time of the accident which was in full force and effect.


author: FRED W. JONES, Jr., Judge.

text:
    Glen PEVETO and Melva D. Peveto, Plaintiffs-Appellants, v. Allen L. AUSTIN; The Early American Insurance Company and City of Bossier City, Defendants-Appellees.
    No. 15047-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.
    Writ Denied Feb. 4,1983.

      Troy E. Bain and Sam N. Gregorio by Troy E. Bain, Shreveport, for plaintiffs-appellants.
    Rountree & Hicks by Gordon E. Roun-tree, Shreveport, for defendants-appellees.
    Before PRICE, FRED W. JONES, Jr., and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

A husband and wife appeal a district court judgment rejecting their claim for damages arising when the pedestrian-wife was struck by an automobile driven by one of the defendants, contending that the trial judge erred in:

(1) Failing to hold the defendant motorist to a proper standard of duty or care, and
(2) Accepting the trial testimony of the defendant motorist even though he had been impeached by proof of prior inconsistent statements.

For the reasons hereinafter set forth, we affirm.

At about 8:30 o’clock on the morning of November 19, 1976 Melva Peveto was driving north on U.S. Highway 71 in Bossier City. A light rain was falling and the road surface was wet. Experiencing car trouble, Mrs. Peveto drove her vehicle over to her right and parked on the east shoulder of the road, at a point approximately 350 feet south of the intersection of Bellaire Boulevard and Highway 71.

In this area Highway 71 was a four lane thoroughfare, with a grass median separating the two northbound traffic lanes from the two southbound lanes. This section of the city, along the highway, was not highly developed. To the east was a ditch and beyond that a railroad track. Several commercial establishments, including a restaurant, were situated on the west side of the road.

After waiting for a group of northbound cars to pass, Mrs. Peveto got out of her vehicle and started walking in a northwesterly direction across the highway, intending to use a telephone at the restaurant to call for assistance. She crossed the outside traffic lane and had entered the inside lane when she was struck by a city police car driven by Allen Austin, a Bossier City police officer on his way to work.

In their brief plaintiffs concede that Mrs. Peveto was negligent “when she took her first step onto Highway 71,” but argue that defendants (Austin, the liability insurer of the ear, and the city employer) are liable because Austin could have avoided the accident by the exercise of due care.

Austin testified that, prior to the accident, he was driving north in the inside traffic lane of Highway 71, following a group of cars, at a speed of 40 to 45 miles per hour. Looking ahead and to his right, he observed Mrs. Peveto at a distance of 400 to 500 feet standing by her car a couple of feet from the road hard surface. Simply noting the presence of Mrs. Peveto, Austin neither reduced his speed nor took other action.

Austin stated that he was traveling approximately 40 miles per hour and was about 120 feet from Mrs. Peveto when she suddenly stepped onto the hard surface of the highway and started walking across the outside traffic lane. The motorist sounded his horn, took his foot off the accelerator and applied pressure to his brakes. When it became apparent that Mrs. Peveto was ignoring his horn and intended to cross over into his traffic lane, Austin locked his brakes arid turned his car to the left in an effort to avoid hitting her. Despite this maneuver, the right front fender of the police car struck Mrs. Peveto a glancing blow when she reached a point five or six feet within Austin’s traffic lane, causing the serious injuries for which recovery is sought.

Austin estimated that at the time of the impact he had reduced his speed to 20 miles per hour. He explained that he did not apply extreme pressure to his brakes when Mrs. Peveto first stepped onto the road hard surface for fear that the brakes would lock and, on the wet surface, he would lose control of his automobile, very possibly sliding over to the right and into Mrs. Peveto.

The only other witness to the accident, Mrs. Barbara Reeves, was called to testify on behalf of plaintiffs. Just prior to the accident Mrs. Reeves was driving her car west on Bellaire Boulevard, approaching its intersection with Highway 71. Upon reaching the intersection, she stopped her vehicle in obedience to a stop sign, intending to turn right or north on Highway 71.

Mrs. Reeves stated that she looked to the south and observed the approach of a group of 15 or 20 cars. Following these at a distance of several car lengths was the police car driven by Austin, traveling at 35 to 40 miles per hour. Mrs. Reeves also saw an adult female standing on the east shoulder of the highway by a parked automobile. When the cluster of northbound cars passed the female, she immediately started walking fast across the highway, taking long strides, without looking to her left for oncoming traffic.

According to Mrs. Reeves, when Mrs. Peveto stepped onto the hard surface of the highway, the Austin vehicle was about five or ten car lengths from her. When the Austin automobile was two or three car lengths from Mrs. Peveto, Mrs. Reeves observed the front of the car go down, indicating the application of extreme or heavy pressure to the brakes, and Austin turned to his left. Mrs. Reeves said that Mrs. Peveto had traversed about one-third of the inside traffic lane when she was struck by the Austin car.

The following stopping distances for the Austin vehicle were established by expert testimony: at 35 MPH — 144.08 feet; at 37.5 MPH — 161.47 feet; at 40 MPH — 181.87 feet; at 42.5 MPH — 201 feet. Further, it was shown that if Mrs. Peveto was walking across the highway at an average walking speed of three miles per hour, it would have taken her 5.23 seconds to cover the 23 feet from the edge of the hard surface to the point of impact. If she was walking slightly faster, at 4 miles per hour, it would have taken her 3.91 seconds to traverse that distance.

In his comprehensive, detailed written reasons for judgment, the trial judge made the fact-finding that Austin was going 40 miles per hour and was 120 feet from Mrs. Peveto when she started walking across the highway. He concluded that the accident was unavoidable since, at that rate of speed and that distance, Austin could not have stopped before striking Mrs. Peveto even if he had immediately applied extreme pressure to his brakes when the pedestrian first stepped onto the road hard surface.

In making his factual determination, the trial judge noted inconsistencies between Austin’s trial testimony in the fall of 1981 and statements made in reports immediately following the accident and in depositions taken on July 16, 1979 and May 14, 1981. In his first deposition, Austin testified that he initially saw Mrs. Peveto standing by her car when he was 500 to 600 yards away from her and that she began to walk across the highway when she was 150 yards away. In his second deposition, Austin explained that he mistakenly said yards when he should have said feet. Further, Austin told the investigating officer that he sounded his horn to warn Mrs. Peveto of his approach and also swerved to his right. When the pedestrian saw him coming, she appeared to start back toward the road shoulder and the motorist then swerved back to his left. This, of course, varies somewhat from his trial testimony.

Weighing Austin’s trial testimony, in light of the described inconsistencies, the trial judge commented:

“... [t]he inconsistencies are not of such magnitude as to negate his trial testimony .... the testimony of plaintiff’s witness Barbara Reeves corroborates his in all important areas of distance, time and speed, and the evidence satisfies the Court that there was nothing defendant could do to avoid the accident.”

Plaintiffs argue that the trial judge should have disregarded Austin’s testimony altogether because of his prior inconsistent statements, i.e., that his credibility had been impeached.

It is axiomatic that a trial judge’s assessment of witness credibility is entitled to great weight. Where it is shown that a witness made prior statements inconsistent with his trial testimony, the trier of fact should consider this in his analysis of the individual’s credibility and determine the extent to which that credibility is affected. However, where the testimony as to a material fact is corroborated by other credible and uncontradicted evidence, the trial judge does not err in accepting the questioned testimony. See Perniciaro v. Travelers Insurance Co., 227 So.2d 778 (La.App. 4th Cir.1969).

As the trial judge pointed out here, on the critical question of Austin’s speed and distance from Mrs. Peveto when she started walking across the highway, Austin’s trial testimony was fully corroborated by the testimony of plaintiff’s witness, Mrs. Reeves. Therefore, we cannot say that the trial judge was clearly wrong in his finding of fact as to speed and distance and in his determination that Austin could not have stopped his car before striking Mrs. Peveto.

Plaintiffs also contend that the trial judge erred in concluding that the accident was caused solely by the negligence of Mrs. Peveto, specifically urging that the rule of Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978) required Austin to immediately begin slowing down when he first saw Mrs. Peveto standing by her car on the road shoulder and to take emergency braking action when Mrs. Peveto first stepped onto the road hard surface.

In Baumgartner the defendant motorist struck and killed a pedestrian who was walking across the street within a marked crosswalk at a New Orleans intersection. The Louisiana Supreme Court held that the pedestrian’s contributory negligence would not bar recovery because:

“[H]is [the motorist’s] failure to so discover Baumgartner at a time when the former could have avoided the injury by slowing, attempting to gain decedent’s attention by honking, or by changing lanes constituted fault and entitled the plaintiffs to recovery despite Baumgart-ner’s later negligence in continuing into Morgan’s lane of travel.”

The court pointed out that in this state a pedestrian in a crosswalk is afforded a statutory right-of-way over motorists. La.R.S. 32:212(A). It did add, however, that “a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.”

Of course, in this case Mrs. Peveto was not traversing the highway in a crosswalk area when she was struck by the Austin vehicle. When first observed by Austin, she was standing by her car on the highway shoulder. Austin was driving within the speed limit in the inside traffic lane, maintaining a proper lookout. Under our law, a motorist who observes an adult pedestrian in the position of Mrs. Peveto on the road shoulder has no duty to assume or anticipate that she will decide to walk directly into the path of his oncoming automobile. See Gauthreaux v. Edrington, 220 So.2d 138 (La.App. 1st Cir.1969); Rowe v. Hardware Dealers Mutual Fire Ins. Co., 208 So.2d 409 (La.App. 4th Cir.1968). In fact, La.R.S. 32:213 provides in part:

A. Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.

Under these circumstances, Austin was under no duty to reduce his speed or take other action when he first observed Mrs. Peveto standing by her car on the road shoulder. Consequently, his failure to do so did not constitute negligence.

Upon seeing Mrs. Peveto start walking across the outer highway traffic lane, Austin acted reasonably — by reducing his speed. Then, in the three or four second interval it became apparent that Mrs. Peve-to was going to ignore the sounding of Austin’s horn and walk across the line dividing the outer from the inner traffic lane, Austin did everything he could reasonably be expected to do to avoid the accident— locking his brakes and turning his car sharply to the left.

For these reasons, we agree with the trial judge that Austin was not negligent since he breached no duty of care owed to the plaintiff pedestrian. Therefore, the judgment of the district court is affirmed, at appellants’ cost.


text:
    William Gray DAWES and Beman Gates Dawes, III, Plaintiffs-Appellants, v. Frank HALE and Johnnie Upchurch Hale, Defendants-Appellees.
    No. 15048-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.

      Blanchard, Walker, O’Quin & Roberts by William Paul Lawrence, II and J. Jay Caraway, Shreveport, for plaintiffs-appellants.
    Bodenheimer, Jones, Klotz & Simmons by David Klotz, Shreveport, for defendants-ap-pellees.
    Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

The plaintiffs brought suit to cancel a mineral lease affecting a 40-acre tract of land owned by plaintiffs for failure of the lessee to develop the leased property as a reasonably prudent operator as required by LSA-R.S. 31:122. Plaintiffs alleged that although the lessee had drilled and was producing three shallow wells in the extreme northwest corner of the property which drained not more than one and one-half acres, the lessee had failed and refused to drill additional wells in order to fully develop all portions of the leased property after discovery of minerals in paying quantities in the manner of a reasonable, prudent operator, thereby entitling plaintiffs to cancellation of the lease.

The defendant lessee filed a motion for summary judgment contending that as a matter of law plaintiff is not entitled to cancellation of the lease because of the provisions of Paragraph 12 of the lease which provides that in case of cancellation or termination of the lease for any cause lessee shall have the right to retain around each producing well the number of acres allocated to each well under spacing and proration rules of the Commissioner of Conservation, or 40 acres around each well in the absence of such rules. Defendant lessee contends that this provision amounts to a stipulation by the parties of what shall constitute reasonably prudent conduct on the part of the lessee.

The district court sustained the motion for summary judgment, holding that the provisions of Paragraph 12 of the lease provide the remedy to resolve the bona fide dispute between the parties as to what constitutes reasonable development and should be enforced. From a judgment rejecting their demands, plaintiffs appealed. For reasons expressed in this opinion, we reverse, overrule the motion for summary judgment, and remand the case for further proceedings.

The record discloses the following facts which are not disputed. On June 10, 1974 the then owner of the 40-acre tract in question granted an oil, gas, and mineral lease to Joel B. Brown, covering the 40-acre tract and another noncontiguous 40-acre tract in north Caddo Parish. By act of assignment dated May 16, 1979 the original lessee conveyed the lease, insofar as it covers and affects the 40-acre tract in question, to Frank Hale, husband of Johnnie Upchurch Hale, defendants herein. Prior to expiration the five-year primary term of the lease, Hale commenced operations for the drilling of a well at a location 50 feet south of the north line and 50 feet east of the west line of the 40-acre tract and the well was completed on July 23, 1979, pumping two barrels of oil per day from the Naca-toch formation at approximately 1,000 feet. In October 1979 a second well was drilled at a location 50 feet south of the north line and 200 feet east of the west line of the 40-acre tract, was completed, and is pumping two barrels of oil per day from the Nacatoch formation. In January 1980 plaintiffs made demand upon defendant for further development. In April 1980 defendant drilled a third well located 20 feet from the north line and 15 from the west line of the 40-acre tract which well is located only 35 feet from the first well drilled and which well is also pumping two barrels of oil per day from the Nacatoch formation.

The Commissioner of Conservation has not issued any spacing or proration rules or orders fixing the number of acres allocated to the wells producing from the Nacatoch formation in the Pine Island Field of Caddo Parish located on the property involved in this case.

By act dated September 19,1980 the original lessee, Brown, released the lease insofar as the lease covered and affected the other 40-acre tract originally included in the lease.

In July 1981 plaintiffs again made demand upon defendants for further development and for release of the lease, and upon defendants’ refusal this suit was filed in August 1981.

It is alleged in plaintiffs’ petition that the three wells drilled in the extreme northwest corner of the 40-acre tract only drain an area of approximately one and one-half acres. In connection with the motion for summary judgment this fact and the fact of failure to reasonably develop are not disputed or controverted by defendants, the position of defendants being that such facts are immaterial because, regardless of whether the property has been reasonably developed, defendants are entitled as a matter of law to retain the entire 40 acres now covered by the lease under Paragraph 12 of the lease. Paragraph 12 of the Bath's Louisiana Spec. 14-BR1-2A-PX 10-65 printed form lease provides:

“In case of cancellation or termination of this lease from any cause, Lessee shall have the right to retain, under the terms hereof, around each well producing, being worked on, or drilling hereunder, the number of acres in the form allocated to each such well under spacing and proration rules issued by the Commissioner of Conservation of the State of Louisiana, or any other State or Federal authority having control of such matters; or, in the absence of such rulings, forty (40) acres around each such well in as near a square form as practicable, and in the event Lessor considers that operations are not being conducted in compliance with this contract, Lessee shall be notified in writing of the facts relied upon as constituting a breach hereof and Lessee shall have sixty (60) days after receipt of such notice to comply with the obligations imposed by virtue of this instrument.”

The narrow issue presented on appeal is whether the retained acreage provision of the printed form lease should be construed to preclude plaintiffs’ claim that lessees have violated their statutory obligation to prudently develop the leased property.

Article 122 of the Mineral Code codifies the cardinal principle recognized early in the development of Louisiana mineral law that “the main consideration of a mineral lease is the development of the leased premises for minerals, and that the lessee must develop with reasonable diligence or give up the contract.” Carter v. Arkansas Louisiana Gas Co., 213 La. 1028, 36 So.2d 26 (1948) and cases cited therein. Reasonable development as an implied covenant of every lease was established in spite of the fact that standard lease provisions contain no such requirement and, in fact, provide that the lease shall continue in effect so long as there is production in paying quantities.

The principle of reasonable development is a matter of public policy, necessary in order to give effect to the parties’ intent inherent in all mineral leases, to assure reasonable development of the state’s natural resources, and to prevent property being taken out of commerce.

As a matter of public policy the obligation of prudent development may not be contractually abrogated. LSA-R.S. 31:3 provides:

“Unless expressly or impliedly prohibited from doing so, individuals may renounce or modify what is established in their favor by the provisions of this Code if the renunciation or modification does not affect the rights of others and is not contrary to the public good.”

As noted in the comment following Section 3, “freedom of contract ... is not unlimited under the Mineral Code. There are certain principles in the Louisiana mineral property system that are based on public policy .... Similarly, the requirement of Article 1901 of the Civil Code, repeated as to parties to mineral leases in Article 119 and 122 of the Mineral Code, that all agreements legally entered into be performed in good faith would seem to be one that cannot be contracted away on grounds of public policy.”

Article 122 of the Mineral Code, after establishing the requirement of good faith development of the property as a prudent operator for the mutual benefit of lessee and lessor, provides that the parties “may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.” Although the obligation of good faith prudent development cannot be abrogated, it may be contractually defined by the parties.

The printed form acreage retention clause cannot reasonably be interpreted as an effort on the part of the parties to the lease to stipulate what shall constitute reasonable development of the leased property by the lessee. The clause is not so phrased. It would be illogical to believe that the parties to the lease intended to agree that the drilling of one, or three, shallow wells in one extreme corner of the 40-acre tract, draining an area of one and one-half acres, would constitute prudent development of all the leased acreage to its fullest extent.

Any clause purporting to limit a primary obligation of the lease should be carefully examined to determine if the parties clearly intended such a result. In Hutchinson v. Atlas Oil Co., 148 La. 540, 87 So. 265 (1921), the court stated:

“In our opinion it would require a very clear and unmistakable contract to support the proposition that a lessee could, after discovering any mineral in paying quantities decline to explore further, refuse to pay any further consideration, and fail to market that which had been found indefinitely and at his pleasure. Such a situation would be, to say the least, contrary to principles of equity, to say nothing of a wholesome public policy which frowns upon such putting of property out of commerce.”

In Williams v. Humble Oil & Refining Company, 432 F.2d 165 (5th Cir.1970),

“It would require a clear and unequivocal clause in a lease to convince the court that the lessor intended to sacrifice that basic obligation [to act as a good administrator] owed him by his lessee.”

In the instant case, the acreage retention clause reflects no clear, unmistakable, unequivocal intent to limit or define the development obligation of the lessee.

In Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956), a mineral lease was canceled in its entirety for failure to pay production royalties in spite of the fact that the lease contained an acreage retention clause substantially identical to the clause under consideration here. Faced with a clash between a bad faith violation of the lessee’s obligation under the lease to pay royalties from a producing well and a provision of the lease allowing the lessee to retain acreage around the well in the event of cancellation, the court adopted an interpretation of the clause consistent with logic and reason, leading to no absurd consequences, and giving to the provisions of the lease a sense that results from the entire contract. LSA-C.C. Arts. 1945, 1955. Although the court in the Melancon case held that the acreage retention clause applied only in the case of a bona fide dispute contemplated in another clause of the lease which is not contained in the lease under consideration here, the essence of the opinion was the refusal of the court to allow the acreage retention clause to, in effect, nullify another clause embodying a primary obligation of the lease.

Applying the rationale of the Melancon case and the cited Civil Code articles to the instant case, we cannot construe the acreage retainage clause so as to abrogate the obligation of prudent development and thereby allow the lessee to retain under the lease the very same acreage he is alleged to have failed to prudently develop, a fact that, at this stage of the litigation, the lessee does not dispute, bona fide or otherwise.

When read in view of the statutory, implied obligation of prudent development, the acreage retention clause can be given effect only to the extent that the lessee has complied with his duty to act as a prudent operator, that is, only to the extent of the acreage that has been prudently developed. Because the 40-acre retention provision in this case at this point in time covers the entire leased property, any interpretation other than that suggested here would force us to effectuate a lease in its entirety while ignoring the primary cause and consideration for its execution. The retained acreage provision cannot be enforced to preclude a determination of whether the leased property has been prudently developed.

The case will be remanded for further proceedings in accordance with law. The question of reasonable development is a factual issue peculiar to each case which must be decided in light of, among others, the following factors: geological data; number of wells drilled; production capacity of producing wells; cost of drilling as opposed to profit; time between completion of the last well and demand for new operations; and acreage involved. Vetter v. Morrow, 361 So.2d 898 (La.App. 2d Cir.1978). If it is determined that the obligations of the lease have been violated by the lessee, plaintiffs shall be entitled to any appropriate relief provided by law. LSA-R.S. 31:134. If dissolution of the lease is appropriate, it should in this case, giving effect to the retained acreage clause to the extent prescribed above, be partial, applicable only to that portion of the land which has not been prudently developed, allowing the lessee to retain that portion which has been prudently developed. LSA-R.S. 31:142.

The judgment of the district court is reversed and set aside, the motion for summary judgment is denied, and the case is remanded to the district court for further proceedings in accordance with law. Costs of the appeal are assessed to the defendants-appellees; the assessment of all other costs to await final determination of the action.

Reversed and remanded.

      . LSA-R.S. 31:122
      “A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.”

      . The “assignment” provides that the lease assigned may be maintained by production or otherwise after one year from date of the assignment only as to all strata lying 100 feet below the deepest depth drilled on the lease within one year from date of the assignment. Under this clause it appears that defendant Hale is only claiming rights down to 100 feet below the depth of the three wells drilled on the 40-acre tract. The original lessee was not made a party to this suit.


author: BARRY, Judge.

text:
    Henry C. KEITH, III and Donna F. Keith, his Wife v. The CHARLES CLOTWORTHY COMPANY, INC.
    No. 13219.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Patrick J. Costa, New Orleans, for plaintiffs-appellees.
    Gerard G. Metzger, De Belieux & Hurder, Baton Rouge, for defendant-appellant.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   BARRY, Judge.

This suit is for damages allegedly due to defendant’s negligent workmanship in repairing a leaking tile roof. Plaintiffs were awarded $550 and defendant suspensively appeals.

While minor facts are in dispute the only material issue is whether plaintiffs proved by a preponderance that their damages resulted from defendant’s faulty work.

On April 23, 1981, defendant Charles Clotworthy Roofing Co., Inc. (Clotworthy) received a phone call from Mr. and Mrs. Keith requesting two estimates for residential roofing work: one for a patch up or repairs to the existing roof and another for complete re-roofing. On April 29, 1981 a written proposal for $275 was submitted and one month later, May 29, 1981, Mrs. Keith called Clotworthy and accepted the patch bid. After the work was completed the Keiths mailed a check for $275 dated June 11, 1981, to Clotworthy. Approximately ten days later during a rainstorm Mrs. Keith noticed water leaking onto the floor. Clotworthy contends (and plaintiffs dispute) attempts were made to patch the leaks. After the last repairs in August, 1981, no further complaints were conveyed to Clotworthy and the Keiths filed this suit one month later.

Appellant Clotworthy argues appellees failed to produce legally sufficient evidence to prove an essential element of their ease, i.e., the damages were caused by faulty workmanship. Clotworthy asserts leaks existed at the initial inspection of thé roof on April 29, 1981, as evidenced by the written contract and the testimony of the Keiths and their tenant, Ms. Beninate. Appellant claims the damages increased before any repairs because of the one month delay between the inspection and the acceptance of the bid. Appellant maintains Mr. Davis, appellees’ expert, did not testify that the damage was caused by faulty workmanship but merely gave an estimate for water damage. Appellant takes the position no direct evidence was adduced to prove causation and the circumstantial evidence was legally insufficient to exclude other reasonable hypotheses with a fair amount of certainty. Maryland Casualty Co. v. Trahan, 384 So.2d 819 (La.App. 4th Cir.) writ denied 392 So.2d 689 (La.1980).

An alternative hypothesis advanced by Clotworthy is that the persistent leaks were due to the age of the roof (twenty-five or thirty years) which precluded correction without replacement of the entire roof. Appellant asserts two of its witnesses, Mr. Clotworthy and Joseph Campagne, the subcontractor who supervised the patch work, testified every effort was made to properly repair the leaks. However, the roof appeared beyond patching, but since appellees ordered the repairs and no further complaints were received after the August repair attempt, both witnesses believed the leaks had been corrected.

Appellees counter the testimony proves by a preponderance that while minor damage existed prior to the attempted repairs, severe damage did not surface until after appellant’s initial effort to repair. Appel-lees claim the damage increased because appellant continually failed to respond to their complaints. In response to appellant’s claim the roof was not repairable, appellees contend the roofer was derelict in failing to inform them such serious defects existed. Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967).

We recognize every contract for work or services carries the contractor’s implied obligation to perform in a good, workmanlike manner; in default, there is liability for damages resulting from non-compliance. Before the contractor can be held liable for breach of this implied obligation the plaintiff is required to prove the faulty workmanship caused the damage.. LSA-C.C. Arts. 1930, 2769, Goudeau v. Hill, 410 So.2d 338 (La.App. 4th Cir.1982). Plaintiff’s burden of proof in a civil case is by a preponderance of the evidence: all the evidence, direct and circumstantial, taken as a whole must show that the causation or fact sought to be proved is more probable than not. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971).

We are satisfied the leaks were not fixed by the first effort to repair. Mr. Clotwor-thy testified it was not unusual to miss leaks on the first try, but he emphasized repair crews were sent back each time (twice) the Keiths complained. Appellant’s subcontractor agreed there was no guarantee the leaks would stop, but he thought the previous crews had not removed enough roof area. Accordingly, he took up a larger area of tile (ten feet by ten feet) to be sure the leaks were corrected. He assumed, as did Clotworthy, that this last effort did the trick because no further complaints were made. He also testified it was his opinion a new roof was needed but he could not recall telling Clotworthy or the owners. There is no evidence that appellees were informed of this possibility, but appellant argues appel-lees’ request for an estimate to re-roof the house showed their knowledge of the deteriorated roof.

While the evidence suggests the roof was not repairable, this fact was not conclusively established. There is ample proof to support the lower court’s finding that a portion of the interior house damage was caused by appellant’s negligent repair work.

Plaintiffs’ tenant, Rhonda Beninate, testified she moved into the house October 1, 1980 and, since that time, the entire interior had been painted. She said there was no evidence of a leak until the spring of 1981, estimating on cross-examination that to be sometime in April. She distinctly stated that after Clotworthy came out to repair the roof the first time, the leaking got worse; more water was coming into the house, the paint and plaster began to peel and eventually the ceiling “bellied.” Appel-lees concurred that after the repairs were attempted, the leaking became progressively worse, damage increased and in mid-July the ceiling “bellied”, appearing it would soon collapse. Eventually, to prevent further damages, Mr. Keith placed buckets in the attic to catch the leaking water which were still there at the time of trial.

Charles Davis, plaintiffs’ expert, who estimated $2,344.70 to restore the interior, stated on cross-examination he could usually tell when water damage was present for a long time by the presence of mold, but no mold had formed.

While the proof is not as precise as we would like, the evidence clearly preponderates in plaintiffs’ favor. The Trial Judge awarded $550 of the $2,344.70 in damages estimated by plaintiffs’ expert and, based on the record, this amount is not an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

The judgment of the trial court is affirmed, appellant to pay appeal costs.

AFFIRMED.