author: GUIDRY, Judge.

text:
    Walter M. GODWIN, Plaintiff-Appellee, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellants.
    No. 8052.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Hall, Lestage & Lestage, David R. Les-tage and David W. Burton, DeRidder, for plaintiff-appellee.

      Before CULPEPPER, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This case is one of two tort actions based upon common facts which were consolidated for trial in the interest of judicial expediency. The cases remain consolidated on appeal and we this day render a separate decision in the companion case entitled Bettye F. Godwin v. Louisiana Department of Transportation and Development et al., 394 So.2d 761, our docket number 8053.

Plaintiffs, Walter M. Godwin, individually, as administrator of the estate of Kevin Kent Godwin and as head and master of the community of acquets and gains existing between Mrs. Bettye F. Godwin and himself, and Bettye F. Godwin filed separate tort actions against several defendants, including the Louisiana Department of Transportation and Development (hereafter the Department) for damages sustained by Mrs. Godwin and her minor son, Kevin Kent, as a result of an automobile-tree collision allegedly caused by the negligence of the Department. Bettye F. Godwin filed suit against the Department and the Allen Parish Police Jury. Walter M. Godwin filed suit against the Department, the Allen Parish Police Jury, and Government Employees Insurance Company (hereafter GEICO), the liability insurer of the Godwin vehicle, alleging negligence on the part of the Department, the Police Jury, and Mrs. God-win. The Allen Parish Police Jury was dismissed as a defendant in both suits upon a showing that the highway on which the accident occurred was a part of the state highway system. In addition, GEICO was dismissed from the suit filed by Mr. Godwin after that company settled his claims prior to trial. Subsequently, plaintiff, Walter M. Godwin, amended his petition withdrawing all allegations of negligence pertaining to his wife, Mrs. Bettye F. Godwin. Thus, at the time of trial, the only remaining defendant before the court was the Department. The trial court rendered judgment in favor of the plaintiffs m both suits. In the suit which bears our docket number 8052 judgment was rendered against the Department and in favor of Walter M. Goodwin, individually, as head and master of the community of acquets and gains existing between him and Bettye F. Godwin, and as Administrator of the estate of his minor son, Kevin Kent, in the total sum of $30,846.00, which sum was in said judgment itemized as follows:

(a) automobile damage.$ 100.00
(b) medical expenses for treatment
of Bettye F. Godwin. 3152.54
(c) medical expenses for treatment
of Kevin Kent Godwin . 2593.46
(d) personal damages for Kevin Kent
Godwin . 25,000.00

In the companion matter, which bears our docket number 8053, judgment was rendered against the Department and in favor of Bettye F. Godwin, in the sum of $25,-000.00.

The Department appeals the decisions of the lower court in both cases. Plaintiff, Walter M. Godwin, has answered defendant’s appeal requesting that the lower court’s award of $25,000.00 for the personal injuries of plaintiff’s minor son be increased to $125,000.00. Bettye Godwin neither appealed nor answered the appeal of the Department.

The facts, as disclosed by the evidence adduced at trial, are as follows:

On October 25, 1977, Bettye F. Godwin was travelling west on Louisiana Highway 112 near (approximately 1.3 miles west) Elizabeth, Louisiana in Allen Parish. In the furtherance of a community mission, Mrs. Godwin was operating the family vehicle which was also occupied by her minor son, Kevin Kent Godwin. Highway 112 is a two-lane blacktop road which may best be described as a “farm to market” road. As Mrs. Godwin was proceeding in a westerly direction, for some undetermined reason, she allowed the right wheels of her vehicle to leave the pavement and travel upon the shoulder of the highway. Upon attempting to steer her automobile back onto the paved surface, Mrs. Godwin lost control of her vehicle, traversed the highway and struck a tree located near the left side of the highway. The automobile-tree collision resulted in serious bodily injuries to both Mrs. God-win and her son, Kevin, as well as totally destroying her vehicle.

According to documentary evidence in the record and the testimony of area residents the travel portion of La. Highway 112 was resurfaced on two separate occasions during the year 1977. Although these witnesses were not certain as to when the resurfacing operations occurred, the documentary evidence confirms that both operations took place prior to the accident. According to the record, the first overlay was completed on April 15, 1977 and the second was completed on September 26, 1977. Documents introduced at trial indicate that in each of these operations two inches of asphalt were added to the surface of the highway and sand, clay, and gravel were added to the nonpaved shoulders. The shoulders were then reshaped and packed. The trial record leaves some doubt as to whether the same portion of Highway 112 was resurfaced on two separate occasions. However, it is clear that the area where the accident occurred was resurfaced during the September, 1977 operation.

According to the testimony of L.V. Mar-cantel, the Department employee in charge of restoring the shoulders of the road in connection with the September, 1977 project, material was added and the shoulders of the road were restored, reshaped and packed level with the paved surface. Trooper E.J. McGee, who investigated the accident, testified that he usually inspected the roadway, including the shoulder area, at the site of any accident investigated by him and would note in his report any defects in the main traveled portion as well as “the shoulder to see if there’s any drop-offs, any holes on the shoulder and such as that”. Trooper McGee indicated further that although he had no specific recollection of his inspection of the roadway, his report reflected the finding of no defects. He later testified under cross-examination that there existed no drop-offs between the roadway and shoulder at the time of the accident.

In contrast with the testimony of McGee and Marcantel and the documentary evidence introduced by the Department, is the testimony of several area residents and the plaintiffs themselves. These witnesses, although uncertain as to whether or not the shoulders of the road were restored and reshaped following the resurfacing, testified with positivity that at no time before or after the resurfacing operations were the shoulders of the highway brought to the level of the traveled portion. Rather, each witness testified that at all times there existed a serious drop-off between the roadway and its shoulders.

The learned trial judge, in his written reasons for judgment, recognized this serious factual dispute stating:

“Pit-run material was indeed spread upon the shoulders following the overlay. To what elevation in relation to the adjacent blacktop and to what degree of solidity and smoothness this buildup occurred is the crux of the cases.”

The trial court resolved this serious factual dispute in favor of the plaintiffs concluding that the shoulders of La. Highway 112 were not restored and reshaped following the overlay projects to a point level with the adjacent travel portion. The trial court concluded that at the time of the accident there existed an elevational difference between the travel portion of the roadway and its shoulders which varied from two (2) to three (3) inches with a “minimum of two (2) inches or more.” Our careful review of the record reveals no manifest error in this factual determination, therefore, we accept, for purposes of this appeal, the conclusion that a drop-off between the paved surface of La. Highway 112 and its shoulder, to the extent set forth above, did in fact exist at the time of the accident. See Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

NEGLIGENCE OF THE DEPARTMENT

The functions and duties of the Department are defined in LSA-R.S. 48:21(A) which provides in pertinent part:

“The functions of the department shall be to study, administer, construct, improve, maintain, repair, and regulate the use of public transportation systems and to perform such other functions with regard to public highways, roads, and other transportation related facilities as may be conferred on the department by applicable law.”

In Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused, 303 So.2d 182 (La.1974), our court defined the duty owed by the Department to the motoring public. In the cited case we stated:

“The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highway. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence.”

The duty of the Department to maintain public highways includes the duty to maintain the shoulders of the highways. Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), application denied, 341 So.2d 1134 (La.1977), writ denied, 342 So.2d 218 (La.1977). The Laborde court also discussed the proof necessary in order for liability to attach to the Department for damages sustained on our state’s highways. The court commented:

“The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3d Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).”

Considering the foregoing we find no manifest or clear error in the trial court’s conclusion that the condition of the shoulder of Louisiana Highway 112 at the point and time of plaintiffs’ accident was patently dangerous to a reasonably prudent driver, which circumstance constituted a breach of the Department’s duty to maintain the state’s highways and roads in a reasonably safe condition.

The trial court, in its written reasons, concluded that the Department had either actual or constructive notice of the defective condition of the roadway, although it failed to specify when or how the Department received such notice. Be that as it may, we find that since the shoulders of the roadway were never restructured to the level of the paved surface following the resurfacing of the travel portion, the Department obviously had notice of the defect. In any event, were we to conclude otherwise, liability would still attach under Civil Code Article 2317, absent proof of an available defense, as explained more fully hereafter.

In actions based on a negligence theory of recovery (LSA-C.C. Article 2315), the plaintiff has the burden of proving that the defendant’s negligence was a cause-in-fact of the plaintiff’s injuries. In Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), the Louisiana Supreme Court addressed a fact situation not unlike the case at bar. In Lavergne, supra, the driver of a van inadvertently ran off the highway onto its shoulder. Upon attempting to return to the pavement, the driver lost control of his vehicle and struck an oncoming car killing its two occupants. The defect in the highway was the same as in the instant case (although the extent of the defect was greater), specifically, an elevational difference between the travel portion of the highway and its shoulders. The Court noted that the application of the “but-for” analysis resulted in the Department’s negligence being a cause-in-fact of the accident. Justice Blanche writing for the Court stated:

“Using a ‘but-for’ test to determine cause-in-fact dearly results in a finding that the accident would not have resulted had the road shoulder been substantially even with the travel portion of the road. Further, there is a substantial relationship between the failure to correct a highway defect and an automobile accident, the type of risk encountered by plaintiffs’ decedents and Lavergne.”

The failure to maintain the shoulder of Highway 112 was in the instant case, as in Lavergne, certainly a cause-in-fact of the accident. Using the “but-for” analysis employed by the Lavergne court, this court concludes that “but-for” the Department’s failure to correct the elevational difference between the paved surface and its shoulders, Mrs. Godwin would not have encountered the risk of harm (car-tree collision) which resulted in the plaintiffs’ damages.

MRS. GODWIN’S NEGLIGENCE

The Department pleaded the contributory negligence of Mrs. Godwin in bar of her right of recovery and as a bar to recovery by Mr. Godwin, individually, as administrator of the estate of Kevin Kent Godwin and as head and master of the community of acquets and gains.

Motorists traveling upon Louisiana’s roads and highways are charged with exercising reasonable care in the operation of their motor vehicles. This duty of care encompasses keeping one’s vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir. 1975), writ denied, 325 So.2d 608 (La.1976); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). The motorist’s duty of reasonable care is extended to all passengers riding in the motorist’s vehicle. Sinitiere v. Lavergne, supra.

In his reasons for judgment, the trial judge stated:

“Of course plaintiff Mrs. Godwin was negligent. Her action was a classic example of what not to do in her situation.”

We find this statement by the trial court to be manifestly correct. In spite of this conclusion, the trial judge, relying on the Louisiana Supreme Court decision in Rue v. State Department of Highways, 372 So.2d 1197 (La.1979), on remand, 376 So.2d 525 (La.App. 3rd Cir. 1979), concluded that Mrs. Godwin’s negligence would not bar her recovery. We disagree.

In Rue, supra, the plaintiff inadvertently ran onto the shoulder of the highway and struck a dangerous rut which caused plaintiff to immediately lose control of her vehicle. In that case, the Supreme Court, in reversing the appellate court which denied recovery to the plaintiff on the ground of contributory negligence, held that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The holding in Rue, supra, was clarified in the recent case of Sinitiere v. Lavergne, supra, wherein Justice Blanche, writing for the court stated:

“This language (holding in Rue) does not establish the highway shoulder as a ‘zone of recovery’ for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability vis-a-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger.”

A review of the testimony reveals no evidence establishing that Mrs. Godwin had actual or constructive knowledge of the low shoulder, therefore her action in leaving the roadway did not constitute negligence per se. However, Mrs. Godwin testified at trial that once on the shoulder she had no difficulty in controlling her automobile. Further she confirmed that there were no obstructions on the shoulder to prevent her from gradually slowing her vehicle to a complete stop if necessary and then maneuvering her automobile back onto the paved surface. Testimony by an expert in the field of vehicle dynamics, which the trial court apparently accepted as true, indicated that the plaintiff’s accident was caused by plaintiff attempting to return to the pavement at too great an angle, failing to significantly reduce the speed of her automobile, and oversteering to the left. The Louisiana Supreme Court in Lavergne, supra, noted that the application of the “but-for” analysis resulted in the Department’s negligence being a cause-in-fact of plaintiff’s accident. However, in evaluating the action of the driver, the court concluded:

“Mr. Lavergne’s (the driver of the van) actions were more than just a cause-in-fact of the accident. The breach of his duty to observe what he should have seen had a substantial relation to the harm encountered by himself and the decedents. Thus, he is liable to the survivors of Mrs. Sinitiere and Mrs. Henry and is precluded from recovery from the Department.”

We acknowledge that the Department’s negligence was a cause-in-fact of plaintiff’s damages, but it was not the sole cause. Mrs. Godwin’s actions after she left the pavement and traveled onto the shoulder was also a cause-in-fact of the collision. We conclude that Mrs. Godwin’s own negligence contributed substantially to the accident, therefore she is barred from recovery from the Department under a negligence theory of recovery.

We will consider the effect of this holding on the rights asserted on behalf of Kevin Kent Godwin and on behalf of the Godwin community of acquets and gains at a later point in this opinion.

STRICT LIABILITY UNDER C.C. 2317

In the alternative the plaintiffs in these consolidated actions assert that the Department is strictly liable for the damages suffered by them. Considering our previous finding that the Department’s negligence was a cause-in-fact of the accident it would appear that discussion of this alternative claim is unnecessary. However, since we have concluded that Mrs. Godwin’s right of recovery is barred under the negligence theory of recovery (LSA-C.C. Article 2315) we find it necessary to discuss and consider this alternate claim.

Louisiana Civil Code Article 2317 provides in pertinent part:

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

In Loescher v. Parr, 324 So.2d 441 (La.1975), the Louisiana Supreme Court discussed the concept of strict liability and described the legal foundation for such liability in the following manner:

When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.”

In Jones v. The City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980), the Louisiana Supreme Court summarized the plaintiff’s burden of proof in a strict liability action, the court therein stated:

“Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect. Loescher v. Parr, supra, at p. 446-447; Verlander, Article 2317 Liability: An Analysis of Louisiana Jurisprudence Since Loescher v. Parr. 25 Loyola L.Rev. 263 (1979).”

Prior to the Supreme Court’s decision in Jones, supra, this court refused to subject public entities to liability under Civil Code Article 2317 for fear that such liability would lead to “chaotic results”. Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977). However, in Jones, supra, the court concluded that the Louisiana State Constitution of 1974 mandates such liability on the part of public bodies.

Evidence adduced at trial established that the highway at issue was in the care and custody of the defendant. As previously indicated we find, as did the trial court, that the highway was defective at the time of the accident; the defect was such that it occasioned an unreasonable risk of injury; and, the defect was a cause-in-fact of the plaintiff’s damages. Therefore, considering these findings, plaintiffs are entitled to recovery under the provisions of LSA-C.C. Article 2317 unless their recovery is barred by some available defense to such an action.

The defenses available to a defendant in an action based on Civil Code Article 2317 are more limited than in an ordinary negligence action. Once the plaintiff proves custody, defect, and causation, the defendant can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistable force. Loescher, supra; Jones, supra.

In order to determine whether the Department should be held liable to plaintiffs under a strict liability theory of recovery, we must first examine the applicability, if any, of the defenses available to the defendant. We may eliminate the defense of irresistable force as the facts evidence no fortuitous event which precipitated plaintiffs’ accident.

The second defense is that of “victim fault”. Under Civil Code Article 2317 the fault of the victim need not be the sole cause of the plaintiff’s damages in order for the defendant to be relieved of liability. In Loescher v. Parr, supra, the court indicated that the victim’s fault need only be a substantial factor. As we previously observed, the record reflects that Mrs. Godwin attempted to return to the paved portion of the highway at too great an angle, failed to significantly decrease the speed of her vehicle, and oversteered her vehicle to the left, all of which substantially contributed to the automobile-tree collision which resulted in the plaintiffs’ damages. In our view, Mrs. Godwin’s failure to exercise reasonable care in the operation of her motor vehicle once she left the travel portion of the highway was a substantial factor in the occurrence of the accident and in our opinion relieves the Department from liability for her (Mrs. Godwin’s) damages under LSA-C.C. Article 2317.

The third defense available to the Department is that of “fault of a third party”. We at this point consider whether or not the fault of Mrs. Godwin will bar her son, Kevin Kent, a guest passenger in the God-win vehicle, from recovering from the Department. Our brethren of the First Circuit confronted the issue of third party fault in the case of American Road Insurance Co. v. Montgomery, 354 So.2d 656 (La. App. 1st Cir. 1977), writ refused, 356 So.2d 430 (La.1978). In that case, an automobile driver proceeded through an intersection wherein a defective traffic light was in operation. The facts indicate that at the moment the driver traveled through the intersection, the light flashed both red and green. An intersectional collision resulted with a number of claims for personal injuries being filed against the driver and the Highway Department as custodian of the defective light. The court therein concluded that the automobile driver’s action was a cause-in-fact of the accident, therefore, the Highway Department was completely relieved of liability under Article 2317, having proved the defense of “third party fault”. Writs were denied in American Road, supra, 356 So.2d 430 (La.1978). Justice Tate dissented from the denial of writs stating “The highway department is solidarily liable because of its concurrent fault under La.Civil Code Article 2317”.

This Court is not bound to follow the decision in American Road, supra, in spite of the subsequent denial of writs for it is well settled that a denial of writs is not tantamount to approval of a court of appeal opinion nor does it create precedent. LaFleur v. Fidelity and Casualty Co. of New York, 385 So.2d 1241 (La.App. 3rd Cir. 1980); Lombardo v. Argonaut Insurance Co., 354 So.2d 731 (La.App. 4th Cir. 1978), writ refused, 355 So.2d 1325 (La.1978).

We must respectfully disagree with the holding of our brethren of the First Circuit in American Road Insurance Company, supra. In the instant case we have determined that the defect in the highway (fault attributable to the Department under Article 2317) and the negligent actions of Mrs. Godwin (fault attributable to her under Article 2315) both contributed substantially to the injuries and resultant damages suffered by the guest passenger, Kevin Godwin, a totally innocent victim. Under such circumstances we can conceive of no valid reason why the Department should be completely absolved of all responsibility for its concurrent fault. We have previously held in this case that the Department is liable to Kevin Godwin, under the provisions of Article 2315, for allowing a patently dangerous highway condition, of which it had notice, to exist. Under such circumstances, it matters not that the accident and resultant injuries to Kevin were also caused by the concurrent negligence of Mrs. Godwin, for it is well settled that joint tortfeasors are solidarily liable for damages which result from their concurrent negligence or wrongdoing. Clay v. State Farm Mutual Automobile Insurance Company, 330 So.2d 380 (La.App. 3rd Cir. 1976). It would be clearly incongruous to hold that a joint tortfeasor is solidarily liable if his responsibility attaches under Article 2315 but totally relieved of responsibility if he is concurrently at fault by application of the legal principles set forth in Article 2317. This court has previously held that in order to be relieved of liability under Article 2317, the custodian defendant must establish that the accident was caused solely by the fault of a third person. Tiger Well Service v. Kimball Production Co., 343 So.2d 1153 (La. App. 3rd Cir. 1977); Panek v. Gulf Insurance Co., 341 So.2d 46 (La.App. 3rd Cir. 1976). Although in Kasperski v. Patterson Services Inc., 371 So.2d 1254 (La.App. 3rd Cir. 1979), writ refused, 373 So.2d 530 (La.1979), a different panel of this court, makes reference to the decision in American Road Insurance Company as relaxing the standard adopted in Tiger Well Service and Panek, we now adhere to that standard and conclude that where fault is established under Article 2317, responsibility to a totally innocent victim can be avoided only by proof that the harm was caused by the sole fault of a third party or by an irresistable force.

QUANTUM

Plaintiff, Walter M. Godwin answered defendant’s appeal requesting an increase in the award of damages to his minor son, Kevin Kent, from $25,000.00 to $125,000.00.

The record indicates that as a result of the accident, young Kevin Godwin sustained fractures of the upper and lower left leg, a fractured clavicle, multiple contusions, laceration of the knee, and a cerebral concussion causing him to be hospitalized for two weeks. However, despite the fact that at the time of the accident the young boy suffered from muscular dystrophy, he recovered from his injuries within a relatively short period of time.

It is well settled that before a Court of Appeal can disturb the quantum award made by the trial court, the record must clearly reveal that the trier of fact abused its much discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). After a careful review of the record, we conclude that the lower court is not guilty of such abuse. Therefore, the award of the trial court will be affirmed subject to modification as to responsible parties as hereafter delineated.

SUMMARY

This court concludes that the accident was caused by the concurrent negligence of the Department and Mrs. Godwin. Mrs. Godwin’s contributory negligence bars her recovery under Civil Code Article 2315. In addition, as previously stated herein, Mrs. Godwin’s substantial fault precludes her recovery from the Department under Civil Code Article 2317. Therefore, the trial court’s judgment in favor of the plaintiff, Bettye F. Godwin and against the Department, in the companion case, will be reversed and set aside and that suit will be ordered dismissed with prejudice and at the plaintiff’s costs.

It is well settled that the negligence of a wife while driving an automobile on a community mission is imputable to her husband. Vidrine v. General Fire & Casualty Co., 168 So.2d 449 (La.App. 3rd Cir. 1964). Thus, Mr. Godwin is precluded from recovering the damages sustained by the Godwin community of acquets and gains itemized in the trial court’s judgment as follows:

(a) automobile damage.$ 100.00
(b) medical expenses for treatment
of Kevin Kent Godwin. 2,593.46 ()
(c) medical expenses for treatment
of Bettye F. Godwin.3,152.54

Accordingly, the judgment of the trial court awarding special damages to Walter M. Godwin in the total sum of $5,846.00 will be reversed and set aside and the demand of Walter M. Godwin individually and as head and master of the community of acquets and gains existing between himself and Bettye F. Godwin will be ordered dismissed with prejudice.

Finally, considering our conclusion as to the joint responsibility of the Department and Mrs. Godwin for the injuries and resultant damages suffered by Kevin Kent Godwin and considering further the release by the plaintiffs in this case of Government Employees Insurance Company, insurer of the Godwin vehicle, and the subsequent dismissal of this suit as to that defendant, it is axiomatic that such release of a solidary obligor operates to reduce any award to the plaintiff by the virile share of the party released, in this case by one-half. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964); Wall v. American Employers Insurance Co., 386 So.2d 79 (La.1980). Accordingly, the judgment of the trial court will be amended so as to reduce the award to Walter M. God-win as administrator of the estate of his minor son, Kevin Kent Godwin, and against the Department from the sum of $25,000.00 to the sum of $125,000.00.

For the above and foregoing reasons the judgment appealed from is reversed in part and amended in part and recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the State of Louisiana, Through the Department of Transportation and Development, and against Walter M. Godwin, individually and as head and master of the community of acquets and gains existing between him and Bettye F. Godwin dismissing the latter’s suit with prejudice and at his cost.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Walter M. Godwin, as administrator of the estate of his minor son, Kevin Kent Godwin, and against the defendant, State of Louisiana, Through the Department of Transportation and Development, in the sum of $12,-500.00, together with legal interest on said sum from date of judicial demand until paid, and for all costs of the proceedings conducted in the trial court, including the fees of all expert witnesses, the total costs incurred at the trial level for which the Department is cast being fixed at the sum of $1268.62 .

Costs of this appeal are to be borne one-half by Walter M. Godwin, as administrator of the estate of his minor child, Kevin Kent Godwin, and one-half by the State of Louisiana, Through the Department of Transportation and Development, the sum due by the Department for appeal costs being fixed at the sum of $161.33 .

REVERSED IN PART, AMENDED AND AFFIRMED IN PART AND RECAST.

      . At the time of accident Mrs. Godwin was bringing her son, Kevin Kent, to a scheduled doctor’s appointment in Deridder, Louisiana. Appellees do not urge that Mrs. Godwin was not on a community mission.

      . Walter Godwin is precluded from recovering the medical expenses incurred for the treatment of Kevin Kent Godwin, for it is well settled that where a parent is found to have been contributorily negligent such parent cannot recover special damages incurred on behalf of a minor child. Romero v. General Accident Fire & Life Assurance Corp., 199 So.2d 607 (La.App. 3rd Cir. 1967); Thibodeaux v. Jack’s Cookie Corp., 169 So.2d 918 (La.App. 3rd Cir. 1964) writ refused, 247 La. 365, 171 So.2d 479 (La.1965); Rue v. Continental Insurance Co., 366 So.2d 629 (La.App. 3rd Cir. 1978) writ denied 369 So.2d 153 (La.1979).

      . A parent’s negligence is not imputable to his or her child. Vidrine v. General Fire & Casualty Co., 168 So.2d 449 (La.App. 3rd Cir. 1964).


source: Caselaw Access Project

license: Public Domain

text:
    Bettye F. GODWIN, Plaintiff-Appellee, v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT et al., Defendants-Appellants.
    No. 8053.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Hall, Lestage & Lestage, David R. Les-tage and David W. Burton, DeRidder, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion matter entitled Walter M. Godwin v. Government Employees Insurance Company et al., 394 So.2d 751, our docket number 8052, the judgment rendered by the trial court is reversed and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant, State of Louisiana, through the Department of Transportation and Development, and against the plaintiff, Bettye F. Godwin, dismissing the latter’s suit with prejudice.

It is further ordered, adjudged and decreed that Bettye F. Godwin be cast with all costs of these proceedings both at the trial level and on appeal.

REVERSED AND RENDERED.


author: SAMUEL, Judge.

text:
    Mercedes ALBERT v. Edward J. LIRETTE.
    No. 11602.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Levenson & Bonin, Leonard L. Levenson, New Orleans, for plaintiff-appellee.
    John C. Derenbecker, Metairie, for defendant-appellant.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit to nullify an $865 default judgment taken against her by defendant on August 15, 1979. Plaintiff’s case is predicated on fraud and ill practice allegedly perpetrated by defendant.

Defendant answered and filed a recon-ventional demand for $2,400 for loss of business income, increased business expense and attorney’s fees.

The trial judge denied plaintiff’s request for a temporary restraining order, but after a hearing granted injunctive relief prohibiting defendant from executing on the judgment sought to be nullified. By stipulation of the parties made at the trial on the merits of the suit for nullity, the evidence taken at the injunction hearing was offered in lieu of additional evidence. The matter was taken under submission, and judgment was rendered in favor of the plaintiff nullifying the August 15, 1979 judgment. Defendant has appealed.

Plaintiff’s action is based on several grounds. First, she claims defendant committed fraud and ill practice by not notifying her attorney of his intention to enter a preliminary default and confirm it, by not notifying her attorney that the judgment had been obtained, and by not attempting to contact her attorney to inform him of defendant’s intended actions. By supplemental petitions, plaintiff further alleges fraud and ill practice in defendant’s failure to mention or introduce into evidence a written contract between the parties, and in failing to mention in his offer of the record on confirmation of the default a motion for extension of time filed by plaintiff’s counsel by which the trial court granted defendant thirty days from May 15,1979 to file pleadings. Plaintiff admits in her petition that the fifteen day extension of time expired on June 15, 1979, that a preliminary default was not entered until July 10, 1979, and that the default was not confirmed until August 15, 1979.

In his reasons for judgment, the trial judge concluded defendant was guilty of ill practice by not stating in his offer of the record during the confirmation proceeding that the record contained the expired motion for extension of time filed by plaintiff’s attorney. Relying on the case of Al-onso v. Bowers, the trial judge stated that as a matter of equity and good conscience had he been made aware of the expired motion, he would have required defendant’s attorney to certify that plaintiff’s attorney was aware of his intention to proceed by default. The court further stated that because he heard the confirmation in summer session, the inability of defendant’s attorney to make such a certification would have caused him to refer the matter to the judge to whom the case originally had been allotted without granting plaintiff’s confirmation.

Article 2004 of the Louisiana Code of Civil Procedure provides that final judgments obtained through fraud or ill practice shall be annulled. In the case of Alonso v. Bowers, relied on by the trial judge, the defendant filed an exception of vagueness. Prior to a hearing on the pending exception, plaintiff filed a supplemental petition and caused it to be served on the defendant, and not on defendant’s attorney. The supplemental petition was served by domiciliary service only, and no notice of judgment was served on either defendant or defendant’s attorney. Under these facts the Alonso court found that justice and fair play dictated annulment.

In the present case the basic complaint offered by plaintiff is lack of notice of defendant’s intention to confirm the default judgment and defendant’s failure to offer the expired motion for extension of time into evidence at the confirmation hearing.

Plaintiff’s first contention lacks merit. Unless defense counsel is misled by plaintiff’s attorney on the question of notice prior to obtaining a default judgment, lack of such notice does not constitute fraud or ill practice. In Pace v. Reasing Rivers Const. Co., Inc. the court held the mere confirmation of a default judgment without informing opposing counsel of plaintiff’s intention to do so is not of itself ill practice sufficient to nullify the default judgment. In addition, in Adams v. Hagerty, this court held the failure to grant a new trial on a default judgment confirmed after a 15 day extension of time had expired was not error when there was no agreement between the parties not to proceed and the defendant had no special defense to offer. Adams was decided on an appeal, but its reasoning is nevertheless applicable in a nullity action under the same circumstances.

We do, however, find that defendant’s failure to offer the expired motion for extension of time into evidence at the confirmation of the default judgment is grounds for nullity. The record showed defendant’s attorney offered into evidence “the entire record” which he stated to the court to consist of the suit, the sheriff’s return, and the minute entry of default. He then requested judgment in accordance with the prayer of the petition without mentioning the expired motion for extension of time to plead.

The defendant’s attorney specifically stated to the judge he offered the entire record, and then proceeded to omit from its offer in confirmation the expired motion for extension of time. We consider important the fact that the trial judge would not have confirmed the default without the assurance of defendant’s attorney that plaintiff’s attorney had knowledge of the confirmation. Under these circumstances plaintiff is entitled to a judgment of nullity.

By so concluding, we do not attempt to pass judgment on the actions of defendant’s attorney. The record does not reflect, nor are we able to determine, whether he omitted mention of the expired motion intentionally or inadvertently. Further, it is not necessary for us to make such a determination. The Supreme Court stated in Succession of Gilmore as follows:

“... The courts of this state will not hesitate to afford relief against judg-merits, irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be unconscientious and inequitable.”

In Alonso v. Bowers, relied upon by the trial judge in this case, the court stated the proposition as follows:

“... Under the jurisprudence any improper practice or procedure which enables a party to obtain a definitive judgment comes within the meaning of this article.” (Emphasis ours).

The foregoing rule has been carried forward to actions for nullity under Article 2001 of the Code of Civil Procedure. In Tapp v. Guaranty Finance Company, the court stated:

“. .. The article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment, of some legal right, and where the enforcement of the judgment would be un-conscientious and inequitable.” (Emphasis ours).

To reiterate, the trial judge left no doubt that defendant would not have obtained judgment by default against plaintiff had he known of the expired motion in the record. Defendant’s attorney, for reasons known only to him, purported to offer the entire record in evidence, but omitted from his recitation of the record’s contents plaintiff’s expired motion for extension of time. The trial judge was acting during the court’s summer vacation period, and was not familiar with the case. Under all of these circumstances we conclude the enforcement of the judgment would be inequitable and improper.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The “contract” was a proposal to perform roofing repairs on plaintiff’s residence.

      . 222 La. 1093, 64 So.2d 443.

      . La.App., 377 So.2d 530.

      . See Holbrook v. Palermo, La.App., 352 So.2d 419; Sokol v. Bob McKinnon Chevrolet, Inc., La.App., 307 So.2d 404; League Central Credit Union v. Gagliano, La.App., 336 So.2d 931.

      . La.App., 157 So.2d 282.

      . In Adams there was no issue regarding misleading the court. That issue is present here and is treated infra.

      . See also Holbrook v. Palermo, supra, and Sokol v. Bob McKinnon Chevrolet, Inc., supra, note 4.

      . 157 La. 130, 102 So. 94.

      . Supra, note 2.

      . La.App., 158 So.2d 228.


author: REDMANN, Judge.

text:
    John B. MASSENGILL v. AETNA LIFE INSURANCE COMPANY.
    No. 11388.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearings Denied March 16, 1981.

      James J. Morrison, Jr., New Orleans, for plaintiff.
    Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for defendant.
    Before REDMANN, SCHOTT and HUGHES, JJ.
   REDMANN, Judge.

Defendant insurer’s policy provides “disability will be deemed to be due to injury only if the disability commences within the ninety-day period immediately following the accident which caused such injury.” Plaintiff experienced problems immediately after his accidents (there were three), but continued to work for two years after the last accident until retired for disability. Defendant appeals from a judgment awarding benefits under the policy, and plaintiff answers seeking statutory attorney fees and penalty for nonpayment. We affirm.

Although the policy only provides benefits for total disability (sec. 2Aa), the clause quoted above does not provide that disability is due to injury only if total disability “commences” within 90 days. There was evidence, although disputed, from which the trial judge could conclude that the disability, although not then total, did “commence” within 90 days.

The insurer was, nevertheless, entitled to a judicial resolution of both the question of the cause of the disability and the question of policy construction, and we therefore agree with the trial judge that attorney fees and penalty are not recoverable.

There does appear to be some mathematical error in the award for past due benefits, and the Reasons for Judgment do not set forth its calculation. It was stipulated that $930 a month is the benefit amount, and the policy provides reductions of that amount by “(1) the amount of any remuneration [from the] Employer,” (2) for persons over 65 only, retirement plan payments from the employer, and “(3) any periodic cash payments with respect to disability ... provided by the Federal Social Security Act or pursuant to any workmen’s compensation law.” Plaintiff, over 65 years old, receives a pension and Social Security, and his former employer “reimburse[s] him for his cost of part B Medicare.” The pension payments are deductible under reduction (2). Social Security payments were unquestionably payable (although it is unclear from the record whether they were collected) “with respect to disability” rather than old age when plaintiff retired for disability, and at that time, the deduction of those payments fixed the net amount of plaintiff’s disability benefit. The Medicare reimbursement is not any of the three reductions.

The reductions must be fixed as of the time of the retirement for disability because that is the policy’s intent. In any case, public policy cannot allow a private insurer to reduce its disability benefits in an amount equivalent to social security increases, for that would defeat the Congress in its efforts to better the disabled’s lot by granting a cost-of-living increase. Certainly it is not the Congress’s intent to provide funds out of the social security trust fund to reduce private insurers’ obligations under policies whose premiums were paid years before. We therefore also reject plaintiff’s argument that all Social Security payments after age 65 are with respect to old age and therefore would not be deductible even though similar payments before age 65 would be deductible from the insurance benefit.

The policy language that displays this intent is, from art. 2 § 2A, that “the Insurance Company will pay a benefit at the rate determined in accordance with Section 3” and, § 2B, if the employee is injury-disabled, “the Insurance Company shall continue such benefit payments” during the disability. No insured’s purpose is to reduce his disability benefit even more if offsetting pension or social security payments are increased to aid in meeting inflation, and this insurance policy’s words evince the purpose of fixing a benefit as of the time of disability which will thereafter continue to be the same benefit payable during the disability.

It is stipulated that the gross benefit was $930 monthly from which we deduct $520.37 monthly pension and social security for a net of $409.63 monthly or $204.82 semimonthly due from defendant.

The judgment appealed from is therefore amended to award $204.82 semi-monthly from December 1,1976 until the date of the trial court’s judgment, December 12, 1979 (a total of $14,951.86) plus legal interest from each due date until paid, and to decree those semi-monthly payments payable thereafter (with legal interest from due date until paid) during plaintiff’s total disability; and the judgment is in other respects affirmed at defendant’s cost.


text:
    William D. GUNNELS, Jr. et al. v. FARMERS EXPORT COMPANY et al.
    No. 11609.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.
    Gary & Field, Russell L. Dornier, C. Randall Loewen, Baton Rouge, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, New Orleans, for defendants-appellees.
    Lane & Clesi, Frank A. Fertitta, Baton Rouge, for intervenor-appellant.
    Before REDMANN and SCHOTT, JJ., and HUGHES, J. Pro Tem.
   REDMANN, Judge.

Although it might be argued that there is “no genuine issue as to material fact" for purposes of defendant’s motion for summary judgment, La.C.C.P. 966, defendant is not “entitled to judgment as a matter of law” on a theory that plaintiff is defendant’s statutory employee, La.R.S. 23:1061. To the contrary, the allegedly undisputed factual circumstances suggest a conclusion that plaintiff is not defendant’s statutory employee.

Defendant’s business is storing, transshipping and exporting grain. Its employees do normally maintain its extensive facilities. But they do not do sandblasting, and defendant has no sandblasting equipment. The industry practice is to employ outside contractors for sandblasting.

Defendant’s “marine leg” (an endless belt conveyor with cups to extract grain from barges) is essential to its business, and for that reason, either sandblasting and painting or replacement may be said to be essential to defendant’s continuation in business. Yet defendant did not make sandblasting (or belt replacement) a part of its method of doing business any more than any business would unavoidably make building construction a part of its business by the mere circumstance that it must have and therefore contracts to construct a building for the operation of its business.

Summary judgment for defendant was therefore improperly entered.

Reversed.


text:
    Merrie Elizabeth EAST et al. v. CHUCK MILLER REALTY, INC.
    No. 11617.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.

      White, Fray, White & Daly, Robert H. Fray, Metairie, for plaintiffs-appellants.
    Grant & Barrow, Ernest E. Barrow, II, Gretna, for defendant-appellee.
    Before REDMANN and SCHOTT, JJ., and HUGHES, J. Pro Tern.
   REDMANN, Judge.

Plaintiffs owned a motel they agreed under a bond for deed contract to sell to defendant for a price of $700,000 payable in monthly installments of $6,689.90 including annual interest of 8%. When defendant asked for title by credit sale (plaintiffs say on a representation defendant needed title to get a Small Business Administration loan to improve the motel), plaintiffs agreed to and did sell for $840,000 with $677,000 on credit with 9% yearly interest on the unpaid balance.

Plaintiffs now appeal from the dismissal of their suit to rescind the credit sale as obtained by fraud or, alternatively, to foreclose the mortgage because of defendant’s breach of the obligation to “keep the property in as good order and condition as it now is and [not to] commit or permit any waste thereof” by improper maintenance and by filling in a swimming pool. We affirm.

Plaintiffs got what they bargained for in the credit sale, namely a higher price and a higher rate of interest. There was no other bargain, especially that the SBA (or other) loan was to accomplish specified improvements, and plaintiffs cannot rescind their contract because of unbargained-for expectations that remain unfulfilled. Defendant offered evidence that in fact it did obtain funds from elsewhere and did accomplish the improvements that it intended.

On the question of maintenance, the court-appointed expert reported that the building had not deteriorated structurally and was in good repair, and, though there had been maintenance problems, the maintenance was proper as of the time of trial. One further related argument by plaintiff is that defendant was obliged to remain a Best Western Motels franchise holder and did not. We find no such obligation. The addendum to the bond-for-deed obliges plaintiff to assist defendant in remaining a franchise holder, but does not oblige defendant to remain one.

On the waste question, the factual circumstance is that, after the drowning of a young child in the small, unfenced swimming pool, defendant filled the pool with mud and covered it with concrete. There is no expert evidence that the pool cannot be reclaimed. There is evidence suggesting that fencing the pool would have been objectionable as an obstacle to other uses of the motel. Moreover, fencing could itself have been argued to be a violation of the credit sale’s terms. There is also evidence that the motel continues to operate at a very high occupancy, suggesting that the pool was not a significant asset of the motel as a motel in any case and that its unavailability does not constitute a detriment to the mortgage security (although the mere fact that the security is not reduced in value would not defeat foreclosure if part of the mortgaged asset had been conveyed to a third person, as in Federal Land Bank of N. O. v. Mulhern, 1934, 180 La. 627, 157 So. 370, 95 A.L.R. 948). We compare this case to one where a homeowner would chop down a tree (especially if dangerous, e. g., because rotting): that may arguably constitute waste of the property, but it cannot be construed to be the substantial waste that alone could reasonably be intended by the parties to justify mortgage foreclosure.

Affirmed.


author: GULOTTA, Judge. SAMUEL, Judge,

text:
    Denise HADLEY v. George W. HADLEY.
    No. 11643.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.

      William H. Egan, Chalmette, for plaintiff-appellee.
    Robert J. Fineran, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

In this child custody case, the divorced father, a resident of Rhode Island, appeals from a judgment awarding custody of his six-year-old son to the mother, a resident of Louisiana. The father contends that the Louisiana court lacked jurisdiction under LSA-R.S. 13:1700 et seq., the Uniform Child Custody Jurisdiction Law, to modify an earlier Rhode Island decree awarding custody to him. We disagree. Accordingly, we affirm.

BACKGROUND

Denise and George W. Hadley, both residents of Rhode Island, were divorced in that state on October 8, 1976 and Denise was granted custody of their son, Eric, subject to George's visitation. Denise remarried approximately one year later and moved soon thereafter with her new husband and Eric a short distance to Seekonk, Massachusetts.

In December, 1978, Denise and Eric came to St. Bernard Parish, Louisiana. Although the record does not disclose the exact date, they returned to New England and Denise attended a visitation hearing in the Rhode Island Family Court on March 9, 1979.

On April 4, 1979, after another hearing, the Rhode Island court entered an order “transferring physical possession” of the child from Denise to George. Denise was not present at that proceeding but was represented by her attorney. According to Denise’s version, although she was still in the New England area she had not been notified of the hearing. In a telephone conversation with her attorney on the night of April 4, however, her attorney told her that although the judge was “mad” because of her absence, he had not changed custody at that time. Although he informed Denise that George had “temporary possession” of the child, she understood that to mean that she could be compelled to have the child visit with the father. Denise claims that she was not given notice of any future hearings. According to Denise, she left the Rhode Island-Massachusetts area with her husband and Eric and moved to St. Bernard Parish, Louisiana in mid-April, 1979.

On April 20, 1979, in another proceeding unattended by Denise, the Rhode Island court found her to be “an unfit mother” and transferred custody of Eric to George. This finding of unfitness was based on Denise’s failure to appear in the Rhode Island court and not on her unfitness as a mother to care for the child. The Rhode Island court additionally adjudged Denise in contempt and set a hearing on April 27 to show cause why she should not be incarcerated for violation of prior court orders. A written decree transferring custody to George was handed down in Rhode Island on April 23, 1979. When Denise did not appear in the Rhode Island court on April 27 as ordered, the court issued a Writ of Attachment for her. A subsequent Massachusetts warrant was issued for Denise’s arrest based on her kidnapping of Eric.

On June 6, 1979, Denise was arrested in St. Bernard Parish by local authorities. The kidnapping charges were not accepted by the District Attorney in St. Bernard Parish and Denise was released. Her subsequent rule for custody of Eric in St. Bernard Parish was met by an exception filed by George to the Louisiana court’s jurisdiction based on the Uniform Child Custody Jurisdiction Law in effect in Rhode Island and in Louisiana. At the hearing, where both parties were present and represented, the trial judge, on February 5, 1980, “denied” the father’s exception of no cause of action and granted custody to the mother. The appeal by the father from that judgment is now before us.

JURISDICTION

LSA-R.S. 13:1702 sets forth the statutory requirements concerning jurisdiction under the Uniform Law. In pertinent part, it provides as follows:

“Section 1702. Jurisdiction.
A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships .... ”
As pointed out in Revere v. Revere, 389

So.2d 1277 (La.1980), under this statutory scheme, a competent Louisiana court has jurisdiction to determine custody or modify it in two principal situations: (1) when Louisiana is the child’s home state, or (2) when the child and at least one contestant have a significant connection with Louisiana so that it is in the best interest of the child that Louisiana assume jurisdiction. As noted in Revere, the “home state” standard is based on the theory that the court of the home state is in the best position for evidence gathering and for exercising continuity of control. On the other hand, the “significant connection” standard is more flexible and based on strong contacts of the child and the contestant with the state where the proceeding is brought. This standard affords a “best interest” basis for Louisiana jurisdiction when this state has a legitimate concern as to custody and has superior access to evidence concerning the child’s care, training, well being and personal relationships.

Although Louisiana, according to Revere, is not the home state, the evidence supports a conclusion that Louisiana meets the requirements of the “significant connection” standard. At the time Denise filed her rule for custody on June 11, 1979, she, her second husband and Eric had moved to St. Bernard Parish and had been residents there since April. At the time of trial, the husband was working and the family was living in Chalmette, Louisiana in a rented house with plans to build their own home. Eric, who was six years old at the time of the trial in St. Bernard, had just begun school in that parish. Denise’s parents had also moved from Massachusetts and were living in New Orleans. One of Denise’s brothers and his wife had also moved to Louisiana with their daughter. A younger brother and his wife were contemplating moving from New England to this state.

During her first stay in Louisiana in December, 1978, Denise and Eric had stayed with their aunt in St. Bernard Parish. Denise’s father testified that his daughter and her husband had come to Louisiana to “start a new life.” Admittedly, Eric was born in Rhode Island and had resided in the New England area considerably longer than the time he had spent in Louisiana, nevertheless, his mother and her new husband have established themselves in this state and the overwhelming majority of his maternal relatives now live here.

Under these circumstances we conclude that the Louisiana court had a legitimate concern, consistent with the purposes of the Uniform Child Custody Jurisdiction Law, and had superior access to evidence concerning Eric’s care, training, well being and personal relationships for the present and future. We conclude, therefore, that the Louisiana court had acquired jurisdiction under “the best interest of the child” and “significant connection” standards as set forth in LSA-R.S. 13:1702(A)(2).

In so holding, we reject the father’s reliance on the wording in LSA-R.S. 13:1705 (dealing with simultaneous custody proceedings in more than one state) and LSA-R.S. 13:1706 (dealing with inconvenient forums) to defeat Louisiana jurisdiction. Although, as pointed out by George, Rhode Island initially had jurisdiction over the dispute and indeed had rendered earlier custody orders, nevertheless, there is not now pending a custody proceeding in Rhode Island and Louisiana is not an inconvenient forum. Our case is not controlled by the provisions of LSA-R.S. 13:1705 and LSA-R.S. 13:1706(C) as claimed by the father, but is controlled by LSA-R.S. 13:1702(A)(2) as earlier pointed out. We note also that this result is consistent with LSA-C.C.P. article 10, which provides that a court otherwise competent has jurisdiction of a “proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state.”

We also are not persuaded by George’s argument that Louisiana should decline jurisdiction by reason of Denise’s alleged reprehensible conduct in abducting Eric and moving to Louisiana to retain physical custody of the child in violation of the Rhode Island decree and to “shop” for a more favorable forum. In this regard, George cites LSA-R.S. 13:1707, which provides as follows:

“§ 1707. Jurisdiction declined by reason of conduct.
A. If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
B. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
C. In appropriate cases a court dismissing a petition under this Section may charge the petitioner with necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses.”

The evidence is conflicting as to Denise’s alleged bad faith in moving to Louisiana with Eric. According to Denise’s testimony, she understood that she had full legal custody of Eric when she left Massachusetts in mid-April, 1979. Although she had spoken to her attorney on April 4 and learned that George had obtained an order granting him temporary possession of the child, it was her understanding that she still retained custody subject to George’s visitation. According to her testimony, she was not informed of any future trial dates in the Rhode Island family court, but would have attended them had she known. She stated that no one had ever told her about the Rhode Island court decree of April 23 which transferred custody to George and that she was in Louisiana at the time it was handed down and sought to be enforced. She indicated that she was not aware of any outstanding attachment or warrant for her arrest.

According to Denise, she removed Eric from Massachusetts in the middle of April because of fear for his safety and because of the father’s threat that he would make life “miserable” for her and acquire custody of Eric. Denise’s version of the events was substantially corroborated by the testimony of her father who stated that she was in Louisiana when her custody was transferred to George.

On the other hand, George testified that Denise was present in Massachusetts when he was awarded custody, and that she had refused to surrender Eric. According to George, Denise’s father was present when he was awarded full and complete custody on April 24 and Denise was fully aware of the decree. George’s testimony is supported in this respect by the transcript of the April 27, 1979 hearing in the Rhode Island Family Court in which Denise’s attorney stated that he had talked to her and explained the decree. The circumstances of that alleged conversation or Denise’s exact whereabouts at the time of it, however, are not clear from the transcript.

Confronted with this conflict in the testimony, the trial judge may very well have concluded that Denise had not abducted Eric or engaged in reprehensible conduct to evade enforcement of the Rhode Island decree. Accepting her version, the trial judge may have concluded that she had left Massachusetts in fear before George was awarded custody or that she had been ignorant of the Rhode Island hearings. A determination of the mother’s conduct is largely based on decisions of credibility. Apparently the trial judge did not find irresponsible conduct on the part of the wife which would warrant a judgment depriving her of custody. We cannot say the trial judge erred.

A trial judge reaching such a conclusion is not compelled to invoke and follow LSA-R.S. 13:1707(A) which provides that in cases of wrongful taking of the child from another state or in instances of similar reprehensible conduct the court “may decline to exercise jurisdiction if this is just and proper under the circumstances.” Nor is he compelled to follow the language of LSA-R.S. 13:1707(B) which requires that a court not exercise its jurisdiction to modify another state’s custody decree where the petitioner has improperly removed the child from the physical custody of a person entitled to it without his consent.

We likewise reject George’s contention, based on LSA-R.S. 13:1712 and 1713, that the Louisiana court was required to recognize and enforce the earlier Rhode Island decree and could not modify it. Although LSA-R.S. 13:1712 provides that a Louisiana court shall recognize and enforce an initial or modification decree of a court of another state that had assumed jurisdiction in accordance with the Uniform Law, and though LSA-R.S. 13:1713 provides that a Louisiana court shall not modify that decree unless it appears that the court initially rendering it does not now have jurisdiction under the Uniform Law or has de-dined to assume jurisdiction to modify the decree, these statutory provisions must be read in light of the Uniform Child Custody Jurisdiction Law in its entirety.

Rhode Island, the “home state”, initially had acquired jurisdiction. However, Louisiana subsequently acquired jurisdiction in the child’s best interest once the child and his mother had a significant connection with this state, and there existed substantial evidence concerning his present or future care and personal relationships. LSA-R.S. 13:1702(A)(2), supra. As recognized in Revere v. Revere, supra, and Moore v. Moore, 379 So.2d 1153 (La.App. 2nd Cir., 1980) the primary or overriding purpose of the Uniform Law is to further the child’s interest and well-being. Although a strict application of LSA-R.S. 13:1713 would afford an orderly rule for resolving conflict in jurisdictional disputes between states on a “first come, first serve” basis, the deference by Louisiana to Rhode Island under the circumstances of our case would not be in Eric’s best interest and therefore would defeat the paramount purpose of the Uniform Law. Eric’s father has remained in Rhode Island, but Eric, his mother, his stepfather, maternal grandparents and aunts and uncles live here. The Louisiana court heard evidence concerning the child’s past, present and future environment in both Louisiana and Rhode Island and examined the transcripts of Rhode Island hearings. To return the child to Rhode Island and require his mother to face contempt charges there in another repetitious custody proceeding would not be beneficial to the child’s welfare.

As stated in Settle v. Settle, 276 Or. 759, 770, 556 P.2d 962, 968 (1976), cited in Moore v. Moore, supra, concerning the Uniform Law:

“A close reading of the Act discloses a schizophrenic attempt to bring about an orderly system of decision and at the same time to protect the best interests of the children who may be immediately before the court. When put to the test of a factual situation presenting an irreconcilable conflict between those two interests, we read the Act as making predominant the best interests of the children before the court.”

Considering the entire statute, and reading its provisions in pari materiae, we conclude that the Louisiana court in Eric’s best interest properly exercised jurisdiction, notwithstanding the literal wording of LSA-R.S. 13:1712 and 1713.

Now turning to the question whether the Louisiana judge properly granted custody to the mother, we are persuaded by the circumstances surrounding the child’s environment at the time the matter was heard in St. Bernard Parish. Eric had just begun school in that parish at the time of the trial and was living with his mother and her second husband in Chalmette. Denise’s present husband is employed full time and Denise does not work outside the home. She devotes full time to maintaining her household and caring for Eric. She drives him to and from school each day. According to Denise’s testimony the child “just seems a lot more happy.” His appetite has increased, he is not fearful, and he does not have “anything on his mind” as compared to his life in Massachusetts. Denise said that Eric did not want to “relate” to his father and had been upset in Massachusetts. She testified that George had called her terrible names, causing Eric to cry, and on one occasion had shoved her in front of the child. Denise stated that she has no plans for working outside the home and will be able to take care of Eric’s every need.

Eric’s maternal grandfather corroborated Denise’s testimony concerning Eric’s relationship with George. This witness related that on one occasion during visitation in March, 1979 Eric had become upset when George tried to pick him up, George had shaken the child physically, and Eric had asked to go home to his mother. The grandfather added that he had been appointed “intermediator” between the Had-leys since the child would refuse to visit his father.

In contrast to this testimony, George stated that he had a good relationship with his son from the time of the divorce until September, 1978, when Denise moved to Massachusetts. At the time of trial, George was employed in Rhode Island as a railroad engineer and worked a shift from 1 a. m. to 9 a. m. He lived alone in an apartment and was a member of a Rhode Island military organization requiring his attendance at drills one weekend a month and two weeks each year. He stated that his parents, living in Rhode Island, would cooperate in taking care of Eric and that his grandmother was capable of watching the child.

Considering the evidence, we cannot say the trial judge abused his discretion when he awarded custody of Eric to his mother. LSA-C.C. art. 157; Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979).

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

SAMUEL, J., dissents and assigns reasons.

SAMUEL, Judge,

dissenting.

I agree that Louisiana is not the child’s home state as found by the majority. However, I do not agree that the “significant connection” required by R.S. 13:1702(A)(2) has been met. When the mother filed the rule for custody in Louisiana on June 11, 1979, her parents had been living in this state only three weeks and she herself had moved to the state with the child only six weeks previously. The fact that one brother and his wife had also moved to Louisiana and another and his wife were contemplating moving to Louisiana is of no particular significance. On the other hand, the child’s father lives and has lived for many years in Rhode Island, and this also is true as to the paternal grandparents. In addition, it is obvious that friends in both Rhode Island and nearby Massachusetts, all potential disinterested witnesses, knew the parties and the child for a much longer time than did any such witnesses in Louisiana. In my opinion Rhode Island meets the “significant connection” standard to a greater extent than does Louisiana.

I also disagree with the view that, as expressed in the majority opinion, “there is not now pending a custody proceeding in Rhode Island”. Revised Statute 13:1705 A specifically prohibits the exercise of jurisdiction by a court of this state when “at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the other state ...”

When plaintiff filed her present rule for custody the Rhode Island court had granted custody to the defendant, but that proceeding had not been completed. The Rhode Island court was attempting, and is still attempting, to enforce its decree. It was prevented from doing so only because plaintiff had left its jurisdiction. Thus, it appears clear to me that, within the intendment of R.S. 13:1705 A, a proceeding “concerning the custody of the child” was and is pending in Rhode Island. To hold otherwise violates the provisions of R.S. 13:1705 A. In order to avoid the consequences of that section, all that the losing party need do is wait until the custody decree comes down and then go to another jurisdiction. That is exactly what the plaintiff has done here.

Relative to the conflicting evidence as to why plaintiff moved to Louisiana with the child, it appears to me she did so, at least primarily, for the purpose of avoiding the consequence of the Rhode Island decree. Practically all the evidence to the contrary consists of the self-serving testimony of the plaintiff herself. And this view, that plaintiff left Rhode Island to seek a forum more favorable to her, is confirmed in part by the transcripts of the April 20 and April 27, 1979 hearings in Rhode Island. Moreover, I find it extremely difficult to believe plaintiff’s testimony regarding her understanding of the April 4, 1979 Rhode Island decree even without those transcripts.

In addition, the chronology of the events appears to me to be significant. The Rhode Island decree “transferring physical possession” was rendered on April 4,1979. Only a few days later plaintiff left Rhode Island and came to Louisiana. She filed her rule for custody on June 11, 1979, only approximately two months after her arrival in Louisiana and just five days after her arrest on kidnapping charges.

Nor am I able to find that it is in the best interest of the child that this matter be tried in Louisiana.

Nor do I agree with the majority that Louisiana is the more convenient forum. Just as the plaintiff circumvented the Rho-de Island court order for visitation while she lived in Rhode Island, and in Massachusetts “one-half block from the Rhode Island state line”, by fleeing from Rhode Island, she now has made it almost impossible for the father to have visitation rights and to litigate the matter.

Under all of these circumstances, the exercise of jurisdiction by Louisiana contravenes the whole purpose of the Uniform Child Custody Jurisdiction Law; it encourages shopping around for a more favorable forum. Plaintiff was found in contempt by the Rhode Island court for fleeing the jurisdiction on two occasions, for failing to follow the court’s directive regarding visitation rights, and for failing to surrender the child as ordered by the court.

In my view, that law requires that jurisdiction be retained in the Rhode Island court. Accordingly, as I would reverse and order the trial court to decline jurisdiction,

I respectfully dissent.

      . LSA-R.S. 13:1700 provides as follows (in pertinent part):
      “A. The general purposes of this part are to:
      (3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.”

      . LSA-R.S. 13:1705 & 1706(C) read as follows, in pertinent parts:
      “§ 1705. Simultaneous proceedings in other states.
      A. A court of this state shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.
      B. ...
      C.”
      “§ 1706. Inconvenient forum.
      A. ...
      B. ...
      C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
      (1) If another state is or recently was the child’s home state.
      (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
      (3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
      (4) If the parties have agreed on another forum which is no less appropriate, and
      (5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 1700.

      . The general purposes of the Uniform Child Custody Jurisdiction Law include: the avoidance of jurisdictional conflict and the shifting of children with “harmful effects on their well being” (LSA-R.S. 13:1700(A)(1)>; cooperation between state courts so that the decree is rendered in the state that “can best decide the case in the interest of the child” (LSA-R.S. 13:1700(A)(2)); and discouraging continuing controversies “in the interest of greater stability of home environment and of secure family relationships for the child.” (LSA-R.S. 13:1700(A)(4)).


author: GULOTTA, Judge.

text:
    In re Mark J. PLAISANCE, Applying for Adoption.
    No. 11029.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.

      Richard G. Steiner, Gretna, for plaintiff-appellee Mark J. Plaisance.
    Mark McTernan, Steven Scheckman, Allan Parr, Mark A. Moreau, New Orleans Legal Assistance Corp., New Orleans, for defendant-appellant Charles Blanchard.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

The legitimate divorced parent, Charles Blanchard, appeals from a final decree of adoption of his child by the child’s stepfather, the second husband of the child’s mother. The adoption was granted pursuant to the provisions of LSA-R.S. 9:422.1 over the objection of the child’s father. This applicable statute provides, in pertinent part:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(3) ...”

Because we conclude the petitioner has failed to establish that the father refused or failed to comply with a court order of support for a period of one year without cause, we reverse the judgment granting the adoption.

The parents of the child sought to be adopted were divorced in 1977 and the custody of the child was granted to the mother. Thereafter, on February 18, 1978, the mother of the child married the petitioner, Mark J. Plaisance. On November 21, 1975, prior to the judgment of divorce, the Jefferson Parish Juvenile Court ordered Blanchard to pay $12.50 per week to the child’s mother for support. During 1976, periodic rules for contempt were brought against the father for non-payment of support resulting in judgments ordering the payment of accumulated arrearage. According to the minutes of the Juvenile Court, the father was incarcerated on October 14, 1976 for failure to comply with a support order. On January 21,1977, he was exonerated from contempt for non-payment “inasmuch as he was incarcerated after the court hearing of October 14,1976.” He was further ordered to commence on January 24,1977 weekly support payments. According to the mother of the child, the only support payments received by her were through the Jefferson Parish Juvenile Court. Those records indicate that commencing with the first payment on December 1,1975 periodic payments were made by Charles W. Blanchard for the first six months of 1976, ending with the last payment on August 23, 1976. Apparently no payments were made during 1977 and thereafter.

Blanchard testified at the adoption hearing on July 30, 1979 that he had been “locked up a lot the last two years” and was “locked up in ‘76 for about three or four months.” At the time of the adoption hearing Blanchard was a minimum security risk prisoner at Angola and was serving a six- and-one-half year sentence at Jackson Barracks. In answer to the trial court’s question that even when not incarcerated he was not supporting the child, Blanchard stated: “At times, I was. At times I was.” No other evidence was submitted to the trial court either in the adoption hearing or in the hearing for nullity of the adoption judgment regarding Blanchard’s failure to comply with the support order for a period of one year.

In Adoption of Rapp, 348 So.2d 107 (La. App. 4th Cir. 1977) we stated:

“It is well-settled that adoption statutes are in derogation of a natural right and must be strictly construed. See Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); In Re Ackenhausen, 244 La. 730, 154, So.2d 380 (1963). Equally well-settled is the rule that the consent of both parents is required before an adoption will be decreed, except in those instances where parental consent has been specifically dispensed with by law. LSA-R.S. 9:422.1; In Re Genin, 240 So.2d 46 (La.App. 4th Cir. 1970). Furthermore, where the failure to support the child has been based on just cause or reasons beyond the parent's control, the parent is not deprived of his right to give his consent. See In Re Hughes, 176 So.2d 158 (La.App. 4th Cir. 1965); In Re Adoption of Bickerstaff, 190 So.2d 117 (La.App. 4th Cir. 1966), writ refused, 249 La. 770, 191 So.2d 144 (1966); In Re Adoption of Schieman, 204 So.2d 433 (La.App. 4th Cir. 1967); In Re Spraggins, 234 So.2d 462 (La.App. 1st Cir. 1970).”

See also, Adoption of Latiolais, 376 So.2d 555 (La.App. 3rd Cir. 1979), affirmed, 384 So.2d 377 (La.1980), and our recent opinion, In Re Ragas, 393 So.2d 925 (La.App. 4th Cir. 1981).

The burden of proof is on the person applying for the adoption to establish the existence of the conditions of the statute under which consent of the legitimate parent is rendered unnecessary. See In Re Kennedy, 357 So.2d 905 (La.App. 2nd Cir. 1978). Once a defendant’s failure to comply with a court order of support for a period of one year within the meaning of LSA-R.S. 9:422.1 is shown, the defendant has the burden of proving cause for his non-payment. Berry v. Berryhill, 330 So.2d 405 (La.App. 3rd Cir. 1976).

Our evaluation of the evidence relating to Blanchard’s failure to make court ordered support payments leads to a conclusion that Blanchard has proven involuntary incarceration as a reason for his non-payment. Following the November, 1975 order of support, Blanchard made payments from January, 1976 through August of that year. From October 14,1976 to January 21, 1977, Blanchard was incarcerated and was re-incarcerated (according to his testimony) for the last two years preceding the adoption hearing conducted on July 30, 1979. At the time of the hearing he was still incarcerated.

Adoption of Rapp holds that the father’s failure to make child support payments was based on cause where he was involuntarily incarcerated during the time the court order of support payments was in existence. Like Rapp, in our case, as reflected by the record, because of the father’s involuntary incarceration from the latter part of 1976 until the time of the adoption hearing, we conclude the father’s failure to make child support payments was based on cause. Accordingly, the father’s consent is necessary. Because of his objection, we reverse the judgment of the trial court and dismiss the petition for adoption.

REVERSED AND RENDERED.

      . Before us in this appeal are two cases that have been consolidated. The first filed case in the Juvenile Court for the Parish of Jefferson resulted in the July 30, 1979 judgment of adoption. The second-filed suit in the Juvenile Court for the Parish of Jefferson, involving the same parties and seeking nullity of the earlier granted adoption decree, resulted in a denial of the father’s petition of nullity. Appeals were taken by the father from both judgments and have been consolidated on appeal.

      . Blanchard’s testimony is corroborated by the investigative report of the Department of Health and Human Resources made part of the record before us. The report indicates Blanchard was arrested on October 31, 1977 for simple battery and received a six-and-one-half year sentence.


text:
    In re Mark J. PLAISANCE, Applying for Adoption.
    No. 11647 Consolidated with No. 11029.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    Rehearing Denied March 16, 1981.
    Richard G. Steiner, Gretna, for plaintiff-appellee Mark J. Plaisance.
    Mark McTernan, Steven Scheckman, Allan Parr, Mark A. Moreau, New Orleans Legal Assistance Corp., New Orleans, for defendant-appellant Charles Blanchard.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

The effect of our reversal in the companion consolidated suit, In re Plaisance, 394 So.2d 776, handed down this day, is the dismissal of the petition for adoption. Under the circumstances, any consideration of the trial court’s action in this matter relating to the petition for nullity of the trial court’s judgment granting the adoption is unnecessary.


text:
    Keith BARBER v. Paul F. BEST and Dairyland Insurance Company.
    No. 11856.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.

      Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for plaintiff-appellee.
    Young, McMahon & Levert, Edward L. Levert, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and CHE-HARDY, JJ.
   GULOTTA, Judge.

The trial judge awarded plaintiff a judgment in the sum of $1,300.00 as damages from an automobile accident on January 7, 1979. Included in the award is the sum of $1,100.00, the value of a 1971 Plymouth Valiant “totaled” in the accident, less $100.00 in salvage paid to plaintiff, together with $200.00 for loss of use and inconvenience.

Defendants appealing claim: (1) plaintiff failed to establish the identity of defendant Paul F. Best as the driver of the offending vehicle; (2) no evidence was introduced to establish that Dairyland Insurance Company was the liability insurer of Paul Best; (3) the $910.58 repair estimate does not support the $1,100.00 “totaled” value award; and, (4) error was committed by the trial judge in making an award for inconvenience.

Considering the arguments in the same order as presented, we reject the contention that plaintiff failed to establish Best as the driver of the automobile. Plaintiff testified that after the accident, at the scene, Paul F. Best identified himself as the driver of the automobile that struck plaintiff’s car. Barber had not known Best before the accident and he did not see the defendant’s driver’s license. Plaintiff testified further that the police did investigate the accident. Best did not testify, and although represented by counsel at the trial, this defendant was not present. Considering Barber’s testimony, together with the absence of any defense evidence that Best was not the driver of the defendant vehicle, we cannot say the trial judge erred when he concluded, in oral reasons, that Best was the driver of the automobile involved in this accident. We, therefore, do not disturb that part of the decree which casts Paul F. Best in judgment.

We reach a different result, however, regarding the judgment rendered against Dairyland Insurance Company. In paragraph 10 of the petition, plaintiff alleges that “... Dairyland Insurance Company, had in full force and effect a policy of automobile public liability coverage on the said automobile driven by the defendant, Paul F. Best.” Defendants deny the allegations of paragraph 10 and state further “... that a policy of insurance, if any, is the best evidence of its contents.” Examination of the record fails to disclose any reference to a policy of insurance, any offer of the insurance policy or any testimony relating to coverage. Defendants’ answer calls for proof by plaintiff of policy coverage. Plaintiff simply failed to produce that proof and under the circumstances any judgment against Dairyland Insurance Company, as insurer of Best in this case, is error.

We cannot conclude that Dairy-land’s active participation in the defense of Best at the trial, failure to introduce any evidence denying that it was Best’s insurer and its filing of a request for notice, motion for new trial and a suspensive appeal, together with posting security for that appeal, are proof that Dairyland is the liability insurer of Best. A plaintiff suing on an insurance contract has the burden of establishing the existence of the policy sued on and its terms and provisions. Boyd v. White, 123 So.2d 835 (La.App. 2d Cir. 1960). Plaintiff must plead and prove his claim falls within the general policy, whereas the insurer must prove exclusions from coverage. Carriere v. Triangle Auto Service, 340 So.2d 665 (La.App. 4th Cir. 1977). Plaintiff has not met his burden in our case.

Turning now to defendants’ argument relating to quantum and entitlement to damages for inconvenience, we amend and reduce, in slight measure, the automobile damage award, but affirm the loss of use and inconvenience award. The trial judge found the cash value of the automobile at the time of the accident to be $1,200.00. Plaintiff had purchased the vehicle as a used car approximately two years prior to the accident for $1,500.00. The estimate from Caruso Body Shop for repairs to the damaged vehicle amounted to $910.58. Steve Caruso, the estimator, explained, however, that because additional body repairs are usually required and not observable until after the actual repairs are undertaken, the cost of repairs would probably be higher. It was Caruso’s opinion that it was not “worth his while trying to repair the automobile.” His estimate of the value of the automobile at the time of the accident was $1,100.00. Although the automobile was not repaired, Caruso gave plaintiff $100.00 for the damaged automobile and he purchased another used vehicle from Caruso. The estimator testified further that because the damaged estimate exceeded 80% of the value of the car, the repairs not be undertaken. The repairs to plaintiff’s automobile were not made in this case.

The trial judge apparently misinterpreted Caruso’s testimony when he arrived at a conclusion that the cash value of the automobile at the time of the accident amounted to $1,200.00. In his oral reasons, the judge allowed 80% of the $1,500.00 purchase price of the automobile two years prior to the accident. The 80% figure mentioned by Caruso was in reference to the extent of damage to the vehicle in reaching a determination of the feasibility of repairing the automobile. The 80% figure was not used by him in relation to the purchase price as suggested by the learned trial judge in his oral reasons.

Under the circumstances, we conclude that the $1,200.00 actual cash value loss as determined by the trial judge is in error. The undisputed and uncontradicted testimony of Caruso places that value at $1,100.00. Accordingly, we reduce the amount of the award for loss of the automobile by the sum of $100.00.

Finally, we conclude the trial judge properly recognized plaintiff’s entitlement to an award for loss of use and inconvenience. His judgment is consistent with our holdings in Patton v. Precision Motors, Inc., 352 So.2d 341 (La.App. 4th Cir. 1977) and Nolan v. Liuza, 301 So.2d 892 (La.App. 4th Cir. 1974). Plaintiff, a nineteen-year-old student testified that he used the automobile to go back and forth to school and work. It was the only automobile available to him for that purpose. Approximately one month elapsed between the time of the accident and the time that he was able to obtain an automobile for such use. During this interim he used public transportation but was inconvenienced, according to his testimony, because of the additional time required in transportation between home and work and school. We cannot say under these circumstances that the $200.00 award in this case is an abuse of the trial court’s discretion.

DECREE

Consistent with the foregoing, we reverse that part of the decree casting Dairyland Insurance Company in judgment and dismiss plaintiffs suit against this defendant. We amend and reduce that part of the judgment in favor of plaintiff and against Paul F. Best from $1,300.00 to $1,200.00 with legal interest from date of demand until paid. Costs to be paid by Paul F. Best.

REVERSED IN PART. AMENDED IN PART, AND AS AMENDED, AFFIRMED.

      . In so holding, we distinguish Carriere v. Triangle Auto Service, supra, and Lucas v. Doe, 371 So.2d 336 (La.App. 4th Cir. 1979), two cases where no policy was in evidence and we remanded the matter to permit plaintiff to introduce the policy and establish insurance coverage. In the cited cases, the answers of the insurers admitted the existence of a policy. In our case Dairyland’s answer effectively denies that any policy exists. No remand is warranted in our case.