author: CULPEPPER, Chief Judge.

text:
    Larry Paul GASPARD, Plaintiff and Appellee, v. AETNA INSURANCE COMPANY, Defendant and Appellant.
    No. 7624.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      Donovan & Lawler, James L. Donovan, Metairie, for defendant and appellant.
    Michael J. Johnson, Cottonport, for plaintiff and appellee.
    Before CULPEPPER, and C.J., DOMEN-GEAUX and CUTRER, JJ.
   CULPEPPER, Chief Judge.

This is an action for workmen’s compensation benefits. Plaintiff, Larry Paul Gas-pard, alleges that he is totally and permanently disabled from an accident sustained on November 7, 1977 while working for the Avoyelles Parish School Board. Defendant Aetna Insurance Company, workmen’s compensation insurer for the employer, denies that plaintiff’s disability arises out of the November 7,1977 accident. The trial court granted judgment in favor of plaintiff, finding he is totally and permanently disabled and awarding $115 per week beginning November 7, 1977 for the duration of the disability. Penalties and attorney’s fees were denied. Defendant appealed. Plaintiff did not appeal nor answer the appeal.

The issues are: (1) Was plaintiff’s disability caused by the accident on November 7, 1977? (2) What is the extent of plaintiff’s disability? (3) Was the trial court correct in awarding expert witness fees for trial testimony where the medical experts did not appear at the trial?

Larry Paul Gaspard is 35 years old and has a high school education plus two semesters of college. His employment history includes working as a warehouseman for CLECO, an insurance adjustor, a lift operator for Reynolds Aluminum Company, and service in the Louisiana National Guard. All of these jobs have involved either great physical exertion or extended periods of sitting and driving. He qualified for an instructor’s job with the Avoyelles Parish School Board on the basis of six yeas Louisiana National Guard training as a heavy equipment operator.

On November 7, 1977, plaintiff Gaspard was instructing a student in the operation of a bulldozer when the student suddenly locked the gears and forcibly snapped plaintiff backwards against the metal instructor’s seat. The following day, plaintiff experienced “severe shooting pains” in his right leg, He reported his injury to his employer and sought medical assistance from Dr. Douglas Gamburg, an orthopedic surgeon. After diagnosing a lumbo-sacral strain, Dr. Gamburg recommended conservative treatment and saw plaintiff four times between November, 1977 and July, 1978. Plaintiff had to restrict his activity but stayed on the job for the school year.

In July of 1978, plaintiff attended summer camp in connection with his duties in the Louisiana National Guard. After participating in a five mile hike, plaintiff experienced severe pain. The day after the hike, he consulted Dr. Gamburg, who continued plaintiff on the previous treatment and advice.

On August 2,1978, plaintiff consulted Dr. C. B. Fresh, a neurological surgeon, virho diagnosed a herniated disc. Dr. Fresh performed surgery on September 5, 1978 and removed part of the L5-S1 disc. Plaintiff showed improvement in October, 1978, but his condition deteriorated and further surgery was recommended. Plaintiff has not worked since his surgery.

The trial court found as a fact that plaintiff sustained an accident on November 7, • 1977 while in the employment of the Avo-yelles Parish School Board, and that the accident is a cause of his present total and permanent disability. The court specifically found that the disability originated from the accident at school and not from the National Guard activities.

Defendant argues the trial court erred in its findings of fact as to the causal relationship between the November 7,1977 accident and the present disability. Defendant further disputes the finding that plaintiff is totally and permanently disabled.

It is well settled that factual conclusions of the trial court must be given great weight by a reviewing court. Canter v. Koehring, 273 So.2d 716 (La.1973). The trial court’s findings of fact should not be disturbed on appeal unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1331 (La.1978).

At trial, plaintiff introduced into evidence the deposition of Dr. C. B. Fresh, who testified as follows:

“Q. Now, it’s your professional opinion that the walking in and of itself without any field pack would have no problem?
A. I wouldn’t think-I wouldn’t expect it to. No sir.
* * * * * *
Q. As of September 15, 1978, were you not of the opinion that the summer activity at camp precipitated this ruptured disc? Completely ruptured the disc?
A. That that in and of itself alone?
Q. Yes, sir.
A. No, sir. I don’t recall having that opinion.
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A. If I remember what you just said a minute ago, you asked me if I felt that that was the sole cause.
Q. No, not the sole. The precipitating cause and the events that followed?
A. I think this statement more accurately assesses what my opinion was. He had a prior problem with his back-I think the whole paragraph does.
Q. Yes, sir.
A. And then I think that with the old saying, the straw that broke the camel’s back, I think probably that precipitated the final event and converted him from somebody who was having intermittent pain problems to one that was a persistent pain problem.
Q. Would it be fair to say then that in your opinion-and I’m not putting words in your mouth, you can answer-that the gentleman had a problem that caused intermittent pain and the summer activity brought on a greater degree of permanent pain?
A. The pain that he was having before and after the summer camp activity was the same as far as the type, the location and the nature of the pain. He was having pain on an intermittent basis before. His pain was a persistent type of pain, one that he had pretty much from the time that this occurred until the time I saw him. So that I think that the events at summer camp did make a difference. It did convert an intermittent problem to a persistent problem.
Q. Which required surgery?
A. Right.
Q. The problem was still there?
A. The problem was still there.
Q. And you feel in a situation of this sort it was super-imposed upon by summer activity at camp?
A. Yes. He was having symptoms pri- or to going to camp, so I think probably what happened at camp was the super-imposed problem.
Q. Which brought about the surgery?
A. That’s correct.
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Q. Now, if I understood your previous testimony, you would rule out him going back in the type of employment he was in, would you not?
A. In the condition that he’s in now.
Q. Is it your thought that with surgery and coming out the way it would hope to be that he could return back to the type of job he was doing prior to his injury?
A. I think that would be a possibility, sure.
Q. Failing in that, do you feel he could be gainfully employed in other fields, excluding the field in which he was injured?
A. At this present time or in the future?
Q. In the future-or at the present time?
A. The problem he has right now that would I think impair him from performing most jobs is the fact that he’s uncomfortable with sitting for any length of time, standing for any length of time, any type of physical activity, particularly bending or lifting or twisting. And I’m not really aware of any job that he could do that wouldn’t involve one of these things that does make him uncomfortable. So I think he could not reasonably work in any capacity pain free, because he’s not pain free at home.
Q. Would in your opinion this preclude an administrative job where he would-you know how we all work, how your secretaries work, you sit— would it preclude that sort of thing?
A. I think the amount of discomfort he has sitting could interfere with his ability to do that type of job.”

Defendant introduced the deposition of Dr. Gamburg. His testimony related entirely to his diagnosis and treatment through July 28,1978, after which Dr. Gam-burg never saw plaintiff again. He stated that he could not diagnose a disc injury, and believed that plaintiff suffered from a degenerative disc disease.

Considering the above medical testimony, we find there is sufficient evidence upon which the trial court could have concluded that plaintiff’s disability resulted from the November 7, 1977 accident.

The next issue is whether plaintiff is totally and permanently disabled within the meaning of LSA-R.S. 23:1221(2). In the recent case of Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980), our Supreme Court held that a janitor, who was a “marginal employee”, was totally and permanently disabled within the meaning of the above cited 1975 amendment to the Workmen’s Compensation Act, where he could not perform the same kind of work he was performing at the time of the injury except by working in substantial pain. The court stated that after the accident, the janitor was “as a practical matter ... unable to engage in any gainful occupation for wages.” Justice Marcus concurred, on the basis that he considered an employee totally and permanently disabled when he encounters substantial pain in every occupation for which he is qualified, and that the evidence showed the janitor, because of limited education, was unable to engage in non-physical occupations.

Although the plaintiff in the present case has a high school education plus two semesters of college and prior work experience in non-physical employment, the above quoted testimony by Dr. Fresh, the only medical expert to address the issue, is that, because of pain in his back, the plaintiff could not work without substantial pain in any job which required physical activity or standing or sitting for any length of time. There being no evidence to the contrary, we conclude that under the rules set out in Whitaker, the evidence here is sufficient to support a holding that plaintiff is totally and permanently disabled.

Of course, if plaintiff has the recommended surgery and his disability diminishes, defendant can, any time six months after rendition of the judgment appealed, seek modification of the judgment under LSA-R.S. 23:1331.

The defendant also complains of an error in the award of expert fees. The trial court judgment provides as follows:

“Expert witness fees are set at $75.00 for deposition appearances and $150.00 for courtroom appearances and are to be taxed as costs; defendant is cast for all costs in this proceeding.”

Defendant contends the awards of $150 for court appearances are improper, since the experts did not in fact testify at trial. We agree.

Under LSA-R.S. 23:1317, plaintiff is entitled to have the expert fees of the physicians who testified by deposition and whose depositions were used in the trial fixed by the court and to have these fees taxed as costs. Mathews v. Milwhite Mud Sales Company, 225 So.2d 391 (La.App. 3rd Cir. 1969), on rehearing. This statute and LSA-R.S. 13:3666 also allow for compensation for expert witnesses called to testify in court to be taxed as costs. We find no authority, however, for allowing costs for a court appearance when none was made. The record shows the testimony of the medical experts was introduced by deposition only. Therefore, we allow the award of $75 for depositions and reverse the separate award for court appearances. Schumacher v. Worthan Bag Corporation, 211 So.2d 765 (La.App. 4th Cir. 1968).

Plaintiff argues in brief the trial court erred in allowing defendant certain credits and in denying penalties and attorney’s fees. However, plaintiff neither appealed nor answered the appeal. Therefore, we cannot modify, revise or reverse the judgment in his behalf. LSA-C.C.P. Article 2133. Boswell v. Roy O. Martin Lumber Company, Inc., 363 So.2d 506 (La.1978).

For the reasons assigned, the judgment appealed is amended to delete the awards of $150 for each physician for courtroom appearances. Otherwise, the judgment is affirmed at appellant’s cost.

AFFIRMED, AS AMENDED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    PETE ROY FORD, INC., Plaintiff and Appellee, v. Wilson J. LACHNEY, Executor of the Succession of Willie Lachney, Defendant and Third Party Plaintiff and Appellee, v. FIRST PROTECTIVE LIFE INSURANCE COMPANY, Third Party Defendant and Appellant.
    No. 7670.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Thibaut & Thibaut, John S. Thibaut, Jr., Baton Rouge, for third party defendant and appellant.
    Boatner & Luke, R. H. Luke, Bunkie, for plaintiff and appellee.
    Edwin L. Lafargue, Marksville, for defendant and third party plaintiff and appel-lee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

Pete Roy Ford, Inc. sues Wilson J. Lach-ney, as executor of the succession of his father, Willie Lachney, to enforce a chattel mortgage on an automobile. Defendant admitted the balance of $7,259.92 past due on the mortgage. He made a third party demand against First Protective Life Insurance Company, credit life insurer of Willie Lachney. The trial court granted plaintiff’s principal demand against defendant for $7,259.92 principal and interest due on the note, plus 12% interest until paid, delinquency charges, expenses of collection and 25% attorney’s fees. Judgment was rendered in favor of the defendant, third party plaintiff, against the third party defendant for the same amount. The third party defendant appealed. We amend and affirm.

The principal issue is whether the decedent, Willie Lachney, falsely misrepresented the state of his health in the application for credit life insurance. There is also an issue as to the amount due under the policy.

On May 11, 1978, Willie Lachney purchased an automobile from Pete Roy Ford, Inc. for $8,206.02. The obligation in favor of the plaintiff was secured by a chattel mortgage on the vehicle. As part of the transaction, Willie Lachney purchased a credit life insurance policy in the amount of $8,206 from the third party defendant.

Mr. Lachney died on September 23, 1978, 135 days after the purchase of the automobile. The death was caused by a myocardial infarction. At the time of death, the balance of principal and interest due on the purchase price of the vehicle was $7,259.92. After Mr. Lachney’s death, demand was made by Pete Roy Ford on the appellant on October 10, 1978 for insurance proceeds in the sum of $7,259.92. ■ The company denied liability on the grounds that the deceased made fraudulent misrepresentations about the state of his health.

The first allegation of error is that the trial court erred in not finding that the deceased’s application for insurance included a material misrepresentation of his physical condition sufficient to nullify the policy. The misrepresentation alleged is that Mr. Lachney failed to disclose that, he had been treated for heart and circulatory diseases. In written reasons, the trial court held:

“A material false statement in an application will invalidate an insurance policy only if the applicant knew it was material and knew it was incorrect. Even if the applicant had a heart disease of which he had knowledge, it is a question of fact as to whether the applicant misrepresented the state of his health by failing to state in the application blank that he had heart disease. By failing to write anything in the blank provided for listing diseases, the applicant made no representation at all. There is no mandatory duty on the party of an applicant to fill in the blanks in an application and there is no inference to be drawn from his failure to do so. On the contrary if the insurer intends to rely on the imformation (sic) called for in the blanks provided, it is its duty to make sure that the blanks are filled in properly; otherwise, the information called for is waived. Also a question of fact is whether the applicant intentionally concealed his condition knowing it to be material to the risk for the purpose of defrauding the insurer. Willie Lachney could not read, write or hold an intelligent conversation in English; he had suffered a myocardial infarction in 1974; and he had periodic checkups and took some medicine for several years thereafter. Dr. Bordelon, who was the insurer’s witness, testified that Willie Lachney’s understanding was such that if you told him he suffered a myocardial infarction, he would not know what you were talking about.
“In this claim, insured’s estate seeks to recover for the death of the insured who had left the space blank and had not stated in the application form that he had a history of heart trouble. However, the evidence adduced in this trial on August 28, 1979, does not support a finding that insured had made false representation about his health or that he had actual intent to deceive insurer.”

The law controlling this issue is LSA-R.S. 22:619(B) which states:

“In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.” (Emphasis added)

This statute, as interpreted by our courts, places a triple burden on the insurer to avoid liability on the basis of a material misrepresentation. First, it must prove that the statements were false. Second, the insurer must establish that the representations were made with an actual intent to deceive. Third, the insurance company must establish that these misstatements materially affected the risk assumed by the insurer. Martin v. Security Industrial Insurance Company, 367 So.2d 420 (La.App. 2d Cir. 1979).

The trial court made a factual determination that Mr. Lachney did not knowingly misrepresent the state of his health for the purpose of deceiving the insurer. We cannot say the trial court was clearly wrong in these factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

The next issue is whether the trial court erred in holding the third party defendant liable for the delinquency charges, collection costs, interest after maturity, 25% attorney’s fees, etc. provided in the chattel mortgage. The third party defendant argues that if it is cast in judgment, it is liable, under the provisions of its policy, for only the amount due the creditor at the time of death. We agree. The policy clearly so provides. The evidence shows the actual amount due the creditor at the time of death was $7,259.92.

The third party plaintiff argues in brief that the benefits should be the face amount of the policy, i. e., $8,206. However, third party plaintiff has neither appealed nor answered the appeal, so we cannot change the judgment in its favor, LSA-C.C.P. Article 2133.

Under the facts set forth above, we affirm the trial court finding of fact that the third party defendant denied payment to the third party plaintiff without just cause. Thus, a 6% penalty is due under LSA-R.S. 22:656. However, no attorney’s fees are provided by that statute. See Willis v. Willis, 287 So.2d 642 (La.App. 3rd Cir. 1973).

For the reasons assigned, the judgment in favor of plaintiff against defendant on the principal demand is affirmed. The judgment in favor of third party plaintiff and against third party defendant is amended to decrease the award to the sum of $7,259.92, plus a penalty of 6% from October 10, 1978, the date of receipt of proof of decedent’s death, until paid, and plus legal interest from April 16, 1979, the date of filing the third party demand, until paid. All costs are assessed against third party defendant.

AFFIRMED, AS AMENDED.


author: DOMENGEAUX, Judge.

text:
    Gloria Brooks KING, Plaintiff-Appellant, v. Earl James KING, Defendant-Appellee.
    No. 7724.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Writ Refused Jan. 16,1981.

      J. Marc Lampert, Alexandria, for plaintiff-appellant.
    James D. Davis, of Davis & Murchison, Alexandria, for defendant -appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

After obtaining a legal separation, but prior to their divorce, Earl James King and Gloria Brooks King executed a community settlement contract. As part of that covenant, Mr. King agreed to pay his wife “the sum of TWO HUNDRED AND NO/100 ($200.00) DOLLARS per month as alimony, both pendente lite and permanent, until such time as she remarries.” The contract was signed on May 16, 1975, the day after the parties were granted a legal separation. In that separation judgment, the District Court ordered Mr. King to pay alimony pendente lite of $200.00 per month to Mrs. King.

On September 16,1976, Mr. King sued for divorce. In his petition he asked that the $200.00 per month alimony award to Mrs. King be maintained “until her remarriage.” Judgment of absolute divorce was rendered and signed October 28, 1976. Therein the court maintained the alimony award, but only “until further orders of this Court.”

A year later, on December 1, 1977, Mr. King filed a motion for a rule to show cause why the alimony award of $200.00 per month should not be terminated. After hearing the evidence, and on February 24, 1978, the court terminated the alimony award on the basis that alimony was no longer necessary. The court found that Mrs. King was gainfully employed and was capable of supporting herself. However, she had not yet remarried.

Less than a month after alimony was terminated (March 22) Mrs. King filed suit for breach of contract. She alleged that Mr. King owed her $6,800.00 under the community property settlement which had been executed 34 months before Mrs. King’s suit was filed. After trial, the court dismissed Mrs. King’s suit. The court relied upon the following passage from Ward v. Ward, 339 So.2d 839 (La. 1976), to support its decision:

“Under Article 1790 of the Louisiana Civil Code, a husband and wife are incapable of contracting with each other subject to limited exceptions. See LSA-C.C. Arts. 1790,2446. The exceptions do not include a contract for the settlement of alimony rights.” 339 So.2d at 841.

Thus, the trial court held the alimony clause in the community property settlement contract to be null. In supplemental reasons for judgment the court held the entire contract to be null because it found the alimony clause was a major cause, or consideration, for the making of the contract. In addition to the alimony, Mrs. King was to receive, under the contract, $2,000.00 in cash and a living room suite. In exchange, she surrendered all her rights and interest in the house and lot at 406 Pine Cone Circle, Haughton, Bossier Parish, Louisiana, and her interest in the Star Chemical Company. The court noted that once the alimony clause is voided there is no evidence that what Mrs. King gave up is adequately compensated for by what she received, because no evidence was adduced to establish the value of what Mr. King received.

Mrs. King appealed from the trial court’s judgment. She argues that the court erred in determining (1) that the contract provision relates to payment of alimony rather than payment of a purchase price adequately supported by recited consideration, and (2) that Civil Code Article 1790 prohibits interspousal contracts which affect alimony rights.

We cannot sustain Mrs. King’s first contention. With exceptional clarity the contract provided for Mr. King to pay Mrs. King $200.00 per month “as alimony, both pendente lite and permanent.” To suggest the payment was intended as anything but alimony is to deny the very clear language of the contract. Nothing in the record supports Mrs. King’s argument that Mr. King intended to pay her $400.00 per month-$200.00 under the contract and $200.00 under order of the court. In fact, the record supports the opposite view that both parties intended that there be but one payment of $200.00 every month.

In the 33 month interval between the judgment of separation and the order of the court terminating alimony, Mr. King made only one payment per month. That payment totalled $200.00. Not until after the court terminated alimony did Mrs. King first argue that the parties intended for Mrs. King to receive $400.00 per month. Never before had she attempted to enforce this clause of the contract.

We find that the inclusion of the alimony clause in the contract indicated an intent to endorse the separation judgment signed one day earlier. As further evidence of this intent we note that Mr. King stated, in paragraph 3 of his petition for divorce:

“In the separation judgment, petitioner was ordered to pay defendant, Gloria Brooks King, the sum of TWO HUNDRED AND 00/100 ($200.00) DOLLARS per month and petitioner has no objection to continuing the payment.” (Emphasis added).

In the same petition, Mr. King prayed “that the defendant be granted the sum of TWO HUNDRED AND 00/100 ($200.00) DOLLARS per month alimony until her remarriage.” (Emphasis added). The emphasized portion of the prayer is identical to the language used in the contract. This is additional evidence that the two documents-the contract and the court order-referred to only one payment.

We agree with the trial court that the contractual provision actually referred to alimony rather than installment payments toward the fulfillment of an agreed upon purchase price. We also conclude, on the basis of the record, that the contract provision was merely an adoption of the court order to the extent that alimony was paid pursuant to the court order. However, we are left with the question of whether the parties intended for alimony to continue until Mrs. King remarried rather than to terminate upon order of the court. If such was their intent, was the provision void as found by the trial court? The answer to this question addresses itself, eventually, to Mrs. King’s second contention, that Article 1790 does not prohibit interspousal contracts which affect alimony rights.

The trial court invalidated the alimony provision of the settlement, relying on Ward v. Ward, supra, and Articles 1790 and 2446 of the Civil Code. We find that the court erred in doing so.

In Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967), the Supreme Court found that the wife’s error in waiving her right to alimony as part of the consideration for a partition agreement involving a piece of real property entered into after legal separation was only a “relative nullity.” Thus, after her incapacity had ceased (i. e. upon divorce) she was free to ratify and confirm the agreement. Nine years later, Ward held that an agreement waiving alimony and child support made after legal separation but before divorce did not fall within the exceptions outlined in La. C.C. Art. 2446 and was a nullity. Unfortunately, Ward did not indicate whether it was following the Nelson v. Walker holding that the agreement was a relative nullity based solely upon the incapacity of the parties to contract with one another during their marriage, or was an absolute nullity because of public policy considerations, thereby impliedly overruling Nelson.

This area of the law was further complicated by the more recent Supreme Court decision of Holliday v. Holliday, 358 So.2d 618 (La. 1978). There the Court held that the ante-nuptial waiver of alimony penden-te lite is an absolute nullity because such a waiver is against public policy. The Court might have overruled Nelson’s partial holding that a wife’s waiver of alimony penden-te lite is only a relative nullity. However, it did not expressly do so. Furthermore, the Court in Holliday purposely did not decide whether one can waive permanent alimony in an ante-nuptial agreement, which is closer to the issue under consideration.

In Monk v. Monk, 376 So.2d 552 (La.App. 3rd Cir. 1979), this Court decided a case very similar to the one under review. The Monks executed a post-separation, pre-di-vorce contract in which, for recited consideration, Mrs. Monk relinquished any alimony rights she may have had. After comparing and distinguishing the Nelson and Holliday holdings, we concluded that Mrs. Monk’s waiver was only a relative nullity which she later ratified. Thus, Mrs. Monk effectively waived permanent alimony in the post-separation agreement when she ratified the agreement after divorce. We found Nelson controlling, rather than Holli-day, because of the fundamental difference between alimony pendente lite wherein the parties are still married and are obliged to support one another, and alimony after divorce which has been likened to a pension by the Supreme Court (see Ward v. Ward, 339 So.2d at 842).

The case before us does not present precisely the same issue dealt with in Monk. Mrs. King did not waive her alimony rights. Yet the contract the Kings entered into purported to affect alimony rights: Not only did the parties seek to ratify the trial court’s alimony award; they sought to contractually extend it until such time as Mrs. King remarried, regardless of whether she needed it or not. Thus did Mr. King attempt to bargain away his right, under Civil Code Article 160, to have post-divorce alimony terminated when it was no longer necessary. Since such a bargain is only relatively null, under Nelson v. Walker, Mr. and Mrs. King were free to ratify their agreement after divorce. The record establishes that, pursuant to the contract, Mrs. King received the $2,000.00 cash, the living room suite, and $200.00 per month for 33 months. Mr. King received the house, lot, and all furnishings (other than the living room suite), Mrs. King’s share of Star Chemical Company, and paid her $200.00 per month for 33 months. After the divorce became final neither attempted to abrogate the contract on the basis of nullity. Instead, they both accepted the effects and obligations of the contract until Mr. King refused to pay any more alimony after the court terminated the award. But by then the contract had been ratified.

To recapitulate, we find that the parties did not intend for Mrs. King to receive $400.00 per month as alimony. The parties intended to signify their approval of the alimony judgment by including it in the community property settlement. However, they intended to affect their respective alimony rights and obligations by providing for the payment of alimony until Mrs. King’s remarriage rather than until further orders of the court. They ratified their relatively null contract by adhering to its provisions after divorce. Therefore, Mr. King owes his former wife $200.00 per month until Mrs. King’s remarriage, whenever that was or will be.

For the above reasons, the judgment of the District Court which held the community property settlement contract herein to be null and void is hereby reversed. Judgment is rendered in favor of Gloria Brooks King, plaintiff, and against Earl James King, defendant, in the amount of $200.00 per month from February 24, 1978, until Mrs. King’s remarriage. Costs are divided equally between plaintiff and defendant.

REVERSED AND RENDERED.

      , Here the court relied upon Civil Code Articles 1893, 1896, and 1897. Those Articles read:
      “Art. 1893 An obligation without a cause, or with a false or unlawful cause, can have no effect.
      Art. 1896 By the cause of the contract, in this section, is meant the consideration or motive for making it; and a contract is said to be without a cause, whenever the party was in error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to exist before the contract was made.
      Art. 1897 The contract is also considered as being without cause when the consideration for making it was something which, in the contemplation of the parties, was thereafter expected to exist or take place, and which did not take place or exist. A gift in consideration of a future marriage is void by this rule, if the marriage do not take place.”

      . In November of 1977 Mrs. King sued Mr. King “to make back due alimony” of only three months ($600.00) executory. Yet she never sued under the contract until three years later, after alimony was discontinued. This inconsistency only bolsters our belief that neither of the parties anticipated or intended for two $200.00 payments to be made each month.

      . See footnote 6, 358 So.2d at 620. For a thoughtful discussion of Holliday v. Holliday, and its possible ramifications, see Note at 39 La.L.Rev. 1161 (1979).

      . In Monk, this Court gratuitously noted that such an agreement would not even be a relative nullity since the prohibition against spouses contracting with one another during marriage had been lifted by Act No. 627 of the 1978 Regular Session of the Louisiana Legislature, which had retroactive effect under Section 9 of that Act. Act 627 of 1978 was repealed in its entirety by Act No. 709 of the 1979 Regular Session of the Louisiana Legislature. The retroactivity provision was not re-enacted. Thus, the dicta in Monk may no longer be accurate.


text:
    AMERICAN EMPLOYERS INSURANCE COMPANY, Plaintiff-Appellee-Appellant, v. HONEYCUTT FURNITURE COMPANY et al., Defendants-Appellants-Appellees.
    No. 7731.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      Brame, Bergstedt & Brame, Joseph A. Brame, Lake Charles, for plaintiff-appel-lee-appellant.
    Dennis R. Sumpter, Sulphur, Stockwell, Sievert, Viccellio, Clements & Shaddock, by Fred H. Sievert, Jr., Lake Charles, for defendants-appellants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

Plaintiff, as subrogee of its insured, seeks damages caused by fire to a building used as a furniture store. Originally named as defendants were the lessee, several manufacturers of flourescent light fixtures and the City of Sulphur, Louisiana (the City). Prior to trial, all defendants except the City were dismissed. The issue at trial was whether the fire was caused in part by the negligence of the City through employees of the Sulphur Fire Department. From a judgment dismissing its demands against the City, plaintiff appeals.

The substantial issue on appeal is whether Captain E. J. Rogers, of the Sulphur Fire Department, was negligent in breaking the front door of the building and thereby “venting” the fire without having a sufficient water hose ready.

On June 23, 1975 at approximately 6:00 P.M., the fire occurred in Sulphur in a building owned by Keith M. Lyons and leased to Honeycutt Furniture Company, Inc. The building was approximately 100 feet wide and 50 feet deep with 9-foot ceilings. Mr. Lyons had the building insured against fire loss with plaintiff, American Employers Insurance Company. Plaintiff paid Lyons $65,861 and took a subrogation on which it now sues.

The fire was first observed by two persons on the street. Mr. Freddie Leger happened to be driving by and noticed something peculiar through the large front window. He pulled up to the building, got out of the car and put his face next to the glass. He saw flames which appeared to be coming from behind a couch located some 30 to 40 feet from the window. Going quickly to a nearby phone, he reported the fire to the police and then returned to the store. While waiting for the fire department to arrive, Mr. Leger continued to observe the fire. At first, the fire seemed larger than before. Then the flames appeared to be subsiding and were about two feet high when the firemen arrived, some five minutes later.

Mr. Harry J. Henry was also driving by the store and saw the fire from his car. Just as he pulled off the road, he saw a fire truck arrive at the scene. Both Leger and Henry watched the activities of the two firemen on the truck and gave similar descriptions of the events which followed.

The fire truck was backed up to the store front and two firemen got out immediately. The driver, fireman Sam Miller, got out on one side of the truck and the passenger, Captain E. J. Rogers, got out of the other. Captain Rogers went up to the store, looked in the window, went back to the truck, got an ax and broke the glass out in the front door of the building. Rogers then turned and went toward fireman. Miller. Neither Leger nor Henry observed fireman Miller come forward with a hose. At Rogers’ direction, however, Miller had gotten a hose ready for use. Before they could reach the building with the hose, the fire increased dramatically in size. One of the front windows popped out and shattered. Then, the other front window popped out. Flames engulfed the building.

The firemen then abandoned the truck hose and attempted to connect another larger hose to a hydrant located some 30 feet away. This hose was too short to reach the hydrant and the firemen had to move the truck twice. Within approximately 20 minutes, the fire was out of control and the building a total loss. Another fire truck with two more firemen arrived too late to assist in putting the fire out.

The truck being used by Miller and Rogers was a pumper truck with a 500 gallon water supply. The first hose they attempted to use was a one-inch “booster line”, which was already connected to the truck water supply. This hose can be charged with water from the truck by activating two levers inside the truck cab and can be ready for use as soon as the fireman gets out and pulls the hose off the reels. The-truck was also equipped with other hoses, including segments of the 2V2 inch hose the men tried to connect to the hydrant.

At the time of the fire, the Sulphur Fire Department, hereafter “SFD”, had 17 fire fighters available, including 11 volunteers, and five truck units in operation. On June 25, 1975, there were four regular men on duty, all of whom responded to the calls for this fire.

Plaintiff called two expert witnesses at trial. Mr. Elbert J. Welborn was accepted as an expert in the causes and origins of fires. At the time of trial, Mr. Welborn was District Supervisor for the Louisiana Office of Fire Protection, with some 20 years experience in arson investigation. He had taught classes in arson investigation for local fire departments, Louisiana State University and various insurance companies. Although Mr. Welborn had been present at many fires, he had no personal experience in firefighting. City officials asked Mr. Welborn to investigate and establish the cause of the fire as well as to evaluate the firefighting techniques employed.

In digging through the remnants of the fire, Mr. Welborn found a floureseent light fixture that had the metal wires bonded to the side of the fixture. He also found couches and tables in the area where the fire started had heavier burn patterns on the upper portions of the furniture rather than near the floor. He concluded the fire was started by asphalt dripping from the light fixture onto the furniture.

Based on tlie observations of witnesses that the fire flames had begun to decrease in size, Mr. Welborn concluded the initial fire was subsiding because of a diminishing supply of oxygen in the closed building. He believed the fire was renewed when Captain Rogers broke open the front door. He explained this act had the effect of “venting” the fire by introducing a fresh supply of oxygen. It was his opinion the fire would have gone out had this new source of oxygen not been introduced. He attributed the ultimate destruction of the building to the delay between “venting” the building and the application of water to the fire. In his opinion, the fire could have been put out if the proper hose had been ready at the time the building was vented.

In teaching arson classes, Mr. Welborn gave instruction about venting fires. He stated it was a paramount rule in fire instruction that one must be prepared to fight a fire before a building is vented. From his investigation and personal conversation with Captain Rogers, Welborn concluded Rogers was not adequately prepared to fight the fire at the time he broke open the door.

Plaintiff’s second expert, Mr. Algie Breaux, was accepted as an expert in firefighting techniques. Mr. Breaux was chief training officer for the Lake Charles Fire Department, where he had been employed since 1957. He was also employed by the State of Louisiana to teach and train local fire departments in the Lake Charles area. Prior to the Honeycutt fire, Mr. Breaux had given a class on pumper operations to the SFD. The class included instruction on ventilation of fires. It was established that Captain Rogers attended this course.

Mr. Breaux taught his classes in accordance with guidelines established in fire service manuals referred to as the ISFTA Books or “Red Books” or “the fireman’s Bible”. These books contain the instruction that a fireman should not open a burning building until there is adequate manpower and charged lines available and personnel are ready to attack the burning building.

In explaining the instructions he gave, Mr. Breaux described a procedure called a “size up.” This is an initial evaluation of a fire made by every fireman when he first arrives on the scene. Mr. Breaux stated a “size up” is a matter of judgment and discretion based on the experience and training of the individual fireman.

The object of the “size up” is to determine how much water is needed for a particular fire. Mr. Breaux stated the primary factor to consider in a size up should be the size of the building. A formulae based on the cubic measure of a structure divided by 1,000 is employed to estimate the minimum gallons per min. (GPM) needed. In the case of the Honeycutt building, Mr. Breaux estimated a minimum of 900 GPM was needed. For this reason alone, he stated he would not have attempted to attack the fire in question with the booster hose from the pumper truck.

Mr. Breaux also stated he would not have used the booster hose because of the report of diminished flaming. This would have indicated to him the fire was smouldering from lack of oxygen. Any entry into the building would naturally cause venting and increase the likelihood of a “back draft”, an explosion of collected gases released by the introduction of oxygen. The occurrence of a back draft would not only increase the size of the fire beyond the capacity of the booster hose, but would present a serious danger to the firemen. Mr. Breaux was unable to conclude a back draft had actually occurred in this case.

In a “size up” based on his own experience, Mr. Breaux would first have called for more manpower. In his opinion, the two men on the scene could not have operated the equipment necessary to provide the required GPM. Due to the pressure in a water line, one man alone could not have handled a large hose connected to the nearby hydrant. If both men handled the hose, no one was available to regulate the pumping equipment. Mr. Breaux was further doubtful the two men on the second fire truck would have made any difference in the outcome of this fire. He estimated a total of four hoses, or eight men on the hoses, alone, would have been necessary to put the fire out.

Defendant also called two expert witnesses, both of whom were employed by the SFD. Captains Lawrence E. Nix and Cecil D. Miller, were accepted as experts in firefighting techniques. Both agreed with Mr. Breaux that building size -was the most important factor in a “size up” and that it would be improper to vent a building without charged hoses ready for use.

Captain Nix had been with the SFD for eight years and testified to procedures in effect at the time of the Honeycutt fire. While he agreed a fireman should be ready with the maximum amount of water necessary to fight a fire for an entire building, he stated it was not always feasible to provide the required amount of water with the manpower available. According to Captain Nix, it was proper procedure in the SFD to rely on the pumper truck and booster line for a fire the size initially observed in the Honeycutt store. In retrospect, he believed at least six men were actually needed for this fire. It was his understanding the four men on duty at the time did respond. Although additional volunteers could have been called, Captain Nix testified none were called.

Captain Miller was serving as chief of the SFD at the time of trial. His previous experience in firefighting was extensive and included service as the chief of the fire department in Franklin, Louisiana for five years. He had also served as Deputy State Fire Marshal. In his capacity as an independent professional fire investigator, Captain Miller had investigated the Honeycutt fire some two weeks after it occurred and made an evaluation of the firefighting techniques employed. His investigation consisted of examining the fire scene and the equipment available to the SFD. He went over the route taken by the responding firemen and visited each fire station.

Captain Miller gave the opinion the SFD was severely undermanned at the time of the fire. He also considered the employees to be relatively inexperienced. In his estimation, the fire department lacked intermediate capability, i. e., there was no capability above the booster line for a fast initial attack on a fire.

In discussing factors relevant to a proper size up, Captain Miller placed great emphasis on time and available resources. He considered the first few minutes of a fire to be the most critical time in firefighting. When asked what he would do if he were one of the two men faced with the fire in question, he stated he would choose the booster line for a fast initial attack. He stated it would have required a minimum of three people to make an attack with the 2V2 -inch hose connected to the hydrant.

Defendant also called Captain Emile J. Rogers as a witness. He testified he made his size up after looking in the window of the building. At that time, he believed the fire was small enough to be put out with a chemical extinguisher or the booster line. He elected to use the booster line. Fireman Miller testified he had the booster line ready for use when Captain Rogers broke open the front door. Rogers corroborated this testimony.

Chief Rogers was dismissed from the SFD after the Civil Service Board found him incompetent in the performance of his duty at the Honeycutt fire. The dismissal was appealed and affirmed by this court in Rogers v. Municipal Fire and Police Civil Service Board, 357 So.2d 12 (3rd Cir. 1978).

Plaintiff contends the City is barred from litigating the issue of Rogers’ negligence in this case by our affirmation in Rogers, supra, under the doctrine of “the law of the case.” We disagree.

Our Supreme Court stated in Day v. Cambell-Grosjean Roofing and Sheet Metal Corporation, 260 La. 325, 256 So.2d 105 (1971), rehearing denied:

“With regard to an appellate court, the ‘law of the case’ refers to a policy by which the court will not, on a subsequent appeal, reconsider prior rulings in the' same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court.”

Neither the plaintiff nor the defendant in this case were parties in the suit between Rogers and the Civil Service Board. Clearly, the doctrine of “the law of the case” does not apply here.

Plaintiff also contends the City is barred from contesting Rogers’ negligence on the basis of certain evidence introduced at trial. Plaintiff produced a letter written by the Mayor of Sulphur containing a statement to the effect that Rogers’ performance of duty at the Honeycutt fire was negligent. This letter was prepared for submission against Rogers at the Civil Service proceedings. Mayor Adias Saunier identified the letter at trial but testified he actually had no personal knowledge of the facts stated in the letter. Nevertheless, defendant’s objection to introduction of the letter on grounds of hearsay was overruled, subject to the objection. The letter is clearly hearsay and cannot be considered.

Plaintiff argues on appeal that even if the letter is hearsay, the statement in the letter is an admission against interest by an agent of the City and defendant should be bound by the admission under LSA-C.C. Article 2291, which provides:

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who made it.
“It cannot be divided against him.
“It cannot be revoked, unless it be proved to have been made through an error of fact.
“It cannot be revoked on a pretense of an error in law.”

We find the concept of judicial confession is not applicable to this case. A judicial admission or confession, is a party’s express acknowledgement of the correctness of the fact or the act charged against him by his adversary. Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (1967). Civil Code Article 2291 has no application to a party’s statement of a conclusion of law. State v. Ward, 314 So.2d 383 (3rd Cir. 1975) rehearing denied, writ refused. We find Mayor Saunier’s statement that Rogers was negligent in the performance of his duty was nothing more than” an opinion based on facts admittedly not within his own knowledge. Under these circumstances, his statement has no evidentiary value and has no effect on the City’s position in this case. See also Sanders v. General American Life Insurance Company, 364 So.2d 1373 (3rd Cir. 1978).

The next issue concerns the correctness of the trial judge’s finding Captain Rogers was not negligent in the performance of his duty at the Honeycutt fire. Plaintiff contends this finding is erroneous because the trial judge failed to evaluate Rogers’ performance of duty in light of the appropriate standard of conduct. In support of this contention, plaintiff makes a twofold argument. First, plaintiff argues the trial judge erred as a matter of law in determining the standard of care required of firemen in the performance of their duty. Secondly, plaintiff argues the trial judge erred in evaluating the expert testimony submitted as proof of the appropriate standard of care. We will consider these arguments separately.

In his written reasons for judgment, the trial court stated:

“If the employer is to be held negligent for the negligent acts of its employee depends upon the totality of the facts and circumstances in each case. This court must evaluate the fireman’s actions against those of ordinary, prudent, and reasonable men placed in the same position as the foremen (sic) and with the same knowledge as the firemen.”

From this statement in the written reasons, plaintiff argues the trial judge applied the wrong standard of care. As we understand it, plaintiff contends the trial judge required Captain Rogers to use only the skill and knowledge which he personally possessed, rather than the degree of skill and knowledge exercised by the ordinary firemen in the same general area. From a reading of the trial judge’s written reasons as a whole, we do not agree that he used the wrong standard of care. In a further portion of his written reasons, the trial judge stated:

“After hearing the testimony of Mr. E. J. Rogers and the testimony of the experts testifying, the court concludes that his actions could not be compared under the circumstances to the probable actions of an expert such as Mr. Algie Breaux. The firefighting techniques employed by E. J. Rogers may very well have been negligent action if employed by one as experienced as Mr. Breaux.
“Applying the above rules and considering the testimony of the expert and lay witnesses in this case the court is not convinced that the plaintiff has carried its burden of proof that the action of the employee, Mr. E. J. Rogers was negligent in this case; therefore, the City of Sul-phur can not be held liable for the acts of its employee.”

We conclude the trial judge did use the correct standard of care. He required that Captain Rogers use the same degree of skill and knowledge as would have been exercised by other ordinary, reasonable firemen in the same community. However, he did not require that Captain Rogers exercise the degree of skill and knowledge which would have been used by a highly qualified expert, such as Algie Breaux.

We have found no cases, nor have any been cited by the parties, dealing specifically with the standard of care for firemen. However, we recognize firefighting as an occupation requiring specialized training. Therefore, we find the appropriate standard of care is the same standard applied in the cases of policemen, engineers, architects, deputy sheriffs, attorneys and others engaged in professions requiring the exercise of technical skill. The test is whether he performed his service in accordance with the skill usually exercised by others in his profession in the same general area. See Calandro Development, Inc. v. R. M. Butler Contractor, Inc., 249 So.2d 254 (1st Cir. 1971) and cases cited therein.

Finally, plaintiff contends the trial judge erred in not finding Rogers negligent. Plaintiff primarily relies on testimony of its experts that basic firefighting techniques include (1) having charged hoses ready for use prior to venting a building, (2) estimating the gallons per minute needed on the basis of building size and (3) observing heat and smoke conditions that would indicate the likelihood of a “flash over” or “back draft.”

We have carefully studied the entire record. While we recognize the experts testified the ordinary fireman should have knowledge of the above cited techniques, we do not find the expert testimony established the ordinary fireman would have acted upon knowledge of these techniques alone. Plaintiff’s expert, Mr. Breaux, was the only firefighting expert who stated positively he would not have pursued the same course of conduct as Captain Rogers. His testimony reveals he regarded any deviation from his own personal standards as an “error”, but he did not testify to Rogers’ negligence vel non predicated upon local firefighting standards. Breaux clearly stated a “size up” is a matter of judgment based on experience as well as training in firefighting techniques. Captain Miller, the next most experienced firefighter, stated he would probably have acted the same as Captain Rogers. His reasoning was based on his opinion that a speedy attack was crucial to effective firefighting. Captain Miller’s opinion was also influenced by the limited manpower available to Rogers and the SFD as a whole at the time of the fire. Captain Nix stated Captain Rogers acted in accordance with procedures acceptable to the SFD at the time. The only expert openly critical of Rogers’ performance was Mr. Welborn, who had no personal experience in firefighting.

In analyzing the expert testimony, we find that Captain Miller and Captain Nix actually testified to prevailing local standards among firemen in the Sulphur area. In their opinion, Rogers did not act below those standards. On this point, plaintiff has argued that the testimony of experts Breaux and Welborn are a more reliable indication of standard conduct for firemen than testimony of Captains Miller and Nix. Plaintiff charges Captains Miller and Nix gave a favorable evaluation of Rogers’ performance due to their present employment with the SFD. Plaintiff also points out evidence of inconsistencies between the testimony of Miller and Nix at trial and previous statements made at the Civil Service proceedings.

Able counsel for plaintiff makes respectable arguments. This is a close case on the facts. In the final analysis, we are persuaded by the rule of appellate review that we should not reverse the trial judge’s finding of fact unless he is manifestly erroneous or clearly wrong. We find no such error here.

For the reasons assigned, the judgment appealed is affirmed at plaintiff’s costs.

AFFIRMED.

SWIFT, J., dissents.


author: FORET, Judge.

text:
    LeGLUE BUICK, INC., Plaintiff-Appellee, v. Lorenza SMITH, Jr., et al., Defendants-Appellants.
    No. 7754.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dee. 1, 1980.
    Arthur Charles Lyons, Alexandria, for plaintiff-appellant.

      Trimble, Randow, Smith & Wilson, Alonzo P. Wilson, Alexandria, for defendants-appellants.
    Adcock, Dupree & Shows, Michael V. Clegg, Baton Rouge, for plaintiff-appellee.
    Gist, Methvin, Hughes & Munsterman H. B. Gist, III, Alexandria, for defendants-ap-pellees.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

This action was originally instituted by LeGlue Buick, Inc. to recover a sum of money due under a contract of lease of an automobile. Lorenza Smith, Jr. and his wife, Elaine Lyons Smith, were named as defendants in this suit. Defendants filed a third party demand against Bernadette Franks and her insurer, Safeco Insurance Company. Third party defendant, Bernadette Franks, failed to answer timely. Third party plaintiffs then attempted to confirm a preliminary default which had been entered against Bernadette Franks. The trial court dismissed third party plaintiffs’ demand, with prejudice, finding that they had not established even a prima facie case of liability against Bernadette Franks.

Third party plaintiffs then filed a petition for nullity of judgment. Both third party defendants filed exceptions to the action for nullity. The trial court sustained these exceptions and dismissed third party plaintiffs’ petition for nullity.

The sole issue for our determination is whether the trial court erred in ruling that appellants’ action for nullity was an improper collateral attack upon the court’s judgment.

The trial court rendered a judgment in this suit on March 29, 1979, in which third party plaintiffs’ demand against Bernadette Franks was dismissed, with prejudice. This cause was before the court for confirmation of default. The trial judge stated in his written reasons for judgment that third party plaintiffs had failed to adduce sufficient evidence to prove the allegations of their third party demand.

Third party plaintiffs filed a petition for nullity of judgment in these same proceedings on August 13, 1979. They alleged in their petition that the judgment of March 29, 1979, was null and void. Third party defendants filed exceptions to this action for nullity of judgment. The first exception plead was the dilatory exception of improper cumulation of actions. LSA-C. C.P. Article 926(7). Third party defendants argued that an action for nullity of judgment must be brought in separate proceedings. Third party defendants also urged a second exception in which they argued that the petition failed to comply with the requirements of LSA-C.C.P. Article 891 in that the petition failed to state the name, surname and domicile of all parties. These exceptions were argued before the trial court on September 17, 1979, and the trial court sustained third party defendants’ exception of improper cumulation of actions. The trial judge also refused to issue a rule, directed to Bernadette Franks, to show cause why the March 29, 1979, judgment should not be annulled.

Appellants argue that the trial court erred in sustaining the third party defendants’ dilatory exception of improper cumulation of actions. Appellants allege that they met the requirements of LSA-C. C.P. Article 462, and should have been allowed to cumulate their action for nullity of judgment with their original action in re-convention against LeGlue Buick and their demand against third party defendants.

A distinction must be made at the outset for a proper understanding of the issue involved here. Judgments can be attacked on the grounds that they are absolutely null under the provisions of LSA-C. C.P. Article 2002 or relatively null as provided by LSA-C.C.P. Article 2004. As regards this case, the most important aspect of this distinction is the different means by which the nullity of a judgment can be asserted.

A judgment is an absolute nullity when there exists a vice of form. LSA-C. C.P. Article 2002, supra and the Official Comment to that article. A person with interest may show such nullity in collateral proceedings at any time and before any court, for absolutely null judgments are not subject to the venue and the delay requirements of the action of nullity. Nethken v. Nethken, 307 So.2d 563 (La.1975); Tannehill v. Tannehill, 226 So.2d 185 (La.App. 3 Cir. 1969), cert. denied 228 So.2d 485 (La.1969); Garnett v. Ancar, 203 So.2d 812 (La.App. 4 Cir. 1967); Franz v. Franz, 315 So.2d 79 (La.App. 4 Cir. 1975); American Bank & Trust Company v. Marbane Investments, Inc., 337 So.2d 1209 (La.App. 3 Cir. 1976). A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Nethken v. Nethken, supra.

On the other hand, “a final judgment obtained by fraud or ill practices may be annulled ... ”. LSA-C.C.P. Article 2004. Such a judgment is not an absolute nullity; the nullity must be properly decreed within the time prescribed. The established jurisprudence of this State requires that such grounds be asserted in a direct action and not raised collaterally. Nethken v. Nethken, supra; Pontchartrain Park Homes, Inc. v. Sewerage and Water Board of New Orleans, 168 So.2d 595 (La.1964). What is meant by a “direct action” is that the party praying for the nullity of a judgment must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits. LSA-C.C.P. Article 1201, 2001-2006; Nethken v. Nethken, supra; Garnett v. Ancar, supra.

We find that the appellants’ attack on the trial court judgment in this case must be considered a collateral attack. The petition for nullity was filed in the record of an ongoing proceeding, and sought to be made a part of these proceedings. The only judgments which may be collaterally attacked are those which are absolutely null because of a vice of form as provided in LSA-C.C.P. Article 2002.

LSA-C.C.P. Articles 2001-2006 provide the grounds for an action of nullity. These are the exclusive grounds for nullity of judgment. Southern Wheel & Rim Service, Inc. v. Champion Machine Works, Inc., 283 So.2d 328 (La.App. 4 Cir. 1973); C. I. T. Leasing Corporation v. Bar-Tender of Louisiana, Inc., 258 So.2d 228 (La.App. 4 Cir. 1972). Therefore, the facts alleged in the petition must show entitlement to annulment based solely on these grounds. An action for nullity cannot be substituted for a timely appeal. C. I. T. Leasing Corporation v. Bar-Tender of Louisiana, Inc., supra; Levy v. Stelly, 254 So.2d 665 (La.App. 4 Cir. 1971), cert. denied, 256 So.2d 289 (La.1972); Succession of Quaglino, 248 So.2d 380 (La.App. 4 Cir. 1971), writ refused, 252 So.2d 455 (La.1971).

In the present action, appellants do not contend that the judgment, which they seek to attack, was rendered against an incompetent or that the courts did not have jurisdiction over the subject matter. Appellants contend that the judgment dismissing their third party demand is an invalid judgment by default. However, an examination of the judgment dismissing appellants’ third party demand reveals that it is not a judgment by default. Third party plaintiffs’ demands against Bernadette Franks were dismissed with prejudice following their failure to present sufficient proof for confirmation of default against third party defendant, Bernadette Franks. Appellants, having failed to prove that the judgment complained of is an absolute nullity, have no right to collaterally attack that judgment in these proceedings.

For the above and foregoing reasons, the ruling of the trial court in refusing to entertain the action for nullity is affirmed.

Costs of this appeal are assessed against appellants.

AFFIRMED.

      . This third party demand was based upon the allegation that Bernadette Franks had been at fault in causing an accident in which the original defendants (third party plaintiffs) were involved, which necessitated the repair of their car and the rental of a car from LeGlue Buick. Safeco Insurance Company, automobile liability insurer of Bernadette Franks, filed an answer through its attorney, but did not answer on behalf of Bernadette Franks.

      . “Art. 2002. Annulment for vices of form; time for action
      A final judgment shall be annulled if it is rendered:
      (1) Against an incompetent person not represented as required by law;
      (2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
      (3) By a court which does not have jurisdiction over the subject matter of the suit.
      Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

      . “Art. 2004. Annulment for vices of substance; peremption of action
      A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


author: LABORDE, Judge.

text:
    Wilburn WINEGEART, Plaintiff-Appellant, v. TEXAS INDUSTRIES, INC., Defendant-Appellee.
    No. 7763.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.
    Writ Refused Jan. 16, 1981.
    Michael M. Wahlder, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Alleging fraud, Wilburn Winegeart, Appellant, seeks to rescind a sale of land he made to Texas Industries, Inc., Appellee. The trial court granted judgment in favor of Texas Industries, Inc. because Winegeart did not prove fraud. We affirm. We find no manifest error in the finding of the trial court.

In May 1976, appellee, a corporation engaged in the production of gravel, contacted Winegeart expressing an interest in conducting gravel tests on his property-an 18.4 acre tract. After several meetings, Wine-geart granted appellee an option to purchase the 18.4 acre tract. The option granted appellee the right to conduct gravel tests and provided for a purchase price of $1,200 per acre. If the option was exercised, the purchase price was to be paid over a five-year period, bearing interest at 6% per an-num. After conducting several tests, defendant exercised the option in December, 1976.

On August 24,1979, Winegeart instituted the instant action to have the sale rescinded on the grounds of fraud. He alleged in his petition that during the negotiations for the option agreement appellee’s agents made fraudulent misrepresentations as to the value of the land.

Civil Code Art. 1847 provides, in pertinent part:

“Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other....”

In Altex Ready-Mixed Concrete Corporation v. Employers Commercial Union Insurance Company, 308 So.2d 889 (La.App. 1st Cir. 1975), writ refused, 312 So.2d 872 (La.1975), the court stated:

“Fraud exists if it can be shown that material misrepresentations have been made by one party designed to deceive another, and to obtain some unjust advantage or to cause loss or inconvenience to the other.”

In this action, Winegeart contends that the trial judge erred in failing to rescind the sale on grounds of fraud. He alleges that, prior to entering the option agreement, appellee knew of the existence of valuable deposits of gravel on his land but withheld the information from him.

The record reveals that appellee was not allowed to conduct any gravel tests on Win-egeart’s property until after entering the option agreement. Although gravel was being produced on neighboring tracts, expert testimony established that the extent of gravel deposits on one tract can not be predicted on the basis of deposits in a neighboring tract. Until tests were made, appellee had no special knowledge as to the value of gravel deposits on the land.

The option agreement entered into by the parties established a purchase price of $1,200 per acre. Winegeart presented no evidence that this was not a fair price for the land.

The trial judge, in his written reasons for judgment, found that appellee made no misrepresentation to Winegeart as to the value of the land. An examination of the record reveals no manifest error in this finding. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978).

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Edwin LE BOUEF, Jr., Plaintiff and Appellee, v. Julie Ann FONTENOT, Defendant and Appellant.
    No. 7774.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearing Denied Dec. 1, 1980.

      Benjamin Burns, Lafayette, for defendant and appellant.
    Wade A. Mouton, Kaplan, for plaintiff and appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

This is a suit to change child custody from the mother to the father. The plaintiff, Edwin Le Bouef, Jr., is the father of the nine year old child, Brian D. Le Bouef. Defendant is Julie Ann Fontenot, mother of the child. The trial judge left custody with the mother, but he ordered that the child remain within the jurisdiction of the court until further ordered. The defendant mother appeals from that portion of the judgment restricting the child’s place of residence.

Edwin Le Bouef and Julie Ann Fontenot were married on March 9, 1970 and resided in Kaplan, Louisiana. After only two weeks, they separated and never reconciled. Brian was born in August, 1970. Julie lived in Kaplan with her family until Brian was about a year and a half old. She then moved to the Lafayette area.

In May of 1975, Edwin obtained a final divorce from Julie, and in those proceedings Julie was granted custody of Brian. Immediately thereafter, Julie married Charles Randy Judice. She, Brian and Charles Ju-dice lived together in Lafayette from 1975 to 1977. Brian began the 1977 school year in Breaux Bridge, but, in October, Julie left Charles Judice and she and Brian returned to Kaplan, where they lived with her stepmother. Julie worked at the Kaplan Hospital, and Brian finished the school year in Kaplan. During that year, Edwin assisted in supporting Brian.

Edwin lived in Kaplan and worked offshore. Residing with him was Judy Lee Price, whom he referred to at trial as his wife. Although they have never married, Edwin introduced Judy as his wife in the community, and Judy wore a wedding band. Julie testified at trial she knew Edwin and Judy were not married but assumed they planned to marry.

Brian began the 1978 school year in a school referred to as the “Judice School.” In November, 1978, Julie moved back to the Lafayette area to take a better paying job caring for an invalid friend. Julie lived with her aunt in Breaux Bridge, but it is not clear from the record if Brian lived there with her.

Sometime in December of 1978, Julie, who was a Catholic, decided to become a missionary in the Pentecostal Church and to move to California. She was concerned about Brian, who was doing poorly in the Judice School. She discussed with Edwin the idea of leaving Brian with him to finish the school year in Kaplan.

On December 21,1978, Julie took Brian to the home of Edwin’s aunt and had a meeting with Edwin and Judy. According to the testimony of both Julie and Judy Lee Price, Julie proposed that Brian remain in Kaplan to finish the school year. They all agreed, and in January of 1979, Julie moved to California.

Upon arriving in San Diego, California, Julie rented a room in the home of the Raymond family, who were members of Julie’s church, the First United Pentecostal Church. Her first job in California was in a donut shop. After about four months, she began working in the Norwood Convalescent Hospital. After four months there, she began working for the State of California in a nursing program for the aged called “REMEDY.”

At first, Julie regularly telephoned Brian. Subsequently, Edwin refused to allow Brian to receive more calls from his mother, because he believed her admonitions to the boy to read the Bible caused him to neglect his school work. In May of 1979, Julie wrote Edwin of her intent to return for Brian. On May 29, 1979, Edwin filed this rule. Julie was served in California. She returned to Kaplan for the court proceedings, submitting herself to the jurisdiction of the court. The trial was on October 22, 1979.

Plaintiff did not allege that defendant is unfit for custody. He alleged and testified that in December of 1978 defendant delivered the child to him and advised him that she could no longer properly care for the child and asked plaintiff to assume custody. Also, plaintiff testified the child wanted to stay with him, was doing well in school, had friends and family in the area and was well adjusted to his present environment. He thought it would be harmful to move the child again, especially if the child was moved to California away from all of his friends and family to a strange new environment.

Defendant testified that if she received custody she planned to move to California where she would rent a room for a short time from the Raymond family until she could “get a place of my own” near a school for Brian.

Near the conclusion of the trial, we find the following testimony which is pertinent to the issue on appeal:

“BY THE COURT:
“I have just a couple of questions.
“Originally you stated that you went to California because you couldn’t stand to be so close to your son and not have him with you, is that correct?
“Correct.
“BY THE COURT:
“Also you made a second statement, however, to the effect that you went to California because you were seeking, I think the will of God?
“A. Yes.
“BY THE COURT:
“Suppose the Court would continue the custody with you, but say that you could not remove the child from Louisiana, would you return to Louisiana to live with the child?
“A. At this point?
“BY THE COURT:
“Yes.
“A. I would do anything to have him with me; I’ve been too long without him.
“BY THE COURT:
“Okay. I have no further questions.”

After the judgment in the present case was rendered and signed on November 28, 1979, the defendant filed in the record certain affidavits as to her present circumstances in California and her desire to remain there, despite her statement to the trial judge that she would be willing to remain in Louisiana. These affidavits dated in December of 1979, were not considered by the trial judge, are not properly part of the record and cannot be considered by us on appeal.

Defendant argues on appeal that the portion of the judgment, restricting the child’s residence to the jurisdiction of the Fifteenth Judicial District Court until further orders of the court, is an abuse of the trial judge’s discretion under LSA-C.C. Article 157. That article provides that in case of divorce the trial judge shall award custody to the mother or the father “in accordance with the best interest of the child.” Defendant also argues at some length that such a restriction on the movements of the mother and the child is an infringement upon their constitutional rights of movement from one state to another.

The rule stated in Civil Code Article 157 and established in our jurisprudence, Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), is that in custody cases the paramount consideration is always the best interest of the child. Although restrictions on custody and court supervision of custody should not be employed except in unusual circumstances, the court may order such if the circumstances require them. Snell v. Snell, 361 So.2d 936 (La.App.2d Cir. 1978); Morris v. Morris, 350 So.2d 971 (La.App.2d Cir. 1977); Edison v. Edison, 236 So.2d 528 (La.App.2d Cir. 1970); Lloyd v. Lloyd, 313 So.2d 854 (La.App.2d Cir. 1975); Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir. 1963); Pattison v. Pattison, 207 So.2d 397 (La.App. 4th Cir. 1968); Pace v. Pace, 372 So. 4th 775 (La.App. 4th Cir. 1979).

The trial judge did not give reasons for his judgment. However, from a reading of the transcript it is apparent he was deeply concerned as to how the mother could care for the child in California. The mother’s history is unstable. She lived with her first husband, the plaintiff in these proceedings, for only two weeks and then left him to return to her family in Kaplan. She lived with her second husband for only about one and one-half years and then moved back to Kaplan. In December of 1978, when she decided to move to California as a missionary for the Pentecostal Church, she left her eight year old child with the plaintiff, where he remained for about nine months until the trial of this case. In California, plaintiff did not live a stable life during this nine months. She first worked in a donut shop and lived with the Raymond family, a home occupied by four children and two adults. She later worked in a convalescent hospital. At the time of trial, she had been working in a nursing program for the aged for about one month. She testified that if she received custody she planned to return to California to this job, rent a room from the Raymond family for a short time and then secure a place of her own. On her meager wage of $2.90 per hour, $272 per month, this would be very difficult.

It is obvious the trial judge doubted that the mother could carry out her plans in California, although well intentioned. He undoubtedly considered it would be much better, at least for the present, if the mother remains in the jurisdiction of the district court where her family and the plaintiff and his family live and can be of assistance in caring for the child and furnishing a stable environment for both the mother and the child.

In the final analysis, our decision rests on our extreme reluctance to second guess the trial judge in a child custody case as close as this. He had to make a difficult decision. The father is living in concubinage in the child’s presence. The judge had doubts about the mother’s ability to furnish a stable environment for the child without further restriction or supervision by the court. We rely strongly on the rule that in custody cases the trial court’s decision is given great weight and should not be overturned unless there is a clear abuse of discretion, Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). We find no clear abuse of discretion in this case.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.