text:
    SHELL OIL COMPANY and Pennzoil Producing Company v. WILLIAMS, INC., et al.
    No. 12655.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      C. Murphy Moss, Jr. and Loretto M. Babst, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for plaintiffs-appel-lees.
    Campbell C. Hutchinson and Anthony M. DiLeo, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendants-appellants.
    Before SCHOTT, AUGUSTINE and KLEES, JJ.
   SCHOTT, Judge.

Plaintiffs, Shell Oil Company and Pennzoil Producing Company, as mineral lessees, brought this action for declaratory judgment against their lessors. Defendants are Williams, Inc., a corporation, and various individual members of the Williams family. They reconvened for a cancellation of the leases and an accounting by plaintiffs for an alleged deficiency in royalty payments. The issue is over the application of the royalty payments clauses in two leases executed in 1934 and 1952, in circumstances where the leases provide for the payments to be based on the market value or price of the gas produced from wells and where the gas has been committed irrevocably to an interstate pipeline. More specifically, the question is whether the royalty payments are controlled by the federally regulated price for which the lessees have sold the gas or whether the royalty payments should be based on the value of the gas sold in the unregulated intrastate market. From a judgment in favor of plaintiffs defendants have appealed.

In 1934 Shell took a mineral lease from defendants on lands in Terrebonne Parish, Louisiana, known as the Gibson Field. In 1939 a producing gas well was drilled but shut in due to the absence of a pipeline which would make the gas marketable. In 1941 Shell reached an agreement with Pennzoil’s predecessor, Union, and United Gas Pipeline Company, under which Shell’s mineral lease would be subleased by it to Union, Union would drill two gas wells on the leased property, United would connect the wells to its interstate pipeline, and the gas would be sold by Union to United. As required by the lease between Shell and defendants, the latter’s consent was necessary in order for Shell to sublease to Union and such consent was given by defendants. As discussed hereafter, an important issue in the case is the significance or effect of defendants having consented to the sublease at this time. In 1944 Shell and another gas producer entered into an agreement with United to sell all of the gas produced on the lands in the Gibson Field.

A tract of 20 acres had been released from the original 1934 lease. In 1952 Williams, Inc. leased this 20 acres to various individual members of the Williams family who subsequently assigned the lease to Shell. In 1955 the original Williams-Williams lease was amended by agreement with Shell so that the royalty fraction in the original lease was increased from Vs to Vi. In the meantime, on June 7, 1954, the Supreme Court of the United States decided the case of Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954) and there held that the Federal Power Commission had the power to regulate the price charged at the well by gas producers to interstate pipeline companies. Thus, when the amendment of the Williams-Williams lease was made in January, 1955, the parties were charged with the knowledge of the Phillips case, and an important issue emerges as to defendants assuming responsibility for the drastic consequences which would follow from the Phillips decision.

As a result of the Phillips decision the F.P.C. required gas producers like Shell and Pennzoil to obtain certificates of convenience and necessity. Once issued, a certificate could never be revoked as a practical matter until the well ran dry, so that defendants’ gas was, in effect, irrevocably committed to the interstate pipeline of United. Furthermore, the price which Shell and Pennzoil would receive from United was no longer negotiable but would be regulated by the F.P.C. with a resulting price ceiling. In 1959 Shell and Pennzoil entered into a 20-year contract for the sale of gas from the Gibson field to United for graduated prices over the years, subject to federal requirements.

When price control of natural gas at the well began in 1954 with the Phillips decision, the supply of gas far exceeded its demand so that price control had little impact on the market price at the beginning. This situation continued over 16 or 17 years but by 1971 the demand for natural gas exceeded the supply and buyers were willing to pay prices which exceeded the federally imposed ceilings. In ensuing years an attractive market developed for gas producers, but this market was confined to consumers within the State of Louisiana, i.e., sales to intrastate pipelines as opposed to gas sales committed in interstate pipelines under the jurisdiction of the F.P.C. By the time this case was tried in 1980 there was a vast discrepancy between the regulated price of gas Shell and Pennzoil were getting from United as compared to the price of gas in the intrastate market. Plaintiffs’ position is that defendants’ royalty payments are to be based on the highest price payable under the federal regulations while defendants maintain their royalties should be based on prices prevailing in the intrastate market.

The case was tried to a commissioner of the Civil District Court and his report was accepted by the trial judge. In his report, the commissioner considered the effect of Mobil Oil Corp. v. Federal Power Commission, 463 F.2d 256 (D.C.Cir.1971) cert. denied 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676 (1972), in which the court held that the jurisdiction of the F.P.C. does not extend to the lessor-landowner, but the Commissioner continued:

“In the exercise of jurisdiction the F.P.C. required the dedication to the interstate system, which dedication was effectively coextensive with the life of the lease itself. The production of gas itself serves to extend the life of the lease. The lease intent is clearly to vest in the producer all rights to all production until depletion of the resource. The federal regulatory scheme tracks this intent by imposition of field dedication to the interstate system. The fact that the regulatory effect cannot be legally applied to the lessor role in the production of gas does not, standing alone, free the contractual terms from the indirect effect of validly applied regulation.
* * % :f! üt sfc
All gas encompassed within the terms of the leases is dedicated to the federal system as fully as if the landowner was also the producer. The lessor-landowner apparently surrendered this right of dedication to the producer via the lease contract or the law, and it was exercised by the producer. The Court cannot be blinded to the fact that the landowner’s gas, upon which the royalty must be based, is now dedicated to the interstate market and cannot be sold otherwise. It is therefore in this market that the measurement of ‘value’ must be made. The Williams’ interests concede that no monetary deficits existed when this market was effectively the corner of the gas market from the inception of production in 1941 until 1972.”

This approach ignores the basic relationship between the parties to a mineral lease. LSA-R.S. 31:114 defines a mineral lease as a contract by which the lessee is granted the right to explore for and produce minerals. Lessor has the simple obligation of maintaining the lessee in possession of the premises, §§ 119 and 120. The lessee is not under a fiduciary obligation to lessor but is bound to perform in good faith and to develop the property as a reasonably prudent operator for the mutual benefit of the parties, § 122. The royalties paid to the lessor upon production under the lease are rent for the leased premises, § 123. There was no deviation from these general principles in the leases under consideration in this case. Shell and Pennzoil had the right to extract the gas from defendants’ land. They could dispose of it as they saw fit and the consideration they bargained for in obtaining these rights was the rent payable to defendants as set forth in the royalty clauses. In the 1934 lease the rent or royalty was fixed at lk “of the value” of the gas “calculated at the market rate prevailing at the well,” and in the 1952 lease the rent or royalty was Vs [subsequently amended to Vfj “of the value” of the gas “calculated at the market price prevailing at the well.”

Until the federal government injected itself into the production of natural gas there was a clear understanding of the phrases “market value” or “Market price” for the purpose of computing the amount of royalty due a lessor. Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561 (1934). In this case the lessee sold the gas at a point some miles away from the well for 5.3 cents per thousand cubic feet (Mcf), but the court held that the lessor-landowner was entitled to royalty payments based on the price of 4 cents per Mcf since that was the price at the well with the additional price obtained by the lessee being increased because of its expense in transporting the gas from the well to a market beyond the gas field. Shell and Pennzoil take the position that the moment the gas comes into their hands at the well its value is inextricably limited by the price for which they can sell the gas under federal regulation. In other words, the value of this gas is forever limited because it was and is irrevocably committed to United’s interstate pipeline.

On the other hand, defendants demonstrated that gas in an adjacent field was sold to an intrastate pipeline and, indeed, in one unit some gas is being sold to the interstate pipeline while other gas is piped intrastate by Shell to its Norco, Louisiana, refinery for its own consumption. While Shell pays the landowner in that unit some royalty based on the regulated interstate price for gas- put into the interstate pipeline it pays a substantially higher royalty to that landowner for the gas it consumes at its plant. Defendants contend that market value at the well must take into consideration the potential intrastate price which the gas could command before it enters the interstate pipeline.

The commissioner reasoned that it was the lessor’s intent “to vest in the producer all rights to all production” and that the lessors “surrendered” to the producers the right to dedicate the gas to the interstate market. From this finding of intent on the part of the lessors the conclusion readily followed that the lessors were limited to royalty based on the regulated price of gas. Shell and Pennzoil are quick to take up the cudgel in defense of this position and attempt to show that the evidence established some such intent on the part of defendants. Such facts are as follows:

In 1941 when the Gibson area agreement, consisting of the sublease by Shell to Union with the attendant farmout and the sale of the gas to United, was struck, it was necessary for Shell to obtain defendants’ consent to make the sublease. All of the proposed documents were made available to defendants and the documents reviewed by their lawyers and geologists before they gave their consent to Shell to make the sublease. In 1952, when the second lease was confect-ed, the sale to United of the Gibson field gas was an accomplished fact. In 1955 defendants were called upon to consent to a sublease by the Williams’ individuals to Shell they not only had knowledge of the interstate destination of the gas but they were also charged with the knowledge that federal regulation of such gas production had been approved by the Supreme Court in the Phillips case. From these facts, Shell and Pennzoil argue that defendants agreed to commit the gas to the interstate pipeline, to accept federal regulation, and to be paid royalty based on the regulated price of the gas. We are simply unable to reach this conclusion from the record.

At the outset it must be understood that no one, not Shell, Pennzoil, United or defendants could visualize the drastic effects of their actions taken in 1941, 1952, or even 1955. Undoubtedly with the advent of the Phillips decision knowledgable parties could predict serious consequences flowing from federal price control of gas. On the other hand, no one could in 1954 predict the radical change in the gas market which took place over the ensuing 16 years. The events which caused the gas market to change from an over abundant supply to a near shortage were beyond anyone’s control or foreseeability. Thus, any evaluation of the actions taken by these parties in these early years must be made without regard to developments which have occurred since that date.

When the 1941 transaction is considered in the proper light, the only participation by defendants was to supply their consent for their lessee, Shell, to sublease to Union. Anything else which took place was concocted and engineered by Shell in participation with Union and United. Once the latter parties had the consent to sublease they took it upon themselves, to the exclusion of defendants, to commit the gas to the interstate pipeline. The same applies to the 1955 sublease. Defendants were asked only one question: “Do you consent to a sublease by the Williams individuals to Shell?” When given an affirmative reply Shell was in full charge of marketing the gas. Had it not taken this sublease the Williams individuals would have been left with other choices and could have diverted the gas under their 20 acres into the intrastate market.

Thus, we have concluded that the commissioner, and the trial court, erred in concluding that defendants formed any intention to commit their gas into the interstate pipeline or to change the terms of the lease with respect to computation of the royalty payments in any way. Furthermore, the trial court erred in failing to consider prices paid for gas in intrastate sales in order to determine the market value of the gas for computation of royalty payments due defendants.

In reaching these conclusions we have considered the case of Henry v. Ballard & Cordell Corp., 401 So.2d 600 (La.App. 3rd Cir. 1981). In that case the court considered a similar case involving four leases confected in 1953, 1960, 1962 and 1964, where the gas was sold by the defendant-producer-lessee to an interstate pipeline in 1961. The court framed the problem as follows:

“The contract term ‘market value’ as used in the royalty provision of the various leases is susceptible to two interpretations: The plaintiffs-lessors contend the term necessarily means that their royalties must be based upon an ever-changing market value of natural gas which is to be determined on a daily basis as gas is produced and/or delivered to the gas purchaser; the defendants-lessees contend that the parties meant for lessors’ royalties to be based upon the prevailing market value at the time the gas reserves were committed to the purchaser under the 1961 contract.”

The court resolved the problem as follows:

“We find that the parties intended for the lessors’ royalties to be based upon the prevailing market value for natural gas at the time these natural gas reserves were committed to American Louisiana in 1961. This interpretation espoused by the defendants-lessees is supported by the evidence and is the only one under which the common intent of all the parties can be realized. The plaintiffs-lessors’ interpretation is not supported by the evidence, and its adoption would lead to results never intended by the parties, as we will explain later.”

We are unable to determine from that opinion what facts, if any, convinced the court as to the intention of the lessors to base their royalties on the regulated interstate prices, but if those lessors, as here, did nothing more than consent to subleases we disagree with the court’s conclusions. We adhere to the view that the market value of the gas is its value at the moment it leaves the well and before the producer places it into the interstate pipeline and under the umbrella of federal regulation.

Having resolved to reverse the trial court on the main demand we turn to defendants’ reconventional demand. Defendants originally sought a cancellation of their lease and an accounting for the amount of underpaid royalty, but in their brief in this court defendants ask for a remand to the trial court for the determination of the proper amount of royalties due them. It seems clear that the remedy of cancellation is unavailable to defendants since the power of the federal government precludes interference with gas production under the leases. The testimony with respect to comparable intrastate sales was insufficient to enable this court to determine the market value of the gas extracted from defendants’ land during the years in question. Defendants’ experts left a number of unanswered questions, the answers to which are necessary in order to compute exactly how much defendants are entitled to recover. One used seventeen comparable sales over a ten year period and testified that these were isolated from hundreds of transactions because he considered the seventeen the best comparables. However, he was quite vague in explaining how he reached this conclusion. Defendants’ evidence of what Shell itself valued gas which it purchased on the intrastate market was insufficient to demonstrate the value of the gas on a day to day basis. At some point during the ten year period in question the unit for the measurement of gas for pricing purposes was changed from the amount per thousand cubic feet (Mcf.) to the amount per British thermal unit (MMBtu). An accurate conversion from one unit to the other depends upon the Btu content of the gas under consideration. Defendants’ expert arbitrarily assumed Btu content of 1000 in making his conversions from Mcf to MMBtu and admitted that this would only be an estimated value. We have concluded that an accurate measurement of defendants’ damages would require extensive additional evidence and probably some exercise of discretion on the part of the trial court. We have resolved to remand the case to the trial court for this purpose.

While it appears that Shell and Pennzoil may suffer some hardship as a result of our action, their position must be considered in light of the following: First, the record indicates that Shell and Pennzoil may obtain a remedy from the FERC in the form of a pass through by which they can obtain an increase in the price of the gas ultimately to be paid by the consumers to compensate them for the higher royalty payments they owe to defendants. Second, as a result of our decision Shell and Pennzoil may be required to pay defendants as much as three times what they are now paying or the equivalent of a %th royalty. This does not seem oppressive in the light of defendants’ evidence showing that a currently negotiated gas lease typically provides for royalty to the lessor of as much as 30%. Finally, we agree with the following statement of the court in Foster v. Atlantic Refining Company, 329 F.2d 485 (5th Cir. 1964):

“The fact that the ascertainment of future market price may be troublesome or that the royalty provisions are improvident and result in a financial loss to Atlantic ‘is not a web of the Court’s weaving.’ Atlantic cannot expect the Court to rewrite the lease to Atlantic’s satisfaction.”

Likewise we concur with the following from Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex.1981) at page 245:

“When Exxon negotiated the gas contracts, it took the risk that the revenue therefrom would be sufficient to satisfy its royalty obligations. That subsequent increases in market value have made these obligations financially burdensome is no reason to compel this court to disregard the plain and unambiguous terms of the royalty clause and rewrite it to conform to the meaning that Exxon, as drafter of the language, says was intended. . . .”

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendants and against plaintiffs, Shell Oil Company and Pennzoil Producing Company, dismissing their main demand. There is judgment on the recon-ventional demand in favor of defendants and against Shell Oil Company and Pennzoil Producing Company, recognizing defendants’ right to an accounting for royalty payments based on market value to be arrived at by the use of all comparable sales of gas including those in the intrastate market. The case is remanded to the trial court for this purpose and all costs are taxed against Shell and Pennzoil.

REVERSED AND REMANDED.

      . Shell Oil Company is the successor of various corporate entities which were involved in transactions with defendants. The present plaintiff, Pennzoil is the successor of Union Producing Company. These matters are inconsequential and for the sake of brevity reference may be made in this opinion to present plaintiffs rather than the predecessors who were the actual participants.

      . In 1978 federal legislation extended regulation even to intrastate sales of gas under the authority of the Federal Energy Regulatory Commission, successor to the F.P.C. It is not clear from the record as to how this affected the discrepancy between prices but for purposes of this opinion this development is not significant.

      . We do not imply that the Mineral Code adopted in 1974 applies to this dispute. However, since the code is essentially a codification of the state mineral law which developed juris-prudentially by way of analogy to the Louisiana Civil Code (see introduction to the Mineral Code by the Louisiana State Law Institute) we feel comfortable in borrowing from the code some general observations.

      . We are informed that the Supreme Court granted writs in this case and it was argued on January 27, 1982. Because we are not convinced that the facts of the cited case and the instant case are the same and because we are not persuaded by the cited case in any event, we have resolved to proceed with this opinion while the cited case is pending in the Supreme Court.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Helen Helis, Wife of/and Angelo C. KOGOS v. BUSINESS CAPITAL CORPORATION.
    No. 12709.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Bagot & Gniady, John H. Gniady, New Orleans, for plaintiffs-appellants.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for defendant-appellee.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   GARRISON, Judge.

This is an appeal from a summary judgment of the district court, dismissing the plaintiffs’ action for damages for embarrassment and humiliation, resulting from the seizure of their property by defendants. From that judgment, which we affirm, plaintiffs appeal.

On appeal, plaintiffs argue that the summary judgment was improperly granted because of the existence of two questions of material fact, to wit:

1. The property was seized in derogation of a permanent injunction.
2. Executory process was unavailable because there existed a variance between the terms of the note — “10% per annum from maturity” — and the terms of the mortgage — “10% per an-num from date.”

In response thereto, defendants argued that it was not a permanent injunction, but rather a temporary restraining order, and that the T.R.O. restrained only the sale of the property. This is a correct recitation of the evidence contained in the record. The sale was stopped and plaintiffs made full payment of the debt, thus stopping the seizure process. It is apparent from the record that plaintiffs did in fact owe the debt and had missed payments prior to the commencement of the executory proceedings.

Turning to the second issue, we note that defendants introduced the deposition of Henry O’Connor, the attorney-notary who had prepared both the mortgage and the note. O’Connor testified that the “variance” was not a variance as such but rather was a typographical error. While we hesitate to say that the substitution of a totally different word, as opposed to a misspelling, is a typographical error, this court need not make such a pronouncement. Apparently, the trial judge concluded that it was a typographical error based upon a credibility call in favor of O’Connor. The trial judge believed O’Connor’s testimony that the variance was a typing error. In instances such as this, the appellate court is bound by the rules of Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, we cannot say that the trial judge was manifestly erroneous in this case. We further note that under R.S. 13:4104, the existence of a typographical error does not affect the validity of executory process.

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

AFFIRMED.


text:
    Lillian Alexander, Wife of/and John ALEXANDER v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12745.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Kirchberg & Schoenberger, Alan F. Scho-enberger, New Orleans, for plaintiffs-appel-lees.
    James Maher, III, New Orleans, for defendant-appellant.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to plaintiff $3,000.00 in damages and to her husband $100.00 in damages for injuries incurred as a result of a fall on a New Orleans Public Service bus. At the time of the accident, Mrs. Alexander was 66 years old.

The trial judge provided the following written reasons for judgment:

“The plaintiff is a 67 year old female, and a very impressive witness — polite, courteous, cooperative and timid. She got on the New Orleans Public Service bus as it was parked alongside the curb. She paid her fare and was in the process of sitting down in the long (beauty) seat just behind the driver. The bus moved out into traffic at an angle from the curb simultaneously as she tried to take her seat. She missed the seat and fell to the floor, injuring her buttocks and right hand and arm. She was under active medical treatment for about three and a half months. The driver admits that he was, at the time of the accident, concerned with traffic and his moving out into it. He did not look to see if the plaintiff had' gotten to her seat, or was in a position to hold on to something, etc.
“The court is of the opinion that the movement of the bus away from the curb caused the plaintiff to miss her seat. This driver concerned with traffic did not exercise that degree of care required of him toward his fare-paying passenger. See Davis v. Owen, 368 So.2d 1052.”

From that judgment, which we affirm, defendant appeals.

On appeal, defendant argues: (1) that the trial judge erred in believing plaintiff’s testimony instead of the testimony of its witnesses; and (2) plaintiff’s physical appearance is such that the bus driver was not placed on notice that she required special consideration.

On the first specification of error, we note that the trial judge made a clear and convincing credibility call in favor of plaintiff and against defendant’s witnesses. He also took the further step of reducing that credibility call to writing. There is a strong presumption in favor of upholding credibility calls by a trial judge. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). On appeal, the scope of review of this court is whether, upon the appellate court’s independent evaluation of the testimony and evidence presented, the trial judge was manifestly erroneous in its factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In the instant appeal, we cannot find that the trial judge was manifestly erroneous.

Turning to the second specification of error, we note that there exists a longstanding line of jurisprudence providing that it is not negligence where a bus or other public carrier driver starts the vehicle moving before all passengers are seated, except when a passenger is old, infirm, or otherwise incapacitated. Miller v. NOPSI, 196 So. 86 (Orl.App.1940); Penny v. NOPSI, 328 So.2d 729 (La.App. 4th Cir. 1976); Burley v. NOPSI, 398 So.2d 1251 (La.App. 4th Cir. 1981). With reference to defendant’s argument that plaintiff’s appearance did not put the bus driver on notice as to her age, the trial judge made the following comment part of the record below:

“THE COURT:
“I’ll describe her for the record. She is a black female of small stature, obviously sixty-six years old by her general appearance, certainly not a spry, young thing flipping around the room. She got up and off the stand with caution and reflects the age that she gives, sixty-six at the time of the accident, sixty-seven now.” (Tr. p. 24)

It is apparent on the face of the record that this court is bound to affirm the trial judge’s determination of plaintiff’s physical appearance as sufficient to have placed the bus driver on notice.

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

AFFIRMED.


author: BARRY, Judge.

text:
    Michael A. DOLLACKER and Ellen Dollacker, his wife v. James A. SCHIMEK, and United Service Automobile Association.
    No. 12680.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Writ Denied April 30,1982.

      Martzell & Montero, John R. Martzell, Janine Dingleman, New Orleans, for plaintiffs-appellants.
    Timothy G. Schafer, New Orleans, for defendant third-party plaintiff-appellee.
    Before BARRY, BYRNES and WARD, JJ.
   BARRY, Judge.

Plaintiff appeals the sufficiency of a general damage award urging that the lower court erred in failing to include specific items of damage.

Plaintiff sued her uninsured motorist carrier for personal injuries received in a two car collision and was awarded medical expenses of $2,040.52, $4,802.24 for lost wages, and $15,000.00 for pain and suffering. Plaintiff only appeals as to “pain and suffering” and argues that the amount is insufficient because the Trial Judge did not include recovery for permanent disability, a scar, or loss of future wages, and asks that expert fees be set. The defendant insurer answers that the Trial Judge is not required to itemize general damages, the quantum was adequated because it included all proven damages, and there was no proof of future wage loss. There is no question of liability.

Plaintiff contends the judgment is not a general verdict and the factfinder erred in not itemizing sums for permanent disability and scar disfigurement and cites Roy v. Schneider, 367 So.2d 1314 (La.App. 4th Cir. 1979). In Roy a jury only awarded $305.00 in a general verdict; however, that was the exact amount of medical expenses and the court held that the jury failed to make any award for general damages which was an error of law. The defendant argues, and we agree, that “pain and suffering” can encompass a variety of general damages, such as various injuries and residual disability. Picou v. Highlands Insurance Co., 298 So.2d 307 (La.App. 1st Cir.) writ refused 302 So.2d 25 (La.1974). There is no prohibition against a lump sum verdict and the Trial Judge does not have to detail what constitutes “pain and suffering”.

Our concern is directed to the sufficiency of the award for pain and suffering. Plaintiff was a twenty-four year old student nurse at the time of the accident in July, 1975. She was taken to the emergency room at Mercy Hospital, x-rayed, and the next day saw Dr. S. J. Loeoco, an orthopedic surgeon.

Dr. Lococo’s examination revealed a positive finding of knee effusion and internal derangement which is common when the knee is twisted. There was also fluid in the knee area. Dr. Lococo stated that plaintiff continued to have pain and swelling in the knee, and the knee instability (giving away) indicated she had a patella malalignment syndrome which was related to the accident. Surgery was performed in December, 1975 which confirmed malalignment of the knee cap with thin tissues on the medial border. The patella was stretched, ruptured, swollen and painful and the left leg had limitation of motion with quadricep atrophy. The patella was surgically realigned and required extensive suturing. Plaintiff was in the hospital ten days and the knee was immobolized for six weeks. Dr. Lococo followed her extensively and stated she continued to have pain, swelling, and never fully recovered.

Plaintiff and her husband moved to Dallas and Dr. Lococo followed her progress through his referral, Dr. Faust. Dr. Lococo was allowed to testify that Dr. Faust sent him reports on plaintiff’s condition and Dr. Faust stated that he would not prescribe anti-inflammatory drugs because of her possible pregnancy. Plaintiff corresponded with Dr. Loeoco and told him that her knee continued to cause problems and the surgery was not successful.

Dr. Lococo examined plaintiff prior to trial and said the knee appeared stable and was properly aligned; however, she complained the knee gave way approximately every three months and there was pain and swelling with increased activities. Dr. Lo-coco felt plaintiff had approximately fifteen percent disability of the left lower extremity and he expressed concern over the appearance of the surgical scar. Dr. Lococo recommended quadricep exercise with Tylenol for pain and decreased activities when there was knee swelling.

Testimony from Dr. John B. Gunn, an orthopedic surgeon in Dallas, was taken by deposition. He stated plaintiff was referred to him by Dr. Faust and he first saw her on October 18, 1977 (the accident occurred July, 1975) and she complained about knee pain and inability to participate in sports. She told Dr. Gunn of her surgery by Dr. Lococo in December, 1975 and the necessity thereafter to have fluid drained on three of four occasions. Dr. Gunn testified plaintiff’s quadriceps were abnormal because she lacked twenty-five to thirty percent of normal muscle strength and there was atrophy. He said plaintiff experienced pain upon manipulation of the knee cap and crepitus was present. Dr. Gunn opined that fluid in the knee joint meant pathology within the knee which usually leads to degenerative changes that would necessitate additional surgery. Dr. Gunn said that surgery would only have a fifty percent chance of success and the optimum after surgery would be seventy-five to eighty percent relief of pain and joint effusion.

After this initial examination by Dr. Gunn, plaintiff went back to Dr. Faust to discuss the merits of surgery and ultimately decided that the surgical risks were worth the potential elimination of pain and discomfort. The second surgery was on December 21, 1977, (two and a half years post accident) and it was discovered plaintiff had moderate chondromalacia, very early roughening. Dr. Gunn also found a residual tightness from the first surgery where the knee cap was bound down against the femur which caused an abnormal amount of pressure when the knee was flexed. During surgery the knee cap was displaced to its normal position to relieve tightness and reduce crepitus. Plaintiff was in the hospital seven days, her leg placed in a cast, and used crutches for four weeks after which the cast was removed and motion exercises were prescribed. Approximately ten weeks after surgery there was a slight joint effusion, some fluid, and the quadriceps were about ten to fifteen percent abnormal. Approximately fifteen weeks post surgery plaintiff had increased soreness, tenderness, swelling, and was placed on an anti-inflammatory drug. Dr. Gunn’s last examination prior to the deposition was approximately four months post operative and there was no effusion or crepitus, but there was continued tenderness of the patella.

Dr. Gunn’s prognosis was intermittent difficulty with the knee which would be aggravated by going up and down steps, squatting or participating in sports. At the time of the deposition Dr. Gunn stated “with a major weight-bearing joint like this where you’re dealing with the largest joint that we have, and the most complicated one, it takes a long time to recover from surgery ... I think she’d have difficulty working in the operating room, emergency room, or intensive care, wherein she could probably handle ordinary floor activity.” He felt optimum results would be achieved nine to twelve months after surgery and his prognosis was “guarded”. It was stipulated between counsel if Dr. Gunn had testified his evaluation would be a twenty-five to thirty percent permanent disability of the left knee.

Dr. Claude Williams, orthopedic surgeon, examined plaintiff at defendant’s request on three occasions. On October 15, 1975 (three months post accident) he found tenderness of the knee joint lining with crepitus and a slight prominence of the medial meniscus. She had full flexion and x-rays revealed no fractures or dislocation. Dr. Williams felt she might have damage to the cartilage and suggested if the symptoms persisted radiological testing might be appropriate. He suggested that she continue seeing Dr. Lococo.

Plaintiff saw Dr. Williams again on September 23, 1976 (nine months after the first surgery) and x-rays were negative, there was no effusion of the knee joint, and the knee exhibited full mobility. The physician did note a six inch scar from the surgery.

Dr. Williams last saw plaintiff immediately prior to trial which was seventeen months after the second surgery by Dr. Gunn. He said plaintiff complained her knee would swell after being on her feet more than six hours, but she did not use medication because of nursing her baby. Dr. Williams noted the knee was not swollen and there was no detectable effusion in the joint; however, there was visible atrophy of the thigh muscle. There was also noticeable crepitus upon flexion and extension of the knee and complaints of tenderness about the patella. Dr. Williams felt that no additional surgery was warranted and estimated a fifteen percent permanent partial impairment of the left lower extremity as a whole. He stated plaintiff should continue with exercises, but would have trouble with activities that required squatting, running, or any activity with the knee in a flexed position. The physician did not dispute plaintiff’s complaints of pain.

We have reviewed the medical evidence in detail because we are satisfied that $15,000.00 for pain and suffering is woefully inadequate. In summary, this plaintiff was twenty-four years old at the time of the accident and twenty-eight years old at trial. Both treating surgeons estimated leg problems and pain for the rest of her life. Dr. Lococo felt the left lower extremity had a fifteen percent permanent disability and it was stipulated that Dr. Gunn would evaluate a twenty-five to thirty percent permanent disability. Defendant’s examining physician, Dr. Williams, basically agreed with the treating physicians and rated a fifteen percent permanent partial impairment of the leg. With these medical findings we note plaintiff will experience pain during her forty-five year lifespan. In addition, plaintiff’s social activities are severely curtailed and even though she can resume employment, a full days work would be accomplished in pain. We viewed a photograph of the surgical scar which is approximately seven inches long, ugly in appearance, and easily noticeable.

Without written reasons we do not know how the Trial Judge arrived at a lump sum of $15,000.00 for pain and suffering. But the record supports our determination that the lower court abused its much discretion in setting such a deficient award. Our function is to raise the quantum to the lowest point which is reasonable, rather than decide what is appropriate based on the evidence. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Under the guidelines of Reck v. Stevens, 373 So.2d 498 (La.1979) we have articulated why this particular victim, with her particular injury and resultant surgical history, the medical certainty that pain and difficulty will follow during her lifetime, plus the residual scar: all of these factors cause us to evaluate plaintiff’s past and future pain and suffering, permanent disability, and disfigurement at $60,000.00 as the lowest point which is reasonable.

Next, plaintiff argues that the Trial Judge erred by awarding past lost wages without any provision for future wage loss. Plaintiff testified she was unable to stand up more than four to six hours and had to limit employment to private duty nursing because emergency room and intensive care work was impossible. After the second surgery in December, 1977, she worked as a counselor for a psychiatric unit, but was restricted to a twenty-four hour work week. This employment continued through October, 1978 when plaintiff’s obstetrician advised her to quit because of pregnancy. Plaintiff’s child was born in March, 1979 and she has not worked nor sought employment since October, 1978; however, she testified that when her son was one year old she would resume her career.

Dr. Gunn testified his examination four months after the second surgery was too early to determine plaintiff’s ability to resume employment. Dr. Williams examined plaintiff one day before the trial and testified she was not impaired from working as a hospital staff nurse. Dr. Lococo testified that plaintiff could perform any nursing duties for a full eight hours. Plaintiff countered with an expert (the Director of nursing at Charity Hospital) who stated that a staff nurse spends less than one-fourth of her time at a desk, and the balance involves physical work such as bathing, lifting patients, stooping — generally not sedentary work. - ..

Despite plaintiff’s admitted partial permanent leg disability, we find no medical evidence to support the claim that her work life was impaired to an extent that would preclude or reduce future earnings. Plaintiff quit work because of her pregnancy and never resumed nor sought employment thereafter. Any attempt by us to determine future wage loss would be speculative and this claim has no substance other than plaintiff’s self-serving testimony. The Trial Judge’s denial of future lost income was proper and not manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Finally, plaintiff requests this court set expert witness fees for the physicians. The judgment awarded “all costs” which includes expert fees which may be fixed and taxed under a rule filed for that purpose in the trial court. LSA-C.C.P. Art. 1920. There is no evidence in this record relating to these fees and the trial court is in a better position to assess the costs.

For the above reasons the judgment of the District Court is amended to provide pain and suffering in the sum of $60,000.00 in favor of plaintiff and in all other respects is affirmed. Costs of appeal are to be paid by defendants.

AMENDED AND AFFIRMED.


text:
    Mildred L. HINGLE, et al. v. GENERAL MOTORS CORPORATION, et als.
    No. 12701.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Bernard, Cassisa, Babst & Saporito, Stephen N. Elliott, Metairie, for defendants-appellees.
    Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiffs-appellants.
    Before BARRY, BYRNES and WARD, JJ.
   BARRY, Judge.

Plaintiffs allege a defect in their automobile caused an accident and sued for damages from General Motors Corp., the manufacturer, Bryan Chevrolet, Inc., the dealer who first received the car from General Motors, and Security Insurance Co., Bryan’s insurer. The Trial Court dismissed the lawsuit without assigning reasons and plaintiffs appeal only as to General Motors urging the Trial Judge committed manifest error.

Mr. and Mrs. Hingle purchased a 1974 Chevrolet “demonstrator” from Bryan on October 5, 1974. Mrs. Hingle testified that on April 19, 1975, before leaving a parking lot, she warmed up the engine approximately fifteen seconds. She then “barely” touched the accelerator and the car picked up speed into the path of another vehicle which hit her from the rear. This caused Mrs. Hingle to swerve, hit a median, and come to a stop in a drainage canal. She stated prior to the accident there were no brake or accelerator problems and she did not drive the car after the accident. She also stated she told the investigating deputy the accelerator stuck, but admitted she did not attempt to turn off the key or put the car in neutral in order to stop. Mrs. Hingle said she did not drive often and was sixty years old.

Mr. Hingle testified the Chevrolet had 5,000 miles when purchased as a demonstrator and the car had been driven approximately 7,000 miles when the accident occurred. He stated unequivocally there were no major problems (other than a transmission leak which was repaired by Bryan) prior to the accident. Mr. Hingle said Bryan repaired the car after the accident, but it was running “badly” so he took the car back to Bryan. Adjustments were made and it was running better, but he noticed the accelerator stuck two or three times. That was the first time he had any difficulty with the accelerator. He returned the car to Bryan who replaced the carburetor after which he experienced no difficulty.

Plaintiffs called Dennis Suarez who was qualified as an expert in automotive repairs. He took the air filter off the carburetor and noticed when the accelerator was depressed it didn’t release properly which caused a high engine idle. However, Suarez stated he did not inspect the carburetor and could not tell if its failure to properly release was caused by water damage from the accident. He did say, however, when the accelerator wasn’t depressed the engine did not continue to accelerate or speed up. His testimony convinces us his inspection of the car was casual, at best, and limited in scope.

Johnny Carlass, body and shop manager for Bryan, testified when Mr. Hingle first brought the car back after the accident he complained about the accelerator sticking. (This conflicts with Mr. Hingle’s testimony.) Carlass said he did not remember complaints about the carburetor before the accident: after the accident the carburetor was cleaned, eventually replaced, and the car was in good condition.

Gilbert Watermeir, service manager for Bryan, was qualified as an expert in automotive mechanics. He stated warranty repair orders were kept for twenty four months and there was no record of complaints about the brakes, carburetor, or accelerator on the Hingle vehicle. He testified after the accident the carburetor was overhauled and replaced later. He said he viewed the vehicle after the accident before repairs. The front was heavily mudded from the drainage canal and the type of work on the repair sheet indicated the automobile had been submerged in water. Wat-ermeir opined if the carburetor was stuck open the motor would stay at the same speed, and if the accelerator stuck at full throttle the brakes were capable of stopping the car.

The investigative officer, Curtis Owens, said when he reached the accident scene the Hingle’s car was straddling the canal with the front and rear on the embankments. The front, rear and bottom of the ear was damaged, but he did not check the accelerator even though Mrs. Hingle told him it stuck prior to the accident. Owens testified he could not find skid marks or other evidence that Mrs. Hingle applied her brakes.

In order for General Motors to be liable, plaintiffs have the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

Plaintiffs cite Hunt v. Ford Motor Co., 341 So.2d 614 (La.App. 2nd Cir. 1977) where the plaintiff’s steering wheel froze and the court stated:

“Accepting the fact that the steering wheel froze or hung up, it necessarily follows that there was a defect in the steering mechanism which caused the failure.. . It is not necessary for plaintiff to prove the precise nature of the defect—only that a manufacturing defect existed and that it caused the accident.” Id. at p. 618. (Emphasis in original)

However, Hunt is clearly distinguishable because there had been numerous prior experiences and documented evidence of problems with the steering wheel. The Hingle’s had no difficulty nor is there any documented evidence of accelerator or carburetor defects before the accident.

Plaintiff also relies on Vicknair v. T. L. James Co., Inc., 375 So.2d 960 (La.App. 4th Cir. 1979), writ denied 379 So.2d 10 (La.1980) Vicknair involved strict liability under C.C. art. 2317 because the defendant was custodian of the thing that caused the damage, regardless of negligence by the custodian. Loescher v. Parr, 324 So.2d 441 (La.1975). However, a manufacturer of a product (such as an automobile) which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated, but only when the purchaser or third person is without fault. Weber, supra.

The record shows that the Hingle’s drove their automobile approximately 7,000 miles without the accelerator pedal sticking. Mr. Hingle used the car after the accident and did not experience or complain of any abnormal sticking or acceleration, even though he returned the ear for service because the motor was “missing”. Only thereafter Mr. Hingle experienced the accelerator sticking: however, he continued to drive the vehicle without incident. It was almost six weeks after the car was repaired before a complaint was made concerning the accelerator.

Basically, the trial judge was confronted with Mrs. Hingle’s uncorroborated testimony concerning the accident. Plaintiffs had the difficult burden of proving the existence of a defect in their automobile and that the defect caused the accident. We feel the evidence is sufficient to sustain the Trial Judge’s finding that plaintiffs failed to establish their automobile was defectively manufactured and we will not disturb that determination absent the “clearly wrong” principle of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The judgment of the District Court is affirmed with appellant to pay all costs of appeal.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    R. H. ROBERTS v. Paul A. PACIERA, Jr., Paciera Enterprises, Inc., Jefferson Tractor and Trailer, Inc., Universal Equipment and Truck Leasing, Inc., and P. A. P. Transports, Inc.
    No. 12328.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Courtenay, Forstall & Grace, Charles V. Guilbault, New Orleans, for plaintiff-appel-lee.
    Derbes & Derbes, James G. Derbes, New Orleans, for P. A. P. Transports, Inc., defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant P.A.P. Transports, Inc. (P.A. P.), appeals a district court decision in favor of plaintiff, R. H. Roberts, and against that defendant ordering it to pay the sum of $9,534.80 with 7% interest thereon from the 10th day of August, 1980 until paid and an additional sum equal to 25% of the said principal and interest as attorney fees, plus all costs.

On January 31, 1980, plaintiff filed a suit on open account against defendants, Paul A. Paciera, Jr.; Paciera Enterprises, Inc.; Jefferson Tractor and Trailer, Inc.; Universal Equipment and Truck Leasing, Inc.; and P.A.P. Transports, Inc. The petition alleged, among other indebtedness, defendants Paul A. Paciera, Jr., and P.A.P. Transports, Inc., were indebted jointly, severally and in solido unto the petitioner in the sum of $8,591.11. The petition also asked for attorney fees, interest and costs.

The attorney for P.A.P. subsequently requested and received from the district court additional time to plead in the suit. In an amended petition, the plaintiff also alleged that Paciera, acting individually and/or as owner and/or agent of the various corporate defendants in this suit, verbally agreed that in consideration of receiving additional time from the plaintiff to pay for the subject insurance policies, an 18% per annum interest charge would be charged on all balances due and owing as of the tenth day of each month.

Various exceptions filed by the defendants in this suit were denied by the district court, and defendant P.A.P. was ordered to file an answer to the plaintiff’s supplemental and amending petition on or before May 1, 1980. On June 4, 1980, the attorney for P.A.P. withdrew as counsel of record.

On Thursday, August 21, 1980, evidence was taken in the trial court to confirm a preliminary default against P.A.P., which was signed on June 10, 1980. Plaintiff testified that he was a licensed insurance agent and he had been providing coverage for Paciera and various corporations for which he acted as agent. He said he issued the Guaranty National Insurance policy which is the subject of this suit at the request of Paciera and at his requests also advanced the premiums and arranged for financing of those premiums. He said although Paciera agreed to repay those advances, he had not done so.

Roberts also stated that Paciera subsequently advised him that there had been a change, and business would forthwith be handled under the name of P.A.P. Transports, Inc. He requested that Roberts amend the policy to reflect this fact, which was accomplished by the plaintiff. He also said Paciera indicated P.A.P. would assume the obligations on the policy and be liable for the premiums.

Plaintiff’s attorney introduced tabulation and summarization of the account of Guaranty National Insurance Company relating to the subject insurance policy in this case; copies of Roberts’ work records; petition and supplemental petition; sheriff’s return dated February 6, 1980; signed motion for preliminary default, and affidavit of correctness of account. He then moved for judgment plus legal interest at the rate of 7% and 25% attorney fees, noting that he had expended 3514 hours before his appearance in court that day.

Defendant P.A.P. argues on appeal that responsibility for premiums which came into effect before its name was added by endorsement is assuming the debt of another and, therefore, it is bound only if it undertakes the responsibility expressly and in writing, citing Petrolane Gas Co. v. Crusader Drilling & Service, Inc., 176 So.2d 822 (La.App. 2d Cir. 1965).

However, as noted by the plaintiff, if a party has a material interest in promising to pay a third person’s debt the alleged promise to pay is thus susceptible to proof by parol evidence. Winston Network, Inc. v. TAC Amusement Co., 363 So.2d 1283 (La.App. 4th Cir. 1978). In the present case in changing the endorsement Paciera obviously had a business motive for doing so since the policy was previously in his own name and in making the change he was acting as agent for P.A.P. We therefore hold that the allowing of parol evidence as to the endorsement change was proper in the district court. Furthermore, such a change certainly indicates the corporation at that point intended to be responsible for all past due and future premiums.

LSA-C.C.P. art. 1702 provides that a judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. Because such was established by the plaintiff in the present case in the district court, as revealed by a review of the record, the trial court’s rendering of judgment in favor of Roberts and against P.A.P. was correct. We should also note that all of the named defendants were on the policy and liable individually and in solido for premiums due. Accordingly there is no question that plaintiff is entitled to monies due on the open account for these policies, it being the problem of defendants to proportion their respective shares of the premiums owing.

Neither does this court hold that the 18% per annum interest charge agreed to by Paciera in consideration for additional time to pay may have been usury in nature. Because the corporation voluntarily assumed all past obligations on the policy, and also due to the fact this judgment only casts the defendant corporation, rather than an individual, the higher rate of interest cannot be considered usury. LSA-R.S. 12:703.

In regard to the attorney fees awarded to the plaintiff, however, we find error. LSA-R.S. 9:2781 specifically provides that when a person fails to pay an open account within 30 days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Moreover, the provisions of this statute must be strictly construed. Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3d Cir. 1979).

Although counsel for the plaintiff has included copies of such a written demand in his brief, the record is devoid of evidence of any such compliance with the provisions of LSA-R.S. 9:2781 having been introduced in the trial court. Accordingly, the district court was in error in granting attorney fees to the plaintiff in this case.

For the reasons assigned, therefore, the district court judgment is reversed in part and the plaintiff’s request for attorney fees is denied. In all other respects the judgment is affirmed. Each party is to bear his own costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART.


text:
    Allen JAMES v. ACE FREIGHT LINE, INC., et al.
    No. 5-178.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Robert R. Faucheux, Jr., Reserve, for plaintiff-appellant.
    Frank J. Achary, Raymond S. Childress, Metairie, for Ace Freight Line, Inc., defendant-appellee.
    Christovich & Kearney, R. K. Christovich, New Orleans, for Winn-Dixie of Louisiana, Inc., defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Allen James, appeals a district court decision in favor of defendants, Ace Freight Line, Inc. (Ace); Insurex International, Inc.; and Winn-Dixie of Louisiana, Inc. (Winn-Dixie), and against the plaintiff, granting a summary judgment in favor of the defendants and dismissing the plaintiff’s case at his costs.

In his petition, plaintiff alleged that on or about October 27, 1975 he was employed by Ace and Winn-Dixie and during the course and scope of his employment he was injured, entitling him to workmen’s compensation benefits.

Subsequent to answering the suit, defendants filed motions for summary judgment along with affidavits stating that the plaintiff was not in the employ of Winn-Dixie on October 27,1975; Winn-Dixie had not contracted with Ace or any other carrier to deliver goods to the Winn-Dixie Warehouse on October 27, 1975; and Ace was at no time the employer of James, particularly on October 27, 1975. The plaintiff filed an affidavit stating that he was performing manual labor on behalf of Ace and Winn-Dixie in the course of loading and unloading vehicles under the direction of the supervisor for Ace and for Winn-Dixie at its warehouse facility at the time of the accident.

By deposition James described his occupation as “truck hustler.” He said he would “catch” trucks at a truck stop and ask the driver to hire him, but he added he did not know the name of the driver of the Ace truck who picked him up on the occasion of the date of his injury and although he had been picked up previously by other Ace drivers, he had never delivered with that particular driver before. He stated that besides Winn-Dixie, he had helped deliver to other places such as National Foods and A & P.

He said in this particular work situation the driver tells a Winn-Dixie employee at its warehouse that he has a helper and secures a pass for both of them, but the helper does not give his name. He said on occasion the Winn-Dixie personnel would tell him how they wanted the cargo stacked, but he received no instructions from them on the date of the accident.

James said he was always paid by the truck driver when he hustled — $40 for unloading a whole load and $25 if the driver helped him, as on the occasion when he was injured. He stated there was never any contract (written) between him and the driver and he received no pay from Winn-Dixie. He also said he was involved in a subsequent accident while hustling on October 16, 1976 and has not worked since that date.

Plaintiff argues on appeal that he should be considered an employee of Ace and Winn-Dixie because the nature and extent of control exercised by those defendants over vehicles and truck hustlers working out of the location of the Winn-Dixie warehouse was in furtherance of the businesses of Ace and Winn-Dixie.

We do not agree and affirm.

The cases cited by appellant are not applicable to the case at bar. In Brewton v. L. L. Brewton Lmbr. Co., Inc., 349 So.2d 1364 (La.App. 2d Cir. 1977), the court found that the workmen’s compensation claimant was either an employee of the lumber company for which he cut and hauled lumber or an independent contractor of that entity performing substantial manual labor, thereby entitling him to workmen’s compensation benefits under LSA-R.S. 23:1021(5).

In Lushute v. Diesi, 354 So.2d 179 (La.1977), the court also stated that an independent contractor is covered under the Workmen’s Compensation Law only when a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is part of the principal’s trade, occupation or business, a factual issue to be determined under the circumstances of each case.

Similarly, in Timberlake v. Avis Rent A Car System, 361 So.2d 934 (La.App. 4th Cir. 1978), this court also held that a person who contracted with a car rental agency to drive an automobile to a specific destination for a stated price was performing manual labor and, therefore, not an independent contractor for workmen’s compensation purposes.

In Broussard v. Heebe's Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972), the court also held (as noted by defendants) that the workmen’s compensation statute does not apply where the transaction between the claimant’s immediate employer and the person sought to be held liable as his employer is that of purchase and sale or where some other relationship other than that of principal and contractor exists between them.

In the present case, however, the plaintiff himself admitted by way of testimony in his deposition that the only person for whom he had contracted to do any work was the individual truck driver who picked him up that day, a person not even named as a defendant in this suit. By affidavit, moreover, Winn-Dixie has disclaimed a contractual relationship with Ace for hauling, and no contractual relationship was shown between the driver who hired James and Ace.

LSA-C.C.P. art. 966 establishes that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

In the present case plaintiff by his own admissions failed to establish any employer-employee relationship or contractual one between himself and either Winn-Dixie or Ace. Accordingly, there is no basis in law for granting him workmen’s compensation benefits from either of these two parties. Since there was no genuine issue as to material fact and defendants were entitled to judgment as a matter of law, the granting of summary judgment in their favor was proper. Accordingly, the district court decision, dismissing the plaintiff’s case at his costs, is affirmed.

AFFIRMED.


text:
    Robert E. COCHRAN v. Louis J. CROSBY, Jr.
    No. 5-187.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Baldwin & Haspel, William E. Wright, Jr., New Orleans, for plaintiff-appellee.
    Hall, Lentini, Mouledoux & Wimberly, Stephen T. Wimberly, Metairie, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Louis J. Crosby, Jr., appeals a district court decision in favor of plaintiff, Robert E. Cochran, and against the defendant, issuing a preliminary injunction prohibiting Crosby from participating in a business which is directly or indirectly competing with Robert E. Cochran and/or S.I.S., Inc., doing business as Southern Insurance Service, in the business of insurance underwriting. The plaintiff has answered the appeal asking for attorney fees for prosecution of the case in the trial court and on appeal.

In August of 1980, Crosby and Cochran entered into an agreement as part of the sale of the defendant’s business to the plaintiff, restricting the defendant from competing with the plaintiff in the business of insurance underwriting for a period of two years. A later letter of release from the agreement, to a limited extent, was then issued by Cochran. Cochran, however, filed this suit contending that the restrictive agreement between the parties had been violated by Crosby and requesting that a preliminary injunction be issued against the defendant.

A review of the record reveals that no security was furnished by the plaintiff in the district court. LSA-C.C.P. art. 3610 states that a temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. This court knows of no law dispensing with security under the facts of this case. Accordingly, the preliminary injunction here complained of is invalid because it was issued without bond. Lenfants Caterers v. Firemen’s Charitable, 386 So.2d 1053 (La. App. 4th Cir. 1980); Montelepre, Inc. v. Pfister, 355 So.2d 654 (La.App. 4th Cir. 1978). In Jackson v. Town of Logansport, 322 So.2d 281 (La.App. 2d Cir. 1975), a case wherein the trial court had failed to require security for the issuance of a preliminary injunction, the appellate court chose to remand that case to the district court (with directions that security be furnished) rather than to vacate the injunction. Under such circumstances, however, this court has consistently held that the better approach is to vacate the injunction. Because of the wording of LSA-C.C.P. art. 3610, stating that the “ * * * injunction shall not issue unless * * * ” security is furnished, we agree with the interpretation of LSA-C. C.P. 3610 previously rendered by this court.

For the reasons assigned, therefore, the district court decision is reversed and the injunction issued against the defendant is hereby vacated and set aside. Plaintiff is to pay all costs of the proceedings.

REVERSED AND INJUNCTION VACATED AND SET ASIDE.


text:
    Webster McGUIRE v. Mr. & Mrs. Stafford DUREL, Sr., Mrs. Louis Beverly, and Joseph Nelson as the Administrator of the Estate of his Minor Son, Keith Bernard.
    No. 12772.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    J. Nelson Mayer, II, New Orleans, for plaintiff-appellant.
    Edward J. Villere, Adele L. Stern, Student Atty., Jane Johnson, Supervising Atty. Tulane Law Clinic, New Orleans, for defendants-appellees.
    Before BARRY, BYRNES and WARD' JJ.
   BARRY, Judge.

Plaintiff appeals the dismissal of three defendants on motions for summary judgment.

The facts are simple and basically undisputed. Plaintiff was visiting an apartment rented by Mr. and Mrs. Stafford Durel and owned by Mrs. Louise Beverly. Plaintiff was watching television when he was acci-dently shot by Keith Bernard, a minor. Mrs. Durel was in an adjoining room, but Mr. Durel and Mrs. Beverly were not in the building.

Plaintiff sued the Duréis, Mrs. Beverly, and the minor’s father, Joseph Nelson. The lower court granted summary judgments in favor of the Duréis and Mrs. Beverly.

Plaintiff urges there are two genuine issues of material fact and summary judgment was improper. First, he points to his affidavit which states that the Duréis’ major son, Stafford, viewed the incident and that Mrs. Durel was in the next room. Second, plaintiff argues that Mrs. Beverly’s insurance policy covers loss or damage due to an “explosion” and discharge of ¿the gun could be interperted under this provision. Plaintiff submits no authority for either contention.

The Duréis attached four affidavits in support of their summary judgment motion. Mrs. Durel states she saw the minor enter her apartment and twenty five minutes later she was in the rear when the shooting occurred. Two affiants stated they were in the room when the gun accidentally discharged, that Mr. Durel was not home, that Mrs. Durel wasn’t present when the plaintiff got shot, and that to the best of their knowledge the Duréis did not know the minor had a gun. Mr. Durel’s affidavit specifies that he wasn’t home when the shooting occurred and he had never seen or heard of the minor having a gun while in his apartment.

Plaintiff’s affidavit in opposition to the summary judgment states that a major son of the Duréis was present in the room, saw the minor with the gun, and admonished him to put the pistol away. The affidavit also says that Mrs. Durel was in an adjoining room with the door open. That’s the full extent of plaintiff’s position seeking to establish liability on the Duréis. There is no allegation that Mrs. Durel had prior knowledge of the gun or even saw it, only that her major son was present and she was in the next room. It is undisputed that Mr. Durel wasn’t on the premises.

The Duréis are liable only if they are negligent and caused plaintiff’s injury. The rule of reasonable care should be considered, not from what happened, but from what ordinary prudence should have indicated is likely to happen. Ordinary care requires only that means be taken to avoid such dangers that are known or are reasonably anticipated. Callender v. Wilson, 162 So.2d 203 (La.App. 1st Cir.), writ refused, 246 La. 351, 164 So.2d 352 (1964).

This unfortunate accident was entirely unforseeable. The Duréis did nothing which constituted negligence and there is no basis for imputation of negligence. The evidence presented with the Duréis’ motion for summary judgment is not subject to conflicting interpretations and we do not believe reasonable men would differ as to its significance.

As to Mrs. Beverly, whether she had owner’s insurance covering this accident is of no moment. In fact, her insurer is not a party to these proceedings. There is absolutely no connection between Mrs. Beverly and the shooting incident. Plaintiff’s petition and opposing affidavit does not specify, directly or indirectly, any actionable negligence by Mrs. Beverly.

Further, we find that neither the Duréis nor Mrs. Beverly breached any legal duty imposed to protect this plaintiff against this particular risk.

The lower court properly determined that the moving parties’ supporting affidavits were sufficient to resolve all genuine issues of material fact, La.C.C.P. art. 966; State through the Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981). Summary judgment was clearly warranted and the district court judgment is affirmed with appellant cast for all costs.

Affirmed.

      . One page of the landlord’s insurance policy is in the record, but the type of policy or its provisions is immaterial to our decision.


author: KLIEBERT, Judge.

text:
    Kevin Roy SCALES v. STATE of Louisiana, State of Louisiana Department of Highways, ABC Architectural Firm, Engineer A and Engineer B.
    No. 11292.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    John Paul Massicot, Silvestri, Marinaro & Massicot, New Orleans, for plaintiff-appellant.
    David K. Balfour, Dept, of Transp. and Development, Baton Rouge, Raymon G. Jones, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

ON RULE TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED AS ABANDONED

After this Court refused to dismiss the appeal, an application for writs to the Supreme Court were applied for and granted. The Supreme Court upheld the previous ruling of this Court and remanded the case here for hearings on the appeal. The case was set for oral argument on February 2, 1982. The appellant and appellee failed to file briefs and neither party made an appearance at the oral hearing. On Febrüary 3, 1982 this Court directed each party to show cause by brief on or before February 8, 1982 why the appeal should not be dismissed as an abandoned appeal. The appellant, Kevin Roy Scales, failed to respond to the show cause order by February 8, 1982. The appellee timely filed a brief and argued for a dismissal of the appeal based on Rule VII, Section 5(b) of the Uniform Rules, Court of Appeal.

On February 17, 1982, the appellant filed a motion entitled “Motion to Refile Brief” averring “That through mistake or error the brief had been misplaced or lost and is not now in the record” and attached a brief thereto. Thereafter, on March 1, 1982, counsel for plaintiff filed a brief stating the basis for his failure to appear at the hearing on February 2, 1982. Since counsel for the plaintiff has, by explaining his reasons for failure to make an appearance on February 2, 1982 and to respond to the show cause order by February 8, 1982, demonstrated his desire not to have the appeal abandoned and since this occurred before the order dismissing the appeal was consummated, in the interest of judicial economy and expediency, we will consider the merits of the appeal.

ON MOTION FOR SUMMARY JUDGMENT

Plaintiff, Kevin Roy Scales, was hired by Boh Brothers Construction Company to perform work as a pile driver on the I — 10/1— 610 extension. Both Brothers was performing the work under a contract with the State of Louisiana through the Louisiana Department of Transportation and Development, Office of Highways. On or about October 25, 1977, during the course of performing work, Scales sustained injuries. Boh Brothers commenced paying workmen’s compensation benefits to the plaintiff.

Plaintiff, Kevin Roy Scales, filed a tort action against State of Louisiana, State of Louisiana Department of Highways (hereafter LDH), ABC Architectural Firm, Engineer A and Engineer B. The suit was filed on October 2,1978. LDH filed a motion for summary judgment contending it was the statutory employer of plaintiff, hence, plaintiff’s exclusive remedy against it is for compensation benefits. Citing Alexander v. State, La.App., 347 So.2d 1249 (1st Cir. 1977), the trial judge maintained the motion for summary judgment thus dismissing plaintiff’s tort claim against LDH. Plaintiff filed and perfected a devolutive appeal from this ruling.

Counsel for plaintiff contends the trial judge erred in dismissing plaintiff’s claim because LDH is statutorily barred (LSA 48:251) from engaging in the business of building new highways. The argument is without merit. The very reason for the existence of the LDH is to construct highways. LSA 48:21. LDH’s decision to carry out its function by contracting with Boh Brothers for the construction brings the department under the exclusive remedy provisions of the Compensation Act, see, LSA R.S. 23:1061. Therefore, we agree with the decision in Alexander v. State through the Department of Highways, La. App., 347 So.2d 1249 (1st Cir. 1977) and hence affirm the trial judge’s ruling dismissing the tort action against the LDH.

ON THE EXCEPTION OF PRESCRIPTION

On June 1, 1979, while the motion for summary judgment was pending, plaintiff filed an amended petition naming Pepper and Associates, Inc. as an additional defendant. Pepper filed an exception of prescription to the amended petition. The trial judge, on January 17, 1980, rendered judgment upholding the plea of prescription and dismissed the plaintiff’s tort claim against Pepper. Plaintiff filed and perfected a de-volutive appeal from this ruling.

After a careful review we find no error in the trial judge’s ruling or in his reasons for judgment. Accordingly, we affirm his ruling and adopt his reasons which follow as our own:

“The applicable prescriptive period for a suit in tort is governed by Louisiana Civil Code Article 3536; actions prescribed by one year. The one year prescriptive period begins to run the date of plaintiff’s accident October 25, 1977 with the action prescribing on October 25, 1978 unless some event interrupts the running of prescription.
According to Louisiana Revised Statute 9:5801 when pleadings are filed in a court of competent jurisdiction prescription is interrupted as to all defendants. ‘All defendants’ as designated by this statute has been interrupted to refer only to defendants named in the suit.
In addition, as provided by Louisiana Civil Code Article 2097 ‘a suit brought against one of the debtors in solido interrupts prescription with regard to all.’ Thus, in order for the Court to determine whether an interruption of prescription has occurred the Court must look to the original petition filed by the plaintiff. The defendants named by plaintiff in the original petition were State of Louisiana, State of Louisiana Department of Highways. The three remaining defendants were denominated by fictitious identifications. The amendment to correct the fictitious name given to one of the defendants does not relate back to the original filing date of the suit. (Favors vs. Southern Industries, Inc. [La.App.], 344 So.2d 693 (1st Cir. 1977); Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 296 So.2d 271 (La.1974); Commercial Union Insurance Co. v. Bringol [La.App.], 262 So.2d 532 (4th Cir. 1972).
Thus, in order for prescription to be interrupted in the present case it would be necessary that the unnamed defendant be solidarily liable with the timely-sued named defendants.
The Court concludes there exists no solidarity between the named defendants and the unnamed defendant Pepper and Associates Inc. since plaintiff’s exclusive remedy against the named defendant is in workmen’s compensation and not in tort.
Accordingly, the Court concludes that prescription as to the unnamed defendants was not interrupted by the filing of the original petition nor the untimely filing of the supplemental and amending petition, nor was there a solidary obligation been the named defendants who were timely sued and the unnamed defendants.”

All costs of appeal to be borne by the plaintiff.

AFFIRMED.


text:
    Vallie P. COVINGTON, et al v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 12353.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Hugh G. Oliver, Westwego, for plaintiffs-appellees.
    Warren D. Ponder, Marshall W. Wroten, Robert J. Jones, Louisiana Department of Transp. and Development, Baton Rouge, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Ryan P. Guidroz and Vallie Covington Guidroz, plaintiffs herein, brought suit against the Louisiana State Department of Transportation and Development (hereafter DOTD) for damages sustained in an automobile accident which occurred on Highway LA 608 (Bayou Gauche Road) in St. Charles Parish on April 6, 1977 at about 10:00 P.M. The 1977 Pontiac Grand Prix owned and being operated by Ryan Guidroz with Vallie Covington occupying the right front seat was traveling in a northerly direction from Bayou Gauche towards Highway 90 in Par-adis. At the point of the accident, the road follows along a canal until it turns sharply to the left over a bridge and then once over the bridge turns sharply to the right. There is uneontradicted testimony by DOTD’s expert that the sharp curve to the left where the accident occurred was a 68° angle as shown on the 1935 plans for the highway. The vehicle being operated by Guidroz failed to negotiate the curve, went off the roadway, became airborne, overturned and landed front bumper down in a ditch.

Ryan P. Guidroz sustained a fractured nose and serious contusions. His passenger, Vallie Covington, had extensive injuries. She suffered from a compression fracture of the tenth thoracic vertebrae, blunt trauma to the abdomen, retroperitoneal hemato-ma and severe right renal contusion.

In his reasons - for judgment the trial judge found Guidroz contributorily negligent and made the following findings as to the liability of DOTD:

“In the opinion of the Court, the State of Louisiana, through the Louisiana State Department of Transportation and Development, was negligent by its failure to adequately mark the characteristics of the state highway and such negligence was the proximate cause of the accident made on the basis of this lawsuit.
The expert witnesses produced by Defendant frequently referred to and con-suited with regulations compiled by the Louisiana Department of Transportation and Development under the Provisions of Act 310 of 1962; Act 182 of 1978 as well as R.S. 32:41-2, authorizing that Department to manufacture and post, as well as design, all manner of highway signs and this Court finds that Defendant was in violation of its own regulations in that it failed to properly maintain sign type Wl-6 (page 2C05); and W5-2 (page 2A-16).”

Subsequently, after additional medical evidence was submitted, he made the following findings as to the injuries sustained by Ms. Covington:

“The evidence in this case discloses areas of injury to the plaintiff, two of which were responsible for the massive amount of special damages for medical treatment and hospitalization, namely:
(a) Puncture injuries to the abdominal wall causing internal injury;
(b) Fractured vertebrae (T-10) which X-Rays disclosed was crushed and which necessitated a Baker Brace so as to prevent spinal cord injury.
The Plaintiff’s post-hospitalization care reflects that the attending physicians expected continued pain for several months as Seconal was prescribed (as needed) by Dr. Winters so as to allow minimal movement. While in the hospital, she was required to lay on a flat bed with minimal movement. Despite the several areas of serious injury and predictable severe pain, the Plaintiff had a tendency to minimize her injury in the witness stand and, at most, testified that she was seldom bothered by the injuries and for the most part, free of symptoms. For this reason, the Court respects her complaints for the first 12 months following the accident as she has a tendency to minimize them at the time of the trial.
Dr. Brinkman performed a laparatormy on the Plaintiff, which is noted as abdominal surgery, apparently from her stomach wall striking a sharp object inside the car such as a gear shift. Although the skin was not broken, it was noted as a puncture wound in that something damaged the internal organs of the abdomen.”

Based on those findings he rendered judgment in favor of Ms. Covington and against DOTD for $10,000.00 as special damages and $50,000.00 in general damages.

The DOTD appeals, contending the trial court erred in finding the State negligent and awarded excessive damages to Ms. Cov-ington. The plaintiff Guidroz appealed, contending the court erred in finding him contributorily negligent. Ms. Covington answered the appeal asking for an increase in damages. For the reasons which follow, we affirm the trial judge.

The State Trooper who investigated the accident interviewed both plaintiffs in the hospital. Trooper Hart testified as follows:

“I estimated the speed at 70 plus. It was not my estimation but I asked at the hospital of Mr. Guidroz how fast he was going and he advised 70 miles or higher.”

Dr. Olin Dart testified as an expert in the field of accident reconstruction and highway design and traffic engineering. Dr. Dart found that the vehicle was being operated at a high rate of speed. He estimated the speed to be between 55 and 65 MPH and that an estimation of 70 MPH would not be unreasonable.

Mr. Guidroz testified to the following:
Q. Did you have any trouble going through the curves when you went down that evening?
A. I had to slow down when I seen the sign — the only sign they had was is the one on the turn, itself — and I slowed down to at least fifteen miles an hour to make the turn.
s{: * * * * *
Q. Fifteen was the safest that you could go through that curve.
A. Yes.

He further testified:

A. I knew it was a bad turn, you could see it.
Q. Did you comment on this to your wife (Ms. Covington) at the time that you went through it?
A. Yes, I did.
* sts * * * *
Q. Coming back to the night of the accident, and coming back home that evening, toward Marrero — you were driving down LA 306 back to this sectioned area where the accident took place — -You remembered the curve coming on that trip down— were you looking for the curve on the way back?
A. Yes, we were looking for some caution signs or some kind of signs. I was driving under the speed limit. I was driving forty-five (45) or less or maybe a mile or two over that. The speed limit is 50 miles from Highway 90 all the way back until you get to the bayou.

Although there was contradictory evidence as to the existence or non-existence of a “black zig-zag arrow on yellow background” sign along the side of the road at some point prior to reaching the curve, virtually every witness who was at the scene shortly before or after the accident testified there was no sign showing the change in road direction or other warning in place at the sharp point of the curve at the time they visited the scene of the accident.

The trial judge’s finding of fact are entitled to great weight and are not to be set aside unless he committed manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). There is ample evidence in this record to support the trial judge’s findings. Therefore, we cannot say he committed manifest error.

The State Trooper testified Ms. Coving-ton informed him that on the night of the accident she and Mr. Guidroz were arguing and the car went off the road because they were going too fast. Ms. Covington, however, denied she made such a statement. There is no other evidence which might be considered as indicative of negligence on the part of Ms. Covington. Therefore, we also conclude the trial judge was correct in finding Ms. Covington free of negligence.

After carefully reviewing the medical evidence, we agree with the trial judge’s evaluation of the injuries sustained by Ms. Covington. The trial judge has wide discretion in determining the amount of damages. His findings are entitled to great weight and will not be disturbed unless there is a clear abuse of his discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). We cannot say he abused his discretion in awarding $10,000.00 in specials and $50,-000.00 in general damages for the injuries sustained by Ms. Covington.

Accordingly, the judgment of the trial court is affirmed. All costs of appeal to be borne by the defendant-appellant.

AFFIRMED.

      . Plaintiffs were dating at the time of the accident and were married shortly thereafter.


author: KLEES, Judge.

text:
    Stephen L. GUICE, III v. Terry M. GUICE.
    No. 12613.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Bettyanne L. Bussoff, Bussoff & Wald-rup, New Orleans, for plaintiff-appellant.
    Robert C. Lowe, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for defendant-appellee.
    Before REDMANN, GULOTTA and KLEES, JJ.
   KLEES, Judge.

Dr. Stephen L. Guice, III and Terry Morrow Guice were divorced in the State of North Carolina in 1977. As an incident to that divorce a separation agreement was executed and signed pursuant to North Carolina law in March of 1977 dealing with child support and related expenses.

In June, 1979 this agreement was recognized by the State of Louisiana and made enforceable in this state. The specific provisions of the agreement were adopted, the amount of child support increased to $350 per month, and visitation privileges were modified by consent of the parties.

Terry Morrow Guice later brought a rule to increase child support and Dr. Guice brought a rule to increase visitation privileges.

After evidence was taken on the issue of child support and increased visitation, the trial court ordered Dr. Guice to pay $1,050 per month in child support, and further ordered that the visitation privileges of Dr. Guice would be limited to five (5) weeks during the summer vacation and two (2) weeks during the Christmas or Easter season on a yearly alternating basis. Dr. Guice was also ordered to assume the financial responsibility for the transportation costs incurred in connection with the visitation and to provide Ms. Guice with two months advance notice when he intends to visit with the minor child during the summer vacation.

Dr. Guice appeals from this judgment. The issues presented in this appeal are whether the trial court abused its discretion in granting a substantial increase in the award of child support and whether the trial court erred in reducing the specific visitation outline in the consent judgment when a reduction was not sought.

The Louisiana jurisprudence establishes that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973); Johnson v. Johnson, 357 So.2d 69 ([La. App.] 4th Cir. 1978). This rule applies to child support awards as well as alimony awards. Laird v. Laird, 363 So.2d 244 ([La.App.] 4th Cir. 1978); Gennaro v. Gennaro, 306 So.2d 756 ([La.App.] 4th Cir. 1975). The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. Bernhardt, supra. The party requesting a modification of a support award bears the burden of proving a change in the financial condition of one of the parties. Cole v. Cole, 338 So.2d 152 ([La.App.] 2nd Cir. 1976); Rachal v. Rachal, 250 So.2d 560 ([La.App.] 1st Cir. 1971). Finally, the jurisprudence clearly establishes the rule that an award of alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Nicolle v. Nicolle, 308 So.2d 377 ([La.App.] 4th Cir. 1975); Fakouri v. Perkins, 322 So.2d 401 ([La.App.] 3rd Cir. 1975).
In considering the child support award, LSA-C.C. Art. 227 establishes that both parents have the obligation of supporting, educating, and maintaining their children. Alimony awarded in fulfillment of this obligation must be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. Cowen v. Cowen, 375 So.2d 118 ([La.App.] 3d Cir. 1979). Moreover Ducote v. Ducote, 339 So.2d 835 (La.1976) establishes that “ * * * if the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit.” Also see Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953). Howell v. Howell, 891 So.2d 1304 (La.App. 4th Cir. 1980)

In the present case it is argued by appellant that the trial judge based the increase on the change in circumstances from the original settlement of March, 1977, rather than the date of the last award as decreed in June, 1979. However, this, in and of itself, does not suggest an abuse of discretion, particularly since the evidence presented to the court reflects that the needs of the child have increased and Dr. Guice is more than capable of providing $1,050.00 per month for the support of his minor daughter. Wilmot v. Wilmot, supra.

Such action would also be in line with Article VIII, paragraph three of the separation agreement which has been recognized in these proceedings:

“The parties shall, on an annual basis, review the provisions for child support contained herein and make such adjustments as are reasonable, giving due consideration to the needs of the child and the economic ability of the husband at any time.”

The testimony and the documentary evidence disclosed that the expenses for the support of the seven year old child have increased since the consent judgment of June, 1979.

The testimony and the documentary evidence also revealed that Dr. Guice’s salary has increased by more than $13,000 since the consent judgment. Accordingly, we find no abuse of discretion on the part of the trial court.

Dr. Guice asked for an increase in visitation. Mrs. Guice objected to any increase and asked for a two month notice concerning the summer visitation. Nowhere in the record or in the testimony is there any request for a reduction in the visitation privileges set out in the settlement agreement.

The appellant cites Broomfield v. Broomfield, 283 So.2d 839 (La.App. 2nd Cir. 1973) for the proposition that it is improper for the court to consider matters not at issue before the court. The appellee argues that Broomfield is distinguishable from the present case because in Broomfield the court awarded child support payments when support was never an issue in any sense whereas in the present case the issue of visitation privileges, albeit a request for an increase, was at least an issue before the Court and as such was within the power of the Court to increase or decrease with the best interest of the child in mind.

Article 862 of the Code of Civil Procedures states that except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleading and the latter contain no prayer for general and equitable relief.

If the testimony of Mrs. Guice had contained any objection to the visitation privileges set forth in the settlement agreement Article 862 might allow for a reduction in visitation privileges despite her failure to state such a claim in her pleadings. However, the only objection that can be inferred from her testimony is that she did not want the privileges to be enlarged beyond that in the agreement and she desired a two month notice period during the summer vacation. Accordingly, the Court went beyond its authority in reducing the visitation privileges below that as agreed to by the parties in the settlement agreement.

For the foregoing reasons the judgment appealed from is amended to restore the visitation rights of Dr. Guice to his minor daughter, Elizabeth T. Guice, for six weeks during the summer vacation. In all other respects the judgment is affirmed. Costs of this appeal are to be divided equally between the parties.

AMENDED AND AFFIRMED.