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    STATE of Louisiana et al. v. WILCO CONSTRUCTION CO., INC. et al.
    No. 11490.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      State of Louisiana Department of Justice, William J. Guste, Jr., Atty. Gen., Robert E. Redmann, Stephen J. Caire, Asst. Attys. Gen., New Orleans, for plaintiffs-appellees.
    Dodge, Friend, Wilson & Spedale, Douglas S. Draper, Gordon F. Wilson, Jr., New Orleans, for defendants-appellants Wilco Const. Co., Inc. and St. Paul Fire and Marine Ins. Co.
    Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for defendants-appellants Register & Cummings and Associates, Architects.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   GULOTTA, Judge.

The State of Louisiana, through its Capital Outlay Budget Board, brought this action against Wilco Construction Co. (general contractor), St. Paul Fire and Marine Insurance Co. (contractor’s surety), and Register and Cummings & Associates Architects, for specific performance and damages resulting from defects in the design and construction of additions to the Orleans Area Vocational Technical School, New Orleans, Louisiana. The matter was referred to a commissioner for hearing and the trial court, after review of his report, awarded the State $20,121.00 against the contractor and its surety, in solido, for various construction defects attributable solely to the contractor, $153,-754.00 against the architects for certain design defects, and $4,883.00 against all defendants, in solido, for defects attributable to both the contractor and the architects.

Appealing, the surety contends that it is entitled to a discharge from the judgment to the extent of $10,000.00 because the State, having withheld $15,000.00 of the contract price to insure completion of the defectively constructed roof, prematurely made a $10,000.00 final payment to the contractor without notifying the surety or safeguarding that the contractor would make the promised roof repairs. The architects, also appealing, contend that they should be held liable for only the cost of repairing the defectively designed east and west walls of the building instead of the cost of demolishing and replacing them as awarded by the trial court. In answer to these appeals, however, the State significantly expands the scope of our review by specifying nine alleged errors in the judgment. Before turning to the merits of these contentions, however, a brief chronology is in order.

A contract between the Capital Outlay Budget Board and Register and Cummings, the defendant architects, was signed on November 20,1969 and the architects’ fee was set at 6.25% of the contract price. The contract between the Board and Wilco Construction Co. was signed on May 5,1971 for a price of $428,000.00. According to the original agreement, the contractor was to begin work on May 20,1971 and the project was set for completion on January 24, 1972. The State approved various change orders, however, and a new completion date was set for January 20, 1973. After inspecting the work, the architects informed the State on January 24, 1973 that the construction was “substantially complete” in accordance with the contract and ready for occupancy. At that time, the State retained over $40,-000.00 of the contract price. On February 15, 1973, the State informed the contractor that the project had been accepted as complete with the exception of a brief punch list. In March, 1973, a portion of the roof was blown off by a storm. The State made temporary roof repairs in April, 1973, and in May State officials met and corresponded with the contractor and the architect to discuss the roof problem and other deficiencies in the structure. On May 30, 1973, after the contractor’s request for final payment, the architects proposed that $15,-000.00 be retained to cover roof repairs and other deficiencies in the construction. Shortly thereafter the State made final payment to the contractor except for this $15,000.00 retainage. The State claims that it occupied the building on October 1, 1973. On November 16, 1973 another $10,000.00 payment was made to the contractor upon its promise to repair the roof. The contractor made no such repairs, however, and the State filed suit against it and the architects on May 3,1974. Roof repairs were made in October, 1976 at the State’s expense. The State continued to occupy the building until June 10, 1977, when the City of New Orleans found it “in serious structural condition” and recommended that it be “evacuated” immediately.

PRO TANTO DISCHARGE OF SURETY

We consider first the surety’s contention that because $10,000.00 was released prematurely to the contractor without notice to the surety, it should be exonerated from liability for that part of the judgment rendered against the contractor. In support of its argument, the surety cites LSA-C.C. Art. 3061, and private works construction cases holding that the premature release of retainage by an owner without safeguards insuring performance operates as a release to the surety pro tanto. We agree.

The record indicates that on November 16, 1973 the state released the $10,-000.00 payment to the contractor without notifying the architect or the surety. The State’s then chief engineer, Fred Bell, Jr., whose job was to examine state projects to make sure the work was properly done, testified that he had released the $10,000.00 upon the contractor’s letter stating that it would install a blown-off section of the roof, repair blisters in the roof surface, and work with pitch pockets to bring the roof to contract specifications. This witness testified that he had not contacted the architect or the surety before release of the $10,-000.00 and did not know if the surety had any knowledge of the payment. Bell testified that he had felt that retaining the final $5,000.00 of the contract price would cover the work required of the general contractor. As the evidence indicates, however, the entire roof must be replaced at a cost of $13,500.00. Accordingly, we conclude the retainage was released without notice to the surety and that this oversight has resulted in prejudice to it. We believe that it is precisely this situation that is contemplated by the codal article and the cited jurisprudence. Accordingly, we conclude that the surety is entitled to a $10,000.00 release from its ultimate liability to the State.

In so holding, we reject the State’s contention that LSA-R.S. 38:2241, which provides in part:

“No modification, omission, additions in or to the terms of the contract, in the plans or specifications or in the manner and mode of payment shall in any manner affect the obligation of the surety.”

considerably broadens in public works contracts, the scope of a surety’s responsibility to such an extent that the surety would be liable even though the contract had been modified without the surety’s consent. We are of the view that the cited language of the revised statute dealing with public works contracts contemplates the surety’s liability to third parties to the building contract, such as laborers, material men and sub-contractors, and not liability of the surety to the owner under the circumstances of the instant case. As pointed out by counsel for the surety, the statutory interpretation offered by the state and subscribed to by the commissioner, would effectively make LSA-C.C. Art. 3061 nugatory and would strip protection from the surety when the owner acts to the surety’s prejudice without its knowledge. We do not think the Legislature intended such a result.

Furthermore, the contract between the State and the contractor provides that the State shall retain 10% of each progress payment and that payments are to be based upon completed work in progress rather than work to be performed. Moreover, the specifications for the project provide that when objectionable grounds are removed, payments shall be made for amounts withheld. The objectionable grounds (the roof repair and other defects) were not removed but only promised to be removed when the premature $10,000.00 payment was made to the contractor. Under these circumstances we conclude the surety is entitled to a pro tanto release in the amount of the retain-age prematurely paid to the contractor. The contractual provision that alterations in the agreement shall not release the surety from liability has no effect as between the State and the surety under our circumstances, and does not preclude the release provided by law. See Fort Worth Independent School District v. Aetna, 48 F.2d 1 (5th Cir. 1932); Fidelity and Deposit Company of Maryland v. Claiborne Parish School Board, 35 F.2d 376 (5th Cir. 1929); 17 Am. Jur.2d, Contractor’s Bonds, § 103.

EAST AND WEST WALLS

The Commissioner awarded $148,568.00 for the cost of replacing the east and west walls. The defendant architects contend, however, that the award is erroneous since the walls could be repaired and need not be entirely demolished and replaced. According to the architects, an adequate repair would cost $39,206.00, as estimated by their experts. Citing several established cases as authority, the architects argue the repair cost is the proper measure of damages. The architects claim that the State has not met its burden of proving that replacement is necessary since the State’s experts admitted (under cross examination) that the east and west walls of the structure were salvageable and since the State did not introduce any testimony concerning the cost of repair. Only in those cases where the object cannot be adequately repaired or the cost of repair exceeds the value of the object damaged, the architects argue, can the State be entitled to the cost of replacement.

While we do not quarrel with the authorities cited by the architect, we conclude that they do not apply to our case since the record supports the Commissioner’s finding that the east and west walls are irremediably defective.

The east and west weight-bearing masonry walls of the building are 165 feet long. The defendant architects concede that the walls are defectively designed in that the vertical forces bearing down on them are transferred to the narrow “piers” or spaces between the windows of the structure. These piers of concrete block are overstressed far in excess of the allowable limits in the New Orleans Building Code. It is also undisputed that the walls do not meet code requirements as to horizontal forces or “wind load”.

At trial, two experts presented remedial solutions to the design problem of the walls. H. J. Bergeron, Jr., an expert architectural engineer called by the surety, suggested filling the “cells” or open spaces of the concrete blocks to have them act as columns and installing steel tubes or “stub” columns in the windows in order to distribute the vertical load. He stated that his proposal was not a final design but “an idea.” Another expert, Donald C. Makofsky, a civil engineer called by the defendant architects, proposed inserts to the windows that would be jacked into place and would carry the forces down the wall. According to this expert, in this way the vertical over-load would be reduced to acceptable limits. He would reduce the horizontal “wind load” by designing a steel tie frame of wall braces that would allow the building to withstand horizontal forces. Makofsky stated that his solution was satisfactory from an engineering standpoint, but would not certify his proposal as complying with the New Orleans Building Code. He also indicated his proposal was a “general idea” and that it would be necessary that a design team be engaged to work out the details before a contractor could implement them.

The State’s experts, Frank J. Dalia and Ashby T. Gibbons, Jr., rejected the proposed repair solutions. Dalia, a consulting engineer, testified that neither proposal individually nor a combination of the two would bring the walls into conformity with the New Orleans Building Code and that the existing forces would exceed by 15% to 25% the allowable limits. This witness conceded on cross examination, however, that the walls could be salvaged. He stated that he could explore an extension of the two proposed solutions, especially Makofsky’s, and that other possibilities existed. He had no idea what a remedial solution would cost.

Gibbons, the State’s other expert, also felt that the proposed solutions would not provide safety or conform the walls to code requirements, but noted that Makofsky’s solution was adequate to take care of the wind load factor only. Concerning Dalia’s comments on the extension of Makofsky’s solution, Gibbons noted that care would have to be taken in detailing it. He observed that although a remedial solution is possible, it will not be simple to make an “under-designed” wall conform in every way to the building code. He could not answer if complicated fixing of the present walls would be cheaper than tearing them down. Furthermore, Gibbons stated that although he had been asked about repairing the walls, he had refused to come up with the cost of any remedy short of tearing the walls down because he would have had to consider a number of factors and every aspect of the building for solution. He remarked that he could not do such a thing without receiving compensation and being asked to “redesign” the building.

Well settled is the rule that expert testimony is to be weighed by the trier of fact like any other non-expert testimony. McCarstle v. McCarstle, 356 So.2d 491 (La.App. 1st Cir., 1977); Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir., 1979), writ denied, 380 So.2d 102 (La.1980). Where the testimony of expert witnesses differs, it is largely a matter of fact for the trier of fact to determine the most credible evidence. St. Pierre v. Gabel, 351 So.2d 821 (La.App. 1st Cir. 1977). The purpose of expert testimony is to assist the court in making factual determinations and the opinions of experts are not conclusive, but are to be weighed as is other evidence. Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La.App. 4th Cir. 1967), writ refused, 251 La. 399, 204 So.2d 577 (1967).

The structural problems presented by the defective design of the east and west walls are not easily solved. The Commissioner presided over a “battle of the experts” and we cannot say he was clearly wrong in rejecting the solutions proposed by Berger-on and Makofsky and relying on the opinions of Dalia and Gibbons. Although these latter experts admitted the possibility of a remedy short of demolishing and rebuilding the walls, they both envisioned great difficulties in any possible solution. A fair reading of Gibbons’ comments is that a possible solution involves redesign of the entire building. Even Makofsky and Ber-geron’s solutions involved “design” of the walls. A reasonable inference may be drawn from Gibbons’ testimony that “repair” of these walls, even if theoretically possible, is not practical in this case.

Although the cases cited by the architects speak of the cost of repair as the measure of damages, such measure is not adequate in our case. It must be borne in mind that the defect in these walls is one of design and the so-called “repair” of this “under-designed” wall affects the design of the entire building. None of the cited cases involves redesign of the magnitude called for in our case. As stated in Graeme Spring & Brake Service v. De Felice, 98 So.2d 314 (Orl.App., 1957), the word “repair” contemplates “an existing structure or thing that has become imperfect, and means to supply in the original existing structure that which is lost or destroyed and thereby restore it to the condition in which it originally existed as near as may be.” Ours is not a case where some component of an adequately designed structure has been left out or inadequately installed, or where an improper design is susceptible to a reasonably workable remedy. The “fix” or “repair” in our case involves a significant design change. Even accepting the fix as suggested by Makofsky and Ber-geron, the weight-bearing load would be substantially in excess of the acceptable maximum limits as allowed in the building code of the City of New Orleans. The concern is one of safety and it is of no moment that state projects are not subject to local municipal building code requirements. Accordingly, we cannot say the Commissioner’s conclusion that the walls must be replaced rather than repaired is clearly wrong.

ERROR IN COMPUTING COST OF REPLACING EAST AND WEST WALLS

In computing the cost of demolishing and replacing the east and west walls, the Commissioner relied on estimates prepared by the State’s expert, James R. Smith, whose figures for various aspects of the demolition and reconstruction of various parts of the building were included in his report introduced into evidence. Some of Smith’s figures were accepted at 100% since they related entirely to the east and west walls. Other figures in the exhibit were taken at 74% of their value since the total figures included demolition of all four walls and required reduction to the square footage involved in the demolition of the two east and west weight-bearing walls.

Although the State does not argue with the Commissioner’s treatment of those figures in computing the award, it contends that he neglected to include Smith’s figures for “masonry equipment allowance”, construction and removal of “temporary walls”, “acoustical tile", and other expenses relating to plumbing, heating and electrical work required by the reconstruction of the walls.

We decline to amend the judgment to allow increases for masonry equipment allowance or temporary walls. There is no evidence in the record to indicate that the estimated cost of these items is related to the east and west walls. Accordingly, we cannot say the Commissioner erred in neglecting to include them in his assessment of damages. On the other hand, the Commissioner made allowance for removal of acoustics in connection with demolition of the walls, but no allowance for replacement of acoustical tile, a separate item also listed in Smith’s itemization. Also omitted by the Commissioner and the trial judge, were costs, as itemized by Smith in his testimony at trial, for plumbing, heating and electrical work. According to Smith, replacement of the exterior walls will require that light fixtures, ducts and plumbing be removed. We conclude that failure to include these costs for acoustical tile and the items related to the plumbing, heating and electrical work was error. Accordingly, an increase in the State’s award is warranted for these items as follows:

We conclude, therefore, that the award against the architect for replacement and reconstruction of the east and west walls should be increased by $16,453.00.

ARCHITECT’S FEES

In computing the award for replacement of the east and west walls of the building, the Commissioner allowed 6Vi% as an architectural fee for redesign of the wall. This percentage is the same as that specified in the original contract between the Capital Outlay Budget Board and the defendant contractor.

We agree with the State that the 6V4% allowance is contrary to the evidence presented. Lee Connell, the State’s expert, used an architect’s fee of 15% in estimating replacement costs in his report for various deficiencies in the building. In his testimony at trial, however, he conceded that fees are generally closer to 10%, but that the work presented by this case did not involve standard remodeling and deserved a higher fee. Stanley W. Muller, the surety’s architectural expert, testified that although an architectural fee for new work is about 6%, a reasonable fee to undertake the job that Connell called for in his report would be 10%. In light of this testimony, we conclude that an architect’s fee of 10% should have been applied in assessing the cost of remodeling and reconstructing this building.

The sub-total of the Commissioner’s computation of the cost to replace the east and west walls was $139,829.00. Because we have increased that amount by $16,453.00 to make allowances for the Commissioner’s error in computation, we arrive at a new sub-total of cost of replacement of $156,-282.00. We therefore compute the architect’s fee at 10% of this sub-total and arrive at the figure of $15,628.00 instead of the $8,739.00 award for architect’s fees allowed by the Commissioner. In short, we conclude that the award for the architect’s fee in connection with replacement of the east and west walls should be further increased by $6,889.00.

NORTH AND SOUTH WALLS

The non-weight-bearing north and south walls of the building are approximately fifty feet long. The north wall has no openings and the south wall has only one window. The Commissioner recommended no allowance for these walls, although he found that they had been defectively designed in lacking expansion joints to control cracking. He concluded that this design defect was not of sufficient import to require demolition of the walls. He further found that although the walls contained cracks, they were not greater than Vis of an inch and that an elastic membrane that had been installed between the concrete block and the exterior brick veneer could bridge such cracks in the masonry and still preserve the waterproof integrity of the building. He further found that there had been no showing that the “duro wall”, a horizontal joint reinforcement tying the brick veneer to the concrete block wall, had been improperly applied.

The State contends that the judgment was erroneous in disallowing the cost of demolishing and constructing the north and south walls. It argues that the duro wall has not been properly installed, that “through-wall” flashing has not been installed at all horizontal breaks in the north and south wall, that moisture was coming through the elastic membrane between the brick and the concrete, that serious cracks exist in the north and south walls, and that the walls, as designed, do not meet the standards of practice concerning wind load.

Our examination of the record leads us to conclude that the Commissioner’s disallowance of cost for demolishing and reconstructing the north and south walls in their entirety is supported by the testimony of defendants’ experts. We further conclude, however, that some allowance for a remedial solution to the wind load problems should have been made.

Concerning the horizontal joint reinforcement known as duro wall, Lee Connell, the State’s expert, was of the opinion that this material had not been properly installed. He reached his opinion after selectively probing for the reinforcement in the south wall with a masonry drill and finding that the bit did not strike the reinforcement as would be expected in a proper installation. He did not recall making any probes in the north wall. Connell’s method of analysis was disputed, however, by L. D. Oliver, the surety’s expert, who said that such probing was not a proper means of determining the existence of the duro wall. He was of the opinion that it was installed. Given this conflict in the testimony, we cannot say that the Commissioner erred in accepting Oliver’s testimony concerning this aspect of the construction.

“Through wall” flashing and an elastic waterproofing membrane over the masonry block were discussed by several experts. Connell cited the problem of a lack of through wall flashing as impairing the weather tightness of the building. He indicated that the plans show flashing only on the first and second floors at entry port holes, that the window detail shows “head” flashing over the windows, and that flashing was not specifically required elsewhere in the plans. Nevertheless, he felt that a provision in the specifications that sheet metal should be provided where indicated at all other places required to prevent entry of water should be interpreted to mean that flashing was required in other places than those indicated in the plans. Stanley Muller, an architectural engineer called by the State, indicated that through wall flashing can be metal or plastic or a nylon membrane and that flashing is on top of doors and windows. He indicated that the elastic backup installed between the masonry block and the brick veneer could serve the same purpose as through wall flashing and he saw nothing in the plans requiring that through wall flashing be installed.

Richard Smith, the defendant architect, testified that he did not think through wall flashing was required by the plans and specifications and that the elastic bond coating performed the same function. Oliver, the surety’s expert, testified that through wall flashing was not required since the membrane flashing was comparable and performed the same function. Joseph T. Fulco, the architects’ expert, testified that waterproofing elastic takes the place of through wall flashing.

In light of this testimony, the Commissioner could conclude that through wall flashing was not required. Furthermore, since the north and south walls have only one opening, any flashing requirement concerning windows and doors was virtually irrelevant. Accordingly, we find no error with the trial court’s conclusion that no problem existed regarding through wall flashing in the north and south walls.

Although conceding the existence of the elastic backup in the north and south walls, the State contends that the backing was improperly applied and that water is entering the building through the wall. Connell testified that he had removed brick from the east and west walls and had found voids in the elastic backing causing it to malfunction. It was his opinion that water was coming from the outside through the elastic backup and down the inside of the south wall. He did not remove bricks at all locations where there was cracking on the walls, however, and did not see where the elastic backup was unable to withstand such cracks.

On the other hand, Edmon Mapp, an expert whose company had applied the elastic waterproofing to the walls in question, stated that the application had been done in a workmanlike manner according to the specifications for damp proofing the concrete block. To his knowledge, there had been no problem with the surface of the masonry when the elastic was applied, although he stated that a cracking wall could damage the elastic backing and destroy its effectiveness if the cracks exceeded Vis" in width. Gibbons, the State’s expert, testified that there were cracks up to Vis" in width and that, in his opinion, the building was going to continue to move.

Although Frank J. Dalia, another expert, found moisture in the north wall, Fulco, the architects’ expert, testified that there were only minute cracks in the north wall and saw no evidence of moisture there. He felt that the south wall, although cracked, was structurally sound and noted further that cracking may have resulted when water came in through the exposed roof deck and froze. Fulco stated that the elastic backing could expand a Vs" or Vi" crack and not break.

In resolving these differences in expert testimony, the Commissioner was justified in concluding that the State had. failed to prove that moisture inside the building had resulted from malfunctioning in the elastic membrane. The storm damaged roof and water on the balcony are plausible reasons for the moisture problem.

Gibbons, the State’s expert, was of the opinion that cracking of the north and south walls had resulted from a failure to include expansion control joints. Although he stated that it was still feasible to add control joints to the existing wall, there is no evidence in the record to indicate the cost of these additions. Since the cracks do not affect the structural soundness of the building and the evidence supports a conclusion that they have not damaged the elastic membrane, we cannot say the Commissioner erred in failing to require demolition and replacement of the north and south walls.

Gibbons further testified that the walls of the existing structure do not meet the wind load requirements of the New Orleans Building Code. He noted, however, that Makofsky’s proposed solution of interi- or support or “wind beams” would solve the wind load deficiency. In view of this undisputed testimony, we are of the opinion that the Commissioner should have made an allowance for correction of the wind load problem on the north and south walls. Arthur L. Dahlman, an expert contractor and estimator engaged by the defendant architects, testified that it would cost $12,508.00 to install 56 wind beams for the four walls. Makofsky stated that 16 wind beams would be necessary to brace the north and south walls. Accordingly, we calculate the cost of each wind beam to be $223.36. We conclude, therefore, that the State is entitled to an increase against the architects of $3,573.76 as the cost to install these wind beams on the north and south walls.

SUBSTITUTION OF PAINTED STEEL FOR GALVANIZED STEEL

The Commissioner noted that the plans and specifications called for handrailings to be made out of galvanized steel, but that a substitution to painted steel was made. In view of evidence that there was rust at the joining surfaces of the handrailings and that the rails were too high, the court allowed remedial work at a cost of $1,540.00, attributable to both the architect and the contractor, to adjust the height of the rails, clean the sleeves, and apply a coating to preserve the material for an extended time. The State contends, however, that the allowance of the substitution of materials and the remedial work by the trial court is arbitrary. According to the State, the contract provided for galvanized handrails and stairs, an unauthorized substitution was made, and the State is entitled to recover the $11,553.00 demolition and replacement cost.

Although the evidence is somewhat conflicting, the testimony of the experts clearly indicates that galvanized steel is superior to painted black steel in resisting rust. However, Roger J. Bligh, an employee of the sub-contractor for steel works on the construction job, testified that painted handrails should last as long as the building. This witness stated that the original galvanized specifications were changed to black steel since the configuration of the stairs required field welding of the galvanized pipe and might have impaired the integrity of the galvanization. He estimated a $100.00 to $250.00 difference in price between painted and galvanized handrails. Under these circumstances, we cannot say that the Commissioner erred in allowing remedial work to eliminate the rust problem rather than replacing all the handrails. Nevertheless, because the State paid for galvanized rails, but did not receive them, we conclude that it is entitled to a $250.00 credit payable by the contractor.

HARDWARE

The court made no allowance or mention of various hardware deficiencies, which included missing mutes (small rubber discs on doors), door stops and hinges. Connell, the State’s expert, estimated their replacement cost at $4,802.00. Arthur L. Dahlman, the architect’s expert contractor and estimator, assessed it at $2,566.00. Although various items of hardware were missing or not working properly, we find no error in the trial court’s failure to award the State a hardware allowance.

It is well settled that where an owner proves the existence of defects or omissions and the cost of repairing them, he is nevertheless barred from recovering those costs if he accepted the work despite the patent defects or imperfections discoverable upon reasonable inspection. Despite acceptance, however, an owner may recover for defects not readily discoverable by ordinary inspection or for defects that manifest themselves subsequent to the acceptance or for defects that are reasonably excluded from the terms of the acceptance. Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4th Cir., 1969); Justiss-Mears Oil Company v. Pennington, 132 So.2d 700 (La.App. 1st Cir. 1961).

Because the State failed to discover the hardware defects prior to final acceptance, there exists no entitlement to a hardware allowance. Dahlman, the architects’ expert, testified that hardware is “caught” on a final inspection of the building, presumably before final acceptance. Connell also indicated that hardware is typically one of those things noted on the final inspection. Unfortunately, in our case the State accepted the building in February, 1973, subject to a brief punch list that did not include hardware, except for a notation to “repair door closer” in one specified room. A May 18,1973 letter from the architects to the State indicates that some “finish” hardware items “particularly butts and hinges do not appear to be those specified.” Obviously, the hardware deficiencies were not caught in our case until long after final acceptance. Under these circumstances, the State is barred from recovery.

TEMPORARY ROOF REPAIRS

The trial court awarded $13,500.00 against the contractor for the cost of removing and replacing the roof with remedial work necessary to fasten flashing around the perimeter of the roof, but made no mention of, or allowance for, expense incurred by the State in making temporary repairs to the roof prior to trial. He further gave a $5,000.00 credit to the contractor for the amount of the purchase price retained by the State.

The State argues that the contractor should not be allowed to receive the $5,000.00 credit since substantial performance has not been proven; and that it is entitled additionally to $2,659.00 for the cost of temporary roof repairs and also an award of $3,467.00 for the cost of demolishing the existing roof.

At the outset, we reject the State’s argument concerning the credit in favor of the contractor. It is clear that $5,000.00 of the contract price was withheld by the State and that the contractor substantially performed the work. Admittedly, the record indicates that such performance was deficient in several respects, but it is also clear that the State accepted the building as substantially complete, paid the contractor all but a fraction of the total contract price, and occupied the building until it was vacated because of a design defect. Under such circumstances, we cannot say that the contractor must be denied credit in the amount of the retainage.

We likewise find no merit to the State’s claim for additional costs of roof demolition including removal of downspouts, gutters, gravel stop, roofing and backing. The State’s expert, Connell, estimated the cost of replacing the built-up roofing and sheet metal at $13,962.00. This figure included the cost of removing the roofing, the gutters, and the downspouts. The trial court’s award of $13,500.00 reasonably approximates Connell’s estimate of $13,962.00 which includes the architect’s fee. Accordingly, we conclude the State is not entitled to any additional demolition costs.

We are of the opinion, however, that the State is entitled to an increase of $2,659.00 for its expense in October, 1976 in repairing a section of the roof blown off in March, 1973. Connell testified that the roof came apart because it was improperly nailed. Donald Cook, district manager of a roofing manufacturer, testified that the roof was not tied down as tight as it should have been and that the lack of nails may have had something to do with its raising in the storm. Stanley Muller, another of the State’s experts, testified the probability of the lifting of the corner of the roof was high since the gravel guard was nailed to the light-weight concrete. Furthermore, the repair invoice supporting the State’s expenditure of $2,659.00 for the repair is part of the record and the roofer who made these repairs testified at trial. Accordingly, we conclude that the damage to the roof resulted from the contractor’s defective workmanship and that the cost of repair was proved in the case. The State is entitled to an additional increase in the sum of $2,659.00. This amount is chargeable against the contractor.

CHAIR CARRIERS IN RESTROOMS

As designed, the lavatories in the bathrooms of the building were wall mounted rather than being installed with “chair carriers”, metal assemblies hinged on the wall to mount plumbing fixtures. Because fixtures mounted in chair carriers tend to be more secure and because a number of installed lavatories had been broken or pulled loose from the walls by students, the State contends that the architects were at fault in not designing chair carriers into the structure instead of using wall mount brackets unsuitable for the high-abuse school structure. The State argues it should receive a $5,937.00 award against the architect. We disagree.

Richard Smith of the defendant architects testified that a school building does not ordinarily require the added secure mounts accomplished by the use of chair carriers. He indicated that chair carriers would involve a needless expenditure and a greater space. L. D. Oliver, the surety’s expert, testified that acceptable design procedure does not require chair carriers be used for lavatories. He stated that he possibly would have used chair carriers had he designed the building, but may not have if it were too expensive. Joseph T. Fulco, the architects’ expert, also indicated that wall-hung lavatories are acceptable in schools. Joseph D. Savwoir, assistant director of the school, indicated that lavatories fastened with wall brackets had been broken by students in other buildings in the school. In view of this testimony, we cannot say the trial court erred in failing to find the absence of chair carriers a design defect.

LIQUIDATED DAMAGES

No award was made to the State for liquidated damages. The agreement between the State and the contractor relating to liquidated damages provides:

“If the work is not completed in every respect within the time specified for completion, or within the time as it may be extended as provided in the specifications, it is distinctly understood and agreed that there shall be due the Owner by the Contractor, as liquidated damages, the sum of $200.00 per day for each and every day after the date fixed for the completion of the work that the said work shall remain unfinished; .... ”

The State argues that it is entitled to $14,-800.00 in liquidated damages for seventy-four days extension for completion of the construction that were allegedly granted “in error” and $51,000.00 for two-hundred-fifty-five days from February 19, 1973 (the date the State accepted the project as being completed upon recommendation of the architect, subject to the punch list) to October 1, 1973 (the date the State allegedly occupied the building.) According to the State, although it had accepted the project as complete, it discovered deficiencies in the roof and was justified in not taking occupancy until October 1st.

At the outset, we reject the argument concerning the time extensions allegedly granted in error. Although the State argues that seventy-four extra days for completion of the contract were granted in error, no testimony or evidence was introduced to prove the nature of this error. Erroneous extensions are discussed in Con-nell’s report and the defendant architects’ inspection reports were proffered to show that some of the change orders were issued in error, but there is no explanation why the State, despite these alleged errors, still signed the change orders extending the completion date to January 20,1973. These change orders were introduced and we find no reason to dispute their validity.

Turning now to the State’s claim for liquidated damages from February to October, 1973, we find no merit to the State’s contention. Our courts have awarded damages for demurrage to an owner on a per diem basis from the time the building was to have been completed under the contract until the time the owner obtained possession of it where the building was not completed in substantial compliance with the contract when the contractor tendered it to the owner. Wilson v. Peak, 210 La. 969, 28 So.2d 677 (1946). Nevertheless, where a contractor has not completed the work called for in a building contract or where he has performed such work in a defective manner, but there has been substantial performance, the owner’s right to collect damages in the form of demurrage ends upon substantial performance and tender. Elite Homes, Inc. v. Herrmann, 242 So.2d 614 (La.App. 4th Cir. 1970), writ denied, 257 La. 984, 244 So.2d 857 (1971). The record supports a conclusion that the building had been “substantially” completed and was tendered and available for occupancy in January, 1973.

In a letter of January 24, 1973 from the architects to the director of the Capital Outlay Board, the architect confirmed that the contractor had in fact completed the work in accordance with the plans and that the construction was substantially complete on January 20, 1973 in accordance with the contract. The architect recommended acceptance of the project as “substantially complete ready for user occupancy.” A list of “clean-up items” that needed attention prior to final acceptance but did not hinder occupancy was attached to this letter.

On February 13, 1973 the Capital Outlay Budget Board by motion recommended that the project be accepted as complete and placed in the 45-day lien period, subject to the punch list. On February 15, 1973 the State wrote a letter to the contractor and informed him that the Board had accepted the project as complete and enclosed a Notice of Acceptance to be filed with the clerk of court. That notice was filed on February 19, 1973.

In March, 1973, a portion of the roof was blown off by a storm, but the State made temporary repairs in April, 1973. On April 3, 1973 the State sent a letter to the architect and listed ten building deficiencies as of March 23, 1973. These deficiencies included the absence of landfill, unlevel floors, water in the restrooms, water seepage into the ground floor of the building, rusting restroom doors, the absence of thresholds, water in the second-floor restrooms because of the roof leak, a broken mirror, leaking through an upstairs rear window, defective doors on the roof air condition and heating cabinets, and the roof damage caused by the storm.

A series of meetings and correspondence between the owner and the contractor ensued in an attempt to resolve these problems. On May 30,1973 the architect recommended to the State that it release the contractor’s final payment and retain $15,-000.00 in light of the roofing problems and various omissions subsequently discovered on the project. The State did in fact make a final payment to the contractor except for the $15,000.00 retention in June, 1973.

Under these circumstances, we cannot say that the building was not substantially complete by the extended contract date for completion. Although there were problems with the roof and certain other defects in the building, there was no awareness (in January and February, 1973) of the structural defects in the weight-bearing walls that ultimately led to the necessity to vacate the building. Moreover, the testimony is confusing as to the date the State actually occupied the building. Joseph D. Savwoir, assistant director of the vocational school at the time in question, initially testified that he had occupied the building in February, but later stated that he had moved into the building in October, 1973. Considering this evidence, we cannot say that the building was not substantially complete. The State accepted it as complete upon the architect’s recommendation. The State indeed could have occupied the building after acceptance. Under these circumstances we cannot say the trial judge erred in not awarding liquidated damages to the State.

DAMAGES FOR INCONVENIENCE AND LOSS OF USE

The building was vacated in June, 1977 after the City of New Orleans found structural defects and concluded the building should be no longer occupied. Claiming entitlement to damages for inconvenience caused by loss of use, the State argues that a proper measure of damages is $200.00 a day for a 180-day period.

Although we have been cited no authority for entitlement to damages for inconvenience in construction cases, our research indicates that a reasonable argument can be made suggesting entitlement to this item of damages. We do not pass on this question however, because of the State’s failure to establish the nature of the State’s inconvenience or the expenses occasioned by the loss of use. Confronted with this lack of proof, we cannot simply take the $200.00 per day liquidated damage figure in the contract between the State and the contractor and apply it as the measure of damages in a claim by the State against the architects. Accordingly, the State is not entitled to any award against the architects for damage resulting from inconvenience or loss of use of the structure.

RECAPITULATION

Recapitulating, we conclude that plaintiff is entitled to an increase in the $20,121.00 award against the contractor and its surety in an additional amount of $2,909.00, or a total award of $23,030.00. This increase is composed of the following items:

$ 250.00 - Credit payable to the State by the contractor for overpayment; substitution of painted steel for galvanized steel rails.

2,659.00 - Temporary roof repairs.

$2,909.00 - TOTAL

We hold, however, that the surety is entitled to be exonerated from the judgment against it to the extent of $10,000.00 as a result of the premature release of the re-tainage by the State.

Further, plaintiff is entitled to an increase in the $153,754.00 award against the architects in an additional sum of $26,-915.76, or a total of $180,669.76. This increase is for the following items:

$16,453.00 - Costs for replacing acoustical tile and expenses related to plumbing, heating and electrical work necessary to accommodate shoring in connection with rebuilding east and west walls.

6,889.00 - Use of 10% rather than 6.25% architect’s fee in calculating costs to rebuild east and west walls.

3,573.76 - Cost of installing “wind beams” on north and south walls.

$26,915.76 - TOTAL

DECREE

Consistent with the foregoing, we amend the judgment of the trial court as follows. The judgment in favor of the State of Louisiana and against Wilco Construction Co., Inc. and St. Paul Fire and Marine Insurance Co., in solido, is increased from $20,121.00 to $23,030.00, with interest from date of judicial demand until paid. The surety, St. Paul Fire and Marine Insurance Co., is exonerated from this award to the extent of $10,000.00.

The judgment in favor of the State of Louisiana and against Register and Cummings & Associates, Architects, is increased from $153,754.00 to $180,669.76, with interest from date of judicial demand until paid.

In all other respects, the judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The construction, labeled State Project 11-21-69, included two buildings. Only Building “A”, a two-story masonry structure with a brick veneer, is before us on this appeal. Building “B”, a metal structure, does not concern us.

      . The judgment against the contractor and its surety, includes the cost of cleaning the brick exterior of the building, filling voids in the concrete block wall, closing voids between interior walls and the ceiling in certain rooms, installing pipe flanges, a wall louver, stair treads, and a cover plate on the underside of the stairwell, performing remedial work on the ceiling of an exterior walkway, covering bent steel supports, repairing a bolt hole, applying a new roof, installing a damper, miscellaneous painting, and credits for a walkway not constructed and a window not installed. Although these items of damage total $25,121.00, the Commissioner recognized as a credit $5,000.00 of the contract price retained by the State after accepting the building.

      . The damages attributable to the architect include the cost of demolishing and reconstructing improperly designed east and west walls of the building and sloping an entranceway and second floor balcony walkway.

      . The judgment against all defendants, in soli-do, is for the cost of topping concrete sidewalks and a ground level walkway and adjusting the height of certain handrails.

      .Briefly stated, the errors specified by the State are: the court’s disallowance of claims for (1) the cost of demolishing and reconstructing the north and south walls, (2) the cost of replacing painted steel items that were specified to be galvanized, (3) the cost of installing proper hardware, (4) the cost of a temporary repair to the roof, (5) the cost of installation of chair carriers in the bathrooms, (6) liquidated damages, and (7) damages for inconvenience in the loss of the use of the building. The State also contends that the commissioner (8) erroneously calculated the architects’ liability as to the east and west walls and (9) used 6.25% as an architect’s fee in calculating such liability when the evidence clearly supported the award of a 10% architect’s fee in assessing that aspect of the damages.

      . LSA-C.C. Art. 3061 provides:
      “The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”

      . See Talbert v. Bounds & Allen, 123 So.2d 815 (La.App. 2nd Cir., 1960); Walters Air Condition. Co. v. Firemen’s Fund Ins. Co., 252 So.2d 919 (La.App. 2nd Cir., 1971); and Crescent City Construction Corp. v. Monteleone, 209 So.2d 311 (La.App. 2nd Cir., 1968).

      . Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir., 1974); Stream v. Le Jeune, 352 So.2d 714 (La.App. 3rd Cir., 1977); Davis v. Roberts, 194 So.2d 772 (La.App. 1st Cir., 1967).

      . The commissioner arrived at the .74 factor by reducing Smith’s figures in proportion to the square footage eliminated.

      . The trial court assessed the total cost to remove and replace the east and west walls at $115,371 to which he added figures for the contractor’s overhead, mark-up and bond premium to give a sub-total of $139,829. The architect’s fee of $8,739 (6>/<% of the subtotal) was added to give a grand total of $148,568 as the cost for demolishing and reconstructing the east and west wails.

      . The State claims damages for the 60-day period from June 10, 1977 (when the building was vacated) until the end of trial, and for an additional 120 days (the period of 3 to 4 months, as testified by the State’s contractor, that will be required to rebuild and repair the structure).

      . See LSA-C.C. arts. 1934(3), 2762, and 2769. See also, Jack v. Henry, 128 So.2d 62 (La.App. 1st Cir., 1961), which recognized that the owner of a residence was entitled to damages for inconvenience resulting from a contractor’s breach of the obligation to construct the residence in a workmanlike manner. See also, Co-operative C. Stor. Bldrs., Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La.App. 4th Cir., 1974).


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Mrs. Dawn L. TRAHANT, wife of Lee Fagan v. Larry Jack INGRAM.
    No. 11503.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Roccaforte & Rousselle, Leo W. Rousselle, New Orleans, for plaintiff-appellant.
    Wiley J. Beevers, Metairie, for defendant-appellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, Dawn L. Trahant, wife of Lee Fagan, appeals a judgment of the Twenty-fourth Judicial District Court for the Parish of Jefferson granting the exception of improper venue brought on behalf of the defendant, Larry Jack Ingram, and also ordering that the action be transferred to the Twenty-first Judicial District Court for the Parish of Tangipahoa.

On October 15, 1979, the plaintiff filed a petition in the Twenty-fourth Judicial District Court, Parish of Jefferson, seeking to recognize defendant as the natural father of her three children and also seeking custody and child support. Although the defendant was personally served in Jefferson Parish, he filed the declinatory exceptions of improper venue and lack of jurisdiction, alleging he was domiciled in the Parish of Tangipahoa, and further, that all issues in plaintiffs suit were already pending before the Twenty-first Judicial District Court, Parish of Tangipahoa, in connection with his disavowal of paternity action filed in said court on September 7, 1979.

On November 19,1979, a joint motion for continuance was filed by attorneys for both the plaintiff and the defendant, and it was ordered that the exceptions and merits of the matter be continued until January 15, 1980. On January 14, 1980, again on joint motion of attorneys for both the plaintiff and the defendant, the exceptions and merits of the action were continued until February 5, 1980.

In his reasons for judgment, the trial judge stated in part:

“The issue before this Court is whether the plaintiff’s petition to recognize natural father of children, for custody and support was filed in a court of proper venue and whether this Court had jurisdiction over the person of the defendant.
* * * * * *
“The law is clear that objections to improper venue are waived by making a general appearance, LSA-C.C.P., Arts. 925, 7, or else by the failure to raise such objections by a Declinatory Exception filed prior to Answer or to entry of preliminary default, Arts. 44, 928. The law is also clear that venue is not waivable in status matters, which includes divorce, separation and annulment of marriage. LSA-C.C.P., Art. 3941. By the terms of said Article 3941,
‘An action for an annulment of marriage, for a separation. from bed and board, or for divorce, shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.
The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.’
“Once venue of the trial court has attached in matrimonial litigation, it continues exclusively for alimony, custody, child support, etc. Dupuy v. Dupuy, 357 So.2d 23 (La.App. 3 Cir., 1978). In the instant case, the issues of custody and child support were decided by the 21st Judicial District Court for the Parish of Tangipahoa. Consequently, the Tangipa-hoa Court would have continuous jurisdiction to determine said issues, regardless of whether a general appearance was made in Jefferson Parish.
“As to whether the 24th Judicial District Court could determine the issue of whether defendant herein should be recognized as the natural father of the children, assuming arguendo that the 21st Judicial District Court did not have continuing jurisdiction over said matter, the Exception of Improper Venue should be maintained in that said petition is not a prayer for separation, divorce or annulment of judgment, as contemplated by said Article 3941. Consequently, the general venue rule of Article 42(1) of the Code of Civil Procedure would be applicable, and proper venue would rest in the parish of defendant’s domicile.
“In summary, the general appearance argument of plaintiff is, therefore, without merit for two reasons:
(1) The 21st Judicial District Court for the Parish of Tangipahoa has continuing jurisdiction over the issues of custody and child support; any judgment concerning said issues by this Court would be absolute nullities; and
(2) Assuming arguendo that the 21st Judicial District Court for the Parish of Tangipahoa does not have continuing jurisdiction to decide the issue of whether defendant herein should be recognized as the natural father of the children, the general venue rules would be applicable; thereby, the parish of defendant’s domicile would be the Court of proper venue. This venue has not been waived by the defendant, but rather, has been excepted to and is the matter at bar. The Exception of Improper Venue, therefore, must be maintained.
“The Court has the discretionary ability to either dismiss the said petition to recognize natural father, or to transfer it to a court of competent jurisdiction. In the interest of justice, this Court does transfer this matter to the parish of defendant’s domicile, the Parish of Tangipahoa.”

We find no error in the district court’s rationale. The court in Dupuy v. Dupuy, 357 So.2d 23, 25 (La.App. 3d Cir. 1978), stated:

“The case of Dupre v. Pelotto, 336 So.2d 329 (La.App. 1 Cir. 1976) (although denied on other grounds, the facts not being comparable to the instant situation) quotes the law to the same effect on page 331:
‘[1] Our review of the authorities reveal some confusion in this area as well as some seeming conflict. Nevertheless we find that Wright, Colby, Hopkins, and White, above, establish the rule that a court which renders judgment for alimony, custody or child support incident to an action for divorce, retains exclusive jurisdiction for the purpose of modifying such a decree.’ (Emphasis by this court)
“The case of Hopkins v. Hopkins, 300 So.2d 661 (La.App. 3 Cir. 1974) states the law on page 662 and I quote:
‘[2] We have no hesitancy in reaffirming the following rule: once the venue of the trial court has attached, it continues exclusively for the purpose of modifying the alimony or child support judgment. Caldwell v. Gilbert, 253 So.2d 639 (La.App. 3 Cir. 1971); White v. White, 272 So.2d 469 (La.App. 3 Cir. 1972).’
“In view of the evidence and the jurisprudence as shown hereinabove, we reverse the judgment of the District Court herein and order that this matter be dismissed. Costs of the appeal and in the District Court to be borne one-half by the plaintiff-appellee and one-half by the defendant-appellant.”

Nor do we agree with plaintiff’s argument that if the Tangipahoa court does not have continuing jurisdiction then the defendant submitted himself to the jurisdiction of the Jefferson court by his motions for continuance, constituting a general appearance. Although the court in Gulf South Research Institute v. Bramlet, 240 So.2d 421 (La.App. 3d Cir. 1970), held the defendant in that action had subjected himself to the court’s jurisdiction when he sought and obtained a continuance of the trial, that court also said at page 425:

“ * * * lsA-CCP Article 7 provides that except as otherwise provided therein, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than those five types of relief specified, which do not include a motion for continuance.
“In our original opinion we concluded that defendant’s ‘Motion for Continuance’ was a motion for an extension of time within which to plead, which did not constitute a general appearance under LSA-CCP Article 7. But the thrust of defendant’s ‘Motion for Continuance’ contemplated a readiness to join issue on the merits and an intent to file a reconven-tional demand. The motion was aimed solely at postponing the trial, not at denying jurisdiction. The courts have been reluctant to extend the exceptions provided in LSA-CCP Article 7. Defendant’s motion for time to formulate a more comprehensive answer and to file a reconven-tional demand waived his objections to jurisdiction and subjected Bramlet to the court’s jurisdiction.” (Emphasis ours.)

The present case is distinguishable in that the motions for continuance jointly made by attorneys for both parties also included a request to continue the hearings on the exceptions of improper venue and lack of jurisdiction.

For the reasons set forth herein the district court decision is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    Darlene SIMMONS v. Mrs. Louise BAUMGARTNER.
    No. 11508.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Oestreicher, Whalen & Rothschild, David W. Oestreicher, II, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, Michael K. Fitzpatrick, and Glenn B. Adams, New Orleans, for defendant-appellee.
    Before CHEHARDY, GARRISON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Darlene Simmons, instituted this suit against defendant, Louise Baum-gartner and State Farm Insurance Company for damages sustained in an intersec-tional collision. Defendant answered asserting that plaintiff was contributorily negligent and subsequently third partied the City of New Orleans alleging that it was negligent for failing to have traffic control devices at the intersection where the accident occurred. The City was dismissed on an exception of no cause of action before trial occurred and is not involved in this appeal. The trial judge found that plaintiff was contributorily negligent barring her recovery; from this holding, plaintiff appeals.

This matter involves an automobile collision which occurred at the corner of Valence and South Robertson Streets in the City of New Orleans on November 3, 1977 at approximately 7:00 a. m. This was an uncontrolled intersection formed by Valence, running in a north-south direction toward the river and South Robertson running in an east-west direction toward downtown New Orleans. Valence, the wider of the two streets was marked with a dashed center line and could easily accommodate two directional traffic; however, there was nothing to establish it as a favored street at the time of the accident.

Plaintiff, defendant and defendant’s daughter were the only witnesses to the accident. Of the three, only plaintiff and defendant testified at trial; the facts are relatively undisputed.

Plaintiff, Simmons, was traveling in an easterly direction on South Robertson. She testified that as she approached Valence Street at a speed of about 20-25 miles per hour, she slowed down to a rolling stop. She remembered looking to her left which offered an unobstructed view from about two car lengths from the beginning of the intersection, and seeing no vehicles, she proceeded a distance of about 19 feet 7 inches into the intersection at which time she was struck by Mrs. Baumgartner. During the first day of trial, plaintiff stated that as she looked to her left she could see a vehicle coming her way but far enough in the distance that she could safely make it across Valence. However, continuing her testimony during the second day of trial, she explained that upon revisiting the scene of the accident that morning she realized that the vehicle she saw to her left was actually a parked car, thus the first time she saw defendant’s vehicle was after she had proceeded into the intersection, seconds before the collision.

Defendant, Baumgartner, testified that she was traveling at approximately 20 miles per hour in a southerly direction on Valence Street. When she approached South Robertson she was looking straight ahead and made no attempt to slow down as she assumed she was on a favored street. She stated that the first time she was aware of plaintiff’s vehicle was when she saw a silver bumper out of the corner of her eye approaching from South Robertson Street and defendant’s car was, at that moment, by the second double house from the intersection. She testified she saw the vehicle was not going to stop, at which point she slammed on her brakes and turned the steering wheel hard left, trying to avoid, but slamming into, the plaintiff.

We are thus presented with a case where two motorists have approached an uncontrolled intersection at approximately the same time and speed, and the one approaching from the right looks in both directions and slowing, proceeds to enter the intersection and is struck by a motorist from her left who did not slow down. We must determine whether the motorist approaching from the right is guilty of contributory negligence for failure to observe the motorist on her left, who was within her vision, or whether she is free from negligence under the statute which accords her the right of way.

The testimony and evidence adduced at trial established that both plaintiff and defendant arrived at the Valence-South Robertson intersection at approximately the same instant. Both drivers were traveling within the speed limit, neither disobeying any traffic controls or regulations when the collision occurred at this unmarked intersection. Plaintiff, therefore, would have us follow LSA-R.S. 32:121 affording her the right of way as her vehicle approached from defendant’s right. However, in order to reverse the holding of the trial court and find in the plaintiff’s favor we must determine that Ms. Simmons was not negligent and a contributing cause of the accident for failing to see defendant’s vehicle approaching from the left.

One who is in charge of operating an automobile has a duty to look and observe, which never ceases; that which they can see, they must see and in legal contemplation they do see. Failure to see what they could have seen by the exercise of due diligence does not absolve from liability. McCandless v. Southern Bell Telephone & Tel. Co., 239 La. 983, 120 So.2d 501 (1960); Smith v. Borchers, 243 La. 746, 146 So.2d 793 (La.1962). Even when the motorist has the right of way, she is not relieved of the necessity of looking into the direction from which others may be expected to come, and where such care would have prevented the accident, she who fails to look or to keep a proper lookout cannot recover, even though the other party was grossly at fault. Martin v. Adams, 88 So.2d 476 (La.App. 2nd Cir. 1956); Smith v. Borchers, supra.

Plaintiff’s testimony, though contradictory on the point of what she saw when she looked to her left, was that she had a clear unobstructed view looking in a northerly direction up Valence. Based on her testimony that she slowed down, coming to a “rolling stop”, we must conclude that she had ample time to see and avoid defendant’s car.

Plaintiff argues that in addition to being a favored vehicle approaching from defendant’s right, she also entered the intersection prior to the defendant and thus preemption applies. The doctrine of preemption was explained by this Court in the case of Zito v. Kuhn, 309 So.2d 806 (La.App. 4th Cir. 1975). In order to rely on the doctrine of preemption a party must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. The doctrine contemplates the opportunity of clearing the intersection without obstructing the path of the other vehicle and entry into an intersection at the same time or just a fraction of a second ahead of the other vehicle does not create preemption. Zito v. Kuhn, supra, at p. 807.

Mary Jordan, plaintiff’s friend who was summoned to the accident just after it occurred, testified that the left back side of Darlene’s car was hit, which would support plaintiff’s story that she was almost completely through the intersection when the collision occurred. However, photographs introduced into evidence by plaintiff show damage to the left side of plaintiff’s car from the front bumper extending backwards almost to the rear wheel well, thus indicating that plaintiff did not have sufficient time to cross the intersection without requiring an emergency stop by defendant.

Further, we must bear in mind Mrs. Baumgartner’s testimony that she slammed on her brakes. In Hatfield v. Bernos, 182 So.2d 702 (La.App. 4th Cir. 1966), this Circuit qualified the law on preemption when we stated that even though the defendant’s vehicle had entered the intersection first, it was apparent that both vehicles would have entered the intersection at approximately the same time if the brakes of the plaintiff’s car had not been applied, thus defendant could not claim preemption. This reasoning was also applied in Becken v. Stonewall Insurance Company, 275 So.2d 470 (La. App. 2nd Cir. 1973) a.nd in Zito v. Kuhn, supra, where we said:

“Considering the relative speed of the vehicles and the braking and slowing action of the defendant, it would appear that these two vehicles entered the intersection at the same time.” 309 So.2d 806 at 807.

The evidence produced below fails to show that plaintiff entered the intersection sufficiently in advance of defendant’s car to permit her to cross without requiring an emergency stop by Mrs. Baumgartner’s vehicle, therefore, to apply the law of preemption would be improper here.

There is ample evidence in the record to support the finding of the trial judge that plaintiff was contributorily negligent in failing to see what she should have seen. Therefore, the trial judge was correct in finding that plaintiff’s contributory negligence barred recovery on her claim.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 32:121 provides: (a) when two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right, (b) the right of way rule declared in subsection (a) is modified at through highways and otherwise as hereinafter stated in this part.


author: BOUTALL, Judge.

text:
    Morris GASTINELL v. Thomas LOCKWOOD, Administrator, Kaiser Aluminum and Chemical Corporation.
    No. 11533.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    New Orleans Legal Assistance Corp., James W. Blackman, Marrero, for Morris Gastinell.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court affirming the decision rendered by the Board of Review for the Louisiana Department of Employment Security which held that the plaintiff was not entitled to unemployment benefits.

Morris Gastinell was employed by Kaiser Aluminum, Inc., (hereinafter referred to as Kaiser). He was discharged from his position on July 21, 1978 due to a series of unexcused absences from his employment. Thereafter, on August 29, 1978, Gastinell filed a claim for unemployment benefits with the State of Louisiana Department of Employment Security (hereinafter referred to as DES). One month later DES mailed a notice of Claim Determination to Kaiser indicating that Gastinell was entitled to receive unemployment benefits. From this initial determination, Kaiser appealed for review to an appeals referee of DES. A hearing was conducted after which the Appeals Referee reversed the initial determination and held that Gastinell was not entitled to unemployment benefits as the numerous absences amounted to misconduct, which is a permissible grounds for precluding unemployment benefits. From this decision the claimant appealed to the Board of Review of DES. This administrative body affirmed the decision of the appeals referee. Subsequently, Gastinell filed a petition for Judicial Review in Civil District Court in New Orleans. After reviewing the various pleadings and the record in the matter, the district court affirmed the previous decision of the Board of Review. From this judgment, Gastinell has appealed devolutively.

On appeal the issue before us is whether there is sufficient evidence in the record to support a finding that the claimant’s absences amounted to misconduct within the meaning of R.S. 23:1601(2) thereby resulting in a denial of unemployment benefits to the claimant.

The record reflects that Kaiser had an absentee control policy which was implemented so as to establish firm guidelines to be used in taking disciplinary action against employees who were excessively absent. The policy in effect at Kaiser is common among commercial operations of this size. Gastinell was familiar with this policy and its procedure as the record indicates that he has used it on numerous occasions in the past. Under this policy an absence is either excused or unexcused. Absences are excused when the employee furnishes notice to the employer in advance or furnishes reasons for the absence upon the employee’s return to work which are accepted by the employer. Conversely, an absence is unexcused when no notice is given or the reasons furnished upon return to work are not accepted. Excessive absences can result in a five day suspension, after which the employee may be discharged. Kaiser’s policy also provides for a leave of absence for sickness upon proper notice.

The evidence before us reveals that Gasti-nell began his employment with Kaiser on June 20, 1974. The claimant’s employment record indicates that he had a long history of absences up until the time of his termination on July 21, 1978. Prior to 1978, Gastinell has received several warnings from his employer regarding these absences including a 3 day and a 5 day suspension. For the first seven months of 1978, the claimant had 8 excused absences, 12 unexcused absences, and a leave of absence for 77 days. More specifically, Gastinell had a series of unexcused absences beginning from May 12, 1978 and running through May 16,1978. As a result, the claimant was given a 5 day suspension after which he was discharged on June 6, 1978. Gastinell filed a claim for unemployment benefits with DES which later became moot as he was reinstated by Kaiser on June 17, 1978. The claimant returned to work from June 17-18, 1978. On June 19, 1978 he suffered an illness and was given a 3 day leave of absence through June 22, 1978. Under the Kaiser absentee control policy, Gastinell was to either return to work on June 23, 1978 or give them notice as to his continued absence. Failure to comply with this procedure would result in the beginning of a period of unexcused absences. The employment records kept by Kaiser indicate that the claimant failed to comply with this procedure thereby beginning a period of unexcused absences.

The records further reflect that On June 30, 1978, a message was left by Kaiser personnel with Gastinell’s residence to inform him that his leave of absence had previously expired on June 22, 1978. Numerous attempts were made to contact him personally but to no avail. A 5 day suspension period was issued by Kaiser beginning July 14-18, after which Gastinell was discharged. Gastinell then filed his claim with DES for unemployment benefits.

R.S. 23:1601(2) provides that “An individual shall be disqualified for benefits: . .. (2) if the administrator finds that he has been discharged for misconduct connected with his employment ...” In Atkins v. Doyal, La.App., 274 So.2d 438, 440 (1st Cir. 1973), the court defined misconduct as, “. .. an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of standards of behavior which the employer has a right to expect of his employee; or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” Also see: Pilgram Manor Nursery Home, Inc. v. Gerace, La.App., 337 So.2d 660 (3d Cir. 1976). In a disqualification proceeding the employer has the burden of proving a misconduct by a preponderance of the evidence. Payne v. Antoine’s Restaurant, La.App., 217 So.2d 514, 517 (4th Cir. 1969); Dorsey v. Administrator, Louisiana Dept. Etc., La.App., 353 So.2d 363 (1st Cir. 1977).

The findings of fact made by the appeals referee of DES were identical to those previously indicated above. The only relevant fact in dispute concerns the failure of Gasti-nell to give notice to Kaiser following the expiration of his 3 day leave of absence on June 22, 1978. The claimant contends that he spoke with the medical department of Kaiser requesting an extension for his leave of absence. He further contends that this extension was granted. The employment records of Kaiser in evidence indicate that no such conversation was held nor was there any extension permitted. In viewing the contentions of Gastinell and the records of Kaiser, the appeals referee found as a fact that no notice was given to Kaiser on or after June 23,1978. Since no notice was given, Kaiser placed the claimant on a 5 day suspension, as per their absentee control policy, after which he was discharged. Based on the foregoing the appeals referee disqualified the claimant from unemployment benefits. The appeals referee gave sound reasons for his decision which includes the following:

“Absenteeism in itself does not necessarily substantiate a discharge with legal misconduct unless the absences are without color of excuse or for a frivolous or capricious reason. In this case, the employer had been lenient with the claimant, yet he continued to be absent without proper notification to the employer after being notified of a suspension. Under the circumstances, the document of discharge substantiates legal misconduct within the meaning of the Act.”

As previously indicated the decision of the appeals referee was affirmed by the Board of Review of DES. Under R.S. 23:1634 the findings of fact by the Board of Review are regarded as conclusive where they are supported by sufficient evidence. We conclude that the factual findings were supported by sufficient evidence and that Gastinell was properly disqualified. Therefore, we affirm the decision of the trial court.

Our decision is very similar to the one that we reached in White v. Gerace, La. App., 372 So.2d 756 (4th Cir. 1979) wherein an employee was disqualified for unemployment benefits based on a series of unexcused absences after which he was discharged in accordance with the employer’s absentee policy. These absences were sufficient grounds for misconduct within the meaning of R.S. 23:1601(2).

AFFIRMED.

      . It should be noted that we were faced with a similar question concerning the admissibility of employment records into evidence in White v. Gerace, La.App., 372 So.2d 756. We find that the circumstances with which the employment records were held admissible in White v. Ge-race, supra, are no different from the circumstances presented before us. Therefore, these records were properly admitted.


text:
    Mrs. Georgia Coburn WILLIAMS, Individually; and Mr. and Mrs. David A. Williams, Sr., for and on behalf of the minors, John David Williams, Jr., and Pamela Jean Williams; and Mrs. Linda Shurley, wife of Auguste Frey, Jerry Shurley, and Bob Shurley, Jr. v. William H. TRAWICK, Criterion Insurance Company, Electronic Services, Inc., Early American Insurance Company, and Maryland Casualty Company.
    No. 11537.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Leonard A. Radlauer, New Orleans, for Georgia Coburn Williams, plaintiff-appellant.
    Paletou & Butler, John H. Butler, II, New Orleans, for John D. Williams, Jr., and Pamela Jean Williams, plaintiffs-appellants.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Baton Rouge, Jesse S. Guillot, John E. Maher, Jr., New Orleans, for the Louisiana Dept, of Transportation and Development, defendant-appellee.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiffs Georgia Coburn Williams, John David Williams, Jr., and Pamela Jean Williams jointly appeal a district court decision in favor of defendant Louisiana Department of Transportation and Development, originally named the Louisiana Department of Highways, and against all plaintiffs, dismissing their suit as to that defendant at their cost.

John D. Williams, Sr., the husband of Georgia Williams, and the father of John and Pamela Williams, was involved in a two-car collision with defendant William H. Trawick on June 7, 1973 on the River Road in Jefferson Parish. As a result of injuries received, Mr. Williams died approximately 11 days after the accident.

On October 24, 1973, plaintiffs filed suit against Trawick, Criterion Insurance Company (Criterion), Electronic Services, Inc. (Electronic), Early American Insurance Company (Early American), and Maryland Casualty Company (Maryland), claiming they were all jointly, severally and in solido indebted to petitioners for damages due to the death of Mr. Williams. On June 4, 1974, Trawick, Electronic, and Early American filed a third party demand against the Department of Highways, State of Louisiana, claiming that the accident was the result of that defendant’s negligence and asking for indemnity to those third party plaintiffs for any damages for which they might be cast.

On June 3, 1974, Maryland also filed a third party demand against the Department of Highways, claiming it was liable for any damages for which Maryland may be cast; however, on September 16, 1976, Maryland was granted a summary judgment dismissing it from the plaintiffs’ suit.

Bob Shurley, Jr., Jerry Shurley and Mrs. Linda Shurley, wife of Auguste Frey, were allowed by the court to withdraw as parties plaintiff on April 4, 1978.

Criterion was granted its motion for summary judgment on June 9, 1978, dismissing all claims against it.

On July 12, 1978, plaintiffs filed their second amended petition additionally alleging that the sole and proximate cause of the accident was the joint, several and in solido negligence of Trawick and the Department of Highways.

Defendants and third party plaintiffs Trawick, Electronic, Early American, and subsequently-joined defendants Dixie Auto Insurance Company and American Southern Insurance Company were dismissed from the suit, as were their demands against the Department of Highways, on the ground that the plaintiffs’ demands against them had been fully compromised and settled.

The record establishes that the two-way, undivided highway on which the accident occurred had a wet surface at the time of the collision. It was also the opinion of the investigating officers that Trawick’s vehicle crossed the center line, due to slick roadway conditions, and struck Mr. Williams’ automobile, which was knocked approximately 15 feet from the point of impact and landed off the roadway in a ditch.

Jerald Mennerjahn, one of the investigating officers of the accident, said there was no way to establish the speed of either of the two vehicles since there were no skid marks.

Dwayne Evans, a consulting traffic engineer who was called by the plaintiffs as an expert witness, testified he had examined the curve on which the accident took place and reported there were advisory speed signs at the approach to the curve of 20 miles an hour, although the posted speed limit reflected in the accident report was 25 miles an hour.

Evans also stated he ran what is commonly known as a “Ball Bank Test” at the site, which is a means of determining the safe speed for a curve. He said that, traveling at 25 miles an hour, he had trouble staying in his lane, and a maximum safe speed would have been 15 miles an hour. He also said he would not have recommended the negative super elevation, or sloping of the curve, at the time the road was constructed in 1952, due to the fact that it tends to force vehicles off the roadway.

Harry Schaffer, accepted as an expert in design engineering, explained the slant in the roadway at the accident site was not an uncommon design and had as its purpose water drainage. He was also of the opinion that 20 miles an hour was a reasonable speed at which to negotiate the subject curve, although he had not run a Ball Bank Test.

In his deposition, Trawick testified that at the time of impact his vehicle was traveling at 15 miles an hour. Although at trial counsel for plaintiffs asked counsel for the Department of Highways to enter into a stipulation that if Evans were present he would testify that the speed of both vehicles was at least 20 miles an hour, the record reveals the defendant would have objected to such testimony.

In giving his reasons for judgment from the bench, the district court judge concluded in part:

“Mr. Evans testified that it would not be safe to attempt to negotiate that curve at twenty miles an hour because of his ball bank test indicator, which showed that it would not be safe to enter that curve, but he does say that at fifteen miles an hour, the negative elevation and all the other things he spoke about would not have an effect at that point. If you come into the curve and make the curve at fifteen miles an hour, it is my understanding from what his testimony is, I have to believe that at the time that Mr. Trawick entered into that curve, that he did slow down and that he entered that curve at approximately fifteen miles an hour, and based upon the expert, Mr. Evans, he said it would be safe to negotiate that curve at that speed.
“I can only conclude, therefore, that insofar as the design of the highway at the time Mr. Trawick entered it at fifteen miles an hour, whatever defective design there may have been, did not contribute in any way to the cause of this accident because he had entered into that curve, based upon Mr. Evans’ expertise of fifteen miles per hour, where he entered into it, he entered at a safe rate of speed, since at fifteen miles an hour an accident did occur, I have to conclude that the accident was caused by the negligence of the drivers, and not by the negligence or by the design of that highway.”

A trial court’s conclusion of fact and evaluation of the credibility of witnesses must be given great weight by an appellate court and should not be disturbed in the absence of manifest error.

Moreover, regarding the issue of proximate cause, which must be considered in the analysis of any tort case, the court said in Rossiter v. Aetna Casualty & Surety Company, 255 So.2d 103 (La.App. 2d Cir. 1971), at page 107:

“ * * * To the contrary, the rule is well established in our jurisprudence that such negligence, or any negligence, is not actionable unless it constitutes a proximate cause of the injury upon which the action is based. Home Gas & Fuel Co. v. Mississippi Tank Co., 246 La. 625, 166 So.2d 252 (1964); Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Hoover v. Wagner, 189 So.2d 20 (La.App., 1st Cir. 1966 — writ refused); Bodan v. American Employers’ Insurance Company, 160 So.2d 410 (La.App., 2d Cir. 1964).
“A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would not have occurred, and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary prudence in the exercise of ordinary care that the injury complained of, or some similar injury, would result therefrom as a natural and probable sequence. Sumrall v. Aetna Casualty and Surety Company, 124 So.2d 168, 176 (La.App., 2d Cir. 1960 — cert. denied).
“Thus, wrongful conduct, to constitute actionable negligence, must be a cause-in-fact of harm to another and constitute a substantial factor in bringing about that harm. Dixie Drive It Yourself Sys. v. American Beverage Co., supra; Ardoin v. Williams, 108 So.2d 817 (La.App., 2d Cir. 1959); Harvey v. Great American Indemnity Company, 110 So.2d 595 (La.App., 2d Cir. 1958).”

We agree with the district court that although the Department of Highways may have been negligent in the design of the roadway, as well as in the posting of an excessively high speed limit at the curve where the accident took place, such actions were not, in fact, a cause of the collision in this case. Neither can we find a basis for disturbing the district court’s acceptance of Trawick’s testimony that he was only traveling 15 miles an hour at the time of impact, since no evidence was produced by the plaintiffs in contradiction.

In view of this court’s finding, we need not address ourselves to the question of whether the plaintiffs’ action against the Louisiana Department of Transportation and Development had prescribed prior to the joining of that defendant in the suit.

For the reasons assigned, the trial court’s decision is affirmed in all respects.

AFFIRMED.


author: STOULIG, Judge pro tern.

text:
    Edward FLORENT, Jr. v. Lorenza Armant FLORENT.
    No. 11539.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.

      Bernard J. Rice, III, Gretna, for jilaintiff-appellant.
    William D. O’Regan, III, La Place, for defendant-appellee.
    Before CHEHARDY, GARRISON and STOULIG, JJ.
   STOULIG, Judge pro tern.

This appeal arises out of the trial court’s refusal to permit appellant to adduce evidence in support of his amended petition for a divorce alleging post-separation adultery by his wife. Also questioned is the reasonableness of the amount awarded her as permanent alimony.

A prelude to these proceedings began on December 2, 1976 with the filing of a petition for Separation from Bed and Board by the plaintiff, Edward Florent, Jr. An answer and reconventional demand seeking the same relief was filed on behalf of the defendant, Mrs. Lorenza Florent.

On November 30,1977 after a trial on the merits, Judgment by Consent was rendered in favor of Lorenza Florent decreeing a separation from bed and board in her favor and awarding her “permanent alimony” of $35.00 per week. A subsequent motion for a decrease in alimony was denied on May 19, 1978.

A petition for divorce was filed on May 29,1979 by Mr. Florent on grounds of living separate and apart for over one year (R.S. 9:302); this petition was amended on June 13, 1979 to allege post-separation adultery by Mrs. Florent excluding her eligibility for permanent alimony. Mrs. Florent reconvened seeking a divorce by reason of the expiration of the statutory period without reconciliation.

The divorce matter came to trial on September 6, 1979, at which time the trial judge refused to hear testimony of the wife’s post-separation fault and as stated in his Reasons for Judgment the divorce rendered in favor of the husband is based upon the parties continued living separate and apart. He expressly denied that the judgment was based on adultery.

The transcript reflects that at the beginning of the trial, Mrs. Florent’s counsel stipulated: “. . . at a point in time during that year [the post-separation period] Mrs. Florent has lived with Herbert Magee, not her husband, and maintained adulterous relations and is presently living with this man”. During her testimony seeking to establish her right to “permanent” alimony (C.C. Art. 160) Mrs. Florent also admitted that she was living with Herbert Magee the co-respondent named in appellant’s amended petition.

Based on the evidence, the trial court rendered judgment granting Edward Flo-rent, Jr. a divorce but condemning him to pay alimony in the amount of $35.00 per week “as agreed upon by the parties”. Plaintiff appeals.

The trial judge relied on the case of Laurent v. Laurent, 369 So.2d 476 (La.App. 4th Cir. 1979) in disallowing any testimony regarding Mrs. Florent’s post-separation fault on the grounds of res judicata. The judge interpreted Laurent, supra, as holding that when fault has been determined in a separation proceeding, a husband cannot real-lege fault even if the allegation goes to post-separation adultery. We disagree.

The facts of Laurent involved an adultery alleged to have occurred before the judgment of separation and the court so noted:

“... it is clear from the reasons for judgment that the finding of fault on the part of the wife was based on the alleged adultery occurring before the original separation judgment. It is from this denial of alimony that the wife appeals.” 369 So.2d 476 at 477.

In Laurent, supra, we referred to the Supreme Court case of Fulmer v. Fulmer, 301 So.2d 622 (La.1974) and correctly stated that the Supreme Court there held that a judgment of separation in favor of a party is a conclusive determination of fault which precludes litigation of the fault issue in a subsequent divorce action, “except as to post-separation fault”. The specific language used in Fulmer was:

“Thus, where a judicial separation is decreed as caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or the wife is or is not at fault, for purposes of deciding whether the wife is entitled to alimony under Article 160. Such a conclusion Is, of course, not applicable if the divorce is sought for post-separation fault, such as adultery; for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s preseparation fault primarily caused the separation.” 301 So.2d 622 at 629. Emphasis added.

The petition of Mr. Florent specifically alleges adultery occurring after the judicial separation of the parties. Fulmer, supra, and Laurent, supra, clearly support the admission of evidence of post-separation fault. See also: Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir.1977).

Although the trial court did not permit the introduction of any evidence bearing upon the issue of the wife’s adultery, this court is constitutionally obligated to review both the law and facts and is empowered to render any judgment which is just, legal and proper upon the record before it. Roncal v. Commercial U. Assur. Co., 367 So.2d 24 (La.App. 2nd Cir. 1978); Warriner v. Russo, 308 So.2d 499 (La.App. 4th Cir.1975); C.C.P. Art. 2164. However, we do not feel that the stipulation of her counsel and the testimony of Mrs. Florent are sufficient for this court to judicially decree that she is indeed guilty of post-separation adultery.

We question the probative value of the admission against interest made by Mrs. Florent’s counsel, since it is tantamount to a confession of judgment and even if admitted by her it would be insufficient to establish adultery. Arbour v. Murray, 222 La. 684, 63 So.2d 425 (1953). Nor can adultery be inferred from Mrs. Flo-rent’s admission that she is living with Herbert Magee. Harris v. Harris, 228 La. 19, 81 So.2d 705 (1955); Ogea v. Ogea, 378 So.2d 984 (La.App. 3rd Cir. 1979).

The granting of a judgment of divorce in favor of Mr. Florent, based on the expiration of the statutory period without reconciliation as opposed to adultery is one of substantial legal significance. Under the former, Mrs. Florent’s freedom from fault is established by the judgment of separation and if found to be in necessitous circumstances, she would be entitled to alimony under C.C. Art. 160; whereas if adjudged guilty of post-separation adultery she would forfeit the right to support. Though the judgment is correct in its result, we must annul it in order to afford appellant the opportunity to prove his allegations of adultery and avoid the liability of future alimony-

No need exists to consider the reasonableness of the alimony awarded Mrs. Florent since this matter is remanded to the trial court for further action, the disposition of which may negate her right to permanent alimony. Nothing herein shall affect the right of the wife to continue to receive the alimony decreed in the judgment of separation from bed and board.

For the foregoing reasons, the judgment of the trial court is annulled in its entirety and this matter is remanded for further proceedings consistent with the views herein expressed. Costs are to await the final disposition of this matter.

REMANDED.