author: GUIDRY, Judge.

text:
    Doyle SMITH, Husband of & Mrs. Doyle Smith, Plaintiff-Appellee-Appellant, v. Willie WHITE, Defendant-Appellant-Appellee.
    No. 8685.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Writ Denied April 21, 1982.

      Ford & Nugent, William M. Ford and Howard N. Nugent, Jr., Alexandria, and Paul H. Kidd, Monroe, for plaintiff-appel-lee-appellant.
    J. P. Mauffray, Jr., Jena, for defendant-appellant-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

In this suit, which was before us previously, plaintiff, Doyle Smith, sought to recover the sum of $6,234.00 from defendant, Willie A. White. White answered denying any indebtedness to plaintiff and filed a reconventional demand seeking cancellation of a gravel lease entered into by the parties as well as damages for the alleged destruction of reconvenor’s fruit orchard and the removal by plaintiff of topsoil from property not subject to the gravel lease. On August 7, 1980, the district court rendered judgment on the principal demand in favor of plaintiff in the sum of $6,234.00 with legal interest from November 16, 1978, and twenty-five per cent (25%) attorney’s fees. In addition, the trial court, in its original decision, rendered judgment in favor of the defendant (plaintiff-in-reconvention) ordering cancellation of the gravel lease, but refused to consider defendant’s reconven-tional demand insofar as it pertained to the alleged destruction of the fruit orchard and the alleged removal of topsoil from White’s property.

On appeal to this court, the trial court judgment was reversed in part, affirmed in part, and the matter was remanded for further proceedings. In so doing, we stated:

“For the reasons assigned the judgment of the trial court dismissing defendant’s reconventional demand for damages, as of non-suit, is reversed and it is now ordered, adjudged and decreed that defendant’s reconventional demand, in its entirety, is remanded to the trial court for further proceedings consistent with the views herein expressed. Further, that portion of the trial court judgment awarding to plaintiff twenty-five per cent (25%) attorney’s fees is reversed and set aside and plaintiff’s demands for attorney’s fees are dismissed with prejudice. In all other respects the judgment appealed from is affirmed. Defendant Willie Allen White, is cast for all costs of this appeal.” (Emphasis ours)

On remand, the trial court considered White’s claim for damages as set forth in his reconventional demand and concluded that defendant (plaintiff-in-reconvention) was entitled to an award of $17,500.00. The judgment as rendered by the trial court on June 6, 1981 provides in its entirety as follows:

“Considering the testimony, evidence, law and the opinion of the Court of Appeals, Third Circuit, and for written reasons assigned on June 2, 1981,
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of DOYLE SMITH and against WILLIE WHITE in the full sum of SIX THOUSAND TWO HUNDRED THIRTY-FOUR and No/100 ($6,234.00) DOLLARS, together with seven (7%) per cent per annum interest thereon from November 16, 1978, through September 12, 1980, plus ten (10%) per cent per an-num interest thereon from September 13, 1980, until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of WILLIE WHITE and against DOYLE SMITH, in the full sum of SEVENTEEN THOUSAND FIVE HUNDRED AND NO/100 ($17,500.00) DOLLARS, together with Seven (7%) per cent per annum interest from January 15, 1979, through September 12, 1980, plus ten (10%) per cent per annum interest from September 13, 1980, until paid.
IT IS FURTHER ORDERED that WILLIE WHITE pay all costs of these proceedings.”

Plaintiff, Doyle Smith, appeals from that judgment. Defendant, Willie White, has answered the present appeal alleging that the trial court erred in failing to rule on the issue of cancellation of the gravel lease. Additionally, White prays for an increase in the amount of damages awarded him by the trial court.

ISSUES

The substantial issues on appeal are:

(1) Did the trial court err in reiterating the terms of the judgment rendered in favor of Smith in its judgment following remand?

(2) Did the trial court err in failing to consider the issue of lease cancellation on remand?

(3) Did the trial court err in awarding damages to reconvenor, and if not, are the damages as awarded excessive or inadequate?

THE JUDGMENT OF JUNE 6, 1981

Plaintiff-appellant first contends that the trial court erred in reiterating the terms of the money judgment rendered in favor of Smith in its judgment following remand. We agree that this was error; however, the error is harmless. As clearly stated in our previous opinion the judgment of the trial court was affirmed insofar as it awarded to plaintiff the sum of $6,234.00. The record reflects that this portion of the original judgment is now final. It was unnecessary for the trial court to reiterate the provisions of that final judgment in its judgment of June 24, 1981.

THE LEASE CANCELLATION ISSUE

Appellant and appellee both contend that the trial court erred in failing on remand to rule on the lease cancellation issue raised in the reconventional demand. In support of their contention, both parties cite our prior decision which specifically instructed the trial court to rule on defendant’s reconven-tional demand in its entirety.

Although the reconventional demand was remanded in its entirety for further proceedings, the record does not reflect that either Smith or White offered to introduce any additional evidence on the issue of lease cancellation, the entire matter having been submitted to the trial court on the previous record. The trial court’s previous reasons for judgment and its formal judgment rendered pursuant thereto dated August 7, 1980 disposed of that portion of White’s reconventional demand concerning the issue of cancellation of the gravel lease. Presumably, since the trial court had previously disposed of that portion of defendant’s reconventional demand, the trial judge deemed it unnecessary to again formally order the cancellation of the disputed gravel lease. Although we believe that the better practice would have been to formally dispose of all matters presented by White’s reconventional demand in the second judgment rendered on June 24, 1981, we conclude that both judgments by the district court should be considered by this court in resolving the issues presented on appeal. In so doing, we determine that to remand the present matter to the trial court once again simply for the trial judge to reiterate his decision to cancel the disputed gravel lease would not be in the best interest of judicial efficiency, economy, and expediency. The record presently before us contains formal judgment by the trial court on all issues presented by the reconventional demand, albeit in two judgments, and all evidence and testimony received at trial and provides this court with sufficient information to decide the issues presented on appeal.

Plaintiff (defendant-in-reconvention) contends that the evidence presented by re-convenor on this issue is not sufficient on which to base a finding that the gravel lease should be cancelled. On the other hand, reconvenor contends that the evidence presented clearly establishes that Doyle Smith failed to operate the disputed gravel lease in good faith and as a reasonably prudent operator. In this regard, White, in effect, contends that Smith removed and marketed gravel and dirt from White’s land for which he was not paid by design and with the intent to deprive him of the royalties which were justly due to him under the lease.

The provisions of the Louisiana Mineral Code apply to gravel leases. See LSA — R.S. 31:4. LSA-R.S. 31:122 which sets forth the obligations of the mineral lessee provides as follows:

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

The trial court concluded in its original judgment of August 7, 1980 that the evidence received at trial mandated the cancellation of the gravel lease. In so concluding, the trial judge, in his written reasons for judgment, merely stated: “. . . I am of the opinion that the evidence supports the finding that cancellation is in order and it should be included in the judgment to be signed in this case.” We note that the trial judge makes no specific reference to which facts, testimony, and/or evidence influenced his decision. Our review of the record reveals that Smith introduced only one witness who testified regarding his operation of the mineral lease. Smith did not testify. Mary Nell Smith, plaintiff’s wife, testified that 3,866 cubic yards of gravel were removed from the leased premises and that White was paid $.35 per cubic yard for this amount as provided for in the lease. Smith presented no records whatever to substantiate the amount of gravel and overburden removed from the White lease or the amount paid to the lessor. White, on the other hand, and several other witnesses testified that a substantial amount of gravel and dirt, in excess of that for which he was paid, was removed from White’s tract, some of which was stockpiled on adjacent tracts of land. Presumably,'the trial court relied on this latter evidence in ordering cancellation of the lease.

It is well settled that the factual findings of the trial court are entitled to great weight, especially if those findings pertain to the credibility of witnesses. Such findings will not be disturbed on appeal unless they are found to be clearly erroneous. See Calais v. Petroleum Helicopters, Inc., 330 So.2d 408 (La.App. 3rd Cir. 1976); Stipkovich v. Empire Menhaden Co., Inc., 319 So.2d 484 (La.App. 4th Cir. 1975). Our review of the record reveals that there is support for the trial court’s conclusion that cancellation of the lease in dispute was in order because of Smith’s failure to operate the property leased in good faith for the mutual benefit of both Smith and White. We discern no clear error on the part of the trial court in reaching its decision. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingues, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975).

DAMAGES

Plaintiff contends that the trial court erred in awarding damages to White for the alleged destruction of plaintiff-in-reconvention’s fruit orchard and the removal of topsoil therefrom. In this regard, plaintiff argues that plaintiff-in-reconvention produced no expert testimony regarding the value of the trees allegedly destroyed nor did White present evidence as to the quantity or value of the topsoil purportedly removed from his property.

The damage award is not itemized in the judgment appealed from nor is it explained or itemized in the trial court’s written reasons for judgment. In his brief written reasons for judgment, the trial judge merely stated: “It is my view that the sum of $17,500.00 will fairly compensate Mr. White for all the damages he sustained as a result of the actions of the plaintiffs. Judgment should be entered in Mr. White’s favor for this amount.” A careful review of the record reveals several lay witnesses who testified as to the approximate number and type of trees located in White’s fruit orchard, but not one witness, lay or otherwise, was presented who did testify regarding the actual worth or replacement value of the trees allegedly destroyed. The record reflects only one instance where a money value was placed on the destroyed trees and this is contained in the self-serving answers to interrogatories propounded by plaintiff’s counsel and answered by defendant (plaintiff-in-reconvention). Our brethren of the First Circuit considered the evi-dentiary import of answers to written interrogatories in the case of Realty Mart, Inc. v. Louisiana Board of Tax Appeal, 336 So.2d 52 (La.App. 1st Cir. 1976) stating:

“ ‘Evidence’ is testimony and matter which has actually been presented at trial. Therefore, facts obtained through the use of discovery devices, such as the instant written interrogatories, are not of themselves evidence. They may, however, become evidence by introduction as such at the trial of the matter. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La. App. 1st Cir. 1975).”

The interrogatories which contain the only reference to an unsubstantiated estimated value of the trees destroyed and topsoil removed from the tract were not introduced into evidence at trial of the instant matter. Thus, they may not be considered by either the trial or reviewing court. See Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir. 1975), writ denied, 321 So.2d 523 (La.1975).

White in his reconventional demand alleges that he sustained damages in the sum of $25,000.00 as a result of the destruction of his fruit orchard. It is well settled that it is the plaintiff’s burden to prove with legal certainty every item of damages claimed. See Culpepper v. Natchitoches Parish School Board, 333 So.2d 453 (La.App. 3rd Cir. 1976), writ denied, 338 So.2d 289 (La.1976); Freeman v. G.T.S. Corporation, 363 So.2d 1247 (La.App. 4th Cir. 1978); Cloney v. Travelers Insurance Company, 253 So.2d 83 (La.App. 1st Cir. 1971), writs refused, 259 La. 871, 253 So.2d 212 (La.1971). As stated in Freeman v. G.T.S. Corporation, supra, “This burden must be borne by competent evidence showing the extent of the damage and plaintiff’s own uncorroborated personal estimate of the value of the loss is insufficient.” See also, Saulter v. Cousin, 294 So.2d 251 (La.App. 1st Cir. 1974).

As noted, in the present case, plaintiff-in-reconvention failed to establish the amount of damages sustained as a result of the destruction of his fruit orchard and the removal of topsoil therefrom. There is no evidence in the record upon which this court could base an award of damages to plaintiff. The record merely reflects that a number of fruit trees were destroyed and some topsoil removed from a one acre tract by the defendant-in-recon-vention. To award damages to plaintiff based upon the record before us would result in mere speculation. It is well established jurisprudence that courts are not empowered to award speculative damages which have not been proved with some degree of detail and specificity. See Rawley v. Rawley, 357 So.2d 286 (La.App. 1st Cir. 1978), writ denied, 357 So.2d 1154 (La.1978), U.S. cert. denied, 439 U.S. 968; Calecas v. Prieur, 384 So.2d 584 (La.App. 4th Cir. 1980). For these reasons, we conclude that the trial court clearly erred in awarding damages to plaintiff absent definite proof of such damages.

For the above and foregoing reasons, the judgment of the trial court ordering cancellation of the gravel lease is affirmed and that portion of the trial court’s judgment awarding to plaintiff-in-reconvention, Willie Allen White, the sum of $17,500.00 in damages is reversed and set aside and his demand for such damages is ordered dismissed with prejudice. In all other respects, the judgment appealed from is affirmed. Willie Allen White is cast with all costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART.

      . See 398 So.2d 178 (La.App. 3rd Cir. 1981).

      . Although the trial court judgment of August 7, 1980, which was before us on the previous appeal, ordered cancellation of the gravel lease, we did not consider the correctness of that ruling on the first appeal because it was not made an issue by the parties.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Huey SHACKLEFORD, Plaintiff and Defendant in Rule—Appellee, v. Hazel Tyler SHACKLEFORD, Defendant and Plaintiff in Rule—Appellant.
    No. 8698.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Downs & Downs, James C. Downs, Alexandria, for defendant and plaintiff in rule— appellant.
    Broussard, Bolton & Halcomb, Frank R. Bolton, Jr., Alexandria, for plaintiff and defendant in rule — appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

Mrs. Hazel Tyler Shackleford Gunter appeals from a judgment awarding her $50 per month for the support of her minor child, Preston Shackleford. Her former husband, Huey Shackleford, contends there has been no change which warrants a deviation from the child support to which the parties agreed when their separation decree was rendered. We disagree.

Huey and Hazel Shackleford were married on February 27, 1960. Of this marriage five children were born, two boys and three girls.

On October 26, 1978, a separation judgment was rendered in favor of Mr. Shackle-ford. The custody of four of the children was placed with the father and the custody of the other child, Preston, age 11 years, was granted to the mother. By agreement Huey Shackleford was ordered to pay $50 per month as child support for Preston.

On November 5, 1979, Huey Shackleford brought suit against Hazel for divorce and for Preston’s custody. The trial court granted the divorce, but continued the custody of this child with his mother. The judgment was silent as to child support.

Huey Shackleford appealed the decree as to the issue of Preston’s custody. In Shackleford v. Shackleford, 389 So.2d 825 (La.App. 3 Cir.1980), this part of the judgment was reversed, because Mrs. Shackleford had been living for some time in open concubinage with Wallace Gunter, and the case was remanded to the district court for a new trial on the custody issue.

On remand Hazel Shackleford filed a rule to show cause why Huey Shackleford should not be required to pay her child support in the amount of $150 per month. Upon finding that Mrs. Shackleford and Mr. Gunter had married five days after the divorce was granted, the trial court gave the mother custody of Preston, but continued the support in the sum of $50 per month.

The sole issue now presented on appeal is whether the trial court abused its discretion as to the amount awarded for child support.

In Prudhomme v. Prudhomme, 381 So.2d 906, 907 (La.App. 3 Cir.1980), writ denied, 383 So.2d 782 (La.1980), we said:

“A mutual obligation of support, maintenance, and education of children is imposed by our law on both parents. The degree of support required of each is determined by the needs of the children and the circumstances of those who are obliged to pay it. LSA-C.C. Articles 227, 230 and 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La.1973); Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir. 1979). The customary duties performed and services rendered by a mother on a daily basis contribute substantially to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976). In instances where one or both of the parties have remarried the earnings of their respective spouses is to be considered in making an award for child support. In essence the court must consider, in calculating the award to be made, the totality of all pertinent circumstances. Marcus v. Burnett, supra.

In Howell v. Howell, 391 So.2d 1304, 1306 (La.App. 4 Cir. 1980), the court said the following in regard to modification of a previous award of child support:

“The Louisiana jurisprudence establishes that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973); Johnson v. Johnson, 357 So.2d 69 (4th Cir. 1978). This rule applies to child support awards as well as alimony awards. Laird v. Laird, 363 So.2d 244 (4th Cir. 1978); Gennaro v. Gennaro, 306 So.2d 756 (4th Cir. 1975). The change in circumstances must occur during the period of time between the date of the consent judgment and the date of the rule for modification of the award of child support and alimony. Bernhardt, supra. The party requesting a modification of a support award bears the burden of proving a change in the financial condition of one of the parties. Cole v. Cole, 338 So.2d 152 (2d Cir. 1976); Rachal v. Rachal, 250 So.2d 560 (1st Cir. 1971). Finally, the jurisprudence clearly establishes the rule that an award of alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Nicolle v. Nicolle, 308 So.2d 377 (4th Cir. 1975); Fakouri v. Perkins, 322 So.2d 401 (3rd Cir. 1975).”

The circumstances of the parties have indeed changed since 1978 when they consented to the order that Huey Shackleford pay $50 per month child support for Preston. At that time Mr. Shackleford had an average gross monthly income of $720 and expenses totaling $731.35 a month. He was awarded the custody of the other four children and was obligated for their support. Hazel Shackleford was not employed and had no source of income.

The record reflects that Huey Shackle-ford now has an average gross income of $1203.57 a month and total monthly expenses of $801.35. Three of the children whose custody was previously awarded to him have reached the age of majority and are no longer living with their father. The other child in Mr. Shackleford’s custody is presently staying with her grandmother by her choice, although he testified that he was helping to pay the child’s expenses. Mr. Shackleford is now living in the home of another woman that he intends to marry in the future and they are sharing the household expenses. Mrs. Gunter keeps house for her present husband and also performs the customary duties of a mother for Preston and a child of this second marriage. Wallace Gunter’s gross income in 1980 was $17,400 and he also gets about $200 a month from a home plant nursery which he says has not made any profit as yet.

Mrs. Gunter’s expense list for Preston shows that it costs about $200 a month to feed, clothe and care for him, far more than the $50 awarded by the trial judge.

Mrs. Gunter testified and the record indicates that, although no disavowal proceedings were instituted, Preston may be the biological child of Mr. Gunter even though he was born before his mother and Mr. Shackleford separated. Certainly, this is a factor to be considered in determining the amount of child support, because both the legal father and the biological father are obliged to support their child. State in interest of Poche v. Poche, 368 So.2d 175 (La.App. 4 Cir. 1979), writ refused, 370 So.2d 577; State in interest of Guillory v. Guillory, 407 So.2d 1327 (La.App. 3 Cir. 1981). However, we think the trial judge may have been overly influenced by this circumstance in arriving at the very low amount which Mr. Shackleford must contribute for Preston’s support. We do not gather from the record that Mr. Shackle-ford acknowledges that Mr. Gunter is the child’s biological father. He has demonstrated a close affection for Preston and under the court’s decree he is entitled to have the child visit with him every second and fourth weekend of each month and also on designated holidays.

Under the totality of the circumstances we are convinced the trial court’s award for child support was inadequate and that there was an abuse of discretion in this respect. We therefore will increase such award to $100 per month.

For the reasons assigned, the judgment of the district court is amended so as to increase the amount of child support from $50 per month to $100 per month. In all other respects it is affirmed at appellee’s costs.

AMENDED AND AFFIRMED.


author: CULPEPPER, Judge.

text:
    LeSABRE CORPORATION, Plaintiff & Appellee, v. Chris BARNETTE, et al., Defendants & Appellants.
    No. 8705.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for defendant-appellant.
    Harrington & Harrington, Curtis Rodney Harrington, Natchitoches, for plaintiff-ap-pellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit to enjoin illegal picketing activities. The plaintiff, LeSabre Corporation, is the general contractor for the construction of a plant for United Gas Pipeline Company in Natchitoches Parish. The defendants were employed by plaintiff as welders. Plaintiff alleged these defendants walked off the job after a salary dispute, and that they were maintaining a picket line at the plant entrance and were carrying ax handles and harassing and threatening other employees and suppliers of materials who attempted to enter the plant. Pursuant to plaintiff’s petition, the trial judge granted a temporary restraining order without a hearing, and thereafter granted a preliminary injunction in essentially the same form and substance. The defendants appealed.

The substantial issues are whether the trial judge erred in issuing the temporary restraining order and the preliminary injunction without following the procedures described in LSA-R.S. 23:844 (the Little Norris-LaGuardia Act).

The record shows that on August 6,1981, plaintiff filed a petition alleging that defendants were maintaining a picket line at the entrance to the plant, that they were carrying ax handles and harassing and threatening other employees as they arrived at or left the plant, that defendants were threatening bodily harm to any workers who attempted to cross the picket line and threatening to burn down their houses or harm their families, that defendants were wielding firearms and threatening to use them against other workers, that other workers and suppliers of materials were afraid to enter the plant for fear of harm, that these activities went far beyond the rights of the defendants to peacefully and orderly picket, that if defendants were allowed to pursue their course of conduct it would cause irreparable damage to plaintiff’s business and result in serious bodily harm or property damage to other workers, that accordingly it was necessary that the court enjoin the defendants from such illegal activities, that petitioner feared that during the pendency of these proceedings the defendants would continue their conduct and it was necessary that a temporary restraining order issue immediately and that after a hearing a preliminary injunction and a permanent injunction issue to the same effect. Without a hearing, the trial judge issued on August 6, 1981 a temporary restraining order enjoining defendants from:

“A. Appearing at the premises of United Gas Pipeline Company and disrupting business.
“B. Threatening to cause harm to workers, suppliers or any other persons connected with United Gas Pipeline Company and their families.”

The court further ordered that defendants show cause on the 11th day of August, 1981 why a preliminary writ of injunction should not issue in the form and substance of the temporary restraining order.

On August 7, 1981, defendants filed a motion to recall the temporary restraining order on the grounds that this was a labor dispute and plaintiff had not followed the procedure in LSA-R.S. 23:841-844, which requires 48-hour notice, a hearing, the furnishing of bond, etc. The hearing on the motion to recall was set for August 11, 1981, the same day as the hearing on the preliminary injunction.

At the beginning of the hearing on August 11, 1981, counsel for defendants requested a ruling on his motion to recall the temporary restraining order, to which the court responded that the motion to recall had become moot since the purpose of the temporary restraining order was to prevent personal injury or criminal activities until the hearing on the preliminary injunction, which hearing was being held that day. Accordingly, the trial judge denied the motion to recall the temporary restraining order and proceeded with the hearing on the preliminary injunction.

After the hearing, the court dictated into the record on the same day his findings of fact as follows:

“The Court finds that this is a labor dispute. There’s no evidence of malicious damage to any of the property of the LaSabre Corporation. There’s been no testimony that any of the employees, customers or the vendors have been either assaulted or battered by the persons on the picket line. Nor has there been any evidence that the pickets were harassed or assaulted or battered in any way by the management. The Court believes that there were axe or pick handles on the picket line. I believe that Mr. Harrison and Mr. Wortman have moved their families, because they fear for their safety. I also firmly believe in the right to peaceably assemble and make known grievances growing out of labor disputes. The ruling of the Court is that the right to picket is specifically recognized. The carrying of axe or pick handles, or any type of weapon, on the picket line is enjoined. There’s been no evidence that the pickets have trespassed on the property of United Gas. Therefore, the injunction on that issue is not shown to be necessary and is denied. So, the ultimate of it is that the picketing may continue, so long as there are no weapons on the picket line, and the only thing that is enjoined is the carrying of axe handles or anything else, which may be used as a weapon.”

Pursuant to these reasons by the trial judge, a formal judgment was signed issuing a preliminary injunction restraining defendants “from carrying or possessing axe handles, firearms, or any other weapon at or in close proximity to the premises of the United Gas Pipeline Company Plant located on Placid Oil Road in Natchitoches Parish, Louisiana.”

The statute in question, LSA-R.S. 23:841, et seq., has its source in Act 203 of 1934, referred to as the “Little Norris-LaGuardia Act”, which is modeled after the Federal Act of the same name. The obvious purpose of the act was to limit the power of the courts in the granting of injunctions in labor disputes. Of particular pertinence to the present case is the following portion of the act:

“§ 844. Injunctions and restraining orders, grounds for issuance; proof required
No court shall issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court to the effect:
(1) That unlawful acts have been threatened or committed and will be executed or continued unless restrained;
(2) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted;
(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial thereof than will be inflicted upon the defendants by the granting thereof;
(4) That no item of relief granted is relief that a court has no authority to restrain or enjoin under R.S. 23:841;
(5) That complainant has no adequate remedy by ordinary legal procedure; and
(6) That the public officers charged with the duty to protect complainant’s property have failed or are unable to furnish adequate protection.
Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainant’s property.
If a complainant shall also allege that unless a temporary restraining order is issued before such hearing can be had a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be granted upon the expiration of such reasonable notice of application therefor as the court may direct by order to show cause, but in no case less than forty-eight hours.
Such order to show cause shall be served upon such party or parties as are sought to be restrained and as shall be specified in said order, and the restraining order shall issue only upon testimony,, or in the discretion of the court, upon affidavits, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing as herein provided for.
Such a temporary restraining order shall be effective for no longer than five days, at the expiration of which time it shall become void and not subject to renewal or extension; provided, that if the hearing for a temporary injunction shall have been begun before the expiration of the said five days the restraining order may, in the court’s discretion, be continued until a decision is reached upon the issuance of the temporary injunction.
No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against the said complainant and surety, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law.”-';

On appeal, defendants argue the trial judge erred in issuing the ex parte temporary restraining order without 48-hour notice, without a hearing and without a bond, as required by LSA-R.S. 23:844. Defendants also argue that this was a labor dispute over wages and working conditions, that none of the alleged threats or acts of violence were proved and that both the temporary restraining order and the preliminary injunction were erroneously issued. Defendants seek damages and a reasonable attorney’s fee, as provided by LSA-R.S. 23:844.

In its original brief filed in this Court, the plaintiff cited Douglas Public Service Corporation v. Gaspard, 225 La. 972, 74 So.2d 182 (1954); Godchaux Sugars v. Chaisson, 227 La. 146, 78 So.2d 673 (1955) and Goodhope Refineries, Inc. v. Oil, Chemical & Atomic Workers International, Local 4-447, 386 So.2d 378 (La.App. 4th Cir. 1980). These cases held that in view of the provisions of the Louisiana Constitutions that a judge may issue all needful writs and orders necessary in aid of his jurisdiction (La. Const.1921, Art. 7, Sec. 2; La.Const.1974, Art. 5, Sec. 2), the provisions of LSA-R.S. 23:844 (the Little Norris-LaGuardia Act) do not apply where injunctive relief is sought to prevent acts or threats of violence, intimidation or coercion to the extent that the public’s health, safety or general welfare is at stake. The rule stated in this line of jurisprudence was still the law when the district judge in the present case granted the temporary restraining order and the preliminary injunction. Under those cases, the trial judge was probably correct.

However, as counsel for the plaintiff has pointed out in a supplemental brief filed in this Court, the Louisiana Supreme Court has recently rendered two decisions which substantially affect the result in the present case. In Goodhope Refineries, Inc. v. Oil, Chemical & Atomic Workers, Local 4-447, supra, our Supreme Court granted writs and rendered a decision, 400 So.2d 865 (1981), holding that a person accused of indirect contempt of court for violation of an injunction issued in a labor dispute has a right to a trial by jury under LSA-R.S. 23:848. The court states that this particular provision of the “Little Norris-LaGuar-dia Act” supersedes the general law governing punishment for indirect contempt of court for violation of an injunction, when the alleged contempt arises out of a labor dispute. In its brief, the plaintiff in the present case argues the Supreme Court’s decision in Goodhope is limited to contempt of injunctions issued in labor disputes. We need not decide the merits of this argument, because the present case is clearly controlled by the other case recently decided by our Supreme Court, as discussed below.

In Baton Rouge Coca-Cola Bottling Company, Ltd. v. General Truck Drivers, etc., 403 So.2d 632 (1981), the plaintiff employer obtained an ex parte temporary restraining order after giving the 48-hour notice and posting a $1,000 bond. The trial court denied defendant’s motion to dissolve the temporary restraining order but granted a preliminary injunction and increased the bond to $2,500. The Court of Appeal affirmed, 394 So.2d 1246 (La.App. 1st Cir. 1980). The Supreme Court reversed.

At the beginning of its opinion in Baton Rouge Coca-Cola, the Supreme Court stated the issues were (1) whether the “Little Norris-LaGuardia Act” governed the issuance of injunctions in labor disputes, and (2) whether a preliminary injunction was issued in compliance with the act. In answering these questions, the Supreme Court overruled Douglas Public Service Corpora tion v. Gaspard, supra, and held that the statute is not an unconstitutional infringement on the court’s jurisdiction to grant injunctive relief. The majority opinion states:

“Douglas concluded, without supporting reasons, that compliance with the statute denied- due process. As Justice Hawthorne noted in dissent, any due process infirmity in our statute is shared by the federal act. In fact, neither law denies due process.
“Both acts are legislative determinations of how the conflicting interests of employers and employees should be accommodated. Rather than denying due process, LSA-R.S. 23:844 insures it by providing reasonable notice and an opportunity for workers to be heard prior to the granting of injunctive relief. The declaration of policy in LSA-R.S. 23:843 recognizes that injunctive relief ‘... is peculiarly subject to abuse in labor litigation.’ “[2,3] The statute is not an unconstitutional infringement on the courts’ jurisdiction to grant injunctive relief. Injunctions are not prohibited in labor disputes, but preclusive procedures and guidelines must be followed before that relief is available.”

After concluding in Baton Rouge Coca-Cola that LSA-R.S. 23:844 is not an unconstitutional infringement on the courts’ jurisdiction to grant injunctive relief, the court went on to apply its provisions to that case. The court noted that plaintiff had alleged mass picketing, intimidation of persons seeking ingress to and egress from the plant, threatening and abusive language, obstruction of ingress and egress to the plant, etc. However, the court noted with particularity that Coca-Cola failed to allege or prove that law enforcement officers were unable to furnish adequate protection, which is the sixth of the requirements listed under LSA-R.S. 23:844 quoted above. The majority opinion holds:

“LSA-R.S. 23:844 requires allegations and proof of public officers’ failure or inability to furnish protection before an injunction may be issued in a labor dispute. Because of failure to comply with this statutory requirement, the preliminary injunction was improperly issued. It must be dissolved.”

The entire majority opinion in Baton Rouge Coca-Cola was signed by only the author and two justices. However, three justices concurred, with the explanation that although they were inclined to think that the Little Norris LaGuardia Act’s mandatory requirement of a 48-hour delay before a temporary restraining order may be granted could be ignored by the district court in a situation where it is clearly shown that violence to persons or property is imminent, the 48-hour notice was in fact given in the Baton Rouge Coca-Cola case, so the constitutionality of that portion of the statute was not at issue. One justice dissented.

Insofar as the present case is concerned, a clear majority of the Supreme Court has held that neither the temporary restraining order nor the preliminary injunction may be issued unless the plaintiff complies with LSA-R.S. 23:844, Subparagraph 6, by alleging and proving that the public officers charged with the duty to protect the complainant’s property have failed or are unable to furnish adequate protection. In the present case, the plaintiff has neither alleged nor proved this requirement. Actually, at the hearing on the preliminary injunction the deputy sheriff who served most of the defendants on the picket line on the morning of Friday, August 7, 1981, stated that he saw no violence or other unlawful acts which he was unable to control. Therefore, under the majority opinion by the Supreme Court in Baton Rouge Coca-Cola, we conclude that both the temporary restraining order and the preliminary injunction were unlawfully issued.

Under the express provisions of LSA-R.S. 23:844, the defendants are entitled to recover damages and a reasonable attorney’s fee for the erroneous issuance of the temporary restraining order and the preliminary injunction. No evidence having been introduced to prove the amounts of damage or attorney’s fee, we will remand this case for disposition consistent with this decision.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for a determination of the amount of damages and a reasonable attorney’s fee to which the defendants are entitled by reason of the erroneous issuance of the temporary restraining order and the preliminary injunction. All costs in the trial court and the costs of this appeal are assessed against the plaintiff.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    Foster THOMAS, et al., Plaintiffs-Appellees, v. James M. JEANE, Defendant, and The State of Louisiana, Defendant-Appellant.
    No. 8719.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    David C. Kimmel, Asst. Atty. Gen., Baton Rouge, and Daryl Gold, Leesville, for defendant-appellant.
    Simms, Tillman & Fontenot, E. C. Fon-tenot, Jr., Leesville, for plaintiffs-appellees.
    Before DOMENGEAUX, SWIFT, and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is an action, brought by plaintiffs, Foster Thomas and Carl Ruffin, against defendants, James M. Jeane and the State of Louisiana, for personal injuries and property damage resulting from a tree falling upon a vehicle in which they were sitting.

On June 25, 1979, plaintiffs entered a recreational area in Vernon Parish, locally known as Anacoco Spillway Park, to fish in the lake which forms part of the park. This lake, as well as the park, is administered by defendant, State of Louisiana, through the Anacoco Prairie State Game and Fish Commission (State). The actual operation, maintenance, and development of the park is accomplished through a lease from the State to defendant, James M. Jeane (Jeane).

Plaintiffs entered the park in a pickup truck owned by plaintiff Thomas. They allege claims resulting from a live hickory tree falling upon their vehicle as they waited to launch their boat.

Trial was held on May 18, 1981. Judgment was rendered against both defendants, in solido, on August 21, 1981, and signed on August 31,1981. Plaintiff Thomas was awarded the sum of Seven Thousand Twelve and 35/100 ($7,012.35) Dollars for personal injuries and property damage, and plaintiff Ruffin was awarded Five Hundred and no/100 ($500.00) Dollars for personal injuries. From this judgment the State has appealed. We reverse in part.

There seems to be no doubt that a tree located in the park, owned by defendant State and administered by defendant Jeane through a lease with the Commission, collapsed and fell on plaintiff Thomas’ vehicle. The primary issue on appeal is not whether such events occurred, but whether these events subject the State to liability under the law.

The State contends with merit that La. R.S. 9:2791 and La.R.S. 9:2795 limits the State’s liability under the presented facts. The pertinent parts of these statutes provide as follows:

La.R.S. 9:2791:
“A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted. ...”
La.R.S. 9:2795:
“A. As used in this Section:
(1) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(2) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) ‘Recreational purposes’ includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(4) ‘Charge’ means the admission price or fee asked in return for permission to use lands.
(5) ‘Person’ means individuals regardless of age.
B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(1) Extend any assurance that the premises are safe for any purposes.
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(3) Incur liability for any injury to person or property incurred by such person. .

The trial judge in his reasons for judgment made the following observations concerning the applicability of these two statutes, to-wit:

“Counsel for the State strongly asserts and argues the applicability of R.S. 9:2791 and 9:2795, the effect of which is to exempt the state, or other landowner, who allows his land to be used for recreational purposes, from liability for injuries that may be sustained by persons using the land for such purposes. Doubtless it was enacted for the purpose (perhaps among others) of encouraging large land owners to allow their lands to be used for parks, game management areas, and the like. The State concedes, however, that the exemption is inapplicable where commercial enterprises or endeavors for profit are involved.
The argument might be plausible were it not for the plain provisions of Exhibit P-2, the act of lease from the Commission to Mr. Jeane. Even a cursory reading thereof reflects that it imposes upon the lessee the duty to do things characteristic of an enterprise for profit, to maintain the property “pursuant to good business practice”, and it allowed him to charge fees and to operate concessions.
I am cognizant of the exclusionary provisions of paragraph 4 of the lease agreement which prohibited the lessee from charging a fee for launching boats at the ramp, and, accordingly, that plaintiffs herein neither paid a fee nor expected to do so, but this hardly constitutes a defense. Having concluded that a business for profit did exist, the statute eliminating the duty of care no longer applied, and the State and its lessee had the duty to remove the unsafe tree that stood in the park near the ramp.”

For the reasons hereinafter stated we feel that the trial court erred in holding that the State as owner ran Anacoco Spillway Park as a commercial enterprise for profit, therefore barring applicability of La. R.S. 9:2791 and La.R.S. 9:2795, supra.

The mere fact that the lease imposed upon the lessee to maintain the property “pursuant to good business practices” or that it allowed him to charge fees to operate concessions is not necessarily determinative of the issue of whether or not immunity is available. In Pratt, et al v. State of Louisiana, 408 So.2d 336, (La.App. 3rd Cir. 1981), this Court addressed the same issue, i.e., what factors render a recreational facility a commercial one? Rather than paraphrase we quote, to-wit:

“Plaintiffs place heavy reliance on the fact that fees are charged for use of the recreational facilities. Regarding this point some reasonable effect must be given to the use in LSA-R.S. 9:2795 of the words ‘with or without charge.’ The critical words are: ‘an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes . .. does not thereby ... (3) Incur liability for any injury to person or property incurred by such person.’ (Emphasis added.) Clearly the use of the words ‘with or without charge’ must be construed to mean that charging fees for use of recreational facilities does not in itself render the operation and maintenance of such facilities a commercial venture. Logically there would have been no reason to include these words in the statute unless it was for the purpose of providing that charging fees would not render an operation commercial. The provision becomes significant only when a fee , is charged.
In view of these conclusions, what factors render a recreational facility a commercial one? The trial court worked the matter out on the basis of whether the enterprise contemplates the earning of a profit. Section 200 Act 591 of 1970 as noted above specified that the Indian Creek Reservoir and Recreational Area should be a non-profit enterprise. Reference to standard dictionary definitions of the word ‘commercial’ convince us that in the context of the facts of the case before us, profit as a primary objective of the venture would be essential to render it commercial. Thus we conclude that the Indian Creek Reservoir and Recreational Area is not a commercial enterprise within the contemplation of LSA-R.S. 9:2795. Under the circumstances it was the purpose and policy of the Legislature to provide non-liability of defendants for the acts of negligence alleged in plaintiffs’ petition.”

A close reading of the lease agreement between the State and defendant Jeane, as well as the testimony at trial, reveals that from the onset the State had no intention to profit from the operation of the park. Paragraph 1 reflects this by providing that the consideration for said lease shall be that the lessee (Jeane) maintain and keep open the park and property for the use of the public as a recreational area. The lease further provides in Paragraph 4 that the existing boat ramp shall be excluded from the lease and lessee shall not be permitted to charge fees for its use. Additionally, Paragraph 7 allows for cancellation of the lease by the lessor where it is shown lessee is not keeping, providing, or maintaining the property in the appropriate manner, i.e., failing to provide the general public with a recreational facility.

To further support the noncommercial nature of this park, the State introduced the testimony of F. E. Hernandez, Chairman of the Anacoco Prairie Game and Fish Commission. Mr. Hernandez testified that the Commission (State) does not receive any funds from the administration of the park, nor does the State appropriate any funds for its operation. Mr. Hernandez further testified that the financing of the park’s operation, maintenance, and development is accomplished by allowing the lessee to run a concession stand and to charge nominal fees to the public for the park’s use. Should the park’s revenues exceed the expenditures necessary to maintain it in accordance with the terms of the lease, the lease also provides that the lessee is allowed to retain these excess funds. According to Mr. Hernandez, the Commission has found it necessary to offer such an incentive to park managers because without such an arrangement no one would be willing to accept the position. None of the revenues collected, however, go to the State. In conclusion, we feel the facts clearly show that the State’s primary objective in running the Anacoco State Park was to provide a recreational facility for the public and not to realize a profit. As such, the park is not a commercial enterprise of the State, and therefore, La.R.S. 9:2791 and La.R.S. 9:2795 bar recovery against it. Pratt, supra.

Since defendant Jeane failed to appeal or answer the appeal, the judgment insofar as it affects him is final, and the issue of whether or not La.R.S. 9:2791 and La.R.S. 9:2795 would likewise bar recovery against him is not before this Court.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it cast defendant, State of Louisiana in judgment, and it is hereby Ordered, Adjudged, and Decreed that the suit of plaintiffs, Foster Thomas and Carl Ruffin, against the State of Louisiana is dismissed.

Costs at trial are assessed against defendant James M. Jeane. Costs on appeal are taxed one-half (V2) against plaintiff, Foster Thomas, and one-half (V2) against plaintiff, Carl Ruffin.

REVERSED IN PART AND RENDERED.

      . Plaintiff Thomas’ claim is for personal injuries and property damage to his truck. Plaintiff Ruffin’s claim is for personal injuries only.

      . Defendant James M. Jeane has not appealed or answered the appeal in this matter.

      . Defendant Jeane would charge fifty cents per person for the use of the park. This entrance fee, however, was not charged to those patrons who entered the park to launch their boats.

      . As we interpret these statutes they act to bar recovery whether one’s claim is based on negligence under La.C.C.Art. 2315 or strict liability under La.C.C.Art. 2317.


text:
    Henry J. LAMBERT, Plaintiff-Appellant, v. PIONEER LIFE INSURANCE COMPANY OF ILLINOIS, Defendant-Appellee.
    No. 8721.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Gahagan & Wilson, Donald R. Wilson, Jena, for plaintiff-appellant.
    Bolen & Erwin, Ltd., Charles H. Munster-man and John B. Honeycutt, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

The plaintiff, Henry Lambert, filed this suit against the defendant, Pioneer Life Insurance Company of Illinois, for payment of benefits allegedly due under a “Hospital, Convalescent Care and Surgical Expense Policy” that was issued pursuant to an application on June 28,1979. He has appealed from an adverse ruling on the defendant’s motion for a summary judgment.

On November 12, 1979, plaintiff was examined by Dr. James T. Pate for a complaint of nasal obstruction. Corrective surgery for a deviated nasal septum was performed on December 20, 1979.

The defendant’s denial of liability under the policy and its motion for summary judgment were based on three grounds: 1) The sickness for which the benefits are claimed pre-existed the effective date of the policy; 2) The operation consisted of cosmetic surgery specifically excluded from the policy; and 3) There was no contract between the parties because of misrepresentation by the plaintiff in failing to disclose the pre-exist-ing condition in his application for the policy-

The insuring clause of the subject policy provides coverage of certain expenses resulting from injury or sickness, the latter being defined as:

“ ‘Sickness’ as used in this policy means sickness or disease first becoming manifest on or after the policy date hereof through distinct symptoms from which one learned in medicine can diagnose sickness or disease with reasonable certainty; herein referred to as ‘such sickness’.” .

The policy further provides under “PART ONE DEFINITIONS”:

“ ‘Pre-existing Sickness’ shall mean any sickness which was ... (c) evident because there was a clear, distinct symptom or symptoms of the sickness demonstrable prior to the effective date of coverage for the Insured with the occurrence of such symptoms being evident within 12 months prior to the effective date of coverage for the Insured and, which in the opinion of a legally qualified physician, would (1) indicate that the sickness probably began and manifested itself before the effective date of coverage for the Insured; and (2) would cause an ordinarily prudent person to seek diagnosis, care or treatment.”

It also expressly excludes “cosmetic surgery or treatment except as a result of a covered injury.”

In support of its motion the defendant filed Dr. Pate’s deposition and copies of the policy and plaintiff’s application.

Dr. Pate said that plaintiff had one of the largest noses and worst deviated septums he had ever seen. In his opinion the condition was a “developmental problem” which the plaintiff had since teen-age. The doctor’s hospital report stated the patient had “a history of nasal obstruction for years and also nasal deformity” and he wanted a nose operation “to cut down on its size and also so he can breathe better... . ” However, Dr. Pate testified that Lambert did not give him a history of having seen an ear, nose and throat physician before for the condition. Also, while the surgery did produce some cosmetic effects, it was not done on that basis. It was performed so that plaintiff could breathe and function better. The doctor further testified that he sees many patients with histories of intermittent nasal blockage that have never sought medical care for the condition. Some have deviated nasal septums of which they are unaware and “that’s probably what Mr. Lambert’s case was.”

In opposition to the motion for summary judgment the plaintiff presented his own deposition which had been taken by the defendant for discovery. He testified therein that about two months before he went to see Dr. Pate he started having trouble with his breathing. It got progressively worse and he also began to get headaches, so he went to the doctor. He had never had any problem with his breathing before, except when he had a cold, and he had never seen a doctor before for his nose.

The trial judge concluded from Dr. Pate’s deposition and report that the plaintiff had the condition for years and knew it. The motion for summary judgment was sustained for this reason and therefore it was unnecessary for him to consider the defendant’s other contentions.

As this court said in Walker v. Graham, 343 So.2d 1171 (La.App. 3 Cir. 1977); writ den. 346 So.2d 213 (La.1977).

“A summary judgment may not be rendered unless the pleadings, depositions, affidavits, and like evidence show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Arts. 966, 967; .... It is no substitute for a trial on the merits. All reasonable doubts are resolved against the granting of a summary judgment ... even where it may be favored by a preponderance of the evidence.” [Citations omitted.]

See also Clement v. Taylor, 382 So.2d 231 (La.App. 3 Cir. 1980); Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); and Vascocu v. Singletary, 404 So.2d 301 (La.App. 3 Cir. 1981).

In regard to the defendant’s first contention, that the sickness pre-existed the effective date of the coverage, we believe a genuine issue of fact exists as to whether the plaintiff experienced distinct symptoms (i.e., a noticeable obstruction to his breathing) of the sickness (i.e., the deviated septum) before the policy was issued. But even if he did, there is clearly an issue as to whether any such symptoms would have caused an ordinarily prudent person to seek diagnosis, care or treatment as required under (c)(2) of the above quoted policy definition of “Pre-existing Sickness.” We therefore conclude that the trial court erred in sustaining the motion for summary judgment on this ground.

With respect to the defendant’s second contention, it is rather clear from Dr. Pate’s testimony that the primary purpose of the surgery was to remove the nasal obstruction so that plaintiff can breathe freely rather than for cosmetic purposes. Thus, there is a genuine issue of fact in this respect.

We must also reject the defendant’s last contention, that the policy is invalid because the plaintiff intentionally and falsely answered “Yes” to the following question on his application for this policy:

“6. To the best of your knowledge & belief are you & persons listed herein now in good health & free from physical impairment and deformity? (if no, give full particulars)”

It is quite clear that Mr. Lambert had the deviated nasal septum for some years before he filled out the application. Dr. Pate’s opinion was that this obstructed his nasal passage, but the record does not disclose just how much it interfered with his breathing prior to his initial examination by this doctor on November 12, 1979. In any event the physician testified that Lambert was unaware of the cause of the obstruction and plaintiff testified he had not been troubled with his nose before. Certainly, there is a genuine issue as to whether the plaintiff intended to deceive the defendant in his answer to question No. 6. See LSA-R.S. 22:619(B) and Ryan v. Security Indus. Ins. Co., 386 So.2d 939 (La.App. 3 Cir. 1980).

For the foregoing reasons the judgment sustaining defendant’s motion for a summary judgment and dismissing this suit is reversed and the case is remanded to the district court for further proceedings in accordance with law. The costs of this appeal are assessed to the defendant.

REVERSED AND REMANDED.

      . Neither party contends that plaintiffs condition resulted from an injury.


author:
LABORDE, Judge.
      DOMENGEAUX, Judge,

text:
    Jerry L. COOLEY, Plaintiff-Appellee, v. Valerie Diane Vandyke COOLEY, Defendant-Appellant.
    No. 8723.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Writ Granted April 21,1982.

      Robert W. Stratton, Baker, for defendant-appellant.
    Edwins & Royer, Robert Layne Royer, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This appeal involves the provisional custody of two (2) minor children and an award of alimony pendente lite. The trial court awarded custody to the father, Jerry L. Cooley, and awarded the mother, Valerie Vandyke Cooley, alimony pendente lite for a period of three (3) months. The issues on appeal are whether the trial court judgment awarding custody to the father is in the best interest of the children and whether the trial court erred in limiting alimony pendente lite to a period of three (3) months. From our review of the record, we conclude that the trial judge properly awarded custody of the minor children to the father and further, that he did not abuse his discretion in limiting the alimony pendente lite award to a period of (3) months. Hence, we affirm.

Jerry and Valerie were married in Beauregard Parish on May 29, 1978, and of this union, two (2) children were born; namely Robert and Jason. On May 6,1981, Jerry filed for a legal separation from Valerie asking for custody of the two (2) children who he alleged were in his physical custody. On May 11, 1981, the trial judge signed an order granting Jerry the temporary care, custody and control of the children, subject to further orders of the court.

On June 24, 1981, Valerie filed a rule to show cause why she should not be granted custody of the children and why she should not be granted $600 per month child support and $500 per month alimony pendente lite. Valerie also asked for an injunction prohibiting Jerry from harming, molesting, harassing, telephoning, or threatening her, her friends or her relatives.

After the hearing on July 21, 1981, the court granted custody of the minor children to Jerry and ordered Jerry to pay Valerie alimony pendente lite for a period of three (3) months — August 1 through October 1, 1981.

CUSTODY OF THE MINORS

Louisiana Civil Code Article 146 provides the applicable law concerning an award of provisional custody. The article provides:

“Art. 146. Custody of children pending the litigation. If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or the wife, in accordance with the best interest of the children. In all cases, the court shall inquire into the fitness of both the mother and the father and shall award custody to the parent the court finds will in all respects be in accordance with the best interest of the child or children. Such custody hearing may be held in private chambers of the judge.”

The issue on appeal, then, is whether the trial court judgment granting provisional custody to the father is in the best interest of the children.

The standard of appellate review of custody cases was recently discussed by our Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The Court at page 1329 announced:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco [v. Fulco, 259 La. 1122, 254 So.2d 603], supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

Armed with this standard of review, we now return to the record.

The trial judge found and the record supports that both parents are morally fit to have custody. The trial judge in lengthy and well articulated reasons for judgment gave the following reasons, reproduced below, for awarding custody to Jerry. Since we cannot improve on the reasons given which are fully supported by the record, we adopt them as our own:

“It appears that for most of 1981 the parties, Mr. and Mrs. Cooley, have had varying degrees of difficulty in their relationship and it ultimately resulted in their separating and Mr. Cooley moving back to Ragley in Beauregard Parish where his family resides and from which he came. Mrs. Cooley is continuing to reside in Baker in East Baton Rouge Parish where she and Mr. Cooley had previously resided, having moved there in con-. nection with his work. It appears from the evidence that there is no family either of Mr. Cooley or Mrs. Cooley in the Baker area. Mrs. Cooley’s family lives in other places. Her nearest relative is in Baton Rouge which is very near but she’s a young lady, eighteen years of age, and is going to school. Mrs. Cooley has continued to reside in the house that she and Mr. Cooley and the children were living in before the separation. She feels that she can continue to care for these children properly. It is her intent to get back into real estate work. She had started a career in real estate sales. She had obtained a broker’s license I believe in April 1981. She stopped working as a real estate agent, I believe she said, after her children were no longer with her. She at some point went to work as a secretary for a company in Baton Rouge. She worked there for approximately one month but gave up that work because she could not concentrate. She said she was concerned again about the children. And at this time she is unemployed but has hopes of getting back into real estate work. Mr. Cooley testified that his work schedule is twelve hours a day, seven days on, and that he is able to, because of where the rig is set up, get to his place of residence which is with his brother and sister-in-law at night or at least at the times when he has worked out of his twelve hour shift. He feels that he, with the assistance of his relatives, specifically his sister-in-law, Mrs. Jeanette Cooley, and his brother, Reginald Cooley, and the aid also of his mother and other members of the family, can take good care of these two small children.
The evidence indicates that to some degree Mrs. Cooley was perhaps neglectful in her care of these children, and I know it is disputed about the matter of ants and diaper rash. I think she concedes that she made a bad mistake with the oldest little boy and the sunburn. The pictures indicate the youngster was burned much worse than a 2V2-year-oId should be. I know this was not deliberate or intentional. It is the kind of thing that can happen but shouldn’t happen to a child of that age. Mrs. Cooley’s housekeeping practices, to some extent, leave something to be desired as evidenced by these pictures and by other testimony concerning the conditions of her house at various times. I am not attempting to judge her housekeeping by standards of some idealistic homemaking magazine, for instance, but I do recognize uncleanliness and disorder and disarray and clutter when I see it, and, of course, from the standpoint of those pictures, it would appear that there was a lot of that at the time the pictures were taken. That doesn’t mean that Mrs. Cooley is a bad person with reference to those comments. It simply means — and there are a lot of people who don’t keep their houses up too much and you can argue about the importance of that on the scale of important things.
I have thought a great deal about the overall situation based on what we are faced with here in the courtroom and the evidence I have heard and I think on the basis of that evidence at this time that it is in the best interest of these children that they remain where they are in the temporary care and custody of Mr. Cooley. I want to say that I am influenced to a large extent by the fact that the evidence makes it very clear that Mr. Cooley, who is working and not always able to be with the children, has the firm support of his family. Mrs. Jeanette Cooley impressed the Court as being a concerned person who is willing to assist and is assisting with the care of these two children. There is no evidence to indicate that the children are not well cared for and are not getting along nicely at this time. There is a lot of reinforcement available if needed. On the other hand, when I think of Mrs. Cooley, and I don’t think of this in any kind of a derogatory fashion — it just happens to be a fact of life — she is over in Baker. There is nothing wrong with that except she doesn’t have any support to turn to over there. She is a young woman trying to establish herself. She wants to establish herself in a business career and there is nothing wrong with that, but there is no one closer than an eighteen-year-old sister who is a student in Baton Rouge to turn to for backup help. There is a lady who can keep these children, according to Mrs. Cooley, of course, unfortunately and it may be because of the distance involved, I don’t have the benefit of the evidence of the circumstances under which the children could be kept. I have not looked at Mrs. Dickson. I don’t know what kind of person she is. I don’t know how I would be impressed with her, whether she is a loving, kind, caring person or whether she is somebody that I would feel that maybe she is just in it for a dollar. I don’t have the opportunity today to say that I looked at Mrs. Dickson and saw her and said, ‘Yes, she is a lady who really cares and will take care of these two youngsters if Mrs. Cooley is out and about working,’ which, of course, a real estate agent to really be effective has to be available, you might say, all hours of the day and sometimes up in the evenings because people look at homes and apartments after normal working hours. There is nothing wrong with that except that if you have two babies at home, there is a problem about making arrangements for their care. I have not, again, had the benefit of hearing anything from witnesses who are able to support Mrs. Cooley in her efforts to get the children and to assure the Court of an ability to care for them under proper conditions. I’m having to determine this on the basis of the evidence that has been presented to me, again I reiterate.
I’m not unmindful that these are very young children and that Mrs. Cooley is their mother. But I have already said, the maternal preference rule has been abolished in this state. It is a factor that I frequently think about and I thought about it in this case. I would like to say that the maternal preference rule is historically based on the concept that where a father is out working, beating the bushes trying to make a living for his children and his spouse who is at home taking care of the children twenty-four hours a day, that it is easy to conclude that under those conditions the mother is the natural custodian. But in our modern society when the wife is out equally beating the bushes and attempting to make a career and a living and is not with the children any more than the father might be, then there is no practical reason for a maternal preference rule. They both, through their physical union, gave life to the children. I suppose the fact that under our present standards and present ideas and concepts about the equality of the sexes — and I certainly have no quarrel with that, I think it is the proper thing — but if it is inconsistent to urge one thing, the wife should have the same opportunity to work outside the home and to make a career but, on the other hand, to say, ‘Well, because I am the mother of the child, I gave birth to the child, notwithstanding the fact that I am working outside the home, nevertheless I should have the children because I actually physically gave birth to the children.’ I think that’s what the law is trying to eliminate, that type of inconsistency in abolishing the maternal preference rule.
This is not an easy decision for me to make. I take no pleasure whatever in at this time depriving Mrs. Cooley of the custody of the children. But based on what I have heard, that is my decision.”

ALIMONY PENDENTE LITE

Valerie urges error of the trial court in limiting alimony pendente lite to a period of three (3) months.

The applicable law is set out in LSA-C.C. art. 148, which provides:

“Art. 148. Alimony pendente lite. If the spouse hás not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

In making an award for alimony pendente lite, the court must take into consideration the needs of the claimant spouse and the means of the other spouse. The actual needs for the maintenance and support of the claimant spouse must first be determined, and if the amount needed is proportionate to the other spouse’s means, that amount should be awarded. If needs exceed the ability to pay, then alimony pen-dente lite should be fixed at a sum which will be just and fair to both parties involved. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir. 1980); Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir. 1976).

The fixing of the amount of alimony pendente lite is largely within the sound discretion of the trial judge and his conclusions as to the amount of the award will not be disturbed on appeal unless there has been a clear abuse of discretion. Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980); Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976); Bernard v. Bernard, 300 So.2d 499 (La.App. 3rd Cir. 1974); Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3rd Cir. 1981), and Manning v. Manning, 406 So.2d 285 (La.App. 3rd Cir. 1981).

Valerie testified that she held a real estate brokers license and had in fact been involved in the sale of real estate in the Baker, Louisiana area. In addition, she had held a clerical job for a period of time, but voluntarily quit because she could not concentrate due to the pending separation and custody litigation.

In his reasons for judgment the trial court held:

“The Court is going to grant Mrs. Cooley alimony pendente lite in the amount of $400.00 a month for a period of three months beginning August 1st, continuing September 1 and October 1,1981, in order to help her get rehabilitated and back into her employment. She voluntarily gave up a job and that could be sufficient justification for the Court to conclude she shouldn’t be given any support, but I am going to give her $400.00 a month, Mr. Cooley, and I order that she be paid August 1, September 1, and October 1. If there is any further support involvement that would have to come back before the Court in some other fashion later on.”

A review of the entire record and the respective incomes and expenses of the litigants in light of the statutory authority and its judicial interpretation does not establish that there has been any abuse of discretion on the part of the trial judge in making the alimony pendente lite award to Valerie. See Desormeaux v. Brignac, 408 So.2d 32 (La.App. 3rd Cir. 1981).

For the above and foregoing reasons the decision of the trial court is affirmed at Valerie Vandyke Cooley’s costs.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

dissenting.

Mine may be a lone voice crying out in the wilderness. I say that because it may appear that I have not given great weight to the factual conclusions of the trial judge. I have tried hard to conform to this cardinal principle of appellate review, but try as I may, I am haunted with the belief that the able trial judge, confronted with the vicissitudes of the new law which abolishes maternal preference in custody matters, granted custody to the father under circumstances which I believe make his decision manifestly erroneous. Judges and attorneys are in a quandry to reach the right decision and to give the right advice, respectively, when conflict develops between fathers and mothers for custody. In view of the abolition of the age old maternal preference rule, I feel that this case may be one which would warrant the granting of a writ by the Louisiana Supreme Court so that guidelines may be set out for the bench and bar in determining the proper criteria for the award of custody in these domestic squabbles.

The toddlers in this case are two and one-half years and one year, respectively. The father is an oilfield driller and works seven days on and seven days off. My review of the record leads me to no other conclusion but that these two children will be raised intermittently by the paternal grandmother, the father’s brother and sister-in-law, and other members of his family. A well entrenched legal proposition in our law is that, in the absence of unfitness, a parent has custody priority over a non-parent. There is certainly no unfitness on the part of the young mother here, hence, I submit that the custody award in this case is contrary to that well recognized legal proposition.

I find greatly significant in this case the fact that the father and all of his relatives recognized that the mother was a pretty good housekeeper and a good mother. Then, all of a sudden when the father decided that he wanted custody, they turned the tables on the young mother. The mother admitted that on one occasion she allowed the children to be over-exposed to the sun; however, it is difficult for me to perceive that custody should be taken away from her on account of this isolated incident. All members of the family liked to swim, and they swam a lot. The particular incident was not of a nature to indicate serious neglect. I am satisfied, by the mother’s testimony that this would not happen again.

The mother emphatically stated that when the two babies were taken by the father that they did not have sores from ant bites, and she strongly suggests that the children had a rash of some sort which was not caused by ant bites. The one instance of the younger child having a diaper rash does not shock me to the point of depriving a mother of custody for that reason. Anyone who has raised children knows that diaper rashes occur and in most instances are not the result of neglect.

The mother strongly suggests that the photographs taken by the father and members of his family when they broke into her residence in Baker were rigged and that the disheveled condition of the dishes and trash were staged.

We must bear in mind that when the parties herein separated they were living in Baker, Louisiana. The father took the children with him eventually to Beauregard Parish, his home. I gather that the main reason that the trial judge granted custody to the father is because the mother lived alone in Baker, Louisiana, and had no family to help her raise the children. The mother testified that she was trying to get established in the real estate business. A review of her testimony indicates her to be a bright young woman of some twenty years. She also indicated that she had a lady to babysit her children while she worked. This is certainly not an unusual situation.

When all is said and done I can see no good reason not to grant custody of these babies to their mother. I agree with the comments of my brothers of the Second Circuit when they spoke on the mother versus father situation in custody matters as follows:

‘“The legislative amendments do not, however, do a way with the real life fact, based on human experience, that it is often, in many if not most family circumstances,' in the best interest of young children to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors that favor the father. It is correct, however, that this concept does not create a preference or presumption in favor of the mother that must be overcome by proof of the mother’s unfitness or incapability.’ Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir. 1979).

I believe that the temporary custody of these toddlers should be awarded to their mother. Such being the case, I would then proceed to pass upon the correctness of the alimony award and additionally to consider a proper child support award.

I respectfully dissent.


author: GARRISON, Judge.

text:
    Donald ANDERSEN v. LUMMUS CONSTRUCTION COMPANY, the Commercial Union Assurance Companies, and Charles Munch.
    No. 11863.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1982.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., Metairie, for defendants-appellees.
    Sidney W. Provensal, Jr., New Orleans, for defendant-appellee Charles Munch.
    James H. Drury, New Orleans, for defendants, third party defendants and appel-lees.
    Hammett, Leake & Hammett, William S. Marshall, Jr., New Orleans, for intervenor-appellee.
    Before SAMUEL, GARRISON and BAILES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, dismissing plaintiffs suit for damages resulting from an injury sustained by him on August 29,1974, when a scaffolding floorboard on which he was standing broke beneath him. At the time of the accident, plaintiff was employed by Eagle Asbestos Company (hereinafter “Eagle”). Eagle was the subcontractor of Lummus Construction Company (hereinafter “Lum-mus”) at the Braithewaite construction site of the Ajax Nickle Refinery plant. Eagle was installing insulation at the site.

The parties involved are:

1. Lummus Construction Company — the major contractor at the Ajax Nickle Refinery job site, where the accident occurred.
2. Commercial Union Assurance Companies — the liability insurer of Eagle Asbestos Company.
3. Charles Munch — foreman at the job site and employed by Eagle Asbestos.
4. Commercial Union Insurance Company — the workmen’s compensation insurer of Eagle.
5. Eagle Asbestos Company — plaintiff’s direct employer.

On appeal, plaintiff raises several specifications of error; however, we find the threshold issue to be whether the trial court erred in denying plaintiff the option of suing in tort or workmen’s compensation.

Plaintiff argues that workmen’s compensation is not an exclusive remedy in the instant appeal. R.S. 23:1031-82 provides for the exclusivity of workmen’s compensation, but those statutes must be read in conjunction with R.S. 23:1061 relative to statutory employees:

“. .. Our law requires the work involved be done in the trade, business or occupation of a principal before the principal acquires that status, becomes liable for workmen’s compensation, and thus immune from tort liability. La.R.S. 23:1061. Whether a particular activity constitutes a part of the trade, business or occupation of a principal must be decided on the particular facts of each case. Lushute v. Diesi, 354 So.2d 179 (La.1978). Our jurisprudence supports the rationale that construction of a new facility is not a part of the trade, business or occupation of a chemical manufacturing plant such as Georgia Pacific. Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 504 (La.1973); Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App. 1st Cir. 1979). See also Moak v. Link-Belt Company, 229 So.2d 395 (La.App. 4th Cir. 1969), involving sugar refinery; and Ball v. Kaiser Aluminum & Chemical Corporation, 112 So.2d 741 (La.App.Orl. Cir. 1959), involving the production of aluminum.” (Tuberville v. Georgia Pacific Chemical Co., 386 So.2d 366 at 367 (La.App.1980).

Thus, as against Ajax, workmen’s compensation would not be an exclusive remedy; however, Ajax is not a party to the suit and Lummus Construction Company is the general contractor. Plaintiff argues that because insulation is not essential to Lum-mus’ construction business, he is not limited to workmen’s compensation. The issue before this court is whether insulation is essential to construction. We find that it is, as it is an essential part of the contract undertaken. Accordingly, plaintiff is a statutory employee whose exclusive remedy lies in workmen’s compensation. As plaintiff’s exclusive remedy is in workmen’s compensation, the trial court acted properly in dismissing plaintiff’s tort and executive officer suits.

Turning to plaintiff’s third specification of error, we find that the trial court acted properly in finding no negligence on the part of Munch. Munch discharged his duty by telling the crew not to use the defective board. The ultimate responsibility for selecting the boards and erecting the scaffolding was with the workers.

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

AFFIRMED.

      .On appeal plaintiff raises the following specifications of error:
      1. The court erred in denying the petitioner the choice of suing in workmen’s compensation or tort.
      2. The court erred in dismissing petitioner’s executive officer action.
      3. The court erred in dismissing plaintiffs action in strict liability under C.C. art. 2317 against the job foreman, Munch.
      4. The court erred in failing to award general and special damages.


text:
    Anahel HERNANDEZ, Sr. v. Lorraine C. KING.
    No. 12464.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 1982.
    Robert W. Lea, Roy S. Lilley, Metairie, for plaintiff-appellee.
    Murphy & Simon, E. Kelleher Simon and James M. Colomb, III, New Orleans, for defendant-appellant.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   GARRISON, Judge.

This is an appeal from a default judgment of the district court, granting to plaintiff damages in the amount of $2,619.00, plus legal interest and costs, for injuries resulting from an automobile accident, which occurred on June 18, 1979. From that judgment, defendant appeals.

On appeal defendant argues that:

(1) plaintiff’s case had prescribed;
(2) plaintiff failed to carry his burden of proof;
(3) the judgment is invalid because an insufficient affidavit of non-military service was produced; and
(4) plaintiff failed to specifically plead lost wages.

I.PRESCRIPTION

Plaintiff’s petition indicated that the date of the accident was June 18, 1978. Suit was filed on March 12, 1980. If these were in fact the operative dates, then it is apparent that the case would have prescribed prior to filing of suit. As shown by the record, plaintiff testified at trial that the accident occurred June 18, 1979. The police report contained in the record also indicates 1979. It is obvious that plaintiff’s petition contained a typographical error. We find that suit was timely filed and that this argument is without merit.

II.BURDEN OF PROOF

Defendant argues that because most of plaintiff’s evidence was hearsay, it should not have been admitted and that once the offending evidence is removed, plaintiff will have failed to carry his burden of proof. We disagree. The evidence on which judgment was granted was plaintiff’s uncontradicted testimony. The exhibits, which were introduced without objection, served merely to corroborate plaintiff’s testimony; as such, they go only to the weight of the evidence, but not the merits. Even without the exhibits, plaintiff still would have won. Accordingly, we find that plaintiff carried his burden of proof and this specification of error is without merit.

III.AFFIDAVIT OF NON-MILITARY SERVICE

The affidavit of non-military service filed in this case was executed by the plaintiff who admitted that he had no personal knowledge that Lorraine C. King was not in the military. Counsel argues that the judgment should be declared null and void ab initio. In support thereof, defendant cites Eureka Homestead Society v. Williams, 2 Peltier 360, No. 7525 (Orl.App.1919), reversed 146 La. 917, 83 So. 190 (La.1919). In Eureka, the Orleans Appellate Court held that under Sec. 200 of the Act of Congress of March 8, 1918, entitled “An Act to extend protection to civil rights of members of the Military and Naval Establishments of the United States engaged in the present war,” commonly called the Moratorium Act, any default judgment rendered against any person in or out of the military service was null and void ab initio when an affidavit, showing affirmatively that the person was not a member of the armed forces, was not produced. When the Louisiana Supreme Court examined the question, the court overruled the holding of the Orleans Appellate Court and held as follows:

“. .. our conclusion is that the act of Congress does not go so far as to declare that a judgment rendered against a defendant, without an affidavit showing that he was not then in military service, shall be absolutely null, even though the defendant was not in military service. “Section 200 of the act declares that, in any action or proceeding commenced in any court, if there shall be a default of an appearance by the defendant, the plaintiff before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. But the act does not anywhere declare that a judgment rendered on default and without such affidavit shall be absolutely null. On the contrary, there are several provisions that indicate that the judgment in such case would be voidable only at the instance of a defendant in military service . . . . ” (p. 191-192)

Like William L. Clark, Jr., the defendant in Eureka, the defendant in the instant case is and was not in the military at the time of trial. The Moratorium Act was the forerunner of the Federal statute, 50 U.S.C. App. § 520, the Civil Relief Act of 1940, under which defendant makes her argument. The current Federal statute, like the Moratorium Act, contains numerous provisions indicating that the judgment is voidable only at the instance of a defendant in military service. See 50 U.S.C.App. § 520(4).

IV. FAILURE TO SPECIFICALLY PLEAD LOST WAGES

Defendant argues that plaintiff is not entitled to an award for lost wages. Plaintiff has conceded this argument in his brief. Accordingly, the issue will not be addressed by this court and the judgment will be reduced by the amount of lost wages awarded, namely $320.00.

For the reasons discussed, the judgment of the district court is amended as follows and, as amended, is affirmed.

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff, ANAHEL HERNANDEZ, SR., and against the defendant, LORRAINE C. KING, in the full and true sum of TWO HUNDRED NINETY-NINE AND NO/100 ($299.00) DOLLARS as special damages and the full and true sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS for general damages, together with legal interest thereon from the date of judicial demand until paid, and for all costs of these proceedings.

AMENDED AND AFFIRMED.

      . The police report and medical report were admitted without testimony by the officer and doctor.


text:
    Beryl J. LINDSEY v. O. J. STANDRIDGE
    No. 52988.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Rehearing Denied April 7, 1982.
    H. R. Garner, Hernando, Rhett R. Russell, Memphis, for appellant.
    Joel P. Walker, Mary Lee Walker Brown, Hernando, for appellee.
   Appeal from Circuit Court, DeSoto County; Andrew C. Baker, Judge.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.