author: BARRY, Judge.

text:
    Ronald J. HEBERT v. LEFTY’S MOVING SERVICE, Sentry Insurance Company, Travelers Insurance Company and XYZ Insurance Company.
    No. 10800.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.

      Usry, Leefe & Weeks, Richard K. Leefe and Timothy T. Roniger, New Orleans, for plaintiff -appellee.
    Michael E. Wanek, Dodge, Friend, Wilson & Spedale, Denis Paul Juge, New Orleans, for defendants--appellants.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Dr. Ronald J. Hebert was a guest passenger in the front seat of an automobile owned and driven by Harold DeBlanc. The DeBlanc vehicle was proceeding toward downtown New Orleans in the right lane of the three lane Pontchartrain Expressway. A truck owned by Lefty’s Moving Service (Lefty’s) was ahead in the left lane going in the same direction when it moved across the middle and into the right lane in order to exit. The DeBlanc vehicle struck the rear of the truck injuring Dr. Hebert.

Dr. Hebert filed suit against Lefty’s, its driver and insurer, Harold DeBlanc, his employer and its insurer. A jury found the driver of each vehicle guilty of contributory negligence and the proximate cause of the accident and awarded plaintiff $70,000.00 in damages. DeBlanc, his employer and insurer filed this suspensive appeal urging error as to DeBlanc’s negligence and the trial court’s jury charges. Dr. Hebert answered the appeal and seeks an increase in quantum to $260,000.00. Lefty’s did not appeal or answer the appeal, but by brief denied its driver was negligent, urged affirmation of DeBlanc’s negligence and that the jury award was excessive.

Since Lefty’s failed to file an appeal or answer the appeal, under LSA-C.C.P. Art. 2133 its position in the judgment cannot change in its favor. “An appellate court cannot modify, revise, or reverse a judgment, or part of a judgment, in favor of a party who has neither appealed nor complained by way of an answer to an appeal.” Post v. Rodrigue, 205 So.2d 67 (La.App., 4th Cir. 1967).

We therefore review appellant DeBlanc’s position as to his negligence, if any, and the propriety of the jury charges. The amount of the award is not questioned by DeBlanc.

DeBlanc testified that when he reached the bottom of the Metairie overpass he noticed Lefty’s truck was driving “erratically”. He saw the truck move quickly from the left lane, cross the middle lane, then pull into the right lane and attempt to leave the expressway by driving between two barrels which separated the expressway from the exit lane. The crucial part of DeBlanc’s account was his admission that when he first saw the truck it was five hundred feet ahead and beginning its sudden movement to the right and causing other vehicles to slam on their brakes to avoid an accident. In spite of this observation DeBlanc testified he traveled between three hundred and three hundred fifty feet before slamming on his brakes which resulted in one hundred forty-five feet of skid marks before hitting the truck.

Lefty’s driver testified that he saw the DeBlanc vehicle in his rearview mirror approximately five hundred feet to the rear when he began changing lanes. The driver said he had completed his move into the right lane, slowed down, and was in the process of leaving the expressway between the barrels when he was hit by DeBlanc.

DeBlanc said he was driving between 45 • 50 miles per hour which is within the speed limit and his account was corroborated by an eye witness in another automobile. The weather was clear and vision unobstructed.

The driver of a vehicle has a duty to maintain a proper lookout and keep control of his vehicle at all times. Cory v. Employers Mutual Liability Ins. Co. of Wis., 267 So.2d 761 (La.App., 2nd Cir. 1972). As a general rule, when a following vehicle collides with the rear of a preceding vehicle, the following vehicle is presumed to be at fault and bears the burden of exculpating himself from the inference of negligence. Tidwell v. Ocean Systems, Inc., 356 So.2d 466 (La.App., 4th Cir. 1977) at p. 468.

DeBlanc attempts to exculpate himself by invoking the doctrine of sudden emergency. He asserts that despite the truck’s erratic movement it wasn’t until the truck was in his lane that he was faced with the pending crash and his reaction time was less than ten seconds. However, he failed to keep his vehicle under control by slowing down when he witnessed the potential danger from the truck’s “erratic” movement. A driver has a duty to drive defensively from the time he witnesses the negligent operation of another vehicle and the potential for resultant damage.

Use of the sudden emergency doctrine is not available to a person who participated in creation of the emergency or who has failed to properly act in order to avoid the emergency. The doctrine is available to a driver proceeding carefully and prudently on the occasion of the sudden emergency who does not contribute to its creation. Smith v. Marquette Casualty Company, 176 So.2d 133 (La., 1965) at p. 137. We therefore agree with the jury’s finding that both vehicles were contributorily negligent and the proximate cause of the collision.

Dr. Hebert sustained a severe compound fracture of his lower right leg. Surgery was performed and included placement of surgical pins to set the bones. He spent eight days in the hospital after which his leg was placed in a cast. He remained bedridden for most of the next two weeks and was compelled to use a wheelchair for one month after he was able to leave home. His convalescence terminated approximately seven months later during which he was able to ambulate by use of a wheelchair and crutches.

Two months after the accident the surgical pins were removed. After his second cast he used crutches for an additional six weeks. Dr. Hebert testified that the accident left his right leg shorter than the left leg.

We have no doubt this type of injury caused substantial pain and considerable inconvenience subsequent to the accident. Despite plaintiff’s testimony about the loss of length in his right leg, there is no allegation nor a prayer for damages as a result of the alleged permanent disability. A weighted evaluation of Dr. Hebert’s injury, treatment, and prognosis is impossible since no physicians were called to testify nor were any medical records introduced into evidence. The only testimony pertaining to the plaintiff’s injury came from the plaintiff himself.

In addition to compensation for pain and suffering, the main thrust of plaintiff’s case was lost income during his convalescence. Dr. Hebert was a thirty-four year old sole practitioner orthodontist at the time of the accident. He returned to his office approximately three weeks after the accident on a limited basis and provided nominal patient treatment. An associate conducted his practice in his absence until seven months after the accident. Shortly before the accident Dr. Hebert opened a dental clinic in downtown New Orleans. He testified his responsibility with the clinic was primarily promotion among general practitioners in an effort to secure referrals for the specialists in the clinic. Because of the type and duration of plaintiff’s injury he was unable to support and foster the development of the clinic during the first few months of its existence.

Plaintiff and defendant each presented an expert to establish lost income from the private office and the new clinic. Plaintiff’s economic expert calculated a loss from his private practice at $38,734.00; defendant’s expert estimated the loss to be $10,-900.00.

Computation of lost income from the clinic is more difficult, if not impossible, since there was no prior business activity for comparison purposes. Plaintiff’s expert used figures based upon the average dentist in the United States. His estimate amounted to a loss of $182,506.00 using assumptions and statistics which could be considered academic. At the other extreme was defendant’s expert who felt Dr. Hebert suffered no lost income from the clinic because of large initial startup and operational expenses which coincided with plaintiff’s incapacity to work. Plaintiff urged his orthodontic speciality as a unique financial situation because each patient produces income for approximately twenty-four months and the financial loss during his incapacity should be projected over that longer period of time.

Attempting to arrive at a reasonable determination of lost income from the private practice and the clinic had to cause confusion and consternation among members of the jury. From the amount of the verdict it is reasonable to conclude that the jury did not accept Dr. Hebert’s theory of $182,-506.00 lost income from the clinic. We cannot disagree since the estimates in the record are at best very speculative.

The record does support lost income from private practice and the jury was offered a range from $10,900.00 to $38,734.00. Dr. Hebert testified that he didn’t lose any of his former patients and the evidence indicates that his patient income was rather nominal prior to the accident.

We feel the jury allocated a large portion of the $70,000.00 judgment to Dr. Hebert’s painful injury and the subsequent discomfort and inconvenience with some amount attributable to his lost income from private practice. Considering the potential elements of the award, the evidence relating to each element, and the final judgment, we fail to find the jury abused its much discretion. Coco v. Winston Inds., 341 So.2d 332 (La., 1976); Reck v. Stevens, 373 So.2d 498 (La., 1979).

Finally, appellant’s contention that the jury’s instructions were confusing and the jury’s answers to the interrogatories were inconsistent is without merit. The jury did require clarification on the questions of negligence and proximate cause, but we feel they understood the court’s instructions and rendered a proper verdict.

Accordingly, the judgment of the District Court is affirmed. All costs of this appeal are to be borne by appellants.

AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    DIXON ENTERPRISES, INC. v. RESTAURANT PRODUCTS, INC. and Loubat Glassware & Cork Company, Ltd.
    No. 10838.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Ivor A. Trapolin, New Orleans, for plaintiff -appellee.
    Dale C. P. Cannizzaro, New Orleans, for Restaurant Products, Inc., defendant-appellant.

      James Burnett Aime, New Orleans, for Loubat Glassware & Cork Co., Ltd., defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   CHEHARDY, Judge.

Defendants, Restaurant Products, Inc. (Products), and Loubat Glassware & Cork Company, Ltd. (Loubat), appeal from a trial court decision in favor of plaintiff, Dixon Enterprises, Inc. (Dixon), and against both defendants, in solido, rescinding the sale of two PS-1 Electric Purofryer Systems; awarding plaintiff the sum of $6,956.66, together with legal interest from the date of judicial demand and all costs of the proceedings; and dismissing the third party demand of Loubat against Products. Plaintiff answered the appeal, asking that the trial court judgment be amended to include an award of reasonable attorney fees for the prosecution of this suit on the trial level and requesting an award from this court of additional attorney fees for prosecution on appeal.

Dixon was the owner of two restaurants in the New Orleans area which operated under the trade name of “Ruby Red’s.” One outlet was located on Esplanade Avenue near the river in New Orleans proper and the other establishment was on Hess-mer Street in Metairie, a suburb of the City. The restaurants exclusively served hamburgers or steakburgers and French fries.

Dixon went to a restaurant show in Chicago in 1976 and became interested in two Electric Purofryer Systems for the purpose of frying potatoes. He discussed the purchase with a representative of Products and was given literature promoting the product with such claims as: “Labor savings from continuous filtering; extended oil life from removal of contaminants; cooking oils last 500% longer; eliminates messy manual filtering and reduces clean-up time by as much as 90% * * * finest quality foods cooked consistently at their golden, flavorful best, and actually at less cost than with ordinary frying methods.”

On' deciding that he would purchase the systems, Dixon was informed by Products that the purchase must be made through a distributor. Although Loubat had not sold any of these systems previously, they had sold other Products equipment and agreed to act as distributor for the equipment when approached by Dixon.

On July 8, 1976, Dixon bought the systems from Loubat, writing a check to that defendant for $1,840.80 as a down payment, and furnishing Loubat with a promissory note for the sum of $4,303.26, secured by a chattel mortgage executed in favor of Lou-bat. Loubat did not specifically warrant or guarantee the fryers, although parts were ordered through them.

Soon after installation in both locations, problems began to develop. The first incidence of trouble, which occurred prior to August 15, 1976 (when the machines were serviced) concerned the thermostats, which required resetting. Shortly thereafter, Dixon testified, it became obvious that the machines required an oil change every five or six days (although at times there might be a 10- to 12-day period without the necessity for changing it). .Because the equipment had a reservoir of 11 gallons, as opposed to Dixon’s formerly used gas fryer’s capacity of five gallons, this resulted in increasing cooking oil usage, rather than the extended oil life savings promised by Products. This testimony was corroborated by employees of Dixon, and it was also averred that the Esplanade Street machine started leaking oil after the first month of use, requiring a new gasket.

Regarding the Hessmer Street fryer, an employee at that location testified that within two or three weeks of installation a crack in one of the heating elements was discovered. The sales and service manager for Products, David M. Hope, pinpointed the time he learned of problems beginning with the New Orleans fryers as “about a week or so” after he returned from a demonstration of the equipment to Dixon employees.

An Esplanade Street employee also testified that the machine did not filter properly and that approximately four or five times it had shut down and then had started back up later for no apparent reason. In October there was a problem with the pump, and on December 22,1976, the fryer at that location ceased to operate and was replaced.

Regarding the Hessmer Street fryer, there was also testimony that it did not filter properly, and there was a problem getting the bottom pan off to put in a filter, requiring a great deal of force, and that the filters required changing twice a day. The fryer was finally taken out of operation on October 15, 1976.

There was a service agreement executed between Products and Pittman Stove Works at Dixon’s request; however, there was evidence there were delays in servicing either through inability to make the required repairs or other internal problems at Pittman. There was also evidence of extended delays in acquiring replacement parts.

In his reasons for judgment given from the bench, the trial judge said:

“Well, the court is of the opinion that the law is clear: That in an action of redhibition, it’s only necessary to show that the article purchased, sold, was not fit for the purpose for which it was intended.
“The Court is satisfied that there is a preponderance of the evidence in these proceedings to show that the two Puro-fryers were unfit for the purpose for which they were intended, and that they did not function as it was represented that they would function.
“As an illustration, only, because there is substantial other evidence, but to say that a fryer purchased by a restaurant can be out of function, out of use, for a month and a half, waiting for one part, and then in another instance, waiting for another month and a half for another machine for another part, is simple and ample proof, in my opinion, of the fact that the equipment was defective.
“There were hidden vices in it that would make it unfit for the purpose of which it was intended.”

We agree.

In the case of Rey v. Cuccia, 298 So.2d 840, 842-843 (La.1974), the Supreme Court, regarding actions in redhibition, stated:

“A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it, had he known of the vice.’ Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La. 1973).
“The buyer must prove that the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction. J. B. Beaird Co. v. Burris Bros., 216 La. 655, 44 So.2d 693 (1949); Crawford v. Abbott Automobile Co., Ltd., 157 La. 59, 101 So. 871 (1924); Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La.App. 4th Cir. 1968); Fisher v. City Sales and Service, 128 So.2d 790 (La.App. 3d Cir. 1961).
******
“If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale. An- dries v. Nelson, 46 So.2d 333 (La.App. 1st Cir. 1950); Standard Motor Car Co. v. St. Amant, 134 So. 279 (La.App. 1st Cir. 1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So.2d 166 (1971).”

As in Rey, supra, the plaintiff in the present case had the burden of proving that a redhibitory defect existed at the time of the sale. The record establishes that within a short period of time after installation severe problems began to arise without these problems being remedied through service.

Neither do we find any difficulty upholding the trial court in declaring Products and Loubat liable in solido to Dixon. As the court also declared in Rey, supra, at page 845:

“When the sale is annulled for a redhi-bitory defect resulting from the original manufacture, the purchaser can recover the pecuniary loss resulting from the unusable thing sold from the manufacturer as well as the seller. Media Productions Consultant v. Mercedes-Benz of N. A., Inc., cited above. As there stated, 262 La. 80, 262 So.2d 377: ‘Louisiana has aligned itself with the consumer-protection rule, by allowing a consumer without privity to recover, whether the suit be strictly in tort or upon implied warranty.’ * * * yy

However, although the district judge did not give reasons for his denial of Loubat’s third party demand against Products, we can find no justification in the record for this part of the judgment. According to the record a service part was at one point sent to Loubat and there is some evidence that the delay in getting it to Dixon and Pittman could have been diminished considerably with Loubat’s assistance. However, Hope admitted that the part was sent by mistake to Loubat instead of to Pittman and that it was not Loubat’s responsibility to deliver a service part.

LSA-C.C. 2531 states:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

We hold, moreover, that the present case is similar to the factual situation in Reeves v. Great Atlantic & Pacific Tea Co., 370 So.2d 202 (La.App. 3d Cir. 1979), where a plaintiff made a redhibitory claim against the Alexandria Coca-Cola Bottling Company, Ltd., as manufacturer of a defective bottle of Coke and A & P as the seller. The court found that A & P did not know of the vice at the time of the sale and held both defendants liable in solido for return of the purchase price. In considering A & P’s third party demand against Alexandria, however, the court held at page 212, citing Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir. 1973):

“A & P raises the contention that, if it is responsible to Mrs. Reeves for return of the purchase price, it is entitled to recovery of this amount against the Alexandria Coca-Cola Bottling Company, Ltd. Pursuant to this end, it made a third party demand at the trial level; however, the trial judge failed to rule on this demand. A & P is entitled to judgment on their third party demand against the bottling company. * * * ”

This rationale was similarly followed in the case of Breaux, supra, where the court held both the seller, Quality Mobile Homes, Inc., and the manufacturer, Winnebago Industries, Inc., liable in solido to the buyer in an action in redhibition and also held, regarding the third party demand of the seller against the manufacturer, at page 770:

“Quality has third partied Winnebago for indemnity in the event the sale is rescinded. We grant Quality indemnity since they are only vicariously responsible for the defects which were obviously present when delivered by the manufacturer. Appalachian Corporation, Inc. v. Brooklyn Cooperage Co., Inc., 151 La. 41, 91 So. 539 (1922).”

Accordingly, this court will grant Lou-bat’s third party demand against Products for reimbursement of any amount Loubat would be required to pay the plaintiff.

In regard to the plaintiff’s request for attorney fees for prosecution of the case on the trial court and on the appellate levels, a review of the record indicates that no attorney fees were prayed for in the plaintiff’s petition. In this regard we refer to the case of Davis v. Aetna Casualty & Surety Company, 329 So.2d 868 (La.App.2d Cir. 1975), where the court said at page 876:

“The remaining issue is whether we may award plaintiff attorney fees of $5000 when he only prayed for $2500 in attorney fees in the event the case was appealed.
“Defendants contend a party may not be awarded more attorney fees than he prayed for in his petition. Plaintiff argues that Code of Civil Procedure Articles 862 and 2164 vest this court with the power to award attorney fees in an amount it finds to be proper and just regardless of the amount he prayed for in his petition.
“We disagree with plaintiff’s interpretation of these articles of the Code of Civil Procedure. These articles are not controlling in the area of special damages. Article 861 provides items of special damage must be specifically alleged. In this case there was no evidence offered on the amount of attorney fees and, therefore, by the clear and unambiguous language of C.C.P. Art. 861, plaintiff may not recover more attorney fees than he alleged to be due, i. e., $2500.”

Moreover, it is an established rule that evidence of the value of an attorney’s services is not necessary where the services are rendered under the supervision of the court. Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App. 4th Cir. 1977), and Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir. 1978).

Furthermore, this court addressed itself to that issue in Boudreaux, supra, at page 506:

“Finally, on authority of C.C. 2545 (as amended, Acts 1968 No. 84), we grant plaintiff’s request for attorney’s fees for the appeal alone. C.C.P. 862 provides that ‘a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.’ And C.C.P. 2164 provides that ‘[t]he appellate court shall render any judgment which is just, legal and proper upon the record on appeal.’ We have increased attorney’s fees awarded by the trial court to recompense for additional services on appeal in Dunlap v. Chrysler Mtrs. Corp., La.App. 4 Cir. 1974, 299 So.2d 495. We now implement C.C. 2545 for attorney’s fees for the appeal by itself, although attorney’s fees were not prayed for (except in brief) or awarded in the trial court. We award $500 for representation on the appeal alone.”

It is also a well-established rule of jurisprudence in Louisiana that a manufacturer is presumed to know the vices of the thing he sells and actual knowledge is not required. Moreover, LSA-C.C. art. 2545 provides for an award of attorney fees in a redhibitory action if the seller knows the vice of the thing he sells and omits to declare it.

There was no evidence that Loubat knew of the vices in the Purofryer Systems. Accordingly, we will cast Products alone in judgment for attorney fees for prosecution of the plaintiff’s case on the appeal alone, and set the fee for $750 on the theory that this amount is reasonable under all the circumstances. Clinkscales, supra.

For the reasons assigned the decision appealed from denying the third party claim of Loubat Glassware & Cork Company, Ltd., is reversed and judgment is granted in favor of Loubat Glassware & Cork Company, Ltd., and against Restaurant Products, Inc., third party defendant, for the damages incurred by Loubat as a result of the principal demand by Dixon Enterprises, Inc., and for all costs of these proceedings. The district court judgment is also amended to grant plaintiff the additional sum of $750 against defendant Restaurant Products, Inc., as a reasonable attorney fee in prosecution of the case on appeal. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED IN PART.


author: GARRISON, Judge. REDMANN, J.,

text:
    Harry LEVINE v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
    No. 10845.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Harvey J. Green, Metairie, for plaintiff-appellant.
    Donovan & Lawler, Metairie, for defendant-appellee.
    Before SAMUEL, REDMANN and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s suit for outstanding as well as future medical expenses against the defendant who was both his employer and the insurer of the group medical policy by which plaintiff was covered.

The case was tried upon joint stipulations, including the following:

Plaintiff was employed as an insurance agent by the defendant on June 28, 1976. At this time, plaintiff was furnished a Certificate of Insurance by appellee. In February, 1977, appellant was stricken with cancer (myeola) and appellee’s Comprehensive Medical Expense Insurance paid medical benefits for appellant’s treatment. Appellant was- also covered under the group policy for term life insurance ($22,000.00), accidental death and dismemberment injuries. Appellee bore the costs of all this insurance. On February 21, 1977, appellant became disabled and was placed on appel-lee’s voluntary disability, which entitled appellant to 23 benefit payments for the months of his employment. The 23 week period expired on July 29, 1977. While being paid disability, appellant remained an employee and his coverage continued under the group medical insurance. When his disability benefits ceased, appellant was unable to obtain a medical release to return to work and appellee terminated appellant’s employment as of June 29, 1977. For 31 days after termination, appellee paid medical expenses incurred in that period. The defendant paid a total of $4,487.54 in medicals and $2,485.42 in disability payments.

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

“It is well settled that an insurance policy is a contract between the insured and insurer, and as such has the effect of law on the parties. LSA-C.C. Art. 1901; Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972).
“It is equally well settled that in the absence of conflict with statutory law or public policy, insurers may be unambiguous and clearly noticeable provisions limit their liability and impose reasonable conditions upon their obligations. Such provisions must be given effect as written. Oceanics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974).
“The terms of the policy at issue in the instant suit are clear and unambiguous. Therefore, the language of the policy provisions must be given effect.
“In Matherne v. Prudential Insurance Co., 362 So.2d 823 (La.App. 3rd Cir. 1978), the Court upheld a similar policy provision which automatically terminated coverage upon termination of employment as not violative of public policy and thus could be given effect as intended.
“Considering the facts of the case, it is clear that the medical expenses incurred for which plaintiff seeks recovery were incurred while the policy was no longer in effect as to plaintiff and if the policy in question is to be enforced as written then it is axiomatic that plaintiff must be denied recovery. Matherne v. Prudential Insurance Co., supra.

Upon review this court finds no error of law or fact upon the part of the trial judge. The jurisprudence overwhelmingly provides for the results reached. Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

REDMANN, J., specially concurring.

REDMANN, J.,

concurring.

Plaintiff rightly argues that a misleading descriptive pamphlet given to employees could oblige an insurer (or an employer) to pay benefits that the master policy does not intend. But the descriptive pamphlet here does not mislead.


author: SCHOTT, Judge.

text:
    Samuel W. ETHRIDGE v. MERCHANTS TRUST AND SAVINGS BANK.
    No. 10889.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.

      Edward J. DeMartini, Law Offices of Edward J. DeMartini, Kenner, for defendant-appellant.
    Samuel W. Ethridge, pro se.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Defendant has appealed from a $32,344.86 judgment awarded to plaintiff for legal services he rendered to defendant in two matters, both involving executory or foreclosure proceedings on real estate, initiated by plaintiff in defendant’s behalf.

In the first matter the note sued on had a principal balance of $126,641.46 plus accrued interest and attorney fees of 25%. The property was sold by the sheriff at public auction and was bid in by defendant for $120,000.00 on the basis of which plaintiff billed defendant a fee of $30,000.00. The second matter grew out of a foreclosure handled by plaintiff on several pieces of property. Defendant had plaintiff release one piece from the seizure which it sold to a third party at private sale for $9,379.44. On this basis plaintiff billed defendant the 25% provided for in the note for attorney fees or $2,344.86.

The principal issue is one of fact as to whether there was an agreement between the parties that plaintiff’s fees would be based on a percentage basis or, as contended by the bank, on a time or quantum meruit basis. Other issues raised by defendant on appeal are that the trial judge erroneously based his decision on Jefferson Bank and Trust Company v. Post, 312 So.2d 907 (La.App. 4th Cir. 1975), writs refused 318 So.2d 41 (La.), and that the fees are excessive in any event because of applicable provisions of the Code of Professional Responsibility.

Plaintiff testified that he met with several officials of the defendant when he was first employed as its attorney and they agreed that he would handle all collections on the basis that his fees would be computed on the amounts collected in the percentages called for in the notes with no distinction or exception being made for foreclosure. This testimony was not contradicted in substance by the bank officials who testified. Plaintiff testified that his predecessor who represented the bank worked on the same arrangement and that his (plaintiff’s) many other bills to the bank were paid without question even though they were computed on a percentage basis.

Defendant’s view of the evidence is that plaintiff’s testimony was without any corroboration and was insufficient to prove his claim under C.C. Art. 2277. However, the plaintiff himself qualifies as the “one credible witness” required by the article and the “other corroborating circumstances” means only general corroboration, not proof of every detail of plaintiff’s testimony. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977).

The aspect of plaintiff’s testimony here in dispute is that his fees for collections embraced those collections made after foreclosure. While defendant argues that there was some distinction made by it for foreclosure fees nowhere in the testimony of two of the three officials who initially met with plaintiff was such a distinction made and the third official who was at the meeting did not testify. The very failure on the part of the officials to deny plaintiff’s testimony tends to corroborate it.

Defendant next takes issue with the trial judge’s reliance on Jefferson Bank and Trust Company v. Post, supra, on the basis of the facts of that case. There the bank bid the property in at the sale but subsequently sold the property to one of the debtors for the full amount of its principal, interest and 25% attorney fees stipulated in the note. In the instant case, after bidding the first property in for $120,000 the bank sold the property for $134,824, which was the amount of principal, interest and costs. Thus, the bank argues that a different result should obtain here than in Post because there the sale price collected by the bank included attorney fees whereas here the price included everything but attorney fees.

We are not persuaded by this argument. In the instant case the bank made a partial collection of its entire claim through the same procedure employed in Post and plaintiff is entitled to recover his pro rata of the amount collected. Furthermore, the instant case turns on the existence of a contract between the parties as discussed above. In the Post case the elements of the contract of employment between bank and attorney are not apparent from the decision.

Finally, defendant contends that even if there was an agreement between the parties plaintiff may not recover the amount claimed because it is “in excess of a reasonable fee” and therefore prohibited by DR 2-106 of the Code of Professional Responsibility and public policy according to People’s Nat. Bank of New Iberia v. Smith, 360 So.2d 560 (La.App. 4th Cir. 1978).

The posture of the cited case was entirely different from the instant case. There the bank as holder of a note was attempting to collect from its debtor the percentage attorney fee stipulated in the note and the court held that, considering the amount of work performed by the attorney in making the collection, the stipulated fee was “in excess of a reasonable fee” and could not be exacted against the debtor. There is nothing in the opinion to suggest any agreement between the attorney and the bank as to the ultimate fee to be paid the attorney by his client, the bank, and nothing in the opinion suggests that the attorney was limited in the amount of his ultimate fee from the bank by the same considerations which operated to limit the debtor’s liability to the bank for the bank’s attorney fee.

A reading of the pertinent section of the Code of Professional Responsibility readily demonstrates that the question of whether a fee is unreasonable depends on a number of considerations and ultimately depends on the facts and circumstances of the case. One of the factors weighing on the side of reasonableness is that the subject claim was for two of many, albeit the only land foreclosures, collections undertaken by plaintiff for defendant. In many instances plaintiff collected nothing and was paid accordingly so that the present claim cannot be isolated from the overall relationship between the parties.

Although we have concluded that defendant is liable in principle for the amounts he billed we are unable to agree with his arithmetic in computing his fee. He is not entitled to 25% of the total amount collected as his fee but rather 25% of the amount allocated to principal within the total amount collected. Thus, plaintiff is entitled under his agreement with defendant on the total $120,000 collection the sum of $24,000. The same principle applies to the collection of $9,379.44 so that plaintiff is entitled to $1,875.89 rather than $2,344.86.

Accordingly, the judgment appealed from is affirmed but is amended in its principal amount to the sum of $25,875.89, and otherwise affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff would seem to be entitled to a proportionate fee on the $134,824 sale price less costs but he has limited himself to a percentage of $120,000 only.

      . Principal $96,000 plus 25% attorney fee or $24,000 equals a total of $120,000 collected.

      . Principal $7,503.55 plus 25% attorney fee or $1,875.89, equals total of $9,379.44 coliected.


author: GULOTTA, Judge.

text:
    Pam BAKER v. SIEMENS-ALLIS, INC.
    No. 10894.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    J. William Starr, Gretna, for plaintiff-ap-pellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stephen D. Ridley, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Defendant appeals from a default judgment in the amount of $1,992.76, together with $250.00 in attorney’s fees, representing $62.70 in unpaid wages, 90 days penalty wages and attorney’s fees, as authorized under LSA-R.S. 23:631 and LSA-R.S. 23:632. Proof supporting plaintiff’s claim consisted of an affidavit of correctness. According to defendant, because plaintiff’s claim is based on neither an open account nor a contractual obligation, but á statutory obligation, proof by affidavit is not sufficient. Assuming, but not deciding, that proof by affidavit of the correctness shall be prima facie proof, nevertheless because of plaintiff’s failure to establish a prima facie case supporting her claim, we set aside the judgment and remand.

LSA-C.C.P. art. 1702 provides:
“Art. 1702. Confirmation of default judgment.
A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.” (Amended by Acts 1968, No. 88, § 1.)
LSA-C.C.P. art. 4896 provides also:
“Art. 4896. Defendant’s failure to answer or parties’ failure to appear; effect; proof of open account, promissory note or negotiable instrument; judgment.
If the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary. In such instances, when the suit is for a sum due on an open account, promissory note, negotiable instrument or other conventional obligation, prima facie proof may be submitted by affidavit.
If, after answer, the plaintiff fails to appear at the trial, judgment may be rendered dismissing the suit with prejudice, at plaintiff’s cost.” (Amended by Acts 1968, No. 88, § 1.)

Proof submitted by plaintiff in support of her claim for unpaid and penalty wages is an “affidavit of correctness of account and/or note and non-military service.” The pertinent part of that affidavit reads as follows:

“That she, Pam Baker, is the plaintiff in the above and entitled and numbered cause; that she is familiar and well acquainted with the account of Siemens-Allis, Inc., defendant in the above captioned cause; that plaintiff is the former employee of defendant herein sued; that the true and correct amount owed to plaintiff on said salary by the above named defendant is $62.76 plus 90 days wages under LSA-R.S. 23:631 and 23:632 plus interest and attorney’s fees as prayed for; all subject to a credit of $0.00.”

Noticeably absent from the affidavit are any reference to a date of demand for payment by plaintiff (indeed, of any reference to any demand for payment) and any reference to her daily rate of pay. Although both parties admit in brief that the $62.76 in unpaid wages has been paid, without any proof of the date that demand for payment was made by plaintiff upon the employer, the specific amount of penalty wages to be assessed cannot be properly computed. LSA-R.S. 23:632 provides, in pertinent part, “Any employer who . . . refuses to comply . . . shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made, until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.” (Emphasis added). Because the affidavit is deficient in not specifying the employee’s daily rate of pay and in not specifying the date of the employee’s demand for payment, prima facie proof to support a default judgment for penalty wages is lacking. LSA-C.C.P. art. 1702; LSA-C.C.P. art. 4896.

Accordingly the default judgment rendered in favor of plaintiff is annulled and set aside. The matter is now remanded to the trial court for further proceedings. Defendant is permitted ten days from the date this judgment becomes final to file responsive pleadings. Assessment of costs is to await disposition of this matter.

JUDGMENT SET ASIDE AND REMANDED.

      . LSA-R.S. 23:631 and LSA-R.S. 23:632 read as follows:
      “§ 631. Discharge or resignation of employees; payment within three days after termination of employment.
      A.Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.” “§ 632. Liability of employer for failure to pay; attorneys’ fees.
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to.such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”


text:
    FIRST METROPOLITAN BANK v. Peter A. PLAIA et al.
    No. 10914.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    A. Morgan Brian, Jr., Brian, Simon, Pera-gine, Smith & Redfearn, New Orleans, for defendants-appellees Exchange Oil & Gas Corp. and Hibernia National Bank.
    Harry A. Rosenberg and Peter G. Burke, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellee Howard, Weill, Labouisse, Friedrichs, Inc.
    Marian Mayer Berkett, Deutsch, Kerri-gan & Stiles, New Orleans, for defendant-appellee Hycel, Inc.
    Bruce A. North, Molony, Nolan, North, Riess & Hall, New Orleans, for plaintiff-appellant.
    Before SAMUEL, SCHOTT and BARRY, JJ.
   SCHOTT, Judge.

This case was previously submitted to a panel of this court which included Judge Hood who died prior to the rendition of the opinion appearing at 384 So.2d 560. The Supreme Court remanded the case to us for reargument because our decision was a reversal of the trial court’s judgment and because the opinion was handed down by only two of the original three judges who heard the case. The Court reasoned that defendants were denied the possibility of reargument before a five judge panel as required by La.Const. Art. 5, § 8(B) (1974), 386 So.2d 94. Having heard reargument we affirm our original opinion and reinstate our decree.

We note that appellees have continued to emphasize their position that plaintiff is not entitled to have the stock reissued because plaintiff as a pledgee of Plaia is only in an agency status and can have no greater rights than its principal. Obviously Plaia could not make that demand since it was through his fraudulent activities that the duplicate certificates were issued in the first place.

This is not a suit to compel the issuance of stock. The claim by plaintiff is for damages it sustained as a result of appellees permitting the duplicate certificates to enter the market place without taking some action to safeguard against loss which might be incurred by a holder of the original certificates, thereby breaching some duty to plaintiff. We have held simply that plaintiff stated a cause of action against appellees and is entitled to try its case.

REVERSED AND REMANDED.


author: GARRISON, Judge. REDMANN, Judge, GULOTTA, Judge,

text:
    Robert BENEDIC and Evelyn Benedic v. NEW ORLEANS PUBLIC SERVICE, INC. and XYZ Insurance Companies. ALLSTATE INSURANCE CO. et al. v. NEW ORLEANS PUBLIC SERVICE, INC. et al. VANGUARD UNDERWRITERS INS. CO. v. NEW ORLEANS PUBLIC SERVICE, INC. et al. STATE FARM FIRE & CASUALTY CO., etc. v. NEW ORLEANS PUBLIC SERVICE, INC. et al. FIRST OF GEORGIA INS. CO. v. Robert BENEDIC et al. Joan Stroer Imbraguglio, wife of/and Joseph IMBRAGUGLIO v. NEW ORLEANS PUBLIC SERVICE, INC. et al. Alphonzo J. YATES v. NEW ORLEANS PUBLIC SERVICE, INC. et al.
    Nos. 10972 to 10978.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Nov. 17, 1980.

      C. B. Ogden, II, New Orleans, for defendant-appellee.
    Gauthier & Murphy, Patrick J. McCabe, Kenner, C. Scott Reis, New Orleans, Michael D. Cucullu, Bellaire, Tex., for plaintiffs-appellees.
    Before REDMANN, GULOTTA, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with the verdict of the jury on seven consolidated cases, finding the defendant, New Orleans Public Service, Inc., liable and granting damages to the several plaintiffs as follows:

1. Robert and Evelyn Benedic-$100,-000.00 plus legal interest from demand and costs.

2. Vanguard Underwriters Insurance Co., the insurer of the Benedics-$30,000.00 plus legal interest from demand and costs.

3. Joseph a'nd Joan Imbraguglio-$8,000.00 plus legal interest from demand and costs.

4. Alphonzo J. Yates-$1,500.00 plus legal interest from demand and costs.

All suits arise from the same cause of action, which is an explosion which occurred on July 1, 1977 at 4842 Corsica Place, the Benedics’ house, which prior to the explosion was located in Village de L’Est subdivision. All suits involve property damage and/or personal injuries allegedly resulting from the explosion.

The Benedics and their homeowner’s insurer, Vanguard Underwriters Insurance Company, hereinafter “Vanguard,” brought the original action against New Orleans Public Service, Inc., hereinafter “NOPSI.”

First of Georgia Insurance Group, hereinafter “First of Georgia,” by subrogation from Ronald Williams, brought action for property damage against NOPSI and the Benedics and their liability insurer, Vanguard.

Allstate Insurance Company, hereinafter “Allstate,” by subrogation from Joseph Im-braguglio, Ed Jones, and Frank Boutte, brought actions for property damage against NOPSI.

Joan and Joseph Imbraguglio brought a property damage action against NOPSI, Vanguard, and the Benedics.

Alphonso Yates filed a personal injury suit against NOPSI alone for personal injury resulting from the explosion.

Vanguard, as the Benedic’s homeowner’s insurer, filed third party actions against NOPSI in the First of Georgia, State Farm Fire and Casualty Company, Allstate and Imbraguglio suits.

On the morning of the trial, Vanguard entered into settlements with First of Georgia, State Farm, Allstate, and the Imbra-guglios. Vanguard reserved its rights against NOPSI by virtue of its third party demands in the above suits.

From the judgment which we amend and affirm, NOPSI appeals.

Appellant contends that the trial court erred in assessing liability against it, in failing to grant a motion for a directed verdict, and in admitting certain expert testimony. The Benedics and Vanguard contend that the award in favor of the Bene-dics should be increased to $140,000.00 and that the award in favor of Vanguard should be increased to $46,680.00. Allstate and the Imbraguglios contend that no error was committed and that their awards should be neither increased nor decreased.

The first question to be addressed by this court is the question of the trial court’s denial of defendant’s motion for a directed verdict. The standard for directed verdicts was extensively discussed in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd, 1979):
“The motion for directed verdict is a common law procedural device which has only recently found its >way into the law of Louisiana through Article 1810 of the Code of Civil Procedure. The purpose of the directed verdict is that ‘it serves judicial efficiency by allowing the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.’ Civil Procedure-Work of Louisiana Legislature for 1977 Regular Session, 38 La.L.Rev. 152, 157 (1977); See also Williams v. Slade, 431 F.2d 605 (5th Cir. 1970).
“Plaintiff asserts that the trial court erred in applying a standard of ‘a preponderance of the evidence’ in deciding defendants’ motion for a directed verdict. Article 1810, itself, establishes no standard to be used in determining a party’s right to a directed verdict. Plaintiff argues that the correct standard in ruling upon such a motion is the same as the one applied in Federal Courts, since Louisiana adopted verbatim Section 50(a) of the Federal Rules of Civil Procedure as our Article 1810A. See: Civil Procedure-Work of the Louisiana Legislature for 1977 Regular Session, supra, at p. 157. “We conclude that the plaintiff is correct in his contention that the trial court applied an incorrect standard in granting the defendants’ motion. Moreover, since the source of LSA-C.C.P. Article 1810A is the Federal Rules of Civil Procedure, we believe that the correct standard is that applied in the Federal Court. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975). This standard is succinctly stated in the following language penned by the U.S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):
‘On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover’s case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” At 239 (emphasis added).

A thorough examination of the record convinces this court that defendant’s motion for a directed verdict was properly denied. The facts of the case are not so strong and overwhelmingly in favor of the defendant that reasonable and fair-minded men could not arrive at a verdict in favor of the plaintiffs.

The second issue raised is the court’s acceptance of George Martinsen as an expert in the fields of reconstruction and causes of explosion. Defendant agreed to accept Mr. Martinsen as an expert in the area of fire investigation and fire fighting, but objected to any expert testimony from him in the area of causation. Mr. Martinsen testified as to impact, wall displacement, location of various debris, discoloration, radiation burns, types of burn pattern resulting from certain accelerants, smoke explosion and high generation explosives, the post-explosive condition of all appliances and positions of on and off switches, either of which could have been ignition sources. From the above factual testimony, Martinsen concluded that the explosive fuel was natural gas and that the type of explosion was caused by explosive fuel trapped under the slab.

As stated by this court in Fox v. State Farm Mutual Automobile Insurance Co., 273 So.2d 743 (App. 4th, 1973), writ granted, 277 So.2d 440 (La.) vacated on other grounds, 288 So.2d 42 (La.1974):

“The courts of this state have repeatedly held that the trial court is vested with much discretion in determining whether a witness is qualified to testify as an expert. Hargis v. Travelers Indemnity Co., 248 So.2d 613 (La.App. 3rd Cir., 1971); Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La.App. 4th Cir., 1967); State, Department of Highways v. Williams, 170 So.2d 152 (La.App. 2nd Cir., 1964); Carvel1 v. Winn, 154 So.2d 788 (La.App. 3rd Cir., 1963).” At 746.

The standard to be applied by this court on review is “Did the trial judge clearly abuse his much discretion in admitting the witness as an expert?” We cannot find that the trial judge’s actions constituted a clear abuse of discretion.

The third issue confronted by this court is the question “Did the trier of fact err in assessing liability against the defendant?” At trial, the main issue was whether a leaking gas source caused the explosion or whether there was an explosion from some other source which caused the gas lines to rupture and leak gas. After wading through the voluminous lay and expert testimony, demonstrative evidence and exhibits, this court cannot conclude that the trier of fact was manifestly erroneous in its conclusions. While the case does involve very close factual issues, the standard by which this court is bound is one of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Turning now to the question of quantum, we note the standards of review binding upon this court as stated in Coco v. Winston Industries, 341 So.2d 332 (La.1976):

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award . . . Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court ... It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” At 335. (emphasis added).

This standard was both re-iterated and clarified by the Louisiana Supreme Court in Reck v. Stevens, 373 So.2d 498 (1979), wherein that court stated:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive . . . Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion.’ La.Civ.C. Art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967).” At 501.

A review of the record and applicable case law convinces this court that there is no clear abuse of discretion in awarding the Benedics $100,000.00 instead of $140,000.00.

In the ease of Vanguard, however, a clear abuse of discretion has occurred. As delineated by the uncontroverted testimony of William A. Mouton, Jr. of General Adjustment Bureau, Vanguard has paid to the Benedics the policy limits of $30,000.00 on the dwelling, the policy limits of $15,000.00 on personal property, $923.00 for garage repair and $757.00 for living expenses, equaling a total of $46,680.00. The total amount paid was uncontested and settlement and subrogation receipts were admitted into evidence as Vanguard-1 and Vanguard-2. The jury granted Vanguard damages in the amount of $30,000.00 instead, which award we find to be a clear abuse of discretion.

This last issue raised by plaintiff-appellees is the question of expert fees, which they seek to have increased by this court. As with the question of acceptance of experts, an award of expert fees lies within the much discretion of the trial court. Absent from a clear showing of abuse of discretion, the award of expert fees by the trial court will not be disturbed. Blaise Parking and Enterprise Corp. v. Project Square 221, 349 So.2d 387 (La.App. 4th, 1977). We do not conclude that the awards made were a clear abuse of the trial judges’s much discretion.

For the reasons assigned, the judgment appealed from is amended to increase the award to Vanguard Underwriters Insurance Company from the sum of $30,000.00 to the sum of $46,680.00, and is correspondingly amended to reduce the award to Robert and Evelyn Benedic from the sum of $100,000.00 to the sum of $83,320.00. As thus amended, and in all other respects, the judgment -of the district court is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

GULOTTA, J., concurs in the result.

REDMANN, J., concurs with reasons.

REDMANN, Judge,

concurring.

Almost all of the circumstantial evidence would as well exist whether the broken outside pipe came first and caused the explosion of the house or vice versa. However, the soil expert gave far less factual support than one would wish for his opinion that lighter-than-air gas travelled sideways in dry, sandy soil from the outside crack to underneath the slab of the house.

It is nevertheless not unfair to conclude, first, (on the principle that a chain breaks at its weakest link) that the 38-foot pipe broke in two at its weakest part. Given the further circumstance that the pipe was connected to the exterior wall by a flexible copper pipe to allow for soil subsidence, it seems reasonable to infer, second, that the twisting force from the wall’s being flattened-only a 90° turn in the first place-would have been diminished rather than transmitted the full 90° at full strength to the pipe, whose 38-foot length of presumably uniform plastic might be expected to withstand (as does an automotive torsion bar) some twisting without breaking. It would not be unreasonable to conclude that the pipe broke rather than twisted because it was defective. It would be a remarkable coincidence that the break, even if not defective, lay precisely atop the rigid electrical conduit. The ultimate conclusions are that the weakest part of the gas pipe-inferentially defective and testified to be defective by one plastics fractures expert-was atop the electrical conduit and was being pressed down across it by the force of soil subsidence. It is not manifestly erroneous to decide that, more probably than not, rather than break from the force of the explosion-flattened wall, the defective pipe had first undergone a crack from the force of subsidence and that crack allowed high-pressure gas to escape through subsurface voids to under the house’s slab and then into the house: that the crack caused the explosion rather than vice versa. Thus I agree with affirming the liability determination.

I also agree that the insurer, expressly subrogated to the insureds’ claim, must recover its full payment as demanded by answer to this appeal, and that, under the pleadings and evidence in this case, the necessary increase of $16,480 to the insurer must be accompanied by a $16,480 reduction in the $100,000 award to the insureds. An apparent professional responsibility problem exists in that both insurer and insureds are represented by the same lawyer, and the two clients’ interests seem to conflict. The insureds’ petition had asked for $165,-000 damages, including $60,000 damages for the “total destruction of house,” $50,000 for the contents, and $15,000 for loss of use, without credit for the portions subrogated to the insurers. Presumably the jury award to the insureds includes at least $60,-000 for those items because the insureds only sued for $40,000 for other items. To allow the insureds to retain that $60,000 for those items and to increase the award to the insurer by $16,480 for its subrogated claim for those same items would oblige the defendant to pay twice.

GULOTTA, Judge,

concurring.

I concur in the result.

       Although we find that the award to the Bene-dics is not a clear abuse of discretion, vis-a-vis the defendant, when it is considered vis-a-vis the Benedic’s insurer, this court will be required to reduce the Benedic’s award by $16,-680.00, the amount by which Vanguard’s award will be increased, in order to give effect to the subrogation agreement and prevent a double recovery of the $16,680.00 amount.


author: BOUTALL, Judge.

text:
    Sharon Legendre, wife of Harold Anthony ROWBATHAM, Sr. v. Harold Anthony ROWBATHAM, Sr.
    No. 10960.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Eugene M. McEachin, Jr., Curtis, Hyde, Mooney & McEachin, New Orleans, for Harold A. Rowbatham, Sr., defendant-appellant.
    Elsie B. Halford, Metairie, for Sharon Legendre Rowbatham, plaintiff-appellee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a case concerning the paternity of two illegitimate children and the obligation of the alleged natural father to support them.

This case was begun as a suit for separation from bed and board filed by Sharon Legendre against Harold Anthony Rowbat-ham, Sr., alleging they were married on January 10, 1966, and that two children were born of the marriage, Kelly Lynn Rowbatham, born on April 14, 1968, and Stacy Jeanne Rowbatham, born on April 1, 1969. Ancillary to that suit was a suit for alimony and child support. Subsequent proceedings revealed that at the time of the alleged marriage, Rowbatham was already married to Dolores Babin. A series of legal maneuvers ensued with the final result that Sharon Legendre dismissed all of her claims against Rowbatham, leaving before the court only the issue of the paternity of the two children and the necessity for their support.

After the hearing, the trial judge decided that Rowbatham was the natural father of the two children, but because the blood tests authorized by R.S. 9:396 established that Rowbatham was not the father of the younger child Stacy, the trial judge concluded that R.S. 9:397.2 required him to rule that Rowbatham was not the father of Stacy. Accordingly, he decreed Rowbatham to be the father of Kelly Lynn and fixed alimony in the amount of $1,000 per month for his support. Rowbatham then filed this appeal contending that he was not the natural father of Kelly Lynn and that the amount of support was improper. After the appeal was lodged in this court, the attorney for Sharon Legendre was permitted to withdraw from the case upon allegations that he was unable to contact his client since the appeal was taken, and she had apparently left the state. Upon his recommendations, we appointed an attorney at law as curator to represent the interests of the children. The curator soon thereafter filed an answer to the appeal on behalf of Stacy seeking to have us review the decision of the trial court decreeing Stacy not to be Rowbatham’s child.

Rowbatham has filed a motion to dismiss this answer because it was filed too late under the provisions of Code of Civil Procedure Article 2133. That article requires the answer to the appeal be filed not later than 15 days after the return day or the lodging of the record, whichever is later. By the time counsel for appellee withdrew, that period was long since past, and we know of no way in which it can be revived. Accordingly, we grant the motion to dismiss the answer to the appeal, and thus do not consider any issues raised on behalf of Stacy Jeanne Rowbatham.

We agree with the finding of the trial judge that Harold Anthony Rowbat-ham is the natural father of Kelly Lynn Rowbatham. Blood tests were conducted under the authority of R.S. 9:396 et seq., and the two doctors who conducted them concluded that the blood tests show the possibility of Rowbatham’s paternity. Their findings are supported by additional evidence in the form of testimony and several documents. See Louisiana Civil Code Article 209. The documents alluded to are Rowbatham’s 1975 and 1976 U.S. Income Tax Returns, a Master Charge Credit card application and a loan application. These documents indicate that Rowbatham was treating the two children of Sharon Legendre as his children. Additionally, we point to the fact that Sharon Legendre produced a certificate of marriage between her and Rowbatham dated several years prior to the birth of the children, and when the parties had a severe disagreement in September, 1973, Sharon gave up their custody to Row-batham and addressed a letter describing herself as the “natural mother of Kelly and Stacy Rowbatham” giving up her custody to their “lawful and natural father, Harold Anthony Rowbatham”. What is significant about this letter is that Rowbatham took the letter and the children to his legal wife Dolores, and placed the children with her for their care.

In considering the testimony, we note that Rowbatham admitted the following facts: 1.) He lived together off and on for the last 12 years with Sharon Legendre; 2.) he listed Kelly and Stacy as dependent children in his tax return; 3.) he was aware that Kelly and Stacy carried his surname Rowbatham as their own; 4.) he admitted he probably told other people Kelly and Stacy were his children; 5.) he contributed to the support of Kelly and Stacy since their birth; and 6.) he paid tuition for the children at Catholic Schools. Additionally, in answers to requests for admission, Row-batham admitted that he carried them as dependents under his Blue Cross Hospitalization policy.

Sharon Legendre testified that the children were indeed the children of Rowbat-ham with whom she cohabited and had intercourse over a long period of years, and especially during the time of conception. She testified that Rowbatham always considered the children as his, and contributed to their support and wellbeing. Both children called Rowbatham “daddy” and he treated them as a father ordinarily would. Her testimony is supported by the testimony of other witnesses who testified that there was a mother-father-child relationship between Sharon, Rowbatham and the children.

Accordingly, we conclude that there is sufficient proof to show that Harold Row-batham is the natural father of Kelly Lynn Rowbatham.

The remaining issue is the necessity of support. Having been declared the child of Harold Rowbatham, Kelly has a right under Civil Code Article 242 to sue for the alimony provided in Civil Code Articles 240, 230 and 231. Kelly was 11 years of age at the time of trial, and has no independent estate, his only support coming from his parents. His mother Sharon is a welfare recipient and is unable to provide for Kelly. Row-batham’s yearly income is in excess of $77,-000 gross. The trial judge granted the amount of $1,000 per month as alimony for Kelly.

Although the sum of $1,000 per month appears quite generous, we cannot say that the trial judge is in error. The trial judge is given wide discretion in the fixing of alimony, and while perhaps we would not have granted quite so large an amount, nevertheless the evidence, particularly considering the testimony of need for medical services, can justify an award as made. We feel this to be especially true in this rather confusing case, being of the opinion that the children involved need as much court protection as can be legally granted.

Accordingly, the motion to dismiss the answer of Stacy Jeanne Rowbatham filed by the curator is granted, and the answer to the appeal is dismissed. On the merits of the appeal, the judgment of the trial court is affirmed.

Motion to dismiss answer granted. Judgment affirmed.


author: REDMANN, Judge. SARTAIN, Judge,

text:
    SUCCESSION of Clifton Anthony DONOHUE.
    No. 11127.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Writ Refused Nov. 26, 1980.
    Abbott J. Reeves, Gretna, for plaintiff-appellant.

      Stanford L. Raborn, Torres & Bischof, Chalmette, for defendants-appellees.
    Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   REDMANN, Judge.

Irene Keller appeals from a judgment which dismissed, on exception of no cause of action, her petition of opposition to a petition by three children for possession of the estate of their intestate father. Opponent averred only that she “considers herself the surviving spouse in community of the deceased” (emphasis added) and asked recognition as surviving spouse in community. Opponent does not allege that she is a putative wife whose good faith in an invalid marriage would entitle her to the civil effects of marriage under La.C.C. 117.

There is thus no allegation that the relationship of decedent and opponent was the result of a solemnized marriage, valid or invalid.

C.C. 88 provides:
Such marriages only are recognized by law as are contracted between a man and a woman and solemnized according to the rules which the law prescribes.

The law could scarce be plainer: a sharing of bed and table, for a night or for a lifetime, does not by itself constitute marriage. Sesostris Youchican v. Texas & P. R. Co., 1920, 147 La. 1080, 86 So. 551. Even for a putative marriage, there must be an honest and reasonable belief that “all the formalities of a civil ceremony [have] been complied with ....” Succession of Marinoni, 1935, 183 La. 770, 164 So. 797, 804. And marriage is the only means by which one can become a spouse in community.

That one who never went through any marriage ceremony with a decedent “considers [oneself] the spouse in community” of the decedent is no reason even to pause before sending the intestate decedent’s children into possession of all his property.

Upon sustaining a peremptory exception, a court must grant leave to amend if the grounds for the exception can be removed by amendment, but must dismiss if they cannot; C.C.P. 934. To state a cause of action for a surviving spouse’s share of the estate, opponent would have to amend to allege either a marriage ceremony in compliance with law or one that opponent honestly and reasonably believed was in compliance with law. Opponent has no possibility of making such an amendment because she admits “in part,” in her answer to the children’s petition for a declaratory judgment, that she “and the deceased were living in open concubinage for many years prior to the date of death,” although she adds that that “does not fully state [their] relationship.” The trial judge was therefore correct both in maintaining the exception and in dismissing rather than allowing amendment.

Affirmed.

SARTAIN, J., dissenting in part.

SARTAIN, Judge,

dissenting in part.

I concur with the majority in that the exception of no cause of action was properly sustained. However, I disagree with the majority in its conclusion that the matter should not be remanded to permit an amendment to the pleadings. C.C.P. art. 934.

The record does not disclose that Mrs. Keller either requested an opportunity to amend or that the trial judge denied her the opportunity to do so.

In her brief in this court she contends that certain items of property listed in the inventory as belonging to the estate were acquired as the result of “her labor and investment.” This claim is an obvious deviation from that asserted in her original petition, i. e., that she considers herself “the surviving spouse.” It presents a distinct and seperate claim for relief. Keller v. Keller, 220 So.2d 745 (La.App.1st Cir. 1969); Guerin v. Bonaventure, 190 So.2d 476 (La.App.1st Cir. 1966); Sparrow v. Sparrow, 231 La. 966, 93 So.2d 232 (1957).

Under these circumstances I think the cause should be remanded. Hodges v. La- Salle Parish Police Jury, 368 So.2d 1117 (La.App.3rd Cir. 1979).


text:
    In re Carl J. SCHUMACHER, Jr.
    No. 11242.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Schumacher Law Corp., Ltd., Carl J. Schumacher, Jr., New Orleans, Philip Han-delman, New York City, for plaintiff-appel-lee.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann and Stephen G. Bullock, New Orleans, for defendants-appellants.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Appellants and appellee formed a law corporation on April 27,1976. A shareholders agreement was executed providing that upon termination of employment a shareholder was obligated to sell and the law firm obligated to buy, at book value, all stock owned by the terminated shareholder. Book value of the shares would be determined by the firm’s accountants and its determination would be binding on all parties. Any dispute arising out of the shareholders agreement is to be settled by arbitration under rules of the American Arbitration Association.

On July 26, 1976 appellants terminated their relationship with appellee. The firm’s accountants calculated the value of his shares at $11,151.00 and on October 22, 1976, the firm tendered a check in this amount to appellee. On December 6, 1976 appellee’s attorney returned the check because he felt this payment “did not take into account all of the relevant factors and I would reiterate my suggestion that we take steps to begin arbitration of this matter in accordance with the stockholders agreement.”

Arbitration never commenced. Instead, on August 28, 1979, three years after sending his letter, Mr. Schumacher filed a petition for perpetuation of testimony which sought production of corporation records and the opportunity to take testimony of members of the firm.

The authority to perpetuate testimony before trial is provided by LSA-C.C.P. Art. 1429:

A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought. The petition shall be entitled in the name of the petitioner and shall show:
(1) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.
(2) The subject matter of the expected action and his interest therein.
(3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
(4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known.
(5) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

The District Court entered an order directing that the books and records of the law corporation be made available as well as the remaining stockholders for their testimony. The law corporation appeals seeking dismissal of the petition.

We are asked to determine whether LSA-C.C.P. Art. 1429 may properly be used to obtain pre-trial evidence in a matter which is subject to arbitration.

The first part of (1) of Art. 1429 requires that the perpetuation of testimony “be part of an action that may be cognizable in any court of this state”. However, the shareholders agreement which appellee signed provides for arbitration as an exclusive remedy for any dispute which may develop. Appellee’s awareness of this particular provision was apparent when his attorney suggested its use when returning the equity check.

LSA-R.S. 9:4202 provides:
If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

If appellee had sued in District Court on the merits of his claim, the lawsuit would have been stayed or been subject to an exception under LSA-R.S. 9:4202. Appel-lee is bound to the arbitration provision of his agreement and is therefore unable to bring an action “cognizable in any court of this state”. The arbitration provision is exclusive assuming the shareholders agreement is valid.

Whether appellee met the other provisions of Art. 1429 is immaterial. If Mr. Schumacher can be estopped from filing suit in District Court because of mandatory arbitration, then he is clearly prohibited from utilizing the authority of Art. 1429.

We conclude the trial court abused its discretion granting appellee’s petition to perpetuate testimony.

The judgment 'of the District Court is reversed. The petition to perpetuate testimony filed by appellee is dismissed. Appel-lee to pay all costs of this appeal.

REVERSED AND DISMISSED.

      . See Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La., 1978).

      . Appellee appeared in proper person during argument and acknowledged he did not attack the credibility or veracity of his former law partners because of personal reasons, nor has he, as yet, attempted to nullify the shareholders agreement.


author: GARRISON, Judge.

text:
    Sharon SCHWINDT v. Earl TONGLET and Ralph Delrio d/b/a A-1 Disposal Service, Samuel Duhon, Jr. and ABC Insurance Company.
    No. 11245.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Robert B. Schambach, Lea & Lilley, Me-tairie, for defendants-appellants.
    Henry L. Klein, Klein & Rouse, New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting to plaintiff damages in the amount of $3,500.00, plus $332.00 for medicals, and expert fees. The damages awarded were for an injury sustained by plaintiff on November 29, 1976, when the vehicle which she was driving was struck by a dumpster driven by the defendant’s employee. The trial court apparently agreed with the plaintiff’s evidence which tended to show that the defendant’s truck, while in the process of backing up, collided with the driver’s side door of plaintiff’s stopped vehicle. From that decision, which we now affirm, the defendants appeal.

Defendant-appellant argues on appeal that the trial court erred in finding the defendant negligent, in failing to find the plaintiff negligent or contributorily negligent and abused its discretion by awarding $3,500.00 for personal injury. We disagree.

Our independent review of the evidence and testimony presented convinces this court that the trial judge was not manifestly erroneous. This case involves primarily a credibility call on the part of the trial judge. Under the rule of Canter v. Koehring, 283 So.2d 716 (1973) and Arcenaux v. Domingue, 365 So.2d 1330 (1978), the trial judge’s findings of fact will not be disturbed.

Plaintiff-appellee argues on appeal that the damages awarded should be increased. We disagree. Dr. Padua testified that the plaintiff suffered muscle spasms for which she received muscle relaxants, pain medication, and physical therapy. He further testified that she was asymptomatic as of January 11, 1977. Our review of the record coupled with a review of the scale and range of the case law on damages, as applied to this particular plaintiff in this particular case, convinces this cou.rt that the trial judge did not abuse his discretion in the damages awarded. Reck v. Stevens, 373 So.2d 498 (1979).

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

AFFIRMED.

      . Trans, p. 54.


text:
    Roland J. LANDRY v. Sheila O. OCKMAN, wife of Roland J. Landry, Jr.
    No. 11246.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Wilmer Glauner Hinrichs, New Orleans, for plaintiff-appellee.
    Michael H. Piper, III, New Orleans, for defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   CHEHARDY, Judge.

Sheila Ockman Davis appeals from a trial court decision of July 27, 1979, granting a change in custody of her minor daughter, Richelle Leigh Landry, from herself to her former husband, Roland J. Landry, Jr. In a previous decision on April 4, 1978, the trial court had awarded Landry a divorce by default and also granted custody of Richelle to Mrs. Davis.

The sole issue in this case is whether the trial court erred in changing custody of Richelle to Landry.

It was established at the trial court that since the time of her separation from Landry, Mrs. Davis cohabited with Robert Cardinal for a period of approximately nine months, and the living arrangements were such that Mrs. Davis shared the apartment bedroom with Cardinal while Richelle slept in the living room. It was also uncontro-verted at trial that Mrs. Davis had cohabited with her present husband, Troy Davis, at the home of Mrs. Davis’ mother from April of 1978 until April of 1979, when the couple was married, and that Richelle also maintained a bedroom in the house during that period.

Although both Mrs. Davis and Landry admitted to having used marijuana, Landry testified he had only done this several times to accommodate his wife’s friends in an effort to hold the marriage together.

Landry also testified that his former wife no longer communicates with him regarding her visitation times with Richelle, but insists that all arrangements be made through Mr. Davis. He also testified that in spite of the fact he had voiced strong objection to his child (who was five years old at the time) being removed from this country to go with her maternal grandmother and her husband to Labuan, Malaysia, Mrs. Davis allowed Richelle to be gone on this trip for a period of five or six weeks. There was also conflicting testimony between the parties and the witnesses regarding whether this trip was originally planned as a summer vacation or an extended stay in that country, possibly as long as a year.

Mrs. Cecile Castleman, Richelle’s maternal grandmother, also said at trial that during the periods Mrs. Davis and Richelle lived with her, she raised Richelle as almost one of her own children and that she did the housework and cooking during these times.

There was expert testimony given at the trial by Dr. C. A. Cowardin, a child psychiatrist, who had interviewed Richelle at her father’s request. On the basis of that interview she concluded the child related equally to four different people: her grandmothers, her mother and her father. She said if a child of less than three years of age were left in a nursery all day, as was evidenced in this case, in spite of the lack of necessity for the mother to work or when she was not working, that this would suggest the mother’s relationship with the child was not a particularly intense one. She also stated if the mother then absented herself in the evenings, leaving the father to care for the child, that her relationship to her father might approach what we classically think of as the mother-child relationship. Dr. Cow-ardin said, moreover, that if a child of Rich-elle’s age had been sent to a foreign country with her grandparents and the separation had been presented as being of an indefinite time period, that anxiety would arise from uncertainty on the child’s part. She also felt that it was not in the child’s best interest not to know when she would see her father, and she believes it creates anxiety on a child’s part to move from one situation or city to another.

Nancy Sims Rumage, a child psychologist, also testified as an expert and had interviewed Richelle on three occasions at the request of her mother. Mrs. Rumage felt Richelle has good, strong feelings toward her mother and said the child wanted to live with her mother but would like to see more of her father. She also felt the trip to Malaysia could have been a very interesting experience for a child like Richelle if handled correctly.

Neither Dr. Cowardin nor Mrs. Rumage could conclude at this point that Mrs. Davis’ living with two different men to whom she was not married would have any adverse effect on Richelle later in life; and both experts advised against the father sharing a bedroom with Richelle, as had previously been the case during his weekend visitations with her in the paternal grandmother’s home.

There was testimony from Mrs. Davis that Richelle was left during the summer of 1978 with Mrs. Castleman and other relatives while he and Mrs. Davis went on trips. Mrs. Davis also said her husband will be transferred from Houma to Hammond and that they had not yet made living arrangements in that city.

In giving his reasons for judgment from the bench, the district court judge referred to the case of Bankston v. Bankston, 355 So.2d 58, 62 (La.App. 2d Cir. 1978), which stated:

“While this case does not involve a previous considered decree of custody and the so-called double burden rule is not applicable, the rationale of cases such as Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977) is applicable. Our law recognizes that changes in custody upset the stable environment of children and for that reason should not be undertaken lightly. In the absence of a finding that the existing custody situation is detrimental to the child or that a change in custody would be more beneficial to the child, a change should not be ordered.”

It has also been established by the courts that the double burden rule is only applicable in a change of custody case where the previous judgment of custody was a considered decree, i. e., there was evidence taken of at least one party’s fitness to have care, custody and control of the children. Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977), and Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976).

An appellate court’s standard of review in custody cases will be found in Schexnayder v. Kincke, 372 So.2d 742, 743 (La.App. 4th Cir. 1979), wherein this court explained:

“The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); State ex rel. Killman v. Gurley, 354 So.2d 755 (La.App. 4th Cir. 1958). Since the judicial system imposes upon trial judges the duty of deciding child custody cases, the judges must have authority and discretion commensurate with that responsibility. See Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976). The decision must not be disturbed absent a clear abuse of discretion. Gurley, supra, Landry v. Landry, 339 So.2d 360 (La.App. 1st Cir. 1976).”

We share the concerns expressed by the trial judge, who stated:

“ * * * In connection with this matter, the Court is impressed with the testimony of Dr. Cowardin. It seems to me that what she indicated here was along the pattern of a loose relationship between the mother and the child. The present conditions, situation with the mother is unstable, is unlikely to change. We have a situation where the child is going to be moving from place to place. She has been moved and left, and moved and left in various places. And I am usually reluctant to change custody.
* # * * * *
“I find that Mrs. Ockman has-or Mrs.now Mrs. Davis, has a rather loose concept of what is social and moral concepts. She moved in with one guy because he had a place, or he moved in with her because he didn’t have a place to stay. He testified they used marijuana rather frequently.
“Likewise, she moved in with her present husband while she was married and while he was married. He has been married five times. I can’t say that he is going to suddenly pick up and be gone; that this is going to be his dream world.
“Consequently, I think the situation at present is very unstable. That is a detrimental-it has a detrimental effect on the 'child. Likewise, I feel that the situation presumed-not presumed, but shown by actual previous activities by the Landrys indicate that she will be put into a more stable type situation; that she will have a better chance on a long term of getting out and into the world with the better concept.” N

In view of the above and all of the evidence presented in the record we conclude the district court judge acted within his authority and discretion in deciding it was in Richelle’s best interest to live' with her father.

Accordingly, the trial court judgment is affirmed in all respects.

AFFIRMED.