text:
    Janice Ellen Muller BUCHANAN, Plaintiff-Appellee, v. Billy Joseph MALONE, Defendant-Appellant.
    No. 14850.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      Settle & Nesbitt by B. Woodrow Nesbitt, Jr., Shreveport, for defendant-appellant.
    Pringle & Herzog by R. Perry Pringle, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

In this case of first impression under the Uniform Child Custody Jurisdiction Act (La.R.S. 13:1700 et seq.), the main issue to be decided is whether the trial court erred in refusing to convert a habeas corpus proceeding into a hearing on the merits for a change of custody. Based upon a valid foreign custody decree, the court granted the writ and ordered the children returned to the nonresident custodial parent. We affirm.

On June 28, 1979, Janice Ellen Malone (now Buchanan) obtained a separation in this state from her then husband, Billy Joseph Malone. Custody of the two children was granted to the mother.

Subsequently the mother and children moved to the state of Washington, where, on February 1, 1980, she was granted a divorce and custody of the children. Thereafter, the mother remarried and continued to reside in Washington with her children and new husband.

Pursuant to a mutual agreement, the children were permitted to visit their father in Louisiana from July 12 to August 30, 1981. During this period the father informed the mother that he did not intend to return the children to her custody. On September 1, 1981, the father filed suit to modify the foreign custody decree, praying that he be granted permanent custody of the children.

On September 3, 1981, the mother instituted this habeas corpus proceeding, seeking enforcement of the Washington decree and a return of the children to her custody. On September 11, 1981, at the hearing on the writ, the father filed an answer and motion in open court, seeking a conversion of the habeas corpus proceeding into a determination on the merits of the change of custody matter.

After an evidentiary hearing limited solely to a determination of how the children came to be in Louisiana, the court denied the father’s motion. Having found the father wrongfully refused to return the children after their summer visitation in this state, the court concluded that allowing a trial of the change of custody issue in this habeas corpus proceeding would contravene the purpose of the Uniform Child Custody Jurisdiction Act. The court further noted that such a ruling would not impair the father’s rights since the earlier suit he filed seeking modification of the custody decree was still pending. Furthermore, the court found that forcing the mother to litigate the custody issue in the habeas corpus proceeding would deprive her of proper notice and a reasonable opportunity to present witnesses on her behalf.

After denying the father’s motion, a limited hearing was held on the writ of habeas corpus. Therein it was established that the mother was awarded custody by a valid Washington decree, a certified copy of which was filed into evidence. Upon the conclusion of the hearing, the court ordered the father to return the children and all of their possessions to the custody of the mother.

On appeal, the father assigns as error the trial court’s denial of his motion to convert the habeas corpus proceeding. Relying on a line of cases exemplified by Wood v. Beard, 290 So.2d 675 (La.1974), he contends that it is appropriate for the trial court to determine the fitness of the custodial parent when this issue is raised in response to a writ of habeas corpus.

While the cited jurisprudence does stand for the proposition advocated by the father, we note that the cases relied upon were decided prior to Louisiana’s adoption of the Uniform Child Custody Jurisdiction Act. To the extent these cases conflict with the act, they must be considered legislatively overruled.

La.R.S. 13:17m, provides that a foreign custody decree may be filed with the clerk of any district court or family court of this state. A decree so filed shall be enforced in a like manner as a custody decree rendered by a Louisiana court. La. C.C.P. Art. 2592 provides that summary proceedings may be used for the original granting of, or a subsequent change in child custody. Thus it is apparent that a writ of habeas corpus is appropriate to enforce a foreign custody decree under the Uniform Child Custody Jurisdiction Act. In accord with this position is Slidell v. Valentine, 298 N.W.2d 599 (Iowa 1980), where the court held that a habeas corpus proceeding is a “custody proceeding” for the purpose of implementing the Uniform Child Custody Jurisdiction Act. See also 9 U.L.A. Master Edition, Uniform Child Custody Jurisdiction Act § 2(3), Commissioners’ Note at p. 120.

However, the question still remains whether a habeas corpus proceeding instituted to enforce a foreign custody decree may be expanded by the opposing party to litigate a request for modification of that decree. La.R.S. 13:1714 is identical to Section 15 of the model Uniform Child Custody Jurisdiction Act. The Commissioners’ Note to Section 15 states that “the authority to enforce an out-of-state decree does not include the power to modify it. If modification is desired, the petition must be directed to the court which has jurisdiction to modify under Section 14.”

Section 14 of the model uniform act is identical to La.R.S. 13:1713, which provides that:

A. If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Part or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.
B. If a court of this state is authorized under Subsection A of this Section and Section 1707 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with Section 1721.

Thus a study of the relevant statutes indicates that a habeas corpus proceeding instituted under La.R.S. 13:1714 to enforce a foreign custody decree may be expanded to modify that decree only if the court would also have the necessary jurisdiction under La.R.S. 13:1713. Furthermore, La. R.S. 13:1713(B) indicates that the court may decline to exercise this jurisdiction under La.R.S. 13:1707 due to the conduct of the party seeking modification of the custody decree.

In the absence of jurisprudence in this state sufficiently analogous to the question before us, we find it appropriate to refer to the appellate decisions of other states which have adopted the Uniform Child Custody Jurisdiction Act.

In Barcus v. Barcus, 278 N.W.2d 646 (Iowa 1979), the court was faced with substantially the same issues under the uniform act as presented here. In that case, the child’s half-sister obtained an ex parte order from an Illinois court appointing her guardian of the child upon the death of the mother. On that same date, the child’s father obtained an ex parte order from an Iowa court granting him custody of the child.

Later, the father initiated three separate actions in the Illinois court. One was a petition to register his custody order as a foreign decree; another was a petition to vacate the guardianship order; and the third was a petition for writ of habeas corpus in which he requested custody of the child.

All three of the Illinois actions were consolidated in a single proceeding. After a hearing the Illinois court ruled that the half-sister should retain temporary custody of the child until a hearing on the merits of the custody issue was held. The court also ordered that the father be granted an eleven day visitation period with the child. The father then removed the child to Iowa and did not return him to Illinois.

Subsequently, the half-sister went to Iowa and instituted a habeas corpus action, seeking enforcement of the Illinois guardianship order. In his answer, the father denied the legality of the Illinois guardianship order, asserted his right to custody based on his Iowa custody order, and alleged the child’s best interests required that he be awarded custody.

At the hearing on the Iowa habeas corpus action, the half-sister requested that the court refuse to exercise jurisdiction to adjudicate the merits of the custody dispute. After hearing the evidence, the trial court granted the request and sustained the writ of habeas corpus, ordering the child returned to her custody pending trial of the custody issue in Illinois.

The Iowa Supreme Court affirmed the trial court’s decision to decline jurisdiction over the merits of the custody matter. First, the court determined that by filing an answer to the habeas corpus action in which he requested custody of the child, the father became a “petitioner” for custody within the meaning of the act. Secondly, the court found that two provisions of the uniform act allowed the court to decline the exercise of jurisdiction over the merits. As relevant to our discussion, the Iowa Supreme Court found the trial court did not abuse its discretion in refusing to exercise jurisdiction based upon the improper conduct of the father.

The Iowa Supreme Court distinguished between the use of a habeas corpus action to decide the merits of a custody dispute and to enforce a foreign decree under the uniform act. The Supreme Court held that a trial court need not try the merits of custody disputes in all cases. The effect of applying the uniform act in that case was to narrow the scope of the habeas corpus inquiry. Once the trial court refused to decide the merits of the custody dispute, it still had the prerogative and duty to determine whether to enforce the foreign custody decree.

In Tilden v. Locke, 383 So.2d 976 (Fla. 3d D.C.A. 1980), the father instituted a habeas corpus proceeding in Florida to enforce a New York custody decree under the Uniform Child Custody Jurisdiction Act. After a hearing, the trial court issued an order which effectively modified the New York decree pending further adjudication. The court of appeal reversed, finding that such a modification of a custody decree is not proper without appropriate notice, pleadings, or factual predicate.

After giving the matter careful consideration, we find that under some limited circumstances a trial court has the authority to consider a request for modification of a foreign custody decree in response to a habeas corpus proceeding brought to enforce the decree under La.R.S. 13:1714. However, before such a determination can be made, it is necessary that an independent jurisdictional basis exist, as provided by the uniform act. Even then the contestants must be given reasonable notice and an opportunity to be heard (La.R.S. 13:1703). In no case should a party be allowed to convert such a proceeding into a trial on the merits of the custody dispute if to do so would subvert the intent of the Uniform Child Custody Jurisdiction Act. See La. R.S. 13:1700.

In the instant case, the trial court found that the father improperly retained the children after the agreed upon visitation. Under La.R.S. 13:1707(B), the court had the discretion to decline the exercise of its jurisdiction to modify the foreign custody decree. Since the trial court properly exercised its discretion, we need not decide whether the court may have otherwise conducted a hearing on the merits under the above described criterion.

The father further contends on appeal that the court erred in also ordering the return of the children’s clothes and other possessions to the mother. The father alleges that certain clothing worn by the children was necessary evidence in his pending action to modify the foreign custody decree. When this issue was raised in the trial court, the father was allowed several hours in which to photograph the relevant clothing and preserve his evidence. In our view, a photograph of the clothing was an adequate substitute for the actual physical evidence. In this regard, the trial court did not abuse its discretion.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant.

      . La.R.S. 13:1714. Filing and enforcement of custody decree of another state
      A.A certified copy of a custody decree of another state may be filed in the office of the clerk of any district court or family court of this state. The clerk shall treat the decree in the same manner as a custody decree of the district court or family court of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state.
      B. A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody or his witnesses.
      C. Upon filing of a certified copy of a custody decree of another state, valid on its face, and upon a showing of probable cause to believe that the person with physical custody of a child is likely to flee the jurisdiction of this state, the court may place the temporary custody of the child with the office of family services of the Department of Health and Human Resources pending a determination of the validity of the other state’s custody decree. Temporary custody shall not exceed fifteen days unless the court extends the period upon a showing of good cause. In no case shall the custody period exceed sixty days.

      . La.R.S. 13:1707. Jurisdiction declined by reason of conduct
      A.If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
      B. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
      C. In appropriate cases a court dismissing a petition under this Section may charge the petitioner with necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    James F. COPES, et al., Plaintiffs-Appellants, v. COPELAND BUILDING SUPPLY, INC., et al., Defendants-Appellees.
    No. 14808.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      Hamilton & Carroll by Orlando N. Hamilton, Jr., Oak Grove, for plaintiffs-appellants.
    Cooper & Loftin by Lowen B. Loftin, Rayville, for Copeland.
    Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendant-appel-lee American Ins.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

In this tort action plaintiff, James Copes, individually and for the benefit of his minor daughter, Sonia, appeals a judgment which awarded damages in the amount of $2,331.07 against Copeland Building Supply, Inc. for injuries to Sonia and medical expenses incurred for the treatment of those injuries. The judgment rejected plaintiff’s demands against Copeland’s insurer. On appeal, through two specifications of error, appellant complains of the trial judge’s failure to render judgment against American Insurance Company, defendant and insurer of Copeland, the defendant held liable, and the inadequacy of the award of only $2,000 in general damages for Sonia’s injuries. We amend and affirm.

The plaintiff had contracted with Copeland for remodeling work on his home at Pioneer, Louisiana. That work was in progress on March 3,1976. The Copes family, composed of plaintiff and his wife and three daughters, Sonia, who was then eleven years old, and two older daughters, Judy and Kim, continued to reside in the house during the remodeling.

On the morning of March 3rd, when plaintiff left for work at approximately 8:00 a. m., there was no sheetrock stacked at his home. Sometime during the day Copeland delivered by truck eighteen bundles of sheetrock to the Copes’ home. The sheetrock was 4' X 8' and W thick. Each sheet weighed from 30-35 pounds and there were two sheets per bundle.

When Sonia and her sisters returned from school at about 3:30 p. m. the sheet-rock was stacked in a hall being formed by an existing wall of their home and a wall of a new bedroom being added to the house. The new wall at that time was only studs. The sheetrock was stacked leaning against the stud wall with the long edge horizontal.

Sonia walked through the hall several times that afternoon without incident. At around 4:00 or 4:30 p. m. the workmen left the job. Sometime after that as Sonia walked by the sheetrock she observed that one bundle had started to fall. As Sonia tried to grab the falling bundle the rest of the sheetrock fell against her and pinned her against the existing wall.

After her sisters freed her from the fallen sheetrock they took Sonia to her mother’s place of employment and she was then taken to the Delhi Clinic. It was determined that both bones in Sonia’s right forearm were broken. The fractures were set by a closed reduction and Sonia’s arm was placed in a long cast. She was kept in the clinic overnight for observation.

Plaintiff brought this action against Copeland, the contractor, and American Insurance Company, the liability insurer of the Copeland trucks used to deliver the sheetrock.

Plaintiff contended that the accident resulted from negligence in the unloading of the sheetrock from the trucks and that both Copeland and American were liable for Sonia’s injuries. After a trial on the merits the district judge found that the accident was caused by negligence in stacking the sheetrock and rendered judgment against Copeland.

The doctrine of res ipsa loquitur is applicable to this accident. Mercer v. Tremont & G. Ry. Co., 19 So.2d 270 (La.App.2d Cir.1944); Spurlock v. Boyce-Harvey Machinery, 90 So.2d 417 (La.App.1st Cir.1956). The sheetrock was under the actual and constructive control of Copeland, who had delivered it to the Copes’ home and stacked it in the hall constructed by it in the remodeling of the house. The sheetrock was placed there for use by Copeland’s employees in the completion of a new bedroom being added to the house. The falling of the sheetrock was an accident which ordinarily does not occur in the absence of negligence. The evidence of the circumstances surrounding the stacking of the sheetrock was more readily accessible to Copeland than to the plaintiff because Copeland’s employees unloaded the truck. The occurrence of the accident created a presumption that it occurred because of the negligence of Copeland’s employees who stacked the sheetrock and Copeland did not rebut the presumption created by the application of the doctrine of res ipsa loquitur.

In Mercer, supra, the court applied res ipsa loquitur to find liability where a stack of railroad car wheels fell upon plaintiff, and in Spurlock, supra, the doctrine was applied to find liability where a stack of motor grader blades fell upon plaintiff’s foot.

The trial judge’s finding of liability on the part of Copeland for Sonia’s injury was correct.

The district judge found that plaintiff had failed to prove coverage and dismissed his demands against the insurer. Plaintiff then took this appeal. Copeland did not appeal nor answer the appeal. Only American, among the appellees, filed a brief.

The plaintiff sets out two specifications of error: (1) that the trial court erred in concluding the accident was not covered by the policy issued by American, and (2) that the trial court erred by awarding inadequate damages for Sonia’s injuries.

SPECIFICATION # 1

American’s policy insured against damages:

“... arising out of the ownership, maintenance or use, including loading and unloading ...”

of the trucks.

The issue here is did the accident which injured Sonia arise out of the unloading of the trucks? It is plaintiff’s burden to establish that it did in order to recover from the insurer. B.T.U. Insulators, Inc. v. Maryland Casualty Co., 175 So.2d 899 (La.App.2d Cir. 1965).

The test for coverage under an “unloading” clause is whether, under the particular facts involved, the act causing injury constituted a part of the “unloading” process as that term is commonly understood. Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968). Thus, the inquiry becomes was the negligent stacking of the sheetrock in the hall a part of the “unloading” process? The trial judge was clearly wrong in failing to so find. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial judge’s reasons for judgment show that he was troubled by the lack of detailed proof as to how the unloading was done and the lapse of time between the unloading and the accident.

Mr. Will Scott, who was employed by Copeland on the Copes’ job, testified as follows:

“Q. I see. The day after Sonia got hurt, were you on the job?
A. Yes, sir.
Q. Did you see the sheetrock at that time?
A. I believe I did.
Q. Was it in the hall?
A. Yeah.
Q. Was it the same place that ya’ll had unloaded it and stacked it?
A. Yeah.
Q. It had not been moved any from that location?
A. No, sir.
Q. Alright. So it’s fair, then, to say that the ... the material came out on the truck; ya’ll stacked it in the hall; it fell on the little girl, apparently, although you didn’t see this, and the next time you saw it it was right where it had been before it fell?
A. Seemed like to me it was.
‡ ‡ ‡ ‡ ‡ ‡
Q. Alright. Do you recall when ya’ll left and when the sheetrock was stacked as to how it was stacked?
A. Say how it was stacked?
Q. Yes.
A. It was laid up side the wall, like that.
Q. It was leaned against the wall?
A. Leaning against the wall.” [Tr.107-108]

The quoted testimony of Scott established that the sheetrock was removed from the truck and taken directly to the hall where it was stacked leaning against the stud wall. There is not the slightest indication in Scott’s testimony or elsewhere in the record that the sheetrock was removed from the truck and placed in some location other than the hall and then later stacked in the hall where it fell upon Sonia.

The unloading process for which coverage is provided in the policy included stacking the sheetrock in the hall.

Coverage is not precluded by the passage of time between the unloading and the injury. The coverage applies to injuries “arising out of the ... unloading ...” of the trucks. It is not required that the injury be contemporaneous with the unloading. Here the negligent act, the stacking, was a part of the unloading. Even though that negligence did not cause injury until from two to ten hours later that injury still arose out of the negligence in the unloading.

No Louisiana case with similar facts has been cited to us and we have found none. However, our conclusion is strongly supported by the jurisprudence of other states and the federal courts.

The court in Raffel v. Travelers Indemnity Co., 141 Conn. 389, 106 A.2d 716 (1954), found coverage by the loading and unloading provisions of a policy under these facts. A heavy roll of linoleum was delivered to a home and the driver then negligently leaned the linoleum against the house. Sometime later in the day after the driver had left the premises the roll of linoleum fell upon a ten year old girl and seriously injured the child.

Coverage was also found under the loading and unloading provisions of a policy in American Auto Ins. Co. v. Master Bldg. Supply & Lbr. Co., 179 F.Supp. 699 (D.Md.1959). In American Auto the insured’s driver delivered building materials, including sheetrock, to the insured’s customer. The driver carried the sheetrock into the customer’s cellar where he stacked it leaning against a storage closet. Some four hours later the sheetrock fell on the customer injuring her leg.

The facts of New Deal Lbr. & Mill. Co., Inc. v. American Mut. L. Ins. Co., 359 F.Supp. 738 (E.D.Pa.1973), are as follows. Plaintiff’s employee delivered twenty sheets of sheetrock to an apartment building where he stacked them against a wall in the hall. Six hours later the sheetrock fell on a resident of the building, who was standing in the hall, injuring her. The court found there would be coverage under the loading and unloading provisions of plaintiff’s liability insurance.

In Dodson v. Key, 508 S.W.2d 586 (Ky.1974), the court found there would be coverage under the loading and unloading provisions of a policy under these facts. A load of sheetrock was delivered to the Key home by employees of the insured. The employees stacked the sheetrock against the wall of a porch. Twenty-four hours later Ruth Key was injured when she and her sister-in-law attempted to remove one sheet from the stack and the whole stack fell upon her.

The case of Fertitta, supra, relied upon by American in its brief is not contra to the decisions cited by us for the reason that no coverage was found in Fertitta because the accident occurred after the unloading process was complete and while the sign which had been unloaded was being installed. Fertitta would have precluded coverage here if Sonia had been injured by a piece of sheetrock that fell while it was being nailed to the ceiling of the new bedroom. Fertitta mandates coverage here because it clearly established the rule that coverage under the unloading clause exists where negligence in the unloading process causes the injury.

Sonia testified that neither she nor her sisters had touched the sheetrock or did anything to cause it to fall. The reason it fell was because of the manner in which it was stacked during the unloading process. We conclude that Sonia’s injury arose out of the unloading of the truck and that, therefore, it is covered under the policy issued by defendant, American Insurance Company.

SPECIFICATION # 2

We now turn to plaintiff’s contention that the trial judge’s award of $2,000 is inadequate for Sonia’s pain, suffering and disability.

Our initial inquiry is whether the award for this injury to this person is a clear abuse of the trial judge’s much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

Sonia was eleven at the time of the accident. Her recovery was good and generally without pain after her arm was placed in the cast. Sonia missed only one day of school due to her injury. The injury did inconvenience her and kept her from playing basketball, a sport she greatly enjoyed.

The residual effects of her injury make it difficult for Sonia to turn the palm of her right hand completely up. However, the totality of the testimony of her treating physician was to the effect that she had only very minimal permanent residual disability in her arm as a result of the injury.

On our review of the record, we find the award to be very low for Sonia’s injuries, but we cannot say that it is a clear abuse by the trial judge of his much discretion, and, therefore, we may not disturb the award. Reck, supra.

The judgment of the district court is AMENDED to cast American Insurance Company liable, in solido, with Copeland Building Supply, Inc., and AFFIRMED. All costs of this appeal are taxed against defendants-appellees.

      . The sheetrock was not in a fallen position when Scott arrived the next day because two young men who were friends of the Copes girls had raised it back to its original position when they came over after the accident.

      . The exact time the sheetrock was unloaded is not known. However, it had to be between the time plaintiff left home and his daughters returned from school. Thus, we can determine that probably at least two, but no more than ten, hours passed between the unloading and the accident.

      .Affirmed without a published opinion. 491 F.2d 750 (3d Cir. 1974).


text:
    Marie LECKIE, Plaintiff-Appellant, v. Henry Van LECKIE, Jr., Defendant-Appellee.
    No. 14819.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      Patrick L. Durusau, Jena, for plaintiff-appellant.
    Jesse L. Means, Jr., St. Francisville, for defendant-appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

In this case Marie Leckie appeals from a judgment granting her husband, Henry Leckie, a divorce and custody of their youngest daughter, Carla, who was five at the time of the trial. Appellant contests only the award of custody. We affirm.

The parties separated in March, 1980 when the wife left the matrimonial domicile of seven years located at Louisiana State Penitentiary at Angola, Louisiana. The husband obtained physical custody of Carla about two weeks after the separation and retained it until the wife clandestinely removed the child from kindergarten in October, 1980 and simultaneously filed a suit for separation and with it obtained a temporary custody order giving her custody of Carla.

Henry Leckie is employed at the Louisiana State Penitentiary as a truck driver in the agricultural portion of the prison activities and is required to make trips around the state. Henry is home every night, though occasionally he does not get home until late when he is required to make trips to distant areas.

Henry resides in a house located on the prison grounds. Pamela Leckie, Henry’s older daughter who is also employed at the prison, lives nearby and testified she would move back in with her father and assist him in caring for Carla. Pamela had assisted her father in caring for Carla between March and October when he had the physical custody of the child. Henry testified he had contacted prospective sitters to care for Carla when neither he nor Pamela is available.

When Carla was with her father she often slept with him or her half sister, Pamela. However, there is not the slightest indication of any sexual impropriety.

Marie Leckie was unemployed at the time of trial and had no income of her own. She resided near Columbia in Caldwell Parish where she lived in a house trailer with William White. Marie is supported by White. This living arrangement had existed for at least six months at the time of the trial in June of 1981. Marie testified that she and White were planning to marry.

White is employed as a pilot on the Mississippi River. His work causes him to be away from home much of the time. Marie admitted that White, who did not testify, has a drinking problem. She testified he drank almost every day and that she had seen him consume as much as a fifth in one day.

When Marie left Angola she took Carla with her and Henry came to Caldwell Parish to retrieve the child. Marie testified at that time Henry menaced her with a .357 magnum pistol and threatened to kill Carla and himself if she commenced proceedings to gain custody of the child. Henry admitted that he had a pistol in his car when he got Carla but said that was a very common practice among prison employees. He denied menacing Marie or making any threats.

Approximately six months later Marie got Carla back by going to Angola and removing her from school without her father’s knowledge.

After getting Carla, Marie returned to Caldwell Parish and filed an action for separation and permanent custody of Carla. She obtained an order granting her temporary custody. Henry answered and reconvened for a divorce on grounds of adultery and custody of Carla. After a trial on the merits the district judge rendered judgment in favor of Henry granting the divorce and awarding him custody of Carla. Marie then took this appeal.

Marie urges three assignments of error: (1) that the trial court erred in finding the environment she provided was detrimental, (2) that the trial court erred in using its award of custody to punish her for her relationship with White, and (3) that the trial court erred in failing to consider the environment offered by appellee in making the award of custody.

We shall begin by considering assignments one and three together since they both address the trial court’s determination that it was in Carla’s best interest to be in the custody of her father.

The basic principle involved in custody cases is that the award is to be made in accord with the best interests of the child. LSA-C.C. art. 157; Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980).

In our review of a custody award we are guided by the principles that the trial judge is in the best position to determine the best interests of the child, that his determinations must be given great weight and that they may not be disturbed in the absence of clear abuse. Traylor v. Traylor, 388 So.2d 70 (La.App. 1st Cir. 1980); Fulco, supra; Monsour v. Monsour, 347 So.2d 203 (La.1977); Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979).

This case is typical of many custody cases in that the trial judge was presented with two parents who both love their child and would try to care for her. Here neither parent could provide an ideal environment and the trial judge was left to choose between two imperfect alternatives, the one that would be in Carla’s best interest.

The primary flaw in the environment provided by Henry is that since he works he will have to rely on Carla’s sister, Pamela, and hire sitters for assistance in caring for the child while he works. We note that this problem would not be present if Marie had been awarded custody since she is not employed outside the home.

Appellant contends that Henry’s action of permitting Carla to sleep with him is detrimental to her in that it may tend to foster an unnatural dependency. Carla is required to sleep in her own bed when she is with her mother. Henry testified that he would encourage Carla to sleep in her own bed in the future.

Appellant’s contention that Henry’s motive in seeking custody is to ensure that he can retain the house, rather than being required to move to the batchelor quarters at the Penitentiary, is not supported by the evidence. Henry freely acknowledged that he would lose the house if he were not awarded custody, but there is no other evidence supporting appellant’s contention. The trial judge obviously did not give credence to this contention and we see no error in his failure to do so.

There are two serious flaws in the environment provided by Marie. First is the nature of her relationship with White. Marie and White live together in open concubinage. Her relationship with White provided Henry with the grounds to obtain a divorce on grounds of adultery. Marie is dependent on and is supported by White.

Appellant contends that her relationship with White, because of his frequent absence, is much like the one considered by this court in Manley v. Manley, 389 So.2d 454 (La.App. 2d Cir. 1980), and not detrimental to young Carla. We disagree.

In Manley this court reviewed a judgment which changed custody of a three and one-half year old girl from her mother to her father. The district court changed custody because of the mother’s relationship with a suitor. Though the suitor was a frequent visitor in the mother’s home, they were not living together and their relationship was not shown to be adulterous.

The facts of this case are in stark contrast to Manley. Marie is admittedly living with White and their relationship has been proven to be adulterous. The fact that White’s work requires him to be away does not purge the nature of the relationship. White is far more than the steady boyfriend involved in Manley. We find Manley inap-posite.

The nature of the relationship here is more like the relationships considered in Beck v. Beck, 341 So.2d 580 (La.App. 2d Cir. 1977); McCurdy v. McCurdy, 369 So.2d 1216 (La.App. 2d Cir. 1979), and Bonner v. Bonner, 408 So.2d 995 (La.App. 2d Cir. 1981).

In Beck this court affirmed a judgment changing custody from the mother to the father where the mother of a seven year old boy had begun living in open concubinage.

McCurdy involved the mother of four and eight year old boys who left the matrimonial domicile and began living with a male acquaintance. There this court affirmed a judgment awarding custody to the father.

In Bonner we affirmed a judgment awarding custody of a two and one-half year old girl to her father in a case where the mother left her husband and began living with her paramour.

A child learns by example and a mother’s disregard for moral guidance and social standards can but harm the child. Beck; Bonner, supra. Marie’s relationship with White can but harm Carla.

The second serioús concern in the environment provided by appellant is the child’s exposure to White’s drinking problem. Exposure to drinking problems has been recognized as being detrimental to a child. Davis v. Willis, 169 La. 13, 124 So. 129 (1929).

Appellant contends that White’s drinking problem is insignificant since he is often away from home and Carla would be exposed to it only a few days each month. We think this argument flies in the face of reality. Repeated exposure, even for relatively short periods of time, of a child of this age to the problem of alcohol abuse would be detrimental.

We find no abuse of discretion in the district judge’s determination that it would be in the best interests of Carla to be in the custody of her father. Assignments one and three are without merit. We now turn to assignment number two.

Appellant assigns as error the trial judge’s attempt to punish her for her relationship with White through the custody award and cites Cleeton, supra.

The rule of Cleeton is that custody awards may not be used as a tool to regulate behavior and that a parent may not be deprived of custody because of conduct which is not detrimental to the child or children. As explained hereinabove the award of custody in this case is based on factors present in the environment provided by Marie which are detrimental to the child. Thus the award of custody to Henry does not violate the rationale of Cleeton.

Further, the facts of this case are readily distinguishable from the ones in Cleeton on which the supreme court concluded that the mother was being denied custody because of conduct not detrimental to the children. There Mrs. Cleeton and her paramour, Dave Breedlove, were not living together. Breedlove maintained a separate residence and stayed overnight only occasionally.

Here Marie and White are living together. Each has only one residence, the trailer where they live. Appellant is supported by White. Their relationship is not discreet; it is one of open concubinage. Also, in the instant case there is the added element of exposing the child to White’s drinking problem. This relationship is much more detrimental than the one considered in Cleeton.

The judgment of the trial court is not an impermissible use of a custody award to punish appellant. This assignment of error is without merit.

The judgment appealed from is AFFIRMED. All costs are taxed against appellant.

      . We do not hold or imply that a person may be deprived of custody on grounds that the environment provided by him will expose the child to a person [or persons] that drinks. We hold only that an environment which will often expose a child to a person [or persons] with a drinking problem is detrimental to that child.


author: CARTER, Judge:

text:
    Ms. Janice RESTER v. T. L. JAMES CONSTRUCTION CO., et al.
    No. 14674.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      Gerald Leydecker, New Orleans, for plaintiff, appellee.
    Gerard M. Dillon, New Orleans, for defendants, appellants.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge:

Highlands Insurance Company, defendant-appellant, appeals a judgment in favor of plaintiff-appellee, Janice Rester, for property damages and bodily injuries sustained in a vehicular collision. The accident occurred on November 16, 1979, at approximately 8:00 a. m. in St. Tammany Parish. The named defendants were T. L. James Construction Co., Louisiana Paving Company, Clyde H. Richardson, the driver of the truck involved in the accident and an employee of Louisiana Paving Company, and Highlands Insurance Company, insurer of the aforementioned. Following a trial on the merits, the court rendered judgment in favor of the plaintiff-appellee and against the defendant-appellant, Highlands Insurance Company, in the principal sum of $23,-718.00.

The issues presented on this appeal are whether Clyde H. Richardson was guilty of negligence, whether Ms. Janice Rester was guilty of negligence or contributory negligence, and whether the amount of damages awarded to plaintiff is excessive.

The collision involved here occurred at the intersection of an access road leading to State Police Troop L off U. S. Highway 190 and a service road to U. S. 190 which was under construction, barricaded, and closed. Access to the headquarters of Troop L can be had by either of two roads leading from U. S. 190. The northernmost access road leads directly to Troop L headquarters. The highway construction plans provided for the building of a service road lying west of U. S. 190 and running in a north-south direction in front of Troop L headquarters. Although the service road had not been completed, the asphalt surface had been laid approximately three weeks before the accident. The east margin of the blacktop surface of the service road lies 54 feet from the west margin of the hard surface on U. S. 190.

Prior to the accident, Louisiana Paving Company had the contract with the State of Louisiana to build this particular service road. Vehicles entering and departing from the premises of Troop L headquarters had to cross the service road that was under construction. At the request of the commander of Troop L, Louisiana Paving Company had placed “Road Closed” signs on the blacktop surface of the access roads to Troop L. These signs did not extend entirely across the service road but occupied a substantial portion of one lane of the service road and were clearly visible to those traveling on the service road and to those traveling on the access roads to Troop L.

Ms. Rester, who was employed at Troop L, was on her way to work and had been proceeding on U. S. 190 in a southerly direction. She turned right onto the access road leading directly to Troop L, passed a State Police automobile on her left that was stationary, and proceeded towards the intersection of the access road and the service road. The collision occurred when the front of her vehicle struck the front of the truck operated by Richardson just as her vehicle entered the intersection. The stationary State Police vehicle was occupied by Trooper Booth who did not actually see the accident, but did testify as to what he observed after the accident.

Prior to the accident, both Richardson and Ms. Rester had traveled the same roads they were traveling on the day of the accident. Richardson testified that he had traveled the service road on prior occasions and had yielded to other vehicles entering the Troop L premises because he knew he was on a closed road. At the time of the accident, he was changing job locations from a job site sought of the Troop L headquarters and was carrying out job instructions to meet a grading machine near the north end of the service road. Ms. Rester testified that she had seen construction vehicles traveling on the service road prior to the date of the accident and that she was aware that the “Road Closed” signs had been put on the service road prior to the accident.

The trial court, in very well prepared written findings of fact and reasons for judgment, found that Ms. Rester was traveling approximately 15 mph. when she attempted to cross the service road, and that Richardson was proceeding up the service road at approximately 30 mph. He further found that when Ms. Rester cleared the trooper’s vehicle, she looked to her left but did not see the Louisiana Paving dump truck. He found that Richardson looked in the direction from which Ms. Rester was coming but did not see her until she was almost on the service road, at which time he applied his brakes and skidded into the Res-ter vehicle. He also found that Ms. Rester did not see the dump truck until a fraction of a second before the impact. The truck came to a stop approximately eight feet beyond the point of impact. Ms. Rester’s vehicle traveled approximately 60 feet before it came to rest against one of the barricades.

The trial judge concluded that the negligence of Clyde Richardson was clear, that Janice Rester was free of any contributory negligence, and that she was therefore entitled to recover appropriate damages from the defendants.

We agree with the conclusions reached by the trial court.

Appellant strenuously contends that Richardson was an employee of a contractor whose proper and lawful duties required him to go upon any portion of a highway under construction and was thus under the exemption provided in Subsection (C) of La.R.S. 32:237 . That section clearly enjoins any person from disobeying the instructions, warnings, or barricades placed upon a highway under construction or being repaired, and further enjoins vehicle operators from driving around or through any such barricades or fences placed upon a closed highway, unless at the time otherwise directed by a police officer. This section also places prima facie fault and responsibility for any damage to persons or property on those persons who violate the above prohibitions against use. Section (C) of La.R.S. 32:237 exempts from these prohibitions employees of the department or of any contractor or subcontractor whose proper and lawful duties require them to go on any portion of the highway which is under construction or in the process of being repaired. It further provides that the presence of such persons, or that of machinery being operated by them on any portion of a highway, which is under construction or in the process of being repaired, shall not be deemed negligence.

The trial judge obviously found that there was no construction in progress on the service road at the time of the accident. The trial judge found that Richardson was using the service road as a matter of personal convenience to drive his empty dump truck to a point north of the accident scene, when U. S. 190, a highway in use, could have been used for this purpose. We agree that La.R.S. 32:237(C) provides no relief for the defendant.

Counsel for appellant contends that it would be inequitable to find Richardson at fault without likewise concluding that Ms. Rester was equally guilty of negligence in failing to timely see the Richardson truck and to stop. He argues that since there was some distance between Trooper Booth’s State Police vehicle (stopped at the edge of U. S. 190) and the eastern edge of the service road, Ms. Rester should have been able to see the Richardson truck and to stop in time to avoid the accident, and that by not doing so, she failed to keep a proper lookout. However, Ms. Rester was aware of the existence of the “Road Closed” signs, and she had the right to assume that any vehicle using the service road would yield the right of way and come to a stop. Richardson admitted that he knew he was supposed to yield the right of way at every access road because he knew that the access roads had the right of way. He further testified that on every occasion prior to the accident he did in fact yield the right of way to vehicles on the access road.

Under these circumstances, Ms. Res-ter had the right to assume that any vehicle using the service road would yield the right of way since she was traveling on a “highway” and the dump truck was traveling on a closed road. She was not negligent in failing to see the dump truck before she entered upon the hard surface of the service road. Cf. Fontenot v. State Farm Mutual Insurance Company, 345 So.2d 186 (La.App. 3d Cir. 1977).

The trial court found that Ms. Rester was not contributorily negligent in failing to see the Richardson truck; however, even had she seen the truck, she would have had every right to believe that it would stop as it was approaching a favored open road.

Counsel for appellant also argues that the access road whereupon appellee was traveling was either a driveway or a crossover between two roadways and thus was a secondary roadway to the service road that was the highway, in which case appellee should have yielded. We find no merit to these arguments.

La.R.S. 32:1 defines a highway as follows: “Highway means the entire width between the boundary lines of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel, including bridges, causeways, tunnels and ferries; synonymous with the word “street.”

The service road under construction does not qualify as a highway since it was closed to the public and remained under construction. It then follows that the site of the accident was not an “intersection” within the strict legal definition of that word because there was not a connection of “two highways”.

Turning now to the issue of quantum, it is Horn Book law that we may not disturb a trial court’s ruling on the question of quantum unless the trial court has abused its discretion in making the award. The trial court awarded plaintiff $12,000.00 for her pain, suffering, anguish, disfigurement and anxiety, both past and future, and the following special damages:

1. Loss of wages $ 2,528.00
2. Physical damage to automobile 2,635.00
3. Prescriptions 248.38
4. St. Tammany Parish Hospital 3,967.62
5. Physical therapy 325.00
6. X-rays 59.00
7. Dr. Francis Rodwig 1,305.00
8. Dr. Matta 70.00
9. Ambulance 45.00
10. Wrecker bill for car 35.00
11. Future medical for psychiatric care 500.00

Ms. Rester sustained multiple lacerations of the scalp, right eye, and left leg. She was seen by Dr. Rodwig, General Surgeon and Emergency Room Specialist at the St. Tammany Hospital, immediately after the accident. There was no evidence of a skull fracture, but her complaints of dizziness indicated a closed head injury. Plastic surgery was performed on her face and the laceration on her left knee was closed. She had numerous contusions and abrasions and was hospitalized until December 5, 1979.

On December 12, 1979, she was seen by Dr. Rodwig and complained of nervousness, nightmares, and pain in her left knee. Dr. Rodwig referred her to a physical therapist for work on her left knee. On December 19, she was still having difficulty with pain in her left knee and dizziness. Dr. Rodwig suggested psychiatric help. On March 4, 1980, plaintiff had a skin graft on the left knee and while under anesthesia had a tubular ligation and appendectomy. She was hospitalized from March 13 through March 22, 1980 for this surgery. Dr. Rodwig testified that this entire hospital stay would have been required for the skin graft and estimated that the other hospital services and medication could be fairly divided with two-thirds apportioned to the skin graft and one-third to the other surgery not related to the accident. She was discharged on July 15,1980 and continued to complain of headaches and emotional problems. Considering all of the above, we can not say that the trial court abused its discretion in making an award of $12,000.00 in general damages and the sum of $11,-718.00 for special damages.

For the above and foregoing reasons, the judgment of the trial court is affirmed at defendant-appellant’s cost.

AFFIRMED.

      . La.R.S. 32:237 provides as follows:
      “A. No one shall in any way tamper with, move, damage or destroy any barricade, signs or signals placed upon any highway by the department or by any contractor or subcontractor doing highway construction or repair work under or by authority of the department, nor shall any person disobey the instructions, signals, warnings, or marking of any warning signs, signals, or barricades so placed upon any highway under construction or being repaired nor shall any person drive around or through any barricade or fences placed upon any closed highway by the department or any contractor or subcontractor doing highway construction or repair work under or by authority of the department, unless at the time otherwise directed by a police officer. (Amended by Acts 1975, No. 256, S. 1)
      B.Persons violating this Section shall be pri-ma facie at fault and responsible for any damage to persons or property resulting from the said violation. Nothing contained in this Section shall be construed to affect the liability of any other persons for failure to properly maintain warnings and markings of construction work.
      C. The provisions of this Section shall not apply to the employees of the department or of any contractor or subcontractor or other person whose proper and lawful duties require them to go upon any portion of a highway which is under construction or in the process of being repaired, nor shall the presence of such persons, or that of machinery being operated by them, upon any portion of a highway, which is under construction or in the process of being repaired, be deemed negligent.
      D. Nothing contained in this Section shall be construed to prevent or interfere with peaceful picketing by a labor organization. Acts 1962, No. 310, S. 1.
      E. Every person convicted of a violation of this Section shall be punished by a fine of not less than five dollars nor more than one hundred dollars or by imprisonment for not more than thirty days or by both such fine and imprisonment. (Added by Acts 1975, No. 256, S. 1).”

      .In Fontenot, a Ms. Jack was traveling on Lithcote Road in Evangeline Parish when an accident occurred with a Mr. Fontenot who was traveling on Progress Road, a new blacktop two-lane thoroughfare which ran east and west, but was still under construction when the accident occurred. Ms. Jack was traveling at approximately 30 mph. when she observed Mr. Fontenot enter the intersection immediately in front of her. She was unable to stop and collided with the Fontenot vehicle. Our brethren of the Third Circuit held that Progress Road had not been open for public use and its junction with Lithcote Road could not be considered as being an intersection within the meaning of La.R.S. 32:121. They further held that Ms. Jack had the right to assume that no vehicles would use that road. She was not negligent in failing to see the Fontenot car before it entered the intersection in front of her.

      . Cf. Breaux v. State Farm, 267 So.2d 230 (La.App. 3rd Cir. 1972).

      . La.R.S. 32:1(26) “Intersection” means:
      “(a) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.
      (Emphasis provided by court)


author: CARTER, Judge.

text:
    Phillip James MAGEE v. ENGINEERED MECHANICAL SERVICES, INC., et al.
    No. 14721.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      John W. deGravellees, Baton Rouge, for plaintiff-appellee Phillip James Magee.
    Bert K. Robinson, Eric A. Kracht, Baton Rouge, for defendants-appellants Engineered Mechanical Services, Inc. and The Metalock Corp.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge.

Phillip James Magee filed suit against Engineered Mechanical Services, Inc. (EMS) and the Metalock Corporation for past due wages, penalty wages, and attorney fees pursuant to La.R.S. 23:631 and 632. After suit was filed, EMS paid to Mr. Magee the past due wages. Suit was continued for penalty wages and attorney fees. The trial court awarded Mr. Magee penalty wages in the amount of $9,216.00 and attorney fees in the amount of $750.00. From this judgment, defendant appeals. We affirm.

Phillip Magee was employed by EMS from September of 1976 until his discharge on June 11, 1979, at which time he was working as a first-class machinist and earning $10.50 per hour. Some time prior to his discharge, Mr. Magee and all other personnel of EMS weré issued identification badges and were asked to sign a “secrecy agreement and employment contract”. It was understood that those employees who refused to sign the contracts would be summarily discharged. Mr. Magee refused to sign and was thus discharged.

The day after his discharge, Mr. Magee returned all tools that belonged to EMS. Mr. Magee testified that on the same day he also “threw” his identification badge in the tool room. When Mr. Magee returned the following day to collect his wages, EMS refused to give him a check until he returned the I.D. badge. A search was later made of the tool room, but the badge was never found, and its whereabouts is still unknown. Pursuant to legal advice, EMS then submitted to Mr. Magee an affidavit to be executed by him in which he was to explain what he had done with the badge. The affidavit also contained language by which Mr. Magee was to indemnify and hold harmless EMS from any damage arising out of the misuse by anyone of the I.D. badge. Mr. Magee refused to sign and sought legal help. A second affidavit was submitted to Mr. Magee seeking the same explanation concerning the whereabouts of the badge but omitting the “indemnity and hold harmless” clause. Instead, Mr. Magee was asked to acknowledge that he may be sued by EMS should damage result from misuse of the I.D. badge. He again refused to sign. Payment of the wages was conditioned on the completion and signing of the affidavits; therefore, since Mr. Magee did not sign, he was not paid.

It has often been stated by our courts that La.R.S. 23:632 is a penal statute and must be strictly construed. Penalty wages are not to be absolutely imposed when the facts indicate there is an equitable defense. Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975); Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826 (La.App.2d Cir. 1973), writ denied 286 So.2d 364 (La.1978); Pace v. Parker Drilling Company and Subsidiaries, 382 So.2d 988 (La.App. 1st Cir. 1980), writ denied 383 So.2d 1016 (La.1980).

The thrust of this appeal is that the trial court erred in not finding an equitable defense. Defendant urges that EMS had a right to withhold wages until Mr. Magee either returned its property or gave a sworn statement explaining what he had done with the property, and that this right was especially important because of the probability and magnitude of the harm which could result to EMS if the property fell into the hands of a competitor. This right, argues EMS, provides an equitable defense. (Defendant does not seriously argue that it had the right to demand indemnity from the plaintiff, and wisely so.)

There are no statutory provisions on what constitutes an equitable defense, so we must look to the jurisprudence and to the guidelines that have emerged from the wide variety of factual situations.

Courts are generally willing to find an equitable defense when there is a good faith dispute as to whether wages are actually owed. This situation may arise when, for instance, there is a question as to the number of hours worked, Lazauskas v. Louisiana Offshore Caterers, 371 So.2d 1183 (La.App. 1st Cir. 1979), writ denied 373 So.2d 510 (La.1979), or when the employee seeks offsets against wages based, for instance, on damage caused by the employee, Colbert v. Mike Baker Brick Co. of New Iberia, Inc., 326 So.2d 900 (La.App. 3d Cir. 1976), application not considered 329 So.2d 753 (La.1976), overruled in part on another point 364 So.2d at 556 (La.1978), or on advances made to the employee, Doucet v. Plantation Manor, Inc., 382 So.2d 984 (La.App. 1st Cir. 1980), or because property of the employer is allegedly being improperly retained by the employee, Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978).

When wages are unquestionably due, however, and the employer refuses to make payment because the employee has not complied with some company policy or procedure, the courts have not found an equitable defense. Soday v. Mall Snacks, Inc., 374 So.2d 138 (La.App. 1st Cir. 1979); Duhon v. Prof Erny’s Music Company, Inc., 328 So.2d 788 (La.App.3d Cir. 1976).

As the trial court noted, two cases relied on by defendant, Doucet and Lazauskas, do not fit the facts of the case sub judice. In those cases, the dispute was over whether the wages were actually due. Here, of course, the wages were undeniably due. A case discussed at length in appellants’ brief is Clement v. Levenson, 236 So.2d 316 (La.App. 4th Cir. 1970). There, the trial court found that items belonging to the employer were not returned by the employee and the appellate court accepted this finding. The appellate court additionally found that one of the unreturned items, an index file, could cause economic harm to the employer if it fell into the hands of a competitor. The court found that the employer had an equitable defense for withholding the employee’s wages. Defendant forcefully argues that the situation in the present case is identical. Here, however, the trial court did find that the identification badge was left with the employer, though not in accordance with the desired procedure. We feel that whether the badge was returned or not is not determinative in this case. In the Clement case, the property clearly belonged to the employer and had certain value to the employer. Here, there was no showing that the badge was considered to be the property of the employer or that it was of any value to the employer. It certainly had no intrinsic value. On this point, the demands of EMS seem frivolous.

The main concern of EMS was the security risk posed by the possible misuse of the badge. EMS engages in a highly competitive business. Some of its processes and techniques are not protected legally and must be carefully guarded by secrecy in operations and by secrecy agreements. EMS employees work in many petrochemical and industrial plants locally, nationwide, and in some foreign countries. Apparently, the I.D. badge was made to be used to gain access to these plants without having to go through the process of getting a visitor’s pass. EMS feared that a competitor might gain access to these plants through the use of the badge and not only discover its secret processes and techniques but also solicit business under the name of EMS. It feared, too, liability in case faulty work was done in its name.

Although we believe that these concerns were and are still held sincerely by EMS, we fail to see how an ordinary laminated I. D. badge, issued to a first-class machinist and bearing his picture, could be misused to bring about such adverse consequences. The testimony at trial simply did not show these concerns and fears to be reasonable. The trial court judge found that refusal to pay was over a “trifle”, and we agree. EMS had no right to withhold payment because of the missing badge. It follows that EMS owed Mr. Magee an unconditional tender of wages.

Counsel for the defendant also urges the point that a good faith reliance on an attorney’s advice may be an equitable defense. He has cited us no authority to support this point, however, and we know of none.

The employer in a well-founded suit for payment of wages is liable for attorney fees. La.R.S. 23:632. In addition to the fees already awarded, the plaintiff is entitled to an increase in the amount of $500.00 for work done on this appeal.

For the above and foregoing reasons, the judgment of the trial court is amended to increase the award of attorney fees to $1,250.00 and, as so amended, is affirmed at appellants’ cost.

AMENDED AND AFFIRMED.

      . “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 the official United States postmark or other official documentation from the United States Postal Service.”
      “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 the 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 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.”


author: EDWARDS, Judge.

text:
    Hamilton CARTER v. Isaac R. CARTER.
    No. 14723.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      Henry A. Mentz, Jr., Hammond, for plaintiff.
    John D. Kopfler, Hammond, for defendant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Hamilton Carter, filed this action for a declaratory judgment to determine his rights in certain immovable property.

Plaintiff’s petition made the following allegations: Richard Carter acquired 11 acres of land and in said acquisition described himself as “once married and then to Ernestine Harrison, from whom he was legally divorced.” Richard Carter died in October, 1969. On June 5,1970, a suit for executory process was filed against the “Richard Carter Estate,” praying that those 11 acres be sold at public sale to satisfy a mortgage granted by Richard Carter on August 15, 1962. In that suit for executory process, it was alleged that the Estate of Richard Carter had not been opened and it was necessary to appoint a curator to represent the estate. On August 12, 1970, the property was sold by the sheriff for $3,800.00 to satisfy the $1,000.00 debt for which the executory process suit was filed, but plaintiff never received any of the proceeds of the sale. On September 3, 1970, the purchaser at the sheriff’s sale sold the property to Temple D. Carter and Adeline Turner, who in turn sold it to Isaac R. Carter on December 28,1973. Adeline Turner, grandmother of the plaintiff, died on December 24,1974, and plaintiff was recognized as her sole heir. At the time of the Sheriff’s Sale in the executory process proceeding, plaintiff was a minor 16 years of age living with his mother, Ernestine Steele, the former wife of Richard Carter. The curator appointed for the Estate of Richard Carter did not attempt to determine the heirs of Richard Carter and plaintiff was never legally brought into court in the executory process proceeding.

In summary, plaintiff alleged that “due process of law was not observed in this matter, and that Hamilton Carter, as sole heir of the late Richard Carter, was never divested of any interest in said property nor did he receive any of the proceeds of said Sheriff’s Sale.” Plaintiff’s suit sought a declaratory judgment recognizing him as the sole owner of the 11 acre parcel of land.

Defendant, Isaac Carter, filed a peremptory exception of prescription, based upon Louisiana Civil Code article 3543. The trial court sustained defendant’s exception and dismissed plaintiff’s suit. Plaintiff has appealed that ruling, contending that Article 3543 is not applicable in this case.

LSA-C.C. art. 3543 provides as follows:

“All informalities of legal procedure connected with or growing out of any sale at public auction or at private sale of real or personal property made by any sheriff of the Parishes of this State, licensed auctioneer, or other persons authorized by an order of the courts of this State, to sell at public auction or at private sale, shall be prescribed against by those claiming under such sale after the lapse of two years from the time of making said sale, except where minors or interdicted persons were owners or part owners at the time of making it, and in the event of such ownership or part ownership by said minors or interdicted persons, the prescription thereon shall accrue after five years from the date of public adjudication or private sale thereof.”

What we are called upon to determine is whether plaintiffs suit for declaratory judgment is one which urges “informalities of legal procedure connected with or growing out of any sale at public auction.... ” We hold that it does and affirm the decision of the district court.

Plaintiff asserts that Article 3543 is not applicable to this action. He relies upon Placid Oil Company v. A. M. Dupont Corporation, 244 La. 1075, 156 So.2d 444 (1963). In that case, our Supreme Court declared the following:

“The prescription announced by this co-dal article is appropriate only to infor-malities, or relative nullities. It has no pertinence to a failure to pay the price of adjudication in a judicial sale. Payment of the price is of the essence of the judicial sale. As we have seen the failure to pay transforms the sale into an absolute nullity.” 156 So.2d at 449.

Plaintiff maintains that his suit raises a question regarding the payment of the purchase price at the sheriff’s sale, which would render the sale an absolute nullity and make Article 3543 inapplicable.

We do not agree. Plaintiff’s petition does not allege that the purchase price was not paid. To the contrary, it alleges that “the property was sold by the sheriff for $3,800.00 to satisfy the $1,000.00 for which the executory process was filed, but your petitioner never received any of the proceeds of the sale.” Clearly, this language should be construed as alleging that the purchase price was paid but that plaintiff never received the funds which the sale generated in excess of the debt owed.

The adjudication at a judicial sale transfers to the purchaser all of the claims and rights belonging to the judgment debt- or. La.C.C.P. 2371. Once the price is paid, title vests in the purchaser. Coen v. Toups, 168 So.2d 893 (La.App. 2d Cir. 1964). It is well established that the bona fide purchaser at a judicial sale is not required to look beyond the decree of the court vested with jurisdiction ordering the sale of the property. Arceneaux v. Cormier, 175 La. 941, 144 So. 722 (1932); Thibodaux v. Barrow, 129 La. 395, 56 So. 339 (1911); Granger v. Hebert, 121 La. 1045, 46 So. 1012 (1908); Massie v. Brady, 41 La.Ann. 553, 6 So. 536 (1889). Plaintiff’s allegations, if proved, would not affect the validity of the sale as to the good faith purchaser.

Louisiana Code of Civil Procedure article 2373 provides:

Art. 2373 Distribution of proceeds of sale
After deducting the costs, the sheriff shall first pay the amount due the seizing creditor, then the inferior mortgages, liens, and privileges on the property sold, and shall pay to the debtor whatever surplus may remain, (emphasis ours)

The record is void of any evidence as to the actual disbursement of the proceeds by the sheriff or the curator ad hoc, appointed to represent the estate of Richard Carter. Any action plaintiff may have for alleged incorrect distribution or wrongful withholding of funds is not before this court.

The other irregularities which plaintiff alleges are his lack of representation and the denial of “due process of law.” These are relative, rather than absolute, nullities and are subject to the prescriptive provisions of Civil Code article 3543. See Sun Oil Company v. Roger, 239 La. 379, 118 So.2d 446 (1960).

Finally, plaintiff contends that Article 3543 is inapplicable because defendant is not a good faith purchaser. It has been held that the benefit of prescription under Article 3543 is only available to good faith purchasers. Bordelon v. Bordelon, 180 So.2d 855 (La.App. 3rd Cir. 1965). In brief, counsel for plaintiff asserts that the purchaser at the sheriff’s sale was an attorney who was acting on behalf of plaintiff’s grandmother, Adeline Turner. Plaintiff contends that because the purchaser was an attorney, who sold the property to his client soon after the sale, it must be presumed that he acted in bad faith.

Plaintiff’s petition makes no allegation of bad faith upon the part of the purchaser at the sheriff’s sale, nor does it allege that the purchaser was acting on behalf of Temple Carter and Adeline Turner. This court cannot base its review of a case upon the factual representations made by counsel in brief. There is no evidence in the record which supports these allegations of bad faith nor do these allegations appear in the petition. Therefore, we find this exception to the operation of Civil Code article 3543 to be inapplicable.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of these proceedings are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Hoover C. DOWDEN v. Curby A. MILLER and Allstate Insurance Company.
    No. 14744.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      Victor L. Marcello, Talbot, Sotile, Car-mouche, Waguespack & Marchand, Donald-sonville, for plaintiff-appellant.
    Donald R. Smith, Ellison & Smith, Baton Rouge, for defendants-appellees Curby Miller and Allstate Ins. Co.
    Melanie Ann Kleinpeter, Kleinpeter, Kleinpeter & Kleinpeter, Baton Rouge, for defendant-appellee Charter Nat. Ins. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

This suit arises out of an automobile collision which occurred at the intersection of Louisiana Highway 3038 and U. S. Highway 61 near the town of Gonzales, Louisiana. Plaintiff, Hoover C. Dowden, was a guest passenger in a vehicle driven by John W. Edward. Edward was driving eastbound on La. 3038. When he arrived at the intersection of U. S. 61, he made a left turn onto that highway. At that point, his car was struck by a vehicle driven by defendant, Curby A. Miller, who was proceeding north on U. S. 61.

Dowden filed suit against Miller and his liability insurer, Allstate Insurance Company, claiming that the accident resulted solely from Miller’s negligence. Miller and Allstate answered, denying any negligence on the part of Miller, and filed a third party demand against Edward seeking contribution in the event that they should be found liable to Dowden. Plaintiff amended his petition, naming Charter National Insurance Company as an additional defendant. Dowden alleged that at the time of the accident there was an insurance policy issued by Charter National which provided uninsured motorist coverage for him.

Trial on the merits was held on October 19, 1979, and the matter was taken under advisement. On May 12, 1980, a motion to introduce new evidence was filed by plaintiff. This new evidence consisted of an affidavit from an officer in the Louisiana Department of Public Safety attesting to the fact that there was no liability insurance coverage on the vehicle of John W. Edward. After hearing, the trial court denied this motion.

On January 19, 1981, the trial court rendered judgment dismissing plaintiff’s suit as to all defendants at his cost. Plaintiff has appealed that judgment. He contends that the trial court erred in failing to find Curby Miller negligent. Alternatively, he asserts that the court erred in denying the motion to introduce new evidence and in failing to find Charter National liable under the provisions of the uninsured motorist insurance policy.

LIABILITY OF CURBY MILLER

The trial court’s determination that Curby Miller was not liable to plaintiff is a finding of fact which can be upset only upon a determination that it is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). We are not favored with reasons for the trial court’s judgment. However, our examination of the record reveals that the evidence clearly supports the determination that Miller was not negligent.

Plaintiff testified at trial that Edward stopped the vehicle in the median before turning into the northbound lane of U. S. 61. He estimated that the Miller vehicle was some 300 yards away in the inside lane when Edward entered the median. Dow-den testified that after entering the northbound inside lane, Edward moved to the outside lane, traveled some distance and was struck in the rear by the Miller vehicle. Dowden contended that the Miller vehicle was traveling at an excessive rate of speed. He also testified that when Edward stopped in the median he warned him of the approach of the Miller vehicle.

Not only does plaintiff’s version of the accident differ from that of the defendant, it is also at odds on some points with the account given by Edward. John Edward’s deposition was entered into the record by agreement of counsel. Edward, who was 80 years old at the time of the accident, testified that he never did see the Miller automobile. He also did not recall being warned by Dowden of the approaching Miller vehicle. Edward also testified that he was still in the act of turning when he was struck in the rear by Miller’s car.

The defendant testified that on the day of the accident he was traveling north on U. S. 61 toward Baton Rouge with his family. He estimated that he approached the intersection traveling in the inside lane at about 50 m. p. h. When he was about 200 yards away from the intersection, Miller testified, he saw the Edward vehicle stop at the stop sign on the west side of U. S. 61. Miller stated that he observed Edward cross the southbound lanes of traffic, enter the median at a slow speed (estimated to be 10 m. p. h.), and continue into the northbound inside lane without stopping. Miller testified that he moved his vehicle from the inside to the outside lane as a precautionary move and took his foot off of the accelerator. Miller further testified that as soon as Edward entered the inside lane, he suddenly and without warning attempted to move to the outside lane, in the immediate path of the Miller automobile. Miller testified that he hit his brakes, locked them up, skidded approximately 35 steps and struck the right rear portion of Edward’s vehicle. Mrs. Miller was riding with her husband that day and it was stipulated by all parties that her testimony would be the same as her husband’s.

Miller’s account is corroborated to some extent by the testimony of Deputy Bill Roux of the Ascension Parish Sheriff’s Department. Deputy Roux was in a vehicle behind the Edward automobile on La. 3038 and observed it cross the southbound lanes and enter the median at a speed of about 10 m. p. h. He observed the Edward vehicle pull into the median at an angle that would suggest an intention to enter the inside northbound lane. Roux then looked away from the Edward vehicle in order to check traffic in the southbound lanes, which he was beginning to cross. Roux did not see the actual impact but heard the crash “within a matter of seconds” after Edward entered the median area. Deputy Roux’s observations are consistent with defendant’s testimony that Edward pulled directly in front of the Miller car as it approached the intersection.

An accident report was prepared by a Louisiana State Police Officer, Bradley Tul-lier. Officer Tullier’s report was admitted into evidence by stipulation of the parties in light of his failure to appear for trial. The report describes the damage to Edward’s car which resulted from the impact with Miller’s car as being to the right rear side of the vehicle. There is no indication of any damage to the absolute rear of the vehicle. Some damage to the front of the vehicle is indicated, but this occurred when the vehicle struck a ditch after the initial impact with the Miller automobile. The damage indicated on the report contradicts the testimony of Edward and Dowden that the impact occurred and all the damage was sustained in the absolute rear of the Edward vehicle. The physical reaction of the vehicle to the impact, diagramed in the accident report, also supports defendant’s testimony. Edward’s vehicle was spun in a clock-wise manner and landed in a ditch on the east side of the northbound lane, facing south. This physical reaction is consistent with Miller’s testimony that Edward’s vehicle was at an angle across the northbound lane attempting to get to the outside lane when it was struck. Furthermore, the police report estimates Miller’s speed at the time of the accident at 50 miles per hour, in a 55 miles per hour zone.

Our review of the record leads to the conclusion that the evidence supports a determination that the defendant, Miller, was not negligent. As a general rule of law, a motorist on a highway has the right-of-way over vehicles entering the highway from less favored roadways. DiPaola v. Fernandez, 270 So.2d 893 (La.App. 4th Cir. 1972); Sholar v. U. S. Fire Insurance Company, 261 So.2d 327 (La.App. 1st Cir. 1972); LSA-R.S. 32:124. It is well-settled that a motorist on a public highway is not required to anticipate that another motorist entering the highway will not yield the right-of-way to which he is entitled. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972); Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4th Cir. 1975); DiPaola v. Fernandez, supra. The trial court correctly dismissed plaintiff’s action against Curby Miller.

LIABILITY OF CHARTER NATIONAL

Plaintiff failed to establish at trial that John Edward was uninsured or underin-sured at the time of the accident. Nearly seven months after the trial, plaintiff filed a motion to allow introduction of new evidence. This new evidence consisted of an affidavit from an officer of the Louisiana Department of Public Safety avowing that Edward had no liability coverage on the date of the accident. The trial court denied this motion after hearing. Plaintiff had the affidavit filed in the record as a proffer of evidence.

Plaintiff contends that the trial court erred in denying the motion to admit new evidence. Plaintiff asserts that the trial court had the discretion, under Code of Civil Procedure articles 1631 and 1632 to allow introduction of the affidavit. Plaintiff cites Green v. Commercial Standard Insurance Company, 196 So.2d 301 (La.App. 3rd Cir. 1967) and Gloston v. Commercial Standard Insurance Company, 196 So.2d 302 (La.App. 3rd Cir. 1967), for the proposition that the failure to do so was an abuse of discretion. The Third Circuit Court of Appeal remanded the Green and Gloston cases when it appeared that the plaintiffs in those cases had failed, through inadvertence, to introduce evidence or a stipulation on the undisputed issue of whether the tort-feasor was an uninsured motorist at the time of the accident.

Plaintiff is correct in arguing that the trial court has the discretion to re-open a case for production of evidence. In Dupre v. Hartford Accident & Indemnity Company, 200 So.2d 753 (La.App. 3rd Cir. 1967), the trial court’s decision to re-open the case, in order to allow plaintiff to introduce evidence that the tortfeasor was an uninsured motorist, was affirmed. In affirming that decision, our brothers of the Third Circuit made the following statement:

“Furthermore, under C.C.P. Arts. 1631 and 1632, the decision to re-open a case for the production of additional evidence rests within the sound discretion of the trial judge, which decision will not be disturbed on appeal unless manifestly erroneous.” 200 So.2d at 755.

The language of Dupre, supra, as well as of Code of Civil Procedure articles 1631 and 1632 make it clear that the trial court is vested with much discretion in this area. On the facts of the instant case, we cannot say that the trial court abused its great discretion. In this regard, we note that the motion to introduce new evidence was made some seven months after the trial and that the affidavit itself was not prepared until over nine months after conclusion of the trial. Plaintiff has failed to make a showing that the trial court’s exercise of its discretion was manifestly erroneous. Dupre v. Hartford Accident & Indemnity Company, supra.

Moreover, even if the affidavit had been admitted into evidence, the record does not include proof that there was any insurance coverage afforded plaintiff by Charter National. There was testimony adduced that an insurance policy had been issued by Charter National, but there was much dispute as to who was covered under the policy in question. The record reveals that the policy was admitted into evidence, but it does not appear in the record on appeal. Trial court judgments are presumed to be correct and items of evidence missing from the record are presumed to support the judgment of the trial court. Deliberto v. Deliberto, 400 So.2d 1096 (La. App. 1st Cir. 1981); DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir. 1980); United Pentecostal Church v. Interstate Surplus, 368 So.2d 1104 (La.App. 2nd Cir. 1979). Applying this presumption, we conclude that the trial court correctly dismissed plaintiff’s claim against Charter National, and find it unnecessary to address the issue of whether plaintiff would have been afforded uninsured motorist coverage under the policy.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of these proceedings are assessed against plaintiff-appellant.

AFFIRMED.

      . Defendant-appellee’s motion to dismiss plaintiffs appeal, alleging that plaintiff failed to timely pay the costs of the appeal or qualify to proceed in forma pauperis, was denied. Dowden v. Miller, 404 So.2d 1270 (La.App. 1st Cir. 1981).

      . LSA-C.C.P. arts. 1631 and 1632 provide as follows:

        Article 1631

      “The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial so that justice is done.
      * * * »

        Article 1632

      “The normal order of trial shall be as follows:
      (1)The opening statements by the plaintiff and the defendant, in that order;
      (2) The presentation of the evidence of the plaintiff and of the defendant, in that order;
      (3) The presentation of the evidence of the plaintiff in rebuttal; and
      (4) The argument of the plaintiff, of the defendant, and of the plaintiff in rebuttal, in that order.
      This order may be varied by the court when circumstances so justify.
      When an action involves parties in addition to the plaintiff and the defendant, the court shall determine the order of trial as to them and the plaintiff and the defendant.”

      . Both Mr. and Mrs. Dowden testified at the time of the accident that there was a policy of insurance issued by Charter National which covered a 1970 Chevrolet Impala owned by them and used by Mrs. Dowden. However, this automobile was registered in the name of John Dowden, plaintiffs son, who had not resided with his parents since 1962. The Dow-dens testified that their son had loaned them the money to buy the automobile and it was registered in his name as a means of securing this loan. Additionally, they testified that the insurance policy was issued in John Dowden’s name. The Dowdens testified that this was done on the advice of their insurance agent, Mr. Thomassie. Additionally, plaintiff testified that at the time of the accident he was not a licensed driver since his driver’s license had previously been revoked.