text:
    L.W. SMITH, Individually and as Administrator of the Estate of his minor Daughter, Sonja Leigh Smith, Plaintiff-Appellant, v. VERNON PARISH SCHOOL BOARD, et al., Defendants-Appellees.
    No. 83-367.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Smith, Ford and Clark, Chris Smith, III, Leesville, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Carkern, R. Raymond Arthur, Natchitoch-es, Asa Skinner, Leesville, for defendants-appellees.

      Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

This appeal arises from a trial judge’s granting of a motion to dismiss a personal injury action. L.W. Smith, individually and on behalf of his minor daughter, Sonja, sued the Vernon Parish School Board (School Board), Ronald Spurgeon, an employee of the School Board, and the International Indemnity Company, Spurgeon’s insurer, for damages arising out of an injury Sonja suffered during a physical education class at Hicks High School. At the conclusion of plaintiff’s evidence, in a non-jury trial, the trial judge granted defendants’ motion for dismissal. Smith appeals; we affirm.

FACTS

There is little dispute over the facts in this case. A review of the record reveals the following: On November 11, 1981, the date of the accident, Sonja was fifteen years old. Sonja was a straight “A” student at Hicks High School and had received more than four years of instruction in the use of trampolines. During a Physical Education (P.E.) class, taught by Mr. Spur-geon, Sonja and four of her friends requested permission to jump on the trampoline. The trampoline was stored on a stage at one end of a gymnasium.

Mr. Spurgeon, with the help of the girls, opened the trampoline, which remained on the stage. After the trampoline was made ready, two girls began bouncing on it. Mr. Spurgeon watched the girls for a few minutes, then left the stage to talk to another teacher who was conducting a class in the gymnasium.

After Mr. Spurgeon left the stage, the curtains of which were closed, and after sending a friend to make sure Mr. Spur-geon could not see them, Sonja and four other girls mounted the trampoline and began jumping. After one bounce all five of the girls fell to the trampoline mat. In this fall Sonja’s right arm and wrist were broken.

One of Sonja’s friends immediately summoned Mr. Spurgeon who had been gone about five minutes. Mr. Spurgeon administered first aid to Sonja; he applied a temporary splint to immobilize the arm and he put ice on the injured area to reduce swelling. Sonja was escorted by Mr. Spurgeon to the school’s office and from there Sonja’s mother transported her to a local hospital.

Mr. Spurgeon testified that gymnastics was regularly taught in the P.E. curriculum of Hicks High School. Included in the instructions were specific rules for the safe and proper use of the trampoline. These rules included, among others, a general prohibition against “horseplay” and a steadfast, absolute, rule against more than two (2) persons jumping on the trampoline at any one time. A classmate of Sonja’s, Ms. Royster, testified that Mr. Spurgeon had not only told the girls never to jump with more than two at a time but that it was an instruction which, “He’d keep telling us.”

At the conclusion of plaintiff’s evidence the defendants moved for a dismissal pursuant to art. 1810(B) of the Code of Civil Procedure. Both sides argued the motion. After giving oral reasons, which have been transcribed and made part of the record, the trial judge granted defendant’s motion.

ISSUES ON APPEAL

Plaintiff has urged on appeal that the trial judge erred in granting the defendant’s motion for dismissal and in failing to find Spurgeon negligent. Further, plaintiff argues that the trial judge incorrectly found Sonja contributorily negligent and that the trial judge erred in not awarding plaintiff damages.

Plaintiffs contention that the trial judge erred in granting the motion to dismiss based on Spurgeon’s lack of negligence has no merit. Having concluded that Spurgeon was free of negligence, plaintiff is entitled to no recovery, and we need not address plaintiff’s remaining assignments of error.

APPROPRIATENESS OF AN 1810(B) DISMISSAL BASED ON SPURGEON’S LACK OF NEGLIGENCE

In granting defendant’s motion for dismissal the trial judge found plaintiff had failed to prove negligence on the part of either Spurgeon or the School Board.

In a judge-tried ease, the trial judge has a responsibility to weigh and evaluate all the evidence and render a decision based upon a preponderance of the evidence. Rollins v. Ford Motor Co., 424 So.2d 527 (La.App. 5th Cir.1982); Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir.1982). In reviewing the correctness of a trial judge’s factual findings in a decision on a motion to dismiss we apply our usual standard of manifest error.

LIABILITY OF THE TEACHER

In the recent case of Theriot v. St. Martin Parish School Bd., 434 So.2d 668 (La.App. 3rd Cir.1983), this court reiterated the duties of a teacher toward students as stated in Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3rd Cir.1977), writs den., 352 So.2d 1042 (La.1977), as follows:

“[SJchool teachers charged with the duty of superintending children in the school must exercise reasonable supervision over them, commensurate with the age of the children and the attendant circumstances. A greater degree of care must be exercised if the student is required to use or to come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. The teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident. ....” (Citations omitted.)

Reviewing the facts of this case, in light of the teacher’s standard above, we find the trial judge was not clearly wrong in his finding that Spurgeon was not negligent.

Sonja was a fifteen-year-old, highly intelligent girl who was well acquainted with the trampoline and the proper method of using same. Spurgeon had repeatedly instructed the girls that no more than two girls were to jump on the trampoline at one time. The students were well aware of the rule and the fact that a violation of the rule, by having a larger number jump at one time, would increase the risk of injury. Instead of following the instructions, these girls deliberately violated the rules when five girls began jumping on the trampoline at one time. The girls even had one of their friends to act as a “lookout” to make sure Spurgeon did not see them violate the rules. After one bounce the girls all fell to the mat where Sonja received an injury. As we consider all the circumstances surrounding this event, we conclude that Spur-geon exercised reasonable supervision over the girls. His absence from the area for a few minutes was not a breach of the reasonable care rule.

We note that the “greater degree of care” by the teacher, set forth in Prier, is not applicable to this case. That standard is applicable only when students are “required to use or come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur.” We find that this “greater degree of care” is not required in this case because a trampoline is not an inherently dangerous object. Also, the activity in which Sonja and her friends were engaged, had they followed the specific instructions of Spur-geon, was not one “where it is reasonably foreseeable that an accident or an injury may occur.”

Had Sonja and her friends followed the rules, to which Sonja had over four years of exposure, the activity would have been safe. Sonja cannot, by a conscious and willful violation of rules, transform a non-risky activity into one in which an accident is reasonably foreseeable and which imposes the greater degree of care on Mr. Spur-geon.

For the reasons stated above the judgment of the trial court is affirmed. All costs of this appeal shall be paid by plaintiff-appellant.

AFFIRMED.

      . It appears from the record that because of inclement weather Mr. Spurgeon’s P.E. class was not involved in any organized activity on this particular day. Mr. Spurgeon gave his students, approximately 20 girls, the choice of sitting on the gym bleachers or playing on the trampoline. Ms. Smith and her friends chose to make use of the trampoline.

      . There were a total of five girls on the trampoline at the time of the accident; Sonja, Ms. Royster and three others. At the conclusion of Ms. Royster’s testimony, counsel stipulated that the testimony of the other three girls (Ms. Jeter, Ms. Brown and Ms. Dousay) would be substantially the same as that of Ms. Royster; these girls did not testify.

      . The standards governing the trial judge’s determination and our review of a motion for dismissal are different than the standards for decision and scope of review used in motions for directed verdicts. See Bradley v. Hunter, 413 So.2d 674 (La.App. 3rd Cir.1982), writ den., 415 So.2d 952 (La.1982); and Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980).

      . Sonja’s testimony concerning her knowledge of the rules was as follows:
      “Q. Why do you think Coach Holt and then Coach Spurgeon [defendant] had this rule that no more than two should be there?

        A. So no one would get hurt.
      Q. Do you think that if you had followed his rule that you wouldn’t have injured yourself?
      A. Yes, sir.”

      . Sonja and the students were not "required” to use the trampoline this day. Their acts were voluntary.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Wilson J. SAVOIE & Marie P. Savoie, Plaintiffs-Appellees, v. The ESTATE OF Dennis ROGERS, Defendant-Appellant.
    No. 83-372.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied Feb. 17, 1984.
    See also La.App., 433 So.2d 1140.

      G. Paul Marx, Lafayette, for defendant-appellant.
    Keith A. States, Lafayette, for plaintiffs-appellees.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Plaintiffs, Marie Savoie and her son, Wilson J. Savoie, brought this action against the Estate of Dennis Rogers to recover funds allegedly given to the decedent prior to his death for the purpose of paying 1977 taxes due. In addition, plaintiffs sought damages resulting from the failure of the accountant to timely file their returns. At the first trial, the trial judge dismissed plaintiffs’ suit for failure to provide testimony of at least one credible witness as required by the dead man’s statute. LSA-R.S. 13:3722. This court affirmed 394 So.2d 704 (La.App. 3rd Cir.1982). On appeal, the Supreme Court, on rehearing, held that a person who has a direct pecuniary or proprietary interest in the plaintiff’s claim may not serve as the one creditable witness for the purpose of the dead man’s statute. In Savoie v. Estate of Rogers, 410 So.2d 683 (La.1982) at 687 the court stated:

“... The original opinion of this court could be construed to hold that, where parol evidence is admissible under the dead man’s statute, the plaintiff may use the testimony of a co-owner of his claim to prove the deceased’s debt or liability. This is incorrect. The statute clearly provides that the creditable witness whose testimony is required to prove the debt must be someone “other than the claimant.” La.R.S. 13:3722. This provision implies that the witness whose testimony is necessary for proof of the claim against the deceased cannot be a co-owner of the claim. The purpose of the requirement is to eliminate the possibility of fraud and perjury by witnesses who have a direct pecuniary or proprietary interest in the claim. If the statute were construed to allow the co-owner of a claim to supply a necessary element of proof, the purpose of the requirement would be defeated. Accordingly, we now hold that a person who has a direct pecuniary or proprietary interest in the plaintiff’s claim against the deceased person may not serve as his one creditable witness.

Accordingly, neither Mr. Savoie nor his mother may use the testimony of the other to prove a debt or liability owed by the deceased, Mr. Rogers, unless each is asserting a separate and independent claim. However, neither the trial court nor the court of appeal decided if the Savoies’ claims were separate. These previous courts were of the opinion that neither Savoie could be a creditable witness for the other’s claim if he or she was even indirectly interested in the outcome. We think their interpretation is in error because it sweeps too broadly and would render worthless the testimony of witnesses which is considered competent in all other fields of litigation. As we noted in the original opinion of the court, La.C.C. art. 2282 provides:

The circumstance of the witness being a relation, a party to the cause, interested in the result of the suit, or in the actual service or salary of one of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility.”

The Supreme Court remanded for a determination of the status of each plaintiffs claim.

On remand, the trial court ruled that Marie Savoie and Wilson Savoie possessed separate and distinct claims and therefore they could serve as each other’s creditable witness under the “Dead Man’s Statute”. The trial court found that a mandate existed by which the estate owed an accounting for funds deposited with the decedent. From that judgment, the estate has appealed alleging the trial court erred in the following respect: (1) Finding each plaintiff was a separate claimant inasmuch as the funds allegedly advanced to Rogers were derived from sale of real property of which plaintiffs were co-owners; (2) Finding a mandate existed; and (3) Finding the decedent was to have paid the claimants’ taxes with the money deposited.

The trial judge assigned the following reasons for judgment, which we adopt as our own:

“This Court was originally confronted by what is referred to as the Dead Man Statute. The Dead Man Statute essentially provides that a witness whose testimony is required to prove a claim against a deceased person cannot be a co-owner of such claim. Such a co-owner of a claim would be pursuing the identical relief of the other owner from the deceased, which right encourages fraud and perjury.

Thus, where an individual is seeking relief from the Courts against a deceased individual, the law requires that his testimony be supported by the testimony of an individual who is not a co-owner of plaintiff’s claim.

When this Court initially heard the case, it was not clear whether or not Wilson Savoie and Marie Savoie were co-owners of one single claim. Upon the remand for rehearing, the evidence shows that Wilson Savoie owns an undivided fifty (50%) percent and Marie Savoie owned an undivided fifty (50%) percent of certain immovable property. Each had their own separate interest in said property, which was separate and distinct. The property was sold and as a result of that sale certain funds were generated. Each could have at that point deposited the funds in separate checking accounts; each could have employed a different tax consultant to prepare their income tax returns; each could have made separate and distinct agreements with such tax consultants as to the fee he would charge; each could have handled payment in the manner he or she elected to that tax consultant; each, depending on the total circumstance of their finances, could reasonably expect to pay a different amount of taxes to the State and Federal Government.

The fact that these parties elected to eo-mingle their funds in one checking account, the fact that they used the same tax consultant that they had used for years, the fact that Mr. Rogers was paid a certain amount which he was to divide and pay the Federal Government for the tax liability of Marie Savoie and Wilson Savoie, does not in this Court’s judgment vitiate the fact that Marie Savoie has a cause of action against the Estate of Dennis Rogers separate and distinct from the cause of action which Wilson Savoie has against the Estate of Dennis Rogers, which could be adjudicated separately and was apparently joined for purposes of judicial economy. Counsel for the Estate of Dennis Rogers argues that procedurally one is an indispensable party to the other cause of action. This Court finds that each claim could be tried separately, and that an adjudication could be made of each without the necessity of trying them both together, that is to say, each claim stands separate and distinct on its own merits from the other. While procedural rules may require that these two (2) claims be tried together, it is fundamental that procedural rules cannot operate to deny substantive rights of individuals. The claim of Wilson Savoie could have been tried and completely adjudicated without the necessity of trying Marie Savoie’s claim. Marie Savoie sought to recover from Roger’s Estate the money she gave to the deceased, Mr. Rogers, to pay her income tax liability. That was the debt that Marie Savoie herself owed. It was not a debt shared by her son, Wilson Savoie. And likewise, Wilson Savoie gave certain money to the deceased, Mr. Rogers, to pay his Income Tax debt liability. That was the debt that Wilson Savoie owed, and a debt that was not shared by his mother. The fact that Wilson Savoie acted as the courier to deliver the totality of the money on behalf of himself and his mother does not erase the fact that some of the money was his and some was his mother’s of which each had no mutual right to enjoy the whole.

The Louisiana Supreme Court referred this Court to La.C.C. Article 2282, which provides:

“The circumstance of the witness being a relation, a party to the cause, interested in the result of the suit, or in the actual service or salary of one of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility.”

While both Marie Savoie and Wilson Sa-voie fit every circumstance outlined in Article 2282, the fact remains that they are each asserting a separate and distinct claim, and according to Article 2282, are not barred from serving as a competent witness each for the claim of the other.

In support of its finding that Marie Sa-voie and Wilson Savoie had each a separate and distinct claim, the Court relied on the documents introduced into evidence at the second trial, as well as the testimony of Mr. Wilson Savoie.

Insofar as the question of mandate, the Court further finds that almost ten thousand $10,000.00 dollars was given to Mr. Rogers for the purpose of payment of the tax liabilities of both Marie and Wilson Savoie, and therefore, clearly, Mr. Rogers was obligated to meet his duties as mandatory. The estate of Mr. Rogers did not respond with an accounting, nor was there any evidence introduced to indicate that the funds which were given were given for any reason other than that testified to by the Savoies.

Initially, the plaintiffs were barred from recovery only because this Court, from the evidence received initially indicated that the Savoies were co-owners of one single claim. Subsequent to recent rehearing on that score, this Court is satisfied that there are two (2) separate and distinct claims, and as such, the Savoies are not barred from recovery because each can stand as a competent witness for the other in the assertion of their respective claims. The Court therefore finds in favor of Wilson and Marie Savoie as follows: For Marie Savoie, in the amount of five thousand four hundred ninety-three dollars and sixty-nine ($5,493.69) cents. For Wilson Savoie, in the amount of five thousand four hundred thirty-nine dollars and seventy-eight ($5,439.78) cents, together with interest from date of judicial demand.”

A reasonable factual basis exists for the trial judge’s conclusion that the claims of Marie and Wilson Savoie are separate and distinct and, therefore, each was a creditable witness able to testify on behalf of the other. See: 21 LOY.L.REV. 422. Although the object of their suit was the same, each had an independent claim and cause of action. Accordingly, the finding by the trial court that the plaintiffs sustained their burden of proof, vis-a-vis the dead man’s statute, was correct. Savoie v. Estate of Rogers, 410 So.2d 683 (La.1982).

With regard to the issue of mandate we note that a mandate is an act by which one person gives power to another to transact for him and in his name, one of several affairs. La.C.C. Art. 2985. Acceptance of a mandate may be either express or implied. La.C.C. Art. 2989. The Savoies offered evidence that Mr. Rogers was given the power and the money to pay taxes for them. A power of attorney may be given verbally, but of this testimonial proof is admitted only conformably to the title: Of Conventional Obligations, La.C.C. Art. 2992. Section 2, “Of Testimonial Proof,” of Title IV “Of Conventional Obligations,” La.C.C. Art. 2277 provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

A party to the lawsuit may serve as his own “credible witness” for purposes of La.C.C. Art. 2277. Cormier v. Douet, 219 La. 915, 54 So.2d 177 (1951); O’Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir.1979). The trial judge considered Wilson and Marie to be credible witnesses to their respective claims.

The trial judge found that mandate existed and was accepted, Rogers received the funds, and that an accounting was due as a result of the mandatory’s failure to pay the principals’ taxes. We have carefully reviewed the record in this respect and find no manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.

      . Pending the present appeal Marie Savoie died and Wilson Savoie was substituted as party plaintiff in her stead.

      . In response to the appeal, plaintiffs filed a Motion to Dismiss on the basis the suspensive appeal bond was untimely filed. This court converted the suspensive appeal into a devolu-tive appeal. Savoie v. Estate of Rogers, 433 So.2d 1140 (La.App. 3rd Cir.1983).


author: GUIDRY, Judge.

text:
    Thomas Boyd STEPP, Plaintiff-Appellee, v. Annette Urban STEPP, Defendant-Appellant.
    No. 83-377.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for defendant-appellant.
    Crowell & Owens, William B. Owens, Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

Thomas Boyd Stepp, II, filed suit against Annette Urban Stepp, praying that a decree of divorce be rendered; custody of the minor children born of the marriage, namely, Stacey Christine Stepp, age 16, and Thomas Daryl Stepp, age 13, be awarded to the defendant; child support be fixed at $250.00 per month per child; and, the community be partitioned. Defendant answered contesting only the fixing of child support, praying that child support be fixed at $500.00 per month per child in addition to one-half of the cost of the children’s school activities. Defendant also filed a reconven-tional demand reserving any and all rights to permanent alimony. A judgment of separation between the parties had been rendered on February 3, 1982, wherein Mrs. Stepp was granted the custody of the two minor children of the marriage and child support in the amount of $250.00 per child per month. The trial judge rendered judgment in this matter on February 8, 1983, reserving defendant’s rights to permanent alimony, decreeing a divorce a vinculo ma-trimonii between the parties, awarding defendant permanent custody of the minor, children, and ordering plaintiff to pay child support in the amount of $325.00 per month per child, together with all medical and doctor bills not reimbursed by insurance. Defendant appeals the judgment of the trial court. Plaintiff neither appeals nor answers the appeal.

On appeal, defendant complains of the judgment only insofar as it fixes child support for the minor children, asserting that the trial judge erred in failing to award $450.00 per child per month.

Both parties introduced into evidence affidavits of itemized monthly income and expenses. Mrs. Stepp itemized her total net monthly income without child support at $592.80. She estimated monthly expenses for herself and her two children at $1,688.18. Only a portion of the amount estimated is incurred in support of the two minor children, the rest are expenses incurred by Mrs. Stepp on her own behalf. Mr. Stepp itemized his net monthly income at $1,831.73. He estimated itemized monthly expenses for himself minus child support at $1,176.25. The expenses listed by both parties seem reasonable and unin-flated and were for the most part uncontra-dicted.

Under the provisions of LSA-C.C. Arts. 227, 230 and 231, the obligation to support, maintain, and educate minor children is contracted by the parents by the very act of marrying. This obligation is mutual and the degree of support is determined by the needs of the children as well as the circumstances of those who are obligated to pay it. Martin v. Brasseaux, 422 So.2d 548 (La.App. 3rd Cir.1982); Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir.1981); Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980).

The trial court has considerable discretion in fixing child support. Ducote v. Ducote, 339 So.2d 835 (La.1976); Hines v. Hines, 419 So.2d 971 (La.App. 3rd Cir. 1982). A parent seeking an award for child support from his (her) former spouse has the burden of proving the actual needs of the children and the ability of the former spouse to pay. Martin v. Brasseaux, supra.

In oral reasons for judgment, the trial judge stated that he took several things into account in fixing the award, but noted in particular only two factors. One of the factors articulated by the trial judge was the non-custodial parent’s inclination to pay more than he is required to pay by the court. The trial judge stated that he was “purposely leaving some gap there for Mr. Stepp to be able to do some things on his own accord, and on his own initiative”. It is this consideration that defendant claims was improper and constituted manifest error and abuse of discretion.

In support of this contention, defendant relies on Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3rd Cir.1981) for the proposition that the obligation of the non-custodial parent is to support the children by making payments to the custodial parent, not to the children or to others for them. Although we agree that the trial judge’s statement seems to do violence to the aforementioned principle, we ultimately conclude that there is no clear abuse of discretion in the actual award.

The calculation of child support cannot be done by a strict mathematical formula. Fall v. Fontenot, 307 So.2d 779 (La.App. 3rd Cir.1975). As aforementioned, defendant’s monthly expenses were lumped together with those of the minor children. Admittedly, only a portion of the itemized expenses are incurred in support of the children. Thus, the trial judge was left with the discretion to allocate the expenses between Mrs. Stepp and the children in determining the children’s needs.

In addition, the trial judge has great discretion in determining the respective ability of each parent to pay. Parents share the duty of supporting their children. However, some part of the duty of the custodial parent is met by the day to day caring for the children. Ducote v. Ducote, supra; Castille v. Buck, 411 So.2d 1156 (La.App. 1st Cir.1982). Under the circumstances of this case, it is clear that the parents are not equally able to meet that duty and the trial judge was left with the discretion to fix their respective support obligations.

The record reveals that the defendant had a surplus of monthly income over expenses in the amount of $655.48. The trial judge fixed the award of child support at $650.00 plus medical bills not reimbursed by insurance. Despite defendant’s assertion to the contrary, these figures make it obvious that the trial judge considered Mr. Stepp’s surplus of monthly income in determining his ability to pay.

We have reviewed the record and carefully considered the needs of the children and the circumstances of both parents. Despite the trial judge’s ill considered statement previously mentioned, we are unable to say that the award of $650.00 per month in child support constituted an abuse of his great discretion.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed against the defendant, Annette Urban Stepp.

AFFIRMED.


author: FORET, Judge. GUIDRY, Judge,

text:
    Betty Jane GILBERT, Plaintiff-Appellee, v. Prentice D. GILBERT, Defendant-Appellant.
    No. 83-378.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied Feb. 27, 1984.

      Kramer & Hammill, Harry A. Hammill, Alexandria, for defendant-appellant.
    Lauve & Hill, Blaise L. Hill, Alexandria, for plaintiff-appellee.
    Prentice Gilbert, in pro. per.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

Plaintiff, Betty Jane Gilbert, filed this suit against defendant, Prentice D. Gilbert, her former husband, to obtain a partition of defendant’s Federal Civil Service disability retirement pension.' At issue on appeal is:

(1) whether Mr. Gilbert’s benefits are classified as retirement or disability;
(2) whether the law of Georgia or Louisiana is to apply, or whether both are superseded by Federal Law; and
(3) how the ease is to be resolved under the applicable law.

FACTS

Betty Jane Gilbert and Prentice D. Gilbert were married in South Carolina on October 8, 1960. They established their matrimonial domicile in Georgia. On November 7, 1966, Prentice D. Gilbert began working with the Federal Civil Service at Warner Robbins Air Force Base. He remained so employed until April 2, 1975, when he was forced to retire because of a serious physical disability.

In June of 1975, the couple moved to Louisiana, where they established a new matrimonial domicile in Rapides Parish. Subsequently, they began experiencing marital difficulties, and as a result, Prentice D. Gilbert filed suit on October 13, 1977, seeking a legal separation. A judgment of separation was rendered in May of 1978.

Prior to the legal separation, the couple divided certain movable and immovable property by an informal written agreement dated September 16, 1977. Left unsettled was Mr. Gilbert’s Federal Civil Service Disability Retirement Pension. Subsequently, Betty Jane Gilbert filed suit seeking a partition of this retirement pension. Mr. Gilbert answered, claiming that the benefits were his separate property.

The trial court, after applying Georgia law, ruled in favor of Mrs. Gilbert, awarding her one-half of all benefits which had been paid to her former husband as well as all benefits which were to be paid in the future. Mr. Gilbert appeals, alleging two assignments of error:

(1) The trial court erred in characterizing disability retirement benefits under 5 U.S.C.A., § 8337 as retirement benefits, and therefore, community assets.
(2) The trial court erred in not classifying the disability benefits paid to Mr. Gilbert as damages due to personal injury sustained during the existence of the community under LSA-C.C. Art. 2344 and therefore separate property subject only to a claim by the community as a result of the injury or for the loss of community earnings.

CLASSIFICATION OF BENEFITS

The monthly benefits that Mr. Gilbert receives arise pursuant to 5 U.S.C.A., § 8337 and are considered payments for “disability retirement”. This section is found under Chapter 83, which is entitled “Retirement”. It is also found under sub-chapter III entitled “Civil Service Retirement”. It is the preceding chapter in 5 U.S.C.A. that deals with compensation for work injuries, the federal counterpart of our state worker’s compensation statute. U.S.C.A. § 8101, et seq. Thus, from where the applicable section is found in the statute, we can see that the “disability retirement” benefits that Mr. Gilbert receives are more in the nature of a retirement scheme than compensation for disability. We therefore believe that the lower court correctly classified the benefits under the scheme and intent of the United States Code provisions, and find no merit to Mr. Gilbert’s argument that the benefits should be classified as damages due to personal injury.

CONFLICTS OF LAWS

Continuing our analysis of 5 U.S. C.A., under Sub-Chapter III thereof, § 8345(j)(l) provides:

“(j)(l) Payments under this subchapter which would otherwise be made to an employee, Member, or annuitant based upon his service shall be paid (in whole or in part) by the Office to another person if and to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation. Any payment under this paragraph to a person bars recovery by any other person.”

Accordingly, the United States is required to recognize certain property divisions made by a state court which concern civil service retirement benefits. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, at 2740, 69 L.Ed.2d 589 (1981). Because the federal statute provides that payment of these benefits may be subject to state court decrees, we must now decide whether Louisiana or Georgia law is to apply in this case.

Mr. Gilbert argues that the benefits are to be governed by Louisiana law and are to be classified as damages due to personal injuries and therefore his separate property under LSA-C.C. Article 2344. We disagree. Since the couple’s matrimonial domicile was in Georgia during the entire period of Mr. Gilbert’s employment with the Civil Service, Georgia law is applicable. LSA-C.C. Art. 10; LSA-C.C. Art. 2334, and Comment B ; Succession of Dunham, 408 So.2d 888 (La.1981).

APPLICATION OF GEORGIA LAW

Although Louisiana law clearly states that Georgia law is to apply in this case, the question becomes how much Georgia law to apply. Georgia is a separate (non-community) property state. Georgia Constitution, Art. 1, § 1, Para. XXVII. To offset the inequities which often result in a separate property regime, the Georgia Supreme Court has adopted the theory of “equitable distribution” in distributing a couple’s assets after the dissolution of their marriage. In essence, the doctrine allows a court to award property to one spouse even when held in the name of the other. Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

The doctrine of equitable distribution is limited because it can alter property rights only in the divorce contest. Segars v. Brooks, 248 Ga. 427, 428, 284 S.E.2d 13 (1981). It does not create substantive property rights during the existence of the marriage. The property remains separate as to each spouse, but is equitably distributed upon divorce to prevent any inequities caused by the lack of a community property regime.

The separation and divorce proceedings were conducted in Louisiana, and normally Louisiana matrimonial regime laws would apply. LSA-C.C. Art. 2334. However, if we were to apply Georgia property law, which is a separate property regime, and Louisiana matrimonial regime law, which has no equitable distribution doctrine, Mr. Gilbert would be considered the separate owner of the benefits. LSA-C.C. Art. 2341. This would have the inequitable result of giving him the right to the entire benefits in Louisiana, a right which would not have been available to him in Georgia, the location of the matrimonial domicile at the time of his employment with the Civil Service and thus, the time of the vesting of rights in the benefits. Because the Supreme Court of Georgia created the equitable distribution doctrine to offset the inequities which often arise in a separate property regime, and considering the way the two doctrines are so intricately tied, we find that we cannot apply Georgia separate property law without also applying Georgia’s equitable distribution doctrine. Thus, the trial judge was correct in applying the equitable distribution doctrine.

Several factors are to be considered in determining what constitutes an equitable distribution. They include:

(1) The duration of the marriage, and any prior marriage of either party;
(2) The age, health, occupation, vocational skills and employability of each party;
(3) The contribution or service of each spouse to the family unit;
(4) The amount and sources of income, estate, debts, liabilities, and needs of each of the parties, as well as debts against property;
(5) Whether the appointment is in lieu of or in addition to permanent alimony; and
(6) The opportunity of each for future acquisition of assets and income by employment or otherwise.

Stokes v. Stokes, supra, concurrence by Justice Hill.

The record shows that the couple had been married for over fifteen years before their break-up. During that marriage, Mrs. Gilbert raised the two children born of the marriage and ran the household while Mr. Gilbert was at work. When Mr. Gilbert returned to school to obtain an accounting degree, Mrs. Gilbert took an outside job to support the family.

Mrs. Gilbert’s suit was brought without an accompanying claim for alimony. Her lack of job training and high school education severely limit her opportunities to obtain much in the way of future assets and income. Finally, Mrs. Gilbert is suffering from arthritis and heart problems and is not in the best of health. Considering all these factors, we do not feel that the trial judge erred in his determination that Mrs. Gilbert was entitled to one-half of all past and future retirement benefits. We affirm.

DECREE

For the reasons set forth above, we affirm the ruling of the trial court. All costs are to be assessed against defendant-appellant, Prentice D. Gilbert.

AFFIRMED. ■

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

The instant case presents an important conflict of laws issue which demonstrates the need for a flexible approach to choice of law questions when mechanical application of conflicts rules would achieve a result which serves the interests of none of the states involved.

In Succession of Dunham, 408 So.2d 888 (La.1981), the Supreme Court stated the well settled rule that the classification of property in terms of whether it is community or separate is governed by the domicile of the acquiring spouse at the time of acquisition. Mr. Gilbert was a Georgia domiciliary during his entire tenure with the federal civil service. Thus it is clear that Georgia law governs the classification of his retirement benefits. Since Georgia is a separate property state, such benefits are clearly the separate property of Mr. Gilbert.

The difficulty arises in determining which law governs the distribution of Mr. Gilbert’s separate property upon dissolution of the marriage. It is clear that when a marriage is dissolved by the death of a spouse, the decedent’s property is distributed according to the law of the state of his domicile at the time of death. Restatement (Second) Conflict of Laws § 260 (1971). While not as clearly established, this rule appears to be the same in the context of dissolution of the marriage by divorce, i.e., the distribution of the marital property is governed by the law of the state in which the spouses are domiciled. 27B C.J.S. Divorce § 292(1); Latterner v. Latterner, 8 P.2d 870, 121 Cal.App. 298. This rule would call for the application of Louisiana law in the distribution of Mr. Gilbert’s retirement benefits.

The application of Georgia law in classifying the retirement benefits as Mr. Gilbert’s separate property, and the application of Louisiana law in distributing such property would result in a total denial of benefits to Mrs. Gilbert. Such a result is unconscionable and inequitable.

This result would be reached despite the fact that, had the Gilberts resided in either Georgia or Louisiana throughout the marriage, Mrs. Gilbert would be entitled to a share of the benefits in question. Had the parties involved continued to live in Georgia through the divorce, the court would have applied Georgia law both in classifying and distributing the property. The property, of course, would be classified as separate. However, according to the doctrine of equitable distribution applied by the Georgia courts, Mrs. Gilbert would be entitled to a portion of Mr. Gilbert’s retirement benefits. Had the Gilberts resided in Louisiana throughout their marriage, the retirement benefits accumulated by Mr. Gilbert during his tenure with the civil service would be classified and distributed according to Louisiana law. Thus, the benefits would be classified as community property. Upon divorce, Mrs. Gilbert would have a claim, as owner, to one-half of the benefits in question.

The inequities which result when married persons move from a separate property state to a community property state have long been recognized. See Leflar, American Conflicts Law (1977) § 234 at p. 475; Weintraub, Commentary on the Conflict of Laws (1980) § 8.14 at p. 431; Comment, 35 LaLR at p. 127. To apply Louisiana law to the distribution of Mr. Gilbert’s separate estate, thereby depriving Mrs. Gilbert of any share of the retirement benefits, would be to frustrate the policy, shared by Louisiana and Georgia, of providing for an equitable division of property upon divorce.

The decision we reach in the instant case serves the interests of both states. It is based on the recognition that “separate property” in Georgia has a different meaning than that which we attach to the same term in Louisiana. A very important incident to the Georgia concept of separate property is the spouse’s right (albeit inchoate) to claim a portion of such separate property upon divorce. Mrs. Gilbert’s right in the separate property of her husband should not be forfeited simply by virtue of their having moved to a community property state. See Hughes v. Hughes, 573 P.2d 1194, 91 N.M. 339 (1978); Rau v. Rau, 432 P.2d 910, 6 Ariz.App. 362 (1967). The classification of Mr. Gilbert’s retirement benefits as separate according to Georgia law must carry with it the right of Mrs. Gilbert to an equitable distribution of the property upon divorce.

For these reasons I respectfully concur.

      . "Art. 2344. Offenses and quasi-offenses; damages as community or separate property
      Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.
      Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse. Acts 1979, No. 709, § 1, eff. Jan. 1, 1980.
      Comments
      (a) The notion of personal injury includes injuries to the personality of a spouse and workman’s compensation benefits.
      (b) Under this provision, the classification of damages as separate or community property no longer depends on the sex of a spouse. An award of damages may be partly community and partly separate property of the injured spouse. Apportionment of the award between the community and the separate property of the injured spouse is required when the community terminates otherwise than by the death of the injured spouse. The noninjured spouse does not, ordinarily, have an interest in the portion of the award designed to compensate the injured spouse for loss of earnings that would have accrued after the termination of the community property regime. This segment of the award, which would fall into the community during the existence of a community property regime, upon termination of the regime is classified as the separate property of the injured spouse. When the regime terminates by the death of the injured spouse, the portion of the award designed to compensate the injured spouse for loss of earnings continues to be classified as community property in the interest of the surviving spouse."

      . The right involved is an incorporeal movable. Art. 10, paragraph 4 provides:

      “Immovables situated in this state, with their accessories, acquired by a married person, are subject to the legal regime of acquets and gains regardless of his domicile. Movables, wherever situated, are subject to the law of the domicile of the acquiring spouse." LSA-C.C. Article 2334 provides:
      "Art. 2334. Persons; scope of application of the legal regime
      The legal regime of community of acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.
      Acts 1979, No. 709, § 1, eff. Jan. 1, 1980.
      Comments
      (a) Spouses may exclude the legal regime under Article 2329, supra.

      (b) Under this provision, spouses not domiciled in Louisiana at the time of their marriage become subject to the provisions of this Title from the moment they become Louisiana domiciliaries. However, they may enter into a matrimonial agreement within one year without court approval. See Art. 2329, supra.” (Emphasis ours.)

      . “Art. 2341. Separate property. The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse pri- or to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; and damages or other indemnity awarded to a spouse in connection with the management of his separate property. (Acts 1979, No. 709, § 1.)" (Emphasis ours.)

      . Much of Mrs. Gilbert's testimony as to her present status was found to be irrelevant and was not admitted by the trial judge. It is before this Court through a proffer of proof. Since Georgia law considers the present status of the parties in determining what constitutes an equitable distribution, we find the evidence relevant and therefore admissible.

      . Having been earned during the marriage, the retirement benefits fall into the community of acquets and gains. The federal law creating the benefits does not prohibit their division; on the contrary, it expressly makes them subject to property settlements incident to divorce actions. 5 U.S.C.A. § 83450(1).


text:
    Burnell J. NUNEZ, Clayton Nunez and Margie Nunez Mazzucco, Plaintiffs-Appellants, v. Harry ERBELDING, Defendant-Appellee.
    No. 83-379.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Raleigh Newman, Lake Charles, for plaintiff-appellant.
    Burnell J. Nunez, in pro. per.
    McClain, Morgan & Savoy, David J. Williams, Lake Charles, for defendant-appel-lee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

Clayton Nunez, Burnell Nunez and Margie Nunez Mazzucco, the forced heirs of Carrie Marshall Erbelding, who died testate on June 30, 1977, filed this action on August 16, 1978, seeking to enjoin defendant, Harry 0. Erbelding, plaintiffs’ stepfather and the decedent’s surviving spouse, from selling any assets comprising part of the decedent’s estate. The allegations of plaintiffs’ petition are that: they were decedent’s forced heirs; no succession or probate proceeding had been opened; they had been advised by defendant of his intent to sell certain assets, in particular cattle, allegedly comprising part of the decedent’s estate, with the understanding that funds realized from the sale would be held in trust until ownership of the cattle were judicially determined; they had not had an opportunity to count, identify or appraise said cattle and will be unable to do so if the cattle are sold; and, an injunction is necessary to protect their interests. Upon plaintiffs furnishing bond, a temporary restraining order was issued enjoining the defendant from selling any asset which might comprise the estate of Carrie Erbelding.

Defendant answered by general denial further asserting that the only cattle in his possession formed a part of his separate estate; and, that the succession of Carrie Erbelding had been opened and he had been appointed executor and thus, the injunction was improper.

The temporary restraining order was continued in effect, with consent of the defendant, pursuant to LSA-C.C.P. Art. 3604, until such time as a hearing was held on plaintiffs’ rule for preliminary injunction and a ruling made thereon. The rule was heard on September 24, 1979. The trial judge rendered judgment, assigning written reasons, on October 10, 1980, however, a formal judgment was not signed until February 22, 1983. Judgment was rendered in favor of defendant and against plaintiffs, rejecting their demands and dismissing their suit. On March 4, 1983, Clayton Nunez and Margie Mazzucco perfected a suspensive appeal pursuant to LSA-C. C.P. Art. 3612. The defendant neither appealed nor answered the appeal.

The hearing on the preliminary injunction was by proof as in ordinary cases. The judgment which dismissed plaintiffs’ suit also passed on the permanent injunction and effectively disposed of all issues presented by the pleadings. Although there was no express stipulation that the hearing on the preliminary injunction would be consolidated with trial on the merits for the permanent injunction, plaintiffs do not complain or brief this issue. We therefore consider this appeal as an appeal from a final judgment which disposed of plaintiffs’ demand for a permanent injunction. See Southwest Sales and Manufacturing Company, Inc. v. Delta Express, Inc., 342 So.2d 281 (La.App. 3rd Cir.1977), writ refused, 345 So.2d 48 (La.1977).

At the hearing on the rule, plaintiffs admitted that on August 23, 1979, a statutory testament dated October 13, 1969, was admitted to probate in the “Succession of Carrie Marshall Erbelding” and that defendant, Harry Erbelding, was appointed as executor of decedent’s estate. Prior to the taking of evidence, it was stipulated that any evidence adduced at this hearing would also be made a part of the succession proceeding. The only evidence adduced at trial pertained to the issue of ownership of the cattle in the defendant’s possession, i.e., whether the cattle formed a part of the defendant’s separate estate, the decedent’s separate estate, or the community of acquets and gains which formerly existed between decedent and the defendant.

In his written reasons for judgment, the trial judge made certain findings with regard to the issue of ownership of the cattle in question. These findings and conclusions, which are not set forth in the judgment appealed from but only appear in the trial judge’s written reasons, were unnecessary to a resolution of the single issue before the court. It is primarily these findings of which the plaintiffs complain on appeal. As aforestated, the final judgment does nothing more than dismiss plaintiffs’ suit for injunctive relief. It does not declare the ownership of the property to be in either of the parties. As previously mentioned, the evidence adduced at this hearing was also made a part of the succession proceeding. That proceeding is the proper forum for resolution of the issue of ownership of the livestock in question. Since we consider the trial court’s findings and conclusions concerning ownership of the cattle to be pure dicta, we express no opinion on this issue.

The sole issue before the district court and now before this court on appeal is whether plaintiffs are entitled to injunctive relief.

LSA-C.C.P. Art. 3601 provides in part that an injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant. Irreparable injury has consistently been defined by the courts of this state as that injury, loss or damage for which the injured party cannot be adequately compensated in money damages or for which his damages cannot be measured by pecuniary standards. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981). Also, where the applicant has available other adequate remedies at law, the courts will decline to impose the harsh remedy of injunctive relief. Succession of Vice, 385 So.2d 554 (La.App. 3rd Cir.1980), writ denied, 392 So.2d 1066 (La.1982); Amacker v. Amacker, 146 So.2d 672 (La.App. 1st Cir.1962); Danzie v. Rutland, 232 So.2d 303 (La.App. 2d Cir.1970).

In his written reasons for judgment, the trial court dismissed plaintiffs’ demand for injunction finding that plaintiffs failed to demonstrate that they would suffer irreparable injury, in that, any interests the plaintiffs might have in the property of the succession was protected by defendant’s fiduciary obligation to the plaintiffs as executor of the decedent’s estate and also by other existing remedies, including, if appropriate, adequate compensation in money damages. We agree.

It is clear from the facts alleged in plaintiffs’ petition and the evidence adduced at trial that plaintiffs have failed to show the necessary irreparable harm to entitle them to the issuance of an injunction. Plaintiffs have admitted in their petition that the funds realized from any sale of the cattle would be held in trust until ownership of the cattle was judicially determined. Therefore, any loss suffered as a result thereof is injury which could be readily compensated in money and easily measured by pecuniary standards. Furthermore, once the succession was opened and the defendant was appointed as the executor of the estate, the plaintiffs had available many other adequate remedies under the provisions of Book VI of the Louisiana Code of Civil Procedure. As executor of the estate, the defendant has the duty of collecting, preserving and managing the property of the succession as a prudent administrator. LSA-C.C.P. Art. 3191. As executor of decedent’s estate, the defendant must have court authorization to sell any property of the succession or to continue any business of the deceased. LSA-C. C.P. Art. 3261 and 3224. Most importantly, any interested party may traverse the process verbal of the inventory or descriptive list filed in the succession proceeding. LSA-C.C.P. Art. 3135 and 3137.

For these reasons, we find that the trial court properly found that plaintiffs failed to show irreparable harm so as to entitle them to injunctive relief. For these reasons, the judgment of the trial court is affirmed and plaintiffs are cast for all costs of this appeal.

AFFIRMED.


author: KNOLL, Judge.

text:
    Clifton HENRY, et al, Plaintiffs-Appellants, v. PITRE FORD CO., et al, Defendants-Appellees.
    No. 83-382.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      DeJean, DeJean & DeJean, Robert F. DeJean, Sr., Opelousas, for plaintiff-appellant.
    Alex D. Chapman, Ville Platte, Chris G. Robbins, Onebane, Donohoe, Bernard, Tori-an, Diaz, McNamara & Abell, Lafayette, for defendants-appellees.
    Before GUIDRY, FORET and KNOLL, JJ.
   KNOLL, Judge.

Clifton Henry and his wife filed a redhi-bitory action against Ford Motor Company, the manufacturer of a 1978 Ford Courier truck owned by the Henrys, and Pitre Ford Company, the vendor of the vehicle. After trial on the merits, the district court dismissed the Henrys’ redhibition suit, finding as a matter of fact that the Henrys failed to prove by a preponderance of the evidence that a vice or defect existed in the vehicle. The Henrys have appealed presenting two issues for our review as follows:

(1) Whether the trial court’s finding that there was no vice or defect was manifestly erroneous; and
(2) Whether the trial court abused its discretion in questioning several witnesses.

For the following reasons we affirm the judgment of the trial court.

FACTS

The Henrys operate a rural newspaper delivery route. In order to service their 300 rural customers the Henrys purchased a 1978 Ford Courier truck on August 31, 1978 from Pitre Ford Company. Pitre Ford replaced the brake pads on plaintiffs’ truck on September 15, 1978, October 5, 1978, and October 25, 1978. On those respective dates plaintiffs’ odometer reflected the following miles traveled: 1,927; 3,384; and 5,426. In a final attempt to remedy the truck’s brake problem, the Henrys returned the vehicle to Pitre Ford for further repairs on December 15, 1978. The odometer reading was 8,698 miles. Pi-tre Ford replaced the brake shoes, the caliper, the brake seal, and the brake rotary on the passenger side.

Plaintiffs continued to experience brake problems. They stopped making monthly payments on the vehicle and voluntarily surrendered the truck to Ford Motor Credit Company on November 19, 1979, in complete remission of their debt. Between the date of purchase, August 31, 1978, and the date of repossession, November 19, 1979, the Henrys traveled approximately 20,000 miles in the Ford Courier truck.

PROOF OF DEFECT

The Henrys contend that the braking system on their Ford truck was defective. Their contention is based on the evidence that the brake pads were changed approximately twenty-three times during the time they owned the truck. We disagree.

To prevail in an action for redhibition it is incumbent upon the plaintiff to prove by a preponderance of the evidence that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient and imperfect that it must be supposed that the purchaser would not have purchased it had he known of the defect; that the defect existed at the time of the sale; and that the seller was either unable or refused to correct the defect when given the opportunity to remedy it. LSA-C.C. Arts. 2520, 2530, 2531; Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980).

In its written reasons for judgment the trial court concluded that plaintiffs had failed to prove by a preponderance of the evidence that a vice or defect existed in the Ford truck at the time of their purchase. The trial court’s conclusions were based in part on the testimony of two expert mechanics, Charles Barré, the zone service manager for Ford Motor Company, and Ambroise Fontenot, the service manager for Pitre Ford. Mr. Henry testified that he was a rural newspaper carrier servicing 300 customers daily. This work required him to make at least 300 stop and go maneuvers daily and to drive the right side of the truck on the unpaved shoulder of the road for many of his deliveries. When Mr. Barré examined plaintiffs’ truck on December 19, 1979 he observed that the disc brakes were clogged with mud, dirt, and grime. It was Mr. Barré’s and Mr. Fonten-ot’s opinion that improper maintenance allowed dirt and mud to invade the disc brake system which accelerated the wear and tear on the brake pads. Further it was their opinion that plaintiffs were “riding the brakes” between their newspaper stops. They concluded that these factors were the cause of plaintiffs’ brake problems.

A subsequent purchaser of plaintiffs' truck testified that she operated the same vehicle for approximately 30,000 miles without any trouble with the brake system. This evidence is consistent with the expert mechanics’ testimony.

After carefully reviewing the entire record, we cannot say that the trial court’s decision is clearly wrong. An appellate court may not disturb a trial court’s evaluations of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

TRIAL COURT’S EXAMINATION OF WITNESSES

The Henrys contend that the trial court erred in its own cross-examination of witnesses and that it suggested answers to them. We find no merit to this argument. In order to adjudicate a matter fairly the trial court is well within the scope of its duty when it initiates questions from the bench. LSA-C.C.P. Art. 1631; LaPierre v. Gibson, 420 So.2d 990 (La.App. 4th Cir. 1982), writ denied 423 So.2d 1150 (La.1982). The extent to which such an examination may appropriately be conducted rests largely in the sound and unabused discretion of the trial judge. Patin v. DeStevens, 415 So.2d 1011 (La.App. 4th Cir.1982); Texas Pacific-Missouri Pacific Terminal R. of New Orleans v. Welsh, 179 F.2d 880 (5th Cir.1950).

Our review of the record reveals that the trial court questioned both plaintiffs’ and defendants’ witnesses. We conclude that the trial court did not abuse its discretion in its examination of witnesses.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


text:
    Clark FARNSWORTH, Ind., et al., Plaintiff-Appellee, v. LUMBERMENS MUTUAL CASUALTY CO., et al., Defendant-Appellant.
    No. 83-399.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Brinkhaus, Dauzat & Falgoust, Jimmy Dauzat and Jerry J. Falgoust, Opelousas, for defendant-appellant.
    Guglielmo & Lopez, Peter Caviness and Gina B. Tuttle, Opelousas, for defendant-appellee.
    Thomas J. DeJean, Opelousas, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   KNOLL, Judge.

Clark Farnsworth, individually and as administrator of the estate of his minor daughter, Michelle Farnsworth, and Myra Farnsworth, brought suit against Lumber-mens Mutual Casualty Company (hereafter Lumbermens), the insurer of Artheus Leger, and Employers Fire Insurance Company (hereafter Employers), the uninsured motorist carrier for the Farnsworths. On January 20, 1983 the jury returned a verdict in favor of the Farnsworths, apportioning fault equally against Artheus Leger and the uninsured motorist, Phyllis Bob. General damages were awarded to Myra Farns-worth in the sum of $30,000 and to Michelle Farnsworth in the sum of $6,000. Over the objection of Lumbermens the formal judgment casts Lumbermens as the defendant solely liable for plaintiffs’ damages. Lum-bermens has perfected this appeal and Employers has answered the appeal.

This appeal presents three issues for review:

(1) Whether the jury erred in apportioning fault equally between Artheus Leger and Phyllis Bob;
(2) Whether the jury abused its discretion in its general damage awards to Myra Farnsworth and Michelle Farnsworth; and
(3) Whether the trial judge erred in not finding Lumbermens and Employers jointly liable for plaintiffs’ damages.

FACTS

This case involves a three car collision which occurred on Cresswell Lane in Opel-ousas in the mid-afternoon on September 3, 1981. It had been raining and the road was wet. Cresswell Lane is a four lane road running in an east-west direction. Academy and Jasmine Streets are two lane roads which intersect Cresswell Lane in a north-south direction. Jasmine Drive intersects with Cresswell at its south side; its intersection is controlled by a stop sign on Jasmine. Academy Street intersects with Cresswell at its north side; its intersection is controlled by a stop sign on Academy. The Academy intersection with Cresswell lies a few feet west of Jasmine’s intersection with Cresswell.

Artheus Leger was traveling north on Jasmine when he stopped for the stop sign, and then proceeded diagonally across Cresswell to enter Academy. Myra Farns-worth was stopped at the intersection of Academy and Cresswell where she observed the Leger vehicle from the time it stopped on Jasmine until the accident occurred.

As the Leger vehicle was entering Academy Street, it was struck by a vehicle driven by Phyllis Bob, who was traveling in a westerly direction on Cresswell. The force of the impact shoved Mr. Leger’s vehicle into the Farnsworth vehicle which was stopped on Academy.

ALLOCATION OF FAULT

When a civil case is appealed the reviewing court is constitutionally mandated to give a thorough review of the jury’s factual findings. LSA-Const. Art. 5, section 10(B); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). For us to affirm the lower court’s judgment the record must reveal that a reasonable factual basis for the jury’s findings exists, and that these findings are not manifestly erroneous. Esta v. Dover Corp., 385 So.2d 439 (La. App. 1st Cir.1980). After carefully reviewing the record, we see no manifest error in the jury’s findings that both Artheus Leger and Phyllis Bob were negligent.

Mrs. Farnsworth, who observed Mr. Leger’s movements prior to the accident, described him as “poking” across Cresswell Lane and she felt that he would never get across the street. She even attempted to warn Mr. Leger of the approaching Bob vehicle by blowing her horn, but she was unsuccessful in gaining his attention. She stated that while Mr. Leger was crossing Cresswell, he looked straight ahead failing to look to either side. Mr. Leger testified that he never saw the Bob vehicle prior to the accident.

Phyllis Bob was sixteen years of age at the time of the accident. She had never obtained a drivers license and she had been driving for approximately three months. She stated she was traveling approximately 30 miles per hour and first saw the Leger vehicle approximately 136 feet from the point of impact. Her vehicle left 69 feet of skid marks prior to the collision. The westbound inside lane of Cresswell was unoccupied and available for evasive actions by the Bob vehicle which Phyllis Bob failed to take.

Accordingly, we do not find that the jury committed manifest error in apportioning fault as to the cause of the accident, namely 50% to Artheus Leger and 50% to Phyllis Bob.

QUANTUM

Lumbermens and Employers contend that the jury abused its discretion in its award of general damages to Myra Farnsworth and her minor daughter, Michelle.

It is well established that before a reviewing court can disturb an award made by a trial court, the record must clearly show that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979). In Coco, supra, quoted approvingly in Reck, supra, the Supreme Court stated:

“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, [citations omitted] 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.” (Emphasis added)

Since the jury does have great discretion in setting damages under LSA-C.C. Art. 1934(3), the proper test for whether a quantum award can be upheld revolves around a determination of whether the facts and circumstances peculiar to this case and this individual, interpreted in a light most favorable to the plaintiff, reasonably support the jury’s decision. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Reck, supra.

At the time of the accident, Myra Farnsworth was 34 years of age and employed full time as an executive secretary at a local bank.

In anticipation of the accident, Mrs. Farnsworth firmly gripped the steering wheel. As a result of the accident Mrs. Farnsworth received a trauma to her right wrist which was not immediately apparent. After the accident she was ambulatory and returned home.

On February 25, 1982, some 5V2 months post-accident, Mrs. Farnsworth saw Dr. Ladislas Lazaro, III, an orthopedic surgeon, for swelling and pain in her right wrist. After medical examination and testing, Dr. Lazaro discovered the presence of a cyst two centimeters in width on her right wrist. On March 15, 1982 Dr. Lazaro removed the cyst in a 25-40 minute surgical procedure which required a general anesthesia. Dr. Lazaro was of the opinion that the cyst developed as a result of her firm grip on the steering wheel during the accident. At the time of trial, Dr. Lazaro testified that an additional 3 months treatment would probably be required to resolve a tendonitis condition that developed as a result of the surgery.

Mrs. Farnsworth experienced some wrist inflammation and tendonitis after surgery which were controlled by medication. Dr. Lazaro does not anticipate any additional surgery, his prognosis is good, and he does not feel that she will have any permanent disability.

The only work missed by Mrs. Farns-worth was two weeks when she had the cyst surgically removed. Since the operation her wrist has caused her to work more slowly and has required her to seek assistance from her co-workers. The two inch scar from the operation has caused her great embarrassment.

After reviewing the evidence in light most favorable to Mrs. Farnsworth, and deferring to the jury the great discretion it is allowed, we conclude that the record clearly shows the jury abused its discretion in awarding $30,000 general damages in this particular case. Mrs. Farnsworth did not suffer any permanent disability or extreme pain that would merit such an award. Finding this award to be excessive, we therefore, lower the jury award to the highest point which is reasonably within the discretion afforded the jury. Coco, supra. The trial court’s judgment is amended by reducing the jury’s general damages award to Mrs. Farnsworth to the sum of $15,000.

Michelle Farnsworth, the minor, received a $6,000 general damage jury award. Michelle was 3V2 years of age at the time of the accident. She was examined by a pediatrician, Dr. Brent Prather, the day after the accident. Dr. Prather determined that she received no physical injuries. After the accident Michelle was upset and emotionally shaken, and continued to be upset when she heard ambulance or police sirens. When she was upset she would sleep with her parents. Dr. Prather did not prescribe any medication for this condition.

After reviewing the evidence in light most favorable to Michelle Farnsworth, and deferring to the jury the great discretion it is allowed, we conclude that the record clearly shows the jury abused its discretion in awarding $6,000 general damages in this particular case. Michelle’s emotional trauma is mild, not requiring treatment or medication. There is no evidence of any disabilities. Finding this award to be excessive, we therefore, lower the award to the highest point which is reasonably within the discretion afforded the jury. Coco, supra. The trial court’s judgment is amended by reducing the jury award to Michelle Farnsworth for general damages to the sum of $2,000.

JUDGMENT

Phyllis Bob was uninsured and was not made a party to the lawsuit. Mr. and Mrs. Farnsworth sued their uninsured motorist carrier, Employers. The jury found fault against Artheus Leger and Phyllis Bob in the proportions of 50% to each. The trial judge cast Lumbermens (Artheus Leger’s insurer) with the entire judgment. Lumbermens filed a motion in opposition to the form of the judgment asking that Employers be held as a joint obligor with Lum-bermens, subject to Employers’ policy limits.

Lumbermens contends that Employers is solidarily liable with Lumbermens for the damages apportioned to the uninsured motorist, Phyllis Bob. We agree.

In Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982) the Louisiana Supreme Court concluded that the tortfeasor and the uninsured motorist carrier were solidarily liable. See also: Narcise v. Illinois Cent. R. Co., 427 So.2d 1192 (La.1983), Kelly on Behalf of Kelly v. Templet, 428 So.2d 817 (La.App. 1st Cir.1982), writ denied 433 So.2d 152 (La.1983). In Johnson v. Fireman’s Fund Insurance Company, 425 So.2d 224 (La.1982), the Supreme Court reaffirmed its position in Hoefly, supra. The court stated in Johnson, supra, at page 227:

... Although uninsured motorist coverage is provided for the protection of persons injured by uninsured or underinsured tortfeasors, and not for the benefit of such wrongdoers, the statutorily specified coverage guarantees the injured person’s recovery of damages as if the tortfeasor had been insured. ... Subject to conditions not granted the tortfeasor, the uninsured motorist carrier is independently obliged to repair the same damage which the tortfeasor has wrongfully caused. By effect of law and the delivery or issuance for delivery of automobile liability insurance, both the uninsured motorist carrier and the tortfeasor are obliged to the same thing.... The fact that the uninsured motorist carrier is bound by the combined effect of the tortfeasor’s wrongful act, the uninsured motorist statute, and the carrier’s delivery or issuance for delivery of automobile liability insurance, while the tortfeasor is obliged merely because of his delict, does not prevent them from being obliged to the same thing. An obligation may be in solido, requiring that the obligors be obliged to the same thing, even though the obligations of the obligors arise from separate acts or by different reasons....” [Citations omitted]

The impact of these decisions has led us to conclude that an uninsured motorist carrier is now “statutorily bound to recompense for the claims of an injured party just as though it were the tortfeasor’s insurer.” Stroud v. Liberty Mutual Insurance Company, 429 So.2d 492 (La.App. 3rd Cir.1983), writ denied 437 So.2d 1147 (La.1983). See also Chiasson v. Whitney, 427 So.2d 470 (La.App. 5th Cir.1983) and Decedue v. Government Employees Insurance Company, 441 So.2d 72 (La.App. 5th Cir.1983). In light of this shift in judicial reasoning, we conclude that the earlier contrary holdings in Gautreaux v. Pierre, 254 So.2d 476 (La.App. 3rd Cir.1971), and Fouquier v. Travelers Insurance Company, 204 So.2d 400 (La.App. 1st Cir.1967), are no longer controlling.

Therefore, based on Hoefly, supra, and its progeny, the trial court’s judgment in the ease sub judice will be amended to make Employers solidarily liable with Lum-bermens, subject to Employers’ policy limits.

For the foregoing reasons the judgment of the trial court is amended and recast as follows and, as amended is affirmed.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Myra Farnsworth and against Lumbermens Mutual Casualty Company and Employers Fire Insurance Company, in solido, in the full sum of $15,000, together with legal interest thereon from date of judicial demand, until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Clark Farns-worth as administrator of the estate of his minor daughter, Michelle Farnsworth, and against Lumbermens Mutual Casualty Company and Employers Fire Insurance Company, in solido, in the full sum of $2,000, together with legal interest thereon from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Clark Farnsworth and against Lumbermens Mutual Casualty Company and Employers Fire Insurance Company, in solido, in the full amount of $3,873.53, representing medical expenses, property damage, and lost wages, together with legal interest from the date of judicial demand, until paid.

All other provisions of the trial court’s judgment not inconsistent herewith are affirmed.

All costs of the trial court and this appeal are assessed equally to Lumbermens Mutual Casualty Company and Employers Fire Insurance Company.

AMENDED IN PART; AFFIRMED IN PART; AND RENDERED.


author: FORET, Judge.

text:
    Carl W. JACKSON, d/b/a Carl W. Jackson Real Estate and Insurance Agency, Plaintiff-Appellant, v. Henry Claude FREE and Iva Peavy Free, Defendants-Appellees.
    No. 83-401.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Baggett, McCall, Ranier, Robert C. McCall, Lake Charles, for plaintiff-appellant.
    Levingston, Tynes & Liles, David L. Lev-ingston and Henry R. Liles, Lake Charles, for defendants-appellees.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

Carl W. Jackson d/b/a Carl W. Jackson Real Estate and Insurance Agency (plaintiff) brought this action to recover a real estate commission allegedly owed to him under the terms of a listing agreement. Named defendants are Henry C. Free and his wife, Iva Peavy Free. After trial on the merits, the trial court rendered judgment in favor of defendants, dismissing plaintiff’s demands against them.

Plaintiff appeals and raises the following issues:

(1) Whether the trial court erred in failing to find that, under the terms of' the listing agreement, plaintiff was entitled to receive a commission on the sale of certain immovable property by defendants to a third party.
(2) Whether the trial court erred in finding that plaintiff was not the “procuring cause” of said sale.

FACTS

There is no dispute regarding the following facts. Plaintiff is a licensed real estate broker. On January 5, 1978, plaintiff and defendants entered into a contract whereby plaintiff was to attempt to sell certain immovable property (the property) owned by defendants. That contract contained the following pertinent provisions:

In consideration of your agreement to list the property herein described and to use your efforts to find a purchaser, I hereby grant you the exclusive right for 365 days from date hereof and thereafter until you receive from me a 15 day written notice terminating this agreement to sell (a description of the property and the terms under which it was to be sold follows).”
If said property is sold before the expiration of this agreement, by myself, or any other person, I agree to pay you a commission of 10% if it be sold within twelve months after such expiration to any person with whom you have had negotiations, I agree to pay you a commission of 10%.”
(“You” and “yours” refer to plaintiff, while “I” and “myself” refer to defendants.)

On March 21, 1978, plaintiff received a written “OFFER TO PURCHASE” the property from Glenn Alexander. This written offer provided that Alexander would make a down payment of $30,000 cash, and execute a promissory note made to defendants in the amount of $52,000, bearing interest at the rate of 7¼% per annum from date, and payable in monthly installments of $354.74. However, these figures were scratched out in the written document containing Alexander's offer, and the down payment was changed to $38,000 cash, with the balance of $44,000 to be represented by a promissory note identical in all other respects to the one mentioned above. The initials HCF appear by these changes and another change reserving the mineral rights, etc., to both of the defendants rather than to Mr. Free alone. Alexander rejected this counter-offer.

Nothing further happened regarding the property until February 7, 1980, when defendants sold the property to Alexander and his wife (the Alexanders) under the same terms as those contained in the original “OFFER TO PURCHASE” made by Alexander. Upon learning of this sale, plaintiff filed the instant suit, alleging that he was entitled to a commission on the sale.

EXISTENCE OF LISTING AGREEMENT

Plaintiff contends that the trial court erred in failing to find that he was entitled to a commission on the sale of the property. As noted above, the listing agreement was entered into by plaintiff and defendants on January 5, 1978. The agreement granted plaintiff the exclusive right to use his efforts to find a purchaser for the property for 365 days after the date on which the agreement was executed, and thereafter until plaintiff received from defendants a 15-day written notice terminating the agreement. Plaintiff argues that the trial court erred in finding that defendants had sent such a notice.

Plaintiff testified that he never received written notice from defendants, terminating the listing agreement. On the other hand, Mrs. Free testified that she did mail a letter to plaintiff to that effect. A copy of that letter was introduced in evidence. Mrs. Free stated that she sent the letter to plaintiff after Mr. Free consulted with an attorney, and that the letter contained the exact language suggested to Mr. Free by this attorney. She further stated that the letter was mailed to plaintiff on December 15, 1978.

Mr. Alexander, who is also an attorney, testified that Mrs. Free showed him the listing agreement, and asked him how long it would be in effect. She also told him that defendants wanted to terminate the agreement. He then told her that she needed to write a letter to plaintiff in which she would give him written notice to terminate the agreement. However, she told him that she had already done this after consulting with another attorney. Alexander stated that this conversation took place around the end of 1978.

The trial court noted the above testimony and the evidence showing that defendants filed a written complaint against plaintiff with the Greater Calcasieu Board of Realtors on March 29, 1978, in which they alleged that plaintiff failed to tell them that he would be due a commission on the sale of their property, even if it were sold to someone whom defendants had contacted before entering into the listing agreement. The trial court then found that Mrs. Free had written the above mentioned letter to plaintiff, giving him written notice to terminate the listing agreement. We agree with the trial court’s finding. Thus, the listing agreement was terminated at the end of the primary period. This was long before the property was sold to the Alexanders.

We must now determine what, if any, effect the extension clause contained in the listing agreement had on plaintiff’s alleged right to receive a commission on the sale of the property. The extension clause provides that,

“... if it [the property] be sold within twelve months after such expiration [of the listing agreement] to any person with whom you [plaintiff] have had negotiations, I [defendants] agree to pay you a commission of 10%.”

We have already found that the listing agreement expired on January 5, 1979.

Thus, the extension clause was no longer in effect on February 8, 1980, when the property was sold to the Alexanders, and plaintiff was not entitled to a commission on that sale by virtue of said clause.

Further, as noted in Harkey v. Gahagan, 338 So.2d 133 (La.App. 2 Cir.1976), on page 135:

“The purpose of the extension clause in a real estate listing contract is to insure the realtor’s right to a fee when the property owner sells the property subject to the listing after the expiration of the primary term to a purchaser who had been located or otherwise interested in the property by the realtor’s effort. The realtor does not have to be the procuring cause in order to activate the extension clause. He need not have been involved in active negotiation with the purchaser at the time of the expiration of the primary term. However, his activities must have been the cause of creating some minimal interest in the purchaser which contributed to bringing about the eventual sale.” (Emphasis ours.)

In the next section of this opinion, we find (as did the trial court) that plaintiff’s activities in no way contributed to the sale of defendants’ property to the Alexanders. Thus, even if we were to find that the extension clause was in effect on the date of said sale, plaintiff would not be entitled to receive a commission.

“PROCURING CAUSE” DOCTRINE

Plaintiff contends that, even if the extension clause of the listing agreement had expired at the time of the sale, he would still be entitled to collect a commission under the “Procuring Cause” doctrine. He argues that the trial court erred in finding that he was not the party responsible for arranging the sale.

Generally, a real estate broker is entitled to a commission if he is the “procuring cause” of a sale, even though the term of his listing agreement may have expired. Sleet v. Harding, 383 So.2d 122 (La.App. 3 Cir.1980); Cramer v. Guercio, 331 So.2d 550 (La.App. 1 Cir.1976) ; Sleet v. Williams, 291 So.2d 495 (La.App. 3 Cir.1974); Hamberlin v. Bourgeois, 289 So.2d 358 (La.App. 1 Cir.1973).

“Procuring cause” refers to the efforts of a broker in introducing, producing, finding, or interesting a purchaser, and means that negotiations which eventually lead to a sale must be the result of some active effort of the broker. Harkey v. Gahagan, supra; Sleet v. Williams, supra; Womack Agencies, Inc. v. Fisher, 86 So.2d 732 (La.App. 1 Cir.1956); Lehmann v. Howard, 49 So.2d 453 (La.App. 2 Cir.1950).

The term “procuring cause” is defined in the following language from 12 C.J.S. Brokers, § 91, pg. 208, which was quoted with approval in Sleet v. Harding, supra, and Sleet v. Williams, supra:

“As used in that branch of the law relating to brokers’ commissions, the terms ‘procuring cause’, ‘efficient cause’, and ‘proximate cause’ have substantially, if not quite, the same meaning and are often used interchangeably; they refer to a cause originating or setting in motion a series of events which without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal’s property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing, and able to buy on the principal’s terms.”

As the above language suggests, in order to establish that his efforts were the procuring cause of a sale, the broker must show more than the mere fact that his actions in some way aided the sale. Sleet v. Harding, supra; Cramer v. Guercio, supra; Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621 (1926).

Plaintiff testified that, after entering into the listing agreement, he put a sign on defendants’ property and began calling prospective purchasers. He stated that he was contacted by Alexander, who told him that he was interested in purchasing the property. Plaintiff then prepared an “AGREEMENT TO PURCHASE AND SELL”, but Alexander failed to sign it. However, Alexander prepared an “OFFER TO PURCHASE” which he sent to plaintiff, who then brought it to defendants. Plaintiff testified that he made the changes, noted above, in the terms of this agreement, and that Mr. Free initialed these changes. The document was then mailed to Alexander, but he never signed it. Plaintiff was unable to secure any other written offers to purchase defendants’ property.

Under cross-examination, plaintiff admitted that he knew that defendants had been discussing the purchase of their property with an adjacent property owner, prior to the time that plaintiff and defendants had entered into the listing agreement. However, he denied that he knew that this person was Alexander.

Plaintiff’s wife testified that she was present when the listing agreement was signed. She admitted that Mrs. Free told her that Alexander had expressed an interest in buying defendants’ property prior to that time. Both plaintiff and his wife admitted that Mr. Free had signed the counteroffer made to Alexander on March 21, 1978, and that defendants gave no indication that they would not pay plaintiff his commission if Alexander accepted the counteroffer.

Alexander testified that he and his wife purchased 33 acres of land adjacent to defendants’ property in 1974, and it was at this time that they became acquainted with defendants. He stated that he had discussed the possibility of purchasing defendants’ property with them several months before they entered into the listing agreement. He further stated that the terms contained in his “OFFER TO PURCHASE” were identical to those that had been mentioned in his discussions with defendants. He had related these terms to plaintiff, who also incorporated them into the “AGREEMENT TO PURCHASE AND SELL” drafted by him.

Alexander stated that he and his wife had bought an old home located in Lake Charles in 1976, and that they tore it down with the intention of rebuilding it on their property located adjacent to defendants’ property. In 1979, they were living in Cameron, which is approximately 45 miles from the property they had purchased. Because of the substantial distance involved in driving to and from their home in Cameron, they decided that they needed a home to live in that was closer to the building site. It was sometime in 1979 that they were contacted by Mr. Free, who made a proposal to them. The terms of the proposal were that the Alexanders would lend defendants $30,000 without interest (to be secured by a mortgage on property owned by defendants in Vernon Parish), and defendants would allow the Alexanders to live in their home (which was adjacent to the Alexanders’ property) without having to pay rent. The Alexanders agreed to this proposal as there had been some vandalism at the site where they were rebuilding the old home.

Alexander stated that, at the time this arrangement was made, there was no agreement whatsoever between himself and defendants that the $30,000 would later become a down payment toward the purchase of defendants’ property. He further stated that there was no agreement between himself and defendants to wait until the listing agreement had expired before they would enter into a sale of defendants’ property, nor did defendants ever indicate to him their intention to avoid paying plaintiff his commission.

On February 8, 1980, defendants sold their property to the Alexanders. Alexander testified that, approximately one week before this, he was contacted by Mr. Free, who once again discussed the possibility of selling the property. The Alexanders’ building project had turned out to be a great deal more expensive and time-consuming than what they had expected, and they had reached what Alexander termed the middle point of that project. Alexander stated that he and Mr. Free discussed the purchase of defendants’ property under the identical terms of the “OFFER TO PURCHASE” he had made to them approximately two years earlier. Alexander testified that there was no agreement regarding the sale of defendants’ property to him until approximately one week before the actual sale took place, and that negotiations regarding the terms of the sale continued until the time that the vendor’s lien was executed. When the sale was finally consummated, the Alexanders simply canceled the promissory note given them by defendants for the $30,000 loan that had been made to them.

Mrs. Free corroborated the testimony given by Alexander regarding the $30,000 loan, and the circumstances surrounding the eventual sale of the property. She denied any intent to deprive plaintiff of his commission. She explained that defendants borrowed $30,000 from the Alexanders because this was the amount needed by the contractor to begin construction on defendants’ new home in Vernon Parish. This money was placed in a separate account, and was paid to the contractor at certain intervals as construction on defendants’ home progressed. She stated that the money was borrowed from the Alexanders because defendants were able to obtain it without having to pay interest on it.

It is our opinion that the trial court correctly found that plaintiff was not the “procuring cause” of the sale of defendants’ property to the Alexanders. As noted by the trial court, the sale to the Alexanders,

“... resulted not from Mr. Jackson’s [plaintiff’s] efforts but from contacts made with Mr. Alexander long prior to Mr. Jackson’s involvement and contacts that were continued at least subsequent to December 15, 1979, if that date would be considered the date on which a letter [Mrs. Free’s letter terminating the listing agreement] was mailed ... ”.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . See Cramer v. Guercio, 336 So.2d 908 (La.App. 1 Cir.1976), for a dissenting opinion.

      . See Bullis & Thomas v. Calvert, supra; Harkey v. Gahagan, supra; and Coppage v. Camelo, 330 So.2d 695 (La.App. 4 Cir.1976), for cases involving facts and circumstances similar to those present in the case sub judice, and the application of the "procuring cause” doctrine in light of such facts and circumstances.