text:
    Robert A. FOUQUET v. Constance Talbot FOUQUET.
    No. 83-CA-617.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Jan. 17, 1984.

      Bernard M. Plaia, Jr., Metairie, for plaintiff-appellant.
    Craig J. Cimo, Gretna, for defendant-ap-pellee.
    Before CHEHARDY, DUFRESNE and KLIEBERT, JJ.
   DUFRESNE, Judge.

The facts of this appeal are undisputed. The appellant, Robert A. Fouquet and the appellee, Constance Talbot Fouquet were married in New Orleans, Louisiana, on June 3, 1967, and subsequently established their matrimonial domicile in Jefferson Parish. Three children, Troy, Trevor, and Brett, were born of this marriage.

On March 15, 1977, the Fouquets were divorced from a judgment rendered by the district court in Jefferson Parish.

At the time of the final judgment of divorce, the appellee was granted the permanent custody of the three minor children. Thereafter, as the result of a rule to change the custody of the children, the trial court on March 25, 1982, granted the appellant permanent custody over Troy Fouquet and confirmed the previous custodial award of Trevor and Brett Fouquet in favor of the appellee. Additionally, in this judgment, the district court ordered the appellant to pay to the appellee, child support for Trevor and Brett in the amount of $200.00 per month commencing February 15, 1982 and continuing until further orders of the court. Subsequently, the appellee surrendered the physical custody of Trevor Fou-quet to the appellant. On May 25, 1982, a consent judgment was filed and entered into the record of the district court awarding the judicial custody of Trevor Fouquet to his father, the appellant, and specifying certain rights of visitation for the appellee. However, the judgment was absent of any pronouncement as to adjustment of child support payable by the appellant.

Shortly thereafter, on June 29, 1982, the appellant filed a rule for child support claiming that he was entitled to receive child support for the two children in his care. This rule was originally set for hearing on July 19, 1982, but was continued on motion of appellee until September 2, 1982. Appellee responded by filing a rule on August 3, 1982, praying that past due amounts of child support be made executo-ry and for contempt.

Appellee urged in her rule that appellant was in arrears in child support since surrendering of Trevor to the appellant.

All issues finally came before the district court on September 2, 1982, at which time, the court ordered that each parent would be responsible for the support of the children in their own household, denying the request of the appellant-father for child support, and the court further made execu-tory in favor of the appellee-mother, the sum of $1200.00 representing delinquent child support. The court did not find the appellant in contempt. From this judgment, Robert A. Fouquet has appealed.

On appeal, the appellant has assigned as errors, the following:

1.) The trial court erred in finding that the appellant was in arrears in child support.

2.) The trial court abused it’s discretion in not awarding to the appellant, a reasonable amount of child support.

In delicate matters of child support, the law is clear in this state; the only way a judgment of the court can be extra-judicially modified is where there is a specific agreement between the parties, and the agreement does not act to the detriment of the child. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). Furthermore, we have adopted the general domestic principle in Louisiana; that a child support judgment remains in full force and effect in favor of the party to whom it is awarded until that judgment is modified or terminated by the court. Weatherspoon v. Weatherspoon, 433 So.2d 319 (La.App. 1st Cir.1983) and Vallaire v. Vallaire, 433 So.2d 315 (La.App. 1st Cir.1983).

Since the record in this case will not support a finding of an agreement between the parties to reduce or modify the child support, nor is there any evidence of a judicial directive, the arrearage is owed.

With regard to the second issue before us on appeal, it is well settled that fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children. L.S.A.-C.C. Art. 227. The degree of support required is determined by the needs of the child as well as the circumstances of those who are obligated to pay, L.S.A.-C.C. Art. 231; Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2nd Cir.1982).

The trial court, granted much discretion in fixing child support awards, will not be disturbed unless there is a clear abuse of discretion. Bettencourtt v. Bettencourtt, 407 So.2d 804 (La.App. 4th Cir.1981) and Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2nd Cir.1979). Considering all the circumstances, we find the award to be properly within the discretion of the trial judge. The trial court had sufficient evidence before it to make a determination under the provisions of Article 231 of the Civil Code.

Accordingly, this assignment of error is without merit.

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

AFFIRMED.


source: Caselaw Access Project

author: REDMANN, Chief Judge. BARRY, Judge, WARD, Judge,

license: Public Domain

text:
    Albert M. STALL v. LOUISIANA STATE RACING COMMISSION.
    No. CA-0608.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendant.
    Richard J. McGinity, Baldwin & Haspel, New Orleans, for plaintiff.
    Kenneth J. Berke, New Orleans, for in-tervenors Pasquelina Sabino, wife of William I. Fox; and Ernest A. Svendson and Bernard Cathcart d/b/a Driftwood Stables.
    Before REDMANN, C.J., and BARRY, AUGUSTINE, LOBRANO and WARD, JJ.
   REDMANN, Chief Judge.

The Louisiana Racing Commission appeals from a judgment overturning its disqualification of a racehorse and redistribution of the purse and breeder’s award. The issues are interpretation of a commission rule and authority for the commission’s action.

Racehorse Conge won a race and passed post-race drug testing. However, he had been allowed to run only because his failure of a pre-race phenylbutazone level test was, by mistake, not reported to the stewards. There can be no dispute that Conge should have been scratched as ineligible under Louisiana Rules of Racing 53.-43G. The dispute is over the application of the immediately following Rule 53.43H:

“The pre-race testing program so conducted at a designated track shall in no way change or interfere with the post-race testing program of the Commission. In the event of a conflict between pre-race and post-race tests, the post-race test governs and prevails.”

The trial judge, reversing the commission, reasoned that Rule 53.43H prevented holding the horse ineligible for failing the pre-race test, because the post-race test controls.

That is a misapplication of Rule 53.43H to facts to which it was never intended to apply. We adopt the reasoning of Commissioner Raymond Morgan. Allen:

“... the reason [Rule 53.43H] was put in there was very simply in the event that a horse passed the pre-race test and then failed the post-race test, that would solve it. But that doesn’t cover the reverse . situation because the horse should never, ever been in the race.... So, under the rules, you wouldn’t even have a post-race test.”

Conge’s owner argues that the Racing Commission had no authority to act in this matter on appeal from the stewards because the owners of the runner-up horses did not appeal within the five-day limit of R.S. 4:154 C from the stewards’ refusal (also on the basis of Rule 53.43H) to disqualify the ineligible winner. Conge’s owner further argues that the commission has no other authority to act in a matter such as this. We disagree.

We conclude that R.S. 4:154 C is inapplicable:

“B. A final appeal, in the case of any person penalized, or disciplined by the stewards, may be taken to the commission.
“C. Such an appeal must be filed in writing at the office of the commission within five days of the date of said penalty or imposition of said discipline.” (Emphasis added.)

Ours is not a case of a “person penalized, or disciplined by the stewards.” More important, the five-day limit cannot apply because it runs only from the time a penalty or discipline is imposed, and no penalty or discipline was imposed here.

Nor is R.S. 4:154 C the only source of the commission’s authority. That the commission itself is to decide unanticipated eases is the express provision of R.S. 4:172 B:

“Should any case occur which may not be covered herein or by the Rules of Racing, it shall be determined by the commission and implemented by the stewards but only insofar as such determination is consistent with justice, the best interest of racing and with powers and authority herein granted; and when no penalty is provided, the stewards of the meeting are hereby given authority to exercise their full power, recommending to the commission the imposition of more severe penalties if, in their judgment, the penalty should be more drastic.”

The commission itself deemed this an unforeseen and unprovided-for case, declaring

“The protests of [the owners of the second and third horses] are unique and do not fall within the category of routine protests associated with racing.”

The commission was correct in all aspects of its ruling.

The judgment of the trial court is reversed.

BARRY, J., concurs and assigns reasons.

WARD, J., dissents and assigns reasons.

BARRY, Judge,

concurring.

One track official knew Congé was ineligible before the race on December 5, 1981. Eleven days later he told a Steward about the violation, but for some unpardonable and unexplained reason, the matter went unreported for 54 days until revealed by Bob Roesler in his sports column on January 28, 1982. On that date third place owner (Fox) filed a protest with the Stewards and the Racing Commission.

Two additional requests (February 10th and February 20th) for action were filed with the Commission, but to no avail. Meanwhile, on March 9th the second place owner (Driftwood) joined Fox’s complaint to the Stewards. Finally, the Stewards rejected Fox’s protest on March 14th — 99 days after the contested race and 45 days after the first protest was filed.

A horse must be eligible to run a race. LAC 11-6:25.17. If a pre-race laboratory test reveals an excessive prohibited medication (an uncontested fact here) the horse shall be withdrawn from the race. LAC 11-6:35.18. The pre-race blood test is solely to determine eligibility — if positive the horse cannot run — period. Hence, an ineligible horse certainly can’t share a purse. It logically follows the post-race urine analysis should only prevail when the pre-race test is negative, otherwise, there is no reason to pre-race test.

Fairgrounds management should be commended for two reasons. First, Mr. Rous-sel gratuitously testified the Fairgrounds “agreed to take the total responsibility in this matter....” Second, instituting the pre-race blood test was voluntary and a genuine effort to “police” the sport. I also note that there is no evidence or allegation that the owner, Mr. Stall, had any knowledge of Congé’s condition.

Considering the unique facts of this case, plus the three “pre-appeals” filed before the Steward’s ruling, I agree that R.S. 4:172 B should be applied. Further, the five day limitation to appeal is inapplicable because the record is void of any date when prescription would commence.

The lack of timely action by the Stewards certainly contributes to the public’s lack of confidence in the sport of kings (and the sport of Who Dat’s).

I respectfully concur.

WARD, Judge,

dissenting with reasons.

I dissent.

This is an appeal from a judgment of the Civil District Court which reversed a ruling of the Louisiana Racing Commission. The District Court held that the Racing Commission erred when it disqualified the winning horse in a race conducted at the New Orleans Fairgrounds.

The controversial race was the Esplanade Handicap, the ninth race on December 5, 1981. The winning horse was Conge, owned by Mr. Albert Stall. The second and third place horses were Porte Eads and Shamsie, owned respectively by interve-nors, Driftwood Stables and Mrs. Pasqueli-na Fox.

More than a month after the race, it became public knowledge that when Conge raced in the Esplanade Handicap, he had not passed his pre-race blood test because of an excessive level of phenylbutazone, although his post-race urine test was clean and free of excessive drugs. That he was allowed to race when he should have been scratched was the result of a clerical error in the pre-race testing procedures, and the record is clear — there is no allegation of deceit or subterfuge by either the owner, trainer, or anyone connected with Conge.

Although there had been rumors around the track that Conge had flunked his pre-race test, the information was not public until January 28, 1982, when a newspaper article reported the story, and the protests and complaints by Driftwood and Mrs. Fox followed.

Their complaints were made first to the Stewards of the New Orleans Fairgrounds and then to the Commission. In a decision that was dated March 12, 1982, and issued March 14, 1982, the Stewards rejected the protests and gave reasons, relying on LAC 11-6:53.43H of the Rules of Racing:

The pre-race testing program so conducted at a designated track shall in no way change or interfere with the post-race testing program of the Commission. In the event of a conflict between pre-race and post-race tests, the post-race test governs and prevails.

The Commission, however, agreed to hear an appeal of the Stewards’ decision, and at its hearing on May 6, 1982, the Commission reversed the Stewards ruling, disqualified Conge, and ordered the purse redistributed. On June 25, 1982, the Commission denied Mr. Stall’s request for a rehearing, and on July 19, 1982, he filed suit for judicial review of the Commission’s decision. On November 24, 1982, the Trial Judge rendered judgment reversing the Commission, relying on LAC 11-6:53.43H of the Rules of Racing.

The statutory authority for a District Court’s review of a decision by an agency or commission is set out in La.R.S. 49:964 G which states:

The Court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

I believe that the Trial Judge was correct and that the decision of the Commission was contrary to its own rules; hence it was arbitrary and capricious, and manifestly erroneous in view of the whole record. Additionally, I believe the decision exceeded its statutory authority.

The Rules of Racing adopted by the Commission LAC 11-6:53.43H is clear, unequivocal, and applicable:

The pre-race testing program so conducted at a designated track shall in no way change or interfere with the post-race testing program of the Commission. In the event of a conflict between pre-race and post-race tests, the post-race test governs and prevails.

The majority concludes that the rule is inapplicable because it was never intended to apply to a unique situation, such as this, and the majority relies upon an opinion of one of nine Commissioners, Mr. Allen, who, when he explained the reason for his vote, concluded by saying the rule is not applicable. On the other hand, Mr. Louis Rous-sell, Jr., attorney for the Fair Grounds, testified under oath that the rule was applicable. Neither opinion is evidence, but one is certainly as persuasive as the other. Other than Mr. Allen’s opinion, there is nothing, not one bit of evidence to show that this situation, however unique, was not intended to be covered by the above rule. Yet, the majority confidently states it was not.

On the other hand, there is good reason to believe that it was. Pre-race testing is not required by law nor by Commission rules, but post-race testing is. As a matter of fact, of the four tracks in Louisiana, only the Fair Grounds has adopted pre-race testing. Hence, it is logical to assume, as the Commission’s rule provides, that in the event of conflict, the test required by the Commission, the post-race test, would prevail.

There are other reasons to believe the post-race test was meant to prevail. The Rules of Racing govern the kinds and amounts of medications that are permitted or prohibited in competing horses, and testing procedures have been established to insure that each horse is free of illegal drugs. The pre-race test uses a blood sample analyzed at the track, while the post-race test uses a urine sample carefully analyzed at the State Chemist’s laboratory, not under the pressure of time as the pre-race test.

The record indicates that the pre-race testing of horses is a newer procedure for determining the presence of medication in horses than the post-race urine test. The pre-race program must be requested by the race track and receive approval by the Commission before it is implemented; it is a discretionary screening procedure. The record reflects that the pre-race laboratory at the Fairgrounds is newly developed and is still exchanging information with other laboratories around the country for the purpose of reaching the most effective procedures and results. What appears from the record is that an indeterminate margin of error exists whereby a horse may not be drug-free in the pre-race blood test but then be drug-free in the post-race urine test. Hence, I believe this is an adequate explanation for adoption by the Commission of LAC 11-6:53.43(H), providing that the post-race test shall govern.

In sum, because the pre-race test is discretionary for each race track, while the post-race test is mandated by the Commission, and because the pre-race test is innovative and a relatively new procedure, I do not believe as the majority believes that this provision is applicable only when the pre-race test is negative and the post-race test is positive. Rather, I believe it is also applicable to the current fact situation where the pre-race test is positive.

But more importantly, when a rule is so clear and unambiguous, we should not go beyond its words to speculate about the intent of the Commissioners when they adopted it. The language of LAC 11-6:53.-43(H) is clear and unambiguous. Although a horse would usually be disqualified when the pre-race test is positive, when an error occurs which permits that horse to run, I cannot say that LAC 11-6:53:43(H) is not applicable.

Moreover, unlike the majority, I do not believe the Commission had authority to reverse the Steward’s ruling.

Although the majority finds support for the Commission’s action in R.S. 4:172 B, I do not. By its own terms, the statute applies only in cases not covered by the Rules of Racing.

R.S. 4:172
A, * * ⅝
B. Should any case occur which may not be covered herein or by the Rules of Racing, it shall be determined by the commission and implemented by the stewards but only insofar as such determination is consistent with justice, the best interest of racing and with powers and authority herein granted; and when no penalty is provided, the stewards of the meeting are hereby given authority to exercise their full power, recommending to the commission the imposition of more severe penalties if, in their judgment, the penalty should be more drastic. (Emphasis added)
But, the Rules of Racing cover the case: LAC 11-6:28.1 ⅜ * *.
The stewards, however, may scratch an ineligible horse or reassign any prize a horse may have won, at any time.

Obviously, if Track Stewards are authorized to scratch an ineligible horse or to reassign any prize a horse may have won, at any time, LAC 11-6:28.1, this covers the case, and R.S. 4:172 cannot apply.

The majority, relying on R.S. 4:172, although I am not sure, apparently believes any aggrieved party can directly petition the Commission to redress any alleged grievances at any time if they cannot obtain relief from the Stewards. I am not willing to concede that the Legislature granted the Commission this authority. The Rules of Racing have given the Stewards, not the Commission, the authority to redistribute a purse.

Finally, the Legislature has narrowly defined the limits of the Commission’s authority to review the Steward’s ruling to those cáses where the Stewards have fined or disciplined any person.

R.S. 4:156

A final appeal, in the case of any person penalized, or disciplined by the Stewards, may be taken to the Commission.

In the instant case, the Stewards have declined to scratch Conge or to reassign the purse he won. No one has been fined or disciplined, no one has demonstrated the Steward’s decision was wrong,- and no one has shown to my satisfaction that the Commission had jurisdiction.

I would affirm, and therefore I respectfully dissent.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Edward THOMAS.
    No. K-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Joseph Meyer, Jr., New Orleans, for relator.
    Harry F. Connick, Dist. Atty., Paul Mayoral, Asst. Dist. Atty., New Orleans, for respondent.
    Before REDMANN, C.J., and BYRNES and LOBRANO, JJ.
   REDMANN, Chief Judge.

We granted review of the trial court’s refusal to rescind a bond forfeiture. The surety argues that quashing of the bill of information had immediately discharged the surety, notwithstanding an amendment two days later to cure the defect for which the information was quashed. We disagree.

La.C.Cr.P. 538 provides that as to four specified grounds for quashing the court

“shall order the defendant discharged
“In other cases, when a motion to quash is sustained, the court may order that the defendant be held in custody or that his bail be continued for a specified time, pending the filing of a new indictment.” (Emphasis added.)

Our case is one of the “other cases,” that is, cases in which the trial judge is not obliged to discharge the defendant, but “may” order defendant held (in custody or in bail) for a “specified” time.

The trial judge, in granting the motion to quash, did not order that defendant be discharged, nor that he be held in custody nor that his bail be continued.

We conclude that the effect of such silence is that the court does not thereby order a defendant discharged. If the defendant is in custody, the result is that he continues to be held in custody, with the right to demand that some specified time be fixed by the court within which a new information be filed or he be released. If defendant is on bail, the result of such silence is that he continues at liberty on bail, with a similar right to have the time specified for new information or release. Because bail is thus continued, the surety is not discharged by the granting of a motion to quash in one of the “other cases” of C.Cr.P. 538.

The surety also argues that the amendment of the information was in effect a new information that should have had a new docket number, a new charge in respect to which the surety never guaranteed defendant’s appearance.

Our view, to the contrary, is that the charge to answer which the surety guaranteed the defendant’s appearance is not a docket number but an accusation of criminal behavior that remains unchanged by correction of technical errors or omissions in the bill of information. The surety therefore remains liable on its bond’s condition that defendant “will appear at all stages of the proceedings ... to answer that charge or any related charge .... ”

Affirmed.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Larry LOFTON.
    No. KA-0732.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary C. McMullan, William R. Campbell, Jr., Asst. Dist. Attys., New Orleans, for the state.
    Dwight Doskey, Stephen L. Stinson, Orleans Indigent Defender Program, New Orleans, for defendant.
    Before GULOTTA, KLEES and WARD, JJ.
   GULOTTA, Judge.

Defendant appeals his conviction and sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for second degree murder, LSA-R.S. 14:30.1. In his sole assignment of error, defendant requests this court to review the record for errors patent and to reverse his conviction and sentence.

Having examined the documents in the record, we find no errors patent. Upon review of the 185 page transcript of the jury trial, in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    CARRIAGE MEAT COMPANY, INC. v. HONEYWELL, INC. d/b/a Honeywell Protection Services.
    No. CA-0676.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Warren J. Pickle, New Orleans, for appellant.
    Michael J. Furman, New Orleans, for appellee.
    Before GULOTTA, REDMANN, LO-BRANO, BYRNES and WILLIAMS, JJ.
   GULOTTA, Judge.

Carriage Meat Company, Inc. (Carriage) appeals from the dismissal, by summary judgment, of its suit for losses resulting from meat spoilage caused by the failure of a temperature monitoring system in Carriage’s meat freezer. Defendant Honeywell, Inc., d/b/a Honeywell Protection Services (Honeywell), installed the system in the freezer and monitored it at Honeywell’s central station.

According to the petition, on the morning of Monday, April 27, 1981, Carriage discovered that its freezer was not operating and that the contents had spoiled over the prior weekend. Carriage alleged Honeywell’s “gross negligence” in failing to alert plaintiff of the triggering of the alarm indicating a breakdown in the freezer. Damages were sought in excess of $71,000.00.

Honeywell filed a motion for summary judgment seeking to limit its liability to a maximum of $342.00 based on its contract with Carriage. Attached to the motion was an affidavit of Honeywell’s branch manager stating that a protection service contract had been entered into between the parties. A copy of said contract was annexed to the affidavit.

In maintaining defendant’s motion for summary judgment, the trial judge relied on the following language in the “INSTALLATION AND SERVICE AGREEMENT” between the parties:

“It is understood and agreed by the parties hereto that Contractor [Honeywell] is not an insurer and that insurance, if any, covering personal injury and property loss damage on Subscriber’s [Carriage’s] premises shall be obtained by the Subscriber; that the Contractor is being paid for the installation and maintenance of a system designed to reduce certain risks of loss and that the amounts being charged by the Contractor are not sufficient to guarantee that no loss will occur; that the Contractor is not assuming responsibility for any losses which may occur even if due to Contractor’s negligent performance or failure to perform an obligation under this Agreement. THE CONTRACTOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICE ’ SUPPLIED MAY NOT BE COMPROMISED, OR THAT THE SYSTEM OR SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED.
“Since it is impractical and extremely difficult to fix actual damages which may arise due to the faulty operation of the system or failure of services provided, if, notwithstanding the above provisions, there should arise any liability on the part of the Contractor, such liability shall be limited to an amount equal to one half the annual service charge provided herein or $250, whichever is greater. This sum shall be complete and exclusive and shall be paid and received as liquidated damages and not as a penalty. In the event that the Subscriber wishes to increase the maximum amount of such liquidated damages, Subscriber may, as a matter of right, obtain from Contractor higher limits by paying an additional amount under a graduated scale of rates relating to the higher limits of liquidated damages.”

Carriage contends that Honeywell’s apparent failure to monitor its detection equipment (or some similar failure) over an entire weekend constitutes a “blatant disregard of its contractual duty”, and, under such circumstances, the exculpatory provision of the contract is not applicable.

Honeywell, on the other hand, relies on this court’s opinion in Lazybug Shops, Inc. v. American Dist. Telegraph, 374 So.2d 183 (La.App. 4th Cir.1979), writ denied 376 So.2d 1271 (La.1979), where, following the failure of a burglar alarm system, we upheld the validity of an exculpatory and limitation of liability clause similar to the one in the Honeywell-Carriage contract. Honeywell relies also on Alan Abis, Inc. v. Burns Electronic Security Serv., Inc., 283 So.2d 822 (La.App. 2nd Cir.1973), also involving a defective burglar alarm system, where the Second Circuit held that contracts of this nature were not in violation of public policy and applied the exculpatory provisions of the contract.

Although we recognize the holdings in Lazybug and Alan Abis, we conclude that the allegations in the petition in our case distinguish the instant case from those cited.

Carriage’s petition alleges not that the monitoring system failed, as in Lazybug and Alan Abis, but that the monitoring system indicated a freezer malfunction for many hours and that Honeywell personnel had failed to notify Carriage. Plaintiffs petition states:

“That, at no time prior to Carriage’s discovery of the freezer’s breakdown did Honeywell attempt to contact Carriage or any of its designated agents so as to alert them of the problem. That failure of Honeywell to alert Carriage of the alarm system being triggered represents gross negligence on the part of Honeywell for which Honeywell is liable to Carriage for all losses sustained pursuant thereto.”

When we consider these allegations together with the pertinent contract provisions, as well as the jurisprudence, we are led to conclude that the trial judge erred in dismissing plaintiff’s suit by summary judgment.

By its own terms, the contract exculpates Honeywell from liability for any losses, even if due to its "... negligent performance or failure to perform an obligation .... ” It is clear that this language does not include willful failure to monitor the system or other deliberate disregard of a contractual duty.

Despite the exculpatory provision, the agreement states that Honeywell will provide protection services in the nature of a “central station supervised transmitter” and a “transmitter for temperature supervision.” A willful failure to monitor this system or a deliberate disregard of a contractual duty would not be consistent with the intended protection service set forth in the contract. Accordingly, if Honeywell furnished no personnel who monitored the system, or if personnel failed to notify plaintiff during many hours of the alarm’s being triggered, liability might well be imposed irrespective of the exculpatory clause.

Our consideration of the pertinent allegations of the petition, undisputed by defendant’s motion for summary judgment, leads to a conclusion that the assertions are tantamount to a claim that Honeywell’s failure was either willful or a deliberate disregard of its contractual duty. If Carriage proves only simply negligence at a trial on the merits, the contractual limit of liability would apply.

Consistent with the foregoing, we hold that the trial judge erred in maintaining Honeywell’s motion for summary judgment and dismissing plaintiff’s suit. Accordingly, that judgment is reversed and set aside, and the matter is remanded to the trial court for further proceedings. Costs to await the outcome of the litigation.

REVERSED AND REMANDED.

      . For a discussion of gross negligence vis a vise, limitation of liability clause, see FMC Corp. v. Continental Grain Co., 355 So.2d 953 (La.App. 4th Cir.1977), on application for rehearing.


text:
    Arthur STEWART v. BARQ’S BEVERAGES, INC.
    No. CA-0810.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Michael I. Rodriguez, Birdsall, Rodriguez, Robelot & Nelson, New Orleans, for appellee.
    Arthur C. Reuter, Jr., Kurt S. Blankenship, New Orleans, for appellant.
    Before GULOTTA, KLEES and WARD, JJ.
   GULOTTA, Judge.

In this products liability case, Barq’s Beverages, Inc., appealing from a $2,685.00 judgment, claims Arthur Stewart failed to establish that defendant manufactured or bottled a contaminated soft drink. Alternatively, defendant claims the award is excessive. We affirm.

On March 27, 1981, after drinking the contents of a soft drink bottle, plaintiff started feeling “nauseated and woozy and laid down and got sick.” On examining the bottle, Stewart saw a “gray-colored”, “grayish brown” and “slimy looking” substance. Thereafter, he experienced diarrhea, vomiting, dizziness and continued nausea.

A prima facie case against a manufacturer or bottler is established when one consumes a bottled beverage contaminated with unwholesome matter from its original container. See LeBlanc v. Louisiana Coca Cola Bottling Co., 221 La. 919, 60 So.2d 873 (1952) and Banks v. Jefferson Bottling Co., 249 So.2d 228 (La.App. 4th Cir.1971). In such cases, the injured party bears the burden of showing the defendant was a manufacturer or bottler of the contaminated product. See Mayberry v. Gulf South Beverages, Inc., et al., 438 So.2d 261 (La.App. 4th Cir.1983); and Paul v. Hardware Mut. Ins. Co., 254 So.2d 690 (La.App. 3rd Cir.1971).

Plaintiff testified that he drank from a Barq’s Root Beer bottle. The bottle, bearing the “Barq’s” label, was then identified and introduced into evidence. Considering plaintiff’s testimony, together with the exhibit (bottle), we conclude that plaintiff established a prima facie case that the contents were either manufactured or bottled by Barq’s.

Turning now to quantum, we find no merit to defendant's contention that the $2,865.00 award is excessive.

Following consumption of the beverage on March 27, plaintiff was examined by Dr. Francis Daly on April 1, 1982. On his first visit, Stewart complained of nausea, loss of appetite, dizziness and vomiting. Dr. Daly prescribed medication and recommended a soft, light diet. Plaintiff was seen on four additional visits, and was discharged on May 22.

A May 29, 1981 medical report revealed Dr. Daly’s clinical impression as “psychogenic vomiting and nausea following ingestion of probable contaminated liquid”. This physician noted “improvement” in plaintiff’s “outward signs” on the followup visits, and an excellent prognosis on discharge.

The evidence considered, we do not conclude that the award, though somewhat generous, constitutes an abuse of the trial court’s discretion.

Accordingly, the judgment of the trial judge is affirmed.

AFFIRMED.

      . We distinguish Mayberry, supra; Paul, supra; and Blount v. Gulf South Beverages, Inc., 428 So.2d 885 (La.App. 1st Cir.1983) where, unlike our case, plaintiffs failed to produce any evidence that defendants were either the bottlers or manufacturers.


text:
    Judith HALPERN v. Herbert HALPERN.
    No. CA-0824.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Dorothy F. Waldrup, Lambert & Waldr-up, New Orleans, for appellee.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert C. Lowe, New Orleans, for appellant.
    Before GULOTTA, KLEES and WARD, JJ.
   GULOTTA, Judge.

A divorced husband appeals from a January, 1983 judgment denying his rule to terminate or decrease $1,000.00 per month permanent alimony awarded in a consent judgment in May, 1982. We affirm.

The husband contends the trial court abused its discretion in denying a reduction because the evidence clearly demonstrated “a change for the worse in his financial condition” since the prior judgment. He further points out that the wife’s income and net worth allow her “sufficient means for support”.

A party seeking modification of an alimony award established by a consent judgment must show a “change of circumstances” since the date of the judgment. Ducote v. Ducote, 339 So.2d 835 (La.1976); Willis v. Willis, 355 So.2d 999 (La.App. 4th Cir.1978), writ denied 356 So.2d 1389 (La.1978); Gabriel v. Gabriel, 419 So.2d 538 (La.App. 5th Cir.1982). The moving party bears the burden of showing a “substantial” change. Crum v. Crum, 330 So.2d 925 (La.App. 1st Cir.1976); Nash v. Nash, 431 So.2d 1090 (La.App. 3rd Cir.1983); Vial v. Vial, 422 So.2d 523 (La.App. 5th Cir. 1982), writ denied 427 So.2d 868 (La.1983). Absent a showing of a clear abuse of discretion, the trial court’s judgment will not be set aside or amended. Durbin v. Durbin, 424 So.2d 1130 (La.App. 1st Cir.1982).

Because of the absence of any evidence of a change in the wife’s circumstances since the May, 1982 consent judgment, her situation is not in issue. The issue before us is whether the husband proved a substantial change in his circumstances entitling him to relief.

Mr. Halpern has operated a retail fabric business as a sole proprietor for approximately 15 years. In the year ending July, 1982, the business had sales in excess of $1,000,000.00, a gross profit over $368,-000.00 and a net business income in excess of $54,000.00. According to Halpern, the business had additional sales over $387,-000.00 from August through November, 1982, but lost over $47,000.00 after expenses during that period.

Part of the salary and wage expense of the business is Halpern’s monthly draw. Before the May, 1982 judgment, the husband’s monthly salary from the business averaged $3,730.00. From June through November, 1982, however, his salary averaged $2,616.00 per month. Halpern testified his draw in December, 1982 was approximately $1,600.00, and in January, 1983 was between $800.00 and $1,000.00. He stated that he has “no set rules” for determining the amount of his monthly draw and that he draws “exactly what” he needs.

In addition to his retail business, Halpern has real estate generating rental income of $5,225.00 per month. The rents are deposited in the business account, but are not counted as sales. The business pays the mortgages on the properties and other expenses including insurance, taxes, repairs and maintenance.

According to Halpern, he was paying on various loans at the rate of $5,900.00 per month before the alimony judgment. He testified that since May, 1982, however, his business indebtedness has increased by $24,000.00, and various bank loans have been consolidated into a single $210,000.00 note payable in three years at the rate of $7,152.00 per month.

The evidence considered, we reject Hal-pern’s contention that the increase in the loan payments and the decrease in the net profits of his business demonstrate a “downward turn” in his financial condition entitling him to a modification of the May, 1982 judgment.

Despite the testimony by Halpern and his accountant concerning the deteriorating net profit structure of the business, a reasonable conclusion can be made that its financial health may not be as bad as it appears in the listed net profit figures.

Although the evidence does apparently demonstrate some change in the husband's circumstances, we do not conclude that the trial judge abused his discretion in refusing to reduce or terminate the $1,000 per month alimony payment. Notwithstanding the increase in loan payments to the bank, we cannot say that the husband, who possesses considerable assets and continues to enjoy a sizeable monthly salary and rental income, has shown a substantial change justifying relief. See Sonfield v. Deluca, 385 So.2d 232 (La.1980). We find no error in the trial judge’s ruling.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Iris WHITEHEAD v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA-0865.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Walter A. Robelot, Benjamin J. Birdsall, Jr., Birdsall, Rodriguez, Robelot & Nelson, New Orleans, for appellant.
    Floyd F. Greene, Orleans Public Service, Inc., New Orleans, for appellee.
    Before GULOTTA, KLEES, and WARD, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment dismissing her personal injury suit against New Orleans Public Service, Inc. (NOPSI). We affirm.

On May 1, 1981, Iris Whitehead fell from the bottom step while alighting through the rear door of a NOPSI bus. According to plaintiff, after falling she noticed that the runner in the middle of the bottom step was worn through and had a shiny spot as large as the palm of her hand revealing the metal underneath. She claims the worn and defective step caused her to fall.

In written reasons for judgment, the trial judge stated “Plaintiff failed to sustain the burden of proof required.” Appealing, plaintiff contends the trial court erred by not applying the well established rule that once a fare paying passenger establishes a prima facie case of negligence by the mere showing of injury, the burden of proof shifts to the carrier to exculpate itself. See Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979); DeClouet v. New Orleans Public Service, Inc., 434 So.2d 130 (La.App. 4th Cir.1983) and Trask v. New Orleans Public Service, Inc., 422 So.2d 1285 (La.App. 4th Cir.1982).

Although it is true the trial judge did not articulate the above-cited, jurisprudential rule, his reasons for judgment reflect that he properly applied it in the instant case. In those reasons, he stated, “The Court is of the opinion that the rear step of the New Orleans Public Service, Inc. bus was not defective nor did a dangerous condition exist which caused plaintiffs fall and her injuries.” We interpret these reasons to mean that NOPSI had exculpated itself (in the trial judge’s thinking) by showing the step was not defective. The evidence supports this conclusion.

Melcom Ross, an investigating officer of the New Orleans Police Department, examined the steps of the rear door shortly after the accident. According to Ross, there was a “little indentation” in the middle of the rubber covering the last step where it was worn, “to where you wouldn’t be able to see the yellow line” bordering the step.

A passenger seated across from the rear door of the bus when the incident occurred did not notice that other passengers had difficulties using the rear steps. This passenger, who exited through the front door of the bus after the incident, acknowledged that the rear steps looked “safe” to her.

Charles Clay, a supervisor for the transit department of NOPSI who investigated the accident, testified that shortly after the incident he had examined the rear steps and found them “worn some, but not damaged, and if the bus was damaged, it would have to be taken out of service_” He did not have the bus taken out of service that day.

Our case is unlike those cases where plaintiffs slipped on debris or water on a bus. See DeClouet, supra, and Trask, supra. Nor is it like Roussel v. New Orleans Public Service, Inc., 385 So.2d 479 (La.App. 4th Cir.1980), where the protective matting had worn away on the steps leaving an exposed and slippery surface, and NOPSI failed to prove it was “without the slightest degree of negligence.”

Rather, our case is more closely akin to Walton v. New Orleans Public Service, Inc., 413 So.2d 527 (La.App. 4th Cir.1982), where we affirmed the trial judge’s dismissal of a suit by a passenger who contended a defective bus door had allowed water to accumulate on the bottom step and caused her to fall. The trial judge in Walton concluded NOPSI had met its burden of proving it was without the slightest degree of negligence after the claims investigator and the bus driver had found neither the back door, the matting on the steps, nor the hand railing defective.

Finally, we find no merit to plaintiff’s alternative contention that the trial court erred in failing to find defendant strictly liable under LSA-C.C. Art. 2317. Louisiana law has not adopted strict liability in public conveyance case.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Public carriers, while not insurers of their passengers, are required to exercise the highest degree of care to transport passengers safely to their. destinations. See Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963) and Trask v. New Orleans Public Service, Inc., supra.


text:
    William A. GUNTER v. LOUISIANA DEPARTMENT OF LABOR.
    No. CA-1041.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Paul G. Mayoral, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., New Orleans, James A. McGraw, Eddie G. Crawford, Denise A. Nagel, Legal Unit, Office of Employment Sec., Baton Rouge, for Louisiana Dept, of Labor.
    Before GULOTTA, KLEES and WARD, JJ.
   GULOTTA, Judge.

In this unemployment compensation case, William A. Gunter appeals from the trial court’s judgment affirming the denial of his claim for benefits. We affirm.

Gunter left his employment with Navios Ship Management Services, Inc. on October 8, 1981, and immediately became employed by Norton, Lilly and Company, Inc. It is undisputed that he voluntarily changed jobs to receive more overtime work and increased pay. On March 7,1982, however, he was terminated from his new job, and applied for unemployment compensation benefits. According to plaintiff, his lay-off from Norton Lilly resulted from the effects of the recession on the Port of New Orleans.

LSA-R.S. 23:1601(1), as amended by Act 131 of 1981, provides as follows:

“An individual shall be disqualified for benefits:
(1) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States equivalent to at least ten times his weekly benefit amount subsequent to a claim for a compensable week for unemployment benefits under this Act and (b) has not left his last work under disqualifying circumstances. A compensable week is defined as a week for which benefits would otherwise be payable except for the disqualification imposed by this Paragraph or by the provisions of R.S. 23:1600(4); however, if the claim for a compensable week is filed subsequent to six months from the date of any disqualifying separation under this Paragraph and the claimant has earned ten times his weekly benefit amount subsequent to the separation and has not left his last work under disqualifying circumstances, the disqualification imposed by this Paragraph shall no longer apply.”

Citing LSA-R.S. 23:1601(1), the Office of Employment Security denied Gunter’s claim based on findings that he had left Navios’ employment “to accept other employment” and that his “leaving was not for good cause connected with the employment.” In a separate ruling, the Agency likewise found that Gunter’s earnings at Norton Lilly did not serve to remove his disqualification since he had not been paid wages equivalent to at least ten times his weekly benefit amount “subsequent to a claim for a compensable week for unemployment benefits.... ” as set forth in LSA-R.S. 23:1601(1). The Agency’s decisions were affirmed by the Appeals Referee, the Board of Review and the reviewing court.

Gunter contends that the administrative tribunals and the trial judge erroneously interpreted LSA-R.S. 23:1601(1), as amended by Act 131 of 1981. According to Gun-ter, despite earning an amount in excess of ten times his weekly benefit after resigning his first job, he has been denied benefits merely because he failed to apply for benefits (to which he was not entitled) upon leaving his first employer, and because he did not work for a six month period before being terminated by his subsequent employer, Norton Lilly. Gunter argues that the Agency’s interpretation compels a vain and useless act and allows for an absurd result inconsistent with the meaning, spirit, and intent of the statute.

Gunter contends further that the administrative appellate review tribunals erred in not allowing him to introduce evidence to establish that he had quit his former employment “for good cause.” Finally, Gun-ter argues the trial judge and the Board of Review erred in applying the 1981 amendment to the act since the act “envisions a six month base period calculation”, and the 1981 amendment became effective within less than one month of his change of employers.

Because we find no merit to the claimant’s contentions, we affirm.

The scope of judicial review of a decision disqualifying an employee from unemployment compensation benefits is limited to questions of law and whether the decision is supported by sufficient evidence. See LSA-R.S. 23:1634; Bowman v. State, Office of Employment Sec., 403 So.2d 825 (La.App. 2nd Cir.1981); Black v. Sumrall, 413 So.2d 252 (La.App. 4th Cir.1982).

Furthermore, our courts have held that an employee’s voluntary leaving of his employment purely because of dissatisfaction with his compensation is not “good cause” entitling him to unemployment compensation benefits. See Perry v. Brown, 162 So.2d 444 (La.App. 3rd Cir.1964), writ denied 246 La. 361, 164 So.2d 356 (1964); Salvant v. Lockwood, 400 So.2d 311 (La.App. 4th Cir.1981). See also Vidrine v. Brown, 163 So.2d 375 (La.App. 3rd Cir.1964), writ refused 246 La. 592, 165 So.2d 484 (1964), where an employee’s voluntary termination to become self-employed was not “good cause” connected with his employment.

Applying the law to the instant case, we cannot say the Appeals Referee and the Board of Review erred in determining that Gunter had left his employment with Nav-ios “without good cause.” Because it is undisputed that Gunter voluntarily left work for a higher paying job, we likewise find no error in the refusal by the administrative body to hear evidence on the “good cause” question.

Furthermore, when we consider the wording of LSA-R.S. 23:1601(1), as amended, we cannot say the administrative tribunals or the trial court erred in concluding that Gunter’s disqualification was not removed. The Appeals Referee, and the Board of Review applied the act as written, despite plaintiff’s claim that their “technical” construction compels a ludicrous result. Plaintiff’s argument addresses itself to legislative action rather than to the courts.

We find no error in statutory construction or application in the instant case, where the claimant clearly left his former employment without cause and failed to meet the statutory requirements for removal of his disqualification.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Albert MITCHELL.
    No. KA 0779.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., John H. Craft, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    Before SCHOTT, BARRY, and LOBRA-NO, JJ.
   SCHOTT, Judge.

Defendant was convicted of armed robbery in violation of LSA-R.S. 14:64 and sentenced to fifty years at hard labor. In this appeal he submits two assignments of error, that the evidence is insufficient to support the conviction of armed robbery rather than simple robbery and that the sentence is excessive.

In the early afternoon of February 17, 1982, the victim, a fourteen year old girl, was walking along St. Claude Avenue in New Orleans when defendant began to follow her. When she reached the corner he grabbed her arm, told her he had a knife which she felt sticking in her side, and demanded her rings and watch. She complied. He then yanked two gold chains from her neck and ran away. She reported the crime to the police and described defendant to them. Five days later the victim saw defendant two blocks from the scene of the crime in a pool hall, whereupon she ran home and called the police. When the police arrived they got defendant’s name from the pool hall owner as well as defendant’s approximate address which was nearby. The officers found defendant near the address but as they were arresting him he ran away. He was apprehended about a month later.

In support of his first assignment defendant contends that there was no proof that he had a knife because the victim never saw it so that he was not properly convicted of armed robbery which requires proof that he was “armed with a dangerous weapon” while perpetrating the offense. Pointing to one isolated question and answer during cross examination of the victim, to wit: “Could it [what she felt sticking in her side] have been his fingernail?” To which she replied, “I don’t know;” defendant argues that a reasonable doubt necessarily exists as to defendant’s having a knife.

However, when her testimony is considered in its full context, it is clear that the jury as a rational trier of fact could have found that defendant’s possession of a knife was proved beyond a reasonable doubt. The case is practically identical to State v. Talbert, 416 So.2d 68 (La.1982) where the victim did not see the object pressed against her but perceived with her senses that it was a gun or some other object which could be classified as a dangerous weapon. Defendant’s suggestion that the sharp object which the victim clearly perceived to be a knife was his fingernail apparently caused no reasonable doubt in the minds of the jurors that it was in fact a knife. We are not persuaded that there should have been any reasonable doubt in their minds.

A review of the record convinces us that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the essential elements of the crime of armed robbery were proved beyond a reasonable doubt. Thus, the conviction as a whole including proof that defendant was armed with a dangerous weapon meets the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and State v. Fuller, 414 So.2d 306 (La.1982).

By his second assignment of error defendant contends his sentence of fifty years as a first offender was excessive and is not consistent with the guidelines imposed by C.Cr.P. Art. 894.1. The record shows that the trial judge specifically considered those guidelines in imposing sentence. He correctly observed that a jail sentence was mandated by R.S. 14:64 for the offense and he noted that 1) defendant, though not previously convicted, had a lengthy arrest record for eight felonies, nine misdemeanors and four municipal convictions in five years; 2) there was an absence of any extenuating or mitigating circumstances; and 3) the crime was “aggravated by the fact that [defendant] ruthlessly victimized a 14 year old child and threatened her with death if she resisted.” We find that the trial judge complied with Art. 894.1 even though he did not enumerate every factor in the article. State v. Square, 433 So.2d 104 (La.1983).

Finally, we have considered whether the sentence was excessive even though it was within the statutory limits and was imposed in accordance with Art. 894.1. The trial court is vested with wide discretion in sentencing and a sentence should not be disturbed absent an abuse of discretion. State v. Square, supra. Considering those factors noted by the trial judge we cannot say he abused his discretion in imposing this middle-range sentence on the defendant.

AFFIRMED.


text:
    Johnnie BOYCE v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 0874.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Floyd F. Greene, New Orleans, for defendant-appellant.
    Steve V. Barbre and Matthew B. Collins, Jr., New Orleans, for plaintiff-appellee.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   SCHOTT, Judge.

This is a suit for personal injuries sustained by plaintiff when he was a passenger on a bus owned by defendant, New Orleans Public Service, Inc. (NOPSI). Also made defendant was William H. Gregg, the operator of a truck involved in the accident which allegedly caused plaintiffs injuries. The case was tried to a jury which returned a verdict in plaintiffs favor for $38,000 against NOPSI and exonerated Gregg. NOPSI has appealed limiting arguments in this court to the issue of quantum of damages.

At the time of the accident on October 28, 1980, plaintiff was rising from his seat on the bus and was jolted or thrown back against the seat. He immediately reported to the driver that his back was injured. Later that evening he felt a severe pain in the low back when he bent down and he went to Charity Hospital where he was examined and was given pain medication. On the following day he went to Dr. Chas. H.D. Bauers, a general practitioner and surgeon, for treatment.

Bauers testified: Plaintiff was complaining of excruciating pain in his back and had muscle spasms and tenderness over the lumbar spine. Bauers diagnosed a lumbar strain, prescribed medication, and scheduled a return visit for November 3. At this time plaintiffs symptoms had improved but spasm was still present and Dr. Bauers added diathermy to the regimen. Plaintiff began these diathermy treatments on November 6 and continued with them twice a week until November 24. By December 1 plaintiff was asymptomatic and on December 9 he was discharged.

On May 13, 1981, plaintiff went to Dr. T.S. Whitecloud, III, an orthopedist, who testified: Plaintiff complained of intermittent low back pain especially after heavy lifting or sudden motion of the lower spine. Examination revealed no objective symptoms. Dr. Whitecloud concluded that plaintiff may have sustained a strain and may have some residual discomfort but he should have completely recovered from any injury he sustained in the bus accident. He recommended that plaintiff continue with his exercise program. Plaintiff returned on June 1 and on July 10 when the complaints and findings were about the same as before. On August 12 he returned stating that he had started having discomfort in the evenings. Dr. Whitecloud still felt that plaintiff had no serious problem but because of plaintiffs persistence he scheduled a computer tomograph study, which is a special X-ray evaluation of the lower back. This was performed on December 12 and was negative. On March 23, 1982, plaintiff returned complaining of an onset of some rather severe pain in the lower back after some sudden motion. Examination disclosed some mild spasm. Dr. Whi-tecloud saw plaintiff for the last time on April 27, 1982, when he was still complaining of some discomfort but had no spasm. Although the doctor found no objective symptoms at this time he felt that plaintiff “probably does have some back discomfort.” Dr. Whitecloud did not think plaintiff “has anything more than a lumbar spine that perhaps is bothering him a little bit more frequently than someone who has not been injured” and he thought that plaintiff might have intermittent back discomfort for some period of time in the future.

Dr. Masako Wakabayashi, a radiologist, performed thermograms on plaintiff on January 25 and May 17, 1982. She testified that the thermogram is a test in which temperature is measured at points in the body to detect spasm or irritability. Based on the January test she concluded that spasm and irritability were present in plaintiffs lower lumbar region and after the May test she concluded that he had nerve root irritation at L4 and L5.

Plaintiff was twenty-four years of age when the case was tried in May, 1982. He had worked at various jobs since he was seventeen and had worked at an oyster restaurant for a year before the accident. This involved handling heavy sacks of oysters and blocks of ice. He had participated extensively in sports before the accident. He testified that he could no longer pick up anything heavy and can no longer participate in sports to any appreciable extent. He stated that he had made a recovery at the time he was discharged by Dr. Bauers but began having trouble again leading him to consult Dr. Whitecloud. He stated that whenever he tries to do something his back - gives him trouble frustrating him and making him “grouchy;” and as far as work is concerned “if it had not been for this accident, I could have been looking forward where I could get a job where it involved doing something to make more money. But now, I can only limit it to do light work.” He went on to say that his job opportunities are limited because he must disclose on applications that he was injured and “that is a mark against me.” Finally, he testified that he never had any back problems before this accident.

Plaintiffs testimony was corroborated by that of his supervisor and his wife that his activities have been curtailed since the accident.

NOPSI contends that the jury abused its discretion in awarding $38,000 (which includes about $1500 of stipulated special damages) for a soft tissue injury which was resolved on December 1, 1980. NOPSI argues that plaintiffs credibility was questionable because of a few minor discrepancies in his testimony.

The jury was apparently satisfied that plaintiff was truthful and accepted his testimony that he did suffer a relapse which caused him to see Dr. Whitecloud, was still disabled to some extent nineteen months after the accident, and would continue to be so disabled for some time in the future. It was apparently convinced that this young man did suffer a substantial set back in his personal life and in the area of job opportunities because of his injuries. The record does not provide us with any basis to substitute our own credibility evaluation for the jury’s.

There is no fixed scale of awards for soft tissue injuries. In order for this court to conclude that this particular award is excessive it would be necessary for us to make an articulated analysis of the facts disclosing an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). This we are unable to do, especially when we must accept the jury’s credibility calls and consider the facts in the light most favorable to the appellee.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Brenda C. EWELL v. WINN DIXIE LOUISIANA, INC.
    No. CA 0890.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Dan R. Dorsey, River Ridge, for defendant-appellee.
    Edward L. Levert, Jr., New Orleans, for plaintiff-appellant.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   SCHOTT, Judge.

This case arose out of a slip and fall by plaintiff in defendant’s supermarket. The trial court awarded plaintiff $27,000 for general damages and defendant has appealed. The only issue on appeal is whether the trial judge abused his discretion in making this award.

The accident occurred on November 12, 1980. When plaintiff fell she came down in a “split” with her legs extended from her body. She received initial treatment at the emergency room of Methodist Hospital and went to Dr. Milton Rosenkrantz, an orthopedist, on the following day. Her initial complaints were of pain in the right hip.

Twenty years previously plaintiff had suffered a severe injury to her left hip and leg which had necessitated removal of the left hip joint including the head of the femur and the acetabulum and the insertion of a metal plate with metal screws in the. joint. She had also undergone the removal of her left knee cap at that time.

Dr. Rosenkrantz initially found swelling in the right hip along with pain associated with movement. He recommended the use of crutches which had been issued to her at the hospital. Plaintiff told him that she experienced episodes of pain in her left hip prior to the accident but managed well with mild pain medication. She had walked without the aid of a cane or crutch, but she did wear a built up shoe on the left foot. She gave no history of back pain. When she returned for her next visit on November 20 she still had pain in her right thigh and had developed low back pain which the doctor diagnosed as a strain caused by stress and pressure on the back from the use of crutches. He prescribed bed rest and by December the back seemed to improve but she began to complain of pain in the left hip and knee. Again he attributed this development to the physical stresses involved in the use of crutches because of the disabled right hip. Over the next several months she continued to be treated by Dr. Rosenkrantz with complaints on different occasions of pain in the right hip, left hip, back and neck. Complaints of continued back pain in July led him to prescribe a corset but when this caused soreness on the right side of her body it was discontinued. By July she was still complaining of pain in the left hip and it was swollen. Dr. Rosenkrantz diagnosed trochanteric bursitis and administered cortisone injections. He also diagnosed an aggravation of arthritis in the back and left hip explaining that this condition existed prior to her accident as a result of the old surgery but was aggravated by the extended use of crutches necessitated by the injury to her right hip when she fell in defendant’s store in 1980.

On May 21, 1982/plaintiff saw another orthopedist, Dr. Stuart Phillips. He testified that plaintiff suffered an aggravation or acceleration of pre-existing arthritis. He based this opinion on the history supplied by plaintiff that she had worked as a teacher without difficulty prior to the 1980 accident but that she was disabled to some extent since 1980 from pain in her back and left hip. He stated that plaintiffs 1980 accident-caused disability was mild to moderate and left her with a five to ten percent loss of function over and above the fifty percent disability she had from the old surgery. Asked how this disability could result from a fall on her right hip in 1980 Dr. Phillips stated “it depends on the stress that went on the body.” She was still under Dr. Phillips’ care at the time of the trial in October, 1982.

Defendant called Dr. Ray Haddad, an orthopedist to whom plaintiff went for treatment between October, 1981 and January, 1982. She complained primarily of pain in the left hip along with pain in her back and neck. He stressed the difficulty involved in testing plaintiff because of the complicated surgery. However, he thought plaintiff should have experienced difficulties with the left hip before the present accident and did not believe that her pre-existing condition was aggravated. This opinion was shared by Dr. Claude Williams, an orthopedist, who examined her twice at the request of defendant.

Plaintiffs testimony along with that of a friend and her job supervisor established that she was able to function without difficulty as a teacher before the subject accident but that she was disabled afterward.

Defendant’s version of the case is that plaintiff suffered only a slight injury to her right hip in the accident but that any prolonged suffering she might have experienced with her back and left hip would have occurred anyway and was not caused by the accident. This version finds support from the testimony of Drs. Rosenkrantz and Phillips, along with plaintiff and the lay witnesses. The trial judge accepted plaintiff’s version of the case as a series of difficulties resulting- from the initial fall and/or the use of crutches superimposed on a serious medical problem which was aggravated by the fall. We cannot conclude that the trial judge manifestly erred or abused his discretion in making the award.

AFFIRMED.


author: GARRISON, Judge.

text:
    Mildred AGEOUS v. ALLSTATE INSURANCE COMPANY, Janet Dubuclet and New Orleans Public Service, Inc.
    No. CA 0519.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      James Robert Murrell, III, New Orleans, for plaintiff-appellee.
    Jan P. Jumonville, Law Offices of Richard E. Britson, Jr., New Orleans, for defendant.
    William H. Boustead, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal from a district court judgment for plaintiff, a bus passenger injured in an intersectional collision between a NOPSI bus and an automobile driven by defendant Janet Dubuelet and insured by Allstate Insurance Company.

The trial judge found that NOPSI and Janet Dubuelet were each 50 per cent at fault under the comparative negligence statutes, and entered judgment against Allstate and NOPSI in solido in the amount of $3690.86. Allstate has satisfied its portion of the judgment. From that judgment NOPSI appeals.

The undisputed facts are these: Plaintiff, Mildred Ageous, was riding on a NOPSI bus which was travelling down Earhart Boulevard in New Orleans. The bus stopped for the 4-way stop sign at the intersection of Earhart and Monroe Street, and then proceeded into the intersection, where it collided with the Dubuelet vehicle. The disputed fact which is the basis of this appeal is whether or not the Dubuelet vehi-ele stopped at the stop sign on Monroe Street.

On appeal, NOPSI raises the following specifications of error:

1. The trial judge was manifestly erroneous in his factual determinations, and
2. The trial judge erred in his application of law by applying the case of Clements v. Allstate, 383 So.2d 1375 (La.App. 4th Cir.1980).

NOPSI argues that the trial judge was manifestly erroneous in:

1. Prejudging the case before NOPSI had rested its case;
2. Taking an “advocatory position” in the questioning of witnesses;
3. Assessment of the facts;
4. Rejecting the testimony of certain witnesses; and
5. Finding NOPSI liable.

Assignments of error # 2-# 5 are without merit. It is well established law that factual findings and credibility determinations of the trial court are to be given great weight because the trial judge is in a better position to observe the demeanor of witnesses and to evaluate testimony. This court will not disturb the factual determinations of the trial court in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The only assignment of error worth addressing is appellant NOPSI’s argument that the trial judge was predisposed to find both defendants liable and, therefore, prejudged the case before hearing all of NOP-SI’s case, finding joint liability despite overwhelming evidence that the defendant Du-buclet was wholly at fault in causing the accident in which plaintiff was injured. Appellant bases its contention on a statement made by the trial judge in the presence of all parties that he had already decided the issue of NOPSI’s negligence before NOPSI had rested its case.

Although this comment by the trial judge was inappropriate, our standard of review under Arceneaux v. Domingue, supra, does not require that we peer into the workings of the trial judge’s mind, but only that we determine whether his factual conclusions are manifestly erroneous. If they are not clearly wrong or unsupported by the record, his conclusions stand, regardless of his thought processes in reaching those conclusions.

The controlling case in this instance is Wise v. Prescott, 244 La. 157, 151 So.2d 356 (La.1963), which holds that a fare-paying passenger’s failure to reach his destination safely establishes a prima facie case of negligence against the carrier, from which it can exculpate itself only by clear and convincing proof that it was not guilty of even the slightest negligent act.

Therefore, the trial record would have to be completely void of any showing of negligence on NOPSI’s part in order for the trial judge to be found to have been manifestly erroneous in finding NOPSI liable. Appellant NOPSI’s bus driver testified at trial that he was aware of several recent “near misses” at this intersection and that he did not look beyond the cars stopped at the intersection, even though he had a clear view for five or six blocks down the street. Because the Wise decision imposes upon a public carrier the duty to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport, a finding of negligence on NOPSI’s part is easily supported by the record. Due to the absence of manifest error in this case, we will not disturb the factual findings of the trial court.

NOPSI also alleges that the trial court erred in its application of the law by citing in its oral reasons for judgment the case of Clements v. Allstate, 383 So.2d 1375 (La.App. 4th Cir.) writ refused 385 So.2d 793 (1980). The Clements case dealt with the duty of a motorist at a stop sign. In his oral reasons for judgment, the trial judge stated:

“A motorist approaching a favored street controlled by a stop sign must stop his vehicle before entering the intersection. However, a driver has discharged only part of the duty required of him ... He must not proceed until he has made certain that he can proceed with safety, and he must yield the right-of-way to vehicles on the favored street. ‘A Motorist on favored street has the right to assume that any driver approaching the intersection on a less favored street will yield right-of-way. This right-of-way driver can indulge in this assumption until he sees, or should have seen, the other driver that has not yielded.’ Clements, p. 1377.”

The trial judge found both drivers equally negligent in this case because each had a stop sign and each breached the aforementioned duty. Appellant contends that the Clements case should not be controlling in this case simply because the instant case involved a 4-way stop sign and the Clements case involved a 2-way stop sign. We find no merit in this contention.

The trial court was correct in finding NOPSI and Allstate each fifty (50%) percent negligent in this case. In the alternative, appellee Allstate alleges that NOPSI should have been found wholly at fault for the plaintiff’s injuries. We find this argument equally without merit and it can be disposed of with the same result stated above.

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

AFFIRMED.


text:
    FORD MOTOR CREDIT COMPANY v. Katie M. DUNBAR.
    No. 13276.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Corinne Anne Morrison and Merle F. Shoughrue, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiff-appellant.
    Jesse S. Guillot, Ford T. Hardy, Jr., New Orleans, for defendant-appellee.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   GARRISON, Judge.

This is an appeal by plaintiff from a district court judgment which granted defendant’s permanent injunction and revoked an order of seizure and sale of defendant’s automobile.

Katie M. Dunbar on May 24, 1980, purchased a 1980 Honda Civic automobile, and in connection with that purchase executed a promissory note payable to Ford Motor Credit Company in the amount of $7750.08, payable in forty-eight monthly installments of $161.46. The note was paraphed “Ne Varietur” with a chattel mortgage of the same date. The chattel mortgage includes a confession of judgment and provision for acceleration upon default.

On June 1, 1981, Ford Motor Credit filed a petition for executory process alleging that Dunbar was in default, having failed to fully pay the installment due on April 13, 1981, and the continuing installments due thereafter, thereby maturing the entire unpaid balance of $5,871.13 under the terms of the mortgage. A writ of seizure was subsequently issued and the vehicle was seized. On June 16, 1981, the defendant filed a petition for injunction to arrest the seizure and sale. After hearing on July 7, 1981, the trial court found that at the time the suit was filed on June 1, 1981,

“... the April payment had been paid and the May payment had been tendered to the agent of Ford Motor Credit Company but had been returned and placed in an envelope in the door of the defendant and marked ‘N.S.F.’ By testimony the agent indicated that he was informed by the bank that the defendant did not have sufficient funds in the bank and on this basis rejected the payment.”

The Court concluded that the payment was rejected by the agent improperly, and for that reason granted the injunction restraining the executory process. It is from this ruling that plaintiff appeals.

This court agrees with the analysis of the trial court. Our review of the events leading up to the filing of suit shows that after executing the chattel mortgage Ms. Dunbar had made several late payments. Additionally, in 1980 Ms. Dunbar allowed her automobile insurance to lapse, which was prohibited under the terms of the mortgage. As a result, Ford took out a limited physical damage insurance policy on the automobile and notified Ms. Dunbar on January 15, 1981, that it was adding the cost of the premium to her note, increasing the amount of the installment payments from $161.46 to $201.44. Ms. Dunbar continued to make payments in the original amount, but made a payment of $239.88 by check dated May 10, 1981, as payment of her insurance premiums for six months. Ford Motor Credit accepted this check, thereby excusing Ms. Dunbar’s delinquency as to the past due insurance premiums and making her current through July 13, 1981, with respect to that portion of her monthly installment payment which represented the insurance premium.

Moreover, with respect to the installment payments which Ford Motor Credit alleges were not fully paid by the time suit was filed, the testimony reveals that on May 17, 1981, Ford Motor Credit’s agent, Mike Hurst, went to Ms. Dunbar’s office and received her check for $161.46. Upon leaving her office, Hurst stated he called Ms. Dunbar’s bank and was told there were insufficient funds in Ms. Dunbar’s account to cover the check. Rather than attempting to present the check, he wrote “N.F.S.” (sic) on the envelope containing the check and placed it in Ms. Dunbar’s front door.

The jurisprudence is clear that acceptance of a check does not amount to payment of the obligation for which it is given until it is accepted or paid by the drawee. Oxner v. Union National Life Ins. Co., 289 So.2d 229 (La.App. 1st Cir.1973), writ denied 292 So.2d 243; Work Clothes Rental Service Co. v. Dupont Mfgrs., Inc., 262 So.2d 807 (La.App. 3rd Cir.1972). However, it is equally clear to us that once a check has been tendered to and accepted by a payee in payment of an account, the payee has a duty to present the check for payment before attempting to place the debtor in default. This principle was enunciated in Gulf Motor Lines v. European Agencies, 155 So. 523 (Orleans App.1934), in which the court stated:

“Where a check is accepted in payment of an account although there is no actual payment until the funds are received, still there is a duty in the payee to present the check in due course or to permit it to be presented, and, pending presentation, the fact that the check is in existence constitutes conditional payment which status continues to exist until the check has been presented and is either paid or dishonored.”

The record reveals, in fact, that Ms. Dunbar’s bank accounts did contain sufficient funds to pay the check tendered to Ford Motor Credit, had it been presented for payment. Therefore, the check remained unpaid solely because of Ford Motor Credit’s unfounded belief that the check would be dishonored, without any attempt at presentation. We note, however, that the balance in Ms. Dunbar’s bank account is immaterial; the fact remains that Ford Motor Credit failed to fulfill its duty to present the check for payment before attempting to place her in default on the chattel mortgage.

For these reasons, we agree with the trial court that Ford Motor Credit’s employee acted improperly in returning defendant’s check without having presented it for payment, and we conclude that Ford Motor Credit filed suit prematurely, there being no legal default on the obligation.

The judgment of the trial court is affirmed.

AFFIRMED.

      , Defendant’s Exhibits 6 and 8 are computerized printouts of the activity in Ms. Dunbar's checking accounts with the Hibernia National Bank, reflecting a balance on 5/27/81 of 11023.72 in Account No. 35-10-2656-1, and $209.15 in Account No. 32-10-2036-4, the account on which the check in question was drawn.


author: BARRY, Judge.

text:
    Doyal Lavern JONES v. Martha Nell JONES.
    No. CA-0858.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Mark Alan Jolissaint, Mark Alan Jolis-saint, P.C., Slidell, for defendant-appellant.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   BARRY, Judge.

A former wife appeals the denial of alimony after divorce due to a finding of mutual fault.

Doyal and Martha Jones were married on November 21, 1972, had two children, and were divorced January 7, 1982 based on living apart more than one year under LSA-R.S. 9:301. Mrs. Jones was granted custody and Mr. Jones agreed to pay $300.00 per month child support. On May 4, 1982 Mrs. Jones filed to increase child support and to establish her freedom from fault for post-divorce alimony. Judgment was rendered increasing child support to $370.00 per month and her request for alimony was denied for the following reasons:

The court finds that both parties are at fault in connection with the conclusion of the marriage.
The parties basically could not even agree which date they began living separate and apart.
The court, after observing the witnesses, finds that both of them created mental abuse and said mental abuse, in connection with the action of both of these parties, causes the court to come to no other conclusion but that each were at fault in connection with the demise of the marriage.

The sole issue is whether there is sufficient evidence to preclude alimony based on the wife’s fault. The record is very brief with testimony from the wife, husband, husband’s father, and a friend of the wife.

Mrs. Jones testified that her husband was in and out of their home at his whim. Some time prior to their separation Mr. Jones rented an apartment in Slidell where he would stay for a week, return to her and the children, then leave again. She stated this continued beyond May 30, 1980, the date when the parties allegedly stopped living together, and even subsequent to their final divorce. Mrs. Jones said no specific incident caused their separation. On cross-examination it was brought out that Mrs. Jones had a friend named Brenda who liked to drink and Mr. Jones objected to their friendship. She admitted not getting along with her husband’s two brothers and father, but was friendly with his mother. She denied telling her husband she didn't love him or wanted a divorce, but that he said both to her. She stated she did nothing to cause the separation and felt the major problem was his living away for weeks at a time, then returning home at will.

Mr. Jones, a truck driver, testified that no particular incident caused him to leave his family. He complained that his wife was “generally” not a good housekeeper and when he would return from a trip in need of sleep his wife’s “alcoholic” friend Brenda would be there drunk and he could not sleep. He admitted his wife was not drunk at those times. When asked why he and his wife separated, he said “she kept fretting me about a divorce saying she was not satisfied with things. I kind of got tired of hearing that.... Mainly, she wanted to argue. That was the main cause.... We simply couldn’t get along.” He complained that his wife frequently called his company to ask when he would return home and he “caught flack” because of the calls. He admitted when he filed for divorce he was renting a place in Slidell and was also staying in New Orleans. He also said his wife did not get along with his father and brothers but was very close to his mother.

Mr. Jones’ father confirmed he and his daughter-in-law did not get along, but his testimony sheds no light on the question of legal fault.

Mrs. Audrey Bunch testified she left her children with Mrs. Jones while she worked. She called Mrs. Jones an “excellent housekeeper” and a “Christian woman” who did not drink, curse or gossip.

That is the substance of the testimony by which the trial judge found mutual fault and denied alimony. Our Supreme Court considered the nature of “fault” sufficient to bar alimony in Adams v. Adams, 389 So.2d 381 (La.1980) and succinctly summarized the law at pp. 382-383:

Civil Code art. 160, dealing with alimony after a final divorce, requires freedom from fault on the part of the claimant spouse as one prerequisite to an award of alimony. In interpreting this requirement, this Court stated in Pearce v. Pearce, 348 So.2d 75, 77 (La.1977):
“We have held that, under this statute respecting an award of alimony to a wife without ‘fault’, the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir.1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).
Although not specifically mentioning C.C. art. 138(l)-(8), or C.C. art. 139 by name, this language clearly indicates that only such conduct as will entitle one spouse to a separation or divorce under these articles is sufficient to deprive the other spouse of alimony after a final divorce. (Footnote omitted).

Mr. Jones’ disapproval of his wife’s companion, Brenda, unintrusive phone calls to Mr. Jones’ place of work, and Mrs. Jones’ incompatibility with her husband’s family are insufficient grounds to support a legal separation. The evidence fails to show any specific incident that caused their separation. To the contrary, the record establishes that Mrs. Jones’ actions (arguments) were responsive to her husband’s moving in and out of their home. The fact that she quarreled with him and questioned his whereabouts under those circumstances is understandable but inadequate to establish her fault in causing the failure of the marriage. “Under existing Louisiana law and jurisprudence, a continued pattern of mental harassment, nagging and griping by one spouse directed to the other can constitute cruel treatment, but mutual incompatibility, fussing and bickering cannot.” Loyd v. Loyd, 336 So.2d 912, 913 (La.App. 2d Cir.1976).

We have carefully reviewed the pleadings and transcript and are unable to find misconduct on the part of Mrs. Jones which would constitute “mental abuse” or any other grounds to support a separation under C.C. Art. 138 or 139. There was no serious misconduct or substantial acts by the wife which were violative of her marital duties. The wife’s conduct was not an independent contributory or proximate cause of the divorce; rather her reactions were a justifiable response to the husband’s primary fault. Bruner v. Bruner, 364 So.2d 1015 (La.1978). The trial judge’s finding to the contrary was manifestly erroneous. We therefore hold that Mrs. Jones was without legal fault and is not barred from post-divorce alimony. See Layman v. Layman, 428 So.2d 1168 (La.App. 5th Cir.1983).

After the hearing on fault the trial judge proceeded with the rule to increase child support. No evidence was presented as to alimony and a remand is necessary for that purpose.

The judgment of the trial court is reversed as to the determination of fault on the part of Mrs. Martha Nell Jones, and there is judgment in her favor entitling her to seek alimony under LSA-C.C. Art. 160. This matter is remanded for further proceedings.

REVERSED, RENDERED, REMANDED.

      . The judgment also ordered the husband to pay the note and insurance on the community trailer where Mrs. Jones and the children lived ($228.00 + $26.00) and to pay medical expenses and insurance for the children.

      . Mr. Jones did not answer the appeal or appear.