author: BYRNES, Judge. BARRY, Judge,

text:
    STATE of Louisiana v. Nolan CAMP, Jr.
    No. KA-0583.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Writ Granted Nov. 4,1983.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Crim. Div., New Orleans, Harry F. Connick, Dist. Atty. for the Parish of Orleans, Mary Charlotte McMullan, Beryl M. McSmith, Asst. Dist. Attys., New Orleans, for the State.
    Clyde D. Merritt, Dwight Doskey, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and BYRNES, JJ.
   BYRNES, Judge.

Defendant, Nolan Camp Jr., was charged by Bill of Information with receiving stolen goods, a violation of R.S. 14:69. He was found guilty by a six man jury and sentenced to two years at hard labor with credit for time served. Defendant then perfected this appeal, urging two assignments of error, both relating to the sufficiency of the evidence against him. We affirm, finding no merit in either assignment.

FACTS

At some time between mid July and early August 1980 a refrigerator and stove were stolen from a vacant apartment at 8615½ Green St. in New Orleans. A Miss Sandy Cage discovered the theft in the course of her duties as manager of the building. Upon discovering the theft she called the police and additionally asked a neighbor, one Alston Cutino, to see what he could find out about the incident.

In response to this request Mr. Cutino investigated the defendant’s apartment, which was located next door to the burglarized building. During that investigation Cutino looked into the defendant’s window with a flash light and observed what he identified as the stolen property.

This information was forwarded to the police, who used it to obtain a search warrant of the defendant’s apartment. When the apartment was searched a refrigerator, later identified as the stolen one, was recovered. No trace of the stove was ever found. A warrant was issued for the defendant’s arrest but he remained at large for some seven months until he was arrested for a traffic violation.

ASSIGNMENTS OF ERROR

On appeal defendant argues that the State failed to establish two essential elements of the crime with which he was charged; namely the value of the property received and his knowledge that it was stolen. The essential elements of the crime of receiving stolen things are; 1.) that the item was stolen; 2.) that the item was of value; 3.) that the defendant knew or should have known the property was stolen; and 4.) that defendant intentionally procured received or concealed the property. R.S. 14:69, State v. Walker, 350 So.2d 176 (La.1977). We will first address defendant’s contention that the evidence produced at trial was not sufficient to prove that he knew or should have known that the property recovered from his apartment was stolen.

The standard of appellate review in cases involving challenges to the sufficiency of evidence is whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 271, 61 L.Ed.2d 560 (1979), State v. Edwards, 400 So.2d 1370 (La.1981).

Where a conviction is based on circumstantial evidence R.S. 15:438 requires that such evidence exclude every reasonable hypothesis of innocence.

In this case the proof that Camp knew the property was stolen consisted of testimony that his apartment was next door to the burglarized building and that the stolen items were observed in that apartment after the theft. It was shown that while there were two refrigerators in the apartment only the stolen one appeared to be functional or contained food.

We feel that, given these circumstances, a rational trier of fact could conclude that every reasonable hypothesis of innocence had been excluded. This assignment of error is without merit.

Defendant’s next contention is that the State offered no proof that the stolen refrigerator had any value. We do not agree. The State introduced a photograph of the stolen refrigerator. The officer who conducted the search of defendant’s apartment testified that it was working when he seized it. In addition Miss Cage testified that the refrigerator was in fairly good condition when it was recovered and that it was approximately one and one half years old.

The phrase “anything of value” is given the broadest possible construction and includes anything of the slightest value R.S. 14:2(2). It seems beyond question that a one and one half year old refrigerator in working order has a value greater than one hundred dollars. We conclude that the State’s showing, while sketchy, was sufficient to allow a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to conclude: 1.) that the stolen refrigerator was a thing of value and 2.) that the value was greater than one hundred dollars but less than five hundred dollars.

Having found defendant’s assignments of error to be without merit we affirm his conviction.

AFFIRMED.

BARRY, J., dissents with reasons.

BARRY, Judge,

dissenting.

I disagree that a “rational trier of fact could conclude that every reasonable hypothesis of innocence had been excluded.”

Regarding the scienter requirement, our Supreme Court said in State v. Walker, 350 So.2d 176, 178 (La.1977):

[m]ere possession of stolen property should not create a presumption that the person in possession of the property received it with knowledge that it was stolen by someone else. In addition, in State v. Henderson, 296 So.2d 805 (La.1974), we held that R.S. 14:69 does not create any presumptions and the State ‘must prove that the accused actually knew or had good reason to believe that the property was stolen before a conviction under R.S. 14:69 can be obtained.’ 296 So.2d at 807.

In this case the State only proved the defendant’s apartment was next door to the burglarized residence and the stolen refrigerator was in his apartment. There is no evidence to show how the refrigerator got into defendant’s possession. The State failed to show that the defendant knew or even had reason to know of the theft. Walker, supra.

Importantly, there was testimony the defendant was not the sole occupant and did not have exclusive control of the apartment. It is certainly conceivable the other resident brought the refrigerator there. Also, there was a stolen stove which was not found in defendant’s apartment.

The fact that two refrigerators were in the apartment does not create a suspicion of guilt because there was testimony the other one wasn’t working. It is certainly possible the defendant (or the other occupant) purchased the stolen refrigerator to replace the broken one. The defendant made no effort to conceal the refrigerator.

Under Walker, supra, and the standard of review for circumstantial evidence in State v. Shapiro, 431 So.2d 372 (La.1982), it does not appear that every reasonable hypothesis of innocence has been excluded. This record convinces me the defendant had “mere possession” of the stolen property and the conviction should be reversed.

I also question the sufficiency of proof for the jury to conclude the refrigerator had a felony value between $100 and $500. The fact that the refrigerator was functional and its photo in evidence does not establish a value over $100 or even under $500.

I respectfully dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Renna McCARTER, et al. v. LIBERTY MUTUAL INSURANCE CO.
    No. CA 0699.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.

      Heisler & Wysocki, Edmond J. Harris, Steven M. Koenig, New Orleans, for defendant-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Kristyne H. McCullough, New Orleans, for plaintiffs-appellees.
    Before GARRISON, BARRY and BYRNES, JJ.
   BYRNES, Judge.

This is a slip and fall case. Renna McCarter, plaintiff-appellant, filed suit in the Civil District Court, Parish of Orleans, on behalf of her minor children, against Liberty Mutual Insurance Co. and P.N. Harsch Co. d/b/a Kent’s Department Stores. Plaintiff’s children allegedly slipped and were injured in a Kent’s store. A verdict was reached and judgment rendered for defendants dismissing plaintiff’s suit. Plaintiff appeals.

FACTS

On March 21,1981 appellant, and her two minor children, Victor and Sandra, were shopping at a Kent’s department store. Upon entering the store, Mrs. McCarter placed Sandra in the child’s seat of a shopping basket and allowed her son Victor to push it. Mrs. McCarter went ahead of the cart to do her shopping. Several minutes later Mrs. McCarter heard a loud crash and turned to see that the cart had fallen over, causing injuries to both children.

ISSUES

Appellant has raised three issues: 1.) That the trial court should have ordered either redeliberation by the jury or a new trial, because a juror changed her mind after the verdict form was signed; 2.) That if the verdict was validly entered then it was contrary to the law and evidence; and 3.) That the trial judge erred by excluding two of plaintiff’s jury charges.

THE VERDICT

After deliberation the foreman informed the court that a decision had been reached in favor of defendants by a 9-3 vote. Plaintiff requested that the jury be polled. The poll reflected an 8-4 vote. One of the jurors had apparently changed her vote. When the judge asked the juror if she had voted for the verdict at the time the foreman signed it she replied affirmatively. The judge ruled that since the vote was 9-3 at the time the verdict was signed then a subsequent change of a juror’s mind could not alter the outcome.

It is clear that the principal purpose of polling the jury is to ascertain that all votes were counted correctly. If the count after polling is not the same as the count on the verdict form then the judge may, at his discretion, ask the jury to rede-liberate, declare a hung jury and grant a new trial, or question the jurors as to their vote when the verdict was signed. The trial court wisely chose this third alternative. Upon discovering that the juror had voted in favor of the verdict when it was signed the court made that verdict the final judgment. Under these circumstances we find that the court was correct in his actions. There was no indication that the vacillating juror did not know the consequences of her vote at the time she cast it nor was there the least hint of any irregularity in the jury’s deliberation.

THE LAW

We now address the question of whether the verdict itself was contrary to the law and evidence. The law of premises liability places an affirmative duty on a storekeeper to keep the floors and aisles of his establishment clean and free from objects which may cause an accident. Ruffin v. Trapp Chevrolet Incorporated, 424 So.2d 1192 (La.App. 1st Cir.1982). To establish a prima facie case of breach of that duty a plaintiff must show that there was a foreign substance on the floor and that this substance caused the fall and injury. Gonzales v. Winn Dixie, 326 So.2d 486 (La. 1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975). Upon establishing a prima facie case, a presumption of negligence on the part of the storekeeper arises and the burden of proof shifts to the defendant.

A careful review of the record reveals that plaintiff failed to establish a prima facie case. Mrs. McCarter and her son testified that a piece of tissue paper on the floor may have become entangled in the wheels of the cart immediately prior to the accident. However, Mrs. McCarter also stated that she did not see the accident occur, as she was not facing her children at the time, but turned around when she heard a loud crash. Conversely, defendant’s witnesses testified that they found no foreign substance on the floor, that the cart was in perfect working order, and that two of them had witnessed Victor rolling the cart on its back two wheels just prior to the accident. Under these circumstances, the question of whether there was in fact a foreign substance on the floor which caused the accident is a matter of credibility. The question of credibility of witnesses is best evaluated by the trier of fact, in this case, the jury. McMillan v. Travelers Insurance Co., 371 So.2d 1213 (La.App. 1st Cir.1979). All reasonable findings of credibility made by the trier of fact are to be given great weight on appeal. Aleman v. Lionel F. Favret Co. Inc., 349 So.2d 262 (La.1977). In this appeal the jury’s findings regarding the conflicting stories of the parties are supported by the evidence and will not be disturbed.

JURY INSTRUCTIONS

Plaintiff submits that the trial court erred in refusing to give the jury two of her special charges. These two instructions dealt with the burden of proof in slip and fall cases. The judge excluded these instructions on the basis that plaintiff had failed to establish the prima facie case which raises the presumption of negligence against a defendant. The judge further stated that there was not enough evidence presented to raise a presumption in favor of either party.

It is well settled that a judge is not required to give instructions submitted by either party as long as the instructions actually given properly point up the issues in light of the evidence presented. McElroy v. Vest, 407 So.2d 25 (La.App. 3rd Cir.1981); Guidry v. Houston General Insurance Company, 396 So.2d 578 (La.App. 3rd Cir.1981). The record reveals that the trial court gave general negligence instructions which fairly, simply and unambiguously pointed out the issues presented by the evidence. We find that the jury charges were sufficient under the circumstances.

DECISION

The trial court was correct in entering the verdict of the jury and denying plaintiff’s motion for a new trial. The verdict is amply supported by the evidence and is in accordance with the law. The trial judge committed no error in refusing to give two of plaintiff’s jury charges.

For the above and foregoing reasons the judgment is affirmed. All costs of this appeal are to be borne by appellant.

AFFIRMED.

BARRY, J., dissents with written reasons.

BARRY, Judge,

dissenting.

When the jury was polled, four jurors stated it was not their verdict. When questioned by the Trial Judge, one juror admitted voting for the defendant in the Jury Room, but changed her mind before the “verdict” was returned.

Apparently there is no case law on this issue. Certainly there must be some point when jury deliberations become final. Here the Trial Judge asked if the juror agreed with the majority when the vote had been taken, and after an affirmative response, the verdict was entered.

Under C.C.P. Art. 1812, when answers to the jury’s interrogatories are inconsistent “... the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.” Though Art. 1812 is only illustrative, a parallel can be drawn where the jurors’ vote in the Jury Room and the jurors’ vote in open court are inconsistent.

It seems to me where a circumstance timely creates serious doubt that a judgment may have been improvidently rendered, judicial discretion may and should be exercised to prevent the loss of personal or property rights through an unjust decision.

I feel the jury’s verdict should become final only after the Trial Judge directs entry of the judgment. I therefore respectfully dissent.


author: CIACCIO, Judge.

text:
    Harold J. SCHACKAI and Priscilla Schackai v. TENNECO OIL COMPANY and the Travelers Indemnity Company.
    No. CA 0602.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Writ Denied Nov. 4,1983.

      Francis G. Weller and Marc J. Yellin of Deutsch, Kerrigan & Stiles, New Orleans, for appellants.

      Leonard J. Cline, Metairie, for appellees.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

This is an appeal from a judgment awarding plaintiffs, Harold J. Schackai and Priscilla Schackai, $21,129.83 and $193,-353.01, respectively, for injuries suffered in an automobile collision. On appeal, defendants, Tennecó Oil Company and its insurer, The Travelers Indemnity Company, attack the credibility of plaintiffs’ evidence as to liability, complain that the trial court failed to rule upon the third-party action against Harold J. Schackai, argue the excessiveness of the awards and specify error in the award of pre-judgment interest on awards for future loss of income and for future pain and suffering. Plaintiffs have answered the appeal arguing that the awards are inadequate.

Mr. and Mrs. Schackai were travelling together southbound on Colonial Drive in Violet, Louisiana. Mr. Schackai was driving. As they approached the intersection of Colonial Drive and Third Street, the van in which they were travelling collided with a pickup truck operated by Wilvie Sharp, an on duty employee of Tenneco Oil Company. The Schackai van sustained damage to the right front quarter panel.

The left rear bumper of Mr. Sharp’s truck was slightly damaged. Property damage has not been raised as an issue on this appeal. The Schackai’s, however, alleged personal injuries for which the court granted recovery. Mr. Sharp apparently was not injured.

LIABILITY

The Schackais testified that they were travelling in the left lane on Colonial Drive at approximately 30 miles per hour when Mr. Sharp backed his truck out of his driveway and partly into the left lane of Colonial Drive. The Schackais testified that at this point the collision occurred, i.e., Mr. Sharp backed into the Schackai van. Mr. Schack-ai, who was driving, testified that he attempted to avoid the accident but did not have sufficient time to do so.

Officer Kastner, from the St. Bernard Parish Sheriff’s Office, testified that he investigated the accident and was told by Mr. Sharp that he was backing out at the time of impact. Officer Kastner further testified that he found debris which he related to this accident to the north of Mr. Sharp’s driveway, mostly in the left lane and center of the street.

The testimony of Wilvie Sharp differs from that of the plaintiffs and Officer Kastner. He testified that he had already backed out of the driveway and was actually proceeding forward in the right lane when he was rear-ended by plaintiffs’ van. Mr. Sharp agrees that he told Officer Kast-ner that he was backing out, but claims the officer cut him off at that point and did not allow him to complete his statement that he was moving forward at the time of collision. Officer Kastner denies that he cut off Mr. Sharp.

Officer Kastner did not issue any traffic tickets in connection with this accident.

Ms. Joy Johnson also testified. She lives two houses away from Mr. Sharp. She did not witness the accident, but observed the vehicles shortly after the accident. She testified as to what location she thought the vehicles were in when she observed them. She was not sure, however, of the actual location of the vehicles.

In his reasons for judgment the trial court stated the following:

“... all indications are that the accident did take place in the left lane of Colonial Drive nearest the neutral ground and that Mr. Sharp had backed from his driveway, causing the accident.
The court is satisfied that Wilvie Sharp failed to operate his vehicle as would be required of a reasonably prudent person under the circumstances; that he failed to maintain the diligence necessary in backing out of a driveway onto a public street.”

Defendants argue that the trial judge erred' in his finding of liability because the testimony offered by the plaintiffs was not credible and could not, therefore, support the judgment. When there is testimony in the court below, reasonable evaluations of credibility and inferences of fact should not be disturbed upon review even though the appellate court may feel its own evaluations and inferences are as reasonable. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980). The trial judge made a credibility determination, based upon the testimony of all witnesses presented at trial. Our review of the testimony convinces us that the trial judge’s credibility evaluations and factual inferences were reasonable and, therefore, will not be disturbed.

Based upon his factual findings, the trial judge correctly applied the law in determining liability. The statutory duty imposed upon a driver exercising a backing maneuver is set forth in La.R.S. 32:281(A), which provides:

“A. The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic.”

See also: La.R.S. 32:124. An unusually high degree of care is required of those who back from private driveways into main thoroughfares. When executing such a maneuver the motorist must proceed with utmost caution and use great care and attention to be sure that it can be accomplished without interfering with other vehicles. Vinet v. Bostic, 305 So.2d 138 (La.App. 4th Cir.1974); Dupree v. Wyatt, 255 So.2d 425 (La.App. 4th Cir.1971).

THIRD PARTY DEMAND

Defendants filed a third party petition in which they pleaded that the accident had been caused solely by the negligence of Harold J. Schackai. Alternatively, defendants pleaded that Mr. Schackai’s negligence “was a contributing proximate cause of the injuries to Priscilla Schackai, and [defendants] are entitled to have contribution from Schackai and his liability insurer in the amount of one-half of any amounts [defendants] may be adjudged liable to Priscilla Schackai.” Mr. Schackai’s sole negligence, contributory negligence and/or assumption of the risk were also pleaded in defendants’ answer to the plaintiffs original petition. On appeal, defendants complain that the district court erred in not ruling on defendants’ third-party petition.

While it would have been preferable for the trial court to have rendered a judgment specifically on the third-party petition, it is apparent from the judgment rendered on the original petition and the trial judge’s reasons for judgment, that the third party demand was decided in favor of third party defendant, Harold J. Schackai. The trial judge found that Mr. Sharp caused the accident by his negligence. The trial judge’s reasoning implies that he concluded that Mr. Schackai was not negligent. No useful purpose would be served by remanding this matter to allow the trial judge to issue a judgment on the third party petition. In the interest of judicial economy, we will, therefore, render judgment based upon the trial judge’s evaluations of credibility and findings of fact, dismissing the third party petition.

QUANTUM

On the question of quantum the trial judge provided well articulated reasons for the awards he gave to plaintiffs. His reasons follow:

Mrs. Schackai, who was a guest passenger in the vehicle driven by her estranged husband, was awarded the sum of $193,-353.01, which was itemized as follows:
Medical Bills $21,550.01
Loss earnings from the date of accident, 3-31-80, to 5-5-82, date of trial 16,803.00
Loss of future wages and benefits 75,000.00
Past, present and future pain and suffering 80,000.00
The amount of the medical bills to date, to-wit: $21,550.01 was stipulated to by counsel.
As for the amount of $80,000.00 that the court granted for past, present and future pain and suffering, the court took into consideration that Mrs. Schackai was treated by Dr. James Boyce, chiropractor several days after the accident and for a period of approximately six months. She found no apparent relief for the injuries sustained by this accident and therefore sought the services of Dr. Raeburn Llew-elyn whose medical opinion indicated there was disc involvement at the C4-5 level.
Mrs. Schackai was also treated by Dr. Walter Brent who prescribed medicine for complaints to her neck and lower back. Apparently, from the medicine he prescribed and from the stress that she was under at the time, Mrs. Schackai developed an ulcer for which she was hospitalized on May 15, 1981 and was treated by Dr. Bijan Motoghedi, internist.
Several months later, on July 7, 1981, she was admitted to Chalmette General for both cervical and lumbar myelograms and was treated by Dr. Bert Bratton, who found a disc rupture at the C4-5 and C5-6 levels. A lumbar myelogram also showed a rupture at the L4-5 level. Dr. Bratton performed a cervical disectomy and interbody fusion at the C4-5 and C5-6 levels. Mrs. Schackai was then discharged from Chalmette General on July 28, 1981.
On September 9, 1981, Mrs. Schackai was again hospitalized and placed in cervical traction and discharged four days later.
Five days later, it was necessary that she be hospitalized again for low back pains and Dr. Bert Bratton performed lumbar disectomy at the L4-5 level and she was discharged on December 22,1981. Dr. Bratton stated that it was his medical opinion that Mrs. Schackai had a 20% to 25% residual disability. Hence, the award by the court for $80,000.00 for past, present and future pain and suffering.
As to the question of lost wages, the court takes note that Mrs. Schackai was 34 years of age at the time of the accident and was employed by Lil General and that she was making $4.25 per hour.
The court has at its disposal the testimony of Dr. Melville Wolf son, who qualified as an expert in the field of economics. While the court has taken into consideration the calculation presented by Dr. Wolfson, the court is not convinced that there is no possibility that Mrs. Schackai can earn some wages in the future. She was employed and worked after the accident and again worked after the time of her surgery. She is 36 years old and only has a ninth grade education; however, her physicians did testify that she could possibly do some type of work.
Accordingly, the court awarded less than the amount calculated by Dr. Wolf-son, but in accordance with the 25 year work life expectancy; and assuming Mrs. Schackai may be able to earn some wages intermittently during her life-time, the court awarded the sum of $75,000.00 to Mrs. Schackai to compensate her for the impairment of her earning capacity and the loss of the benefits which she would have been able to receive had she been able to continue in the employment which she enjoyed at the time of the accident.
The court awarded $21,129.83 to Harold J. Schackai.
The medical bills total $11,129.83 and were stipulated between counsel, and the court awarded Mr. Schackai the sum of $10,000.00 for past, present and future pain and suffering.
Mr. Schackai has been collecting monthly payments from Social Security for permanent and total disability since January 13,1978, and this particular accident occurred on March 13,1980. From a review of the records from Social Security, it indicates that Mr. Schackai had been complaining of cervical pain since his application for benefits which first occurred on September 27,1978. According to Social Security reports, Dr. Vogel’s report in a hospital chart of December 1, 1976 stated “He continues to relate cervical pain with weakness of the left grip, and the impression is that he has a herniated cervical disc.” Excerpts throughout Social Security records indicate that Mr. Schackai has been complaining of neck problems from 1976.
The testimony of Dr. James Boyce, who first treated Mr. Schackai after the accident, indicated that Mr. Schackai was under his care just a short time before the accident in question. During the pendency of this suit, Mr. Schackai was involved in another accident and filed suit two days before the prescriptive date.
Medical testimony indicates that on May 27, 1981 Mr. Schackai was placed in St. Charles General and operated on for a cervical disc. The court heard certain testimony relative to the numerous operations performed by Dr. David Jarrot, the treating physician, and some disparaging remarks were made about Dr. Jarrot.
Taking all these matters into consideration, particularly, the fact that Mr. Schackai had been involved in numerous accidents prior to this time, and that he had been declared totally and permanently disabled by the Social Security Administration since 1978, the court awarded the sum of $10,000.00 for his past, present and future pain and suffering.
Since Mr. Schackai had not worked since 1978 the court certainly could not consider awarding him any money for loss wages or future loss wages.

Defendants argue that the trial court committed manifest error by awarding any damages to Mr. Schackai. Again defendants attack Mr. Schackai’s credibility and argue that his operation was unnecessary and that he deceived his doctors into thinking that his injuries were related to this accident. Defendants conclude, therefore, that they are not liable for any medical expenses or for any award relating to Mr. Schackai’s pain and suffering.

Defendants further argue that the trial court erred in awarding Mrs. Schackai damages for loss of income, and in awarding her excessive damages for pain and suffering. Defendants question Mrs. Schackai’s credibility also, claiming that she was less than credible when testifying about her work with Lil General and that she deceived her doctors by not giving them her full medical and personal history. The result of this deception, defendants conclude, is that any opinions of her doctors pertaining to causation must be questioned.

Plaintiffs also argued that the trial court erred in awarding damages. With respect to Priscilla Schackai, it is contended that the district court committed manifest error in that the judgment rendered is deficient in the amount of $85,000.00 due to the fact that the court awarded her an inadequate sum for loss of future wages and benefits. With respect to Harold Schackai, it is contended that the district court committed manifest error in that the judgment awarded is deficient in the amount of $165,000.00, in view of the fact that the court failed to award damages for past, present or future lost wages, and awarded an inadequate sum for past, present and future pain and suffering.

Evidence in connection with all of these arguments concerning quantum was presented to the trial judge at the trial. The trial judge heard testimony from lay witnesses and expert witnesses on the extent and causation of personal injuries and on the question of lost wages and earning capacity. The trier-of-fact is obliged to assess the credibility of experts as well as lay witnesses who testify at trial, to determine the most credible and realistic evidence. After weighing and evaluating all of the medical evidence, and the lay testimony, relating to the injuries sustained by a plaintiff, the trier-of-fact may accept or reject the opinion expressed by any medical expert, depending upon how he is impressed with the qualifications and the testimony of that expert. The same prerogative is afforded the trier-of-fact when weighing and evaluating expert and lay evidence given on other elements of damages, such as lost wages and lost earning capacity. The fact finder’s determinations based upon the credibility of witnesses will not be disturbed unless found to be clearly erroneous. Guidry v. Davis, 382 So.2d 250 (La.App. 3d Cir.1980); Lewis v. Orleans Parish School Board, 371 So.2d 328 (La.App. 4th Cir.1979). Based upon his evaluations of the evidence the trial judge found a causal connection between the accident and the damages he awarded plaintiffs.

Our review of the record does not indicate this conclusion to be clearly erroneous.

The law accords the trier-of-fact “much discretion” in awarding damages. La.C. C. art. 1934(3). The trial court gave careful consideration to all of the evidence before determining the amounts of damages he gave the plaintiffs. Absent an abuse of the trier-of-fact’s much discretion, we will not disturb the awards. Wilson v. Magee, 367 So.2d 314 (La.1979). We have carefully reviewed the entire record. We find no abuse of discretion, therefore, we will not disturb the awards.

Pre-Judgment Interest for Future Losses

Defendants’ final specification of error involves the award of interest from the date of judicial demand on all quantum elements. Defendants argue that the district court erred in awarding pre-judgment interest on awards for future loss of income, and for future pain, suffering and mental anguish. We find no error.

In Louisiana law there are statutory and codal provisions which apply to awarding interest on judgments. La.C.C.P. Art. 1921 and La.R.S. 13:4203 apply in this case and provide as follows:

Art. 1921. Interest allowed by the judgment
The court shall award interest in the judgment as prayed for or as provided by law.
§ 4203. Interest on judgments from judicial demand in ex delicto cases
Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts.

Thus, the Louisiana law is clear that in suits for damages “ex delicto”, the court shall award interest from the date of judicial demand. No differentiation is made between those elements of quantum which recompense for past losses and those which recompense for future losses. The trial judge correctly awarded interest from the date of judicial demand on all elements of the awards.

In support of their argument defendants cited no Louisiana cases. We have found none which directly address this issue. Defendants do cite a sentence from Hamilton v. Canal Barge Company, Inc., 395 F.Supp. 978 (E.D.La.1975), in support of their position. We note that the federal court in that case was not dealing with Louisiana law concerning the awarding of interest on judgments and the actions of the court were not mandated by the statutory and codal provisions cited above.

DECREE

For the reasons assigned, the judgment ■ of the trial court is affirmed. Additionally, defendant’s third party petition against Harold J. Schackai is hereby dismissed. All costs of this appeal are assessed against defendants.

AFFIRMED, THIRD PARTY DEMAND DISMISSED.


author: WILLIAMS, Judge.

text:
    Joseph D. LANGSTON v. James MARSALIS and New Orleans Public Service, Inc.
    No. CA-0368.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.

      Albert S. Dittmann, Jr., New Orleans, for plaintiff-appellee.
    William H. Boustead, New Orleans Public Service, Inc., Michael A. Laughlin, New Orleans, for defendants-appellants.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court awarding plaintiff Joseph D. Langston $9,000.00 for injuries he received in an accident with a New Orleans Public Service, Inc. [“NOPSI”] bus.

On November 5, 1979, plaintiff, while driving a van for his employer, was involved in an accident with a NOPSI bus driven by defendant James Marsalis. Plaintiff sued Marsalis and NOPSI for his injuries. After trial before a judge, plaintiff was awarded $9,000.00 for pain and suffering. Defendants now appeal from the amount of general damages awarded.

Immediately after the accident, plaintiff was taken to the Emergency Room at Charity Hospital. The Emergency Room Report reveals that plaintiff suffered a two centimeter laceration that was sutured at that time. Plaintiff also complained of blurred vision, headaches, and pain in his hip and lower back. On November 12, plaintiff consulted with Dr. Wilmot F. Ploger for headaches and pains in his left knee and lower back. Ploger continued treatment until January 14, at which time his report indicates that plaintiff was working and was “pain free.” Approximately two months later, plaintiff returned to Dr. Ploger complaining that he had begun suffering some pain two weeks previously, after turning over in bed. The doctor’s report indicates that there were no spasms and that plaintiff had a full range of motion, although he was suffering some tenderness. The doctor stated in his report that these symptoms could possibly have been a result of plaintiff’s accident. The doctor prescribed Anacin for relief of the pain and requested that plaintiff return if the symptoms persisted. Dr. Ploger thought that plaintiff should be able to return to work. The report of Dr. James Williams, who examined plaintiff for defendants, indicated that on December 20, 1979, plaintiff complained that he was suffering from almost constant back pain and occasional headaches. After examining plaintiff, Dr. Williams could find no explanation for his continued pain. Before trial, all of the medical reports were admitted into evidence by stipulation.

Defendants’ counsel claims in brief to this court that the trial judge did not review any of the written medical testimony before making his decision and relied solely upon the testimony of the plaintiff, although the medical reports were entered into evidence by stipulation. There is no evidence to support this claim.

Plaintiff was unable to work for three weeks because of pain. He suffered headaches and pain in his left knee. He also suffered back pain, on and off, for over four months, which could possibly have been attributable to the accident. Based upon a review of the testimony and evidence, we cannot hold that the trial court was in error in awarding $9,000.00 to plaintiff. This amount is within the trial judge’s much discretion. La.C.C. art. 1934(3). Although not manifestly erroneous, the award is more than generous and tests the uppermost limit of the trial courts discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Indus., 341 So.2d 332 (La. 1977).

For the foregoing reasons, the decision of the trial court is affirmed, all costs of this appeal are to be borne by appellants.


text:
    Charles MYLES v. T.L. JAMES & COMPANY, et al.
    No. CA-0718.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for Charles Myles, plaintiff-appellant.
    David M. Cambre, Dillon & Cambre, New Orleans, for T.L. James & Co., Inc. and Highlands Ins. Co., defendants, third party plaintiffs-appellants.
    Robert E. Couhig, Jr., F. Lee Butler, Adams & Reese, New Orleans, for Bartley Inc., defendant-appellee.
    Kevin L. Cole, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for J.A. Jones Const. Co., defendant-appellee.
    H.F. Foster, III, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for Boh Bros. Const. Co., Inc., defendant and third party defendant-appellee.
    John G. Gomila, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for Gervais F. Favrot Co., Inc., defendant and third party defendant-appel-lee.
    George P. Hebbler, Jr., Turner, Young & Hebbler, New Orleans, for Weidner & Co., Inc., defendant and third party defendant-appellee.
    Dennis J. Phayer, O’Keefe, O’Keefe & Berrigan, New Orleans, for Mechanical Const. Co. of New Orleans, defendant and third party defendant-appellee.
    Kurt S. Blankenship, New Orleans, for Walter J. Barnes Elec. Co., third party defendant-appellee.
    William V. Renaudin, Jr., Kenny M. Charbonnet, New Orleans, for Liberty Mut. Ins. Co. and Pratt Farnsworth, Inc., defendants-appellees.
    Victor A. Dubuclet, III, Metairie, for Turner Const. Co., defendant-appellee.
    Lawrence J. Duplass, Steven B. Witman, New Orleans, for Ragusa Bros., Inc., defendant and third party defendant-appellee.

      Peter A. Feringa, Jr., Joan G. Quinters, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Brice Bldg. Co., Inc., defendant-appellee.
    James S. Thompson, William G. Argeros, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for Larry Doiron, Inc., third party defendant-appellee.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This appeal arises from an action filed by plaintiff, Charles Myles and against defendant, T.L. James & Company, Inc. [T.L. James]. Plaintiff had contracted a severe case of contact dermatitis during his employment with T.L. James in April, 1980. Following a determination by his doctor that plaintiff was permanently disabled from his occupation as a cement mason, plaintiff filed suit against T.L. James and two previous employers, Gervais Favrot, Inc. and Gaffney, Inc., who had employed plaintiff periodically during the two years prior to April, 1980. T.L. James filed third party demands against many of plaintiff’s prior employers including Larry Dorion, Inc., Walter J. Barnes Electric Company, Weidner & Company, Inc., Ragusa Brothers, Inc., Turner Construction Company, Bartley, Inc., Boh Brothers Construction Company, Inc., and Mechanical Construction Company of New Orleans, Inc., seeking contribution. Plaintiff amended his petition to name these prior employers as direct defendants. All defendants and third party defendants, with the exception of T.L. James, filed Motions for Summary Judgment contending that they were in no way liable for Mr. Myles’s contracting contact dermatitis since plaintiff had not evidenced any injury while in their employ. The trial court granted defendants’ and third party defendants’ motions for summary judgment based upon the Louisiana Supreme Court’s holding in Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982), denying contribution or apportionment of compensation between present and past employers. From this grant of summary judgment, plaintiff and T.L. James, as third party plaintiff, have appealed.

Plaintiff had been a cement mason for eighteen years and had worked for a number of employers. He was not regularly employed by any company and ordinarily worked only a few days with each one. Only in the case of T.L. James, Gaffney Construction, and Gervais Favrot did plaintiff work for a substantial period of time. Plaintiff worked for T.L. James, for three or four months prior to his contracting contact dermatitis which caused his disability. Prior to T.L. James, he worked for Gervais Favrot, several days in 1980 and before that, for Gaffney, from May, 1978 until December, 1979, or January, 1980.

The pertinent statutory provisions of the Louisiana Workers’ Compensation Act are found at La.R.S. 23:1031.1(D), which provide as follows:

Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course and arising out of such employment, provided, however, that any such occupational disease so contracted in the twelve months’ limitation as set out herein shall become compensa-ble when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months employment by an overwhelming preponderance of the evidence.

The latest case to interpret this statute is Carter, supra.

In Carter, the plaintiff sued his last employer, Avondale, for Workers’ Compensation benefits as a result of his total and permanent disability due to the contraction of silicosis. He had been employed by Avondale for some nine years when he was forced to quit work due to his total disability. Avondale filed a third party petition against plaintiff’s immediate past employer for whom he had worked for twenty-eight years. With each of these employers plaintiff had been exposed, on a daily basis, to materials which were known to cause silicosis. The Supreme Court, held that plaintiff had established by a preponderance of the evidence, that his employment with both employers were substantial factors causing his disability and that his disease was occupationally related to his employment with these employers. The dissent reasoned that the statute clearly provided that liability lay with the employer at the time of the most recent exposure or injury bearing a causal relationship to the disability. On rehearing, the Supreme Court reversed itself and held that the plaintiff in Carter had failed to show that his exposure at a previous employer was a substantial factor causing him to contract silicosis and become disabled.

In following the holding in Carter, supra, the trial court dismissed T.L. James’ third party demands and dismissed all third party defendants from this suit. As stated by the Supreme Court:

No provision in 23:1031.1 indicates that employers from years back should share responsibility “for paying compensation benefits” with employers of the worker at the time the disease “manifested itself” and “disabled” the worker. La.R.S. 23:1031.1(E).
This is consistent with the other provisions of the Act which places responsibility on the employer at the time of the “accidental injury,” causing disability, and not on previous employers whose conditions might have made the worker only more succeptible to injury...
The decision to require contribution from a former employer whose working conditions might have contributed to the occupational disease which ultimately disables the worker is a policy decision which is best left to the legislature.

Carter, at 181. This decision holds that there is to be no apportionment of compensation payments among present and past employers, and, therefore, the last causative employer is solely responsible for an employee’s disability.

There is no suggestion in the record here, nor in any affidavit submitted on the motion, that plaintiff’s reaction to contact dermatitis had become disabling during any of his prior employments.

Accordingly, we affirm the trial court’s judgment dismissing this suit against the above-named defendants and third party defendants.

AFFIRMED.


author: FORET, Judge.

text:
    Lizabeth Crusta MASSIE, Plaintiff-Appellant, v. Charles W. MASSIE, III, Defendant-Appellee.
    No. 83-122.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.

      Robert L. Cole, Lafayette, for plaintiff-appellant.
    Offices of J. Minos Simon, Gregory K. Klein, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and PICKETT *, JJ.
   FORET, Judge.

Lizabeth Crusta Massie (plaintiff) filed a “PETITION FOR SEPARATION” in which she sought, among other things, the issuance of rules to show cause why defendant, Charles W. Massie, III, should not be condemned to pay alimony pendente lite and child support, and why she should not be granted the right to use and occupy the family residence pending the partition of community property

The trial court, after hearing the rules, rendered judgment in favor of plaintiff, ordering that defendant be condemned to pay $1250 per month as alimony pendente lite and $750 per month as child support. Plaintiff was granted the exclusive use and occupancy of the family residence .

Plaintiff appeals and raises the issue of whether the trial court abused its discretion in awarding her the amounts stated above for child support and alimony pendente lite.

Defendant has answered the appeal and raises the following issues:

(1) Whether the trial court abused its discretion in awarding child support and alimony pendente lite in an amount that exceeds the needs of plaintiff and the minor children, and defendant’s ability to pay;
(2) Whether the trial court abused its discretion in granting plaintiff the exclusive right to use and occupy the family residence; and,
(3) Whether the trial court erred in refusing to allow him a credit against his obligation to pay alimony penden-te lite and child suppoi’t to the extent of community funds alleged to have been appropriated by plaintiff for her exclusive use.

FACTS

On August 16, 1982, plaintiff instituted an action for separation alleging that defendant had repeatedly treated her with such mental and physical cruelty as to render their living together insupportable. As noted above, she also sought the issuance of certain rules to show cause.

Prior to the hearing on plaintiff’s rules, the parties stipulated that judgment be rendered in favor of plaintiff, awarding her custody of the parties’ minor children "with defendant having reasonable visitation rights. Further, that temporary restraining orders be issued against each party, prohibiting the sale, encumberance, or alienation in any manner of community property. After hearing plaintiff’s rules, the matter was taken under advisement by the trial court.

ALIMONY AND CHILD SUPPORT AWARD

Plaintiff contends that the trial court abused its discretion in making its award for child support and alimony pen-dente lite. She argues that the minor children and herself are accustomed to a very affluent standard of living, and that they are entitled to be maintained at that standard. Plaintiff notes that the family residence is very large, and argues that she and the children can barely subsist on $2000 per month.

Defendant, on the other hand, contends that the trial court’s award fails to take into account the needs of plaintiff and the minor children, and his ability to pay. He argues that plaintiff has habitually lived outside of the means he was able to provide, and that she is not entitled to be maintained at this inflated standard of living.

Plaintiff introduced in evidence an “AFFIDAVIT OF EXPENSES AND INCOME” showing a total of $7500 in average monthly expenditures. However, by her own testimony, it was shown that plaintiff had over-estimated her average monthly expenditures by approximately $3000. In addition, plaintiff admitted that the parties had argued about her spending practices throughout their marriage. Plaintiff stated that:

“Almost every check I’ve written, I would say for many years, has been an overdraft.”

Defendant testified that his gross monthly income was approximately $10,000. However, other testimony given by him indicates that it was actually $10,500 per month.

The evidence shows that the parties’ two minor sons attend private schools. In addition, their minor daughter (Katherine) is severely mentally retarded and resides in a private institution in New Orleans. The State of Louisiana pays for most of the expenses incurred in keeping her in this institution. However, plaintiff testified that she must visit her daughter approximately three times a month to bring her to physicians, etc., and to meet with the staff of the facility. She must also prepare special foods for Katherine and, because of physical deformity, buy special clothing for her.

It is our opinion that the trial court did not abuse its discretion in awarding plaintiff $1250 per month as alimony pendente lite and $750 per month as child support. We have taken into consideration defendant’s ability to pay, the fact that plaintiff and the minor children have been granted the exclusive use and occupancy of the family home, and plaintiff’s admitted excesses during the parties’ marriage.

FAMILY RESIDENCE

Defendant contends that the trial court abused its discretion in granting plaintiff the exclusive use and occupancy of the family residence. Defendant points to evidence, introduced under a proffer of proof, to the effect that the family residence is large enough to accommodate both parties living therein, while still maintaining the integrity of their separateness and their desire to live separate and apart. We find no merit to defendant’s argument.

LSA-R.S. 9:308 provides:

“§ 308. Possession of the family residence
After the filing of a petition for separation or divorce or in conjunction therewith, either spouse may petition for, and a court may award to one of the spouses, use and occupancy of the family residence pending the partition of the community property. In such cases, the court shall inquire into the relative economic status of the spouses and the needs of children, if any, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the occupancy of the family home in awarding alimony or child support.
Added by Acts 1981, No. 592, § 1.”

The statute requires the trial court to consider certain factors (the relative economic status of the spouses and the needs of the children), and to award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. Nowhere does the statute direct the trial court to inquire into the size of the family residence, or the ability of the spouses to live separate and apart therein.

Defendant expressed a desire to be allowed to reside in the family residence, but plaintiff was firmly opposed to this. The reason given by plaintiff was that defendant had a violent temper.

It is our opinion that there was no abuse of discretion by the trial court in granting plaintiff the exclusive use and occupancy of the family residence.

CREDIT

Defendant contends that the trial court erred in failing to allow him a credit against his obligation to pay alimony pen-dente lite and child support. Defendant argues that plaintiff received and cashed a check for $9100 made payable to him immediately prior to the parties’ separation in August of 1982. Plaintiff admitted that she had done this, but stated that she needed the money for her and the children to live on until a judgment for support could be secured from the trial court.

Defendant relies on Nelson v. Nelson, 311 So.2d 268 (La.App. 1 Cir.1974), on rehearing, 318 So.2d 68 (La.App. 1 Cir.1975), in support of his contention. The evidence in Nelson showed that plaintiff (wife) had obtained $16,699.06 in community funds from various sources immediately prior to the filing of her suit for separation. Further, the funds were taken without the consent of defendant (husband) and were expended or available for expenditure solely in the discretion of the plaintiff. Defendant claimed compensation in response to a judgment obtained by plaintiff making past-due alimony executory. On rehearing, Nelson held that defendant was entitled to compensation in the full amount of the funds taken by plaintiff.

However, the reasoning and result in Nelson were questioned in Hartley v. Hartley, 349 So.2d 1258 (La.1977). Hartley first noted that the case before it could be distinguished on its facts from Nelson. Then, at page 1261, Hartley stated that:

“There is, however, a more compelling reason why we conclude the Court of Appeal erred, and why the results in Nelson and Gumpton are at the least questionable.
Compensation or set-off2 to be applicable requires the contemporaneous existence of distinct debts, each equally liquidated and demandable. As this court stated in the early case of Carter v. Morse, 8 Mart.O.S. 398 (La.1820), alluding to Pothier:
“A debt, says Pothier, is liquidated when it appears that something is due, and how much. Cum certum sit an debeatur & quantum debeatur. A contested debt, therefore, is not a liquidated one; and cannot be set off, unless he who claims to set it off, has the proof in his hands, and be ready to prove it promptly and summarily. 2 Pothier’s Obligations, n. 174.”
See also, Saunier v. Saunier, 217 La. 607, 47 So.2d 19 (1950).
Thus, a determination as to the liquidity of a claim is an essential prerequisite to deciding whether such a claim is a proper basis for a plea of compensation. Lack of sufficient liquidity and demanda-bility will preclude such a plea.3
In the case at hand the best that can be said of Mr. Hartley’s position is that he has a potential claim against his wife for community funds, a claim very likely to be contested, and one which should properly be determined in a partition of the community property. From the poorly developed record before us it is nonetheless evident that at such time Mrs. Hart-ley will be seriously urging that the $16,-000.00, or some portion thereof, was employed not for her separate advantage but for community obligations including management of community realty, support of their minor daughter, and support of Mrs. Hartley between August 1973 and the October 28,1974 initial alimony judgment, during which period she apparently received no support from her husband.
It is thus evident that Mrs. Hartley’s “debt,” when placed beside her husband’s alimony judgment obligation, is definitely not “equally liquidated and demandable.” Compensation or set-off is therefore not available in these proceedings to offset or reduce the debt owed by Mr. Hartley for past due alimony.”

See also Castille v. Castille, 358 So.2d 1002 (La.App. 3 Cir.1978); Thomas v. Thomas, 400 So.2d 1120 (La.App. 1 Cir.1981).

In the action sub judice, plaintiff’s debt is not liquidated and demandable. Thus, defendant is not entitled to compensation.

DECREE

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

All costs of this appeal are assessed equally between plaintiff and defendant.

AFFIRMED.

      . Plaintiff prayed: that a separation “a mensa et thoro” be granted in her favor; that a temporary restraining order issue immediately, without bond, prohibiting defendant from taking certain actions with respect to community property, and from mentally and physically harassing her; that reasonable attorney’s fees be awarded to her for services rendered in connection with these proceedings; that the community property be partitioned in accordance with law; and, that interrogatories attached to the petition be served on defendant and that he be required to answer them within a certain period of time.
      Plaintiff also sought the issuance of rules to show cause: why a preliminary injunction should not be granted in the form of the temporary restraining order, and that in due course a permanent injunction issue herein to the same effect; why the custody of the parties’ minor children should not be awarded to her; and, why defendant should not be required to maintain all hospitalization and dental insurance premiums presently in force on her and the minor children.

      . The trial court further rendered judgment in favor of plaintiff, awarding her the custody of the parties’ minor children (Charles William Massie, IV, Christian C. Massie, and Katherine E. Massie), subject to the reasonable visitation rights of defendant.

      . See LSA-R.S. 9:308, infra; Vidrine v. Vidrine, 402 So.2d 793 (La.App. 3 Cir.1981); Langham v. Langham, 381 So.2d 1284 (La.App. 2 Cir. 1980); LeBouef v. LeBouef, 325 So.2d 290 (La. App. 4 Cir.1975); Williams v. Barnette, 76 So.2d 912 (La. 1954); Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2 Cir.1981).


author: GUIDRY, Judge.

text:
    Erskine Griffin COOK, Plaintiff-Appellant, v. Brenda Bordelon COOK, Defendant-Appellee.
    No. 83-142.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.

      Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Downs & Downs, James C. Downs, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and PICKETT , JJ.

       Judge John S. Pickett, Jr., 10th Judicial District Court, Judge Ad Hoc.

   GUIDRY, Judge.

Plaintiff, Erskine G. Cook, appeals from a judgment of the trial court which rejected his demand for termination of a previous alimony award in favor of his former wife, Brenda B. Cook.

Plaintiff and defendant were divorced on June 16, 1982. Subsequently, by judgment dated October 28, 1982, Brenda was awarded alimony in the sum of $250.00 per month, commencing September 1,1982, pursuant to the provisions of LSA-C.C. Article 160. On November 17, 1982, plaintiff filed a rule seeking a judgment terminating the previously granted alimony award on the ground that defendant was living in a state of “open concubinage”. In the alternative, plaintiff sought to have the alimony award reduced. The trial court, by judgment dated December 21, 1982, rejected plaintiff’s demand for termination of alimony but granted his alternative demand, reducing the amount of alimony payable to Brenda B. Cook to $200.00 per month. Plaintiff appeals from this latter judgment contending that the trial court erred in (1) failing to find that Brenda B. Cook was living in a state of “open concubinage” within the in-tendment and meaning of LSA-C.C. Art. 160; and, (2) failing to find that Brenda Cook has sufficient means for her own support. We find merit in neither of these contentions.

Brenda Cook has an eighth grade education. At the time of the initial alimony award, she was unemployed. The trial judge in his reasons for judgment granting the initial alimony award stated as follows with regard to Brenda’s earning capacity:

“In considering Brenda Cook’s entitlement to alimony, this court has considered her earning capability, in light of all other circumstances, to be very low. She has no skills or specialized training and is competing in a particularly deflated job market.”

Subsequent to the initial award of alimony, Brenda secured employment as a housekeeper in the home of Billy Wayne Wallace, a thirty-three year old divorcee. According to her agreement with Mr. Wallace, she is paid $100.00 cash per month plus meals and automobile expenses. Brenda testified that, in addition to her housekeeping chores, she cares for Mr. Wallace’s two minor children until he returns from work each day. At the outset of the employment relationship, Brenda commuted each day from Alexandria to the Wallace home in nearby Bentley, Louisiana. However, after a short time she began to live in the home of Mr. Wallace’s father, which is located next door to the Billy Wayne Wallace home. Brenda testified further that although her duties end at about 7 p.m., she would often stay over until 9 or 10 p.m. watching television etc. with Mr. Wallace and his children. Brenda categorically denied any romantic interest in Mr. Wallace testifying that her only relationship with Mr. Wallace was that of employer-employee. Brenda’s testimony, as above set forth, was corroborated by Mr. Wallace and his father, Seville Wallace. To counter the above, defendant offered the testimony of one, Robert Murphy, a private detective who conducted a surveillance of the Billy Wayne Wallace home on several occasions. In sum, Murphy testified that Brenda remained over night in the Billy Wayne Wallace home on the several occasions of his surveillance.

Appellant contends that the record establishes that Brenda Cook and Billy Wayne Wallace are living in a state of open concubinage within the meaning of LSA-C.C. Article 160, which reads in pertinent part as follows:

This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage

The term “concubinage” was well defined in the jurisprudence of this state prior to the passage of Act 580 of 1982, which amended Article 160 to provide for termination of alimony if the spouse to whom it has been awarded enters into open concubinage. In the recent case of Henderson v. Travelers Insurance Co. et al., 354 So.2d 1031 (La.1978), the Supreme Court stated:

“The status as concubine arises when a man and a woman live together in a permanent relationship as husband and wife, although without benefit of matrimony or a putative marriage. See, e.g.; Succession of Franz, 232 La. 310, 94 So.2d 270(1957); Succession of Jahraus, 114 La. 456, 38 So. 417 (1905); Succession of Keuhling, 187 So.2d 520 (La.App. 3rd Cir. 1966); Note, 32 Tul.L.Rev. 127 (1957). As we stated in Gauff v. Johnson, 161 La. 975, 977, 109 So. 782, 783 (1926): '... the concubine must not be confounded with the courtesan, or even what is ordinarily called a mistress. She is a wife without title.’”

The term “open” when used together with the word concubinage is equally well defined in our jurisprudence. In Succession of Keuhling, 187 So.2d 520 (La.App. 3rd Cir.1966), this court in considering the history and interpretation of the word “open” stated:

“Succession of Jahraus, supra, also discusses at length the history and interpretation of the word ‘open’ as used in Article 1481. It is explained that in early French Law the word ‘notorious’ was used, instead of ‘open’. This was perpetuated in the Code Napoleon and led to many scandals resulting from scrutiny into the private lives of persons deceased. The framers of our own Civil Code, being aware of this situation, substituted the word ‘open’ for ‘notorious’, so that ‘mere notoriety should not suffice, but absence of concealment or disguise should be requisite.’ The court explained the rationale of the redactors of our Code as follows:
‘For these reasons, they carefully and studiously confined the provision to “those who have lived together in open concubinage,” meaning by the word “open” that the concubinage should be so public as to be practically avowed, not necessarily by word, but at any rate by unambiguous, unequivocal conduct; that the relations must be such that, when sought to be made the basis of judicial action, no odious inquisitions might be necessary, and no nice poising of testimony, as in this case.’ ”

With this understanding of the term “open concubinage”, we have little difficulty in concluding, as did the learned trial judge, that the record falls short of establishing that Brenda has entered into “open concubinage” within the meaning and in-tendment of LSA-C.C. Article 160. In sum, the record does not establish that the relationship between Brenda Cook and Billy Wayne Wallace was concubinage or that it was open, as these terms have been interpreted in our jurisprudence.

As aforestated, we find appellant’s second assignment of error equally without merit. No detailed discussion of the evidence is required in answer to appellant’s contention that the trial judge erred in failing to find that Brenda Cook has sufficient means for her own support. In the initial judgment dated October 28, 1982, which is now final, Brenda was determined to be entitled to alimony, the trial court concluding that because of her lack of skill, education and training her employment capability was extremely limited. Since rendition of that judgment, Brenda has found employment however, as reflected by the record, her income and other emoluments therefrom are not sufficient to provide her with the basic necessities of life. The trial court, in maintaining Brenda’s right to alimony at a reduced rate, opined in oral reasons as follows:

“Now, with respect to the alternative request for a reduction in alimony, the court does take into account the facts that at the time the $250.00 award was made some few months ago Mrs. Cook was unemployed at the time and at that time Mr. Cook was working his regular hours on regular schedule employment in so (sic) a way that he was earning a sum of roughly $2,000.00 a month. Since that time, Mrs. Cook as (sic) become employed, although the basic salary is meager, there are other emoluments flowing from their employment and Mr. Cook is now indicating that he’s been reduced some one-third of his income.
Under the circumstances of Mrs. Cook’s present employment of increasing her earnings as well as decreasing her expenses and in view of Mr. Cook’s change in work status, the demands in the Rule to reduce alimony are granted to such extent that the amount fixed at $250.00 is reduced to $200.00 commencing January 1, $200.00 per month commencing January 1, 1983 under the present set of circumstances and the court would emphasize that to be under the present set of circumstances; that is, given Mrs. Cook’s income and emoluments flowing therefrom and the fact that Mr. Cook is on the extra board and indicates that he’s receiving some thirty percent or forty percent reduction in his normal income. If those facts were to change, then, of course, it would be another ball game.”

The trial judge is given much discretion in determining an appropriate amount of alimony and his decree should not be adjusted or reversed absent a clear showing of abuse. In this case, we find no abuse of the trial court’s discretion.

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

AFFIRMED.


text:
    Clayton J. FONTENOT, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 83-144.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    John E. Demoruelle, Kinder, for plaintiff-appellee.
    Before GUIDRY, FORET and PICKETT , JJ.

       Judge John S. Pickett, Jr., 10th Judicial District, Judge Ad Hoc.

   FORET, Judge.

Clayton J. Fontenot (plaintiff), after being involved in an automobile accident, brought this action to recover damages under the terms of an automobile insurance policy issued him by defendant, State Farm Mutual Automobile Insurance Company. In addition, plaintiff sought to recover the statutory penalties and attorney’s fees. Defendant denied coverage, asserting that the policy had been cancelled for non-payment of the premium prior to the date of plaintiff’s accident.

The trial court, after trial on the merits, rendered judgment in favor of plaintiff, ordering defendant to pay him the sum of $8,907.85, together with legal interest thereon from date of judicial demand until paid .

Defendant appeals and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff had paid the full premium due on the policy; and, if so,
(2) Whether the trial court committed manifest error in finding that the policy afforded plaintiff coverage on the date of the accident.

FACTS

Plaintiff was the owner of a 1980 Ford Mustang that had been insured by defendant under the policy. On June 18, 1981, plaintiff was involved in an automobile accident in which he suffered personal injury, and which resulted in the total destruction of his vehicle. In his petition, plaintiff alleged that he incurred medical expenses totaling $1,407.85 for treatment of his injuries, and that his vehicle was worth $7,500.00. He further alleged that defendant had issued him the policy, which was in full force and effect on the date of the accident. Among other things, the policy provided for comprehensive, collision, and medical payments coverages. However, defendant refused to pay plaintiff any sums whatsoever (for the reason noted above), although he made demand and filed proof of loss with it. Because of defendant’s refusal to pay, plaintiff instituted the present action.

ALLEGED NON-PAYMENT OF PREMIUM

Defendant contends that the trial court erred in finding that plaintiff had paid the full premium due on the policy. It argues that plaintiff failed to prove that he had made full payment, and further, that the evidence shows that he did not do so.

Plaintiff testified that he initially purchased the policy from defendant in August of 1979, when he bought the vehicle destroyed in the accident. Because he failed to pay the entire premium, that policy was cancelled in January of 1981. Plaintiff stated that he then “renewed” the policy on February 26, 1981, with Randall LaFleur (one of defendant’s agents). According to plaintiff, on that date, he paid LaFleur the entire premium in cash and obtained a receipt from him. However, the receipt was in his vehicle at the time of the accident and was never recovered.

Randall LaFleur testified that plaintiff initially purchased the policy on July 21, 1980, and that it was up for renewal on January 21, 1981. However, plaintiff took no action and the policy lapsed. On February 26, 1981, plaintiff came to his office to make an application for reinstatement of the lapsed policy. LaFleur stated that plaintiff financed the policy premium under a plan offered by defendant that is known as “fifty-fifty”.

Under that plan, LaFleur explained that an insured pays fifty percent of the premium, when he initially purchases a policy or makes an application for reinstatement of a policy (in either case, the policy will be written for a minimum of six months), and the balance is due within sixty days thereof. If no payment is made within sixty days, the insured is sent a cancellation notice. However, the policy coverage is extended for another thirty days because the insured has, in effect, paid for ninety days of coverage.

LaFleur testified that on February 26, 1981, he received $269.83 in cash from plaintiff which represented a payment of fifty percent of the policy premium. Defendant then introduced in evidence a document sent in by LaFleur. This document indicates that LaFleur received $269.83 from plaintiff on February 26, 1981, in payment of the policy premium under the “50/50” plan, and that the payment was being transmitted to defendant. LaFleur testified that he received no other payments from plaintiff on the premium.

LaFleur then identified a cancellation notice, received by his office, which states that plaintiff’s policy, “... IS HEREBY CANCELLED EFFECTIVE 12:01 A.M. STANDARD TIME May-14-81 DUE TO NONPAYMENT OF THE PREMIUM”. His office usually receives such notices about a week before the cancellation date. His next action, taken with respect to the policy, occurred on June 19, 1981, when someone came to his office and made a reinstatement application for the policy. This was one day after the date on which the accident occurred. Plaintiff’s loss was reported to him three days later. LaFleur was unable to obtain a copy of the receipt he had given plaintiff because his office destroyed all receipt books after keeping them for one year.

The trial court, in its written opinion, stated:

“The court is of the opinion that Mr. Fontenot should be afforded coverage under the policy due to the fact that the policy was issued for a six-month period and Mr. Fontenot testified that he did in fact pay the premium in full. In support of his contention is the fact that the loss payee, Ford Motor Credit Co., did not receive notice of cancellation of the policy. The policy on its face shows six months coverage through August 1981, and does not provide for installment payments of the premium.”

We conclude that the trial court overlooked a crucial portion of the evidence.

Sandra Otman, an employee of Ford Motor Credit Company (FMCC), was called as a witness by plaintiff. FMCC had a chattel mortgage on plaintiff’s vehicle at the time of the accident. As noted by the trial court, Mrs. Otman testified that FMCC had received no cancellation notice from defendant regarding plaintiff’s policy. However, under cross-examination, she was asked if she knew the reason why the Standard Guaranty Insurance Company (Standard) had paid FMCC the sums of $5,147.34 and $387.03 for plaintiff’s account. She replied:

“Yes, sir, we added the insurance when we were advised that Mr. Fontenot did not have coverage by Mr. Fontenot.”

Mrs. Otman went on to explain that, under its master policy with Standard, FMCC could place insurance on an account when, “... we don’t receive a cancellation notice and the unit is totaled out, ... ”. FMCC placed this insurance with Standard on August 20, 1981. An examination of the declarations section of plaintiff’s policy states that the policy period is from February 26, 1981, to August 26,1981. Thus, prior to the expiration date stated in his policy, plaintiff went to FMCC and admitted that he had no insurance coverage on his vehicle. This admission by plaintiff is completely contradictory to his testimony that he paid the policy premium in full on February 26, 1981, and that he never received a cancellation notice from defendant.

It is our opinion that the trial court’s finding, that plaintiff paid the policy premium in full, is clearly wrong.

NOTICE OF CANCELLATION

Defendant contends that the trial court erred in allowing plaintiff to recover damages, under the policy, when the policy had been effectively cancelled for non-payment of the premium prior to the date of the accident. Having found that plaintiff failed to pay the premium in full, we must now determine whether plaintiff was given proper notice that his policy was being can-celled.

LSA-R.S. 22:636.1 makes its provisions applicable to, “... an automobile liability, automobile physical damage or automobile collision policy, or any combination thereof, ... ”. Thus, its provisions are applicable to the policy in question.

LSA-R.S. 22:636.1(B)(1) provides:

“B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(1) Nonpayment of premium; or

LSA-R.S. 22:636.1(D) provides, in pertinent part, that:

“D. No notice of cancellation of a policy to which Subsections B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given.

Finally, LSA-R.S. 22:636.1(F) provides:

“F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.”

A review of the copy of the cancellation notice, allegedly mailed to plaintiff by defendant, shows that it meets all of the requirements of LSA-R.S. 22:636.1(D). The notice states that it was sent May 1, 1981, and the effective date of cancellation is May 14, 1981. Further, the notice states the reason for cancellation is non-payment of the premium.

Carlos Brown, an insurance supervisor for defendant, testified that cancellation notices are computer printed forms that are released to his department each morning. It’s his job to check the processing of these forms. After his office inspects them, they are placed in envelopes and taken to the mail room.

Steve Nolan testified that he is a postal clerk employed by defendant. His duties include the mailing of cancellation notices by certified mail to policyholders whose policies are about to be cancelled. He also keeps records concerning the mailing of these notices. He stated that, after receiving these notices (and other items to be sent by certified mail), he assigns a certain number (given by the postal services to defendant’s regional office for use in mailing certified letters) to the first item to be mailed that day. He then records this number and the number assigned to the last item sent by certified mail that day. He also stamps the cancellation notice with the number assigned to it. The copy of the cancellation notice allegedly sent to plaintiff is stamped with the number 00-143-426.

Nolan was requested to check his records for May 1, 1981. After doing so, he testified that the number stated above was included in the numbers assigned to certified letters mailed by defendant on that date. Nolan went on to testify that he personally brings defendant’s certified letters to the post office each day for mailing. There, a postal supervisor counts each one of the items to make sure that all have been delivered to the post office. The Postmaster then signs a document for defendant showing that he received the certified letters for mailing. Nolan stated that his records show that the certified letter sent to plaintiff had never been returned. The copy of the cancellation notice shows that it was sent to plaintiff at the address shown in his policy.

Defendant introduced in evidence the deposition of William H. Monk, the Postmaster at Kinder. He explained how the post office handles certified letters. Upon receiving a certified letter, a certain form is filled out by the post office and placed in the recipient’s post office box. The article is then kept for fifteen days, and is returned to the sender if it is not picked up by the recipient. If the article is picked up by the recipient within fifteen days, he is required to sign the form filled out by the post office. The form is then kept on file for two years. Monk stated that virtually all pieces of certified mail have a number assigned to them when they reach the receiving post office.

Monk was Postmaster at Kinder during May, 1981. He stated that he received a certified letter bearing the number 00-143-426. Monk then testified that plaintiff came to the post office, signed the form concerning certified mail, and picked up this letter. Monk remembered plaintiff picking up this piece of mail because plaintiff did not have the form with him at the time. Monk had to fill out another form for plaintiff to sign before he could release the certified letter to him. Plaintiff admitted that the signature on the form was similar to his, but denied that he had signed it.

Plaintiff testified that he never received the cancellation notice because he was working in Texas during May, 1981. However, as noted above, plaintiff admitted to PMCC that he had no insurance coverage before the expiration date of the policy.

It is our opinion that defendant has proven that it mailed the cancellation notice to plaintiff. Under the provisions of LSA-R.S. 22:636.1(F), this is sufficient proof that notice of cancellation was given plaintiff.

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed. Judgment is hereby rendered in favor of defendant, dismissing plaintiff’s action against it.

All costs of this appeal, and in the trial court, are assessed against plaintiff-appel-lee.

REVERSED AND RENDERED.

      . The trial court’s judgment makes no mention of plaintiffs claim for the statutory penalties and attorney’s fees. However, in its written opinion the trial court stated: “This court cannot find that the defendant acted arbitrarily in denying the claim as there was some basis on the face of their personal business record indicating that payment was not due”.

      . Plaintiff appears to have been confused about the dates he testified to. Under direct examination, he testified that he purchased the 1980 Ford Mustang on August 17, 1979, and that he purchased an automobile insurance policy from defendant that same month. However, under cross-examination, he indicated that he had purchased the automobile and the insurance policy in either July or August of 1980. In any event, this date is insignificant for our purposes.

      . LSA-R.S. 22:636.1(A)(6) provides:
      “(6) ‘Nonpayment of premium’ means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.”

      . Both Nolan and Brown work at defendant’s regional office in Monroe, where the cancelltion notices are prepared and mailed.

      . See also our recent decision in Ardoin v. Audubon Ins. Co., 434 So.2d 627 (La.App. 3 Cir. 1983).


text:
    Raymond WHITE, Plaintiff-Appellant, v. NATIONAL SURETY CORPORATION, et al., Defendants-Appellees.
    No. 83-180.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.

      Donald McKnight, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Christopher Trahan, Joe J. Tritico, Plauche, Smith & Nieset, Jeffery Cole, Lake Charles, for defendants-appellees.
    Before GUIDRY, FORET and PICKETT, JJ.

       Judge John S. Pickett, Jr., 10th Judicial District Court, Judge Ad Hoc.

   GUIDRY, Judge.

The plaintiff brought this suit to recover damages resulting from the destruction of his business establishment by fire. The plaintiff asserts that the fire was caused when gasoline fumes drifted onto his premises from an adjacent service station. At the time, gasoline was being transferred from a delivery truck to underground tanks at the station. The fumes were allegedly ignited by the plaintiff’s hot water heater, and the resulting fire destroyed the plaintiff’s building and the contents therein. Made defendants are the owner of the service station, Oscar Marcello; the lessee and operator of the service station, Gerald Runge; Runge’s insurer, National Surety Corporation; the trucking company which delivered the gasoline, Stephen’s Trucklines,. Inc.; and, the insurer of Stephen’s Truck-lines, Aetna Casualty and Surety Company.

Gerald Runge and National Surety Corporation filed a motion for summary judgment. The trial judge granted the motion, dismissing these defendants from the lawsuit. The correctness of this judgment is the sole issue on appeal.

The fire in question occurred on October 23, 1978. On that date, sometime between 5:00 and 6:00 a.m., an employee of Stephen’s Trucklines delivered gasoline to the Phillips 66 Service Station owned by Mar-cello. As was his custom, the driver opened one of the underground tanks and began to transfer gasoline from the truck to the tank. At some point during this operation, a large flash fire occurred, and the plaintiff’s upholstery shop, situated adjacent to the service station, was destroyed.

The motion for summary judgment filed by Gerald Runge and National Surety is accompanied by the deposition of Oscar Marcello and an affidavit executed by Runge. In the deposition, Marcello stated that he owned the service station, including the property itself, all buildings on the property, and the underground gasoline storage tanks. Marcello leased the property to Runge, who operated the station and paid rent according to the amount of gasoline he sold. Marcello further stated that neither he nor Runge had any control or supervision over the filling of the gasoline tanks on the property.

The affidavit executed by Runge stated that he was the lessee of the service station owned by Oscar Marcello. He also stated that when gasoline was needed, Marcello made all arrangements for procuring the gasoline and having it delivered to the station. The affidavit further reflects that the underground gasoline storage tanks and above ground vents were installed prior to the time that Runge began to lease the service station, and that Runge neither constructed nor made any repairs on the tanks or the vents. Runge further stated that prior to the fire, he had no knowledge that the location of the gasoline tanks posed any danger of a fire or explosion threatening the plaintiff’s premises.

In opposition to the motion for summary judgment, the plaintiff, Raymond White, executed an affidavit in which he stated that Runge was aware that the gasoline storage tanks, due to their close proximity to the plaintiff’s property, posed a great danger to the plaintiff’s buildings.

Summary judgment is rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting and opposing affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. Supporting and opposing affidavits must be made on personal knowledge, setting forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. LSA-C.C.P. Art. 967.

In the instant case, the trial judge correctly found no genuine issue as to material fact. The affidavits filed in support of the motion for summary judgment filed by Runge and National Surety established that Marcello was the owner of the gasoline storage tanks, and that Runge neither ordered the gasoline when it was needed nor did he in any way supervise the filling of the tanks. It was further established that the tanks and vents were installed on the premises prior to the time Runge began to lease the property. Runge’s affidavit also established that he had no knowledge that the location of the storage tanks posed any danger to the adjoining premises owned by the plaintiff.

The only fact attested to by Runge which was rebutted by the plaintiff concerned Runge’s knowledge of the allegedly dangerous condition posed by the proximity of the gasoline storage tanks to the plaintiff’s property. In the affidavit, White stated that Runge knew that the tanks posed a great danger to the plaintiff’s establishment. This is the only factual dispute raised by the pleadings and affidavits. Thereafter, Runge filed a motion to strike this affidavit, urging non-compliance with LSA-C.C.P. Art. 967.

The trial judge, in a well reasoned opinion, stated that the affidavit in opposition to the motion for summary judgment was defective for failure to comply with the requirements of LSA-C.C.P. Art. 967. The trial judge correctly pointed out that the affidavit contains a conclusion of the affi-ant with no factual basis therefor. The affidavit is devoid of any facts supporting the conclusory statement that Runge knew that the location of the tanks posed a danger to the plaintiff’s building. The trial judge, disregarding the defective affidavit filed by the plaintiff, found no genuine issue as to material fact. We find no error in this conclusion.

There being no factual matters in dispute, the remaining question is whether the defendants, Runge and National Surety, are entitled to summary judgment as a matter of law.

The plaintiff contends that Runge, the lessee of the premises, should be held liable as a proprietor under LSA-C.C. Art. 667, which provides:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

In Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800 (La.App. 4th Cir.1971), our brethren of the Fourth Circuit addressed the issue of whether a lessee can be held liable under the above quoted article. In that case, the plaintiffs brought suit against the owner and lessee of adjacent premises to abate certain nuisances arising out of the use of the property. Affirming the trial court’s dismissal of the plaintiffs’ demands against the lessee, the court stated:

“In this case plaintiffs are seeking to abate a nuisance. The nuisance is a condition, and the person legally liable for the nuisance is the person actually responsible for the existence of the condition. This includes the person who creates the nuisance and the person who participates in the active continuance thereof.
We therefore believe that the liability of a party as a proprietor under C.C. art. 667 in a nuisance and damage case should be determined on the basis of his responsibility for the existence of the condition which constitutes the nuisance.”

In the instant case, the record shows that the lessee, Runge, did not participate in the construction or maintenance of the condition complained of by the plaintiff. The gasoline storage tanks were installed before Runge began leasing the property. He did not make the arrangements for the filling of the tanks, nor did he have any supervision or control over this operation. We agree with the trial court that Runge is not the person responsible for the existence of the condition, and that he may not be held liable as a proprietor under LSA-C.C. Art. 667.

The plaintiff further asserts that Runge should be held liable under a negligence theory. However, as the trial court pointed out in its opinion, the plaintiff points to no acts of negligence which would render Runge liable for the damage done to the plaintiff’s property. The record shows without contradiction that Runge had no control or supervision over the filling of the storage tanks, the operation which allegedly caused the fire. The affidavits further show that, at the time the tanks were being filled just prior to the fire, Runge had not yet arrived at the service station. Under these circumstances, the trial judge was correct in finding that Runge can not be held liable for the accident.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.


author: PICKETT, Judge, Ad Hoc.

text:
    Melinda BENOIT, born LaCoste, Plaintiff-Appellant, v. Donald Evans BENOIT, Defendant-Appellee.
    No. 83-211.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.

      Robert C. McCall, Kenneth E. Badon, Cameron, for plaintiff-appellant.
    Joe J. Tritico, Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and PICKETT, JJ.
   PICKETT, Judge, Ad Hoc.

Original Plaintiff, Melinda Lacoste Be-noit, appeals from a judgment of the trial court which awards the custody of her minor child, David Benoit, to his father, Donald Evans Benoit, original defendant, and plaintiff, in reconvention.

Plaintiff and defendant were married May 7, 1977, in Cameron, Louisiana, where they established their matrimonial domicile. One child, David Benoit, was born of this marriage, on December 21, 1977.

Mr. and Mrs. Benoit separated on or about June 4, 1982, and Mrs. Benoit filed suit for legal separation, based on allegations of constructive abandonment, on June 21, 1982. She also sought custody of the minor child, David, then four and one-half (4½) years old, child support and alimony for herself. Mr. Benoit answered the petition, admitting the marriage, domicile and that the child was a child of the marriage. He denied all other allegations. He also reconvened for a legal separation on grounds of cruel treatment and for custody of the child, David.

On July 12, 1982, there was a judgment on a rule, in which Mrs. Benoit was awarded the custody of the child and Mr. Benoit was ordered to pay child support. The record reflects no reasons being assigned for this particular action.

Subsequently, on a full trial on the merits, regarding the issues of legal separation and custody, the Court awarded the re-convenor, Mr. Benoit, both a legal separation and the permanent care, custody and control of the minor child, David Benoit, subject to specific visitation privileges to Mrs. Melinda Benoit. It is from that aspect of the judgment which awards custody of the child to the father that the mother appeals, contending that the trial court erred in (1) awarding effective custody to a grandparent instead of a parent where the pleadings and the testimony of the father of the child indicate that the grandparents are the real parties at interest, and, (2) absent a showing of any significant change in the circumstances of the father the trial Court erred in changing the previous permanent custody award of the mother when all testimony indicated that the mother’s situation had improved during the time she had had custody. We find merit in neither of these contentions.

In the appellate review of cases involving child custody; the trial court’s determination of what is in the best interest of the child is given great weight, and will not be overturned unless there is a clear showing that the trial judge abused his discretion. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). Stephenson v. Stephenson, 404 So.2d 963 (La.1981); Pauley v. Pauley, 425 So.2d 1313 (La.1983). A determination of the best interest of the child involves consideration of the totality of facts and circumstances of the child and the parents in each individual case. Ferguson v. Ferguson, 398 So.2d 1238 (La.App. 4th Cir.1981). In his reasons for judgment, the trial court noted:

“The history of the mother’s behavior exhibited an irresponsibility which was inconsistent with the duties of parenthood. The mother had left the grandparents with the chores of child-rearing and continuously pursued a life of self-indulgence. The particulars referred to are her habits of late hours during the week, excessive use of alcohol, and the patronizing of lounge and dance hall establishments. On the question of parenthood, her life style resulted in complete neglect of the child. Her behavior in this respect had become so extreme that it resulted in the dissolution of her marriage. The only stability in the child’s life was that provided for by the working relationship of father and the paternal grandparents.

The mother, at the time of this hearing, had taken the child from the grandparents home. This move was instituted simultaneously with the filing of the rule. She had moved in with a sister in a rural and remote area with overcrowded facilities and limited opportunity for the child.

It was apparent that the motive for seeking the custody was for the accompanying child support funds which were needed by Melinda Benoit and by her sister’s household where funds were inadequate.

It was the Court’s opinion that the best interest of the child was served by the decision which was given.”

We cannot say that the trial judge abused his discretion in this case. On the contrary his decision is supported by the facts and circumstances surrounding this case, which include the fact that the child, David, has been in poor health his entire life, and has virtually been reared, nursed and protected by the paternal grandparents, having lived in their home for the greater part of his life. The father now makes his home with the grandparents, and the child, David, will continue to receive the excellent day and night care he has always received, with the father being assured of the well-being of the child during the periods of the day he is away, working.

It is to the manifest best interest of the child that he be in the custody of the father.

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

AFFIRMED.