author: HERSEY, Judge.

text:
    Sally S. BRINKLEY, a/k/a Sally Benson, Appellant, v. W. Michael BRINKLEY, Appellee.
    No. 84-444.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.

      Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Lyons & Sanders Chartered, and Harry C. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

The trial court sustained the husband’s exceptions to a general master’s report pertaining to temporary alimony and child support. The wife appeals. At issue is the measure of a trial court’s discretion in refusing to follow the recommendations of a general (or special) master.

A hearing was held before the general master on November 1, 1983, on the wife’s motion for temporary relief. The wife testified that she planned to vacate the marital home and that she intended to purchase another house for $140,000; however, she had not yet signed a purchase and sale agreement. She estimated the expenses she expected to have after acquisition of the new home. On December 6, 1983, the general master entered extensive findings of fact and recommended, in part, as follows:

C. Until such time as the Wife vacates the marital home, the Husband will continue to pay the utility and miscellaneous expenses referred to hereinabove in Paragraph 1-Q and pay the Wife the sum of Two Thousand ($2,000.00) Dollars per month beginning November 1, 1983; all amounts to be characterized as undifferentiated temporary alimony and child support.
D. When the Wife vacates the marital home, the Husband will continue to maintain the medical and automobile insurance for the Wife and will pay the Wife the sum of Four Thousand ($4,000.00) Dollars per month on the first of each month until further Order of the Court. All reasonable and necessary medical, dental, prescription drug and hospitalization expenses for both the Wife and the parties’ minor child not covered by insurance shall be the obligation of the Husband. Except in emergency situations, the Husband will be consulted before any extraordinary expenses are incurred and the Husband will not unreasonably withhold his consent. All amounts set forth under this paragraph shall be characterized as undifferentiated temporary alimony and child support.
E. The Wife will be responsible for her own car payment.

Utility bills and miscellaneous expenses in connection with the marital home were approximately $700 per month.

The husband filed exceptions to the master’s report, complaining that the master in effect awarded the wife $1,300 a month more for living in the new home than the cost of remaining in the marital home. The award, argued the husband, “was speculative and not based upon any testimony as to what, in fact, her expenses would be.”

The trial court sustained the objections and ordered that the husband pay to the wife $2,000 per month as unallocated family support, and that he pay for her medical and automobile insurance premiums. The wife contests this order.

A trial court is bound by a master’s findings of fact when they are supported by competent substantial evidence. Dent v. Dent, 438 So.2d 903 (Fla.4th DCA 1983). In Reece v. Reece, 449 So.2d 1295 (Fla.4th DCA 1984), this court stated:

The findings of fact and conclusions drawn therefrom may not be rejected by the trial court in the absence of clear error. To put it another way, the role of the trial court in reviewing the findings and determinations of the master are similar to those of the appellate court in reviewing a trial court’s findings and determinations. Harmon v. Harmon, 40 So.2d 209 (Fla.1949); Matos v. Matos, 421 So.2d 180 (Fla.2d DCA 1982). This rule is subject to the observation that it is the trial judge “who under the law is charged with the duty and responsibility of making findings of facts and entering the final decree.” U.S. Casualty Co. v. Md. Casualty Co., 55 So.2d 741, 744 (Fla. 1951). It is also recognized that the trial court may come to different legal conclusions than the master, based upon the master’s findings of fact, without committing reversible error. Bergh v. Bergh, 127 So.2d 481 (Fla.1st DCA), cert. denied, 133 So.2d 323 (Fla.1961).

Before determining whether the trial court properly disregarded the general master’s findings and recommendations on the ground that they were “contrary to the facts and to the evidence and are not in accordance with the prevailing law,” we revisit Florida Rate Conference v. Florida Railroad and Public Utilities Commission, 108 So.2d 601 (Fla.1959). In that case the supreme court discussed the meaning of “competent substantial evidence”:

Although the terms “substantial evidence” or “competent substantial evidence” have been variously defined, past judicial interpretation indicates that an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient.
In the case of N.L.R.B. v. A.S. Abell Co., 4 Cir., 1938, 97 F.2d 951, 958, a federal court said that the substantial evidence rule is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences. And in Milford Copper Co. of Utah v. Industrial Commission, 1922, 61 Utah 37, 210 P. 993, 994, the court said that evidence to be substantial must possess something of substantial and relevant consequence and must not consist of vague, uncertain, or irrelevant matter not carrying the quality of proof or having fitness to induce conviction. Surmise, conjecture or speculation have been held not to be substantial evidence. White v. Valley Land Company, 1958, 64 N.M. 9, 322 P.2d 707, 709.

108 So.2d at 607. Conclusions or opinions based on pure speculation are worthless to the trier of fact. Husky Industries, Inc. v. Black, 434 So.2d 988 (Fla.4th DCA 1983) (trial court erred in denying directed verdict where plaintiff’s case rested on speculative testimony of expert witness); Vecta Contract, Inc. v. Lynch, 444 So.2d 1093 (Fla.4th DCA 1983) (directed verdict should have been entered where evidence amounted to rank speculation); Gains v. State, 417 So.2d 719 (Fla.1st DCA 1982) (conviction could not rest upon mere suspicion that defendant was “wheelman” in a robbery), pet. for review denied, 426 So.2d 26 (Fla.1983). In divorce proceedings, where the record is devoid of competent substantial evidence, an order awarding temporary alimony must be vacated. See Wilson v. Wilson, 351 So.2d 1029 (Fla. 4th DCA 1976). We therefore hold that the trial court did not abuse its discretion in implicitly holding that the wife was not entitled to an additional $2,000 per month upon moving from the marital home. While she may be entitled to an additional sum when she vacates the home, the amount to which she testified was totally speculative. The correct course for the wife to follow was to move for modification once the anticipated event occurred and her expenses became more certain. 26 Fla.Jur.2d Family Law § 632.

Accordingly, we affirm.

Affirmed.

ANSTEAD, C.J., and HURLEY, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Madeline K. GROSS and Charles H. Monast, Co-personal representatives of the Estate of Raymond E. Gross, deceased, and Madeline K. Gross, individually, Petitioners, v. SECURITY TRUST COMPANY, a Florida corporation, n/k/a Northern Trust Bank of Florida, N.A., Archbishop Carroll Catholic Life Center Trust, Holy Cross Hospital, a Florida non-profit organization, Wilson Petroleum Corporation, Energy Development Corporation and Faith M. Williamson, Respondents.
    No. 84-1035.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Rohan Kelley of Kelley & Herb, P.A., Fort Lauderdale, for petitioners.
    Peter J. Forman of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauder-dale, for respondent — Security Trust Company, n/k/a Northern Trust Bank of Florida, N.A.
    J. Michael Fitzgerald and Margaret Lynch Hopkins of Wood, Lucksinger & Epstein, Miami, for respondent — Archbishop Carroll Catholic Life Center Trust.
    Gerald M. Morris of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for respondent — Holy Cross Hospital.
    Joseph G. Young of Smathers & Thompson, Miami, for respondent — Faith Williamson.

      Daniel T. Carpenter of Bird, Carpenter & Brown, P.A., Fort Lauderdale, for Administrator Ad Litem for the Estate of Raymond E. Gross — Daniel T. Carpenter.
   PER CURIAM.

Whether depositions, or any other discovery, should be limited is within the broad discretion of the trial court. Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967); Continental Mortgage Investors v. Village By The Sea, 252 So.2d 833 (Fla. 4th DCA 1971).

Communications between spouses are privileged only if intended to be made in confidence. § 90.504(1), Fla.Stat. (1983); Hughs’ Florida Evidence Manual, § 136; See also 24 Fla.Jur.2d, Evidence and Witnesses, § 529.

A protective order under Rule 1.280(c), Florida Rules of Civil Procedure is available only upon a showing of good cause. Orlando Sports Stadium v. Sentinel Star Co., 316 So.2d 607 (Fla. 4th DCA 1975).

Certiorari will not be granted “except in those cases where an abuse of discretion has been shown so as to constitute a departure from the essential requirements of law which cannot be remedied on appeal.” Burroughs Corporation v. White Lumber Sales, 372 So.2d 122 (Fla. 4th DCA 1979).

CERTIORARI DENIED.

LETTS, HERSEY and GLIC^STEIN, JJ., concur. I


text:
    Thomas Francis MENDEZ, Petitioner, v. STATE of Florida and the State’s Attorney, Respondent.
    No. 84-1527.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Thomas Francis Mendez, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for Writ of Habeas Corpus is denied without prejudice to Petitioner’s right to seek relief pursuant to Fla.R. Crim.P. 3.850.

Denied.

DOWNEY, LETTS and WALDEN, JJ., concur.


text:
    STATE of Louisiana v. Charles JACKSON.
    No. 84-KK-1050.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Charles Jackson, applying for supervisory writs to the Fifth Circuit Court of Appeal, No. 83-K-863, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 83-604.

Prior report: 452 So.2d 703.

Granted.


text:
    STATE of Louisiana ex rel. Stephen GALLAGHER v. STATE of Louisiana.
    No. 84-KH-0985.
    Supreme Court of Louisiana.
    July 27, 1984.
   In re Charles C. Foti, Jr., Criminal Sheriff, applying for reconsideration of writ granted with Order on June 27, 1984, 452 So.2d 166, Parish of Orleans, Criminal District Court, No. 289-817, Section “F”; Fourth Circuit Court of Appeal, No. K-2234

Rehearing Granted.


text:
    STATE of Louisiana v. Steven GALLAGHER.
    No. 84-KD-1378.
    Supreme Court of Louisiana.
    July 27, 1984.
   In re Steven Gallagher, applying for supervisory writs and/or review to the Criminal District Court, Parish of Orleans, No. 289-817, Division F.

GRANTED. Relator is ordered .released on his personal recognizance; whether additional parish prison time is owed on his sentence will be held in abeyance pending this Court’s ruling after briefing and argument.


text:
    STATE of Louisiana v. Jonas WILLIAMS.
    No. 84-KH-1391.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Williams, Jonas, applying for writ of habeas corpus, Criminal District Court, Div. “I”, Nos. 300-651, 300-674, Orleans Parish.

Granted and transferred to Court of Appeal, 4th Circuit, for consideration.


text:
    STATE of Louisiana v. Calvin F. DUNCAN.
    No. 84-KH-1400.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Duncan, Calvin F., applying for remedial writ, Criminal District Court, Div. “G”, Parish of Orleans.

Granted and transferred to Court of Appeal, 4th Circuit, for consideration.


text:
    STATE of Louisiana v. Frank MOODY.
    No. 84-KH-1401.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Moody, Frank, applying for habeas corpus, Criminal District Court, Div. “B”, No. 297-384, Orleans Parish.

Granted and transferred to Court of Appeal, 4th Circuit, for consideration.


text:
    F. Clancy DUPEPE v. Susan Fautt DUPEPE.
    No. 84-CC-1463.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Dupepe, F. Clancy, applying for stay, emergency writ, Parish of Orleans, Civil District Court, Div. “A”, No. 84-11374; to the Court of Appeal, Fourth Circuit, No. C-2641.

Denied.


text:
    STATE of Louisiana ex rel. Dereck A. BROADNAX v. STATE of Louisiana.
    No. 84-KH-1465.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Broadnax, Dereck A., applying for bail, Parish of Orleans, Criminal District Court, Div. “A”, No. 298-966.

Denied.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. K-MART CORPORATION, et al.,
    No. 84-CD-1454.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Guste, William J. Jr., Atty Gen., applying for writ of certiorari, remedial writs, prohibition and mandamus, Parish of Jefferson, 24th Judicial District Court, Div. “E”, No. 289-454.

Granted. The district court has granted process “which may restrain the execution or enforcement” of an act of the legislature, and any person affected thereby may suspensively appeal the order or judgment. See La.R.S. 13:4431. Accordingly, the district court is ordered to grant relators’ motion for a suspensive appeal pursuant to La.R.S. 13:4431. See Womack v. Louisiana Commission on Governmental Ethics, 250 La. 37, 193 So.2d 777 (1967).


text:
    STATE of Louisiana v. Edward DEBOUE.
    No. 84-KD-1470.
    Supreme Court of Louisiana.
    Aug. 2, 1984.
   In re Deboue, Edward, applying for writ of certiorari, writ of review, stay, prohibition, mandamus, Parish of Orleans, Criminal District Court, Div. “F”, No. 301-828.

Denied.


text:
    James PARSONS v. Denise Remillard PARSONS.
    No. 84-CK-1487.
    Supreme Court of Louisiana.
    Aug. 6, 1984.
   In re Parsons, James, applying for writ of certiorari, writ of review, Family Court, East Baton Rouge, Div. “C”, No. 57458; to the Court of Appeal, First Circuit, No. CW-0874.

Denied.


text:
    Gay Ann Hall, Wife of Thorn B. HIMEL, Jr. v. Thorn B. HIMEL, Jr.
    No. 84-CC-1504.
    Supreme Court of Louisiana.
    Aug. 9, 1984.
   In re Himel, Thorn B. Jr., applying for writ of review, stay, and supervisory writs, Parish of Jefferson, 24th Judicial District Court, Div. “E”, No. 246-419; to the Court of Appeal, Fifth Circuit, No. 84-C-411.

Denied.


text:
    STATE of Louisiana v. Lawrence CHANEY.
    No. 84-KK-1346.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
   In re Criminal Sheriff Charles C. Foti, Jr., applying for reconsideration of writ granted with Order on July 30, 1984.

Rehearing denied.


author: COLE, Judge.

text:
    Roy GIROIR, Individually and as Administrator of the Estate of Earline Giroir, et al. v. SOUTH LOUISIANA MEDICAL CENTER, et al.
    No. 83 CA 0773.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.
    Writs Granted Oct. 12, 1984.

      Michael J. Samanie, Houma, for plaintiffs and appellees.
    Dale C. Martin, Lippman, Mahfouz, Martin, Larocca & Stansburg, Morgan City, for defendants and appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The main issue in this case is whether or not a suit filed timely by one plaintiff in wrongful death and survival actions interrupts prescription as to other plaintiffs asserting similar but distinct claims arising out of the same factual circumstances.

FACTS

Mrs. Earline Giroir, age 54, began experiencing abdominal pain, nausea and vomiting in the early part of 1979. She sought treatment at South Louisiana Medical Center (SLMC) in Houma, Louisiana, in March of that year. From March to October she visited the clinic approximately 14 times, both as an inpatient and as an outpatient. A series of tests (upper GI series, x-rays, gall bladder tests, arteriogram and others) was performed, but none suggested the cause of her problems. At one point one of her physicians, Dr. Kieran Key, suggested her illness might be “functional” in nature, i.e., caused by mental or emotional problems.

Mrs. Giroir continued to suffer from abdominal pain, nausea, and vomiting, and in August of 1979 complained of an additional malady: severe diarrhea. She visited SLMC three or four more times during the period from October 1979 to February 1980, when a gall bladder test done in February indicated a possible problem. She underwent gall bladder surgery that month but the pathology report indicated no serious gall bladder abnormalities. She was discharged from SLMC on March 2, 1980 but was readmitted two days later due to continuous pain, nausea and diarrhea. Her condition worsened steadily and on March 13 she went into shock. Emergency surgery was performed and her condition was at last diagnosed as arterial thrombosis of the superior mesenteric artery. (In laymen’s terms this means a blood clot of the artery found in the peritoneal fold attaching the small intestine to the dorsal body wall.) This condition had caused the “death” of her small intestines and a portion of her large intestines. A by-pass surgery was performed at that time and she underwent two “second look” operations within the next few days. Mrs. Giroir died on March 20, 1980.

PROCEDURE

The decedent’s husband, Roy Giroir, filed suit on March 13, 1981 against Drs. David Makey, E. Helm, and I. Bankston, as well as SLMC (through the State of Louisiana, Louisiana Health and Human Resources Administration). Mr. Giroir, as administrator of Earline Giroir’s estate, sought damages for Mrs. Giroir’s pain and suffering (i.e., the survival action), and, as an individual, sought damages for his own losses caused by her death (i.e., the wrongful death action). On March 23,1981, one year and three days after the death of his wife, Mr. Giroir supplemented and amended his petition by adding as plaintiffs his two major children, Rickey Giroir and Lark Gir-oir Pitre. He also changed his capacity as regards the survival action so that he appeared therein as an individual, rather than as the administrator of his wife’s estate. All three plaintiffs reiterated the claims for the survival action and the wrongful death action. By a second supplemental and amending petition the plaintiffs alleged Mrs. Giroir had been treated also by Drs. Kieran Key, Loc Nguyen, and John Dam-peer, employees of SLMC, and that SLMC was responsible for their actions.

Defendants filed the peremptory exception urging the objection of prescription, alleging the claims of the children had prescribed because their suit was not filed within one year from the date of Mrs. Giroir’s death. A hearing was held on the matter and the trial court overruled the exception. Later, during trial on the merits, the defendants filed a similar objection, urging the survival claims were subject to peremption rather than prescription. These objections, discussed in the trial court’s reasons for judgment, were also overruled.

After a lengthy trial on the merits the court concluded plaintiffs had failed to prove any negligence on the part of Drs. Helm, Bankston, Dampeer or Makey. The court found Dr. Nguyen, the radiologist, negligent in failing to perform a “lateral view” and a “selective catherization” during an aortogram, which is a test involving x-rays taken after dye has been injected into the aorta. The court concluded Mrs. Giroir’s problem would have been timely diagnosed had this test been performed properly. Since Dr. Nguyen was not named as an individual defendant, the court did not render judgment against him personally, but only against SLMC as his employer. The court stated that because it found SLMC liable, it need not reach the issue of Dr. Key’s negligence. (Dr. Key, like Dr. Nyugen, was not named individually as a defendant so that if he was found negligent, only SLMC would be liable.)

The court awarded Roy Giroir, as administrator of the estate of Earline Giroir, the sum of $250,000 for her pain and suffering. It further awarded Mr. Giroir, individually, $100,000 on the wrongful death claim. Each of the two other plaintiffs, Rickey Giroir and Lark Giroir Pitre, received $50,-000 on the wrongful death claim. SLMC filed a devolutive appeal.

ISSUES ON APPEAL

SLMC assigns several errors of the trial court. We will deal first with those errors which concern prescription and peremption.

For matters of clarity, we point out that we are dealing here with four separate aspects of the trial court judgment: (1) Mr. Giroir’s wrongful death claim; (2) Mr. Gir-oir’s survival claim; (3) the children’s wrongful death claim; and (4) the children’s survival claim. There is no dispute concerning Mr. Giroir’s wrongful death claim. The other three claims involve issues of prescription and peremption.

Before addressing the individual claims, we note there has been much confusion in the jurisprudence as to the length of the prescriptive period for wrongful death and survival actions, as well as some dispute over whether the time periods are prescriptive or peremptive.

These matters were addressed in Guidry v. Theriot, 377 So.2d 319 (La.1979). There the Supreme Court held the survival action and the wrongful death action were separate and distinct causes of action. Concerning the length of time in which a claimant must file suit, the court stated that in cases where the decedent has not instituted a tort claim on his own behalf, the beneficiaries or heirs must file the survival action within one year of the decedent’s death. Likewise, the wrongful death action (regardless of whether or not the decedent had filed a tort suit) must also be instituted within one year of the death.

As to whether the time period is prescriptive or peremptive, the Guidry court, citing Pounds v. Schori, 377 So.2d 1195 (La.1979), rehearing denied 1980, stated that there were several indications as to whether a statute was peremptive or prescriptive. One major indication of it being peremptive was when the statute creating the cause of action also provided a time period in which the action must be asserted. The court then discussed Civil Code art. 2315 and concluded that the article provided a one year time period specifically for the survival action but not for the wrongful death action. It concluded the wrongful death action was governed by the general tort time period (which was also one year) as provided in Civil Code art. 3536 (now art. 3492) and as such was considered to be prescriptive as opposed to peremptive. Without expressly so stating, the court indicated the survival action was subject to peremption. The issue was presented to this court in McClendon v. State, Through Dept. of Corrections, 357 So.2d 1218 (La.App. 1st Cir.1978) wherein we held directly that the survival action was subject to per-emption.

The distinction between prescription and peremption is both theoretical and practical. On the theoretical side, prescription is said to merely bar the remedy sought and prevent the litigant access to the courts to exercise their existing rights. A peremptive statute totally obliterates the right sought to be enforced so that once the time period prescribes, the cause of action no longer exists. Pounds v. Schori, supra. On the practical side, the difference is that in contrast to prescription, peremption is not subject to suspension or interruption. Flowers, Inc. v. Rausch, 364 So.2d 928 (La.1978); Pounds, supra.

THE SURVIVAL ACTIONS

We will first consider the survival claims made by Rickey Giroir and Lark Giroir Pitre. Before addressing appellant’s arguments concerning the peremption of these actions, we note a procedural quirk which has caused some confusion. Although all three plaintiffs sought to recover damages for Mrs. Giroir’s pain and suffering, the trial court erroneously stated in written reasons that only Mr. Giroir had filed such a claim. Accordingly, the court did not address the issue of peremption or prescription of the children’s claims; it simply rendered judgment on the survival action in favor of Mr. Giroir alone. Plaintiffs apparently did not notice this error and did not appeal the judgment nor file an answer to the appeal, as they must under La.Code Civ.P. art. 2133 in order to have the judgment modified. Therefore, under normal circumstances Rickey Giroir and Lark Gir-oir Pitre would not be entitled to have this issue considered or to have the judgment modified so as to include them in the survival action. Merely raising such an issue in brief is not sufficient. See Kel-Kan Inv. Corp. v. Village of Greenwood, 418 So.2d 669 (La.App. 2d Cir.1982), reversed on other grounds 428 So.2d 401 (La.1983) rehearing denied 1983; Lake LaFleur v. Evangeline Parish Police Jury, 347 So.2d 875 (La.App. 3d Cir.1977).

However, in this case this issue is in fact before the court in that it was raised by appellant. Appellant argues the court erred in failing to apportion the award on the survival action between the three plaintiffs. However, appellant’s motive for raising this issue was not simply to rectify the trial court’s oversight or to assure recovery by the children. Appellant contends that since the children’s survival claims were not filed timely, Roy Giroir’s award should be reduced by two-thirds, the amount that would have gone to the children had their claims not lapsed.

Before addressing the apportionment issue we must first determine if the children’s claims were filed timely. As discussed above, Civil Code art. 2315 provides specifically that survival claims must be filed within one year of the death of the deceased. Because survival claims have been classified as being governed by a per-emptive period (McClendon, supra), and as such are not subject to interruption or suspension {Flowers, supra), the claim filed by Mr. Giroir did not affect the claims filed by the children. As such, the children’s claims were not filed timely.

As to the apportionment and reduction of the award, we disagree. Appellant would have us make the award, proportion it among all three plaintiffs, conclude that the children’s claims have perempted, and then reduce the award accordingly. This is a backward approach. The issue to be reached first is whether or not the children’s claims were filed timely. Since we have determined that they were not, we cannot include the children in the judgment. Since their claims were not timely filed, they are simply not before the court in this matter. That leaves only one plaintiff, Mr. Giroir, who is entitled to recover whatever sums his wife would have been entitled to recover for her pain and suffering. Art. 2315 reads in pertinent part as follows:

“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; ...” (Emphasis added.)

This indicates to us that the survival action can be claimed by the spouse and children together, or by the spouse alone or the children alone.

We agree that when several parties are before the court and are entitled to recover in a survival action, the amount of the award should be apportioned equally among them. See Davis v. Owen, 368 So.2d 1052 (La.1979). However, we know of no authority which states that when only one of the potential claimants is before the court that his award must be reduced proportionately by the amount that could have been claimed by other parties. Under appellant’s reasoning, if the two children here had not attempted to join their father in the survival action, we would still be required to reduce the amount awarded to Mr. Gir-oir by two-thirds. This result would be illogical and impractical. We find no substantive error in the trial court’s granting the entire amount to Mr. Giroir.

Plaintiffs contend that because of La.R.S. 9:5628 and because of the doctrine of “contra non valentem,” the one year time period did not begin running at Mrs. Giroir’s death but began at some later point when they became aware that her death was caused by someone’s negligent act. “Contra non valentem agere nulla currit praescriptio” is a doctrine which means no prescription runs against a person who is unable to bring an action. La. R.S. 9:5628 provides (in part) that claims against physicians and hospitals be filed within one year of the negligent act or within one year from the date of discovery of such act. Plaintiffs allege that they did not learn of the negligent act until some time after Mrs. Giroir’s death and that the burden is on the defendant to prove exactly when this knowledge was acquired.

This argument has no merit. The general rule is that when it appears from the face of the pleadings (as it does in this case) that a claim is not filed timely, the burden is on the plaintiff to show an interruption or suspension of prescription. See Finch v. Lake, 396 So.2d 391 (La.App. 1st Cir.1981); Cordova v. Hartford Acc. & Indem. Co., 378 So.2d 1088 (La.App. 3d Cir.1979), reversed on other grounds, 387 So.2d 574 (La.1980), rehearing denied 1980. Although we are dealing here with peremption rather than prescription, we conclude the same reasoning applies, i.e., plaintiffs must show at what point they learned of the negligent act in order to prove that the peremptive period began running at some point other than at Mrs. Giroir’s death. There is no such evidence in the record.

Further, it has been held that La.R.S. 9:5628, which makes no specific provisions for wrongful death or survival actions, is a general statute. As such, it conflicts with art. 2315, which is a special statute providing a one year time period for survival actions. See Lambert v. Michel, 364 So.2d 248 (La.App. 3d Cir.1978), writ denied, 366 So.2d 917 (La.1979). The general rule is that in cases of conflict the special statute prevails, therefore the survival action is not governed by the time period provided in La.R.S. 9:5628, but by that provided in art. 2315.

THE WRONGFUL DEATH CLAIMS'

We will next consider the wrongful death claims filed by the children. The trial court overruled the objections of prescription, stating that the amended petition “related back” to the date of the original petition, as provided by La.Code Civ.P. art. 1153. The trial court relied on Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979), rehearing denied 1979, and Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973), rehearing denied 1973.

The facts of Allstate are essential to understanding its holding. An employee, Moore, was injured on the job and was receiving workmen’s compensation from Allstate. Moore’s injuries were aggravated when his car was struck by Theriot’s car. Allstate timely sued Theriot, to recover compensation benefits and medical payments paid on behalf of Moore. Allstate argued Theriot’s negligence had caused Allstate to pay additional workmen’s compensation benefits because of the aggravated injuries. Several months after the prescriptive period ran, Moore intervened for his own damages, pursuant to La.R.S. 23:1102. Allstate’s claim was later dismissed on a no right or no cause of action objection. The issue facing the Supreme Court was whether or not the timely petition by Allstate interrupted prescription for the intervenor.

The court noted prescription was interrupted when suits were filed pursuant to La.R.S. 23:1101-1103 because' only one principal cause of action was being asserted. The court concluded that even though Allstate had in fact failed to state a cause of action in the initial suit, Allstate’s petition had interrupted prescription as to Moore. In analyzing the situation the court set forth the following test, p. 954:

“It is true that, if (as in this case) the subsequent claimant is a different person than the original plaintiff, then to interrupt prescription the first suit must not only be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention; the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff.” (Citations omitted.)

The court then cited several cases, including Nini, supra, wherein it had been held that the plaintiff in the first suit was closely connected to the plaintiff in the second suit so that the filing of the first suit interrupted prescription for the second claimant. The court noted that in each cited case, as in the one before it, the suit by the first plaintiff had given the defendant adequate notice of the possibility of subsequent claims based on the same cause of action.

The facts of Allstate and the cases cited therein are significantly different from the facts of the present case. As discussed above, the first plaintiff in Allstate was the employer’s insurer, the second was an insured employee. In Nini, the first plaintiff was a man who (unbeknownst to his attorney) had died prior to the time his workmen’s compensation suit was filed on his behalf; the second plaintiff was his surviving wife who substituted herself as plaintiff. Other cases have reached the same result and involved a subrogor and a subro-gee suing to recover for property damage [Allstate Ins. Co. v. Louisiana Gas Serv. Co., 344 So.2d 386 (La.App. 4th Cir.1977), affirmed at 354 So.2d 503 (La.1978)] and an employer’s insurer and an employee suing a third party tortfeasor [National Surety Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965), rehearing denied 1965.]

In each of these cases the late-coming plaintiff was suing on a cause of action which had already been asserted by the initial plaintiff and was not asserting an additional or different cause of action of their own. This is not true in the present case. Roy Giroir’s wrongful death claim against SLMC is a separate and distinct cause of action from the wrongful death claims of the children. Although the injuries arose from the same factual circumstances, the cause of action asserted by Mr. Giroir for the loss of his wife is totally separate from that asserted by the decedent’s chidren for the loss of their mother. This divergence of causes of action is made more evident by the resultant quantum evaluations which are dependent upon many varying factors.

It is conceded the children in this case are “closely connected in relationship and identity of interest with the original plaintiff,” as set forth in the test in Allstate v. Theriot. However, we conclude this test is appropriate only when (as in Allstate and the cases cited therein) the late-filing plaintiff is asserting the same cause of action as the original plaintiff. If we were to apply the Allstate rationale to the present case we would be stating that any time a tort occurred, suit by one plaintiff would interrupt prescription as to all other plaintiffs closely connected to the original one, regardless of the number and diversity of the causes of action presented.

In his dissent in Allstate v. Theriot, Justice Blanche expressed serious doubt about the practical effects of the decision. He stated as follows, p. 955:

“This writer would be hard pressed to create a hypothet where there would be multiple victims of a single tortious act by a tortfeasor where the ruling by the Court today would not require us to hold that suit by one tort claimant would interrupt prescription in favor of all potential claimants. * * * In this writer’s opinion, this case sets a precedent which practically destroys the social interest which prescriptive laws seek to protect.”

It was stated in the above case that the basic purpose of prescription statutes is to give a defendant “security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or non-preservation of relevant proof.” Although there is no question of loss of relevant proof in the present case, it is obvious that the defendant’s “security of mind” was affected by the filing of two additional lawsuits after the one year period had run. One need only imagine even more devastating results under other factual circumstances. In a case similar to the one at hand, what if Mr. and Mrs. Giroir had ten children who each joined late as plaintiffs? What if instead of joining the suit three days after the prescriptive period had run, they had joined three years later? At what point is a defendant in such a situation entitled to assume he is subject to no further lawsuits and will suffer no additional liability? What is the purpose of the prescriptive statutes if not to protect a defendant from this anxiety?

Facts similar to those of Allstate v. Theriot, were presented in Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983). This case, being heard by the United States Court of Appeals, Fifth Circuit, involved a workmen’s compensation insurer who timely filed suit against a third party tort-feasor, alleged to be responsible for work-related injuries of certain employees. Several years after the injuries occurred two employees filed suit against the same defendants. The Fifth Circuit, assuming the insurer’s suit had interrupted prescription as to the employee’s claims, certified the following question to the Louisiana Supreme Court: Whether the prescriptive period began running anew as of the date of the insurer’s suit or whether it remained suspended during the pendency of the matter. In answering this question the Supreme Court discussed the reasons for allowing the first suit to affect the second suit and stated that in cases involving compensation insurers, employees and third party tortfeasors, only one cause of action was involved. The court then noted that when the suit by a second party stated a different cause of action, even though each cause arose from the same facts, the first suit does not interrupt prescription as to the second one. We thoroughly agree.

The jurisprudence reveals several other cases which recognize the necessity of the late-filing plaintiff suing on the same cause of action as the original plaintiff. In Moraus v. State, Through Dept. of Transp., 396 So.2d 596 (La.App. 3d Cir.1981), several people were involved in a two-car automobile accident. One party filed suit against the state and the state filed several incidental demands. A guest passenger (Lacy) intervened more than one year from the date of the accident. The trial court had relied upon Allstate v. Theriot, supra, and held that Lacy’s suit had not prescribed. The Third Circuit reversed on this issue, noting that in Allstate and the cases cited therein, the suits filed involved closely connected plaintiffs and only one cause of action: In Moraus, as in the present case, separate and distinct causes of action existed, although they arose from the same set of facts.

In Ellenburg v. Commercial Union Ins. Co., 434 So.2d 1216 (La.App. 1st Cir.1983), a two-car collision occurred and the driver of one. car sued the other. The defendant filed a reconventional demand and more than one year after the accident the parent of a minor guest passenger in plaintiff’s car filed an intervention on the minor’s behalf. Intervenor claimed the original suit or the reconventional demand had interrupted prescription on intervenor’s behalf. This court analyzed the situation as follows, p. 1218:

“We reject intervenor’s argument that as long as the facts and circumstances surrounding the accident are the same that suit by one party interrupts prescription as to all possible claims of various claimants regardless as to relationship or absence of identity of interest. The original petition related only to El-lenburg’s cause of action, ‘the cause of action therein sued upon’ [] and not to the minor child’s cause of action and particular damages. One accident, event, or factual occurrence may give rise to many causes of actions on the part of various claimants. Cf. Cullivan v. State Farm Mutual Ins. Co., 428 So.2d 1231 (La.App. 3rd Cir.1983). The cases cited in Allstate, supra, in which late claims were allowed are distinguishable, because, in each, the late-filer was suing upon a particular claim of a particular individual already presented in whole or in part.” (Emphasis added.)

The facts of Moraus and Ellen-burg are analogous to those in the present case. The plaintiffs in the cited cases sustained injuries from the same incident: an automobile accident. The plaintiffs in the present case were injured by the same occurrence: the wrongful death of Mrs. Gir-oir. However, just as the plaintiffs in the cited cases were found to have been suing on separate causes of action for their own separate and distinct damages, the plaintiffs in this case are doing so also. The fact that the plaintiffs in the present case are closely connected in relationship and identity of interest is not sufficient to allow suit by one to interrupt prescription for the other because their causes of action are entirely separate. See also Brown & Root v. Missouri Pac. R. Co., 381 So.2d 1255 (La.App. 4th Cir.1980), writ denied 385 So.2d 794 (La.1980). For these reasons, we conclude the wrongful death claims of Rickey Giroir and Lark Giroir Pitre have prescribed.

Plaintiffs contend a recent Supreme Court decision supports their contention that Mr. Giroir’s suit interrupted prescription for the claims of the children. In Gunter v. Plauche, 439 So.2d 437 (La.1983), a plaintiff timely filed suit against a doctor based on a negligence theory. More than one year after filing the original suit, the plaintiff amended and supplemented his petition to assert a “lack of informed consent” cause of action. The issue before the Supreme Court was whether the second action had prescribed. The trial court and this court had both concluded prescription had not been interrupted for the second claim, because the first suit and the second suit asserted different causes of action. The Supreme Court reversed, holding that although separate from the first, the second cause of action “related back” to the first petition, because both causes of action arose out of the same facts. These facts were pled in the original petition; therefore, defendant was given notice of litigation arising from that general factual situation.

The facts of Gunter are distinguishable from those in the present case. Although at first glance the court’s language concerning the causes of action would seem to support plaintiffs’ position in this case, it must be noted the Gunter case did not involve a second plaintiff joining the suit. Its holding must be limited to cases wherein suit is filed timely by one individual who later asserts a new cause of action (based on the facts alleged in the original petition) against the same defendant. The holding of Gunter, when considered in light of the facts of that case, simply does not support plaintiffs’ position in the present case.

Plaintiffs contend that regardless of our determination as to whether Roy Giroir’s petition interrupted prescription for his two children, the prescription running against them was suspended in another way. They allege prescription was suspended when all three plaintiffs filed a claim with the medical review panel, pursuant to La.R.S. 40:1299.47, on March 16, 1981.

We reject this argument for two reasons. One, there is no evidence in the record that such a claim was filed. A pretrial memorandum refers to the claim and states it is attached as an exhibit, but no exhibit is found in the record. At trial the parties stipulated that none of the defendants had qualified under the Medical Malpractice Act but again, this is not direct evidence as to when, if and by whom a formal claim was filed.

Two, even if we were to determine the claim had in fact been filed we would still conclude the filing of the claim did not suspend prescription in this case. At the time the claim was allegedly filed, the pertinent statute, La.R.S. 40:1299.47(A), provided that the filing of a request for review would suspend prescription until ninety days following the issuance of the opinion by the medical review panel. However, La.R.S. 40:1299.41(D) (also now amended) addressed the question of what effect the filing of a request had upon a health care provider who was not “qualified” under the Act. That statute read as follows:

“A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient’s remedy will not be affected by the terms and provisions of this Part.”

In interpreting these statutes, the Supreme Court has held that when a plaintiff files a claim under this act and the potential defendant is not covered by the act, the time period is not suspended. Ferguson v. Lankford, 374 So.2d 1205 (La.1979). See also, Dupont v. Doctor’s Hospital, 369 So.2d 1092 (La.App. 1st Cir.1979), writs denied, 371 So.2d 834 (La.1979).

We now reach the final aspect of the prescription and peremption issues: Mr. Giroir’s survival claim. SLMC contends that because this claim was initially filed by Mr. Giroir in his capacity as the administrator of his wife’s succession, and was later amended to be in his individual capacity after the prescriptive period ran, that the claim has prescribed. We reject this argument.

Similar facts were presented in Meadoux v. Hall, 369 So.2d 240 (La.App. 4th Cir. 1979), writ denied, 369 So.2d 1366 (La.1979). There, parents filed a wrongful death claim as administrators of their son’s estate and later (after the prescriptive period ran) amended to sue in their individual capacities. The court concluded that under La.Code Civ.P. art. 1153, the amendment related back to the original filing of the petition. The court depicted the wrongful death action as having a peremptive period which is usually not capable of suspension or interruption, but noted that an exception is made when the amendment involves the same party filing in a different capacity. The court’s holding insofar as it classified the wrongful death claim as being governed by a peremptive period is no longer valid in light of Guidry, supra, but the court’s reasoning concerning the effect of the amended petition is sound and is applicable here.

We reach the same conclusion as the Meadoux court. We have here a plaintiff, in a certain capacity, asserting a certain cause of action. The amended petition is by the same plaintiff, appearing in a different capacity, asserting the identical cause of action as in the original petition. Because of the “close connexity” between the plaintiffs, the adequate notice to the defendant, and the single cause of action, we conclude the first suit interrupted prescription as to the second suit. See Allstate v. Theriot, supra.

QUANTUM

Appellant argues the amount of the judgment awarded to Mr. Giroir for his late wife’s pain and suffering was an abuse of discretion and should be reduced. Although we consider the award of $250,000 to be somewhat generous, we do not find it to be so excessive as to justify the substitution of our judgment for that of the trial court. We, therefore, will not order it reduced. The negligent act occurred in October of 1980 when Dr. Nyugen failed to properly perform certain tests. Mrs. Giroir died in March of 1981 and in the interim five months suffered much discomfort from her gradually worsening condition. During this time period she visited SLMC four times, complaining of abdominal pain, nausea, vomiting and diarrhea. Her friends and family testified that her pain was chronic and she was unable to enjoy meals or participate in everyday activities. She then underwent an apparently unnecessary gall bladder surgery and only two days after being discharged was readmitted to the hospital because her symptoms had worsened. The last 20 days of her life were particularly painful in that she remained hospitalized and underwent surgery three times in six days. Again, testimony by her friends and family, as well as nurses, indicated she suffered severely during this time. On one occasion she was transported via ambulance to Ochsner’s Clinic in New Orleans for a test during a time when she was extremely ill. She remained conscious until her death and seemed to realize she was dying. She lost 43 pounds in a period of one year. These facts indicate to us that an award of $250,000 for pain and suffering is not so excessive as to be an abuse of the trial court’s discretion.

Appellant argues further that the court erred in rendering judgment on the survival action in favor of Roy Giroir, as administrator of the estate of Earline Gir-oir. We agree that the proper plaintiff is Roy Giroir, individually, and amend the judgment accordingly.

For these reasons, the judgment of the trial court, insofar as it awarded damages to Rickey Giroir and Lark Giroir Pitre, is reversed. That portion of the judgment which awarded $250,000 to Roy Giroir, as administrator of the Estate of Earline Gir-oir, is hereby amended to be in favor of Roy Giroir, individually. The portion of the judgment which overruled, denied and dismissed the peremptory exception, as it related to Rickey Giroir and Lark Giroir Pi-tre, is also reversed. In all other respects the judgment is affirmed. Costs are to be paid by defendant SLMC in the amount of $1,543.26.

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

      . The petition also renamed defendant SLMC as "South Louisiana Medical Center, Division of Hospitals, Louisiana Health and Human Resources Administration, State of Louisiana.”

      . La.R.S. 23:1101-1102 allow the employee, his dependant, the employer or the employer’s compensation insurer to file a tort suit against any person responsible for the employee’s compen-sable injury or disease. If such a suit is filed by one of the above mentioned parties, the other party may intervene as a plaintiff in order to recover their own losses.

      . See Allstate Ins. Co. v. Theriot, 362 So.2d 1214 (La.App. 4th Cir. 1978), for a detailed explanation.

      . This quote is from La.R.S. 9:5801 (now repealed and substantively included in Civil Code art. 3462) which read in pertinent part as follows:
      "All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.”

      . The statute was later amended to provide that in cases where the health care provider was not covered under the act, the time period was suspended until 60 days after the commissioner of insurance notifies the claimant of such fact. This amendment became effective September 1, 1981, some 5½ months after this claim was allegedly filed. Such a statute is considered remedial and is usually applied retroactively to all actions instituted after it becomes effective, even though the cause of action arose under the old law [Lott v. Haley, 363 So.2d 1270 (La.App. 4th Cir.1978) ]. However, in the present case the claim was made on March 16, 1981, under the old law, and must be governed accordingly.


author: CHEHARDY, Judge.

text:
    Jean Ann Mayeaux, Wife of William J. SCHEFFLER, III v. William J. SCHEFFLER, III.
    No. 83-CA-813.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Rehearing Denied Aug. 17, 1984.

      Reed & Reed, Floyd J. Reed, New Orleans, for plaintiff-appellant.
    Grant & Barrow, Jack A. Grant, Gretna, for defendant-appellant.
    Before BOUTALL, and CHEHARDY, JJ., and CLEVELAND J. MARCEL, Sr., J. Pro Tem.
   CHEHARDY, Judge.

This is an appeal from judgments on rules to increase and decrease child support payments, to make past-due payments ex-ecutory and for attorney’s fees.

Plaintiff, Jean Ann Mayeaux Scheffler, and William J. Scheffler, III, defendant, were married in 1964. Two children were born of the marriage: a daughter, Susan Kay, on July 20, 1967, and a son, William, IV, on May 31, 1970. The parties were legally separated on April 26, 1979. That judgment awarded custody to the mother, subject to visitation privileges for the father, but it was silent as to support.

On March 27, 1980, a consent judgment was rendered awarding plaintiff $800 per month child support. The father was also ordered to pay tuition and school expenses for the children, to continue to provide hospital insurance, to pay all of their medical and dental expenses, and to keep current insurance policies on his life wherein the children were named beneficiaries. The parties were divorced on October 8, 1980 and the various provisions relating to child support were reiterated in the divorce judgment.

The mother remarried on October 18, 1980. Shortly thereafter the father filed a rule to reduce, followed by a rule to increase filed by the mother. After trial of the rules, judgment was rendered reducing the monetary award to $600 per month, while maintaining all of the other support provisions of the previous judgment.

On June 10, 1981 the father again brought a rule to reduce, alleging a change in circumstances. The mother then filed a rule to increase, and at a later date filed a rule for contempt to make past-due payments executory and for attorney’s fees and costs.

Judgment was rendered on these issues on June 30, 1982, dismissing plaintiff’s rules for an increase and contempt, and making executory the sum of $308.49 past-due child support in favor of plaintiff. Defendant’s rule for a decrease was dismissed. The judgment was silent as to the request for attorney’s fees.

Defendant moved for a new trial, which was denied, and on February 18, 1983 the court rendered judgment dismissing plaintiff’s rule for attorney’s fees “for the reasons assigned in the Court’s Reasons for Judgment of June 30, 1982.”

Plaintiff has appealed from both judgments and defendant has appealed only from the earlier judgment refusing to grant him a new trial.

At the outset we note that denial of a motion for a new trial is not an appeala-ble judgment absent a showing of irreparable injury. LSA-C.C.P. art. 2083; Tregre v. Tregre, 444 So.2d 675 (La.App. 5th Cir. 1984); Taylor v. Taylor, 380 So.2d 176 (La.App. 1st Cir.1979). We find that no showing of irreparable injury has been made.

Assuming appellant also wished to appeal the merits of the judgment on the rule we will review the record in that respect. See Tregre v. Tregre, supra.

The issues for our determination are whether or not an increase or a decrease in the award for child support is warranted, whether plaintiff is entitled to the award of $308.49 for past-due child support, and whether she is entitled to an award for attorney’s fees.

In order for a court to increase or decrease a judgment for support the party seeking the increase or decrease must show a substantial change in the circumstances of either party, or both, from time of the previous judgment. Ducote v. Ducote, 339 So.2d 835 (La.1976); Manuel v. Manuel, 443 So.2d 729 (La.App. 4th Cir. 1983); Mancuso v. Mancuso, 352 So.2d 359 (La.App. 4th Cir.1977).

Both parties have remarried and a partial settlement of the community has been concluded whereby each one received substantial cash assets. A change of circumstances has thus been shown.

In support of her rule to increase the wife claims she needs $3,115 per month for the support of the two children. We note that these expenses do not include the private school tuition, medical and dental bills and insurance and school supplies contemplated by the judgment.

She itemizes the monthly expenses as follows:

House note $ 550.00
Groceries 600.00
Utilities 150.00
Phone 25.00
Insurance 60.00
Car operation and maintenance 150.00
Haircuts 30.00
Cleaning 20.00
Contributions 10.00
Clothing $ 350.00
Dancing, music and art lessons 90.00
Cosmetics, cigarettes and hairdresser 20.00
Newspapers and periodicals 5.00
Legal fees 500.00
Linens 20.00
Kitchen utensils 20.00
Recreation 200.00
Children’s allowance 35.00
Gifts for self and children to others 80.00
Vacation for self and children 200.00
Total $3,115.00

It is clear from plaintiff’s testimony that these expenses are for a family of four. They do not accurately reflect only expenses relating to the two children. She has also testified that her present husband gives her $1,100 per month for household expenses.

Although the father was ordered to pay $600 per month to plaintiff for child support, in addition thereto he also expended $5,400 for their education; $1,785 for medical expenses; $1,649 for insurance; miscellaneous expenses of $385 and country club charges of $300 for the children, for a total of $16,749 for the year, in conformity with the orders of the child support judgment.

Defendant’s income in 1981 was $28,129. He paid $16,749 for his children’s expenses, leaving a balance of $11,380 for his own expenses. In addition thereto he sold his law practice for $65,000 and a piece of immovable property for $35,000.

However it is clear defendant owed substantial sums which he described in detail, so that after paying off bank loans, sums due the Internal Revenue Service and making a down payment of $29,751 on a home for himself and his new wife, he had very little left from the two sales.

Defendant projected his gross income in 1982 to be $44,361 before taxes. This will be substantially reduced by the following expenses:

1982
Federal and state taxes on profit
from sale of practice and office, and
other income $10,000.00
Reduction of outstanding notes 4,750.00
Taxes and insurance on house 1,200.00
Household contribution 6,000.00
House note ($1,000.00) per month $12,000.00
Clothes and laundry 900.00
Entertainment 1,800.00
Total $36,650.00
RECAPITULATION
Income $44,361.00
Expenses 36,650.00
Balance $ 7,711.00

Plaintiff contends defendant either failed to disclose substantial income and concealed it or misrepresented his business expenses, because his lifestyle far exceeds his stated income in that he has an American Express card, country club, carnival organization and sporting club memberships; he plays golf, hunts, goes fishing, owns two boats, several guns, expensive hunting and fishing equipment, and has taken numerous vacations.

We find no merit in these contentions. We note that plaintiff has remarried a successful engineer and has a lifestyle which also includes numerous vacations.

We do not find that the father’s lifestyle exceeds that which he provides for his two children. The substantial sums defendant pays to provide them with quality education, and other expenses called for by the judgment, coupled with the money judgment are commensurate with his ability to pay, but not so low that the trial court has abused its discretion in failing to grant the wife an increase. Nor does the record reflect that their needs are such that an increase is warranted.

Relative to the rule to decrease, plaintiff received $83,000 in cash when the community was partially settled. She invested this in certificates of deposit, which provided her with approximately $7,000 interest from June to December. If reinvested the following year for an entire 12 months the interest should be considerably higher. Thus, defendant contends, plaintiff can also contribute something to the support of her children.

Under the provisions of LSA-C.C. arts. 227, 230 and 231, the obligation to support, maintain and educate minor children is contracted by the parents by the very act of marrying. The obligation is mutual and the degree of support is determined by the needs of the children as well as the circumstances of those who are obliged to pay. Stepp v. Stepp, 442 So.2d 1327 (La.App. 3d Cir.1983); Martin v. Brasseaux, 422 So.2d 548 (La.App. 3d Cir. 1982); Guinn v. Guinn, 405 So.2d 620 (La.App. 3d Cir. 1981).

Plaintiff claims although she has $83,000 in capital she is not obligated to deplete her assets. Sonfield v. Deluca, 385 So.2d 232 (La.1980); Loyacano v. Loyacano, 375 So.2d 1314 (La.1979); Wilhite v. Wilhite, 408 So.2d 973 (La.App.2d Cir.1982).

It is her position that the day-to-day responsibility for the care of the children, their guidance and supervision, including the preparation of meals, washing, ironing, mending clothes and transporting the children to various activities constitutes her contribution to the mutual obligation of support. Ducote v. Ducote, 339 So.2d 835 (La.1976); Lewis v. Lewis, 382 So.2d 978 (La.App. 1st Cir.1980); Gaidry v. Gaidry, 380 So.2d 644 (La.App. 1st Cir.1979).

The trial judge has great discretion in determining the respective ability of each parent to pay. Parents do share the duty of supporting their children, and some part of the duty of the custodial parent is met by the day-to-day care of the children. Stepp v. Stepp, supra; Ducote v. Ducote, supra.

Defendant has suggested a fair and equitable solution would be to modify the judgment by making the mother responsible for tuition and school expenses. Defendant has also requested us to define “school expenses.”

The father is in a better financial position to pay tuition and school expenses; however, we find a need to define school expenses to eliminate the problems which have arisen as to what items properly constitute school expenses. After careful consideration we have decided to define school expenses as those expenses which are charged by the school or charged for school-sponsored activities.

The award for past-due child support concerned only school expenses. The father was current in all other areas of the judgment. Numerous bills were forwarded to him ranging from hundreds of dollars to 31 cents from a local drug store.

Defendant claims he had not seen many of the bills, a number of them were unauthenticated, and there was a question as to what actually constituted school expenses.

While not approving all of the amount claimed, the trial court awarded plaintiff $308.49. However, he did not award attorney’s fees or find defendant in contempt “because of the vagueness of the term ‘school expenses’, and because the lack of communication between the parties must be shared, in varying degrees by each.”

LSA-R.S. 9:305 permits an award of attorney’s fees to the prevailing party, except for good cause. Micheu v. Micheu, 440 So.2d 240 (La.App. 5th Cir.1983); Trahan v. Trahan, 405 So.2d 1160 (La.App. 1st Cir.1981).

The court properly awarded plaintiff the amount of $308.49 for past-due child support, but in recognizing the vagueness of term school expenses and the lack of communication between the parties, found good cause for refusing attorney’s fees. We agree with that conclusion.

For the reasons assigned the judgments appealed from are affirmed except for an amendment to provide a definition of the term “school expenses” as set out herein.

AMENDED AND AFFIRMED.


author: GRISBAUM, Judge.

text:
    Michael FRITSCHER v. CHATEAU GOLF & COUNTRY CLUB.
    No. 83-CA-799.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Rehearing Denied Aug. 17, 1984.

      Wiedemann & Fransen, A. Remy Fran-sen, Jr., New Orleans, for plaintiff-appel-lee.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, James Ryan III, Peter S. Title, New Orleans, for defendant-appellant.
    Before CHEHARDY and GRISBAUM, JJ., and CLEVELAND J. MARCEL, Sr., J. Pro Tern.
   GRISBAUM, Judge.

This is a personal injury action resulting from a jogging accident. The jury awarded $400,000 for general damages and $430,-000 for special damages. From this judgment, the defendant appeals. We amend, and, as amended, we affirm.

Four major issues are presented:

(1) Whether the trial judge erred in refusing to charge the jury on the defense of assumption of risk?

(2) Whether the damage award is excessive?

(3) Whether the jury abused its discretion in finding plaintiff five percent negligent?

(4) Whether the trial judge erred in failing to reduce the amount of the award (by five percent) in accordance with the jury findings?

On January 28, 1981, Michael Fritscher fell into an open drain hole (while jogging at night) on the Chateau Golf & Country Club golf course which is adjacent to his home. He testified having no recollection of going home. His wife testified his face was bruised; he was dazed and incoherent. He complained to his wife of pain. Immediately following the accident he was unable to feed, dress, or bathe himself. She additionally testified he could not eat the next day and was nauseated for several days.

Dr. Courtney Leonard Russo, an orthopedic surgeon, examined him at his home immediately following the accident and then admitted him into the emergency room of a local hospital. The emergency room medical history indicated Fritscher’s face being swollen around his right eye. It also noted his complaints of his neck being very stiff and his being slightly disoriented. The report indicated he had spasms in the paravertable muscles of the neck, slight numbness around the lips, and a brush burn on his right knee. X-rays were taken of the cervical spine and skull and of his knee. The x-rays were within normal limits. Fritscher was allowed to return home that same evening.

When Fritscher’s condition did not improve, Dr. Russo recommended Fritscher see a neurosurgeon, Dr. J. Carlos Pisarello. Dr. Pisarello examined Fritscher on February 11, 1981. Fritscher at that time complained of pain in the neck and numbness of all fingers — a tingling of all fingers all the way to the wrist. He complained of a constant headache and also of tingling in his feet. Dr. Pisarello’s examination revealed a great deal of weakness and clumsiness in both hands. Fritscher had no command of any fine movement of the fingers. He had no significant abnormality of his legs but great stiffness of his neck. Any attempt at active or passive movement resulted in tightening, contractives of all the muscles in the neck.

Dr. Pisarello determined that the weakness of his hands was the result of a “central cord syndrome.” Due to this condition, Dr. Pisarello decided to admit Fritscher into the hospital for treatment. Fritscher remained in the hospital for three weeks.

After a period of extended treatment, the plaintiff filed suit on December 3, 1981 against Chateau Golf & Country Club and U.S. Fire Insurance Company. After the trial on the merits, the jury found in favor of the plaintiff. Defendant U.S. Fire Insurance Company placed its policy limits in the registry of the court. Chateau Golf & Country Club appeals the judgment.

JURY INSTRUCTIONS—ASSUMPTION OF RISK

The initial issue is whether the trial court erred in refusing to charge the jury on the defense of assumption of risk. The elements of the defense of assumption of the risk are: (1) that the plaintiff had knowledge of the danger; (2) that he understood and appreciated the risk therefrom; and (3) that he voluntarily exposed himself to such risk.

The record reflects Michael Fritscher was a member of the Chateau Golf & Country Club, and under its rules and regulations, permission was extended for jogging on the grounds. In November of 1979 that permission was limited to jogging only after dark.

During cross-examination, Fritscher admitted he knew of the drain hole and the fact that the drain cover was not on it. He testified he first noticed the hole without a cover in spring 1980. He stated he also saw it in the summer of 1980, at which time he complained to the Club that the hole had no cover. He explained he and one of his neighbors spoke to one of the Club’s personnel. Either he or his neighbor told the Club that someone might kill himself if he stepped in the hole. Mrs. Fritscher also testified that Fritscher knew of the hole.

The record further reflects there was tall grass surrounding the “drain hole” during the time period preceding the accident; however, immediately preceding the accident, this grass was cut.

The following testimony given on direct examination by Fritscher is pertinent:

Q. Now, was there anything different about the hole on the night of the accident?
A. Well, it changed considerably.
Q. What happened?
A. Well, I had noticed it that night.
I—what I’m trying to say it was all manicured, cut....
Q. It’s all right to tell me what you might do, but don’t have to give the...
A. Well, you know, I don’t never—you know, the tall grass was a warning to me that there possibly could be a danger there and that morning it was gone, that night when I was jogging.
Q. All right.
A. You know, I hadn’t recognized the—I hadn’t had the hole on my mind when I got completed from my exercise that night.

In light of the above facts, we find the trial judge erred in not giving an instruction on assumption of the risk to the jury since such an instruction would have properly reflected the law. The general rule is that where an omission of a requested charge precludes the jury from reaching a verdict in accordance with law and facts, this court of appeal should render a judgment on the record before it if this record is complete.

We are called to decide whether the trial judge’s omission of the defendant’s assumption of risk charge or charges was a mistake of law which foreclosed the jury’s finding of fact on this issue. See Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Louisiana Constitution of 1974, Article V, §§ 5 and 10. Clarifying this rule, Ragas v. Argonaut Southwest Insurance Company, 388 So.2d 707, 708 (La.1980) states:

Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.
This is not to say, and Gonzales should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.

We find we can fairly find a preponderance of the evidence from this record. We conclude after careful review of all the evidence that Fritscher did not assume the risk. As a member of the Country Club, Fritscher was given permission to jog on the grounds only at night. While generally aware of the hole, Fritscher normally identified the hole’s location by the tall grass surrounding it. This grass constituted a natural barrier. The record reflects the tall grass surrounding the hole was cut prior to his run. The above-quoted testimony indicates Fritscher “may” have known that the tall grass had been cut prior to his run, but there is not sufficient evidence to indicate that he understood and appreciated the risk therefrom that evening and assumed the risk of that danger.

DAMAGES

Medical History

In reviewing this damage award, it is necessary to examine Fritscher’s medical history since the accident. Active and very physical, Fritscher, prior to the accident, had begun a construction business in which he performed many of the jobs that are normally contracted out to various subcontractors. In addition to his work activities, Fritscher jogged, lifted weights, and did various daily exercises. Since the accident, Fritscher has been unable to work in his former capacity or perform his normal activities which included his exercise routine.

Immediately following the accident, Fritscher experienced constant pain. He described pain in his neck with any movement, a tingling of all his fingers to his wrist, weakness in his hands, tingling in his feet, and constant headaches.

Several weeks after the accident, Dr. Pi-sarello diagnosed Fritscher’s condition as “central cord syndrome.” Dr. Pisarello explained the condition as a bruising of the spinal cord caused by some acute bending beyond regular movement of the head. The spinal cord can become compressed or punctured. He continued to explain:

Some blood can get out of the blood vessels and enter into the tissue of the cord. And when this takes place, the area that’s affected is the part of the cord that joins the neck to the thorax, to the chest. Literally the arms lose their relay station from the brain to the muscles and weakness of the arms, particularly the hands, takes place, whereas the legs are spared. This was the case with this gentleman when I saw him the first time around.

Due to his diagnosis of central cord syndrome, Dr. Pisarello admitted Fritscher into the hospital. While in the hospital for three weeks, Fritscher received physical therapy, a brain scan, a CAT scan, and an electroencephalogram. Fritscher’s treatment also included use of drugs to reduce the swelling of the spinal cord and to return functions to his hands.

After his discharge, Dr. Pisarello saw Fritscher again on March 18, 1981 and at that time, he stated Fritscher was neurologically intact, but he still had a residue of muscle spasm in the neck. Thereafter, on May 6, 1981 when Dr. Pisarello saw him again, he had nausea and vertigo, which the doctor did not find unusual for a person who had had a concussion of the severity of Fritscher’s. On the July 22 visit to Dr. Pisarello, Fritscher complained of headaches, frequent dizzy spells, and nausea; he also had a feeling of generalized weakness. Dr. Pisarello stated that neurologically Fritscher was normal, and the spasm of the neck was residing.

In October 1981, Dr. Pisarello found Fritscher still complained of headaches and some generalized feeling of numbness. Another CAT scan and electroencephalogram were repeated and both were normal. Dr. Pisarello warned Fritscher that any attempt to exert himself physically would cause an increase of pain in the muscles of the neck. Dr. Pisarello saw Fritscher a total of four times after his hospitalization (March 18, May 6, July 22, and October 14, 1981).

Importantly, Dr. Pisarello opined that Fritscher may improve substantially, but he did not think Fritscher would return to normal at any time. He further did not think Fritscher was capable of any sustained physical activity; however, he did think Fritscher could return to his work as a contractor. He finally concluded that Fritscher’s work activities would be limited to sedentary activities. He explained that the only things Fritscher could do occupationally or recreationally are activities in which exercise is mild to moderate and which can be interrupted frequently for rest.

Dr. Russo, Fritscher’s treating physician and his orthopedic expert at trial, initially diagnosed Fritscher as suffering from a mild concussion, a cervical sprain and strain, and an abrasion of the right knee. He prescribed Tylenol, ice packs for the neck to be alternated with heat applications as the pain and spasms subsided, and a soft cervical collar.

Dr. Russo aided Dr. Pisarello in admitting Fritscher into the hospital because Fritscher’s concussion was becoming more prominent, his headaches were more severe, and his neck pain and spasm were also more severe. While in the hospital, Fritscher received physical therapy, various types of heat applications and massage to the cervical and lumbar spine. He was also placed in immobilization with traction and a soft collar and was given sedation, muscle relaxants, and analgesics.

By mid-March 1981, according to Dr. Russo, Fritscher’s grip had improved slightly, his neck showed a very slight improvement of the range and motion, and his neck flexion extension was very limited approximately 15 or 20 degrees. Dr. Russo explained that Fritscher would reach a point of improvement then experience muscle spasm. Fritscher’s treatment remained the same — physical therapy, heat applications, muscle relaxants, and analgesics as necessary. Because his headaches continued, Dr. Russo prescribed Fiorinal Number 3 (a combined relaxant, pain pill and headache medicine), and a transcutaneous nerve stimulator.

Dr. Russo saw Fritscher every 10 to 14 days until June 1981; from June to September 1981, he saw him every three weeks. Over this seven-month period there was a very gradual improvement in his neck motion; however, his headaches continued. By June, Dr. Russo noted Fritscher became depressed and nauseated. Dr. Russo prescribed a mood elevator, Elavil. By September, his grip was almost normal, his upper extremities were fairly normal, and numbness in his finger was almost non-existent. Dr. Russo prescribed Periactin in September. During the entire seven-month period, Dr. Russo recommended Fritscher not participate at work or perform his exercises.

From September 1981 until February 1982, Fritscher visited Dr. Russo approximately every three weeks. Fritscher’s condition improved but he still had some pain and spasm at the base of the neck, spasm in the paravertebral muscles and the tra-pezius muscles, and a neck extension of 15 to 20 degrees. His headaches were still prominent in the occipital region. He also reported weakness and shaking.

Dr. Russo summarized Fritscher’s condition:

... I think that — of course we have to admit that there was a certain amount of — of degenerative changes in his neck to start with. The blow evidently was sustained to the head, secondarily to the neck, and he underwent a very serious whiplash injury; I believe he was out of — unconscious for maybe thirty to forty minutes, by history. With that amount of changes in the neck and with the amount of spasm and the neurological problems that he — that he had for this year and a half, I am fairly sure that the cervical cord was involved to a certain degree as well as the brain and the discs and nerves. The arthritis, I think, was probably aggravated and I think the cord itself took a blow for a while. Anytime the cord and the brain are involved, it takes much longer for this type of tissue to heal than the muscles and ligaments and bones and regular muscular tissue....
I think this — I think the nerve tissue itself was damaged to a certain degree, meaning the brain and the spinal cord, to a certain degree, which made it much more extensive....
... So I think that with the amount of pre-existing degenerative change in there, things were tight to start with, and when he sustained this rather severe whiplash injury, acceleration, deceleration type injury, I believe that the cord itself was probably bruised as well as the nerves that come off the side, then of course the muscles and the ligaments, and of course the brain took a blow, too.

From September 1982 through April 1983 Fritscher continued to experience muscle spasm; however, he did improve. As of April 1983, the date of Dr. Russo’s last examination of Fritscher, Dr. Russo opined that Fritscher could not return to being a “working” contractor nor would he be able to participate in vigorous activities as he had prior to the accident. However, on cross-examination, Dr. Russo admitted that Fritscher had no anatomical disability, but Dr. Russo felt Fritscher would be limited in his field as a “working” contractor.

In addition to Dr. Russo and Dr. Pisarel-lo, on June 29, 1982, Dr. Richard W. Levy, defendant’s expert in neurosurgery, examined Fritscher. Dr. Levy’s examination revealed Fritscher had a slight limitation of movement of the neck in all directions and tenderness over the lower portion of the back of the neck. In other respects, the examination was entirely normal. Dr. Levy had X-rays taken which revealed slight arthritic changes affecting the fifth and sixth cervical vertebrae which he explained were in keeping for a man of 41 years of age. He further found no abnormality on the neck X-rays.

Dr. Levy’s impression of Fritscher’s condition was that Fritscher had sustained a mild concussion and a neck injury. He opined Fritscher did not have any residual abnormality from the concussion and further explained Fritscher had no sign of spinal cord injury in the neck nor did he have any sign of nerve root injury in the neck. He concluded Fritscher did not have a neurological disability as of June 1982, which was some 18 months after the injury. Levy also concluded that the two abnormalities which were found (a slight restriction of the neck movement and tenderness over the lower portion of the neck) were not the result of a spinal cord or nerve injury.

Regarding the question of disability, Dr. Levy testified, from a neurological point of view, Fritscher could return to his normal work. He further stated Fritscher could do anything he wanted to do and not suffer an injury to his spinal cord or his nerve roots that come from the spinal cord. Levy also opined that Fritscher had the least serious of neck injuries. He diagnosed Fritscher as having sustained a neck sprain. He explained patients with neck sprains generally recover. The period of recovery, according to Dr. Levy, extends from one year to two years or in some cases only months.

On cross-examination, he indicated the bony spurs which were apparent in the X-rays he ordered were not close to any nerve structure. He stated Fritscher’s degenerative arthritic condition was minor for a man of 41 years.

During March 1981, Mr. Edwin Porche, a physiotherapist, began seeing Fritscher upon the recommendation of Dr. Russo. During the period between March 1981 through May 1983 Fritscher, under the advice of Dr. Russo, had 394 patient visits with Mr. Porche.

Initially, Mr. Porche found Fritscher had headaches, muscle tightness, blurred vision, and complaints of numbness in his right arm. Mr. Porche objectively noticed there was muscle tightness in the posterial cervical muscles and in the upper trapezius muscles and the mid-scapular muscles. He found Fritscher’s range of motion was extremely limited in forward flexion; his right-hand grip was weakened significantly and his right supraspinatus muscle had undergone atrophy (muscle wasting).

Initially, Mr. Porche prescribed at-home exercises for Fritscher, which he was to do after the first three weeks. Mr. Porche recalled the exercises aggravated Fritscher’s pain; thus, Mr. Porche suggested discontinuing these exercises. In addition, Mr. Porche related Fritscher gradually improved but with every increase in activity, his symptoms would reappear. He also noted that whenever Fritscher was tense or apprehensive, his symptoms would return.

Characterizing his treatment of Fritscher, Mr. Porche stated Fritscher’s whole treatment was an experience in “exacerbation.” Mr. Porche reported Fritscher received temporary relief from his physical therapy. Mr. Porche’s treatment includes moist heat, ultra-sound (deep heat), muscle massage, and transcutaneous electrical nerve stimulation.

Mr. Porche was asked whether Fritscher could return to his normal heavy exercise routine — extensive jogging, repeated situps, and workout with heavy weights for extended periods of time. Mr. Porche thought if he participates in normal exercise, Fritscher would have to continue physical therapy for another two years. Mr. Porche further answered he did not think Fritscher could do heavy exercise. Moreover, he thought in the future Fritscher would have trouble with anything that requires him to work his arms or lift his arms above his shoulder level; constant driving; looking up; twisting his neck; looking down; and prolonged writing. Mr. Porche expected Fritscher to be under his care for some time into the future. He testified Fritscher was, at the time of the trial, in a “chronic stage” characterized by exacerbation and remission of symptoms.

Mr. Porche finds Fritscher very mentally apprehensive; although observing that Fritscher is physically in “pretty good shape,” Mr. Porche states Fritscher’s pain in the neck area continues to date of the trial.

Pain and Suffering (Past and Future)

Louisiana Civil Code article 1934(3) provides that in assessing general damages, “much discretion must be left to the judge or jury ...” Only if the record “clearly reveals” that the trier of fact abused its discretion in making its award of damages, can we disturb an award of the trial court. Reck v. Stevens, 373 So.2d 498, 499-501 (La.1979). Only after an articulated analysis of the facts discloses an abuse of discretion, may an appellate court disturb the award as being (for articulated reasons) either excessive or insufficient. Reck, supra.

From the totality of the medical evidence, as well as the testimony of Fritscher, his wife, and his physical therapist, it appears the jury believed Fritscher is suffering from a severe neck injury. Both Dr. Russo and Dr. Pisarello opined that Fritscher had suffered an injury to his central spinal cord. Fritscher continues to report pain, and Dr. Pisarello, Dr. Russo, and Mr. Porche all indicate that activities only increase Fritscher’s pain.

Considering the dramatic change in lifestyle Fritscher has experienced as well as his two years of suffering and projections that with increased activity his pain will increase, we cannot say (although we consider this award to be very generous), the jury abused its “much discretion” in awarding $400,000 for pain and suffering (past and future).

Loss of Income (Past and Future)

A framework for addressing the issue of whether the jury abused its discretion in awarding $400,000 for loss of income (past and future) is provided in Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064, 1071 (La.App. 1st Cir.1983). Dunaway states:

In determining an injured person’s net economic loss caused by impairment of earning capacity, one of the factors to be considered is the availability of reasonable employment opportunities for which the claimant is suited by education, experience and physical capacity. Under either Louisiana doctrine of mitigation of damages [Pisciotta v. Allstate Insurance Company, 385 So.2d 1176 (La. 1979)] or the common law doctrine of avoidable consequences [Philippe v. Browning Arms Company, 395 So.2d 310 (La.1980)], an injured person has a duty to take reasonable steps to minimize his loss....

Other factors which may be considered in fixing awards of impairment of earning capacity are age, life expectancy, work life expectancy, investment income factor, productivity increase, prospects for rehabilitation, probable future earning capacity, loss of futdre earning capacity, loss of earning ability, and the inflation factor.

To prove loss of income (past and future) plaintiff presented as an expert in accounting, Robert Laport, a certified public accountant. Mr. Laport had represented Fritscher since 1973. As his basis for calculating economic loss, Mr. Laport utilized a term called “economic benefit” (which he also called “economic value” or “actual income”). He derived the amounts for “economic benefit” for the year in question by calculating such things as capital gains, supervisory fees which were actually not recovered in the year that he reported, and property owned by Fritscher. What Mr. Laport termed “economic benefit” differed dramatically from Fritscher’s adjusted gross income shown on his federal income tax returns. To best illustrate the differences in figures a chart is informative:

YEAR ADJUSTED GROSS INCOME ECONOMIC BENEFIT
1976 $16,306 $31,335
1977 $20,941 $23,786
1978 $16,824 $96,683
1979 $29,546 $323,000

Mr. Laport indicated that the average income for Fritscher for the years 1978-1980 was $100,000 per year. He also calculated for the years 1977-1979 the average economic benefit to be $105,000 per year.

On cross-examination Fritscher admitted his home in Folsom, which was included in the calculation of economic benefit for 1978, had in fact never been sold. His supervision fee of $12,000 which was also included in the $96,683 economic benefit value given for the year 1978 was reported in a latter year. The economic benefit in 1979 also included the value of Fritscher’s home which he constructed himself; however, this home has not yet been sold.

Also a part of his calculations was lost profits from a planned construction project in Dillion, Colorado. Mr. Laport estimated the net profits from this proposed construction project in Dillion would be $198,000. There was much testimony in the record concerning this Dillion project which was initiated in January of 1981; however, according to Fritscher, due to his injury in early 1981, the project was aborted. To accomplish the Dillion construction project, Fritscher had flown to Dillion, Colorado, met with a real estate agent, and had a buy-sell agreement drawn up by the real estate agent. Fritscher planned to buy the Dillion property and construct on it. These would have been constructed as condominiums. Fritscher returned to New Orleans with the agreement; however, the agreement was never signed and financing was never procured for the project; nor did the seller ever sign any part of this agreement.

Mr. Curt Steiner was qualified as an expert in certified public accounting for the defendant. He had reviewed Fritscher’s returns for the years 1972-1981. Based on a figure that he termed “average taxable income,” he stated that Fritscher’s average income for the years 1972-1980 was $6666. He also averaged income for the years 1977-1979, that figure was $7126. The average taxable income for the years 1977-1980 was $4726.

Examining the economic proof for loss of income (past and present), we note Fritscher is a 42-year-old man who is a general contractor who, in addition to being an administrative contractor, also performed many subcontractor’s services, such as painting, plumbing, placing sinks and counter tops, etc. as well as other facets in the construction of a residential home. Because he performed these services himself, he increased his gross income. In addition, he would build his own “temporary home,” which he would later sell. Thus, through the capital gains tax structure, he generated additional net income.

The medical testimony, although conflicting in some respects, demonstrates that this contractor is able to perform at least sedentary work. At no point does the record indicate he could not work in the future for at least a minimum wage. More specifically, nowhere is it indicated he could not work as an administrative contractor (a position indicated by his employment history).

While Fritscher’s adjusted gross income was presented, importantly, there was no testimony regarding Fritscher’s degree of disability. We observe the record does not reflect, at any point, where evidence of Fritscher’s life-work expectancy was introduced nor was any evidence produced as to what he could earn on a minimum wage basis over his life-work expectancy.

Moreover, we note lost profits resulting from an offense or quasi-offense must be proven with reasonable certainty. Damages will not be awarded where the lost profits are purely conjectural. See Koncinsky v. Smith, 390 So.2d 1377, 1383 (La.App. 3d Cir.1980). The Dillion project was in its very formative stages. A contract had not been agreed upon and no work had begun. While mathematical certainty is not required, sound judicial discretion must be exercised after all proper considerations are weighed. See Philippe v. Browning Arms Company, 395 So.2d 310 (La.1980). Since the purchase contract had not been completed and Fritscher had never engaged in construction in the State of Colorado, the evidence of loss of profits is speculative.

Since loss of profits has not been sufficiently proven and after considering all of the above facts and the various factors for which there is evidence in the record, we are of the opinion the highest award for loss of income which was reasonably within the jury’s discretion, is the sum of $300,000. Therefore, the jury abused its discretion in its award of $400,000 for loss of income (past and future). We amend the award for loss of earnings from $400,-000 to $300,000.

Medical Expenses

Defendant also questions as excessive the award of $30,000 for past and future medical expenses. The record indicates past medical expenses amounted to $18,-204.50. A portion of that sum, $11,645.91, has been paid by defendant; therefore, $6558.59 is due for past medical expenses. The jury thus awarded $23,441.41 for future medical expenses.

Dr. Russo stated Fritscher would be under his future medical care for visitations which he calculated at $15 per visit. Dr. Russo did not know how many future visits would be required. The record reflects Mr. Porche stating he expected to continue treatments for Fritscher for an extended period of time. Moreover, the record reflects Mr. Porche’s bill alone amounted to over $9000 over a two-year period.

Cushman v. Fireman’s Fund Insurance Company, 401 So.2d 477, 481 (La. App. 2d Cir.1981), states:

A plaintiff has a right to recover for the cost of future medical treatment and these damages should not be denied because it is impossible to establish the nature and extent of the treatment that will be required and the exact cost of it.

We find the trial court did not abuse its discretion in awarding $30,000 for past and future medical expenses.

DEGREE OF COMPARATIVE NEGLIGENCE

Defendant claims the jury erred in failing to find that Fritscher’s damages were substantially caused by his own negligence amounting to at least 50 percent of his damages. (Instead, the jury found Fritscher only five percent negligent.) Defendant claims that Fritscher did not act as a reasonable man since he was aware of the open drain hole prior to the accident, lived only a few feet from the hole, and still jogged in its area.

Louisiana Civil Code article 2323 provides:

When a contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffer injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree of percentage of negligence attributable to the person suffering the injury, death or loss.

Before a jury’s finding of fact can be overturned by this appellate court, we must find its factual conclusion “manifestly erroneous” or stated another way, “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). Considering all the facts of this case, especially that Fritscher, as a country club member, was allowed to run on the golf course only at night and that he was accustomed to the tall grass near the hole acting as a natural barrier, we cannot say the jury was clearly wrong in finding him only five percent negligent.

REDUCTION OF DAMAGE AWARD BY FIVE PERCENT

Addressing the final issue of whether the trial court erred in failing to reduce the amount of the award by five percent in accordance with the jury’s findings, we note the record reflects a “misunderstanding” arose in relation to the jury interrogatories as to the question of negligence. The written interrogatories were marked yes to the question which related to comparative negligence. The question read whether “plaintiff was guilty of any negligence which was the proximate cause of his own injuries?” In the subsequent interrogatory, the jury found Chateau Golf’s negligence caused 95 percent of the plaintiff’s damages and injury, and plaintiff’s own negligence caused five percent of his damages and injuries. However, when the foreman read verbally the jury interrogatories in open court, he misread the answer to the interrogatory regarding comparative negligence and stated the answer was no to the question of whether plaintiff was guilty of any negligence which was the proximate cause of his injuries. The foreman did, however, read the correct percentages of negligence. The plaintiff in his answer concedes to these facts and agrees that a reduction by five percent is required.

For the reasons assigned, the judgment of the trial court is amended from $830,000 to $693,500 and, as so amended, is affirmed. All costs of this appeal to be assessed equally between the appellant and the appellee.

AMENDED AND AFFIRMED.