author: FRED W. JONES, Jr., Judge. MARVIN, Judge,

text:
    Tennie Almermay MARTIN, Plaintiff-Appellant, v. EMERSON ELECTRIC COMPANY, et al., Defendants-Appellees.
    No. 15518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Tyler & Johnson by D.G. Tyler, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendants-appel-lees.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff appeals a judgment rejecting her demands for worker’s compensation benefits, penalties and attorney fees, contending the trial court erred in failing to accord proper weight to the testimony of a treating physician.

Finding no manifest error in the trial judge’s determination of fact with reference to the claimed disability, based upon his reasonable evaluation of medical and lay testimony, we affirm.

Mrs. Tennie Martin, the 39 ■ year old claimant, was employed by Beaird-Poulan, a division of Emerson Electric Company, in November 1978, and worked on the chain saw assembly line. Although her tasks were generally performed from a sitting position, they also entailed some bending and lifting of relatively light weight equipment parts.

On August 19, 1980, while in the plant cafeteria during a lunch break, plaintiff bent over to wipe up the floor where she had spilled a soft drink and experienced a “popping” sensation in the low back region, accompanied by the immediate onset of pain in that area. Later that day, because of continued back discomfort, plaintiff visited the company nurse who administered first aid in the form of heat application to the back.

Plaintiff returned to work on August 20 and 21, 1980, but the following day, due to headaches and persistent back pain, was referred by her employer to Dr. Asseff, a general practitioner. This physician, who examined the employee on August 22,1980, diagnosed her ailment as a mild muscle strain of the neck and lumbar area of the back. He prescribed a muscle relaxant, recommended the application of heat and suggested bed rest. Plaintiff returned to Dr. Asseff on August 26 and September 2,1980. After the latter examination, thinking that plaintiff might have an orthopedic problem, Dr. Asseff referred her to Dr. Joffrion, an orthopedic surgeon.

Upon his examination of the claimant on September 3, 1980, Dr. Joffrion detected no muscle spasms nor any neurological abnormalities. He concluded that plaintiff had sustained a mild lumbosacral strain but could assign no specific basis for her cervical complaints. Dr. Joffrion saw plaintiff again on September 16, 1980. He opined that her low back injury had healed and attributed her headaches and neck pain to tension and anxiety. He recommended that plaintiff return to her former employment on September 22, 1980.

Plaintiff returned to Dr. Asseff on September 18, 1980, still complaining of headaches. Dr. Asseff then referred her to Dr. Boykin, a neurosurgeon, who examined plaintiff on September 22, 1980. Dr. Boy-kin’s examination revealed no objective findings to support the patient’s complaints, which he believed were due primarily to muscle tension unrelated to the on-the-job accident.

Plaintiff’s final visit to Dr. Asseff was on October 14, 1980, at which time he released her to return to work on October 20, 1980. Based on this medical report, the employer’s worker’s compensation insurer [which began paying plaintiff weekly benefits of $148 on August 23, 1980] terminated her weekly benefits on October 19,1980. Medical expenses incurred by the claimant during this time period were also paid.

After her discharge by Dr. Asseff, plaintiff consulted her family physician, Dr. Henry [who was not called by her to testify] and was referred by him to another orthopedic surgeon, Dr. Brian. At the initial visit to this physician on November 26, 1980, plaintiff complained primarily of cervical pain radiating into her right shoulder and hand. Dr. Brian saw plaintiff again on January 16, February 16 and May 18, 1981. Complaints of pain during these visits usually pertained to her shoulder and elbow. Her neck and back conditions were found to be improving. Dr. Brian could not relate the elbow discomfort to her employment injury. He concluded that her complaints were exacerbated by a tense and nervous personality. On the occasion of his last examination, Dr. Brian referred plaintiff to Dr. Burda, a rheumatology specialist.

Dr. Burda first examined plaintiff on June 10, 1981 and concluded that she had sustained a chronic myoligamentous sprain of the lumbosacral area as a result of the job-related injury of August 19, 1980— based upon the history given to him by the claimant. This specialist continued treating plaintiff conservatively until June 1982 when he determined that she had achieved maximum improvement, with her recovery calculated in the range of 90-95%. However, Dr. Burda did not believe that plaintiff was able to return to her former employment because of her vulnerability to further injuries of this nature.

Plaintiff never returned to work for Beaird-Poulan after August 22, 1980. This suit was filed on August 11, 1981 and trial was had on August 19, 1982.

At the merit-trial plaintiff testified in general that she had experienced low back pain constantly since her on-the-job injury of August 19, 1980, that she was physically unable to return to her former employment, and that she was unable to perform her routine household duties. Her frequent complaints of back pain and manifestations of apparent physical limitations were corroborated by the testimony of her husband and several friends.

In his written reasons for judgment the trial judge stated:

“The Court does not believe that the plaintiff has proven that her headaches, neck-pain, tendinitis or any other condition, save her complaints in the low back, were as a result of the incident in the cafeteria of August 19.”

The trial court then explained that Dr. Burda’s testimony was of little assistance in deciding the case since plaintiffs low back and neck pain had substantially, if not completely, cleared up quite some time before she first visited Dr. Burda.

The trial judge concluded that “plaintiff could have returned to her job on a full time basis when requested to do so by her employer on October 20, 1980.” Consequently, her claim for additional worker’s compensation benefits were denied.

The thrust of plaintiff’s argument on appeal is that, as plaintiff’s treating physician, Dr. Burda’s testimony pertaining to her disability should have been accorded greater weight than the medical testimony of examining physicians.

In cases of this nature it is the totality of the evidence, medical and lay, which must be examined by the trial court in making its disability determination. It is the trial judge’s function to assess the weight to be accorded medical as well as lay testimony. Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743 (La.1975).

With regard to medical testimony, as a general rule the treating physician’s testimony should be given more weight than that of a doctor who examines a claimant for diagnostic purposes only. Further, the testimony of a specialist is entitled to greater weight than that of the general practitioner when the subject at issue is the particular field of that specialist. Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3rd Cir.1982).

Guided by these general rules, we address plaintiff’s contention that the trial judge did not accord proper weight to Dr. Burda’s testimony. We note, first, that Dr. Burda was only one of several treating physicians in this case. The first was Dr. Asseff who, recognizing his lack of specialized training in orthopedics and neurology, and unable to discover any basis for plaintiffs continuing complaints of neck and back pain, referred her to specialists in the appropriate fields. Second, Dr. Burda did not begin treating plaintiff until some nine months after her job-related accident and at a time when any injury likely connected to that incident had healed.

We further note that Dr. Burda, whose specialty is the treatment of arthritis and related diseases, appeared to focus his attention and treatment upon plaintiffs complaints pertaining to her elbow — which Dr. Burda could in no way connect with her on-the-job injury.

Our review of the record reveals no manifest error by the trial judge in his finding of fact, based upon a reasonable evaluation of all the testimony, relating to plaintiffs claimed continuing disability. Conversely, the trial court’s determination that plaintiff had recovered from her job-related injury and was able to return to her former employment on October 20, 1980 is amply supported by the record evidence.

For these reasons, we affirm the district court judgment, at appellant’s cost.

MARVIN, J., concurs in part and dissents in part and assigns written reasons.

MARVIN, Judge,

concurring in part and dissenting in part.

I concur in part and respectfully dissent in part.

Ms. Martin’s inability to return to work because of low back pain was a factual-medical-legal issue which was resolved against Ms. Martin by the trial court. Under our scope of review and where this finding is reasonably supported by the record as it is here, we accept that determination of the trier of fact. I concur in the majority opinion in this respect.

The majority finds, however, that Ms. Martin’s complaints of back pain and apparent physical limitations were corroborated by her husband and friends and notes that the trial judge found that her low back condition was the result of the August 19, 1980, incident or accident. This, too, is well supported by the record.

Ms. Martin saw several doctors at monthly intervals between August 1980 and May 1982. All agreed that Ms. Martin had a lumbosacral or myoligamentous strain, most likely caused by the accident. Dr. Burda, who saw and treated Ms. Martin at monthly intervals between June 10, 1981, and May 19, 1982, said Ms. Martin reached only 90-95 percent of what she was before the accident because of the myoligamentous strain superimposed on her unrelated osteoarthritic condition. No other doctor contradicted this primarily because none of the other doctors had seen her after May 18, 1981. Thus, I consider Ms. Martin to have sustained a 5-10 percent impairment of a physical function notwithstanding that she is not disabled, permanently or partially, under the disability subsections of the statute. LRS 28:1221(1), (2), and (3).

Ms. Martin was in reasonably good health before the accident. Her symptoms of my-oligamentous strain appeared immediately upon the occurrence of the accident and continuously • persisted and manifested themselves afterwards. Under these circumstances her impairment is presumed to have been caused by the accident under the rule of Lindsey v. H.A. Lott, Inc., 387 So.2d 1091 (La.1980); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouvr Plywood Co., Inc., 299 So.2d 347 (La.1974); and Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).

Believing that we should squarely address the impairment issue and resolve it in Ms. Martin’s favor, I dissent because the trial court and the majority opinion fails to consider this issue and to apply the rule of the cases cited above. Was Ms. Martin disabled as a result of the strain? That issue was addressed. Was Ms. Martin’s back impaired as a result of the strain? That issue was not addressed. Other doctors contradicted Dr. Burda on the disability issue but did not contradict the existence of the strain nor the impairment. The trial court found that Ms. Martin strained her back in the accident but did not consider Ms. Martin’s alternative claim of impairment.

The trial court found Ms. Martin had a myoligamentous strain but was able to return to work. I do not disagree with that finding. I dissent because Ms. Martin suffers a 5-10 percent serious permanent impairment of her back as a result of the strain and has not been allowed the benefits to which the law entitles her. LRS 23:1221(4)(p).


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Joe Albert BEDFORD, Petitioner-Appellant, v. Harry SANDERS, et al., Petitioner-Appellee.
    No. 15520-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Dawkins, Coyle & Carter by Michael S. Coyle, and Howard W. Wright, Ruston, for Joe Albert Bedford.
    Sharp '& McVea by Robert W. Sharp, Jr., Ruston, for Nolan Sanders.
    Barham, Adkins & Tatum by T.J. Adkins, Ruston, for Kenneth Miller and Alberta M. Johnson.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

A plaintiff, who sought to prove his father’s maternal filiation as an informally acknowledged illegitimate, appeals a judgment dismissing his action on an exception of prescription. La.C.C. Arts. 208, 209, as amended by Act 549 of 1980 and Act 720 of 1981.

The limited issues presented concern whether the 1980 prescription period applies and whether the 1980 prescription was extended by the grace period of the 1981 act. C.C. Art. 209.

In an opinion dated January 3, 1983, the trial court reasoned that the grace period of the 1980 act was one of peremption which was not revived or extended by the 1981 act. Following Succession of Theriot, 428 So.2d 1017 (La.App. 1st Cir.1983), which was rendered February 22, 1983, we reverse.

FACTS ALLEGED

The successions of Elijah Sanders and his daughter Ida Belle Sanders Powell were opened in one proceeding in Lincoln Parish in 1979 by Harry Sanders, who was a brother of Ida Belle. Harry Sanders alleged that Elijah had three children by his wife, who predeceased Elijah, that Ida Belle died intestate in Iowa in 1947, leaving no legitimate children, and without acknowledging her illegitimate child, Joe E. Bedford. The third child of Elijah Sanders was Albert Sanders, who was alleged to have died testate in Iowa in 1978. Elijah was alleged to have died intestate in Louisiana in 1917. A judgment of possession signed October 18, 1979, placed Harry Sanders in possession of an undivided one-half interest of the property belonging to the successions of Elijah Sanders and Ida Belle Sanders Powell, and described immovable property in Lincoln Parish.

On July 22,1982, plaintiff Joe A. Bedford brought the instant action, seeking to reopen the succession of Ida Belle and alleging that his father, Joe E. Bedford, who died intestate October 30, 1977, was informally acknowledged by Ida Belle as her child. Nolan Sanders, daughter of and successor in title to Harry Sanders, filed the exception of prescription under C.C. Art. 209.

The litigants direct their argument to the effect of the 1980 and 1981 amendments to C.C. Arts. 208 and 209, which concern proof of filiation. They do not address issues relating to when and how an informally acknowledged illegitimate inherits from his or her mother to the exclusion of that mother’s collateral relations. We do not address those issues.

The 1980 and 1981 amendments to Arts. 208 and 209 have been discussed at length and we will not add to the discussion. See 41 LLR 372 (1981); 42 LLR 401 (1982); Succession of Clivens, 426 So.2d 585 (La.1982); Harlaux v. Harlaux, 426 So.2d 602 (La.1983); Theriot, supra. Certainly this appeal may be distinguished from Theriot, but that case nonetheless held that the fact that the grace period of the 1980 act expired prior to a plaintiff instituting her action did not preclude that plaintiff from attempting to prove filiation by filing within the second grace period of the 1981 act. Theriot, at p. 1020.

The judgment sustaining the exception of prescription of C.C. Art. 209, as amended by Act 549 of 1980, which dismissed plaintiff’s action, is REVERSED at the cost of appel-lees and this action is remanded for further proceedings.

REVERSED and REMANDED.


author: FRED W. JONES, Jr., Judge.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellant, v. SENTINEL SAFETY SYSTEMS, INC., the City of Mansfield, Louisiana, and the Mansfield Fire Department, Defendants-Appellees.
    No. 15521-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Kennedy, Goodman & Donovan by John M. Frazier, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Julie Mobley Lafargue, Shreveport, for defendant-appellee, Sentinel Safety Systems, Inc.
    Colvin, Hunter, Brown, Plummer & Means by Robert E. Plummer, Mansfield, for defendant-appellee, City of Mansfield.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

As the subrogated insurer of a public agency which suffered the loss of food stamps in a burglary, the Insurance Company of North America sued the vendor-installer of a burglar alarm system that allegedly malfunctioned due to a defect, failing to sound an alarm during the burglary in question. Also joined as a defendant was the City of Mansfield whose employees were allegedly negligent in failing to properly monitor a terminal “tie-in” to the alarm system in the city fire station.

From a judgment rejecting its demands, plaintiff appealed, contending the trial judge erred in holding that the vendor-installer of the burglar alarm system was not liable for losses sustained although .its system malfunctioned.

For the reasons hereinafter explained, we find no manifest error in the trial judge’s factual determinations upon which he based his conclusion that defendants were not liable to plaintiff.

Some time prior to 1976 the U.S. Department of Agriculture arranged with the De-Soto Parish Police Jury to assume responsibility for the distribution of food stamps in that parish. Pursuant to that agreement, the police jury established an office for this purpose in a building it owned which was located in Mansfield. A requirement of the federal government was that this building be protected by a burglar alarm system. Complying therewith, in November 1976 the police jury purchased from and had installed by Sentinel Safety Systems, Inc. (“Sentinel”), for $1,005, a burglar alarm system in the described building. The system included a terminal with warning devices at the Mansfield Fire Department.

Some time during the night of July 20 or early morning hours of July 21, 1978, the building housing the parish food stamp office was forcibly entered, property was damaged and food stamps valued at some $26,200 were stolen. After plaintiff paid the amount of the loss covered by its insurance policy, this suit was filed. The principal charge leveled at Sentinel was that failure of the burglary alarm system to sound an audible warning of the break-in, both at the burglarized building and at the city fire station, precluded apprehension of the burglar or burglars — who have never been caught.

Under the written sales contract entered into between the DeSoto Parish Police Jury and Sentinel, the latter was to install inside the food stamp office a master control panel which would activate all of the connected alarms. The source of power for the system was a rechargeable battery. An outside siren was placed on the roof of the police jury building. In the event of a break-in when the system was turned on, this device was supposed to make a noise similar to that of an ambulance — loud enough to be heard at least four blocks away. In addition, the burglar alarm system was tied into the city police-fire station through a direct telephone line.

At that time the Mansfield police and fire departments were located in a two story downtown building, with the police department downstairs and the fire department upstairs. Since there was always someone on duty in the fire department, a modular alarm connected with the burglar alarm system at the food stamp office was placed in the fire station. Upon activation of the system at the food stamp office, the device at the fire station was supposed to emit an audible alarm [a loud buzzing noise] and display a visual warning [turn on a red alarm light some inch in diameter].

Sentinel installed an outside key switch at the back door of the police jury building, enabling employees to deactivate the alarm system when they entered the building in the morning and to turn it back on when they locked the premises at the end of the working day.

Billy Wren, Sentinel’s employee who installed the burglar alarm system in question, testified that a switch placed in the back door facing and mechanical contacts on the windows would activate the alarm system [when it was turned on] if any of these were opened or broken. Further, according to this witness, cutting the direct telephone line to the fire station, tampering with the siren on top of the police jury building, or any failure of the alarm system would activate the audible and visual alarms at the fire station.

Wren stated that he tested the burglar alarm system at the time of its installation and found it was functioning properly. After that, he serviced the system from time to time, repairing metal foils on the windows and replacing a battery. On these occasions tests revealed that the system was working satisfactorily, giving the appropriate alarms. On January 13, 1978, Wren added to the system a “silent alarm” to signal a robbery during the working day. At that time the entire system was tested and found to be in proper working order.

Wren testified that he was notified immediately after discovery of the burglary, inspected the system, replaced the damaged siren which had been torn off the top of the police jury building, and replaced the back door switch. Upon visiting the fire station he observed that the red warning light on the modular alarm was glowing. When he repaired the severed direct telephone line the audible warning signal also came on.

If the system was turned on at the time of the burglary, Wren had no explanation why the audible warning device at the fire station might not have functioned as designed.

Mrs. Eleanor Washnock, supervisor of the DeSoto Parish food stamp program, testified that upon reporting to work at about 7:45 o’clock on the morning of July 21,1978 she saw lying on the parking lot the severely damaged siren which had apparently been knocked off the roof of the building. The back door of the premises was open and there were signs of forcible entry. Telephone wires from the food stamp office had been cut. Mrs. Washnock immediately notified the local police and contacted Sentinel’s office. After employees of the latter completed their repair work, the system again functioned properly. This witness corroborated Wren’s testimony that he had tested the alarm system on an intermittent basis prior to the burglary and it always worked satisfactorily.

Louie Melton and Raymond Moreno, city firemen on duty on the night of the burglary, stated that they were sleeping in the fire station quarters [on a 6 P.M.-6 A.M. duty tour] and never heard the audible alarm sound. Moreno, whose bed was only two feet from the modular alarm, testified that he had heard the alarm activate on previous occasions and that it was loud enough to wake up a soundly sleeping person. Melton, whose bed was 10-12 feet from the alarm, gave testimony to the same effect. Neither recalled seeing the red warning light on at the end of his tour of duty. However, Melton said that the light was on when he returned to the fire station that morning at 9:00 o’clock.

In written reasons for judgment, the trial judge made the factual determination that the audible warning in the fire station did not activate at the time of the burglary of the food stamp building and there was no evidence to explain why this failure occurred. He concluded:

“One can only speculate as to why the alarm did not sound.
There was evidence of false alarms having sounded from time to time during the two year period the system had been installed.
It could have malfunctioned.
The party, or parties, who burglarized the building and damaged the system could have deactivated it.
There was no evidence of negligence on the part of Sentinel Safety Systems, Inc., in either installation or maintenance:...
There is no evidence of neglect on the part of either the Mansfield City Police or the Mansfield Fire Department.”

Plaintiff-appellant argues that, standing in the shoes of the vendee of the burglar alarm system, it is entitled to recover for the losses sustained as a consequence of the described burglary because Sentinel sold and installed a defective system. Cited as authority for this position is Louisiana products liability law as explicated in a number of cases, including Philippe v. Browning Arms Company et al, 395 So.2d 310 (La.1981) and Weber v. Fidelity & Casualty Co., 259 La. 599, 250 So.2d 754 (1971).

In Philippe the court explained:

“[t]he cause of action of the purchaser of a defective thing may be enforced against both the seller and the manufacturer of a thing. Media Production Consultants v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972). One of the obligations imposed on the seller (manufacturer) is the warranty against hidden defects of the thing sold. C.C. Art. 2476.
“There is no compelling reason to require a person injured by a defective product he has purchased to proceed either in contract or in tort. The seller’s (manufacturer’s) act of delivering a defective thing, when he knows of the defect, gives rise to delictual, as well as contractual, liability.”

The primary issue in the case at bar is factual — did plaintiff prove the burglary alarm system sold by Sentinel to the DeSo-to Parish Police Jury contained a redhibi-tory defect when it was installed?

Elaborating upon the method of proving a redhibitory defect in cases of this nature, the court in Rey v. Cuceia, 298 So.2d 840 (La.1974) commented:

“[e]ven where the defect appears more than three days after the sale- ... if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale.”

The court then proceeded to relieve plaintiff of the burden of proving the specific cause for a camper trailer coming apart after some 200 miles of use, since it was obvious that there was something seriously wrong with the vehicle when it was sold.

Here, the trial judge made the finding of fact that the burglar alarm system’s audible warning did not sound [at either the food stamp building or the fire station] at the time of the burglary. He then, at least by implication, determined that this malfunction was not proven to be due to a redhibi-tory defect. This conclusion is not manifestly erroneous. The malfunction occurred nearly 20 months after the sale and installation of the alarm system. No attempt was made by plaintiff to refute the evidence that the system functioned properly on a number of occasions prior to the burglary in question. Based upon our review of the record, we agree with the trial court that the reason for the failure of the audible warning to sound is a matter of pure speculation. In summary, plaintiff has proven neither by direct nor circumstantial evidence that the burglary alarm system failed to work properly because of a redhibitory defect.

Further, the record amply supports the trial judge’s determination that there was no negligence on the part of Sentinel in either the installation or maintenance of the burglar alarm system.

The fact-finding that the audible alarm did not sound at the fire station at the time of the burglary also rules out liability on the part of the City of Mansfield under the negligence and promissory estoppel theories advanced by plaintiff-appellant, as the trial court correctly held.

For these reasons, the judgment of the district court is affirmed, at appellant’s cost.


author: SEXTON, Judge.

text:
    Pearl KIEFFER, Administratrix of the Succession of John P. Kieffer, Deceased, Plaintiff-Appellant, v. SOUTHERN UNITED LIFE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 15522-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Writ Denied Nov. 28,1983.

      Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiff-appellant.
    Provosty, Sadler & deLaunay by David P. Spence, Alexandria, for defendant-appellee, Southern United Life Ins. Co.
    Robert L. Kennedy, Thomas G. Wilson, Colfax, for defendant-appellee, Bank of Montgomery.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued for the benefits allegedly due under a credit life insurance policy. The trial court rejected her demands. We affirm.

Plaintiff in this cause is Pearl Kieffer, administratrix of the succession of John Kieffer. Mrs. Kieffer is the widow of John Kieffer, on whose life the credit life insurance policy was issued. Defendants are the Bank of Montgomery, Louisiana (hereinafter referred to as the Bank), and Southern United Life Insurance Company (hereinafter referred to as Southern), a foreign insurer licensed to do business in this state.

John Kieffer, a cattle rancher who resided in Winn Parish near Montgomery, Louisiana, had for several years prior to the commencement of this cause conducted business, as both a depositor and borrower, with the Bank of Montgomery. Mr. Kief-fer’s account was particularly attractive to the Bank because of the large amount of equity — constituted by land, cattle and equipment — which was available as collateral security on Mr. Kieffer’s loans. The Bank, therefore, orally agreed, in return for Mr. Kieffer’s account, to provide Mr. Kief-fer with credit life insurance coverage to insure the amount of Mr. Kieffer’s indebtedness to the Bank.

Starting in 1974, the Bank of Montgomery had continuously issued credit life insurance policies to cover the amount of Mr. Kieffer’s indebtedness to the Bank. The Bank, as agent for Southern, would at six-month and occasionally one-month intervals, issue a credit life policy to cover the amount of Mr. Kieffer’s indebtedness at the time the policy was issued. The amount of Mr. Kieffer’s indebtedness to the Bank varied roughly from $10,000 to $60,000.

On February 10, 1981, the Bank issued Mr. Kieffer a credit life insurance policy for the amount of his then current debt to the Bank, $42,393.45. Mr. Kieffer was not at the Bank at the time the policy was issued, and did not fill out an application or sign his name on any form in connection with the issuance of the policy. The policy certificate itself was a triplicate form. The Bank retained one copy of the certificate itself, sent another to Southern at a later date, and attached a third and final copy of the certificate to Mr. Kieffer’s promissory note to the Bank, which promissory note was kept in the Bank’s file. No copy of the policy certificate was sent to Mr. and Mrs. Kieffer. The Bank debited Mr. Kieffer’s account for the $423.94 premium, retained 60% of this amount as its fee or commission, and remitted the remainder of the premium to Southern’s account at the Bank.

On March 9, 1981, Southern received its copy of the policy certificate from the Bank. On March 16, the Bank received an insurance application/health questionnaire from Southern with instructions to forward the form to the Kieffers for their prompt completion. The Kieffers completed the form and sent it to Southern shortly thereafter.

On March 25, 1981, pursuant to a medical report on John Kieffer compiled by Equi-fax, Inc. of Baton Rouge, Southern notified the Kieffers and the Bank that John Kief-fer’s credit life insurance was being terminated for health reasons. The Bank accordingly wrote the word “cancelled” over the Kieffers’ copy of the policy certificate, which certificate had up to that time remained in the possession of the Bank and had not been seen by the Kieffers. John Kieffer’s account was credited for the amount of the premium. On April 19,1981, John Kieffer died of terminal cancer.

On July 14, 1981, plaintiff sued Southern for the $42,393.45 allegedly due under the credit life insurance policy which had been issued by the Bank on February 10 and cancelled by Southern on March 25. Plaintiff subsequently joined the Bank as defendant. The Bank then made a third party demand upon Southern. In a judgment rendered November 16, 1982, the trial court rejected plaintiff’s demands against both defendants. The Bank’s third party demand against Southern was accordingly dismissed.

I.

THE LIABILITY OF SOUTHERN UNITED LIFE INSURANCE COMPANY

The first issue to be resolved in analyzing the insurer’s liability involves the question of whether an insurance contract was perfected herein. The trial court indicated in its well written statement of reasons that no contract between the insurer, Southern, and the insured, John Kieffer, was ever confected. The trial court based this determination on two important factors. In the first instance, the certificate of insurance issued by Southern’s agent, the Bank, expressly reserved Southern’s right to decline coverage within thirty-one days of Southern’s receipt of the completed certificate. Secondly, Southern timely exercised this right to decline coverage by notifying the Bank and the Kieffers on March 25, 1981— within thirty-one days of Southern’s receipt of the certificate on March 9 — that Mr. Kieffer’s coverage was officially rejected. In the view of the trial court, the insurer expressly reserved a right to decline coverage, and timely exercised this right within the contractually stipulated delay.

The trial court’s determination that no contract of insurance was ever perfected is jurisprudentially supported. The Louisiana courts have often emphasized that an insurance certificate is not a binding contract, but merely an application for coverage, and the issuance of such a certificate is not tantamount to the perfection of a contract. Such an application constitutes merely a contractual offer, and the insurance contract is not completed until such application or offer is accepted by the insurer — particularly where the certificate (i.e., application) reserves the insurer’s right to reject the applicant’s coverage. See Duplissey v. Southern United Life Ins. Co., 385 So.2d 540 (La.App.3d Cir.1980), writ denied 392 So.2d 1067 (La.1980); Ryder v. Trisler, 367 So.2d 1257 (La.App.3d Cir.1979); Sanders v. Hartford Life Insurance Co., 350 So.2d 945 (La.App.2d Cir.1977), writ denied 351 So.2d 1208 (La.1977).

We agree with the trial court that Southern timely exercised its contractual right to cancel coverage. The master policy and the certificate issued in conjunction therewith contain the following provision:

“The company may require evidence of insurability satisfactory to it with respect to each debtor who is issued a certificate of insurance. If the company finds that an applicant is not an insurable risk according to its underwriting standards, it reserves the right to decline the insurance on the life by indicating its intention in writing to the creditor within thirty-one days from the time the individual certificate was received in the home office.”

Such a provision in the policy, as relied on by Southern, is valid. Duplissey, supra. As we have previously recited, Southern determined to require evidence of insurability. Upon receipt thereof, it exercised its contractual right to timely decline coverage. Therefore, the insurance company was within its authority to cancel the policy within thirty-one days of receipt of the application, after its investigation revealed the poor health of Mr. Kieffer.

Furthermore, in completing the insurance application/health questionnaire, the Kieffers gave a negative reply to the three questions of whether John Kieffer had “ever had” cancer, an operation, or a serious illness. These negative responses were all patently false since Mr. Kieffer had a seriously debilitating rectal malignancy and an operation to remove same prior to the completion of the health questionnaire.

The law is well settled that false statements in an application for insurance shall bar recovery upon the insurance contract where such statements materially affect the insurer’s acceptance of the assumed risk, and the statements are made with the intent to deceive. LSA-R.S. 22:619(B); Topps v. Universal Life Insurance Co., 396 So.2d 394 (La.App. 1st Cir.1981).

II.

THE LIABILITY OF THE BANK OF MONTGOMERY (LOUISIANA)

In rejecting plaintiff’s demands against the Bank, the trial court found:

“The Bank is not an insurer and did not agree to furnish credit life insurance on Kieffer. The Bank was obligated only to timely apply for coverage and keep the premiums paid. The Bank discharged the obligation.”

Therefore, the trial court found that the Bank undertook the obligation to apply for the insurance on Mr. Kieffer’s behalf in a timely fashion but that the Bank did not, and could not, guarantee that insurance would actually issue. This determination of the trial court, being supported by the record and not being clearly wrong, will not be disturbed by us on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

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

AFFIRMED.


text:
    NORTH CENTRAL UTILITIES, INC., Plaintiff-Appellant, v. WALKER COMMUNITY WATER SYSTEM, INC., Defendant-Appellee.
    No. 15531-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Culpepper, Teat & Caldwell by Bobby L. Culpepper, Jonesboro, for defendant-appel-lee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued defendant for its alleged failure to comply with Louisiana’s public bid law in rejecting plaintiff’s bid to construct a water distribution system. Defendant filed a peremptory exception of no cause of action. The trial court sustained this exception, dismissing plaintiff’s claims. We reverse.

Plaintiff-appellant herein is North Central Utilities, Inc., (hereinafter referred to as North Central), a utilities firm whose business activities include the construction of water distribution systems. Defendant-appellee is Walker Community Water Systems, Inc., (hereinafter referred to as Water System), a non-profit entity based in Jackson Parish, Louisiana.

Plaintiff North Central sued defendant Water System on November 24,1982, alleging that Water System illegally rejected a sealed bid by North Central to build a water distribution system for Water System. Plaintiff North Central urged in its petition, more specifically, the following allegations: Water System, a public entity, advertised prior to June 1982 for bids to construct a water distribution system; North Central submitted a bid in response to Water System’s advertisement, which complied with Water System’s specifications and requirements and included a properly executed bid bond; North Central submitted the lowest bid received by Water System — $81,517.09; Water System nevertheless awarded the construction contract for the water system to Mid South Tank and Utilities, Inc., whose bid exceeded that of North Central by more than $5,000. Plaintiff alleged, lastly, that although North Central submitted the lowest bid and despite the fact that this bid was rejected by Water System, Water System did not give North Central written notice of the disqualification of its bid nor did it provide written reasons therefor.

North Central sued for $42,705.70 for the damages, expenses and lost profits occasioned by Water System’s rejection of its bid. North Central further reserved its right to collect $42,308.43 for potential future liability arising from agreements between North Central and its material suppliers made in anticipation of the granting of the bid.

Defendant Water System answered plaintiff’s petition by filing a peremptory exception of no cause of action pursuant to LSA-C.C.P. Art. 927. The trial court sustained defendant’s exception in a judgment rendered February 2, 1983, and dismissed plaintiff’s claims.

The law is well-settled that, in judging an exception of no cause of action, all of the allegations of the petition are to be accepted as true and no evidence is admissible. Thus, assuming the plaintiff’s allegations to be true, the exception can be sustained only when the plaintiff has not stated a claim under the applicable substantive law. Frain as Tutrix of Beason v. State Farm Insurance Co., 421 So.2d 1169 (La. App. 2d Cir.1982); Millette Enterprises, Inc. v. State Division of Administration, et al., 417 So.2d 6 (La.App. 1st Cir.1982).

LSA-R.S. 38:2212 A (1) provides in pertinent part that “All public work exceeding [in cost] ... the sum of five thousand dollars ... to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised....” (emphasis added). The same subsection and paragraph provides that “[N]o such public work shall be done ... except as provided in this Part.”

LSA-R.S. 38:2212(J) mandates that
“If the public entity letting the contract proposes to disqualify any bidder, such public entity shall:
(1) Give written notice of the proposed disqualification to such bidder and include in the written notice all reasons for the proposed disqualification; and
(2) Give such bidder, who is proposed to be disqualified the opportunity to be heard at an informal hearing at which such bidder is afforded the opportunity to refute the reasons for the disqualification.”

The Louisiana Supreme Court, in Haughton Elevator Division v. State, 367 So.2d 1161 (La.1979), declared that “[A] low bidder may ... sue to set aside the award of the contract to another bidder and may enjoin the agency from the execution of such contract, where the agency arbitrarily rejected the low bid.” Haughton Elevator, supra, at 1164. The court perceived Louisiana’s public bid law to be “a prohibitory law based on public policy,” and observed that “[the bid] law does not permit the arbitrary selection of one [bid] which is higher and the rejection of others which are lower.” Haughton Elevator, supra, at 1164, 1165.

The court asserted, moreover, that the rights of the lowest responsible bidder, protected under LSA-R.S. 38:2212, were further insured by the procedural due process guarantees of the Fourteenth Amendment. The court clearly indicated that a public entity’s administrative decision to reject the offering of the lowest bidder is governed by the constitutionally mandated procedural safeguards of the Fourteenth Amendment. Thus, a lowest bidder — whose bid had been rejected — was held to be entitled to notice of the consideration of its disqualification prior to the awarding of the contract; an informal hearing affording an opportunity to respond to charges against it; a post-hearing notice of disqualification; and a record of the disqualification proceeding for purposes of judicial review. Haughton Elevator, supra, at 1166. The court stated that a lowest bidder, denied these procedural protections, could be entitled to injunctive relief and/or monetary damages, Haughton Elevator, supra, at 1169. See also, Note, “Shaping Specific Procedural Requirements for Disqualification Under Louisiana’s Public Bid Law,” 40 La.L.Rev. 871 (La.1980).

Most nearly on point here is Millette Enterprises, Inc. v. State, 417 So.2d 6 (La.App. 1st Cir.1982), in which the First Circuit reversed the trial court’s action in sustaining the peremptory exception of no cause of action where the plaintiff’s petition alleged that a public entity rejected the bid of the lowest responsible bidder without hearing or explanation. As this court stated in Taylor & Taylor Builders, Inc. v. Moore, 393 So.2d 792, 794 (La.App. 2d Cir.1981), “The lowest responsible .... bidder has the right to be awarded the • advertised contract, if the contract is awarded to any bidder, and that right is enforceable at law.”

This plaintiff, North Central, has expressly stated or clearly implied in its petition that it was the lowest responsible bidder for a public work contract let by a public entity exceeding $5,000, and that, although plaintiff met advertised specifications, the contract was awarded to another higher bidder without granting plaintiff written notice or an informal hearing.

Assuming these allegations to be true — as is required in evaluating the peremptory exception of no cause of action— plaintiff has stated a cause of action under LSA-R.S. 38:2212 and the aforementioned interpretations thereof.

The trial court sustained the exception on the finding that the defendant water system was not a public entity as plaintiff had alleged. While the allegation that defendant is a public entity is arguably a conclusion, the plaintiff's petition contains other allegations of fact which, if accepted as true, might justify this conclusion. We are required to test the factual allegations of a petition to which an exception of no cause of action has been filed most favorably to the pleader and without considering other evidence. Under these circumstances, we must find that the trial court erred in sustaining the exception.

The judgment of the trial court sustaining defendant’s peremptory exception of no cause of action and dismissing plaintiff’s claim is therefore reversed, and this cause is remanded to the district court for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.


text:
    Harvey LOWE, Jr., Naomi Boyette & Roy Dean Boyette, Plaintiffs-Appellants, v. CONTINENTAL INSURANCE COMPANY & Thomas Davenport, Defendants-Appellees.
    No. 15538-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Rehearing Denied Sept. 29, 1983.
    Writ Denied Nov. 28, 1983.

      Otha Curtis Nelson, Sr., Baton Rouge, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by Ronald L. Davis, Jr., Monroe, for Continental Ins. Co.
    Davenport, Files & Kelly by William G. Kelly, Jr., Monroe, for Thomas Davenport.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

As a sequel to Boyette v. Auger Timber Co., 403 So.2d 800 (La.App.2d Cir.1981), this appeal illustrates the wisdom of the ethical obligation of a lawyer to exercise independent and competent professional judgment on behalf of his individual client and to be especially sensitive to other interests which might affect the lawyer’s judgment. Canons 5, 6, CPR.

THE BOYETTE ACTION

In the Boyette personal injury action, Lawyer N continued to represent both Lowe and the Boyettes, who were guest passengers in Lowe’s automobile, even after the driver of the other vehicle in the accident asserted, in a third party demand, Lowe’s negligence as a cause of the accident and claimed contribution from Lowe in the event the Boyettes recovered judgment against that driver. This representation of the driver and guest passengers in one vehicle was ethically improper. See Boyette concurrence.

To compound the impropriety, Lawyer D, who was representing both Lowe and Lowe’s liability insurer (Continental) in defending the third party demands for contribution, chose to assert to the jury, as a matter of trial strategy, that Lowe’s negligence was the sole and only cause of the accident, notwithstanding the absence of Lowe’s consent to the strategy and Lowe’s contrary position as a co-plaintiff in the main demand.

We there criticized each lawyer. We found that Lawyer D’s assertion to the jury highly prejudiced Lowe’s position and that the trial should not have been allowed to proceed to jury verdict. We affirmed the judgment, however, independently finding that the sole cause of the accident was Lowe’s negligence.

THE PRESENT ACTION

After Boyette became final, Lowe and the Boyettes, again joined as co-plaintiffs and represented by Lawyer N, brought this action in damages against Lawyer D and Lowe’s liability insurer, Continental. Plaintiffs here allege the occurrence of the Boy-ette accident, the injuries that were “caused partially” [?] by the negligence of the other driver, that the other driver sued Lowe, that Continental settled that suit, but breached the duty owed to Lowe by failing to “adequately investigate the accident and [by] reaching the conclusion that ... Lowe was contributorily negligent .. .that Lawyer D made the assertion to the jury which greatly deprived plaintiffs “of being able to receive a fair and impartial trial,” that Continental was remiss in its duty to Lowe by not placing the proceeds of its liability policy into court, that Continental knew of the injuries and death sustained by the Boyettes, and that plaintiffs should recover itemized damages.

Continental filed exceptions of prescription and of no cause of action. Lawyer D filed an exception of no cause of action and moved for summary judgment. Plaintiffs then filed a supplemental petition which alleged that Lawyer D and Continental “failed to comply with” and are guilty of “... unfair deceptive methods ... declared unlawful by [The Unfair Trade Practice and Consumer Protection Law],” and that plaintiffs’ reputations have been damaged and they have been denied a “fair appeal” because Lawyer D served as a law clerk for this court of appeal.

The trial court sustained Continental’s exceptions of prescription and of no cause of action, Lawyer D’s exception of no cause of action, and granted Lawyer D’s motion for summary judgment.

THE ASSIGNMENTS OF ERROR

In this appeal from the judgment dismissing their action, plaintiffs assign three errors which we are required to address: the trial court failed to give written reasons as requested, the deficiencies in plaintiffs’ petition were “cured” by their supplemental petition which was not answered by defendants, the trial court’s ruling effectively deprives them of their “day in court”.

NUMBER 1

As “reasons for judgment”, the trial court merely cited Boyette. Whether these “reasons” are sufficient compliance with CCP Art. 1917, we need not decide. Even if the trial judge had failed to give any reasons, the judgment would not be reversed. Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir.1979), writ denied, squarely held that the litigant’s remedy in such a situation is to apply for supervisory writs or to move for a remand to compel the trial judge to comply with CCP Art. 1917.

NUMBER 2

The supplemental petition adds nothing in the way of factual allegations to plaintiffs’ original petition. Its allegations present mere conclusions which we find without merit and which do not warrant our further consideration.

The original allegation that Continental and Lawyer D failed to adequately investigate the Boyette accident is also nothing more than a conclusion and does not assert that witnesses or evidence were available which might have changed to result of Boy-ette. The effect of the allegation of inadequate investigation is not related by plaintiffs to any of the three assignments of error and is not argued in any context in plaintiffs’ brief.

Remaining as an assignment of error is the cause of action which arises in favor of either or both the Boyettes and Lowe by the assertion of Lawyer D to the jury. We found in Boyette that this allegation was highly prejudicial to Lowe’s position as a co-plaintiff in Boyette and the fact of the allegation is alleged here.

NUMBER 3

Continental and Lowe were sued in a separate action by the driver of the Auger Timber Company truck and by Auger’s worker’s compensation insurer for amounts it paid to or for the driver. Continental paid half of its $10,000 liability limits in settlement of these demands and that action was dismissed before Boyette was tried.

Continental’s Duty

The duty owed by a liability insurer under the direct action statute (LRS 22:655) to persons injured by its insured is not superior to the settlement clause of the policy. The settlement clause authorizes an insurer to compromise and settle such claims without the consent of the insured. Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1977); Richard v. Southern Farm Bureau Casualty Ins. Co., 254 La. 429, 223 So.2d 858 (1969).

In such a situation, a liability insurer, at its own risk, may compromise some claims, exhausting the amount of the liability insurance, and leave other injured parties with little or no recourse against the insurer, even where the insurer knows of the claims of other injured persons. Richard, 223 So.2d at p. 861. Holtzclaw strongly affirmed this principle.

Although Continental knew that the Boy-ettes suffered injury and death in the accident, the Boyettes made no demands against Continental or Lowe until after their claims arising out of the January 18, 1979, accident had prescribed.

Under the factual allegations of plaintiffs’ petitions, Continental was not obligated to deposit the remaining amount of its liability policy into court for the benefit of the Boyettes. Because the Boyettes did not make demands on or sue either Continental or Lowe, we cannot find that Continental breached any duty it may have owed to the Boyettes or that it acted unfairly or in bad faith toward them.

Continental owed Lowe the duty of defending demands and suits brought against him arising out of his operation or use of the insured automobile and had the obligation of paying, within its policy limits, such amounts as Lowe became legally obligated to pay as damages to persons injured by his fault. We have emphasized that plaintiffs have alleged that the Auger truck driver was “partially” at fault. We cannot find that Continental breached a duty to Lowe under the allegations of plaintiffs’ petitions, however favorably the allegations are construed. See Holtzclaw, supra. In these respects, we shall affirm Continental’s exception of no cause of action as against the Boyettes and Lowe. If the petition is couched as arising out of Lowe’s negligence in the accident, the Boyettes’ claims have prescribed.

Lawyer D’s Duty To The Boyettes

In the posture of the Boyette trial, the Boyettes were potential claimants against Lowe and Continental, but in actuality they were merely Lowe’s passengers and witnesses at the trial. Lawyer D owed them the courtesy owed to any other witness in an adversary proceeding, but they were not D’s clients and we cannot find or infer from the factual allegations that D breached any duty he may have owed the Boyettes. His duty was to his clients, Lowe and Continental, and not to the Boyettes, even though Lawyer N had joined them with Lowe as co-plaintiffs in the main Boy-ette action. We shall affirm the sustaining of Lawyer D’s exception of no cause of action against the Boyette demands for the same reasons we affirm the Continental exception.

Lawyer D’s Duty To Lowe

Because of his professional obligations to Lowe, Lawyer D was not privileged, without Lowe’s express and knowledgeable consent after full disclosure, to make strategic decisions in his defense which substantially prejudiced Lowe’s interests as a plaintiff in the main action. See Boyette concurrence.

Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La.1982), recently shifted to the defendant lawyer in a malpractice action some of the evidentiary burden that before rested on the plaintiff client. Where a client shows that his lawyer’s professional impropriety has caused him some loss, the lawyer then has the burden of overcoming that client’s prima facie case by showing that the client could not have succeeded notwithstanding the impropriety. From the record of this trial within a trial, the appellate court must determine whether the lawyer has met his burden. Jenkins, at p. 1110.

When considering the peremptory exception of no cause of action, we are required to take every factual allegation of a plaintiff’s petition as true. Evidence is not admissible. North Central Utilities, Inc. v. Walker Community Water System, Inc., 437 So.2d 922 (La.App. 2d Cir.1983). Lowe has alleged the fact of the assertion and that it caused him to be denied or deprived of a fair trial in Boyette. He has also alleged factual details of how the driver of the Auger truck was “partially” at fault in the accident, impliedly, at least to us, stating that Lowe was also at fault. He does not allege other facts which warrant our discussion. If Lowe was negligent, wholly as we found in Boyette, or partially as he seems to imply in this action, he would be barred from recovery as a matter of law. His argument that he is denied his day in court in such a situation overlooks the very purpose of the peremptory exception and its place in the law.

We addressed the “fair trial” issue in Boyette. Once we found that Lawyer D’s assertion to the jury was prejudicial to Lowe’s interest as a plaintiff, we were then faced either with remanding for a new trial or with deciding the appeal from the judgment by making an independent review of the evidence viewed most favorably toward Lowe. LSA-Const. Art. 5, § 10. CCP Art. 2164.

We determined that we could fairly and independently evaluate and find the preponderance of the evidence because we were convinced that the weight of the evidence was not so nearly equal that a firsthand view of the witnesses was essential to a fair resolution of the issues and because that evidence presented very little conflict. Boyette at pp. 803-804.

Our expressions regarding fairness resolved the issue of whether Lowe received a fair trial in Boyette. Fair trial was also at issue in Boyette in the assignment of error there directed at the trial court’s refusal to grant a new trial. The fair trial issue, however, is resolved against Lowe only with respect to his demands against Auger and the other defendants in Boyette. It is not resolved for the purposes of Lawyer D’s exception of no cause of action in this action. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). Common law collateral estoppel is not recognized in Louisiana. See Welch, supra. Lowe has alleged, a la Jenkins, and however inarticulately, a cause of action against Lawyer D and we shall reverse the sustaining of Lawyer D’s exception of no cause of action against Lowe.

SUMMARY JUDGMENT

In the motion for summary judgment, Lawyer D admits the assertion to the jury but effectively contends that, in the absence of any other factual allegation and as a matter of law because of the now final decision in Boyette, Lowe was not deprived of a “fair trial”, which he alleges. Whether it appears that plaintiff might or might not prevail at a trial on the merits is of no moment. The question on summary judgment is whether there is a genuine issue of material fact. CCP Art. 966; Phillips v. William Glen Roy, et al., 431 So.2d 849 (La.App. 2d Cir.1983).

Lawyer D asserts in the motion for summary judgment that Lowe has not alleged that he would have recovered damages from Auger except for Lawyer D’s assertion or that there are additional facts or information that should have been submitted to the court which would have resulted in a judgment in Lowe’s favor in Boyette. Lawyer D essentially argues that the fair trial issue, in the absence of other allegations, was resolved by our review in Boyette. In this respect, we must agree.

We have again reviewed Boy-ette, and in the light most favorable toward Lowe. We again determine that a view of the witnesses is not necessary to our fair resolution of the factual issue, that the evidence presents no real conflict, and is not nearly equal in weight, and that it is easily discernible that the sole fault of the Boy-ette accident rested with Lowe in the particulars mentioned in Boyette. A jury’s factual finding is not final or inviolate in the Louisiana system. Appellate courts review and determine facts. Even in the normal appeal where a jury verdict, though entitled to great weight, is clearly wrong, a judgment based on that verdict may be reversed or modified. See Jenkins v. St. Paul Fire & Marine Ins. Co., 393 So.2d 851 (La.App. 2d Cir.1981), 422 So.2d 1109 (La.1982).

In the Boyette appeal we gave absolutely no weight to the jury verdict because of Lawyer D’s assertion. Our review of the record was independent of the verdict and amounted to a fair [re]trial of the merits. Here, there is no genuine issue of material fact that Lowe received a fair adjudication or trial from this court in Boyette. That is the sole issue raised under Lowe’s limited factual allegations in this action. No genuine issue of material fact is presented and the summary judgment, we find, was properly granted.

DECREE

The judgment dismissing the Boyette and the Lowe action as against Continental on the exception of no cause of action is AFFIRMED. The judgment dismissing the Boyette action against Continental on the exception of prescription is AFFIRMED. The judgment dismissing the Boyette action on the exception of no cause of action as against Lawyer D is AFFIRMED. The sustaining of Lawyer D’s exception of no cause of action as against Lowe is REVERSED. The summary judgment in favor of Lawyer D and against Lowe dismissing Lowe’s action is sustained. Appellees are cast for costs.

EPILOGUE

The Code of Professional Responsibility has the force and effect of substantive law. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 115 (La.1979). The Disciplinary Rules are mandatory. If each member of the profession, lawyer or judge, recognizes his or her obligation to maintain competency in this area of the law for the good of the client and the profession, disputes of this sort will, as they should, be avoided. See Boyette Concurrence and Opinions of Committee on Professional Responsibility, LSBA Attorney’s Desk Book.


text:
    Mrs. Minette SMITH, Plaintiff-Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellee.
    No. 15541-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiff-appellant.
    Henry M. Bernstein, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Plaintiff appeals a judgment rejecting her claim of loss by theft under her homeowner’s insurance policy for the value of items of personal property stolen from her car while it was parked overnight at a Texas motel. We reverse.

The insurer did not deny the theft, but claimed that because plaintiff had not shown visible means of forcible entry into the car, coverage is excluded by this policy provision:

This policy does not apply to loss away from the described premises of * * * (2) property while unattended in or on any motor vehicle ... unless the loss is the result of forcible entry into such vehicle while all doors, windows or other openings thereof are closed and locked, provided there are visible means of forcible entry upon the exterior of such vehicle ...

The trial court did not base its decision on the credibility of plaintiff and her witnesses, but simply ruled on the sufficiency of that testimony, saying:

“The question is whether or not this testimony is sufficient to establish the presence of visible marks of forcible entry ... One witness testified the molding [rubber gasket around the door window] was cut, one testified it was torn and the most experienced witness testified the molding was disfigured or pressed back. None testified that the marks were not there before the burglary and none testified that entry to the car could have been gained in a manner related to the marks on the molding.”

Plaintiff testified that before retiring at the San Marcos, Texas, motel, she covered the personal items in the back seat of her car with several blankets, placed her pistol under the car seat, closed the windows and locked the doors of the car. She discovered the theft after she left San Marcos the next day when she attempted to find her pistol under the car seat. She then telephoned a Winnfield deputy sheriff to report the theft. He in turn reported it to the San Marcos police and to plaintiff’s Winnfield insurance agent.

The deputy examined the car in Winn-field about a week later and found some slight but visible damage to the molding or rubber gasket around the door window of the car. He said, “it appeared ... that it had been prized and pressed back ... jimmied in some form ... it didn’t appear as though a new car would look or the rubber would look had it not been tampered with.”

One of plaintiff’s friends noticed the damage and called it to plaintiff’s attention. She said, “the black strip on the driver’s side had torn places in it ... the little round rubber thing that goes right beside the glass ... was torn ...” and that there was “a chipped place on her paint.” Plaintiff testified that the “rubber was cut”.

The strong implication of the testimony is that the marks were not on the vehicle before the theft. That the slight damage to plaintiff’s relatively new car was not noticed until after the theft, strengthens the implication, in our opinion. Marks of forcible entry need only be visible on the exterior upon close examination and need not be noticeable at a glance. Scratch marks at the top of a window which were not readily apparent were sufficient to allow recover under a policy with a similar exclusion. Schmidt v. Travelers Ins. Co., 259 So.2d 632 (La.App. 4th Cir.1972). Disturbance of road dust and grime on the rubber gasket has been held to constitute visible marks of forcible entry. Thibodeaux v. Southeastern Fire Ins. Co., 399 So.2d 704 (La.App. 1st Cir.1981). Many vehicle owners have had to enter locked vehicles by forcing a coat hanger or similar instrument between the rubber gasket and the car window and have caused some slight damage to the gasket that is noticeable only upon close inspection and not apparent at a glance.

We must respectfully disagree with the eminent trial judge and find that the evidence presented is legally sufficient to allow recovery. Plaintiff proved that there were visible marks of forcible entry upon the exterior of the vehicle and that she had locked the doors and windows of the vehicle when she left it. This was proved by testimony, as the trial court summarized, that the gasket was cut, torn, and had the appearance of being jimmied or tampered with. Plaintiff is required to prove her case by a preponderance of the evidence and logical inferences drawn from that evidence. She has done so here. The logical inferénce drawn from the testimony is that the loss was the result of forcible entry. See quoted policy provision.

DAMAGES

Plaintiff showed that the following items were stolen: a Sony television, a .357 magnum pistol, a camera and carrying case, two pieces of luggage, an Angora sweater set, a black jacket, two pairs of slacks, two blouses, a skirt, a pair of shoes, a robe and gown set, and other lingerie. The insurance policy entitles plaintiff to recover the actual cash value of the property at the time of loss and not the cost of the items. The trial court did not reach the issue of the value of the items stolen. We remand to allow the trial court to determine the actual cash value of the items at the time of the theft.

In her initial telephone conversation with defendant’s adjuster, plaintiff answered in the negative when asked if there were any broken windows or exterior damage to her car. When testifying, plaintiff explained her answer, saying that she understood that the question referred to broken glass and that she did not understand the meaning of exterior. Under these circumstances, penalties and attorney fees are not assessed under LRS 22:658.

The judgment appealed is reversed and this action is remanded to allow the trial court to determine the actual cash value of the items stolen from plaintiff’s car in the event that value cannot be otherwise resolved by the litigants.

REVERSED and remanded at appellee’s cost.


author: JASPER E. JONES, Judge.

text:
    Dennis L. GARSEE, Plaintiff-Appellee, v. WESTERN CASUALTY & SURETY COMPANY, INC., Defendant-Appellant.
    No. 15542-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Writ Denied Nov. 4, 1983.

      Paul B. Wilkins, Columbia, for plaintiff-appellee.
    Davenport, Files & Kelly, by Thomas W. Davenport, Jr., Monroe, for defendant-appellant.
    Before JASPER E. JONES, FRED W. JONES, and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is an action for damages due to personal injuries suffered in a water skiing accident. After a trial on the merits, the district judge rendered a judgment in favor of the plaintiff, Dennis L. Garsee, and against the defendant, Western Casualty and Surety Company, Inc., for $25,000, the insurer’s policy limits. Western .appeals and we affirm.

Garsee was injured on September 7,1980. He was skiing behind a boat owned and operated by “Pete” Shipp, Western’s insured, when Shipp suddenly made a sharp turn and accelerated causing a powerful jerk on the tow rope which literally flipped Garsee. The plaintiff’s right knee was seriously injured from being wrenched as his ski left and then struck the water.

Garsee brought this action against Shipp’s insurer but Shipp was not made a party to the action. Western answered and raised the defenses of assumption of the risk and comparative negligence as well as denying any negligence by its insured.

The trial judge found that the accident occurred as described above and that Shipp was negligent. He further found that Gar-see had not assumed the risk and that he was not contributorily negligent.

The trial judge fixed Garsee’s damages at $25,428.49 and rendered judgment in his favor for that amount. Western moved for a new trial on grounds that the judgment exceeded its policy limits. The judgment on the motion for new trial limited the insurer’s liability to $25,000.

Western then appealed setting out one primary assignment of error and four alternative assignments. Western contends the trial judge erred in:

1) finding Pete Shipp negligent;

2) failing to find that Garsee had assumed the risk;

3) failing to find Garsee contributorily negligent and apply the doctrine of comparative negligence;

4) awarding excessive damages; and

5) failing to find that Garsee had declined to mitigate his damages.

Assignment 1

Western suggests that Garsee has not proved that Shipp was negligent and alludes to the conflict in the testimony. The plaintiff’s witnesses, Garsee and his wife, testified that the accident occurred as previously described. The defense witnesses testified in substance that there was no accident.

The trial judge found the Garsees to be the more credible witnesses and that the accident occurred in the manner they described. We are in accord with the trial judge’s evaluation of credibility and note that the record provides no basis upon •which we could disturb his evaluation even if we were so inclined.

Our inquiry now is whether Shipp was negligent in making a sharp turn and accelerating, so as to produce a powerful jerk on the two rope, while pulling a skier. We conclude, as did the trial judge, that he was.

Negligence is the breach of a duty to another to protect him from the particular harm that ensued. Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1976).

The operator of a motorboat towing a waterskier is under a statutory duty to operate the boat in a careful and prudent manner. R.S.34:850.15C. This duty extends in favor of both passengers and skiers.

We find Shipp’s operation of his boat in such a manner as to produce a very powerful jerk on the tow rope to have been a breach of his statutory duty to Garsee. The trial judge correctly found that Shipp was negligent. Shipp’s negligence was a cause in fact of Garsee’s injuries.

This assignment of error has no merit.

Assignment 2

Western argues that Garsee assumed the risk of being jerked when he did not release the tow rope upon observing slack in the rope.

Assumption of the risk is an affirmative defense and the burden of proving assumption of the risk rests upon the defendant. Dofflemyer v. Gilley, 384 So.2d 435 (La.1980).

In order to assume the risk one must knowingly and voluntarily encounter the risk which caused him harm and he must understand and appreciate the risk involved and accept the risk as well as the inherent possibility of danger from it. McInnis v. Fireman’s Fund Insurance Company, 322 So.2d 155 (La.1975); Dofflemyer v. Gilley, supra.

The determination of whether a plaintiff has assumed a particular risk is made upon a subjective inquiry into his appreciation of that risk. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971); Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir.1977).

The record shows that moderate jerks on the tow rope as a result of turns creating slack are a normal and expected part of water skiing. Dennis Garsee is an experienced skier and he had encountered and continued to ski through such normal jerks on many occasions. Garsee expected the jerk he experienced while skiing behind Shipp’s boat to be a typical jerk of normal magnitude.

Instead, because of the combination of Shipp’s sharp turn and acceleration, the jerk he actually encountered was an extremely powerful jerk of far greater intensity than those attendant to normal maneuvers. The record does not support the conclusion that Garsee subjectively understood or appreciated the extreme nature of the jerk to which he was exposed by Shipp’s negligence. Garsee had no reason to anticipate the sudden increase of speed that created the tremendous jerk that brought about his accident and injury.

In light of Western’s failure to prove the assumption of the risk the trial judge properly rejected this defense. This assignment of error is without merit.

Assignment 8

Western contends that Garsee was guilty of contributory negligence in failing to release the tow rope when he saw slack in it. The defendant concludes that under the doctrine of comparative negligence, see C.C. art. 2323, Garsee’s negligence should be fixed at 90% and any award of damages reduced by that factor.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Cambridge Mat. Fire Ins. v. State Farm, Etc., 405 So.2d 587 (La.App. 3d Cir.1981); Roberts v. Tidex, Inc., 251 So.2d 509 (La.App. 1st Cir.1971), writ refused, 259 La. 905, 253 So.2d 224 (1971).

Contributory negligence is a question of fact upon which the trier of fact’s determination will not be disturbed on appeal absent manifest error. Chaney v. Cunningham, 411 So.2d 519 (La.App. 1st Cir. 1982); Cambridge Mut. Fire Ins. v. State Farm, Etc., supra; Marshall v. Biggs, 392 So.2d 111 (La.App. 1st Cir.1980), writ refused, 394 So.2d 1244 (La.1980); Martin v. State, Department of Highways, 322 So.2d 827 (La.App. 3d Cir.1975).

One who finds himself confronted with a sudden emergency, not of his own making, is not guilty of negligence because he fails to adopt what, upon reflection, may appear to have been a better course. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972); Wilson v. Kelly, 138 So.2d 837 (La.App. 2d Cir.1962). The existence of a sudden emergency is an appropriate factor to consider when determining contributory negligence. Kaplan v. Missouri-Pacific R. Co., 409 So.2d 298 (La.App. 3d Cir.1981); Robertson v. Travis, 393 So.2d 304 (La.App. 1st Cir.1980), writs denied, 397 So.2d 805, 806 (1981); Hickman v. Southern Pacific Transport Company, supra.

A water skier who knew he was about to encounter a jerk of the magnitude encountered by Garsee and did not release the tow rope to avoid the jerk would be contributorily negligent. If Garsee should have known of the magnitude of the forthcoming jerk then his failure to release the tow rope was contributory negligence. However, the record indicates, as the trial judge found, that the accident “happened quickly and without warning.” The circumstances surrounding the accident, particularly its sudden occurrence and unusual nature, do not indicate that a reasonable man in such a situation should have known that he would be subjected to a powerful jerk.

The trial judge was not clearly wrong in finding that Garsee was not guilty of contributory negligence. This assignment of error lacks merit.

Assignment 4

Western contends that the trial judge awarded excessive damages.

Garsee was injured on the afternoon of September 7. He was unable to sleep that night because of the pain and before dawn the next morning he sought medical attention at a hospital emergency room.

Garsee’s physician, Dr. H.H. Winters, III, gave him medication for pain and nausea. Dr. Winters aspirated 10 cc’s of blood from Garsee’s severely swollen right knee.

Dr. Winters saw Garsee again on September 10,1980, and on that occasion aspirated 25 cc’s of fluid from the injured knee. He gave Garsee an injection for pain and nausea medication. Dr. Winters then referred Garsee to Dr. Sidney L. Bailey, an orthopedic surgeon.

Dr. Bailey saw Garsee on September 11, 1980. He diagnosed Garsee’s injury as a significant, and possibly complete, tearing of the medial knee ligaments and damage to the medial knee cartilage. Bailey recommended immediate surgery to repair the ligaments, however, Garsee declined because of an extreme fear of surgery. Bailey placed Garsee’s knee in a cast and instructed him to perform exercises to maintain the muscle strength in his damaged right leg.

The cast was removed after four weeks and Garsee was instructed to continue his exercises and to bear no weight with his injured leg. Dr. Bailey released Garsee to return to work on November 4, 1980. Dr. Bailey considered Garsee to have a 20-25% disability of his right knee at the time he was released.

Garsee testified that he had experienced much pain from his injury. He stated that his knee is often stiff and painful in the morning. He detailed the pain and difficulty he encounters on his job due to his injury. He testified that the pain is often aggravated by physical activity and that his knee often swells.

Our initial inquiry when reviewing an award of damages must always be directed at whether the award for the particular injuries and their effect upon the particular injured person is a clear abuse of the trier of fact’s much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

Considering the effect of this severe injury on this plaintiff the award made by the trial judge is not excessive. Instead, it appears somewhat low, however, the trial judge may not have fixed damages at a higher level because even those found by him exhausted Western’s policy limits.

This assignment of error has no merit.

Assignment 5

Western argues that the award of damages should be reduced because of Garsee’s failure to mitigate his damages by undergoing surgery. Western contends that Garsee is entitled to no damages in excess of those he would have suffered had he undergone the recommended surgery.

An injured party is obligated to submit to reasonable medical treatment, including surgery, to minimize his damages against a tort feasor; however, the burden is on the defendant to show to what extent damages should be mitigated. Reeves v. Travelers Insurance Company, 329 So.2d 876 (La.App. 2d Cir.1976).

Dr. Bailey, who testified by deposition, stated that the prognosis would have been excellent had Garsee undergone ligament repair surgery within two weeks after the accident. He was less sanguine about the prospects for success of ligament reconstruction surgery performed more than two weeks after the accident.

Bailey explained that in a repair surgery, which he recommended to Garsee, the damaged ligaments can be reattached or sutured back together. He stated that ligament repair surgery cannot be performed more than two weeks after the accident and that past that time surgery would be for reconstruction. He explained that in reconstruction surgery the remaining undamaged ligaments are rearranged around the knee to provide greater support for the joint.

Bailey gave some specific testimony as to the cost of and convalescent period following reconstruction surgery. He did not specifically testify about these “factors with respect to repair surgery but from the totality of his testimony it appears that the cost and period of convalescence would be similar for both.

The trial judge awarded Garsee $18,000 for pain and suffering. No lesser amount would have been appropriate had Garsee undergone the pain and suffering associated with surgery and a minimum recovery period of six months. Had Garsee undergone the recommended surgery he would have been entitled to recover its cost which would have been at least $2,000 and lost wages for a minimum of six months in the amount of $5,626.40. Thus, even had Gar-see undergone surgery as recommended he would have been entitled to damages in the amount of at least $25,626.40, a figure in excess of Western’s policy limits.

As Garsee’s damages would have exceeded Western’s policy limits even had he undergone the recommended surgery, Western is not entitled to any reduction in the judgment by reason of his failure to do so.

This assignment of error lacks merit.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Marzelle Glasgow LEE, Plaintiff-Appellee, v. I.E. LEE, Defendant-Appellant.
    No. 15544-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Writ Denied Nov. 4, 1983.
    Campbell, Campbell & Johnson by Cecil P. Campbell, Minden, for defendant-appellant.
    McConnell, Harris & Associates by James S. Harris and Mary Ellen Halterman, Springhill, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

Defendant, I.E. Lee, appeals a judgment in favor of Marzelle Lee accruing and making executory $2,000 in past due alimony pendente lite and awarding attorney’s fees of $250. The issue presented by this appeal is whether a judgment of separation, silent as to alimony, terminates the effect of a prior judgment on a rule awarding alimony pendente lite. We find that it does not and affirm.

This case arises from the following circumstances. In December, 1981, Mrs. Lee brought an action for separation and a rule for alimony pendente lite. Mr. Lee answered and reconvened for a separation in his favor. On January 27, 1982, the district court granted judgment in Mrs. Lee’s favor on her rule for alimony pendente lite and ordered the defendant to pay alimony pen-dente lite of $250 per month. Mr. Lee paid the alimony due in February and March, 1982.

In April, 1982, the separation action was tried and the district judge rendered judgment in defendant’s favor rejecting the plaintiff’s demand for a separation in her favor and granting a separation in defendant’s favor. The judgment of separation was silent as to alimony.

Defendant did not pay alimony in April, 1982, or any subsequent month. In November, 1982, plaintiff brought this rule to accrue and make executory past due alimony pendente lite and for attorney’s fees. The district judge rendered judgment in plaintiff’s favor and this appeal followed.

The defendant contends that the judgment of separation terminated the effect of the judgment on the rule for alimony pen-dente lite and that, therefore, no alimony was owed in April or subsequent months. The defendant relies on Thevis v. Thevis, 254 So.2d 480 (La.App. 3d Cir.1971). In Thevis the court held that a judgment on a rule for alimony pendente lite which ordered alimony “during the pendency of this litigation” was terminated by a subsequent judgment of separation. The third circuit emphasized the quoted language and cited no authority to support its conclusion.

We note that the judgment on the rule for alimony pendente lite in this case contains no language similar to that which the court quoted and emphasized in Thevis. On this basis we regard Thevis as distinguishable from the instant case. However, to whatever extent Thevis is contrary to the authorities set out below we would decline to follow it even if applicable.

The obligation of support, which is the basis for, and enforced by, an order to pay alimony pendente lite, does not terminate until the marriage is dissolved by death or divorce. Holliday v. Holliday, 358 So.2d 618 (La.1978). Alimony pendente lite is granted without consideration of legal fault and does not depend on the merits or outcome of the action for separation or divorce. Meyer v. Meyer, 402 So.2d 732 (La.App. 4th Cir.1981); Holliday v. Holliday, supra.

The supreme court considered the effect of a judgment of separation on the right to alimony pendente lite previously fixed by rule in Arnold v. Arnold, 186 La. 323, 172 So. 172 (1937). In Arnold the wife brought an action for separation and obtained an order for alimony pendente lite by rule. After trial on the merits the district judge granted the wife a separation but rescinded the order for alimony penden-te lite.

With regard to the action of the trial judge the supreme court observed:

“... From the wording of that part of the decree which put an end to the payment of alimony pendente lite, it seems that the judge considered that the litigation was brought to an end by the decree of separation from bed and board, and hence that there was no longer any occasion for alimony pendente lite. The rendering of a decree of separation from bed and board, however, does not put an end to the wife’s right to have alimony pen-dente lite — which means nothing more than the wife’s right to have the financial support of her husband until the bonds of matrimony are dissolved.” 172 So. at 174.

The court reinstated the order fixing alimony pendente lite.

The court’s ruling in Arnold rejects the suggestion that alimony pendente lite fixed by rule is terminated by a judgment of separation and confirms dicta in Donnels v. Bouillion, 165 La. 145, 115 So. 439 (1928), to the effect that an order for alimony pen-dente lite does not cease to continue in force after the signing of the judgment of separation which is silent on the right to alimony pendente lite.

The issue at hand was again considered in Adams v. Adams, 243 So.2d 318 (La.App. 4th Cir.1971), writ refused, 258 La. 212, 245 So.2d 410 (1971). There the court, relying on Donnels v. Bouillion, held that alimony pendente lite, once fixed by rule, is not terminated by a subsequent judgment of separation which is silent as to alimony. The third circuit also took this position in Tannehill v. Tannehill, 247 So.2d 870 (La. App. 3d Cir.1971), affirmed, 261 La. 933, 261 So.2d 619 (1972), where it stated: “The alimony pendente lite which was fixed by rule continues until judgment of final divorce unless changed by the. trial court at the request of one of the parties because of altered conditions or circumstances.” (citation omitted) 247 So.2d 874. In Delaney v. Delaney, 339 So.2d 945 (La.App. 4th Cir. 1976), the court rejected Thevis and adhered to the views expressed in Adams v. Adams.

We hold that an order of alimony penden-te lite fixed by rule is not terminated by a subsequent judgment of separation which is silent as to alimony. Arnold v. Arnold; Donnels v. Bouillion; Adams v. Adams; Delaney v. Delaney. The defendant owed alimony for the months following the judgment of separation.

The appellant’s assignments of error are without merit. The judgment is AFFIRMED at appellant’s costs.

      . The body of the judgment on the rule reads as follows:
      “IT IS HEREBY ORDERED that I.E. Lee pay unto Marzelle Glasgow Lee TWO HUNDRED FIFTY AND NO/100. — ($250.00) DOLLARS, per month as alimony pendente lite commencing February 1, 1982.”

      . The rationale of the district judge in Arnold is very similar to that of the third circuit in Thev-is.

      . In Adams the husband was awarded the separation and the wife’s reconventional demand for a separation was rejected.