author: YELVERTON, Judge.

text:
    AETNA CASUALTY & SURETY CO., Plaintiff-Appellant, v. M & A FARMS, LTD. and Preston N. Aucoin, Defendant-Appellee.
    No. 84-22.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Michael S. O’Brien, Lafayette, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Aetna Casualty & Surety Co., one of several parties involved in an earlier lawsuit, was cast in judgment in the district court, a decision reversed by us as to Aetna on appeal. See M & A Farms, Ltd. v. Town of Ville Platte, 422 So.2d 708 (La.App. 3rd Cir.1982). Thereafter, Aetna, allegedly by mistake, issued a check in payment of that judgment. Upon discovery of the mistake, Aetna filed the present suit for a return of its money. The defendants in the present case (one of whom was the plaintiff in the original suit) filed several pleadings followed by a motion for summary judgment, which was granted, the trial judge concluding on the summary judgment evidence that the first case had not foreclosed the potential liability of Aetna, and that Aetna’s check was in fact a compromise and not the payment of a judgment by mistake. The district court accordingly dismissed Aetna’s suit for a refund.

Aetna’s present appeal questions the propriety of that summary judgment, and the sole issue before us is whether the summary judgment evidence so conclusively establishes this was a compromise rather than a payment by mistake, that it justifies the judgment of dismissal. We conclude that the evidence is insufficient for a summary judgment, and we reverse, and remand the case for trial.

In the first case M & A Farms, Ltd. sued the Town of Ville Platte, which answered and filed a third party demand against Dodge Construction Company. Dodge in turn filed a third party demand against Paul Fontenot and/or Paul N. Fontenot, Inc., and its insurer, Aetna Casualty & Surety Company. Following trial, the district court rendered judgment in favor of M & A Farms and against the Town of Ville Platte for damages. Additionally, the district court granted judgment in favor of the Town of Ville Platte on its third party demand against Dodge, and also granted Dodge a judgment on its third party demand against Paul Fontenot and/or Paul Fontenot, Inc. and the latter’s insurer, Aet-na. All parties appealed.

This court on appeal affirmed the judgment in part and reversed it in part. Included among the reversals were the judgments for the third party plaintiffs. Our decision was a victory for Aetna Casualty & Surety Company, a third party defendant. Our decision was rendered on November 12, 1982.

On December 27, 1982, Aetna, as the insurer for Paul N. Fontenot and/or Paul N. Fontenot, Inc., issued a cheek to M & A Farms, Ltd. and its attorney, Preston Au-coin, in the amount of $3,992.90. The check contained the notation “FULL & FINAL SETTLEMENT OF ANY AND ALL CLAIMS.”

On August 24, 1983, Aetna filed the present suit against M & A Farms, Ltd., and Preston Aucoin, seeking the return of this money, plus interest, based on unjust enrichment. Petitioner alleged that it had issued the check for $3,992.90, believing that it represented that portion of the judgment rendered by the district court against Aetna and its insured but that, unknown to it, the appellate court had reversed and set aside that judgment.

To this suit the defendants filed several peremptory exceptions, including an exception of no cause of action, an exception of no right of action, an exception of nonjoin-der of indispensable parties, and an exceptions of nonjoinder of necessary parties. At a hearing on the exceptions the trial court rendered four judgments: the first one referred the defendants’ exception of no right of action to the merits; the remaining three overruled the defendants’ exceptions of no cause of action, nonjoinder of indispensable parties, and nonjoinder of necessary parties. After this the defendants filed a motion for summary judgment, which was heard and granted, the trial court dismissing Aetna’s suit for the return of its money.

This is the judgment presently on appeal. The defendants have answered the appeal seeking a review of the trial court’s judgments on the four exceptions in the event the granting of the motion for summary judgment is reversed.

The summary judgment evidence included several affidavits and exhibits, as well as the testimony taken at the hearings on defendants’ exceptions. At those hearings, J. Wendel Fusilier testified that he had represented Aetna and its insured Paul Fontenot, Inc. and/or Paul Fontenot in the prior suit. He explained that on November 16, 1982, he had a telephone conversation with Gaynor Soileau, the attorney for the Town of Ville Platte. Mr. Soileau informed him that the Town of Ville Platte was going to make a demand against Aetna and their insured to pay the judgment rendered against Ville Platte by the Third Circuit Court of Appeal; otherwise they would file suit against Aetna and their insured under their engineering contract with Paul Fonte-not to recover the money. On November 19, 1982, Mr. Fusilier sent a letter to Aetna which informed Aetna that: (1) the Third Circuit Court of Appeal reduced the district court judgment to $3,033; (2) the opinion found Paul Fontenot and/or Paul N. Fonte-not, Inc. to be liable and therefore the City of Ville Platte, as Fontenot’s employer, was liable; (3) the city did not third party Paul Fontenot but that the City could and would still file suit under the contract of employment; and (4) he suggested that Aetna pay the amount of the judgment. On December 22 he informed Aetna that the amount of the judgment including interest was $3,992.90. Aetna responded by sending a check in that amount to his office and he took this as authority to go ahead and pay M & A Farms and its attorney, Preston Aucoin. He had thought that this was a compromise between the parties.

Gaynor Soileau, the attorney for Ville Platte, by affidavit and testimony at the hearing stated as follows: Shortly after the appellate decision he contacted Wendel Fusilier and advised him the City was demanding indemnity from Paul Fontenot and/or Paul N. Fontenot, Inc. based upon Mr. Fontenot’s actions and the contract between the parties. Mr. Fusilier advised him he would recommend that Aetna pay the judgment. He was later informed by Mr. Fusilier that Aetna had agreed to pay the judgment. He never had Aetna or Mr. Fontenot sign a release. Shortly after Mr. Aucoin and M & A Farms had received payment, he was informed by Mr. Aucoin that Aetna was alleging that the check was erroneously made because the policy did not cover contractual liability.

Preston Aucoin, in an affidavit and at the hearing stated as follows: The Town of Ville Platte has never paid the judgment. Shortly after the appellate decision he received a call from Mr. Fusilier who informed him that since Mr. Fontenot was ultimately liable to the city, Aetna would probably pay off the judgment in order to prevent suit being filed by the city. The same facts were communicated to him by Mr. Soileau. Later he received a check from Aetna in the amount of the judgment, and he deposited and disbursed the funds from that check. He never obtained a written release from Aetna or Paul Fontenot.

In evidence is a letter dated January 21, 1983, from Aetna to Gaynor Soileau, informing him that the payment had been erroneously made and sent to Mr. Fusilier. The letter stated that Aetna did not provide contractual liability.

The affidavit of Irma McCoy, the claims representative for Aetna, declared that Aetna issued the check in the sum of $3,992.90 to M & A Farms, Ltd., and its attorney, Preston Aucoin, laboring under the mistake of fact that the appellate court had affirmed the district court decision against Aetna. Shortly after the issuance of the check, she learned the appellate decision had in fact reversed the judgment against Aetna, and she then demanded the return of the money, without success. She stated that Aetna at no time intended to settle any potential cause of action which the Town of Ville Platte may have had against Aetna.

On the basis of this summary judgment evidence we are not at all convinced that Aetna’s intent was to compromise a disputed claim. As this court said in Verrett v. Cameron Telephone Co., 417 So.2d 1319 (La.App. 3rd Cir.1982):

“[1-4] Preliminarily, it should be noted that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Art. 966. Papers supporting the position of the party moving for summary judgment are to be closely scrutinized, while the opposing papers are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). A summary judgment is not appropriate when it is based upon affidavits and accompanying pleadings and other documentary evidence to establish subjective facts such as motive, intent, good faith or knowledge. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir.1974), writ ref. 302 So.2d 308 (La.1974), Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3rd Cir.1969). Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubts should be resolved in favor of a trial on the merits. Cates v. Beauregard Elect. Coop., Inc., 328 So.2d 367 (La.1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Clement v. Taylor, 382 So.2d 231 (La.App.3rd Cir.1980).
“[5] Nor is summary judgment appropriate as a vehicle for the disposition of a case, the ultimate decision in which will be based on opinion evidence or the judicial determination of subjective facts. Butler v. Travelers Ins. Co., 233 So.2d 271 (La.App. 1st Cir.1970); Smith v. Preferred Risk Mutual Ins. Co., 185 So.2d 857 (La.App. 3rd Cir.1966).”

In the analogous case of Hall v. Management Recruiters of New Orleans, Inc., 332 So.2d 509 (La.App. 4th Cir.1976) the plaintiff filed suit for back wages and breach of contract. In its answer defendant alleged that plaintiff was paid all wages due and that she compromised her claim by accepting defendant’s check for $342.38. Defendant moved for summary judgment supported by an affidavit of defendant’s president in which he recited that he tendered a check to the plaintiff on the back of which was the wording “For final payment of all back due salaries, commissions, or any other emoluments.” The check had been endorsed by plaintiff. In determining whether the trial court properly granted defendant’s motion for summary judgment based on the alleged compromise, the appellate court found that the simple notation on defendant’s check and the cashing of the check did not establish a clear intention on plaintiff’s part to accept defendant’s offer of compromise. The court found that such issues involving the intention of the parties were questions of fact, and in the absence of an explicit and detailed contract of compromise, were rarely appropriate for summary judgment.

In the present case defendants contend that there was a compromise agreement between Aetna and the Town of Ville Platte and that the check issued by Aetna to M & A Farms, Ltd., and Preston Aucoin was evidence of that agreement. However, the Aetna representative testified that Aetna never intended to compromise a potential claim that the town had against its insured, and that it issued the check under the mistaken belief that the appellate court had affirmed the district court’s judgment holding Aetna and its insured liable. Thus, there is a factual dispute as to whether there was an agreement to compromise the claim, and it was accordingly not appropriate to grant the defendants’ motion for summary judgment.

Also on appeal defendants raise the correctness of the trial court’s judgment in dismissing their exceptions of no cause of action and nonjoinder of indispensable and/or necessary parties. We find that the plaintiff’s petition does state a cause of action under La.Civil Code art. 2310. This article states in pertinent part:

“Art. 2310. Payment of debt of another
“He who, through mistake has paid the debt of another to whom he believed himself indebted, has a claim to restitution from the creditor.”

In the present case Aetna’s petition stated that it paid M & A Farms and Preston Aucoin thinking that it was liable under the district court judgment. However, the judgment, insofar as it involved Aetna, had been set aside. Under these facts Aet-na through mistake had paid the debt of the Town of Ville Platte, and has a cause of action against the creditors, M & A Farms and Preston Aucoin, for restitution.

It is also clear under this article that the only party defendant necessary to such an action is the creditor. Therefore we find that the trial court properly overruled the defendants’ exceptions of nonjoin-der of indispensable and/or necessary parties.

For the above reasons, the judgments overruling all of the defendants’ exceptions are affirmed. The judgment granting defendants’ motion for summary judgment is reversed and set aside, and the case is remanded to the trial court for further proceedings. Defendants will pay all costs of this appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    Bruce FOURROUX, Plaintiff-Appellant, v. NORTH-WEST INSURANCE COMPANY, Defendant-Appellee.
    No. 84-37.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied March 22, 1985.

      Bernard F. Duhon, Abbeville, for plaintiff-appellant.
    Mouton, Roy, Carmouche, Bivins, Judice & Henke, Alan K. Breaud, Lafayette, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Bruce Fourroux appeals a judgment in favor of his employer, P & A Well Service, and its insurer, North-West Insurance Company, denying Fourroux workmen’s compensation benefits for total and permanent disability; he also seeks medical expenses and penalties and attorney’s fees. The determinative issue is whether the trial court erred in finding that Fourroux failed to prove by a preponderance of the evidence that his back injury resulted from a work-related accident. We affirm, finding Fourroux failed to carry his burden of proof, therefore, we pretermit the remaining assignments of error.

FACTS

We are benefited by the learned trial judge’s well considered written reasons for ruling that sets forth the factual setting as follows:

“Plaintiff, a twenty-one year old male, has alleged that he and a fellow employee left their employer’s New Iberia office in a company vehicle around 5:30 a.m. on the morning of December 14, 1982. The pair traveled to a remote location near Cameron, Louisiana where they were to load pipe onto their truck. The pipe was raised by a wench operated by Warren Ellender. Plaintiff was assigned to make certain that the pipe remained balanced while it was being raised. It was while he was engaged in this process that plaintiff alleges he felt a sharp pain in his lower back. Plaintiff states that he immediately called out to Mr. Ellender that he had been hurt. Mr. Ellender purportedly replied that plaintiff’s injury was inconsequential and that the two of them should continue working in order to complete the job as soon as possible. At trial, plaintiff testified that the truck and wench were very noisy and that it was possible that Mr. Ellender did not hear his complaint. Plaintiff also testified that he complained to Mr. Ellender several times during the return trip to New Iberia.
Plaintiff further states that he continued to work in pain while loading the remaining pipe and that upon returning to his employer’s office he notified his tool-pusher of the injury and filled out an accident report. Thereafter, plaintiff left work and went home to clean up. From there he went immediately to the office of his family physician to seek treatment.”

In determining whether Fourroux met his burden of proving his case by a preponderance of the evidence, the trial judge applied the correct standard as stated in his reasons herein:

“The law is clear that although procedural rules are construed liberally in favor of the claimant in a workmen’s compensation suit, the burden of proof nevertheless rests on plaintiff to prove his case by a preponderance of the evidence, as is required in other civil cases. [See Crochet v. American Tobacco Co., 407 So.2d 1330 (La.App. 3rd Cir.1981).] The testimony as a whole must show that more probably than not a work-connected accident occurred, and that it had a causal relationship to the claimant’s disability. Prim vs. City of Shreveport, 297 So.2d 421 (La.1974), Calais vs. Petroleum Helicopters, Inc., 330 So.2d 408 (3rd Cir.1976).
The law is equally well settled that the testimony of a plaintiff alone in a workmen’s compensation case is sufficient to establish the occurrence of an accident, if there is nothing to discredit his account thereof and where his statements are supported by the surrounding circumstances. [See White v. Freeport Chemi cal Company, 319 So.2d 563 (La.App. 4th Cir.1975), writ denied, 323 So.2d 132; Crochet, supra.] In evaluating the evidence, the Court should accept as true and uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances casting suspicion on the reliability of this testimony. West vs. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), Williams vs. Offshore Food Service, Inc., 417 So.3d 475 (1st Cir.1982), Jones vs. Alexander, 399 So.2d 216 (2nd Cir.1981), [writ denied, 400 So.2d 1383], Hall vs. Georgia-Pacific Corp., 390 So.2d 948 (2nd Cir.1980), Walker vs. Balden [sic] Corp., 331 So.2d 167 (3rd Cir.1976).
Our jurisprudence also requires that when the plaintiff has had several prior injuries to the same part of his body and has had considerable experience in making workmen’s compensation claims, the Court will look with great suspicion on the asserted claim and will examine the claim with particular care. Sinegal vs. Travelers Insurance Co., 319 So.2d 866 (3rd Cir.1975), Hand vs. Reeves, 378 So.2d 1064 (2nd Cir.1979), [writ denied, 380 So.2d 72 (La.1980) ].”

The trial judge applied this well established standard to the present case as follows:

“The Court finds that the above rule applies to this ease in light of plaintiffs history of back injury and experience in making workmen’s compensation claims. In this case the plaintiff was the only witness to the alleged accident. The Court finds that the following factors tend to cast suspicion on plaintiff’s testimony:
(1)Plaintiff continued with his assigned duties even though he had allegedly been involved in an injury producing accident. Furthermore, plaintiff never mentioned his accident to any of his co-employees. Although plaintiff testified that he reported the accident to Warren Ellender, Mr. Ellender denied under oath that plaintiff told him of the accident prior to the time they returned to New Iberia. See: Hand vs. Reeves, supra at 1065-1066, Walker vs. Balden [sic] Corp. at 170, Calais vs. Petroleum Helicopters, Inc., supra at 409, White vs. Freeport Chemical Co., 319 So.2d 563 at 565 (4th Cir.1975), [writ denied 323 So.2d 132], and Carter vs. Casulty [sic] Reciprocal Exchange, 163 So.2d 855 at 856 (2nd Cir.1964).
(2) No unusual or restricted movement was noted in plaintiff by any of his fellow employees following the alleged accident. Plaintiff continued to work in a normal manner while with Mr. Ellender and also after returning to his employer’s New Iberia office. See: Jones vs. Alexander, 399 So.2d 216 at 217 (2nd Cir.1981), Hand vs. Reeves, supra, at 1066, and Carter vs. Casulty [sic] Reciprocal Exchange, supra, at 856.
(3) The veracity of plaintiff’s testimony was severly attacked by defendant’s counsel. His testimony revealed several instances of inconsistencies and apparent contradictions. Jones vs. Alexander, supra, at 217, and Carter vs. Casulty [sic] Reciprocal Exchange, supra, at 857.
(4) Plaintiff has a history of back injuries including prior employment related back injuries for which he received workmen’s compensation benefits. Plaintiff’s history also reveals several automobile and motorcycle accidents which may have resulted in lower back injuries. See: Jones vs. Alexander, supra, at 219, Meador vs. International Paper Co., 348 So.2d 997 at 998 (2nd Cir.1977) and Sinegal vs. Travelers Insurance Co., supra, at 866.
(5) Plaintiff did not report his prior injuries or workmen’s compensation claims to his employer either on his employment application or during a post-injury interview. Plaintiff’s failure to make a full disclosure of his back injuries and statement that he did not have to tell the truth at a post-injury interview because he was not under oath shows a tendency on his part to provide only the information that he finds is in his best interest. See: Meador vs. International Paper Co., supra, at 999, and Hall vs. Georgia-Pacific Corp., supra, at 948 and 951.
(6) The testimony at trial indicated that the nature of plaintiffs job duties at the time of the accident was not strenuous. See: Hall vs. Georgia-Pacific Corp., supra, at 951.
Furthermore, Dr. John Thibodeaux, the doctor who examined plaintiff on December 14, 1982, found no objective symptoms of plaintiffs injury and did not attribute plaintiffs complaints of pain to a recent injury. Dr. Louis Blanda did discover objective indications of plaintiffs injury in February and April, 1983. However, Dr. Blanda stated that if plaintiff had had leg pain and neurological symptoms previously, then there would be no way to correlate these objective findings with the particular incident plaintiff had described. (Dr. Blanda’s deposition at Page 22). In fact the plaintiff did complain of leg pain and neurological symptoms as a result of a back injury he sustained while working for another employer in 1981. Therefore, the medical evidence does not corroborate the plaintiffs assertion that an accident occurred.”

It is well settled that a reviewing court must give great weight to factual conclusions of the trier of fact, particularly when they involve a determination of the credibility of witnesses, thus a reviewing court should not disturb this factual finding in the absence of manifest error. Crochet, supra; Calais, supra; Canter v. Koehring Company, 283 So.2d 716 (La.1973).

After a careful review of the record, we find that Fourroux failed to meet his burden of proving his case by a preponderance of the evidence. We likewise find that the record does not support that the trial judge committed manifest error.

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

AFFIRMED.


author: DOUCET, Judge.

text:
    Bobbie J. GOLEMAN, Plaintiff-Appellant, v. KROGER & COMPANY, INC., et al., Defendant-Appellee.
    No. 84-43.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Eugene P. Cicardo, Alexandria, for plaintiff-appellant.
    David A. Hughes of Gist, Methvin, Hughes, Munsterman, Alexandria, Trimble, Percy, Smith, Wilson, Foote, Walker & Ho-neycutt, James T. Trimble, Jr. and Elizabeth E. Foote, Alexandria, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

Bobbie J. Goleman, plaintiff-appellant, instituted this action against Kroger and Company, Inc. and its liability insurer, Insurance Company of North America, and Kroger’s lessor, John Clai Company and its liability insurer, Royal Globe Insurance Co. The plaintiff seeks damages for injuries sustained when she allegedly slipped and fell on the sidewalk in front of the Kroger grocery store in the MacArthur Village Shopping Center in Alexandria, Louisiana. A jury concluded that neither defendant was negligent and denied the recovery of any damages. The plaintiff-appellant perfected this devolutive appeal of the adverse judgment.

The plaintiff-appellant alleges that on February 16, 1981, she injured her back when she slipped on an oily substance as she was stepping onto the sidewalk in front of the Kroger grocery store, causing her to fall and injure her back. The plaintiff stated that immediately after her fall, the store manager came outside to assist her and provided her with a chair as he examined the oily spot that caused her fall. The store manager testified that he did not go outside to the site of the alleged incident but instead discussed the alleged fall with the plaintiff inside the store after he was notified of the plaintiff’s complaint by a cashier at Kroger’s. In addition to the store manager’s contradictory version of these events there was also a third party customer who testified that he saw the plaintiff stoop down in the parking lot in order to pick up her keys and then proceed into the grocery store without incident. Other witnesses who are employees at Kroger’s testified that they did not see the plaintiff fall although they did not see her approaching the store. But these employees did state that there were no oily stains on the plaintiff’s dress but only some dirt and water. It was clearly established that it had rained on the day in question and that the sidewalk in front of Kroger’s was wet with rain water. In short, there were no eyewitnesses who would corroborate the plaintiff’s version of these events.

After receiving elaborate instructions from the trial judge concerning the appropriate standard of care for the respective defendants, the jury rendered a unanimous verdict finding neither defendant to be negligent in any way.

The plaintiff-appellant contends that the trial court erred in refusing to charge the jury with instructions concerning strict liability pursuant to La.C.C. Art. 2317. The record indicates that the plaintiff’s counsel specifically requested this instruction and that the trial court explicitly refused to include this instruction in his charge to the jury. The plaintiff-appellant also contends that the jury was clearly wrong in its factual conclusion that neither defendant was negligent.

La.C.C. Art. 2317 has become the basis of an expanding source of liability. A landmark case that established this basis of liability is Loescher v. Parr, 324 So.2d 441, 447 (La.1975). In Loescher, Justice Tate of the Louisiana Supreme Court supplied the analysis to be used in deciding cases involving strict liability: “When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from the legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others”. Loescher, supra at 446. Justice Tate added that once the vice and resulting damage caused thereby is proved, the guardian can escape liability only if he shows the harm was caused by the fault of the victim, third party fault or irresistible force. Loescher, supra at 447.

The plaintiff-appellant argues that the trial judge should have instructed the jury in this particular area of the law in addition to his instructions concerning the standard of care imposed by law on storekeepers and landlords. The appellant contends that such an instruction was justified by the defective design of the sidewalk in relation to the parking lot which caused oil refuse from cars to drain onto the sidewalk. This argument is without merit.

The initial decision of whether a thing poses an unreasonable risk of harm is one of law for the court to make and must be based on the court’s appreciation of whether reasonable minds can differ on the point. If the court believes the thing does present an unreasonable risk of harm, or that reasonable minds could differ, only then is it appropriate to instruct the jury on the law set forth in La.C.C. Art. 2317, Kent v. Gulf States Utilities Co., 398 So.2d 560 (La.App. 1st Cir.1980), affirmed, 418 So.2d 493 (La.1982). The record does not suggest any defect in the design or construction of the sidewalk. The trial court was correct in concluding as a matter of law that the facts of the case did not merit jury instructions concerning the legal principles of Art. 2317. The trial court correctly concluded that this case involved a determination of the existence of negligent conduct on the part of the defendants. Furthermore, the trial court instructed the jury about the strict legal presumptions of negligence in such slip and fall eases. The trial court’s jury instructions were correct and clear and therefore do not warrant a reversal.

The appellant’s second assignment of error concerns the admissibility of testimony which slightly varied from answers made by the defendant-lessor to interrogatories propounded by the plaintiff. The questions concerned the clean-up procedures used by the lessor for the maintenance of the shopping center. After stating that he is responsible for cleaning the exterior of the shopping mall area, the lessor said that the parking lot and the sidewalk were swept and cleaned daily between 5:00 A.M. and 6:00 A.M. At the trial, over the plaintiff’s objections, the custodian testified that the cleaning was in fact completed at approximately 7:30 A.M. on a daily basis and, in addition to this routine chore, a watch over the premises was kept in order to detect anything unusual in the parking lot and sidewalk area. The plaintiff objected to this testimony on the ground that a significant discrepancy exists between the answer to the interrogatory and the testimony concerning the clean-up procedure and that this discrepancy and the unexpected content of this testimony prejudiced her case. In the appellant’s brief it is contended that by allowing this testimony at the trial, the trial court committed a reversible error in light of the issues of negligence in this case. This argument is without merit.

La.C.C.P. art. 1471 provides that the trial court may exclude testimony at the trial which is at odds with answers to interrogatories. But this power is discretionary and is to be exercised only when the ends of justice dictate the exclusion of the testimony. Johnson v. Petit, 236 So.2d 304 (La.App. 3rd Cir.1970). If the trial court elects to allow the testimony to be heard and weighed together with the answers to the interrogatories, then in the absence of abuse of the trial court’s discretion, there is no reversible error. Giroir v. Pamm’s of Houma, Inc., 341 So.2d 1346 (La.App. 1st Cir.1976). Furthermore, it should be noted that such answers are not judicial admissions but merely constitute additional evidence to be weighed with other evidence. La. 2291; Giroir, supra.

The appellant fails to demonstrate any abuse by the trial court of its discretion regarding the admissibility of this testimony. The issues involved in the discrepancy are relevant to the issue of negligence but the differences are ones of degree and not the existence or non-existence of acceptable clean-up procedure. In light of this fact and the uncorroborated character of the plaintiff’s version of these events, it is unlikely that the exclusion of the testimony would have affected the outcome of the case. Therefore, we find that the trial court did not abuse its discretion in allowing the testimony in question. Consequently this case will not be reversed on this ground.

Finally, the appellant argues that the jury was clearly wrong in concluding that there was no negligence on the part of the defendants. The argument is without merit. It is well settled that the conclusions of the trier of fact are not to be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). This trial involved a substantial amount of testimony by several witnesses. The genuine issue was reduced to a contradiction between plaintiff’s uncorroborated version of her alleged accident and the testimony of various witnesses who disputed many portions of the plaintiff’s testimony. In light of this evidence and from our review of the record we hold that the jury in this case was not clearly wrong in finding no negligence on the part of the defendants. The jury’s verdict is affirmed.

For the foregoing reasons the trial court’s judgment is affirmed. Plaintiff-appellant is assessed the costs of this appeal.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Sandra Ann LOPEZ, Plaintiff-Appellee, v. Frank J. BREAUX, Defendant-Appellant.
    No. 84-46.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Reule P. Bourque, Kaplan, for defendant-appellant.
    Broadhurst, Brook, Mangham, Hardy & Reed, Wayne A. Shullaw, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

The defendant in this suit for divorce appeals the judgment of the trial court insofar as it awards his former wife permanent alimony in the sum of $125.00 per month and child support in the amount of $375.00 monthly.

Frank J. Breaux and Sandra Ann Lopez were married on February 15, 1974. One child was born of the marriage, Frank J. Breaux, Jr. Sandra obtained a separation from bed and board on the ground of cruel treatment by default judgment dated June 10, 1982. This judgment awarded custody of Frank, Jr., to the plaintiff and ordered the defendant to pay $300.00 per month in child support. This judgment contained no provision requiring payment by defendant of alimony pendente lite. On December 16, 1982, plaintiff filed the instant suit seeking a divorce pursuant to La. R.S. 9:302.

Defendant answered the petition and requested a reduction in the child support payments to $100.00 per month. Plaintiff responded by filing a rule to fix permanent alimony and to increase child support. By judgment dated May 18, 1983, plaintiff was granted a divorce, permanent custody of Frank, Jr., subject to reasonable visitation rights of the defendant, and child support in the amount of $375.00 per month. A separate hearing was held on the issue of permanent alimony. Neither defendant nor his attorney were present in court at that hearing. The rule was taken up and tried nonetheless and judgment was rendered ordering defendant to pay $225.00 per month to plaintiff in permanent alimony. Defendant thereafter moved for a new trial. This motion was denied by the trial court.

On September 20, 1983, defendant filed a rule to terminate alimony and to reduce the amount of child support. A hearing on the rule was held on September 26, 1983. The trial court denied defendant’s motion to terminate alimony and to reduce child support. However, the trial court did reduce the amount of permanent alimony from $225.00 per month to $125.00 per month. Defendant appealed.

Defendant’s principal argument on appeal is that the trial court erred in refusing to terminate permanent alimony in light of plaintiff’s and defendant’s respective employment situations at the time of the hearing. Defendant also contends that $375.00 per month in child support is excessive.

PERMANENT ALIMONY

Article 160 of the Louisiana Civil Code authorizes alimony after divorce “when a spouse has not been at fault and has not sufficient means for support.” Article 160 then limits the award of alimony, to a spouse who has been without fault, to one-third of the former spouse’s income.

To be entitled to permanent alimony under Article 160, the petitioning spouse must establish that she has insufficient means to support or maintain herself. Frederic v. Frederic, 302 So.2d 903 (La.1974). A determination as to whether a spouse possesses “sufficient means” within the intendment of Article 160 is not determinable by precise formula. The courts look at various factors but the principal factor to be considered is the relative financial positions of the parties. Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4th Cir.1978), writ denied, 358 So.2d 644, 645 (La.1978).

As we stated in Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir.1980):

“The term ‘support’ or ‘maintenance’ has been interpreted to include food, clothing, and shelter, the basic necessities of life, Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), as well as reasonable and necessary transportation expenses, utility expenses (such as gas and electricity), medical and drug expenses, household expenses, and income tax liability generated by the alimony payments, Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).”

On May 16, 1983, the trial court initially awarded Sandra the sum of $225.00 per month in permanent alimony. The record reflects the respective financial positions of the parties at that time to be as follows. On the date of hearing, neither Sandra nor Frank were employed. Sandra had been laid off from her job with Coastal Chemical, Inc. for approximately one month. Frank was laid off by Sealand Contractors, Inc. on April 21, 1983. He had been employed with Sealand since January of that year. Frank was unable to continue craw-fishing his uncle’s 30-acre crawfish pond as of May 1, Í983. Frank was thus left without any source of income. He was living rent free at the time in a home owned by his mother.

On September 20, 1983, Frank filed a rule to terminate alimony and to reduce child support. A hearing on this rule was held on September 26th. At this point in time, Sandra had secured employment with a Lafayette law firm. Her salary was $1,300.00 per month. Her expenses, as listed in the affidavit which was admitted in evidence at the hearing, were $1,625.00 per month (an increase of $39.44 since the initial hearing). We note here that the affidavit included some expenses which are not within the scope of Article 160, such as the miscellaneous expense item of $200.00 per month which Sandra stated was for “any gifts, any parking fees, any unexpected expenses that might come up ... ”. Also listed was $250.00 per month in miscellaneous charge accounts. Assuming that this figure represents the purchase of items which are properly compensable under Article 160, then this amount had already been included in the itemized expenses. To allow this figure to be added along with the other expenses would be to duplicate some of Sandra’s expenses. We thus find that her actual expenses, as reflected by her affidavit, as far as Article 160 is concerned, amount to $1,175.00 per month.

Frank, on the other hand, was still unemployed. He was collecting $793.00 per month in unemployment benefits. Frank had resumed crawfishing, but as of that time had not made any profits. Two days prior to the hearing, he began working for his uncle at the rate of $25.00 per day. He stated that his total income would remain at $793.00 per month despite these odd jobs since his unemployment benefits would be reduced by the amount of other income which he received. Frank was no longer living rent-free, but was paying $100.00 per month rent to his mother. He had also taken out two loans from Vermilion Bank and Trust Company in the amount of $300.00.

Frank contends that any award of post-divorce alimony, under the circumstances recited, is erroneous and contrary to Article 160, considering the respective financial situations of the parties.

A spouse who seeks the modification of an alimony award must show a change in circumstances of one of the parties from the time alimony was fixed. Green v. Green, 432 So.2d 959 (La.App. 4th Cir.1983); Ducote v. Ducote, 339 So.2d 835 (La.1976).

In the present case, Frank successfully met his burden of proving a change in circumstances justifying a termination of alimony. At the time of hearing, Sandra was gainfully employed at a salary of $1,300.00 per month, with expenses of $1,175.00 per month. Frank’s income had increased to $793.00 per month, but so had his expenses. According to his affidavit which was admitted in evidence, his monthly expenses were $750.00 per month, not considering the $375.00 per month which he is obligated to pay for the support of Frank, Jr.

The trial court is vested with much discretion in fixing the amount of alimony and/or child support, and such award will not be disturbed on review unless there has been a clear abuse of discretion or manifest error in the trial court’s factual appreciations. Hyams v. Hyams, 365 So.2d 527 (La.App. 3rd Cir.1978); Renfroe v. Renfroe, 428 So.2d 875 (La.App. 1st Cir.1983). Considering this rule and after examining the record in light of such, we find that the trial court did abuse its discretion. When the relative financial positions of the parties are considered, we conclude that Sandra Lopez had “sufficient means for her support” within the meaning of Article 160 as interpreted by the courts of this state. She was thus not entitled to post-divorce alimony. We will therefore reverse the trial court’s award of alimony to Sandra observing that our decree is subject to later modification upon a proper showing of a change in circumstances. Lynn v. Lynn, 430 So.2d 363 (La.App. 3rd Cir.1983), writ den., 434 So.2d 1094 (La.1983).

CHILD SUPPORT

The defendant alleges that the trial court erred in granting child support in the sum of $375.00 per month in view of his unemployment and limited income.

It is well settled that, in order to excuse himself from the obligation of providing minimal financial assistance to his child, a husband must show that he is absolutely unemployable, not merely that he is unemployed at the time. Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir.1975); McKenna v. Steen, 422 So.2d 615 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 157 (La.1983).

In his written reasons for judgment, following the increase in child support from $300.00 to $375.00 per month, the trial judge stated:

“The evidence was clear that defendant (husband) has a past history of making a concerted effort to avoid his obligation of child support. It is well settled in this state that a father may not avoid his obligation by not working. Rakosky v. Rakosky, 275 So.2d 421. Further, in order to excuse a husband’s obligation to support, he must show that he is absolutely unemployable, not merely unemployed at the time. Sykes v. Sykes, 308 So.2d 816. While it is true in the instant case that defendant was unemployed at the time of the trial, it is also true that he worked steadily throughout 1983. The earning capacity of the father can be considered in fixing amount of support. Watkins v. Watkins, 424 So.2d 269. The Court is aware of the economic conditions in the area, but also is aware that defendant could earn regular amounts if he so desired.”

We agree with the trial judge. There is no showing in the record that the defendant is unemployable.

The record shows Frank Jr.’s monthly expenses to be $660.00. We find no abuse of the trial judge’s discretion in ordering defendant to pay child support in the sum of $375.00, in light of his $793.00 per month unemployment draw. There is supportive evidence in the record that defendant is capable of working and earning a sufficient income to pay the ordered child support.

Accordingly, the judgment appealed from is amended, so as to eliminate therefrom the alimony award of $125.00 pér month made to Sandra Ann Lopez, and, as amended, it is affirmed at defendant’s cost.

AFFIRMED AS AMENDED.


author: KING, Judge. STOKER, Judge,

text:
    Sharon Ruth GRAPPE, Plaintiff-Appellee, v. STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 84-49.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 12, 1985.

      Thomas L. Crabson, Asst. Gen. Counsel, Baton Rouge, for defendant-appellant.
    John Makar, Natchitoches, Gahagan & Gahagan, Marvin F. Gahagan, Natchitoch-es, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

This is a suit for damages, brought against the State of Louisiana, Dept, of Transportation and Development, for injuries received by plaintiff, who was a guest passenger in a vehicle driven by Miss Mary Janette Graham, as a result of a one vehicle automobile accident which occurred when Miss Graham’s vehicle left the state highway, encountering a low highway shoulder and loose gravel on the highway shoulder, and subsequently went out of control.

This case was consolidated for trial with the suit of Mary Janette Graham v. State of Louisiana, through the Department of Transportation and Development, Number 49-223 on the trial court docket. These suits remained consolidated on appeal and, since the law and relevant facts are common to both, our opinion here is equally applicable. However, we render a separate judgment in the consolidated case of Graham v. State of Louisiana, through the Department of Transportation and Development, — So.2d - (La.App. 3rd Cir.1985).

This appeal arises out of a one-car accident which occurred on May 26, 1980, around 5:30 P.M., on Louisiana State Highway 9, in Natchitoches Parish. The ease involves a “defective shoulder” along a state highway. As a result of the accident plaintiffs, Mary Janette Graham and Sharon Ruth Grappe, were seriously injured. They filed suits against the Louisiana Department of Transportation and Development (DOTD), alleging that DOTD was negligent in failing to maintain the roadway and shoulder and in permitting the shoulder to be dangerously lower than the roadway. They also alleged that DOTD was negligent in failing to post signs to warn drivers of a low shoulder and for leaving the shoulders in an unfinished condition. The trial judge rendered judgment in favor of the plaintiffs. DOTD appealed. Sharon Ruth Grappe answered the appeal seeking to increase the award for pain and suffering to twice the amount awarded. We affirm.

FACTS

On the day of the accident, the plaintiffs had been enjoying the Memorial Day holiday at a lake near Saline, Louisiana. At the beach, they had a picnic where each of the girls consumed two or three beers during the course of the day. They remained at the lake until approximately 5:00 P. M., when they left to return home. It was on the trip home that the accident occurred.

At the time of the accident, Miss Graham was proceeding South on Louisiana Highway 9, accompanied by her friend, Miss Grappe. Miss Graham testified that she had traveled this road at least once a week during the summertime for the preceding five years. She testified that this was one of the first times she had traveled this road since the previous summer and that the traveled roadway surface had an even surface and there were no potholes or defects. She estimated her speed to be between 50 and 55 miles per hour in a speed limit zone of 55 miles per hour. Miss Graham stated the area on which they were traveling appeared to her to have been recently resurfaced. Miss Graham testified that she did not know that the shoulders had not been raised to the level of the new roadbed. Testimony and photographs subsequently introduced at trial indicate the shoulder was at least six to eight inches lower than the traveled roadway surface. Sharon Graham’s brother, Maurice Pardee, observed the area following the accident, and also observed and took pictures of the drop-off and noted there were no “low shoulder” signs present.

While traveling on a straight and level portion of the highway Miss Graham’s vehicle, or the right wheels of the vehicle, inadvertently left the roadway surface and the vehicle traveled approximately 125 feet on the low shoulder. As she attempted to gradually reenter the roadway her vehicle encountered loose gravel on the shoulder, went out of control, crossed the highway and ran over a small concrete culvert in a driveway. Her car then rolled over at least once before striking a large pine tree and coming to rest. Both Miss Graham and Miss Grappe were thrown from the vehicle and suffered serious injuries.

A state trooper called to the scene immediately after the accident was the only witness to testify for the DOTD. The trooper made an estimate of the speed of the Graham vehicle at the time of the accident and testified that there were no low shoulders in the area of the accident. The trial judge found that his testimony was unreliable and apparently did not accept it as evidenced by a quote from his opinion:

“The only defense witness was State Trooper Donald R. Shropshire, who testified that when he arrived at the scene and investigated the wreck, he found that the vehicle being driven by Ms. Graham was traveling North, and that all other aspects of his testimony concerning his investigation was as true and accurate as this statement concerning the direction that Ms. Graham was driving.
“The truth of the matter was that Ms. Graham was not going North, she was traveling South.
“The trooper further testified inaccurately as to the particular type of vehicle Ms. Graham was driving at the time of the accident.”

After trial on the merits, the trial judge found the shoulder was defective and was the sole and proximate cause of the accident. The trial judge found that Miss Graham was not negligent. In his reasons for judgment, the trial judge stated:

“The Court finds that she was driving at a reasonable rate of speed; she was not inattentive or distracted, and that the sole and proximate cause of the accident was the negligence of the State of Louisiana, Department of Transportation and Development, in maintaining an unsafe highway; that Ms. Graham was not negligent in any manner.”

Judgment was rendered, awarding Miss Graham $42,543.60 and Miss Grappe $75,-256.49, with $12,500.00 included in each award for pain and suffering. The court also awarded intervenor, State Farm Mutual Automobile Insurance Company, the insurer of the Graham vehicle, the sum of $18,767.60 that it had paid on behalf of plaintiffs.

From that judgment, DOTD appeals, alleging the trial court erred in:

(1) Finding a defect;
(2) Finding the condition of the highway was a proximate cause of the accident;
(3) Failing to find Miss Graham’s action were the sole and proximate cause of the accident; and
(4) The amount of damages awarded to plaintiffs.

ERROR NO. 1

An abrupt drop-off between a roadway and shoulder constitutes a defect. LeBlanc v. State Dept. of Highways, 419 So.2d 853 (La.1982); Lang v. Prince, 447 So.2d 1112 (La.App. 1st Cir.1984). The DOTD has the basic responsibility for maintenance of all highways and highway shoulders in the state highway system. LSA-R.S. 48:21, 191; Palermo v. Allstate Ins. Co., 415 So.2d 437 (La.App. 1st Cir.1982); LeBlanc, supra. The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may drive onto the shoulder inadvertently having no knowledge or reason to have knowledge of a defective condition of the shoulder that would make such action hazardous. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). This duty includes passengers in vehicles that stray from the road. Sini-tiere, supra. Although the exact depth of the drop-off was not determined, the trial judge determined that the plaintiffs photographs “clearly show a substantial dropoff on Highway 9, with several inches in variation between the blacktop surface and the shoulder of the road.” We agree with the trial judge that the drop-off constituted a defect in the highway.

ERROR NO. 2

Causation is a question of fact as to which the trial court’s determinations are entitled great weight and should not be disturbed absent manifest error. Rivet v. State, through Dept. of Transp., 434 So.2d 436 (La.App. 3rd Cir.1983); Smith v. State, through Dept. of Transp., etc., 412 So.2d 685 (La.App. 3rd Cir.1982), writ den., 413 So.2d 907 (La.1982).

We next consider whether the defective shoulder was the proximate cause of the accident. It is well established that DOTD is charged with the duty of maintaining highway shoulders in a safe condition. McSweeny v. Dept. of Transp., etc., 442 So.2d 659 (La.App. 1st Cir.1983); LeBlanc v. State Dept. of Highways, supra; Palermo v. Allstate Ins. Co., supra. We find DOTD’s duty of maintaining the shoulder of state highways encompasses the risk that a driver who is operating a vehicle within the posted speed limit might inadvertently leave the roadway, drop off onto the shoulder and lose control of the vehicle. In Rue, supra, the Supreme Court held:

“[T]he Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder.” Rue v. State Dept. of Highways, 372 So.2d 1197 (La.1979).

Both plaintiffs testified about the loose gravel on the shoulder. The photographs in evidence confirm the presence of loose gravel on the shoulder. Mrs. Graham testified that as she started to gradually re-enter the roadway that the car hit loose gravel on the shoulder and that made her lose control. This testimony is uncontradicted.

The risk encountered by the plaintiffs, the loss of control of their vehicle after inadvertently dropping off the traveled roadway surface of the highway onto a low shoulder and then encountering loose gravel when trying to reenter the traveled roadway surface, is exactly the type of danger which could be caused from such road conditions and is exactly why a highway shoulder should be maintained in a reasonably safe condition so a motorist’s inadvertent deviation onto it will not lead to disastrous consequences. We do not find that the trial judge’s conclusion that the hazardous condition of the highway was the cause in fact of the accident is manifestly in error.

ERROR NO. 3.

Defendant contends that Miss Graham was negligent in re-entering the roadway and that her negligence was the proximate cause of the accident. See Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Thomas v. Jackson, 442 So.2d 1186 (La.App. 2nd Cir.1983); Edwards v. State, Dept. of Transp. & Dev., 403 So.2d 109 (La.App. 3rd Cir.1981); Godwin v. Gov’t. Emp. Ins. Co., 394 So.2d 751 (La.App. 3rd Cir.1981). A reading of these cases show that in each instance the court found the drivers’ actions substandard in “negligent re-entry” from the low shoulder. In other cases the court has apparently not found the drivers’ actions in entering the roadway from a low shoulder substandard and allowed recovery. Cultivan v. State Farm Mut. Auto. Ins. Co., 428 So.2d 1231 (La.App. 3rd Cir.1983); Murphy v. La. Dept. of Transp. & Dev., 424 So.2d 344 (La.App. 1st Cir.1982); McDaniel v. State, Dept. of Transp. & Dev., 398 So.2d 88 (La.App. 3rd Cir.1981). In still other cases the Louisiana courts have allowed recovery to a driver entering the roadway from a low shoulder where there has been a low shoulder and a defect in the shoulder itself. Cf. Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979); Palermo v. Allstate Ins. Co., 415 So.2d 437 (La.App. 1st Cir.1982).

The Louisiana courts have recognized that prudent behavior for a motorist who inadvertently drives off the paved roadway onto a low shoulder is to attempt a gradual re-entry after he has regained control of his vehicle. See Pitre v. Aetna Ins. Co., et al, 456 So.2d 626 (La.1984); LeBlanc v. State, supra; Sinitiere v. Lavergne, supra.

We have carefully reviewed the evidence presented in the record in this case and we are unable to conclude that the trial judge’s finding that Ms. Graham was not negligent is manifestly erroneous. We thereby adhere to this finding of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Cullivan v. State Farm Mut. Auto. Ins. Co., supra.

Therefore, we reject defendant’s assertion that Miss Graham's actions were the sole and proximate cause of the accident and find that the defective low shoulder and loose gravel on the shoulder, of which she had no knowledge, were the proximate cause of the accident. The trial judge found as a fact that the negligence of DOTD in failing to maintain a safe highway was the cause in fact of the accident. From our review of the record, we cannot conclude that the trial judge’s determination relative to causation of the accident is clearly wrong.

ERROR NO. 4

The initial inquiry in reviewing an award of damages is directed at determining whether or not the trial court’s award for the particular injuries is a clear abuse of the trier of fact’s “much discretion.” Reck v. Stevens, 373 So.2d 498 (La.1979). From our careful review of the record, we cannot conclude that the trial judge clearly abused his “much discretion.” LSA-C.C. art. 1934(3).

As a final matter, the trial court committed an error by failing to include Miss Grappe’s $105.00 ambulance fee. In discharging our duty of rendering any judgment which is just, legal, and proper upon the record on appeal, we must correct that error. Woods v. Ratliff, 407 So.2d 1375 (La.App. 3rd Cir.1981); LSA-C.C.P. art. 2164. The judgment of the trial court is amended to increase Miss Grappe’s award by $105.00.

For the reasons assigned, the judgment of the trial court is amended and affirmed at defendant-appellant’s costs.

AMENDED AND AFFIRMED.

STOKER, J., concurs and assigns written reasons.

DOMENGEAUX, J., concurs in the result.

STOKER, Judge,

concurring.

I concur in the affirmance of the trial court’s liability on the part of the State on the basis that the State, through the Department of Transportation and Development, allowed a defect to exist in its shoulder in the form of loose gravel at the point at which Mary Janette Graham attempted a reentry to the highway. I do not believe that plaintiffs in the two cases involved here have shown any causal connection between the accident and the drop-off at the point where Graham’s car left the highway. Apparently Graham maneuvered her vehicle for 125 feet without mishap or losing control. In this respect the facts resemble those of Pitre v. Aetna Insurance Company, Inc., 456 So.2d 626 (La.1984). In that case the Supreme Court found no causation where the driver did not lose control in running off of the highway at the point where there was a dangerous drop-off and successfully ran along a road shoulder which was firm and smooth.

On the other hand, no fault or negligence on the part of Graham has been shown with reference to her attempt at reentry to the highway. Her negligence in leaving the highway initially is simply not counted against her under the duty-risk analysis announced in Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979) and which has been applied in numerous road shoulder cases since that case was handed down by the Louisiana Supreme Court.

There is some contention that Graham had failed in her duty to slow her vehicle to a safe speed before attempting reentry. The Louisiana Supreme Court recently stated in Pitre v. Aetna Insurance Company, Inc., supra:

“Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce speed and then to attempt a gradual reentry after he has regained control of the vehicle.”

Just as the plaintiffs must prove causation with reference to a dangerous drop-off from roadway to shoulder and an accident, the State as a defendant must prove causation with reference to alleged excessive speed at the time of attempted reentry. The trial court evidently found no such causation, and there is no basis for holding it was clearly wrong. Therefore, inasmuch as Graham was not at fault, the question is whether the State was at fault in the maintenance of its shoulder at the point of reentry which was a cause in fact of the accident. (The question of whether Graham was at fault in connection with her reentry and whether the State was at fault as just noted is relevant to Grappe’s case as well as Graham’s.) Should it have been found that Graham was at fault and that her fault was the sole cause of the accident, Grappe could have no recovery against the State.

As I see it, the trial court was not clearly wrong in finding liability on the part of the State, at least as to allowing the loose gravel to be present at the point of reentry. At the point where Graham might have reasonably anticipated that she could return to the roadway, and did attempt to do so, she encountered the loose gravel. The trial court’s finding necessarily includes a finding that the loose gravel was a defect in highway shoulder maintenance at this point in question. Also necessarily included is a finding that Graham was not aware of the defect consisting of the loose gravel and could not have reasonably been expected to see and appreciate the gravel as a source of danger which might cause her to lose control if she were to maneuver onto the highway in the gravel. Therefore, Graham was not at fault with respect to the reentry.

For the foregoing reasons, I concur in the result reached by the majority.

      . In this regard, it should be noted that the trial judge dismissed any influence of alcohol as a contributing factor in the accident by stating that Miss Graham was not inattentive, distracted, or at fault.


text:
    Mary Janette GRAHAM, Plaintiff-Appellee, v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 84-50.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Thomas L. Crabson, Asst. Gen. Counsel, Baton Rouge, for defendant-appellant.
    John Makar, Natchitoches, Gahagan & Gahagan, Marvin F. Gahagan, Natchitoch-es, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

For the reasons assigned in Grappe v. State of Louisiana, Dept. of Transportation and Development, 462 So.2d 1343 (La.App. 3rd Cir.1985), the judgment of trial court is affirmed. The costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.

STOKER, J. concurs and assigns written reasons.

DOMENGEAUX, J., concurs in the result.

STOKER, Judge,

concurring.

I concur for the reasons assigned in Grappe v. State of Louisiana, Dept. of Transporation and Development, 462 So.2d 1343 (La.App. 3rd Cir.1985), handed down this date.


text:
    WARREN REFRIGERATOR COMPANY, Plaintiff-Appellant, v. FOSTI MIDSTREAM FUELING AND SERVICE, INC., Coastal Foods and Services, Inc., Carl James Lecompte, Sr., and Hayes Peter Picou, Sr., Defendants-Appellees.
    No. 84-80.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Stockwell, Sievert, Viccellio, Clements & Shaddock, Emmett C. Sole, Lake Charles, for plaintiff-appellant.

      Jones, Jones & Alexander, Jennifer Jones Bercier, Cameron, for defendants-appellees.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Warren Refrigerator Company, filed suit on November 12, 1982 against Fosti Midstream Fueling and Service, Inc. (Fosti), Coastal Foods and Services, Inc. (Coastal), Carl James LeCompte, Sr., and Hayes Peter Picou, Sr.

Plaintiff sold equipment to Fosti on November 12, 1979 and November 15, 1979. Plaintiff alleged it secured chattel mortgages on the equipment sold for each sale which were properly recorded. Fosti subsequently filed for reorganization under Chapter 11 of the Bankruptcy Code and, on March 16, 1982, the trustee abandoned any interest in the equipment Fosti had purchased from plaintiff. Plaintiff alleged in its petition that Coastal, LeCompte and Pi-cou were third possessors of the equipment on which plaintiff had a vendor’s privilege and chattel mortgages.

Plaintiff sought judgment against Fosti, in rem only, for the sums of $7,544.58 and $1,019.24 plus 25% on both sums as attorney's fees and judgment against Coastal, LeCompte and Picou for the rental value of the equipment sold by plaintiff to Fosti from March 16, 1982 until the equipment was returned to plaintiff. Plaintiff also sought recognition of a vendor’s privilege in its favor as well as recognition of the chattel mortgages.

Fosti did not answer plaintiff’s petition. Hayes Picou, Sr. and Jean Picou, d/b/a Saver’s Grocery of Cameron, Inc. (formerly Coastal), answered generally denying all allegations contained in plaintiff’s petition and further answered alleging that the chattel mortgages were invalid and that their lessor’s privilege primed plaintiff’s interest in the property. James LeCompte, Sr. was dismissed from the suit on motion of plaintiff.

At trial, the litigants stipulated to the following. Plaintiff sold to Fosti equipment as described in documents dated November 12, 1979 and November 15, 1979; the equipment described in the November 12th document was delivered to Fosti at its place of business in Cameron on December 6, 1979; the equipment described in the November 15th document was delivered to Fosti on the dates of December 12 and December 20, 1979; Coastal leased to Fosti certain immovable property located in Cameron Parish, Louisiana, which lease was recorded in the records of Cameron Parish on December 14, 1979. Fosti went into bankruptcy and thereafter the trustee abandoned any interest in the movable equipment described in the documents dated November 12 and November 15, 1979; and, Coastal informed Fosti that the predial lease terminated as of January 31, 1982 because of Fosti’s violation of the lease terms.

The trial court rendered judgment in rem in favor of plaintiff and against Fosti for the balance owed on the equipment, i.e., the sum of $8,563.82 plus 25% on the aggregate thereof as attorney’s fees and rejected all other demands of the parties. In its written reasons for judgment, the trial court held that the question of whether Coastal was entitled to a lessor’s privilege on the equipment sold by Warren to Fosti was not before the court. Also, the lower court concluded that the chattel mortgages executed in favor of plaintiff were invalid and the court additionally refused to recognize a vendor’s privilege in favor of plaintiff. Finally, the trial court found it unnecessary to rule upon the issues concerning the use of the equipment pending litigation. Plaintiff appeals. Defendants neither appealed nor answered the appeal.

The trial court, in its written reasons for judgment, made the following comments regarding the two chattel mortgages:

“NOVEMBER 14, 1979 INSTRUMENT
In the November 14th instrument, no note is described. Rather, the word ‘delivery’ was stricken and the word ‘Invoice’ was added by a typewriter. A thorough reading of this instrument describes the following financial arrangement between Warren and Posti. Of the $27,562.50 sales price, $5,512.50 was paid at the time of the order and $22,050.00 was to be paid upon invoice. No further credit arrangement is described. The blanks to be used in the note description were each filled in with an ‘x’ suggesting that no note existed. This would be consistent with a payment of the balance at the time that Fosti was invoiced after delivery of the purchased items.
INSTRUMENT OF NOVEMBER 16, 1979
Using the same form described in the preceding discussion, this instrument gave a total sales price of $4,094.00 of which $895.00 was paid at time of order. In the section showing the amount to be paid upon delivery, an ‘x’ was inserted in the blank space allotted for insertion of amount payable. The subsequent section of the instrument explained that the balance of $3,200.00 was to be reduced to a promissory note of even date. The only additional description of the note was that it was to be paid in one installment. The due date or time for that installment was not given. L.R.S. 9:5352 directs that in connection with the sum secured by p, chattel mortgage, ‘there shall also be stated whether the same be payable on demand or what fixed or determinable future time’. This instrument fails to supply this element. It is a crucial deficiency because a third party, like Saver’s, cannot determine from the instrument when the obligation matures.
FINDING
Both instruments fail to meet the requirements for valid chattel mortgages in the State of Louisiana. The November 14th instrument negates the existence of indebtedness secured by mortgage through its very terms. The November 16th instrument fails to supply the time of payment of the obligation as required by R.S. 9:5352.”

As noted by the trial court, La.R.S. 9:5352 sets forth the requisites necessary for the execution of a valid chattel mortgage. La.R.S. 9:5352 states in pertinent part:

A. Every chattel mortgage shall be in writing and the obligation secured thereby shall be described and the exact sum secured thereby shall be stated, or, if the same is to secure future advances, then the maximum amount thereof shall be stated, and there shall also be stated whether the same is payable on demand or what fixed or determinable future time....”

In United Novelty Co., Inc. v. Salemi, 68 So.2d 808 (La.App. 2nd Cir.1953), the Louisiana Second Circuit Court of Appeal observed:

“... It has long been established by our jurisprudence that chattel mortgages, being in derogation of common rights, are to be strictly construed and that the statutory provisions for the execution and recordation of such instruments are to be rigidly enforced. A clear and succinct statement of this principle is to be found in the opinion of the late Judge Taliaferro of this court in Smith v. Bratsos, La.App., 12 So.2d 241, 243, (certiorari granted and judgment of the Court of Appeal reversed on other grounds, 202 La. 493, 12 So.2d 245). The principle was reiterated in the following language of the opinion:
‘To bring into existence the lien and privilege established by the statute, strict compliance with its requirements must be pursued. Such liens and privileges, it is uniformly held, are stricti juris. All prerequisites to their birth must be strictly observed. This principle is firmly imbedded in the jurisprudence of this state since legalization of chattel mortgages. Peoples Homestead & Savings Association v. Cann et al., La.App., 180 So. 197; Valley Securities Co., Inc. v. De Roussel, 16 La.App. 115, 133 So. 405; Consolidated Companies v. Laws, 11 La.App. 676, 124 So. 775; New Way Family Laundry, Inc. v. Lebo, 16 La.App. 157, 133 So. 463.’ ”

On appeal, plaintiff argues that the requirements of La.R.S. 9:5352 were met in this case. Plaintiff asserts that the chattel mortgages were in writing; the obligations secured were adequately described; and, the exact sum secured by the chattel mortgages was set forth.

The chattel mortgage, referred to by the trial court as the November 14, 1979 instrument, describes the obligation secured as being a promissory note yet the instrument fails to set forth the amount of the note or its due date as required by La.R.S. 9:5352.

The chattel mortgage, referred to by the trial court as the November 16,1979 instrument, describes a promissory note as being the obligation secured in the amount of $3,200.00 payable in one installment. The instrument, however, fails to set forth the time of payment as required by La.R.S. 9:5352. Also, the $3,200.00 note was not made a part of the record.

In light of the foregoing, we conclude that the trial court was correct in declaring the chattel mortgages invalid for failure to comply with La.R.S. 9:5352.

Plaintiff also questions the trial court’s refusal to recognize a vendor’s privilege in its favor on the equipment sold to Fosti.

The record reflects that plaintiff sold Fosti several items of equipment used in the grocery business, all of which were movable property. By the terms of the sale agreements, the vendee, Fosti, was not obligated to pay the entire purchase price at the time the sale was executed. Under Article 3227 of our Civil Code, plaintiff was granted a vendor’s privilege on the movable property at the time of the sale. Article 3227 provides in pertinent part:

“Art. 3227. He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.
So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege.”

We note that the burden of establishing the existence of the vendor’s privilege rests with the vendor. Hemenway Furniture Co. v. Lindsay, 161 So. 27 (La.App. 2d Cir.1935). In order, at this time, to recognize the vendor’s privilege in favor of plaintiff, we must find that possession of the movables sold remained with the vendee, Fosti. The other requirements of Article 3227 are clearly met.

As aforestated, Fosti filed for reorganization under Chapter 11 of the Bankruptcy Code. The trustee subsequently abandoned any and all interest in the property in question. Generally, property abandoned by a trustee reverts back to the bankrupt’s estate subject to any encumbrances existing on the property, although, in some eases, abandonment may be to any party with a possessory interest in the property abandoned. 9 Am.Jur.2d, Bankruptcy, Sec. 256 (1980). There is no evidence in this case to support a finding that the property was abandoned to a particular party. Hence, we conclude that when the trustee abandoned the property the legal right to possess same vested in Fosti subject to any encumbrances existing thereon.

There is nothing in the record establishing that anyone other than the bankrupt, Fosti, has since acquired a right to possess the movable equipment in question. Although it must be conceded that, at the time the instant suit was filed, the property in question was not in the physical possession of Fosti, the latter’s right to possess the property is not shown to have been divested.

In the instant case, the record appears to reflect that the movable equipment in question is in the physical possession of Hayes Picou and/or Hayes Picou and Jean Picou, d/b/a Saver’s Grocery of Cameron, Inc. Although Jean Picou and Saver’s were never made parties to this suit, they joined with Hayes Picou in filing an answer alleging that they were entitled to a lessor’s privilege on the property.

We, like the trial court, do not consider this pleading as a proper assertion of a claim for enforcement of a lessor’s privilege. Additionally, there is no evidence in this record to indicate any indebtedness by Fosti to Hayes Picou and/or Hayes Picou and Jean Picou, d/b/a Saver’s Grocery of Cameron, Inc., for past due rent or that either is entitled to a lessor’s privilege on the property in question. We express no opinion regarding whether such parties may ultimately be entitled to a lessor’s privilege on the equipment.

In our view, the vendor’s preference established by La.C.C. Art. 3227 is viable so long as the right to possession of the movable property remains in the vendee, although it be shown that others without color of right have taken physical possession of the movable effects.

We thus conclude that plaintiff has established its right to recognition of its vendor’s privilege and the trial court erred in denying plaintiff that relief.

In its petition, plaintiff additionally prayed for judgment for the fair market rental value of the equipment from March 16, 1982 until the equipment is returned to the possession of plaintiff. The trial court rejected plaintiff’s demands in this regard. We find no error in the trial court’s rejection of this claim. Plaintiff is not the owner of the property for which it seeks a fair market rental value. Plaintiff’s claim, in regard to the property in question, must be restricted to the balance due it on its sale to Fosti and recognition of its vendor’s lien.

For the foregoing reasons, the trial court’s judgment is amended so as to recognize a vendor’s lien in favor of plaintiff, Warren Refrigerator Company, on the movable equipment described in the documents dated November 12, 1979 and November 15, 1979 (Plaintiffs Exhibit “C” in Globo) to the extent of the in rem judgment rendered in its favor against Fosti Midstream Fueling and Service, Inc. In all other respects, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED AS AMENDED.

      . Jean Picou and Hayes Picou, Sr. and Jean Picou, d/b/a Saver’s Grocery of Cameron, Inc., were never made parties defendant in this suit.

      . Presumably the equipment sold by Warren to Fosti was delivered to and kept on the premises leased by Coastal to Fosti, although this is not made clear in the record.


text:
    Virginia Faye JONES, et al., Plaintiffs-Appellants, v. INTERNATIONAL TELEPHONE & TELEGRAPH CORPORATION, et al., Defendants-Appellees.
    No. 84-81.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writs Denied April 1, 1985.

      Führer, Flournoy & Hunter, Leonard Führer, Alexandria, for plaintiffs-appellants.
    Bolen & Erwin, Gregory Erwin and Charles Munsterman, Alexandria, Stock-well, Sievert, Viccellio, Clements & Shad-dock, Robert W. Clements and Kirk Ber-geron, Lake Charles, Robert L. Hackett, Michael J. Maginnis, New Orleans, for defendants-appellees.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Virginia Faye Jones, a resident of Texas, brought suit in Louisiana for damages based on the wrongful death of Boyce O’Neal Jones, who was killed in an industrial accident on December 20, 1979, near Lake Charles, Louisiana. She sued in the capacity of the surviving spouse under La. Civil Code art. 2315. Various defendants were named; each filed an exception of no right of action; the exceptions were based on the fact that on March 12, 1979, just nine months before Boyce’s death, a Texas court ended the Jones’ 20-year marriage by a decree of divorce rendered on the petition of Mrs. Jones; the defendants insisted that for this reason petitioner was not the surviving spouse under article 2315 and had no right to sue.

At the hearing on the exceptions the only evidence offered was the deposition testimony of six persons: petitioner Mrs. Jones, the three children of the marriage, deceased’s brother, and the petitioner’s sister. According to the deposition of Mrs. Jones, her husband, an ironworker, was away from home a lot in his work, a situation that was becoming increasingly troublesome when their three children got to be teenagers. She testified that she filed the divorce action, and then followed through with the divorce itself, to convince her husband that she wanted him home to help with the three teenage children, rather than away from home pursuing his iron-worker’s trade. She testified further that, after the divorce, they got back together. The divorce had apparently accomplished its purpose. He planned to get work closer home when the Lake Charles job was finished — they discussed another ceremonial marriage but he was killed before these plans could be carried out. The totality of the testimony contained in the depositions established, without any contradiction, that on the very next day following the divorce, the deceased returned to the matrimonial domicile, the parties resumed living together in exactly the same relationship as before, and, except for one brief period of estrangement, they lived in conjugal accord until his death.

At the trial of the exceptions of no right of action Mrs. Jones contended that the parties’ conduct after the divorce, as shown by the deposition testimony, proved a common-law marriage recognized in Texas. The trial court rejected the argument that there was a common-law marriage, reasoning, instead, that the positive act of divorce was legally inconsistent with an agreement of marriage (one of the elements necessary to finding a common-law marriage), and that, therefore, the act of divorce legally precluded the subsequent establishment of a common-law marriage. The trial judge maintained the exceptions of no right of action and dismissed petitioner’s suit. We reverse. We find that an application of Texas common-law marriage law to the facts as revealed by the deposition testimony requires that we hold Mrs. Jones was in fact the surviving spouse of her husband, and she therefore has the right to sue.

Petitioner and the deceased were residents of Texas at the time of his death, and had lived there for most of their 20-year marriage. Marital status is determined by the law of the domicile. Succession of Goss, 304 So.2d 704 (La.App. 3rd Cir.1974), writ denied 309 So.2d 339 (La.1975), cert. denied 423 U.S. 869, 96 S.Ct. 133, 46 L.Ed.2d 99 (1975). The validity of a common-law marriage has always been recognized in Texas. Collora v. Navarro, 574 S.W.2d 65 (Tex.1978). Because petitioner was the common-law wife of deceased under the laws of Texas, we must recognize the marriage in these Louisiana proceedings, and petitioner has a right of action under the wrongful death provisions of LSA-C.C. art. 2315. Dupre v. Rochester Ropes, Inc., 216 So.2d 589 (La.App. 3rd Cir.1968).

In Texas, a valid common-law marriage consists of three elements: (1) an agreement to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Collora v. Navarro, 574 S.W.2d 65 (Tex.1978). The agreement to be husband and wife may be express or implied. Id. “It is well-established that the agreement to marry need not be shown by direct evidence, but may be implied or inferred from evidence that establishes the elements of cohabitation and holding out to the public as husband and wife.” Id., 574 S.W.2d, at 69.

The trial court’s conclusion that a once married but divorced couple cannot legally establish a common-law marriage not only does violence to the facts of the present case, but is shown to be incorrect by several Texas decisions. The holding in Rey v. Rey, 487 S.W.2d 245 (Tex.Civ.App.— El Paso 1972) shows that a common-law marriage can be established by a couple previously divorced. Similarly, in Smith v. Smith, 607 S.W.2d 617 (Tex.Civ.App.—Waco 1980), which affirmed a finding of a common-law marriage established following a divorce, the facts of that case, in that court’s words, were:

“Faye testified that she and C.C. reached an agreement to be husband and wife no later than October 30, 1956. There is evidence: that they lived together as man and wife at the ranch from 1931 to 1955 when they got a divorce; that they immediately went back together and lived the same as before until the death of C.C. in 1969. There is testimony from a great number of witnesses who lived near C.C. and Faye that they visited in their home, received visits from them in their homes, that C.C. and Faye lived together as husband and wife; lived after the divorce the same as before.”

In other Texas cases, a common-law marriage was not found, not because divorce was considered a legal impediment to a subsequent re-marriage, but simply because one or more of the three classic elements was absent. For example, in Gary v. Gary, 490 S.W.2d 929 (Tex.Civ. App.—Tyler 1973), the couple had been ceremonially married twice to each other, and twice divorced. The evidence showed that the couple believed their second divorce was probably invalid because they had not met the jurisdictional requirements, and for that reason they lived together for a while after the second divorce, thinking they were still married; then they separated again and had been separated for a year before the man’s death. Since the divorce, not having been judicially set aside, was a legal fact, it would have taken a new agreement to be married, combined with the other elements, to constitute a new marriage; this had not occurred. Their brief cohabitation, with no evidence of the “holding out” element required for a common-law marriage, was not sufficient, according to the court, to imply a new agreement to be married, the facts as a whole being inconsistent with a finding that there was a further agreement to- again become husband and wife, or a new and separate marital arrangement.

Similarly, in Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App.—Tyler 1975), there was evidence that the parties cohabited after a divorce, living together for three years, then they separated again. The testimony showed that the three years was a trial period, and that the most that could be said was that there may have been an agreement that after some trial period, if things worked out, or if the man got medical help or counseling, then they might remarry. On the facts of that case the court said that a present agreement to be married is a necessary element of common-law marriage, and it is not sufficient to agree on present cohabitation and future marriage.

In the instant case, Mrs. Jones stated in her deposition that she and the deceased had discussed a ceremonial marriage, that no definite date had been set, but that it would take place when he came back to work in that area, which he was about to do. Because of the language of the Rosetta case, supra, we have given close attention to this deposition testimony to deter-' mine whether or not the relationship was nothing more than an agreement on present cohabitation and future marriage, which would be insufficient to have established a common-law marriage. In this regard we have examined the Fifth Circuit’s opinion in Hinojos v. Railroad Retirement Board, 323 F.2d 227 (5th Cir.1963), applying Texas law to these facts: a couple commenced living together with an intent to be married; the man had a living wife, and the understanding was when a divorce occurred the couple would be ceremonially married; a divorce did occur, and thereafter the man put off the ceremonial marriage because of his illness, and he later died. The court declared this would make a valid common-law marriage. The court said there was no need to prove a new. agreement after the divorce from the first wife, nor was there anything “necessarily inconsistent with an agreement presently to enter into a common-law marriage and an intention later to have performed a ceremonial marriage.” In such a case the later marriage would be surplusage, as far as the law was concerned. Further, the agreement to be married need not be expressed; it ordinarily may be inferred from evidence establishing that the parties cohabited as husband and wife and held themselves out to the public as being married.

Based upon a reading of these cases, we have concluded that whether evidence of a planned ceremonial marriage indicates an imperfect present intent to marry, is a question of fact in Texas law. We are also mindful that in our present case, we do not owe to the trial court’s opinion the same deference that would ordinarily be accorded to a trial court’s decision based on credibility and evaluations of live testimony. The reviewing court can review the deposition evidence and reach an independent decision. Our evaluation of the totality of the deposition testimony convinces us that all of the elements of a common-law marriage, including a present intent to be married, were present just prior to the death of Mr. Jones.

The evidence appearing in the depositions is uncontradicted. The very next day after the divorce, the deceased came home. They resumed living together. They occupied the same bedroom and had sexual relations. Mrs. Jones was satisfied she had made her point. Apparently, her bizarre plan to get her husband’s attention had equally bizarre results: it succeeded, it accomplished its purpose. They continued to maintain the joint checking account. Deceased resumed support of the family. They lived together in the family home. The deposition witnesses testified that they continued to cohabit and behaved as husband and wife. There was no evidence at all to the contrary. This relationship went on, except for one brief interruption, for the nine months before Jones was killed. Deceased was working in Lake Charles, coming home on weekends, just as he had done throughout the marriage. He was home on the weekend before his death. One witness declared “the divorce changed nothing.”

It did change something, of course. The divorce judgment ended the Jones’ marriage, and they both knew it. We believe, however, that their, subsequent cohabitation as man and wife clearly evinced an agreement to be presently married. At the end, there was no evidence that they were uncertain about this marriage, or that they were going through a trial period, or that they thought of their marriage as conditioned on the happening of some future event. The elements of a common-law marriage were clearly established.

The decision of the trial court maintaining the exceptions of no right of action is reversed. Judgment is rendered overruling the exceptions. The case is remanded for further proceedings, costs of this appeal to be paid by appellees.

REVERSED AND RENDERED.