author: BOUTALL, Judge.

text:
    EMPLOYERS INSURANCE OF WAUSAU v. CAJUN CONTRACTORS AND ENGINEERS INC. and North-West Insurance Company.
    No. 84-CA-59.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      F. Lee Butler and Robert E. Couhig, Jr., Adams & Reese, New Orleans, for plaintiff-appellant Employers Ins. Co. of Wau-sau.
    Roger J. Larue, Jr., Metairie, for defendant-appellee Cajun Contractors & Engineers, Inc.
    Before BOUTALL, CURRAULT and GRISBAUM, JJ.
   BOUTALL, Judge.

This case arises from damages to equipment at a building project. The plaintiff has appealed a summary judgment dismissing its suit. We affirm.

The plaintiff, Employers Insurance of Wausau (“Employers”), is insurer of a crane owned by Audubon Construction Company (“Audubon”). The defendants are Cajun Contractors and Engineers, Inc. (“Cajun”) and their insurer, North-West Insurance Company. Cajun was the general contractor for a construction job and subcontracted to Audubon the work of pile driving. The crane was damaged while Audubon’s operator assisted Cajun employees in attempting to free a dozer owned by Cajun that had become stuck in the mud. Employers, as Audubon’s subrogee, seeks reimbursement from Cajun of $34,422.00, paid for repairs to the crane, on the ground of Cajun’s negligence.

Cajun answered, denying negligence, and filed a motion for summary judgment on the premise that the indemnity clause of the contract between the parties provided that Audubon would assume the risk and indemnify Cajun for all damages to Audubon’s equipment, including damages caused by Cajun’s negligence. Summary judgment was granted on December 7, 1983, dismissing the plaintiff’s suit at its costs. Employers then filed this appeal.

The appellant assigns as errors: 1) the trial court’s finding that the contract between the parties for Audubon’s services provided that Audubon would indemnify Cajun for damages to Audubon’s property caused solely by the negligence of Cajun; and 2) the trial court’s granting the motion for summary judgment when there was a material issue of fact in dispute.

The contract in effect at the time of the damage contains the following clause:

“Article 7 — Subcontractor General Liability A. The Subcontractor assumes all risk for injuries and/or death of its employees and for damages to or destruction of its property, while on or about the project site covered under this agreement, or while traveling to or from office or other place of consultation, howsoever caused, growing out of, connected with or incident to the service performed or to be performed by the Subcontractor hereunder; and the Subcontractor hereby indemnifies and saves harmless the Contractor and the Owner, its officers, employees, agents and insurers from and against all claims, demands, liability, expenses, and causes of action connected therewith.”

Summary Judgment

We first take up the issue of whether there is a material issue of fact in dispute. The law regarding summary judgment is summarized in Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981), as follows, at 1269:

“A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. La.C.C.P. art. 966; Cates v. Beauregard Electric Coop., 328 So.2d 367 (La.1976).
The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. Mashburn v. Collin, 355 So.2d 879 (La.1977). And where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Mashburn v. Collin, supra; United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); 6 Moore’s Federal Practice, Section 56.15[1]; Green v. Southern Bell Tel. & Tel. Co., 204 So.2d 648 (La.App. 3d Cir.1968).”

The appellant argues that whether or not the work being performed by Audubon at the time of the accident grew out of, was connected with or was incident to service to be performed under the contract is a material question of fact. We disagree. The relevant facts are not disputed. The crane was on the project site. A Cajun employee asked the Audubon crane operator for help in dislodging a Cajun dozer from the mud on the site, and the crane operator came to his aid. The crane was damaged in the process. The question posed by the appellant is not a factual one but a legal question, the resolution of which depends on the court’s interpretation of the contract. Clearly, helping to recover a Cajun machine is not specifically listed as work to be performed by Audubon in the contract. Returning to the subcontractor general liability clause, it is written in the broadest of language. The subcontractor assumes “all risk ... for damages to or destruction of its property, while on or about the project site ..., howsoever caused, growing out of, connected with or incident to the service performed or to be performed by the Subcontractor herewith. ...” The crane was on the building site, as required by the contract, to perform work under the contract. We can only conclude that Audubon’s coming to the aid of Cajun was an event “connected with or incident to” the service performed by the subcontractor. The contract could have been written to limit the risk only to specified contractual services to be covered but it was not. Accordingly, we hold that the trial judge was not in error in granting summary judgment on grounds that no material fact is in dispute.

Indemnity Agreement

We next consider the opposite interpretations of the indemnity provision of the contract argued by the appellant and appel-lee. Employers argues that Audubon undertook to indemnify Cajun only for Audubon’s negligent acts, as the contract did not specifically state that Audubon intended to indemnify for the negligent acts of the indemnitee, Cajun. On the other hand, Cajun’s position is that the plain meaning of the phrases “all risks” and “howsoever caused” indicate that the contract provides indemnification for damage caused by Cajun’s own negligence.

Indemnity agreements appearing in the jurisprudence fall into three classes: 1) those which state specifically that indemnity is provided for the indemnitee’s own negligent acts; 2) those which specifically exclude indemnity for the indemnitee’s negligence; and 3) those which do not refer to the subject directly but contain language that may be construed as showing the parties intended indemnification for acts of negligence by the indemnitee. We have compared the provisions of other cases with the contract before us.

The case of Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977), falls into the first category. There an employee of a contractor was injured because of the negligence of the owner’s (Dow’s) engineers. The pertinent portion of the hold harmless agreement between Dow, the owner, and National Maintenance Corporation provided the following, at 1002:

“ARTICLE YI — INDEMNITY
6.1 Contractor assumes the entire responsibility and liability and will protect, indemnify and hold harmless Dow, its agents, servants, and employees from and against any and all losses, expenses, demands and claims made against Dow, its agents, servants and employees, by Contractor or its subcontractors, or any employee, agent or servant of Contractor or its subcontractors or any other third person because of injury or alleged injury (including death), whether caused by Dow’s negligence or otherwise, arising from any source....” [Emphasis omitted.]

In reversing the appellate judgment and remanding for trial, the Supreme Court held that the indemnity agreement between Dow and National Maintenance Corporation by its own terms included negligent acts of Dow’s agents, servants, or employees.

After remand for trial of the merits, the Polozola case was again appealed, inter alia, on the issue of indemnity. Polozola v. Garlock, Inc., 376 So.2d 1009 (La.App. 1st Cir.1979). That court held that National Maintenance and also a second maintenance contractor, H.E. Wiese, Inc., were both required to indemnify Dow and its employees from the consequences of their own negligence, under the terms of their respective contracts. The Wiese-Dow contract was of the third type mentioned above, i.e. one making no specific reference to the indemnitee’s negligence but containing language that may be construed as showing intent to indemnify. That contract reads as follows, at 1014:

“Contractor agrees to indemnify and hold harmless Dow, its officers and employees, from and against any and all claims and causes of action and all losses therefrom, arising out of or in any way related to the performance by Contractor or any subcontractor of Contractor of services hereunder, including without limitation any such claims for personal injury or death or property damage or destruction or urged by employees of Dow, employees of Contractor, any subcontractor, and employees of any subcontractor of Contractor, or all third parties whomsoever. This indemnity obligation of Contractor shall further extend to and include any and all claims made against Dow by any employees of Contractor, or any sub-contractor or any employee of any subcontractor, arising from any source while any such party is on premises owned, operated, leased or controlled by Dow.”

The court concluded that the Wiese contract did provide for indemnification of Dow for its own acts of negligence and said, at 1014, that:

“The Court concludes that each agreement must be interpreted according to its intended meaning, and that the absence of a specific reference to the in-demnitee’s ‘negligence’ is not decisive either way_” (Emphasis supplied.)

The court based its decision on four reasons among them that the language was broad and general, e.g., “any and all causes of action,” “arising from any source,” and that the parties could have specifically excluded coverage for Dow’s negligence if they had so intended. It would appear that the court’s reasoning in the second Polozola case is similar to that in Jennings v. Ralston Purina Company, 201 So.2d 168 (La.App. 2nd Cir.1967). There the court interpreted a contract as including the in-demnitee’s own negligent acts, although it did not so state with specificity, because of the breadth of language. That contract reads as follows, at 174:

“Contractor shall protect, indemnify and hold harmless Company from any loss, damage, liability and expense for all injuries, including death to persons or damage to property directly or indirectly arising or growing out of the performance of this Contract except loss or damage that is recoverable under Company’s fire and extended coverage insurance. Contractor shall hold Company harmless from and shall answer and defend any action instituted against Company for any loss, damage or injury sustained by any person resulting from the performance of this Contract.”

The case of Daigle v. Lang, 377 So.2d 1384 (La.App. 4th Cir.1979), involved personal injuries. That court held that a contract limited indemnity for personal injury to the consequences of the contractor’s negligence acts alone by saying “arising out of his performance.” The agreement reads as follows, in pertinent part, at 1390:

“The Contractor binds and obligates itself to hold the Owner harmless from any claims of any nature whatsoever for personal injury or damage to property arising out of his performance of the work herein undertaken_” (Emphasis supplied.)

In the case before us, the appellant-insurer, Employers, urges that its agreement is similar to the provision covering personal injury in Daigle v. Lang, supra, and should be interpreted in its favor. Cajun, on the other hand, argues that the language is as broad as that in Jennings v. Ralston Purina Company, supra, and that by using the phrase, “howsoever caused,” Audubon agreed to assume all risks for damage to its own property while on the project. We find that the language in the Cajun-Audubon contract is all-inclusive and similar to the language in Jennings and in the second Polozola v. Garlock, Inc., supra. The assumption of risk of damage to Audubon’s property is followed by the second part of the indemnity provision in the Cajun-Audubon, stating:

“... and the Subcontractor hereby indemnifies and saves harmless the Contractor and the Owner, its officers, employees, agents and insurers from and against all claims, demands, liability, expenses, and causes of action connected therewith.”

We believe that this assumption of risk and hold harmless clause makes no sense unless it is interpreted to include acts of the contractor, as the subcontractor would have no need to release himself for damages to his own property from his own negligent acts.

Accordingly, for the reasons stated above, the judgment appealed from is affirmed.

AFFIRMED.

      . Article 9 of the contract states that Audubon will perform the following functions:
      "Furnish all labor, materials, and equipment necessary to drive all piles, both composite and wood, as required by the Plans and Specifications. Subcontractor is responsible for pouring concrete for all composite piles. General Contractor will furnish elevation mark for concrete.
      “Subcontractor to drive all test piles, and provide and install pile loading apparatuses necessary to load test piles.”


source: Caselaw Access Project

license: Public Domain

text:
    Donna and David PROTTI, as Administrators of the Estate of Their Minor Child, Kelly Michele Protti v. Dr. Hyman TOLMAS, and St. Paul Fire and Marine Insurance Company and Carolyn Leaumont.
    No. 84-CA-70.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      Allan Berger and Warren A. Forstall, Jr., New Orleans, for Donna and David Protti, plaintiffs-appellants.
    H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot, New Orleans, for Dr. Hyman Tolmas, St. Paul Fire & Marine Insurance Company and Carolyn Leaumont.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   BOUTALL, Judge.

Plaintiffs, Donna and David Protti, appeal the dismissal of their negligence action. We find no error and accordingly affirm.

The Prottis brought this action against a registered nurse, Carolyn Leaumont, on behalf of their child Kelly to recover damages for injuries sustained by Kelly, alleging Nurse Leaumont’s negligent administration of injection of Terramycin. Also sued were Dr. Hyman Tolmas as the employer of Nurse Leaumont, and both defendants’ insurer, St. Paul Fire and Marine Insurance Company. Judgment was rendered denying plaintiffs’ claim and dismissing their action. This appeal followed.

In April of 1980, Kelly Protti was being treated by her pediatrician, Dr. Tolmas, for pneumonia. As treatment for this condition, Dr. Tolmas had ordered a series of almost daily injections of Terramycin. Kelly was nearly two years old at the time. The fifth injection is the one at issue; it was given on April 30,1980 by Nurse Leau-mont. Kelly returned for a checkup with Dr. Tolmas 2 days later, at which time Dr. Tolmas found the pneumonia cured. Approximately one month later, on May 26, 1980, Dr. Tolmas diagnosed Kelly as having a left drop foot. Subsequently Kelly was referred to an orthopedist, who recommended a foot brace for the child. Kelly wore the brace for about three months until full recovery.

On appeal, appellants contend the trial judge abused his discretion by disregarding certain favorable expert testimony. Appellants presented a considerable amount of expert testimony at trial, as did the appellees. However, the entirety of the testimony came down to one issue: whether Nurse Leaumont negligently administered the injection, either by giving it in the wrong place or at the wrong angle. The trial judge’s finding on this point is a factual one, one we cannot disturb absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

At trial, Nurse Leaumont testified she gave the injection in the upper outer quadrant of the left buttock, perpendicular to the flesh, at a 90 degree angle. The experts’ testimony, as well as that of Dr. Tolmas and Nurse Leaumont, established that the accepted standard in the medical community for administering such a shot is to give it in the upper outer quadrant of the buttock at a 90 degree angle to the flesh to avoid damage to the sciatic nerve. Although there is much testimony to the contrary, it was Nurse Leaumont’s testimony that the trial judge believed and accepted, as his reasons for judgment clearly reflect:

“In order for plaintiffs to recover, they must prove by the preponderance of the evidence that Nurse Leaumont acted negligently by giving the injection in an improper manner thereby causing the injury which the plaintiff sustained.
“After reviewing the medical testimony and the testimony of Dr. Tolmas and Nurse Leaumont, the court concludes that the injection was given in a proper manner and that Nurse Leaumont was free from any negligence in the administration of the injection.”

As the reviewing court, we must give great weight to the factual conclusions of the trial judge. We have reviewed the record before us and, based on this review, cannot say the trial judge 'was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly the judgment below is affirmed in all respects.

AFFIRMED.


text:
    Wayne DONALDSON v. Karen Keller, wife of Wayne DONALDSON.
    No. 84-CA-77.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    A. Russell Roberts, Perez & Roberts, Metairie, for Karen Keller Donaldson, defendant-appellant.
    James S. Conner, Conner & Martinez, Metairie, for Wayne Donaldson, plaintiff-appellee.
    Before BOUTALL, GAUDIN and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is a child custody matter. From a judgment ordering joint custody of a minor daughter, previously in the sole custody of her mother, the mother has taken this appeal. - We reverse.

Wayne Donaldson and Karen Keller Donaldson were divorced on October 7, 1976. The custody of their daughter, Kathy, born in August, 1970, was granted to the mother. Except for a rule filed in 1978 to set visitation privileges, no litigation regarding custody took place until March 1, 1983, when the father filed a rule for joint custody. The matter was heard on April 11, 1983 and continued. On May 4, 1983 the judge interviewed Kathy alone in chambers and asked the attorneys to submit a proposal for joint custody either separately or in concert. Because the mother opposed joint custody she did not submit a plan. The judge took the matter under advisement and rendered judgment on July 27, 1983, setting out a plan for joint custody that incorporated most of the provisions of the father’s proposal and awarding child support to the mother. The judgment awarded physical custody to the father for the school year and to the mother for the summer months, except for the week before the first day of school, subject to visiting rights of the noncustodial parent during each period. We note that the mother resides in Baton Rouge and the father in Jefferson Parish. The mother was to receive $100 per month for the period that the father had custody and $200 per month when Kathy resided with her. This appeal followed.

Counsel for the appellant raises four issues: whether joint custody is mandatory under LSA-C.C. art. 146; whether the power of the judiciary to decide questions of custody has been usurped; whether a prior award can be changed, because of an amendment to the codal article, without a showing of the custodial parent’s unfitness and/or detriment to the welfare of the child; whether in this case the court based his decision solely upon the child’s preference.

We first consider the applicable law as to joint custody. LSA-C.C. art. 157 was amended in 1982, effective January 1, 1983, to provide that all custody awards shall be made in accordance with article 146. Article 146 was amended in the same act to provide a rebuttable presumption that joint custody is in the best interest of the child, unless the parents agree to an award of custody to one parent or the court finds that joint custody is not in the child’s best interest. Section F of the amended article provides that any existing custody order-“may be modified at any time to an order of joint custody in accordance with the provisions of this article.” Article 146 was again amended by Acts 1983, No. 695, so that paragraph C read as follows:

“C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.
“(1) However, the parents may agree to an award of custody to one parent.
“(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors: ...” [A list of twelve factors, (a) through (1), follows.]
“(3) For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.”

In a decision handed down by the Louisiana Supreme Court, on September 10,1984, Turner v. Turner, 455 So.2d 1374 (La.1984), rehearing denied, the Court applied the guidelines contained in article 146(C)(2)(a)-(¿), even though the effective date of the amendment was after the judgment under review, dated April 27, 1983. The Court explained its reasoning at p. 1377, fn. 2:

“... the substantive provisions of the law were not changed: the best interest analysis still applied and joint custody still was presumed. The checklist was added as clarifying legislation to provide guidance for the courts, and can be applicable in the present ease.”

In the Turner case, the Court found that joint custody was not in the best interest of the children and vacated an order modifying an existing joint custody plan. Because the parents had been unable to work cooperatively in the children’s interest, the Court remanded the case for the trial judge to award sole custody and ordered him:

“... not to render a joint custody decree or extensive visitation privileges to the noncustodial parent, absent a clear showing by both of the parties that they are willing and capable of serving the children’s best interest_” Turner v. Turner, supra, at p. 1381.

Turner v. Turner provides a thorough discussion of LSA-C.C. art. 146, as amended. It interprets legislative intent to be that joint custody is the preferred custodial arrangement, but that it is not mandatory and the power of the trial judge in custody decisions as not been eroded. The Court said, at p. 1379:

“The trial judge sits as a sort of fiduciary on behalf of the child, and must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child’s emotional, physical, material and social well-being and health which are the judge’s very purpose in child custody cases. He must protect the child from the harsh realities of the parents’ often bitter, vengeful, and typically highly emotional conflict. The legislature has mandated that the judge shall look only to the child’s interests.”

The Court went on to discuss whether the rebuttable presumption that joint custody is in the child’s best interest means that the article compels such an award. It said, at p. 1379 et seq.:

“... This presumption has caused some confusion. Some lower courts seem to believe that the article requires granting joint custody. Such is not the case; the article clearly provides that there is only a presumption in favor of joint custody, and that it may be rebutted upon a proper showing that a different arrangement is in the child’s best interest. Such a showing now must include a consideration of eleven specific, enumerated factors, plus any “other factor” which the trial court deems to be relevant. C.C. 146(C)(2)(a)-(l). Article 146 provides further that ‘the burden of proof that joint custody would not be in the child’s best interest shall be on the parent requesting sole custody.’ C.C. 146(A)(2). This provision does not create any extraordinary burden on the party requesting sole custody.
“As in any matter in which there is a rebuttable presumption, the burden rests with the party challenging the presumption to convince the fact-finder that his proposed conclusion is more correct than the presumed one. A presumption does not have any probative value, but merely provides the fact-finder with a conclusion in the absence of proof to the contrary. ...
“The article 146 presumption only compels the judge to award joint custody in those cases where other things are equal; or where there is insufficient evidence to rebut the presumption; or whenever neither parent alone would be able to manage a sole custody arrangement, and where it cannot be shown that it would be detrimental to the child to remain in parental custody. Effectively, the presumption only provides the judge with a first choice, which choice must be rejected in the face of evidence which tends to disprove the conclusion. In such a case, it becomes necessary for the other party to re-establish the propriety of the presumption’s conclusion.”

In two recent cases decided prior to Turner v. Turner, supra, the courts found joint custody not to be in the best interest of the child. In Lachney v. Lachney, 446 So.2d 923 (La.App. 3rd. Cir.1984) the Court based its judgment primarily on two factors: the long duration of the child’s living with her father and grandparents and the distance between the two parents’ residences, the father living in South Carolina and the mother in Louisiana. In Kincaide v. Kincaide, 444 So.2d 651 (La.App. 1st Cir.1983), joint custody was held not to be in the child’s best interest because the parents were unable to agree upon basic issues concerning his education and rearing. The Court also felt that a new custody situation would be harmful as the child had had a very difficult time adjusting to the divorce.

Having determined that the power of the trial judge in custody decisions has not been eroded by amendments to the custody laws and that joint custody is not mandatory, we next consider the impact of joint custody as the favored custodial arrangement upon prior rules regarding a change of custody. Our particular concern is the situation of a change from one sole parent to joint custody, as in the case before us.

Prior to the 1977 amendment of LSA-C.C. 157, a party seeking a change of custody was required to prove that the existing custody arrangement was so detrimental to the child as to justify removing him from his accustomed environment. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). In Bordelon v. Bordelon, 390 So.2d 1325 (La.1980) in which the mother’s moral fitness was at issue, the Supreme Court abrogated the Fulco rule as to burden of proof, stating that there was no longer such an inflexible rule and that:

“... [T]he best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases.”

Under the 1982 amendment to LSA-C.C. art. 146, the previous requirement that the court “shall inquire into the fitness of both the mother and father” was eliminated. However, the 1983 amendment includes economic capacity, moral fitness, and mental and physical health of the parents in the twelve factors to be considered in determining whether or not joint custody is in the child’s best interest. The twelve factors in article 146(C) now constitute the appropriate standard for all changes of custody cases and, as in Turner v. Turner, supra, we apply the article as amended to the case before us, retrospectively.

In the case at hand, the trial judge supplied no reasons for judgment. However, it is apparent that he believed that joint custody was mandatory. In a hearing held on June 29, 1983, the two attorneys appeared before the trial judge, having been charged by the court to attempt to come to an agreement on a joint custody plan. The judge made the following remarks regarding his decision:

“... [Kathy’s] a lovely child, she’s a beautiful child, she deserves the love and attention of both of those parents and she’s very very fortunate to have a mother and father such as she has because it’s obvious that the parents love this child very much. I understand that she has an A average for the past year in school and it certainly speaks extremely well for the care, the love and attention that her mother has given her. I think this is a difficult decision to have to make. I said on more than one occasion that the most difficult job that a district judge has is dealing with custody cases and the legislature certainly hasn’t made that any easier by the adoption of this so called joint custody action where it mandates that a district judge has to do certain things." [Emphasis supplied.]

We are mindful of the great weight to be accorded to the determination of the trial judge in custody matters, and that his judgment is to be overturned only when there is a clear abuse of discretion. Bordelon v. Bordelon, supra; Fulco v. Fulco, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). In this case, we find that the trial judge’s conclusion that joint custody is mandatory is clearly wrong.

The custody plan in the judgment for all practical purposes represents a change from sole custody of the mother to sole custody of the father, in light of the distance between the parents’ residences. As the mother lives in Baton Rouge and the father in Jefferson Parish, the custody plan would mean a rupture of long-standing ties and a change in nearly every aspect of the child’s life. Kathy will live with her father more than nine months of the year. During that time the mother may have custody on any weekend, plus Thanksgiving or Christmas in alternate years, Mothers’ Day weekend, and equal time on Kathy’s birthday. Kathy will live with her mother from the end of the school term until the week prior to the opening of school, with custody to the father every third weekend in June, July and August.

The record does not reveal any substantive reason to support a finding that joint custody is in the child’s best interest and the previous residential arrangement should be reversed, except for the father’s and paternal grandmother’s testimony that Kathy expressed a desire to live with the father and his family in Harahan. The judge met with Kathy in chambers out of the presence of attorneys or parents, and there is no record of their conversation. A letter from Kathy to the judge, undated, is included in the record and in it she said, “I still have a strong desire to go to John Curtis [in Jefferson Parish] and live a regular family life.” The record does not divulge any major behavioral or social problems in the child, and Kathy’s school record was described as excellent. The testimony fails to provide either a positive or negative picture of the two parties as parents, other than innuendo regarding Mrs. Donaldson’s temper. We note that two obvious factors which weighed against joint custody in pri- or jurisprudence were discussed at trial, namely the duration of time the child had been in a stable environment and the distance between the parents’ homes. Apparently, the trial judge felt those factors to be of insufficient consequence to rebut the presumption in favor of joint custody. We can only conclude, as did the plaintiff, that the court based its judgment on the expressed wishes of Kathy.

As we noted in a case recently decided by this court, Legrand v. Legrand, 455 So.2d 705 (La.App. 5th Cir.1984), courts have placed varying degrees of weight upon the child’s preference but where there is no other reason to change custody, they have denied the change. Johnston v. McCullough, 410 So.2d 1105 (La.1982); Morgan v. Huddlestone, 430 So.2d 304 (La.App. 3rd Cir.1983). In the Legrand case, the court acceded to the children’s wish to live with their father because it was apparent that the mother was no longer able to control them and the home atmosphere was one of tension and antagonism. No such picture was presented in the case before us. We believe that the record does not support a finding that the person claiming sole custody has failed to rebut the presumption in favor of joint custody.

Accordingly, for the reasons stated above, the judgment appealed from is reversed, and we vacate the order for joint custody.

It Is Ordered that custody be returned to the mother, and that the case be remanded to the trial court to fix visitation and child support, and to hear such other matters as the present circumstances may require. Costs of this appeal are to be borne by appellee.

REVERSED AND REMANDED.

      . The checklist in LSA-C.C. art. 146(C), as amended in 1983, reads as follows:
      "(a) The love, affection, and other emotional ties existing between the parties involved and the child.
      "(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
      "(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
      "(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
      "(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      "(f) The moral fitness of the parties involved.
      "(g) The mental and physical health of the parties involved.
      "(h) The home, school, and community record of the child.
      "(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      “(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
      "(k) The distance between the respective residences of the parties.
      "(/) Any other factor considered by the court to be relevant to a particular child custody dispute.”

      . Our attention has been called to the recent case of Chaudoir v. Chaudoir, 454 So.2d 895 (La.App. 3rd Cir.1984), in which joint custody was awarded under a set of facts similar to ours. We are in accord with that court’s resolution, because its plan retained the basic physical custody arrangement that was in force but only increased the father’s custody time by one month during the summer and was not a complete reversal of the child’s living situation as here.


text:
    Edmond CARMADELLE, Sr. v. JOHNS-MANVILLE SALES CORPORATION a/k/a Johns-Manville Products Corporation.
    No. 84-CA-291.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      Sheila C. Myers, Gertler & Gertler, New Orleans, for Edmond Carmadelle, plaintiff-appellant.
    Thomas M. Nosewicz, Joseph J. Lowen-thal, Jr. and Vivian L. Madison, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Johns-Manville Sales Corp., a/k/a Johns-Manville Products Corp., defendant-appellee.
    Before BOUTALL, CURRAULT and GRISBAUM, JJ.
   BOUTALL, Judge.

Plaintiff Edmond Carmadelle appeals a decision denying his claim for workman’s compensation benefits. At issue is whether the trial court erred in maintaining defendant Johns-Manville’s exception of prescription and granting its motion for involuntary dismissal. We reverse in part and affirm in part for the reasons set forth below.

Carmadelle, appellant herein, filed suit alleging he was engaged in hazardous activity during his employment with the defendant, within the scope of the Occupational Disease Section of the Louisiana Workman’s Compensation Act, R.S. 23:1031.1. Particularly, he alleged he was exposed to asbestos and other harmful dusts during his 27 years of employment with Johns-Manville and is suffering from an occupational lung disease as a result thereof. Carmadelle also alleged he is totally and permanently disabled because of this disease, and is therefore unable to obtain gainful employment. Finally, Car-madelle alleged he was informed of his condition on September 24, 1981; his petition was filed October 30, 1981.

In response, appellee asserted Carma-delle’s condition is unrelated to his employment with Johns-Manville; particularly, that it is either related to Carmadelle’s heart disease or his back problem. It was established at trial that plaintiff suffered a heart attack in January of 1974, and retired from Johns-Manville on January 19, 1974. The following month, Carmadelle had open heart surgery. Additionally, it was established that plaintiff had back surgery in March of 1983. At the time of trial, Car-madelle was 57 years old.

Immediately before trial on December 19, 1983 defendant filed an exception of prescription, which was referred to the merits. Due to the late filing of the exception, the trial judge told the opposing counsel she would have time to call other witnesses to respond accordingly. Trial proceeded and after plaintiff tendered the last witness for cross examination, defense counsel moved for a directed verdict. Plaintiff’s counsel voiced a procedural objection on the basis she had not rested, and a ruling on the merits of the motion was deferred pending completion of defense counsel’s cross examination. The defense reurged its motion after cross examination, and the motion was granted. The court based its involuntary dismissal on two grounds: first that the testimony of plaintiff’s only medical expert was so inconsistent it could not be believed and second that plaintiff failed to prove his case by a preponderance of the evidence. Alternatively, the trial judge dismissed the case on the ground it had prescribed.

Appellant assigns several errors on appeal. First, that the court below erred in dismissing the case on the basis of prescription. Second, that the court abused its discretion in granting defendant’s motion for directed verdict (which was actually a motion for involuntary dismissal under Louisiana Code of Civil Procedure Article 1672 B). Finally, as a procedural matter, that an involuntary dismissal may only be granted after plaintiff rests, and since plaintiff never rested, such involuntary dismissal was improper.

These assignments raised several issues, the most important of which is the validity of the involuntary dismissal. Appellant contends the trial court erred in finding that the testimony of appellant’s expert, Dr. Morton Brown, was so inconsistent it could not be relied upon. As the reviewing court, we should not disturb reasonable evaluations of credibility made by the trial judge even though we may be of the opinion other evaluations are as reasonable. Crump v. Hartford Acc. & Indem., 367 So.2d 300 (La.1979). In this case, the trial judge had ample basis for his evaluation. In his oral reasons for judgment, the trial judge indicated that the doctor’s position “would vacillate upon the continued and pressing argument—pressing questions, interrogation of defense counsel. His excuse on several occasions throughout his testimony was that if anything he was guilty of bad judgment with choice of words.” For example, the doctor admitted he does not always read the x-rays and x-ray reports of the patients, an admission to which the judge gave particular weight. Dr. Brown also admitted changing his opinion concerning one of plaintiff’s x-rays, after discussing them with plaintiff’s attorney. In short, the trial judge simply did not believe most of Dr. Brown’s testimony and there is sufficient support in the record for his opinion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Likewise, there is sufficient support in the record for the trial judge’s finding that plaintiff failed to prove his case by a preponderance of the evidence. Pursuant to Section 1031.1, plaintiff must prove he is disabled from an occupational disease contracted as a result of his employment with the defendant. Howard v. Johns-Manville Sales Corporation, 420 So.2d 1190 (La. App. 5th Cir.1982). Plaintiff must first prove he contracted a disease during his employment before the question of employment-related disability arises. Plaintiff only introduced the testimony of Dr. Brown on the issue of work related disease. Dr. Brown diagnosed plaintiff’s condition as asbestosis and pleural plaque, caused by plaintiff’s prolonged exposure to harmful dusts during his years of employment with Johns-Manville. But this diagnosis was made by a witness whose testimony the court chose to disbelieve. Moreover, as previously noted, plaintiff suffers from heart disease and Dr. Brown admitted that some of the symptoms of asbestosis he found in plaintiff’s lung could also be symptoms of past cardiac surgery and/or damage. It is clear that plaintiff’s disability was occasioned from a heart attack and resultant surgery in 1974. Any disability in 1983 has to be considered in relation to the original disability which appears to continue.

Appellant next raises the procedural argument that the trial court abused its discretion in granting an involuntary dismissal under La.C.C.P. Art. 1672 B. That article reads in pertinent part:

“In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party ... may move for a dismissal of the action...”

The motion is timely upon plaintiff completing the presentation of his evidence not to plaintiff uttering the magic words “I rest my case.” For all practical purposes, plaintiff had completed the presentation of his evidence since the motion was not raised until he finished the direct examination of his last witness. Thus, this argument is without merit.

However the trial judge, by amended judgment, dismissed plaintiff’s case with prejudice. We believe that asbestosis is a progressive disease and the possibility exists here that plaintiff may experience a lung disease attributable to his employment sometime in the future. See Howard v. Johns-Manville Sales Corporation, supra; Harris v. Johns-Manville Sales Corporation, 450 So.2d 750 (La.App. 5th Cir.1984); Laurendine v. Fischbach & Moore, Inc., 398 So.2d 1220 (La.App. 4th Cir.1981). Accordingly, we reverse that portion of the decision dismissing Carmadelle’s action with prejudice and hold that the case must be dismissed without prejudice to the plaintiff.

The judgment appealed also dismissed plaintiffs suit by maintaining a peremptory exception of prescription based on LSA-R.S. 23:1031.1(E) which states:

“All claims for diability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that: (а) The disease manifested itself, (b) The employee is disabled from working as a result of the disease, (c) The employee knows or has reasonable grounds to believe the disease is occupationally related. Notice filed with the compensation insurer or such employer shall constitute a claim as required herein.”

We have held that it is necessary that all three requirements be met before the prescriptive period commences to run. Naquin v. Johns-Manville Sales Corporation, 456 So.2d 665 (La.App. 5th Cir.1984).

The exception was referred to the merits and was based on that same evidence. It would appear inconsistent to disbelieve the evidence of the disease manifesting itself and of resulting disability for purposes of the merits, yet rely upon it for the exception. Since we have agreed with the trial judge’s ruling on the merits, we must necessarily reverse the judgment on the exception and dismiss it.

Accordingly, for the reasons set forth above, we reverse the part of the judgment maintaining the exception of prescription and dismiss the exception. We affirm that part of the judgment dismissing plaintiffs suit on the merits, but amend it to be dismissed without prejudice. Costs in the trial court are assessed against plaintiff; costs of this appeal are assessed against appellee.

REVERSED IN PART, AFFIRMED IN PART.


author: KLIEBERT, Judge.

text:
    Pedro Rafael GONZALES, et al. v. LOUISIANA COCA-COLA BOTTLING CO., et al.
    No. 84-CA-35.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      T. Peter Breslin, Kenner, for plaintiff-ap-pellee.
    Dominic J. Gianna, Hammett, Leake & Hammett, New Orleans, for defendant-appellant.
    Charles A. Boggs, Boggs, Loehn & Ro-drigue, New Orleans, Michael Connelly, Mayor, Day & Caldwell, Houston, Tex., for defendants-appellees.
    Before KLIEBERT, CURRAULT and GRISBAUM, JJ.
   KLIEBERT, Judge.

Plaintiff, Ms. Adela Gonzales, was injured when a twist-type aluminum sealing cap on a bottle of Schweppes Bitter Lemon “flew off” and struck her in the eye. Through her father, the administrator of her estate, Ms. Gonzales brought a products liability action alleging strict liability and negligence against Louisiana Coca-Cola Bottling Company, Inc. (La. Coke) and Schweppes U.S.A., Ltd. and the same allegations against Aluminum Company of America (Alcoa) as the alleged manufacturer of the aluminum cap.

La. Coke filed a third party demand against Alcoa seeking indemnity and/or contribution based on alleged negligence and/or fault in manufacturing a defective closure system (the cap and the headset of the capping machine used to make the closure on the bottle). Alcoa then filed a third party demand against La. Coke seeking indemnity and/or contribution based on La. Coke’s failure to follow the quality control standards (recommended by Alcoa) in using the closure system designed by Alcoa.

The injury to Ms. Gonzales’ eye occurred when she tried to “untwist” the cap off the bottle of Bitter Lemon. The cap had been previously removed and replaced on the bottle while it was in the Gonzales household. As Ms. Gonzales started to untwist the cap, it “flew off”, striking her in the eye.

Prior to trial, the parties stipulated to damages in the amount of $225,000.00. A bench trial was held on the liability issues. At the commencement of the trial, plaintiff adopted La. Coke’s case against Alcoa as her own.

Everyone agreed the cap which caused plaintiffs injuries was defective. The disagreement between the two defendants is whether the defective cap was caused by a defect in the capping machine or cap (closure system) designed and sold by Alcoa or in the maintenance and operation of the capping machine by La. Coke. After trial, the trial court concluded there was actual fault on the part of both defendants and accordingly cast La. Coke and Alcoa in judgment jointly and in solido for the stipulated damages.

La. Coke and Alcoa suspensively appealed the judgment. The plaintiff neither appealed nor answered the appeals taken by the defendants. For the reasons hereafter stated we affirm the trial judge.

As part of their bottling operations, La. Coke used an Alcoa Series Model 200 capping machine. Essentially, the machine takes blank aluminum caps (provided by Alcoa) and by spinning a “headset” (designed by Alcoa), under pressure, around the neck of a grooved bottle, forms the aluminum cap to the contour of the grooved bottle neck. By means of this shaping process, the blank aluminum cap becomes threaded to the bottle, forming a seal and closure which can be removed and reused. Additionally, during the spinning of the headset, the lower portion of the cap is formed into a “pilfer-proof ring”. As the user unscrews the cap, the pilfer-proof ring breaks off and stays on the bottle as the cap is removed. Although the ring sometimes helps to hold the cap to the bottle, its primary function is to alert the user when a cap has been previously removed from a bottle.

In order to form a reliable closure for use with carbonated beverages, it is necessary that the threads created by the headset conform the aluminum cap to a width and depth of the grooves on the bottle sufficient to withstand the pressures generated by the carbon dioxide contained in the beverage. Twisting the cap should result in a release of the seal between the top of the bottle and the cap and allow the gas in the carbonated beverage' to bleed off while the cap is still adhering to the bottle.

The “headset” involved here was designed so that the pressure applied to the cap during the spinning process could be reset or readjusted. Excessive pressure results in insufficient depth to the grooves made in the cap. Improper molding of the cap to the bottle results in weak seals and poor adherence of the cap to the bottle. As a result, a twist of the cap may (as occurred to plaintiff here) cause the cap to be prematurely released from the bottle and be propelled like a missile from the bottle ■ by the escaping gas.

As a products liability case two theories of recovery for the plaintiff are urged: (1) strict liability or (2) negligence.

The Louisiana jurisprudence permits recovery on the basis of strict liability under Louisiana Civil Code Article 2317 where the prescribed criteria are present. Those cri- ' teria were set out in Andry v. Canada Dry Corp., Div. of Norton Simon, Inc., 355 So.2d 639 (La.App. 4th Cir.1978), writ refused 357 So.2d 1167 (La.1978) where the court at page 641 said:

“— Lastarmco manufactured the total product, a bottle of soda water. This completed product malfunctioned when used as intended by the manufacturer, and the malfunction caused bodily injury to plaintiff.”
“... the manufacturer of a product who places the product on the consumer market is liable for the foreseeable consequences (including bodily injury) of a malfunction of the product if the product reaches the user in substantially the same condition in which it was sold and if the product is used in the manner intended by the manufacturer. To state it another way, we hold that a plaintiff injured as a foreseeable consequence of a product malfunction is entitled to recover if he proves:
(a) that the defendant manufactured the product;2
(b) that defendant placed the product on the consumer market;
(c) that the product reached the user in substantially the same condition in which it was when defendant placed it on the consumer market;
(d) that at the time the injury was caused, the product was being used in the manner intended by the manufacturer.
Proof of negligence on the part of the manufacturer is not a prerequisite to recovery.”

Here La. Coke manufactured the total product, i.e., a bottle of bitter lemon. The completed product malfunctioned when used as intended by the manufacturer and the malfunction caused bodily injury to the plaintiff. Thus, under the article as interpreted by the jurisprudence, it would appear plaintiff can recover from La. Coke, as the manufacturer of the total product, without the necessity of proving negligence as a prerequisite.

However, La. Coke contends it is not strictly liable to the plaintiff because it is not the manufacturer of the product containing the defect which caused the plaintiffs injury. Rather, it contends Alcoa is the one who is strictly liable to plaintiff because it is the manufacturer of a product, i.e., a closure system (the cap and the headset) which contained the defect which resulted in the injury to the plaintiff. On the other hand, counsel for Alcoa contends there has never been a Louisiana decision against Alcoa or any other closure system manufacturer in a situation similar to that present here for several reasons which are especially valid in this case: (1) Alcoa only manufactures a component part (the cap) of the final product (the bottle of beverage), (2) Alcoa sells that component part in an unthreaded condition which presents no risk or harm to any consumer, (3) the cap is not defective when it leaves Alcoa (the manufacturer of the cap), (4) when the cap is properly applied by the bottler as intended by Alcoa, it presents no risk to a consumer, (5) the cap only presents risk of injury to a consumer when it is misapplied by the bottler, (6) misapplication by the bottler is not the use intended by Alcoa, and (7) misapplication by the bottler substantially changes Alcoa’s design of the cap and its pressure-holding capacity.

The trial judge made no determination as to which of the contentions as to strict liability were applicable for he decided the issue of liability on actual fault.

In his reasons for judgment the trial judge found the closure system (the headset) designed by Alcoa produced defective closures in a random fashion. He also found La. Coke did not adhere to the testing and inspection procedures recommended by Alcoa to avoid or minimize the number of defective closures delivered to the consumer. Based on these factual findings he concluded La. Coke and Alcoa were jointly negligent in producing the defective cap which injured the plaintiff (the Gonzales cap) and in permitting it to be delivered to the consumer in a defective condition.

The cap which caused the injury was produced in October 1978 and was introduced in evidence. A visual inspection shows it to be grossly defective in that it had very limited threads of a very shallow depth. There are two possible explanations as to the cause of the defective cap — (1) La. Coke did not properly maintain or adjust the “headset”, or (2) the Gonzales cap was the result of a random misapplication of the “headset”.

The “headset” contained a compression type spring to transmit force to the rollers which indented the metal cap around the threaded bottle neck, thereby forming the threads on the cap. Later sets were designed for torsion type springs. The testimonial and documentary evidence introduced at the trial, in particular, the testimony of Dr. Mehdy Sabbaghian, the report of the Battelle Institute and the internal Alcoa documents, all introduced in evidence, apparently convinced the trial court, as it does us, that the closure system (cap and headset) in use by La. Coke was capable of and did in fact produce the defective Gonzales cap.

Dr. Sabbaghian was an expert in the field of mechanical engineering with a specialized expertise in the field of friction and bearing design and a professor of mechanical engineering at Louisiana State University at the time of his appearance. In his opinion, there were factors inherent in the design and operation of the headset which contributed to the random production of defective closures, namely:

a. The displacement or sliding of the end of the spring, caused variability in the pressure set into the springs; (as was explained at trial, the mechanic sets a particular pressure into the headset prior to installing the headset onto the capping machine. The headset is supposed to maintain this pressure);
b. The friction effect in the cam follower arm, as it oscillates on the pivot shaft, caused variation in the side pressure springs;
c. The Alcoa method of lubrication provided no guarantee that a steady and unvariable amount of lubrication will be present at any particular time. This, again, caused a variation in the amount of side pressure force transmitted to the rollers and thereby transmitted to the cap itself;
d. the stiffness of the spring and its sensitivity, causes variability in the side pressure applied to the closure because this sensitive spring is subject to minute forces which will change the side pressure originally put into the headset by the mechanic.

Due to these engineering deficiencies a headset may be properly set by a mechanic; but, nevertheless, unpredictably, the pressure transmitted from the spring to the rollers to the cap would vary as much as 40% and thereby affect the depth and width of the thread on the cap and therefore the quality of the closure. In Dr. Sabbaghian’s view, therefore, notwithstanding adherence to the recommended maintenance and pressure adjustments on the headset, the engineering deficiencies of the headset would nevertheless cause it to produce defective closures.

An independent serviceman, Mr. Tommy Diggs, who had been trained by Alcoa, testified that on occasions he had run bottles through the Alcoa headset and produced perfectly threaded closures, then, for no apparent reason, the machine would produce a bottle with a poor closure. Upon re-running the same bottle through the capping machine it would then produce a good closure. Mr. Diggs also testified that the side pressure spring on the type of headset involved was “sensitive”, meaning easily subject to pressure variations.

Further supporting the conclusion reached by Dr. Sabbaghian is the test run by Alcoa’s witness, Dr. Julian Doughty. He set up a model system at the Alcoa plant in Richmond, Indiana. Of the approximately 200 bottles he ran through the model system, two or three resulted in closures which were sufficiently defective for Dr. Doughty to conclude he would not consider sending them into the market place.

Alcoa’s internal records (the memorandum entitled “May 27, 1971 Mini Conference”, subtitled “What’s The Matter With Our Headsets”) further supports the trial judge’s findings and conclusion. It shows Alcoa was informed by its technical representative and knew the “headset” of the type in question, although properly adjusted, produced variations in the quality of the thread roll from bottle to bottle and from day to day. Its employee and witness here, Mr. Denhart hypothesized that the reason for the poor quality of the closures was the manner in which the side pressure spring was held and compressed, i.e., the spring was pushed sideways as it compressed because the spring stud was not free to pivot.

The Battelle Memorial Institute was retained by Alcoa to “identify, select, and define improvements” in Alcoa’s closure system which would enhance the capability of the bottler in maintaining quality assurance of adequate closure. In its report Battelle made the following observations:

1. Functional incompatibilities exist between the requirements of the closure system and the performance characteristic capabilities of the current headset;
2. Principle causes of these problems were identified as torque hysteresis and fluctuations in torque rates;
3. Forming torques developed by the headset oscillate randomly and by as much as 17.5 in.-lbs. of torque hysteresis;
4. Forming pressures are estimated to vary by 40 percent or more within the range of roller pivot required for closure application;
5. Torque hysteresis results primarily from excessive friction and secondarily from radial side spring displacement;
6. Torque rate is adversely affected by side spring displacement, wedging of the pivot shaft yoke with respect to the fixed side spring stud and friction and binding at the interface between the yoke and the side spring washer;
7. The reliability of the system is dependent upon an intricate balance of extreme torque and position occurrence probabilities;
8. The state of lubrication of the headset caused variances on the closure applied;

Alcoa and La. Coke stipulated that the spring contained in the particular headset which produced the defective Gonzales closure was a 400 lb. spring. Although Alcoa in 1970 elected to change to a 230 lb. spring in subsequently constructed headsets and found that there were lesser incidences of premature releases with the 230 lb. spring than with the 400 lb. spring, it did not at any time warn bottlers with the 400 lb. springs in operational headsets of the defective closure problem or of the improvements which could be obtained by changing to a 230 lb. spring.

Dr. Julian Doughty, an aeronautical engineer, made a visual and physical examination of the Gonzales bottle and cap and attempted to produce a cap defectively similar to the Gonzales cap. He concluded and so testified that only a grossly misadjusted headset could produce a cap with as much poor thread depth as the Gonzales cap. Further, he testified that the design of the headset is such that where the headset is properly set it is not capable under any circumstance of a random misapplication of the magnitude demonstrated by the Gonzales cap.

Here counsel for Alcoa argues that Dr. Doughty’s opinion should have been accepted over that of Dr. Sabbaghian. For us to do that, however, we would first have to conclude the trial judge created manifest error in his fact findings and/or his conclusion. We cannot do that here because our review of the record not only shows there was ample evidence to support the trial judge’s findings of fact and his conclusions; it also convinces us that a cause in fact of the Gonzales defective closure was the misapplication of the Alcoa designed cap and headset.

Although it would be logical to believe the defective Gonzales cap was randomly produced by the Alcoa closure system or by a poorly maintained or adjusted headset, we believe, as did Dr. Sabbaghian and the trial judge, that it is more probable than not it was produced by a random misapplication of the closure system, because, if produced by a poorly maintained or adjusted headset the machine would have continued to produce defective caps until the defective caps were detected. Further, there is no evidence indicating La. Coke did not properly maintain or adjust the headset or that a quantity of defective closures were produced at the time the Gonzales closure was produced.

By supplemental brief, Alcoa argues that in view of our decision in Martin v. Gulf South Beverages, Inc., 454 So.2d 250 (La.App. 5th Cir.1984), we are bound to discharge them from liability because the cases are identical. Although the Martin case is similar to this case they are distinguishable on the facts. As we stated in Martin, there was conflicting evidence as to whether the defect in the Martin cap was caused by the bottler’s misuse of the capping machine or by an inherent defect in the machine; nevertheless, we concluded in Martin, at page 256:

While there is evidence indicating Alcoa’s machine did at times randomly misapply a cap, the jury concluded the defect in the particular cap which struck plaintiff in the eye was a result of Lastarmco’s (bottler’s) failure to maintain the recommended quality control. ...” (Emphasis supplied)

Here, however, we and the original trier of the facts concluded one of the causes in fact of plaintiff’s injury was the inherent defect in the Alcoa closure system, i.e., the random misapplication of the cap. Simply stated in the Martin case there was insufficient evidence for us to conclude the jury had erred in failing to conclude the cap which caused the injury was the result of a random misapplication of the headset, whereas here, not only did the trier of the facts conclude the defective cap was produced by a random misapplication of the machine; the evidence is sufficient to convince us the trial judge’s conclusion was correct. Further, in Martin there was direct evidence showing the pressure setting on the machine being operated at the time the defective Martin cap was produced was set at an inadequate pressure, whereas here, there is no such evidence.

Although it is not every cause in fact of an injury which gives rise to the imposition of liability, there can be more than one cause in fact of an injury for which liability is imposed provided there is a corresponding violation of a duty owed by the creator of the cause in fact to protect the injured party from the injury sustained. Mathews v. Elder Intern., 400 So.2d 251 (4th Cir.1981). Hence, although the inherent defect in the closure system was found to be a cause in fact of the defective cap this does not, as urged by La. Coke, absolve it from liability.

The trier of the facts found another cause in fact in the defective cap, namely, that La. Coke failed to adopt inspection and testing procedures which would minimize or prevent the flow of defective closures such as the Gonzales cap into the market . place.

Mr. Percy Gros, an employee of La. Coke testified that at the time the defective cap was produced he was the production manager. His duties as production manager included the production facility, bottling, premixed, quality control and maintenance. Mr. Gros testified that during this period he worked approximately 12 hours a. day, 5 days a week. This pace caused him to be lax in performing the recommended number of Proper Application Tests (PAT) recommended by Alcoa. Likewise, a common practice was to take a torque removal test and not record a PAT test and vice versa. In a twenty-four hour period, proper procedure would require 12 to 13 PAT tests, but only three were performed in the time span when the Gonzales cap was most probably produced. The carbonation test required by the maker of the product was not always performed to determine the amount or dissipation of the carbonation. The record is also vague and unclear as to when (before or after the Gonzales cap was produced) La. Coke employed Ms. Becnel to be a quality control manager. Additionally, there is considerable testimony in the record as to the statistical probability of La. Coke having discovered the defective cap had it adhered to the quality control procedures and standards recommended by Alcoa.

Thus, there is ample evidence in the record to support the trial judge’s conclusion as to the obligation of La. Coke to the consuming public. As a reviewing court, it is not our function to substitute our view for that of the trier of the facts. The seminal decision setting forth the standard of review is Canter v. Koehring, 283 So.2d 716 (La.1973). Under it and its progeny, where there is conflict in the evidence, we are not at liberty to disturb reasonable evaluation of credibility and reasonable inference of fact, even though we may find our own evaluations and inferences are as reasonable.

Since both La. Coke and Alcoa were a cause in fact of the injury and each had a corresponding duty to the public in general and to Ms. Gonzales in particular not to allow defective closures into the market place, they have a mutual obligation to the plaintiff to pay for the damages she sustained as a result of their failure to adhere to that duty. Jones v. Robbins, 289 So.2d 104 (La.1974); Pepitone v. State Farm Mut. Auto Ins. Co., 369 So.2d 267 (4th Cir.1979) writs denied 371 So.2d 1343 (La.1979). Hence the trial court correctly cast them solidarily liable to the plaintiff as joint tortfeasors. LSA-C.C. Art. 2324. McCreary v. Commercial U. Ins. Co., 372 So.2d 745 (4th Cir.1979); Guilbeau v. Guilbeau, 326 So.2d 654 (3rd Cir.1976).

Both defendants contend on appeal that the trial court erred in ruling on their respective third-party demand against their co-defendants for contribution and/or indemnity. The trial court’s judgment in addition to finding the defendants solidarily liable to the plaintiff, cast each of the two defendants liable for 50% of the damages. The trial court properly held that the two defendants as solidary obligors were entitled to contribution from their respective joint tortfeasors for his virile share. LSA-C.C. Article 2103. Bacile v. Parish of Jefferson, 411 So.2d 1088 (4th Cir.1981).

Once the trial court found that the co-defendants were joint tortfeasors and granted them contribution, he properly denied them indemnification. Indemnification would shift the entire loss from a tortfeasor only technically or constructively at fault to the party primarily responsible for the action that caused the damage. Green v. TACA International Airlines, 304 So.2d 357 (La.1974); Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (La.1922). Thus, if either of the defendants were found to be only constructively or technically at fault, then that defendant would be entitled to 100% indemnification from the other defendant who has been found to be actually at fault. In this instance, however, both defendants have been found to be concurrently at fault, hence, neither is entitled to indemnification from the other. Bacile v. Parish of Jefferson, supra.

Accordingly, the judgment of the trial court is affirmed. Each appellant is to bear his cost of the appeal.

AFFIRMED.

      . Plaintiff subsequently amended his petition to allege as against Alcoa a defective closure system as was alleged by La. Coke in its third party demand against Alcoa. Schweppes merely filed a general denial and by apparent acquiescence of all parties has been dismissed or at least ignored in the action.

      . The amendment to LSA-C.C. Art. 2103 did not go into effect until August 1, 1980, hence, the applicable law is LSA-C.C. Art. 2103 prior to its amendment by Act No. 431 of 1979.


text:
    Jessie E. ALLEN v. WAGNER-TRUAX COMPANY, INC. and the Travelers Insurance Company.
    No. 84-CA-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.

      Coleman T. Organ, Metairie, for plaintiff-appellant.
    Law Offices of James J. Morse, Bernard S. Dolbear, New Orleans, for defendants-appellees.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal by Jessie E. Allen, plaintiff, from a $111,869.47 judgment in her favor against Wagner-Truax Company, Inc., defendant, and their insurer, The Travelers Insurance Company, for injuries sustained in a “slip and fall” tort suit. The defendants neither appealed nor answered the appeal.

Plaintiff contends the $111,869.47 award was inadequate because the trial court erred in computing the amount of lost future wages and the $15,000.00 award for pain and suffering was inadequate. For the reasons hereafter stated, we affirm the trial court.

At the time of trial Mrs. Allen was 57 years of age. Although she commenced her formal educational training late in life, she succeeded in obtaining three prestigious degrees: (1) a bachelor’s degree in education with a major in speech and Spanish from the University of New Orleans, (2) a master’s degree in special education with a minor in school administration from the University of New Orleans, and (3) a Ph.D. in counseling from Marquette University. Following her graduation in 1977 from Marquette University to 1980 she had the following employment record and earnings:

(1) In 1978 she was employed as a teacher in the Jefferson Parish Schools and had earnings for the year of $14,-500.00;
(2) In 1979 she was principal of the St. Charles Borromeo School at a salary of $12,500.00;
(3) In 1980 she was a guidance counselor with the Plaquemine Parish School Board and earned $19,000.00.

On January 15, 1981, while employed as head of the Department of Special Education of the Plaquemine Parish School Board, at a salary of $28,000.00 per year, she slipped and fell to the floor in the defendant’s building. Notwithstanding the injuries sustained in the fall, she continued in her employment with the Plaquemine Parish School Board until June 30, 1982. The circumstances under which her employment with the Plaquemine Parish School Board terminated forms one of the basis for the dispute as to quantum on this appeal.

At the trial, Mrs. Allen testified that sometime prior to June 1982 she started discussing with the Superintendent of Education for the Parish of Plaquemine a change in her employment as head of the Department of Special Education to guidance counselor because her arthritic condition (resulting from the fall) had progressively worsened to the point she felt unable to continue performing the duties of her office.

In direct contradiction of Mrs. Allen’s testimony, the Superintendent of Education for the Plaquemine Parish School Board testified that Mrs. Allen had never complained of her arthritic condition to them and her employment terminated only after she was informed her work was totally unsatisfactory and she would no longer be retained in the position of head of the Department of Special Education. He further testified that when she learned her employment as head of the Department of Special Education would not be continued, she then sought continued employment as a guidance counselor.

In support of her claim for lost wages, the plaintiff introduced the testimony of Dr. Seymour Goodman, an economist. He determined her earnings for the first half of the 1981-82 school year as $15,-441.00 or $30,882.00 for the total year. Based on this, he computed her loss of earnings from June 1982 (the date she stopped working) to the date of the trial in April 1983 at $28,190.58. He then established and utilized a formula to compute an award for the impairment of her future earning capacity. In essence under his formula it was arbitrarily assumed Mrs. Allen’s earning capacity had been impaired to the point she could not be expected to earn more than $10,000.00 per year. (This was an arbitrary figure furnished to him by plaintiffs counsel). He then subtracted this from the computed earnings of $30,-882.00 for the last year she worked as head of the Department of Special Education and, following adjustments for projected salary increases, multiplied the net result times her work-life expectancy of 5.7 years, discounted it at the rate of 10¾% and arrived at a projected amount of $127,000.00 as the amount necessary to compensate her for her impaired earning capacity. The trial judge, having concluded Mrs. Allen was more suited to an employment as a guidance counselor, substituted $22,000.00 (the earnings of a guidance counselor) where Dr. Goodman used $32,882.00 and made an award of $66,187.61 for the impairment of her future earning capacity.

The plaintiff contends that having accepted Dr. Goodman’s formula, the trial judge was obligated to use the same assumptions, therefore, he erred in making other assumptions. Considering Mrs. Allen’s employment and income prior to her employment as head of the Department of Special Education, her doctor’s reeommen-dation that she continue to work, her preference for guidance counselor work, her having remained on the job for over a year after the fall and her efforts to seek such employment, and her effort to remain at work as a guidance counselor, we cannot say the trial judge was clearly wrong in concluding Mrs. Allen was more suited to employment as a guidance counselor. Rather, considering this record as a whole, we are convinced his conclusions and the amount of her award for lost wages and impaired future earning capacity were rather generous.

According to the testimony of Mrs. Allen’s physician, her fall caused a previously existing arthritic disease to “flare up”. Her previous 1979 “flare up” (prior to the injury) was concentrated in the joints of her fingers and hand; whereas, the “flare up” shortly after the fall was concentrated in her knees and shoulder. Notwithstanding the “flare up” and the necessity for intermittent treatment, Mrs. Allen was able to continue in her usual employment which included twelve hours work per day and a substantial amount of driving to and from work.

Plaintiff now contends the $15,-000.00 award as general damages was inadequate. Considering her prior history of arthritis disease, the fáct she continued in her employment for over a year following the fall and her general medical history since the fall, we cannot say the trial judge was clearly wrong in fixing the award for pain and suffering at $15,000.00 or in awarding a total of $111,869.47 for the damages sustained. Rather, in our view the total award was on the generous side of the trial judge’s wide discretion and hence should not be disturbed. Reck v. Stevens, 373 So.2d 498 (La.1979).

Accordingly, the judgment of the trial court is affirmed. The plaintiff is to bear all costs of the appeal.

AFFIRMED.

      . Dr. Goodman was asked to compute the projection based on the judge’s assumption and arrived at the $66,187.61 amount.


text:
    STATE of Louisiana In the Interest of the Minor Child, Patrice HODGES.
    Nos. 84-CA-322, 84-CA-323.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    John M. Mamoulides, Dist. Atty., James Weidner, Dorothy Pendergast, Asst. Dist. Attys., 24th Judicial District, Parish of Jefferson, Gretna, Richard J. Brazan, Jr., Richard Ducote, Dept, of Health & Human Resources, New Orleans, for plaintiff-appellant.
    Terrance J. Powers, New Orleans, for defendant-appellee.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   KLIEBERT, Judge.

This is an appeal by the State of Louisiana, through the Department of Health and Human Resources (DHHR) from a judgment of the Juvenile Court of the Parish of Jefferson dismissing, on the parents’ motion to dismiss, the DHHR’s petition for abandonment, filed pursuant to La.R.S. 9:403 et seq., because the child was then in the custody of the DHHR by virtue of a court order. In granting the motion to dismiss, the trial judge concluded the proper procedural vehicle for termination of parental rights is an action brought pursuant to the provisions of LSA-R.S. 13:1600, et seq. For the reasons which follow, we reverse and remand.

The child was originally placed in the custody of DHHR by the court pursuant to a court order after the child was treated at Charity Hospital for a broken leg. The mother admitted knowledge of the injury for five days, but neglected to obtain medical treatment for the child. Pursuant to LSA-R.S. 13:1570, the district attorney filed a petition alleging the child to be a neglected child. After a hearing the court declared the child neglected and placed the child in custody of DHHR.

On November 15, 1983 DHHR filed an affidavit of abandonment pursuant to LSA-R.S. 9:405, et seq., seeking to have the child declared abandoned and thus terminate the parental rights. The petition alleged that Ms. Hodges had not visited her child since December of 1981 nor had she cooperated with DHHR in therapy nor had Mr. Hodges visited the child since 1977. Additionally, according to the petition, neither parent had contributed to the support of the child or inquired into the child’s status since December of 1981.

At a hearing on a motion to dismiss, the parents, through counsel, maintained that the abandonment petition should be dismissed because a child cannot be considered abandoned by the parents if physically separated from the parents by a court order. The trial court agreed and dismissed the abandonment action. On appeal, DHHR contends the fact the child had been placed in the custody of the DHHR does not bar an abandonment action filed pursuant to LSA-R.S. 9:403. The trial court obviously concluded that “abandonment” within the meaning of LSA-R.S. 9:403 required an act of voluntary surrender by the parents.

LSA-R.S. 9:403A(1) does not define abandonment, however, it sets out the facts which must be proven by clear and convincing evidence for the court to consider a child abandoned as follows:

(1)(a) the child has been deserted for a period of at least four months by his parent or parents, the whereabouts of his parent or parents are unknown, the parent or parents have made no provision for the child’s care and support and have shown an intention to avoid parental responsibility; or
(b) the parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.

Thus, in determining whether there has been an abandonment within the meaning of the statute the facts must show an intention to permanently avoid parental responsibility. Therefore, once the facts are proven the essential inquiry is the intent of the parents. The statute provides the following standard to be followed in making the inquiry:

(2) The introduction of clear and convincing evidence which establishes the facts required by Subparagraphs (l)(a) or (l)(b) of this Subsection shall create a presumption that the parent or parents intended to permanently avoid parental responsibilities. The child shall be declared abandoned unless the parent or parents present evidence that rebuts the presumption. A parent adjudged to have abandoned his child under Subpara-graphs (l)(a) or (l)(b) shall thereafter have no right to object to or oppose any proceeding to adopt that child.
This Part shall not be construed to require physical care of a child by a parent or parents to whom custody has been denied or from whom custody has been removed by a court of competent jurisdiction.

Under this standard, intent to abandon cannot be shown by the failure of the parent or parents who have been denied custody or from whom custody has been removed by a court of competent jurisdiction to provide physical care of the child.

Undoubtedly the restriction imposed by this provision imposes a severe burden of proof on the state; however, we cannot conclude, as contended by the parents and held by the trial court, that LSA-R.S. 13:1600, et seq. is the exclusive procedural vehicle available to the state to terminate parental rights.

In a somewhat analogous situation this Court, in State in Interest of Canady, 430 So.2d 265 (5th Cir.1983) which involved a temporary voluntary surrender of children to the state, said:

“.... The State argues the judgment of the trial court effectively provides that when a parent temporarily places a child with the Department of Health and Human Resources no abandonment proceedings can ever be instituted against them regardless of the circumstances. However, this is not the case. If it became evident the parents did indeed intend to permanently avoid parental responsibilities, then abandonment proceedings could be brought .... ”

Likewise here, if at a hearing, and notwithstanding the evidentiary restriction of LSA-R.S. 9:403A(2), if other clear and convincing evidence is introduced which does indeed meet the requirements of the statute and shows the parents did indeed intend to permanently avoid parental responsibilities, then the court can declare a parental abandonment notwithstanding the prior removal of custody from the parents.

Accordingly, the judgment of the trial court dismissing the state’s petition for abandonment is reversed and set aside and the case remanded to the trial court to proceed in accordance with the views here expressed. Each party to bear his own cost.

REVERSED AND REMANDED.


author: DUFRESNE, Judge.

text:
    KELLER INDUSTRIES, INC. d/b/a Keller Building Products of New Orleans v. DEAUVILLE CONSULTANTS, INC., Deauville Properties, Inc. and Henry Eikel, III.
    No. 84-CA-60.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Rehearing Denied Dec. 17, 1984.

      Glenn C. McGovern, New Orleans, for plaintiff-appellee.
    Henry W. Kinney, III, New Orleans, for defendants-appellants.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Plaintiff, Keller Industries, Inc., instituted this suit against defendants, Deauville Consultants, Inc. and Henry Eikel, III, as solidary obligors on an open account. The trial court rendered judgment in favor of plaintiff for the principal amount as well as interest, together with attorney fees and all costs of the suit.

The trial court reasoned in its judgment that the defendant, Henry Eikel, III was the surety on an open account entered into with the' plaintiff and Deauville Consultants, Inc., d/b/a Deauville Properties, Inc. From this judgment only the defendant, Henry Eikel, III has appealed. The defendant assigns the following errors:

(a) there never existed a clear and precise expression of suretyship.

(b) parole evidence was inadmissible to support the existence of a suretyship.

(c) the open account sued upon was not that of Henry Eikel, III.

The facts of this appeal are simply undisputed. Evidence adduced at trial indicates that on January 8, 1980, Deauville Consultants, Inc., through its agent, Henry Eikel, III entered into a contractual arrangement seeking to obtain building materials for contracting work. During the course of the negotiations the plaintiff secured a credit application from the defendants accompanied by suretyship agreement executed by defendant, Henry Eikel, III. The pertinent language of this agreement indicated that in consideration of Keller Industries, Inc., extending credit to Henry Eikel, III and Deauville Consultants, Inc. that Henry Eikel, III guaranteed the payment of any and all future obligations of Henry Eikel, III and Deauville Consultants, Inc.

Plaintiff sold and delivered on open account to defendants construction merchandise amounting to $5,343.73, the outstanding principal indebtedness. Testimony introduced at trial on behalf of the plaintiff indicates that the “credit application” dated January 2, 1980, specified on the reverse of this document that the defendant, Henry Eikel, III was a guarantor or surety of the debts of the defendant, Deauville Consultants, Inc.

Mr. Claude Robinson, regional credit manager, testified on behalf of the plaintiff that invoices of goods introduced into evidence were purchased by defendant, Deau-ville Consultants, Inc. He indicated that Deauville Consultants had acknowledged said debt and also explained that Henry Eikel signed as a guarantor in order for Deauville Consultants, Inc. to open up a credit account for building materials. He also stated that he thought Henry Eikel, III, was a principal and vice-president of Deauville Consultants and that he represented himself as such and that the plaintiff would not have extended credit if they did not have a principal guaranteeing the debts of the corporation.

The plaintiff suggests to this court that the evidence presented does prove that the relationship created between Keller and Eikel meets all of the requirements of a “suretyship agreement” and that under the obligations of a surety towards a creditor, Eikel should be held solidarily liable with Deauville Consultants, Inc.

Suretyship is defined in Article 3035 of the Louisiana Civil Code:

“Art. 3035. Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.”

A contract of guaranty is equivalent to a contract of suretyship, and the two terms may be used interchangeably. A surety’s contract need not observe technical formalities, but it must contain an absolute expression of an intent to be bound, Ball Marketing Enterprise v. Rainbow Tomato Co., 340 So.2d 700 (La. App. 3rd Cir.1976). It is an accessory promise by which one binds himself for another already bound and agrees with the creditor to satisfy the obligation if the principal debtor does not do so., American Indemnity Co. v. Robertson, 309 So.2d 737 (La.App. 4th Cir.1975). An agreement of suretyship must be in writing and must be explicit, Boro Industries, Inc. v. James J. Culotta, Inc., 336 So.2d 878 (La.App. 4th Cir.1976).

Parole evidence may not be used to establish either a suretyship or a promise to pay the debt of another even when admitted at trial without objection, Altex Ready-Mixed Concrete Corp. v. Employers Commercial Union Ins. Co., 308 So.2d 889 (La.App. 1st Cir.1975).

La.Civil Code Article 3039 further explains the contract of suretyship and provides:

“Suretyship can not be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract.”

Therefore, it is apparent under the previously discussed statutes and jurisprudence that we can only consider the “written agreement” involved in the instant situation in order to determine if a suretyship relationship or a continuing guaranty existed which would result in Henry Eikel, III being liable to plaintiff. The only written evidence adduced at trial concerning the claim of the plaintiff against Henry Eikel, III consists of certain letters, billing statements, and credit application received by the plaintiff from representatives of Deau-ville Consultants, Inc. and Henry Eikel, III.

Our review of the evidence and record reveals an agreement which in our opinion can only be construed as containing language sufficient to evidence an absolute expression of intent to pay the contractual debt of Deauville Consultants, Inc.

Therefore, we conclude and agree with the trial judge that plaintiffs argument that evidence presented at trial was sufficient to prove a suretyship agreement.

The award of attorney fees to plaintiff is put at issue by defendant. Attorney fees may be awarded only if authorized by statute or stipulated by contract Pelican Printing Co. v. Pecot, 216 So.2d 153 (La. App. 4th Cir.1968).

If the plaintiff was entitled to recover attorney fees from the defaulting principal debtor, Deauville Consultants, Inc., plaintiff would likewise be entitled to recover such attorney fees from the surety, Henry Eikel, III. See LSA-C.C. Arts. 3035 and 3037. We find the trial court was correct in the award of attorney fees.

These fees are due as per the suretyship agreement which provides for attorney fees as a matter of contract. Furthermore, we find the trial court did not abuse its discretion in the determination of the amount of these fees.

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

AFFIRMED.

      . A copy of this agreement is attached as Appendix “A”.


text:
    JEFFERSON DISPOSAL CO., INC. v. PARISH OF JEFFERSON.
    No. 83-CA-802.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Writ Denied Jan. 14, 1985.

      Ernest E. Barrow, II, Gretna, for plaintiff-appellant.
    Wayne D. Mancuso, New Orleans, for defendant-appellee.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Jefferson Disposal Co., Inc., plaintiff-appellant, from a judgment in favor of the Parish of Jefferson, defendant-appellee, in a suit, the single issue of which is the interpretation of an ambiguous clause appearing in several contracts. Because we conclude that the trial court properly resolved this ambiguity on the basis of the prevailing custom in the industry, we affirm.

Between 1970 and 1978, Jefferson Parish let five bids for garbage collection and disposal in three districts of the parish. In each case, the bid specifications gave an estimated number of “residential units ... to be served.” Jefferson Disposal successfully bid on each district contract. These bids were based on the estimated number of units in each district as given in the specifications, and were firm for the first year of each contract. In three of the contracts there was a yearly adjustment clause in the specifications based on:

“The number of new household units to be serviced in the District. The number of such households shall be determined by the water meter records of the Department of Water.”

When Jefferson Disposal commenced the work, it realized that its overhead on the contracts was higher than anticipated. In mid-1978, it notified the Parish of this problem and contended that the probable explanation was that the base estimates of units in the bid specifications were too low. When the parties began looking into this question, it was discovered that the unit counts, at least in regard to the adjustment clauses, were based on the numbers of active water meters shown in the Water Department’s records, and therefore did not include vacant units. Jefferson Disposal claimed that the contracts contemplated that all units were to be counted, whether vacant or not, and insisted that any recalculation of the original unit estimates, as well as the yearly adjustments, be made on both active and inactive water meter records.

When good-faith negotiations on these issues reached an impasse, Jefferson Disposal filed suit in March, 1980, seeking to have the court determine the correct total number of units in each district, both active and inactive, and for judgment against the Parish for payments based on these totals.

In November, 1981, while suit was still pending, the parties stipulated that an outside consultant acceptable to both would be hired to make a count of all units in each district for each year between the signing of the contracts and 1981. They further agreed that these counts would be binding on the parties and that Jefferson Disposal would be paid on the basis of those figures times the prices per unit.

The question of whether vacant units would be included or excluded from the consultant’s counts, was not resolved and this issue was tried by the court.

After trial on the merits, the court found that the question of vacancies was an unforeseen event not contemplated by the parties at the time of execution of the contracts.

He therefore looked to the expert testimony which was that garbage disposal contracts which use utility records to determine the number of units to be served invariably use the active billing lists found in such records, and thus exclude vacant units. Based on this testimony, he concluded that this was the custom in the industry and accordingly, rendered judgment in favor of the Parish of Jefferson. Jefferson Disposal now appeals.

Three errors by the trial court are urged.

1. That the contracts are clear that vacant units are to be included in the count, and that it was thus improper to resort to custom to interpret these agreements, contrary to their express language.

2. That even if the terms are ambiguous, that ambiguity is properly to be construed against the party who confected the contract; and

3. The expert testimony was not relevant to the language of the contracts.

We find no merit in these allegations.

Jefferson Disposal first argues that the contracts are clear that vacant units are to be counted. In support of this position it refers to words such as “every”, “each” and “all” units in the districts. It further contends that the reference to “water meter records” in the escalation clauses can only mean all records, both active and inactive.

Our review of the entire contracts pursuant to La.Civ.Code arts. 1948 and 1949, leads to the opposite conclusion. In regard to the basic estimates of the specifications there is no mention if whether these figures included or excluded vacant units. Other language, moreover, is of little help.

On the one hand, there are references to “each unit”, “units serviced”, “units to be served”, and “residential units”, all of which lend weight to Jefferson Disposal’s contention that the total number of “units”, whether vacant or not, controls. On the other hand there are references to “all residential customers”, “residential units or customers to be serviced”, “increase in residential customers served”, and “number of customers served”, which indicate that it is the actual number of customers that governs, and therefore that vacant units are excluded.

Nor do we find the reference to “water meter records” in the escalation clauses clear. Obviously, if vacant units were excluded in the’ basic estimates, they would also be excluded from the increases and vice versa, but as it cannot be determined what the basic estimates included or excluded, the ambiguity cannot be resolved by reference thereto.

Jefferson Disposal also argues in this regard that because the contracts specifically exclude service to hotels and certain large apartment complexes, they therefore include all other “units”, whether vacant or not. While we appreciate the thrust of this contention, we. are nonetheless not persuaded by it. It is clear from the record that these particular exclusions were based on the fact that these hotels and apartment complexes employ private garbage and trash companies to service them. That the bid specifications therefore excluded these units outright tells us nothing about whether or not, vacant units in the districts were to be paid for under the contracts.

Neither do we find the parole evidence of the parties’ intent helpful in explaining this ambiguity. The Parish official who prepared the specifications testified that they simply never considered whether or not vacancies were to be paid for. Jefferson Disposal’s representatives also admitted that, although they assumed they would be paid for all units, they never specifically considered the question of vacancies.

Considering the language of the contracts as well as the testimony of the parties, we find, as did the trial court, that these contracts are indeed ambiguous on the issue of “vacancies”.

The second error urged by Jefferson Disposal is that if the contracts are ambiguous, then that ambiguity must be resolved against the party who prepared the contract. While we do not dispute that general rule of law, we find it inapplicable here. Article 1953 of the Civil Code relied on by the trial court, states that “Whatever is ambiguous is determined according to the usage of the country, where the contract was made.” (emphasis added) If it were true, as Jefferson Disposal argues, that all ambiguities in contracts must be resolved against the party who prepared the contract, then article 1953, would be meaningless. Our interpretation of the law is therefore that where the ambiguity can be resolved by reference to a received usage, article 1953, provides the proper rule of interpretation. Henry v. Ballard & Cordell Corp., 418 So.2d 1334 (La.1982); Southern Bitulithic Co. v. Algiers Ry. & Lighting Co., 130 La. 830, 58 So. 588 (La.1912); Fee v. Vancouver Plywood Co., Inc., 331 So.2d 151 (La.App. 3rd Cir.1976).

This brings us to Jefferson Disposal’s final argument which is that the trial court erred in crediting the testimony of the only expert to testify as to the received usage in the trade. That testimony was that the contracts at issue are known in the trade as dwelling unit contracts; that in some 20% of such contracts the number of units is determined by an actual inventory; and that in the remaining 80%, that number is determined by active utility billings, which of course do not include vacancies. Jefferson Disposal urges that this testimony is irrelevant here because its contracts do not use the term “billing records”, but rather “water meter records”. In our opinion, this begs the question. A crucial issue in the ease is what the term “water meter records” means. We have already determined that the phrase is ambiguous, and are seeking to know here whether there is a received usage in the trade which would shed light on its meaning. This is precisely what the expert’s testimony was directed toward, and we find no error in the trial court’s finding that such a usage does prevail on the basis of this testimony.

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.