author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Anthony DAY.
    No. KA-1057.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.
    Harry F. Connick, Dist. Atty., John H. Craft, William R. Campell, Jr., Asst. Dist. Attys., New Orleans, for appellee.
    Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

Defendant, Anthony Day, was charged by bill of information with the September 10, 1982 attempted armed robbery of Johnny Williams [La.R.S. 14:27, 14:64]. He was arraigned November 4, 1982 and pled not guilty. Defendant requested a jury trial. On February 22, 1983, a twelve man jury found the defendant guilty as charged by a unanimous vote.

On March 10, 1983 defendant was sentenced as a multiple offender under La.R.S. 529.1 to the maximum term of ninety nine years at hard labor without benefit of probation or parole. Defendant committed the instant offense after escaping from the Department of Correction while serving a forty year sentence for a previous armed robbery.

Defendant has briefed no specific assignments of error. Assignments of error neither briefed nor argued are deemed waived on appeal. State v. Kenner, 384 So.2d 413 (La.1980). Defendant requests the court to review the record for errors patent as required by La.C.Cr.P. Art. 920(2). The recent case of State v. Raymo, 419 So.2d 858 (La.1982), also requires review of a record for “sufficiency of evidence” under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State v. Edwards, 400 So.2d 1370 (La. 1981), regardless of whether counsel has moved for a directed verdict or a new trial or filed a formal assignment of error. Accordingly, this record has been so reviewed.

The bill of information was in proper form and signed by the district attorney. The trial court acted appropriately in that the defendant was present and represented by counsel at his arraignment, jury selection, trial and sentencing. The composition of the jury was proper as required by C.Cr.P. Art. 782 as well as the unanimous vote to convict. The verdict was responsive to the charge. The sentence was the maximum allowable by law and all appropriate delays were accorded the defendant in accordance with statutory parameters. As to the “sufficiency of the evidence”, the following facts and testimony were adduced at trial:

The defendant entered the Popeye’s Fried Chicken located at the corner of Tole-dano and South Claiborne Avenue in New Orleans on September 10, 1982 armed with a gun. He approached the security guard, Johnny Williams and demanded that Williams turn over his gun. Rather than surrender his weapon, Williams began firing at the defendant. In the course of the shooting, Williams shot the defendant and several other people. The defendant shot once at Williams missing him. In an attempt to flee, the defendant panicked and ran through the plate glass window. Williams ran after him firing two more times hitting the defendant both times. The defendant was found lying in the street a few blocks away with three gun shot wounds and lacerations of his hands and shoulders. In his possession were four — .38 caliber special live rounds of ammunition. In court identification was made of the defendant by the arresting officer, Claudia Neal; by Albert Hayes, a customer of Popeye’s at the time of the crime; by Cassandra Blatcher, the cashier and by Johnny Williams the security guard. The defense presented no witnesses.

After a careful review of the record we conclude there are no errors patent. Evidence presented at trial established that the defendant was armed with a revolver when he attempted to force the security guard to surrender his gun. Reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime of attempted armed robbery were proved beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982). Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . R.S. 14:64
      "Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation while armed with a dangerous weapon."
      R.S. 14:27
      “A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
      C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.”


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Vernon LEVAL and Government Employees Insurance Company v. Dr. Arthur DUGONI, Walter Myles, John Hughes, Mr. Morrison, et al.
    No. CA-0930.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      James G. Maguire, New Orleans, for John Hughes and Northwest Ins. Co., defendants-appellants.
    Milton Leblanc, New Orleans, for defendant-appellee.
    John H. Wells, Marilyn R. Cohen, New Orleans, for plaintiff-appellee.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the First City Court in Orleans Parish finding defendants John Hughes and Northwest Insurance Company [“Northwest”] liable for damages to plaintiff’s car.

In October of 1981, Dr. Arthur Dugoni was a passenger in a taxi operated by defendant Myles. Upon reaching his destination, a hotel in the French Quarter, defendant Myles stopped the cab on the left side of Burgundy Street (a one-way street) in order to let Dugoni get out of the cab. Dugoni opened the right door of the cab which was struck by a car driven by plaintiff Leval. Leval’s car was damaged. Le-val and The Government Employees Insurance Company, as subrogee, filed suit against the passenger, his insurer, as well as the cab driver, the cab owner, and his insurer, Northwest. Defendant John Hughes, the cab owner, and Northwest filed a third-party demand against Dugoni and his insurer. After a trial on the merits, judgment was rendered in favor of the plaintiffs against defendant Myles, Hughes and his insurer. Defendant Dugoni and his insurer were dismissed from the suit. Defendants Hughes and Northwest appealed.

At issue in this case is whether the taxi driver violated his standard of care in discharging his passenger. The trial court found that in view of the standard of care owed to Dugoni, defendant Myles was negligent in allowing him [Dugoni] to alight from the cab as he did.

A cab driver is not an insurer of his passenger’s safety, but owes him the highest degree of care. Addison v. Checker Cab Co., 337 So.2d 592 (La.App. 4th Cir.1976); Duane v. Toye Bros. Yellow Cab Co., 148 So.2d 451 (La.App. 4th Cir.1963). In Cary v. New Orleans Public Service, Inc., 250 So.2d 92 (La.App. 4th Cir.1971), this court held that:

“[t]he test of negligence is whether or not the place where a passenger is forced to disembark is reasonably safe for the purpose”, [citations omitted].

Id. at 94.

In this case, the cab driver allowed his passenger to exit the taxi without first warning him that he had stopped on the left side of the street. Myles testified that he did not see Leval’s car approaching, although it must have been extremely close in order for Dugoni to have struck it with the door. The trial court held that, under the circumstances, Myles should have checked the road before allowing the passenger to leave. We agree.

Furthermore, the trial court found that Myles’s duty to Dugoni was heightened because of the driver’s observation that his passenger was not “normal.” At trial, the following exchange occurred:

Q. “During the time that you [Myles] were driving him ..., did he seem like he was a normal person?
A. “No, no. I mean, he was like he had a few drinks.”

TV. at 43.

A taxi driver who is aware of a passenger’s intoxication owes him a higher duty of care. E.g., Cox v. Toye Bros. Yellow Cab Co., 144 So.2d 448 (La.App. 4th Cir.1962). In this case, in light of the taxi driver’s testimony, we cannot find that it was manifest error for the trial court to apply this higher standard to him.

We cannot conclude, from the evidence presented at trial, that the trial court committed manifest error in holding defendants negligent and dismissing the suit against Dugoni and his insurer: Dugoni was a visitor from San Francisco (Myles knew that he was from out of town), apparently had been drinking, and was allowed to exit the cab at an unsafe place, without proper warning. See, Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Appellants have asserted that the failure of defendant Dugoni to testify at trial should raise the inference that his testimony would have been unfavorable. Maxwell v. Gibson, 421 So.2d 1175 (La.App. 2d Cir.1982). We need not decide whether this inference is applicable to this case. Even assuming Dugoni’s testimony to be unfavorable, defendant Myles’s testimony would be more than sufficient to find him negligent. Myles was a cab driver, he perceived his passenger to have been “not normal,” thus heightening his duty to him, he stopped on the left side of the street, and failed to caution his passenger. These facts are all uncontradicted, and not within Dugoni’s particular range of knowledge. No unfavorable testimony from Dugoni could change the duty owed to him. The application of this inference in the present case, therefore, would be fruitless.

For the foregoing reasons, the decision of the trial court is affirmed, all costs to appellant.

AFFIRMED.


text:
    Darlene LEONARDI v. The DRESS RACK and State Farm Fire and Casualty Company.
    No. CA-0975.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      Tonry & Brodtman, Chalmette, Bruce G. Reed, New Orleans, for plaintiff-appellee.
    Joseph R. Ward, Jr., Joseph L. von Rosenberg, III, New Orleans, for defendant-appellant State Farm Fire & Cas. Co. and defendant-appellee The Dress Rack.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment finding that plaintiff Darken Leonardi suffered $13,000.00 in damages for injuries that she allegedly received in “The Dress Rack” [“Dress Rack”], a retail clothing establishment.

Plaintiff Leonardi sued Dress Rack and its insurer, State Farm Casualty and Insurance Company [“State Farm”] for injuries that she allegedly received when a potted plant fell and struck her on the head. After a trial by jury, the plaintiff was awarded I^OOO.OO.

At trial, after the plaintiff finished the presentation of her evidence, defendant State Farm moved for a directed verdict on its behalf on the basis that the plaintiff had failed to introduce any evidence whatsoever that it was the insurer of Dress Rack. The trial court denied the directed verdict. Dress Rack also moved for a directed verdict which was granted on the basis that it had been sued as a corporation, although Dress Rack was merely a trade name. This directed verdict was granted.

The bases of this appeal are: (1) State Farm’s contention that plaintiff failed to introduce any evidence that it was the insurer of defendant Dress Rack, and, therefore, it could not be liable for any damages that plaintiff might have suffered; and (2) plaintiff’s assertion that Dress Rack should not have been dismissed from the suit.

I. STATE FARM

State Farm argues that the trial court erred in failing to grant its motion for a directed verdict and in rendering judgment against it on the ground that no evidence was introduced at trial that it was Dress Rack’s insurer. Plaintiff argues that State Farm admitted coverage by its actions, including questioning potential jurors on voir dire, appearing at the counsel table, and propounding interrogatories.

After reviewing the record, we can find no evidence presented at trial that State Farm was the insurer of Dress Rack. Furthermore, in its answer to the petition filed by the plaintiff, State Farm denied the allegation that it had any insurance coverage for the plaintiff.

We find the case of Barber v. Best, 394 So.2d 779 (La.App. 4th Cir.1981), to be applicable to this case. In Barber, the trial court held that a plaintiff could not recover from an insurance company when the insurance company had denied coverage and the plaintiff had failed to introduce any evidence as to coverage during the course of trial. This court held that the insurer’s participation in the defense at trial, was inconclusive on the issue of insurance coverage. Id. at 780-81.

II. DRESS RACK

Plaintiff contends that the trial court erred in granting a motion for directed verdict in favor of Dress Rack. The judge based his decision on the lack of Dress Rack’s corporate status. Plaintiff argues that because she requested the petition to be served on “The Dress Rack” through “their proper agent for service of process,” Dress Rack has waived its right to object by not filing the declinatory exceptions of insufficiency of citation and insufficiency of service of process.

Wé find that the trial court did not err in granting the directed verdict. Article 736 of the Louisiana Code of Civil Procedure states: “A person who does business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business.” See also La.C.Civ.Pr. art. 687.

Any judgment against a trade name is a nullity. Cf. Scariano Bros., Inc. v. Backhaus, 359 So.2d 1036 (La.App. 4th Cir.1978) (garnishment proceeding cannot be brought against a trade name). Dress Rack’s failure to file exceptions, therefore, is irrelevant.

Furthermore, once Dress Rack denied its corporate status, it was incumbent upon plaintiff to prove that Dress Rack was a corporation. See Garden Hill Land Corp. v. Succession of Cambre, 306 So.2d 718, 723 (La.1975).

We note that plaintiff should not have been misled about Dress Rack’s corporate status by its actions. As the trial court correctly pointed out, a corporation is required to have “Company,”. “Incorporated,” “Corporation,” “Limited,” or abbreviations thereof in its name. La.R.S. 12:23. This, coupled with Dress Rack’s denial that it was a corporation, should have placed plaintiff on notice that she would be required to prove Dress Rack’s status.

For the foregoing reasons, the decision of the trial court to grant a directed verdict in Dress Rack’s favor is AFFIRMED; the judgment against State Farm is REVERSED.

AFFIRMED IN PART, REVERSED IN PART.

      . The jury found the plaintiff to have been 30% at fault in the incident, and Dress Rack to have been at fault 70%.


author: PER CURIAM.

text:
    Julius WILKERSON and Betty Wilkerson v. David CLARK and the Allstate Insurance Company.
    No. CA 1148.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1984.

      Darken M. Jacobs, New Orleans, for plaintiffs-appellants.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   PER CURIAM.

The trial judge followed Horstman v. Drake, 420 So.2d 473 (La.App. 4th Cir.1982) in awarding interest from date of judgment against the uninsured motorist carrier. That case has been overruled by Ainsworth v. Government Employees Insurance Company, 433 So.2d 709 (La.1983) which held that interest is to run on such a judgment from the date of judicial demand.

Accordingly, the judgment appealed from is amended in the respect that interest is to run from date of judicial demand rather than from date of judgment.

JUDGMENT AMENDED.


author: BARRY, Judge.

text:
    Charles W. STRECKER d/b/a Orleans Cabinet Works v. CREDICO FINANCIAL, INC.
    No. CA-0945.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1984.

      Alan H. Katz, Gordon, Arata, McCollam & Stuart, New Orleans, for plaintiff-appel-lee.
    Irving B. Shnaider, New Orleans, for defendant-appellant.
    Before SCHOTT, BARRY and WARD, JJ.
   BARRY, Judge.

This litigation involves a claim for payment for office furniture allegedly custom manufactured by plaintiff at defendant’s request. Plaintiff was awarded $3,704.22 which represents the contract price minus the amount plaintiff received when the furniture was sold to another buyer. Defendant claims the trial court erred by finding an oral contract, challenges the award, and questions whether plaintiff adequately mitigated his damages.

FACTS

Plaintiff Charles Strecker, proprietor of Orleans Cabinet Works, has manufactured and installed custom-made store and office furniture for forty years. Defendant Cred-ico Financial, Inc. operates loan offices in Mississippi and Louisiana. Plaintiff had done business with Credico and its predecessor for 35 years, involving over 90 jobs where plaintiff designed the office layout and manufactured and installed counters, desks, enclosures and other furniture. None of those transactions were by written contract. The only written documentation of each job was a schematic floor plan by plaintiff based on measurements and specifications from Credico. After the plans were approved, plaintiff made the furniture and billed Credico on a cost plus profit price.

Plaintiff was contacted by Don McBrayer, Credico’s area vice president, in late 1979 or early 1980 and told that Credico was planning to enlarge its Vicksburg, Mississippi office and wanted him to design the layout. Plaintiff met with McBrayer and his superior, John Falgoust, at Credico’s main office in New Orleans and was given measurements for the expanded office. McBrayer and Falgoust maintain they told plaintiff of their efforts to finalize a lease for more space and wanted to minimize the delay in setting up operations. Both men admitted asking plaintiff to propose a suggested layout or alternative layouts for the Vicksburg office.

A few days later, plaintiff returned to Credico’s office with at least one, and possibly several, proposed layouts. Falgoust thought they had discussed alternative floor plans but could only recall seeing one layout and did not remember the substance of the second meeting. McBrayer said plaintiff gave him a floor plan but the meeting “ended with the understanding to hold off, that we don’t have anything firmed....” Plaintiff testified the plan was approved at the second meeting.

Plaintiff also testified that McBrayer went to his shop a few days later and told him that Credico needed the furniture in one month. Plaintiff said his wife and several employees were present and he identified a notation made by his wife on the back of the floor plan, which said, “Allstate Credit Plan, one month.” Neither plaintiff’s wife nor any of his employees testified. McBrayer said he went to plaintiff’s shop on an unrelated matter and the Vicksburg furniture wasn’t mentioned.

Plaintiff testified the furniture was finished within two weeks after McBrayer’s visit, but when he contacted Credico concerning delivery he was told, “hold up on it.” Thereafter he or his wife called Credi-co about once a month, and were told they were still working on the new lease and would notify plaintiff when the furniture was required. Plaintiff claims he was never told by Credico that it didn’t want the furniture, but after storing it in his warehouse for two years he sold the furniture to E-Z TV Rental for $600.00.

Neither Falgoust nor McBrayer remembered any calls from plaintiff concerning delivery of the furniture until at least January, 1981. Both men said they were unaware plaintiff had built the furniture until shortly before suit was filed. Credico claims the telephone numbers for McBrayer which appear on plaintiff’s layout were not operative until McBrayer began working out of its Gulfport, Mississippi office in October, 1980, several months after plaintiff said he made the furniture and notified defendant. Plaintiff explained his wife made several calls to Credico’s New Orleans office requesting delivery information and was eventually given the Gulfport numbers after being “put off” for months.

EXISTENCE OF AN ORAL CONTRACT

Credico’s first four assignments of error challenge the sufficiency of the evidence to support the finding of an oral contract. Specifically, Credico argues the trial court erred by finding consent to a contract because its managers denied giving such consent and there was no action from which consent could be inferred. The question of consent is an issue of fact, not of law. Credico’s witnesses, McBrayer and Falgoust, were directly contradicted by plaintiff who said McBrayer specifically instructed him to build the furniture within one month. Contrary to Credico’s assertion, the lower court did not “infer consent” solely from its actions or inaction; rather, the trial judge chose to believe plaintiffs direct testimony as opposed to that of Credico’s employees.

Credico further contends it was error to accept plaintiff’s unsubstantiated testimony when LSA-C.C. Art. 2277 requires the existence of a contract in excess of $500 be proven by “at least one credible witness, and other corroborating circumstances.” Credico acknowledges a litigant may qualify as the “one credible witness.” Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); B.M. Albrecht Electric, Inc. v. Griffin, 413 So.2d 246 (La.App. 4th Cir.1982); Aydell v. Fontaine Abbott Constn. Co., 274 So.2d 484 (La.App. 1st Cir.1973). Our jurisprudence also holds that corroboration need not be “independent proof of every detail of the witness’s testimony,” but may be “general corroboration.” Samuels v. Firestone Tire & Rubber Co., supra, at 662. The existence of corroborating circumstances is a question of fact and a trial court’s findings thereon are entitled to great weight. Samuels, supra; Aydell v. Fontaine Abbott Constn. Co., supra; O'Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir.1979). Nevertheless, defendant contends there was absolutely no corroborating evidence from which the trial court could have found the existence of an oral contract.

In his Reasons the trial judge declared:

THIS COURT finds that the testimony of plaintiff, Charles W. Strecker, was not only believable but is rational and logical. It is incredible to think that after performing more than ninety (90) contracts based on oral agreements, that plaintiff would have proceeded to build the furniture shown in plaintiff’s exhibit no. 1, without an affirmative indication by defendant to proceed. The evidence is supportive and this Court believes that the defendant found that it no longer needed the furniture or that it was no longer feasible to take delivery of the furniture, and defendant repudiated the contract ■after the plaintiff was ready, willing and able to deliver defendant’s order;
The evidence when taken as a whole is clear that there was a valid oral contract between plaintiff and defendant to build the cabinets shown in plaintiff’s exhibit no. 1, which is enforceable in our Courts. (Citations too numerous to list.)
This Court was especially impressed by the testimony of Messrs. John R. Falgout [sic] and Don McBriere [sic] who attempted to convince this Court that the defendant “never ordered any furniture”, or that there “was no contract to build the furniture”. This too is incredible! However, their testimony when carefully weighed by the circumstances of this case, is corroborative of the plaintiff’s claim.

A similar fact situation occurred in Ay-dell, supra. There the plaintiff operated a millwork and cabinet making business, bid on a job, and claimed the general contractor told him the job was his. In reliance, plaintiff placed special orders for custom-made doors. Two defense witnesses testified plaintiff had not been awarded the job. The trial court accepted plaintiff’s version of the matter and found an oral contract. As in this case on appeal, the defendant in Aydell contended there were no “corroborating circumstances.” The First Circuit rejected defendant's argument, stating:

In the case at bar the doors ordered by plaintiffs were of a custom type made especially for the particular jobs involved and plaintiff would not have ordered them if indeed there had been no oral contract. We find that this is an additional corroborating circumstance evidencing the alleged oral contract between plaintiff and defendant.

Similarly, in Jolley Elevator Co. v. Schwegmann Bros. Giant Super Markets, 230 So.2d 640 (La.App. 4th Cir.) writ denied 255 La. 813, 233 So.2d 251 (1970), this Court held the plaintiff’s actions in ordering materials for the installation of an elevator were “corroborating circumstances” which sufficiently supported plaintiffs testimony to prove an oral contract.

In this case the trial judge found, and we agree, that plaintiffs actions in ordering the materials and building the furniture were corroborating circumstances. That corroboration, coupled with plaintiffs testimony, meets the requirements of C.C. Art. 2277 to support the existence of an oral contract.

Defendant’s brief contains statements indicating the contract was one of sale, apparently arguing that no contract could exist because a specific price had not been negotiated. However, our jurisprudence shows this was a contract to perform (to do) rather than one to sell. E.G. Duhon v. Three Friends Homebuilders Corp., 396 So.2d 559 (La.App. 3d Cir.1981); Kegler's, Inc. v. Levy, 239 So.2d 450 (La.App. 4th Cir.1970). In such a contract, it may be presumed that price will be determined in a reasonable manner. Here the price was determined as it had been in the previous ninety-six jobs performed by plaintiff for defendant.

THE REFUSAL TO ALLOW EVIDENCE CONCERNING THE AUTHORITY OF CREDICO’S OFFICERS TO BIND CREDICO

Credico complains the trial court erred by not allowing testimony on its corporate procedures for approving contracts in order to show McBrayer lacked authority to order the furniture. The trial judge refused the testimony because Credico did not plead the affirmative defense of lack of capacity. Defense counsel was allowed a proffer but none was made.

Articles 1151 and 1154 of our Code of Civil Procedure allow the trial judge to deny an amendment to an answer and to deny the introduction of irrelevant evidence. The trial judge has discretion and his ruling will not be disturbed except where abuse of discretion is manifest and indicates a possibility of resulting injustice. James v. Missouri Pacific Railroad Co., 113 So.2d 41 (La.App.2d Cir.1959).

Plaintiff was not aware until mid-trial that Credico intended to assert lack of agency as a defense. Trial had previously been set twice and before each setting plaintiff’s and Credico’s counsel had conferred but there was no mention of that defense. No discovery was taken.

The record supports denial of the agency testimony. Plaintiff had performed ninety-six jobs for Credico. Although Credico’s managers changed over the years, plaintiff always dealt with persons at the level of McBrayer and Falgoust in New Orleans, and those persons possessed apparent authority to bind defendant. McBrayer and Falgoust testified that neither they nor anyone else had ever told plaintiff that authority to purchase furniture had to be obtained from Credico’s headquarters in New Jersey. The trial judge correctly disallowed the testimony. Further, we are satisfied the agency defense is without substance.

QUANTUM

Credico contends the award is “in an amount which was not substantiated or corroborated in any way.” Plaintiff testified his price was based on “costs plus profit” as in all prior contracts with Credi-co. He explained the $4,304.22 represents labor and materials plus 30% profit. Credi-co had never questioned his many past computations and offered no evidence that plaintiff’s costs were wrong or unreasonable. The trial court properly accepted plaintiff’s testimony in setting the contract price.

Credico also asserts plaintiff failed to mitigate his damages because he waited two years to sell the furniture and then for only $600. Credico relies on the principle that, where a seller can avoid a loss “by reselling the item on the open market at the time of the original delivery, the seller may not recover damages from the buyer,” citing Mutual Rice Co. of La. v. Star Bottling Works, Ltd., 111 So. 661 (1927). Credico also urges that a seller must minimize his loss by reselling the goods as soon as practicable after the buyer rejects them and must secure the best price obtainable. Cyrus W. Scott Mfg. Co. v. Stoma, 10 La.App. 469, 121 So. 335 (2d Cir.1929) and Belle Alliance v. International Molasses Co., 8 Orl.App. 176 (1911).

However, as noted above, this was not a contract of sale. Moreover, plaintiff testified he was never advised by any representative of Credico that it did not plan to accept the furniture; rather, he was consistently told to wait for further notification. Credico’s witnesses said they did not refuse delivery of the furniture until shortly before plaintiff filed suit. Plaintiff testified he sold the furniture shortly after the suit. Thus, there was no undue delay in plaintiff’s efforts to mitigate the damages.

Credico further claims the $600 price paid by E-Z TV Rental was unreasonable because of the $4,304.22 value. We note the uncontradicted evidence that the furniture was custom designed for Credi-co’s office in Vicksburg. Plaintiff testified the counter was 18 feet long — the largest plaintiff built — and would not be suitable for other offices without alterations. Plaintiff said he stored furniture in his warehouse for other finance companies and similar used furniture sold for about $300.

Salvador Cousins, manager of E-Z TV Rental, testified he approached plaintiff about buying the Credico furniture because he was told plaintiff had a long counter and other pieces. He stated he previously bought an 18 foot counter and three desks for $300 or $400. Cousins said he told plaintiff that E-Z TV wouldn’t pay more than $400 or $500 for the Credico furniture, but plaintiff charged $600 and Cousins agreed.

The trial court lauded plaintiff’s attempt to minimize his damage, saying:

The Court heard uncontested testimony that the plaintiff sold the furniture and/or fixtures for Six Hundred and no/100, ($600.00), dollars. This Court believes that this was not unreasonable. As a matter of fact, this Court is impressed that plaintiff was honestly attempting to mitigate his damages without realizing that the jurisprudence in Louisiana required this action by plaintiff; ...

We agree that plaintiff adequately and timely mitigated his damages.

The district court judgment is affirmed at appellant’s costs.

AFFIRMED.

      . Allstate was the predecessor of Credico.


author: BYRNES, Judge.

text:
    Lorraine Sabbathe COATES, et al. v. OWENS-CORNING FIBERGLAS CORPORATION, et al.
    No. CA 0924.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1984.

      George R. Covert, Baton Rouge, for plaintiffs-appellants.
    Monte J. Ducote, Charles E. Hamilton, III, Lucie E. Thornton, John C. Reynolds, Michael T. Cali, J. Michael Johnson, Linda S. Harang, James S. Thompson, Robert S. Rooth, Julie D. Livaudais and Joan G. Quin-ters, New Orleans, for defendants-appel-lees.
    Before BYRNES, LOBRANO and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from the granting of a peremptory exception of no cause of action. The appellants, Lorraine Sabbathe Coates, et al, are the wife and children of John C. Coates, a former insulation worker who is suffering from asbestosis. Mrs. Coates and her children sued the appellees, Owens Corning Fiberglas Corp. Inc. [Owens Corning] et al, for the loss of Mr. Coates’s consortium, service and society. Their petition alleged that, as a result of his exposure to asbestos particles while using appellant’s products, Mr. Coates contracted the progressive disease of asbestosis which in turn caused his lungs to deteriorate to such an extent that he is confined to a wheelchair and requires oxygen to help him breathe. Appellants urge that because of this condition they have been deprived of the consortium, society and service of Mr. Coates.

Suit was filed in September of 1982. Civil Code Art. 2315 was amended by Act 202 of 1982 to allow recovery for losses such as those alleged by the appellants. Owens Corning filed exceptions of no cause and no right of action alleging that, because the loss complained of had occurred prior to the effective date of Act 202, a cause of action did not exist. This contention was based on the assumption that the amendment to Art. 2315 was substantive in nature and therefore could not be given retroactive effect. The trial judge agreed and maintained the exception of no cause of action.

It is well settled that newly enacted laws can only be applied prospectively unless they can be characterized as interpretive, remedial or procedural. C.C. Art. 8, R.S. 1:2, Lott v. Haley, 370 So.2d 521 (La.1979), Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978), Green v. Liberty Mutual Insurance Co., 352 So.2d 366 (La.App. 4th Cir.1977). Appellants urge that the amendment to Art. 2315 was interpretive and merely clarified what was always the scope of recovery under that article.

The distinction between substantive and procedural laws is not always clear. Generally speaking, an interpretive law does not establish new rights, but rather clarifies the method by which already existing rights may be enforced. Substantive laws generally create new rights where none previously existed. Guste v. Burris, 417 So.2d 445 (La.App. 4th Cir.1982).

Appellant’s position is that Art. 2315 was always broad enough to allow recovery for loss of consortium, but the scope of that article was improperly limited by the jurisprudence to preclude such recovery. They argue that Act 202 did not create new rights, but legislatively overruled the line of cases which had blocked the exercise of their already existing right to recover for loss of consortium. We do not agree.

The jurisprudence of this state has been uniform for over 100 years in denying recovery under Art. 2315 for the damages sought by the appellants. See Mouton v. Armco Inc., 417 So.2d 889 and 425 So.2d 231 (La.App. 3d. Cir.1982). The amendment to Art. 2315 clearly broadened its scope and created a cause of action which had not previously existed. Because the amendment established new rights it cannot be applied retroactively. Green v. Liberty Mutual Insurance Co., supra.

We now analyze appellants’ petition to determine if it states a cause of action. The pertinent allegation of that petition reads as follows:

“Within the past year, the condition of John C. Coates has deteriorated to the extent that he can no longer drive a vehicle, has been confined to a wheelchair, and must continuously depend upon oxygen supplying devices to breath.” (Emphasis added).

It seems clear that appellants’ petition alleges damages which had occurred within the year immediately preceding the filing of suit. Suit was filed on Sept. 20, 1982. The effective date of Act 202 was Sept. 10, 1982. Thus, while suit was filed after the effective date of Act 202, it appears that the injury on which appellants base their claim had occurred prior to the passage of Act 202.

A cause of action arises when negligent or tortious conduct causes injury. Lucas v. Commercial Insurance Co., 198 So.2d 560, 564 (La.App. 1st Cir.1967). In this case appellants’ cause of action arose when they suffered the actual loss of the consortium, society and service of Mr. Coates. This conclusion is based on a realistic examination of the nature of this type of loss. Until an injured party’s condition deteriorates to such an extent that his family is actually deprived of his consortium, service or society, they have suffered no injury. A plaintiff can be injured, or even disabled, without that injury causing the damages contemplated by Act 202. It seems beyond question that the right of beneficiaries under Art. 2315 to recover for their loss of consortium, service and society cannot arise until that loss occurs. Until then any claim for damages would be speculative and premature.

Our courts have reached a similar conclusion in cases of wrongful death. See Smith v. Hurd, 408 So.2d 357 (La.App. 1st Cir.1981) and Holmes v. Pottharst, 438 So.2d 622 (La.App. 4th. Cir.1983). In those cases, wrongful death claims were held to be barred by the 1976 amendment to the worker’s compensation law forbidding tort suits against executive officers. In both cases the death occurred after the effective date of the 1976 amendment although the injury which caused the death occurred before the amendment, was passed. In addressing the issue of when a cause of action for wrongful death arose, the court in Holmes, stated; “... the action cannot arise until the victim dies and [it] is intended to compensate the beneficiaries for damages they suffer from the moment of death and thereafter.” See also Smith v. Hurd, supra.

Similarly, a cause of action for the loss of consortium under Art. 2315 as amended, cannot arise until the actual loss occurrs. That action is intended to compensate the beneficiaries for damages they suffer from the moment consortium is lost and thereafter. Until that loss occurs the beneficiaries have not been damaged and do not have a cause of action.

By the allegations of their petition, appellants in this case have admitted that their loss of Mr. Coates’s consortium, service and society occurred during 1981.

It follows that the injury which gave rise to appellants’ claim occurred before the amendment to CC Art. 2315 which created the rights they seek to exercise. The fact that their losses have continued beyond the effective date of the Act is of no consequence. The law in effect at the time appellants’ cause of action arose is the law which is applied to their case. Because that law did not allow recovery for loss of consortium, service or society we affirm the action of the trial court.

All costs of this appeal to be borne by appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Paul ALFRED, et al., Plaintiffs-Appellants, v. Jody WATERS, et al., Defendants-Appellees.
    No. 83-400.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Edward J. Milligan, Jr., Lafayette, for plaintiffs-appellants.
    McBride & Foret, Robert R. McBride, Lafayette, for defendants-appellees.
    Before FORET, YELYERTON and KNOLL, JJ.
   FORET, Judge.

This is a tort action arising out of an automobile accident which occurred in the City of Lafayette, Louisiana. Plaintiffs are Paul and Leanna Alfred, who are husband and wife. Defendants are Jody Waters and her insurer, State Farm Mutual Automobile Insurance Company (State Farm). From a judgment in favor of the defendants, plaintiffs have appealed. The issue on appeal is whether Jody Waters was guilty of negligence which was a proximate cause of the accident.

On September 5, 1980, Jody Waters was traveling north in her yellow Ford on University Avenue in Lafayette, and proceeded to turn right onto Dorothy Street. While on Dorothy Street, she intended to make a left turn into the parking lot of her place of employment but had to come to a complete stop in order to allow the oncoming traffic to clear.

Also proceeding north on University Avenue was Paul Alfred (driver), his wife, Leanna (passenger), and Christopher Frank (passenger) in Mr. Alfred’s 1972 Buick. They attempted to turn onto Dorothy Street, where they immediately encountered the stopped Jody Waters’ Ford. Alfred then came to a complete stop behind the Waters’ automobile. Because of the location of the two cars, Alfred was not able to complete his turn, thereby exposing the rear portion of his Buick to vehicular traffic on University Avenue.

A third car, driven by Earl J. Perrault, was also traveling north on University. Perrault’s automobile collided into the rear of the Alfred Buick, which was then propelled into the rear of the Waters Ford.

Paul and Leanna Alfred filed suit against Jody Waters and her liability insurer, State Farm. Christopher Frank filed suit against Earl J. Perrault. The two cases were consolidated for trial.

After a trial on the merits, the trial court found that the negligence of Earl Perrault was the sole and proximate cause of the accident, and denied the Alfreds’ claim for damages, stating,

■ “... unfortunately for the Alfreds, they simply sued the wrong parties, and as such, cannot collect damages they allege.”

The Alfreds have appealed, urging that the trial court erred in finding no negligence on the part of Jody Waters. We affirm.

Plaintiffs seek to impose liability on the defendants under LSA-R.S. 32:104 which provides that a motorist, before making a left turn, must give a signal of his intention to turn and be certain that the movement can be made with reasonable safety. Broussard v. Subsurface Completion Service, Inc., 338 So.2d 1217 (La.App. 3 Cir.1976). This duty extends not only to overtaking and oncoming traffic, but also to the occupants of any vehicle in the immediate vicinity who might be placed in a dangerous situation. Gloston v. Milchem, Inc., 234 So.2d 534 (La.App. 3 Cir.1970).

Plaintiffs argue that Jody Waters was negligent in failing to observe that her left turn was too close to the intersection of University and Dorothy. More specifically, they allege that she did not observe that a left turn at that particular area would prevent any following vehicles from completing a turn from University onto Dorothy and thus expose the following vehicle’s rear end to traffic traveling on University. Therefore, plaintiffs allege that Jody’s actions placed their vehicle in a dangerous situation, a violation of LSA-R.S. 32:104. We disagree. Jody Waters gradually came to a complete stop in order to allow oncoming traffic to clear before she attempted her left turn. The plaintiffs’ vehicle was struck from the rear before Jody could safely complete her turn. The evidence does not indicate that Jody’s conduct was negligent in any manner. Rather, it supports the trial court’s finding that the negligence of Earl Perrault was the sole and proximate cause of the accident.

Plaintiffs’ next contention is that Ms. Waters did not give a signal of her intention to make a left turn. The evidence is conflicting on this point. Since the trial judge is in a better position to judge credibility, we will defer to his rulings on this issue. LeBlanc v. Montgomery Ward & Co., Inc., 420 So.2d 1320 (La.App. 3 Cir.1982). Furthermore, we do not see how the lack of a turn signal would have had any causal connection to this particular accident.

Plaintiffs’ final contention is that Jody was negligent in her failure to look to her rear immediately before attempting the left turn. The facts show that the left turn was never actually commenced. The trial court found, and we agree, that Jody had come to a complete stop and was struck in the rear before ever attempting to make her left turn. Therefore, plaintiffs’ contention in this respect is without merit.

Because we find no manifest error in the trial court’s finding of no negligence on the part of Jody Waters, we affirm.

DECREE

For the aforementioned reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . LSA-R.S. 32:104 provides:
      ''§ 104. Turning movements and required signals
      A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
      B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning."


author: STOKER, Judge.

text:
    Emma Williams FREEMAN, Ind., et al., Plaintiffs-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendant-Appellee.
    No. 83-426.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Preston N. Aucoin, J. Wendel Fusilier, Ville Platte, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Keith M. Borne, Edward Taulbee, IV, Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is an appeal from a trial court judgment granting a motion for summary judgment in favor of Insurance Company of North America (INA) and against Emma Williams Freeman, et al. The circumstances are somewhat unusual in that the trial court was of the opinion that the motion should not be granted and granted the motion solely because it was ordered to do so by this Court of Appeal in response to a writ application by INA. The trial court initially (August 19, 1981) denied INA’s motion for summary judgment; it again denied the motion for summary judgment at a hearing on a motion to reconsider held on February 14, 1983, as evidenced by a judgment in the record signed by the trial judge on February 24, 1983.

Subsequent to the second denial of INA’s motion for summary judgment on February 24, 1983; INA applied to this court for a writ of certiorari. The writ was granted and made peremptory on February 28, 1983, with the following order: “The trial court is hereby ordered to grant relator’s (INA’s) Motion for Summary Judgment, and the matter [is] remanded to the trial court for further proceeding according to law.” In compliance with this order the trial court signed a judgment on April 18, 1983, granting INA’s motion for summary judgment and dismissing the tort suit against INA brought by Emma Williams Freeman and her children (Appeal No. 84-426). The judgment was a consolidated judgment which affected other suits. The present appeal is by Emma Williams Freeman, et al from the trial court judgment of April 18, 1983.

Separate appeals are before us growing out of the same procedural history involving similar judgments as that rendered against Emma Williams Freeman, et al. In this opinion we are concerned with the appeal of Emma Williams Freeman only. However, our holding in this appeal is applicable to the appeals in each of the other cases.

HISTORY OF THE CASE

The procedural history and legal issues pertaining to this matter are set forth to a large extent in our opinion in Freeman v. Insurance Company of North America, 413 So.2d 692 (La.App. 3rd Cir.1982). That suit (which is the same suit involved here) was brought by Emma Williams Freeman, individually and on behalf of children born of her marriage with Jeff Freeman as a tort suit. The latter was killed in a one-vehicle accident while riding in a truck driven by Martin E. Guillory (Guillory) and belonging to South Louisiana Contractors, Inc. (SOLOCO). SOLOCO was the common employer of Guillory, Jeff Freeman, Gerard C. Lavigne and Jimmy Roy Bushnell. In all of the cases mentioned in footnote 1 we affirmed trial court judgments granting motions for summary judgments in favor of Guillory. After the appeals were lodged in those cases SOLOCO was voluntarily dismissed on motions by appellants. See 413 So.2d, opinions at pages 689, 691, 692 and 695.

INA was not before us in those appeals. As noted above the trial court had denied motions for summary judgment brought by INA.

After rendition of our opinion in Freeman v. Insurance Company of North America, supra, and the other opinions cited above, INA moved to have the trial court reconsider its denial of INA’s motion for summary judgment in the several tort suits brought by Emma Williams Freeman and the other plaintiffs. After denial of reconsideration of the INA motion in the Freeman case in the trial court judgment of February 24, 1983, INA sought relief through the supervisory powers of this court of appeal. As recounted above we granted the writ, made it peremptory and ordered the trial judge to grant the motion for summary judgment.

DISPOSITION OF PLAINTIFFS’ APPEAL

We must consider plaintiffs appeal from the trial judge’s judgment of April 18, 1983, given in compliance with our writ in light of our action on the writ.

As will be noted from the opinion in Freeman v. Insurance Co. of North America, supra, the basic issue presented is whether Guillory was guilty of “intentional acts” which would destroy the immunities from tort actions enjoyed by otherwise liable parties as provided in the workers’ compensation law of this state found in LSA-R.S. 23:1032. INA provided liability insurance on the truck driven by Guillory and owned by SOLOCO. The position of INA is that, if there is no liability on the part of Guillory or SOLOCO as determined in Freeman v. Insurance Co. of North America, supra, there can be no liability on the part of INA. Among other authorities INA relies on are Kelley v. M & M Dodge, Inc., 370 So.2d 1267 (La.App. 3rd Cir.1979), writ denied, 374 So.2d 660 (La.1979) and Carlisle v. State, Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir.1981), writ denied, 404 So.2d 1256 (La.1981).

The various plaintiffs-appellants vigorously urge various arguments in support of their contention that tort claims against INA as the insurer can be asserted even though the insureds (Guillory and SOLO-CO) are immune from suit. This proposition was decided against appellants in the Kelly and Carlisle cases cited above. At this point we cannot reconsider appellants’ arguments inasmuch as we have already ruled on the motion for summary judgment when we granted the writ and ordered the trial court to grant the motion for summary judgment. Although no written opinion was handed down by us when the writ was granted and made peremptory, we hold, nevertheless, that our action on the writ application constituted the law of the case. As a result we must affirm the trial court’s judgment in conformity with our writ signed on April 18, 1983. See Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 256 So.2d 105 (La.1971).

For the foregoing reasons we do hot consider any of the contentions of the appellants and affirm the trial court’s judgments granting INA’s motion for summary judgment. Accordingly, the judgment in this case (Appeal Number 83-426) in favor of Insurance Company of North America and against Emma Williams Freeman, individually, and on behalf of her minor children rendered on April 18, 1983, is affirmed. The costs of this appeal are assessed to appellant, Emma Williams Freeman.

AFFIRMED.

      . These appeals are the subject of separate opinions by us in the following suits: Lavigne v. Insurance Company of North America, et al., 444 So.2d 797 (La.App. 3rd Cir.1984); Freeman v. Insurance Company of North America, et al., 444 So.2d 795 (La.App. 3rd Cir.1984); and Bushnell v. Insurance Company of North America, et al, 444 So.2d 796 (La.App. 3rd Cir.1984).


text:
    Joann Doucet FREEMAN, et al., Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., defendant-appellee.
    No. 83-698.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Preston N. Aucoin, Alex D. Chapman, Jr., Donald J. Launey, Jr., Yille Platte, for plaintiff-appellant.
    Guglielmo & Lopez, Peter Caviness, Opelousas, Edward 0. Taulbee, IV, Richard C. Meaux, Keith Borne, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, Harvey Lee Hall, Baton Rouge, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This appeal involves the same issues and procedural history described in our opinion rendered this day in Freeman, et al v. Insurance Company of North America, 444 So.2d 793 (La.App. 3rd Cir.1974), our docket number 83-426. The trial court judgment of April 18, 1983, mentioned in that opinion was a consolidated judgment which included the action of Joann Doucet Freeman. From the dismissal of her action Joann Freeman appealed to this court.

For the reasons given in the opinion in the Freeman suit mentioned above, the judgment of the trial court dated April 18, 1983, dismissing appellant Joann Freeman’s action is affirmed. The costs of this appeal are assessed to Joann Freeman.

AFFIRMED.


text:
    Jimmy Roy BUSHNELL, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendant-Appellee.
    No. 83-699.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Preston N. Aucoin, Alex D. Chapman, Jr., Donald J. Launey, Jr., Ville Platte, for plaintiff-appellant.
    Guglielmo & Lopez, Peter Caviness, Opelousas, Edward 0. Taulbee, IV, Richard C. Meaux, Keith Borne, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, Harvey Lee Hall, Baton Rouge, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This appeal involves the same issues and procedural history described in our opinion rendered this day in Freeman, et al v. Insurance Company of North America, 444 So.2d 793 (La.App. 3rd Cir.1974), our docket number 83-426. On May 23, 1983, the trial court signed a judgment in this case granting the motion for summary judgment filed by INA and dismissing the action as to INA. The judgment was similar to the April 18, 1983, consolidated judgment which dismissed the Emma Williams Freeman suit and others. Jimmy Roy Bushnell appealed in this matter from the dismissal of his suit in the judgment of June 23, 1983.

For the reasons given in the opinion in the Emma Williams Freeman suit mentioned above, the judgment of the trial court dated April 18, 1983, dismissing appellant Bushnell’s action is affirmed. The costs of this appeal are assessed to Bushnell.

AFFIRMED.


text:
    Gerard C. LAVIGNE, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendant-Appellee.
    No. 83-427.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Preston N. Aucoin, J. Wendel Fusilier, Ville Platte, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Keith M. Borne, Edward Taulbee, IV, Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

This appeal involves the same issues and procedural history described in our opinion rendered this day in Freeman, et al. v. Insurance Company of North America, 444 So.2d 793 (La.App. 3rd Cir.1974), our docket number 83-426. The trial court judgment of April 18, 1983 mentioned in that opinion was a consolidated judgment which included the action of Gerard C. La-vigne. From the dismissal of his action Lavigne appealed to this court.

For the reasons given in the opinion in the Emma Williams suit mentioned above, the judgment of the trial court dated April 18, 1983, dismissing appellant Lavigne’s action is affirmed. The costs of this appeal are assessed to Lavigne.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Frank D. FERRY, Plaintiff-Appellant, v. Vera Peggy FERRY, Defendant-Appellee.
    No. 83-324.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      James D. Davis, Alexandria, for plaintiff-appellant.
    Humphries & Humphries, G. Earl Hum-phries, III, Alexandria, for defendant-appel-lee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

This case originated when Frank D. Ferry filed a rule to amend visitation against his wife, Vera Peggy Ferry. Mrs. Ferry sought to enforce the visitation schedule pursuant to the signed court judgment. Mr. Ferry was found in contempt of a court order for wilfully disobeying the judgment which established visitation privileges of the couple’s four year old son, Danny. Mr. Ferry has devolutively appealed.

FACTS

Frank D. Ferry and Vera Peggy Ferry are judicially separated. On August 30, 1982, Mr. Ferry was awarded custody of their minor son and visitation rights were granted to Mrs. Ferry.

On December 31, 1982, Mrs. Ferry telephoned Mr. Ferry from her work place to tell him when she would pick up the child. Mr. Ferry informed her then that he would not relinquish the child if she was scheduled to work that weekend. That evening Mrs. Ferry drove to Boyce to pick up the child for the weekend. In the meantime, Mr. Ferry took the child to visit at the neighbors (Mr. and Mrs. Budnick). He and his son stayed at the Budnieks’ house for several hours. Because Mr. Ferry was not at home with the child, Mrs. Ferry was unable to exercise her visitation privileges that weekend.

On January 5, 1983, Mrs. Ferry filed a motion against Mr. Ferry for constructive contempt. The district court then issued a rule to show cause. Trial of the rule was held on January 17, 1983. Mr. Ferry was found guilty of committing a constructive contempt of court by violating the signed judgment of the Ninth Judicial District Court.

Mr. Ferry was fined $100.00, ordered to pay attorney's fees ($250.00) plus costs, and sentenced to seven days imprisonment which was placed in abeyance for three months so that the district judge could observe Mr. Ferry’s compliance with the judgment.

ISSUE

Mr. Ferry devolutively appeals from the adverse ruling. The appellant contends that the trial court erred in finding him in contempt of the court order.

CONSTRUCTIVE CONTEMPT

The authority to punish for contempt of court is an inherent power of the court which is conferred to aid in the exercise of its jurisdiction and the enforcement of its lawful orders. In Re Merritt, 391 So.2d 440 (La.1980).

The Louisiana Code of Civil Procedure defines contempt thusly:

“A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.”

La.C.C.P. Art. 221. This Article further delineates two kinds of contempt, i.e., direct and constructive.

Constructive contempt of court encompasses all contempt actions except direct contempt. For our consideration in the instant case, La.C.C.P. Art. 224 sets forth acts which constitute constructive contempt of court, including:

(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court .... ”

Under this provision “wilful disobedience means an act or failure to act that is done intentionally, knowingly, and purposely, without justifiable excuse.” Nelson v. Nelson, 421 So.2d 366, 368 (La.App. 1st Cir.1982). Punishment imposed for contempt of court is provided for in La.R.S. 13:4611:

“(A) The supreme court, the court of appeal, the district courts, family courts and city courts may punish a person adjudged guilty of contempt of court therein, as follows:
(3) For a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act; and
(4) For any other contempt of court, by a fine of not more than two hundred and fifty dollars, or imprisonment for not more than thirty days, or both.”

Mr. Ferry admitted at the hearing that he was aware of the ruling which contained the child visitation order, but that he had been advised by Mr. Bordelon of the Child Abuse Center not to permit Mrs. Ferry to exercise her visitation privileges. This action was in direct contravention of the court order, committed wilfully, intentionally, and knowingly. There existed no justification for Mr. Ferry’s refusal, other than his disapproval of Mrs. Ferry’s work schedule and that Mrs. Ferry was late in arriving on the evening of December 31, 1982. At the October hearing the district judge determined that the established arrangement did not jeopardize Danny’s best interest.

The plaintiff-in-rule has the burden of proving that the defendant’s conduct constituted a wilful disobedience of the trial court’s order. Nelson v. Nelson, supra. At the January hearing, the district judge found that Mrs. Ferry had sustained the burden of proof and ruled the defendant-in-rule in constructive contempt, stating that he was required to obey the orders of the court and that this was the second time he had been involved in a contempt proceeding for disregarding the judgment.

This court has explained the general rules of a contempt proceeding in Lambert v. Adams, 347 So.2d 883 (La.App. 3rd Cir.1977) as follows:

“First, the object and purpose of a contempt proceeding is to vindicate the authority and dignity of the court. It is not designed for the benefit of the litigants, even though infliction of punishment for contempt may inure to the benefit of the mover in the contempt rule. State ex rel. Duffy and Behan v. Civil District Court for Parish of Orleans, 112 La. 182, 36 So. 315 (1904); Robertson v. Robertson, 258 So.2d 125 (La.App. 2d. Cir.1972). Second, unless a litigant willfully disobeys a direct order of the court issued prior to the contempt rule, he should not be held in contempt, even if his acts tend to frustrate the opposing litigant. State ex rel. Duffy and Behan, supra. Third, proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Roy v. Berard, 227 La. 86, 78 So.2d 519 (1955); Junius Hart Piano House v. Ingman, 119 La. 1017, 44 So. 850 (1907). Fourth, as a general rule, contempt proceedings should not be resorted to where other specific remedies are provided by law. State ex rel. Duffy and Behan, supra; In re State ex rel. Hero, 36 La.Ann. 352 (1884); Junius Hart Piano House v. Ingman, supra.” At 884-885.

The trial judge considered the law and evidence in the instant case, and correctly reasoned that Mr. Ferry wilfully disobeyed a direct order of the court, issued prior to the contempt rule. The court strictly construed the law applicable to the contempt proceedings and resorted to the judgment against Mr. Ferry because no other specific remedies were available to enforce the visitation order. The purpose and object of the contempt proceeding were met, i.e., the authority and dignity of the court were vindicated.

We affirm the judgment of the trial court which held Frank D. Ferry in contempt of the court order of October 4, 1982. As the court noted in James v. Spears, 372 So.2d 617 (La.App. 1st Cir.1979):

“Under La.CCP 224 and our jurisprudence, it must be shown that the alleged offender willfully disobeyed a direct order of the court issued prior to the contempt rule; otherwise he should not be held in contempt.”

At 620, citing Lambert v. Adams, supra.

We conclude that the record reveals a reasonable factual basis for the findings of the trial court. Not only is there an absence of manifest error in the contempt judgment, it is manifestly correct.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs on appeal are assessed against appellant.

AFFIRMED.

       Mr. Ferry wanted to change the days Mrs. Ferry exercised her visitation rights.

      . The judgment set forth the visitation arrangement as follows: Mrs. Ferry would have the child every second weekend commencing at 5:00 P.M. on Friday and continuing until 5:00 P.M. on Sunday; she would also have the child every other major holiday.
      The child custody order is on a separate appeal.

      . A similar situation occurred when Mr. Ferry again refused to give the child to Mrs. Ferry for the weekend of January 14-16, 1983.


author: GUIDRY, Judge.

text:
    Neal John PLAUCHE, Jr., Plaintiff-Appellant, v. Erraina Vaccaro PLAUCHE, Defendant-Appellee.
    No. 83-331.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Michael Kelly, Marksville, for plaintiff-appellant.
    Kerry Spruill of Knoll Law Firm, Marks-ville, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

The plaintiff in this suit for divorce appeals the judgment of the trial court awarding his former wife child support in the amount of $250.00 per month for the support of their minor child.

Neal John Plauche and Erraina Vaccaro Plauche were married in 1973. One child was born of the marriage, Neal John Plauche, who was eight years old at the time this matter was tried. On December 11, 1981, a judgment of separation from bed and board was signed which ordered the plaintiff, Neal John Plauche, to pay child support in the amount of $150.00 per month. On January 27, 1983, the plaintiff filed the instant suit seeking a divorce. In the petition, the plaintiff expressed his willingness to continue paying child support at the rate of $150.00 per month, plus the reasonable medical expenses incurred by the child. The defendant filed an answer and reconventional demand, wherein she sought an award of child support in the amount of $300.00 per month.

The trial court granted a judgment of divorce in favor of the plaintiff. The judgment awarded custody of the child to the defendant, and ordered the plaintiff to pay $250.00 per month in child support plus all reasonable medical expenses incurred by the child. The plaintiff contends that the trial court erred in (1) granting an increase in child support when no change of circumstances was proven by the defendant; and, (2) awarding an excessive amount in child support.

In support of his first assignment of error, the plaintiff cites the well established rule that a party seeking a change in a prior award of child support must show a change in circumstances which justifies the change. Smith v. Smith, 422 So.2d 701 (La.App. 3rd Cir.1982); Walker v. Walker, 395 So.2d 433 (La.App. 3rd Cir.1981). This rule is not applicable to the instant case. It is well settled that a judgment of divorce terminates awards for child support and alimony pendente lite made in a prior judgment of separation from bed and board. Thus, a party seeking child support in a subsequent divorce proceeding is seeking a new award of child support after divorce, not a modification of a prior award. It is not necessary to show a change of circumstances in order to obtain an award higher than that awarded in the judgment of separation. Manuel v. Broderson, 298 So.2d 333 (La.App. 3rd Cir.1974); Morrison v. Morrison, 316 So.2d 453 (La.App. 3rd Cir.1975), writ denied, 322 So.2d 772 (La.1975).

In the instant case, the judgment of divorce terminated the award of child support made in the judgment of separation from bed and board. Because the award of child support herein is a new award and not a modification of a previous award, no change in circumstances need be shown. The plaintiffs first assignment of error is therefore meritless.

The remaining issue is whether the award of $250.00 per month for the support of the minor child is excessive. The record shows that the plaintiff works as a floor hand on a drilling rig and earns a net income of $1,468.00 per month. He lists monthly expenses totalling $1,240.68. The defendant, on the other hand, works part time as a dental assistant and earns a net income of $233.00 per month. She lists the monthly expenses attributable to the child at $473.76.

The trial court is vested with considerable discretion in determining the amounts which parents should contribute in support of their children. The judgment of the trial court in this regard will not be disturbed absent a manifest abuse of discretion. Smith v. Smith, 422 So.2d 701 (La.App. 3rd Cir.1982); Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3rd Cir.1981).

The record shows that the plaintiff is clearly in a better financial position to provide for the needs of the child than is the defendant. The order of the trial court compelling him to contribute $250.00 per month for the support of his child is not an abuse of the trial judge’s considerable discretion.

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

AFFIRMED.