text:
    Kimberly Irene BYRD, Plaintiff-Appellant, v. Louis GUILBEAUX, Jr., Defendant-Appellee.
    No. 83-295.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.

      Alfred F. Boustany, II, Lafayette, for plaintiff-appellant.
    ■ William H. Lambert, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   YELVERTON, Judge.

Kimberly Byrd appeals a judgment rejecting her demand against her former husband for an increase in child support from $175 a month to $275 a month. We affirm.

She was granted a divorce from Louis Guilbeaux, Jr. She was found free from fault but has not sought alimony after divorce. Prior to the divorce she was awarded $100 a month alimony pendente lite and $175 a month child support for the one child of the marriage. At the time of the divorce she was granted custody and child support was again fixed at $175 a month. This judgment was signed January 7, 1983.

A few days later Mrs. Byrd filed a rule to increase child support. The rule alleged a change in circumstances. The change was asserted to be that child support had been fixed on the basis that Guilbeaux was unemployed, but that he had since become employed and the payments should therefore be increased. After hearing this rule the trial court on March 2, 1983, denied the increase stating that when he had earlier fixed child support at $175 a month he did not base the award on Guilbeaux’s unemployed status because he knew the unemployment was only temporary.

On appeal, Mrs. Byrd takes a different approach, arguing that if a spouse’s obligation to pay alimony is terminated, his ability to pay child support is commensurately increased and therefore an increase in child support is required. To support this argument appellant relies on language from Long v. Long, 347 So.2d 513 (La.App. 2nd Cir.1977). That decision affirmed an increase in child support which had been based in part upon an increase in the husband’s ability to pay resulting from his being relieved from the obligation to pay alimony pendente lite after the divorce. The language relied upon by appellant from that case is as follows:

“By virtue of the divorce judgment, plaintiff is relieved of the obligation to pay alimony pendente lite. His ability to pay child support is increased and an increase is justified.”

The court in Long was affirming a judgment, not fashioning a new rule of law. The Long court did not say that the increase was mandated, but “justified.” Furthermore, it is apparent from reading the case that relief from the alimony obligation was only one of several circumstances which the court believed justified the increase. In that case there were three children ranging in age from two to ten. The mother’s ability to contribute to the support of the children had changed for the worse, and the assessment of the father’s ability to pay was influenced to some extent by the fact that he was making enough money to make investments in land purchases.

In the instant case we are being asked to take the quoted language out of Long and apply it as an inflexible rule, mandating that whatever benefit the paying spouse receives as a result of the termination of alimony is automatically added to the obligation of child support. The Long court neither said nor intended such a result. Any change in financial circumstances can be considered, whether the increase in a paying spouse’s ability to pay comes from cessation of the alimony obligation or any other source. That does not mean, however, that a change in ability to pay automatically translates into a comparable change in the obligation to pay, for the needs of the children must also be considered.

The trial court in the present case made a considered determination after a hearing that child support should be $175 per month. The child was one year old and had no unusual financial needs. After the issue was tried anew on the rule to increase, the trial judge was still of the opinion that the same amount was correct considering the ability of the husband to pay and the needs of the child. Thus, the question of child support was fully and patiently heard on two separate occasions close together in time.

A trial court’s determination of questions of child support are accorded great weight on appeal and will not be disturbed in the absence of an abuse of discretion. We find no abuse of discretion in this record.

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

AFFIRMED.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Audrey BELLOWS, Defendant-Appellant.
    No. CR83-327.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 16, 1984.

      .Jose Cortina, Baton Rouge, for defendant-appellant.
    John Sturgeon, Dist. Atty. and Ron Kil-garlin, Asst. Dist. Atty., Vidalia, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant, Audrey Maye Bellows, was indicted by a grand jury for second degree murder, in violation of LSA-R.S. 14:30.1 following the shooting of Leon Bellows. A twelve member jury found defendant guilty of manslaughter, LSA-R.S. 14:31, a responsive verdict to second degree murder. She was sentenced to fourteen years at hard labor. Defendant now appeals the trial court’s denial of a new trial on the basis of five assignments of error, contending that many prejudicial errors were made during trial. We affirm.

FACTS

On September 12, 1981, in the early morning hours, Audrey Bellows shot Leon Bellows, her husband, just outside of their home in the course of a heated domestic quarrel, with a .38 caliber pistol. The victim allegedly beat the defendant and threatened to kill her with a knife, while in their home. Defendant attempted to escape in a car whereupon she armed herself with a pistol and shot the victim as he approached the car. After the police arrived, Mrs. Bellows handed over the weapon and admitted shooting her husband. The victim died from the shooting shortly afterwards.

Upon further investigation, coupled with inculpatory statements given by Mrs. Bellows, the police arrested her. At trial, Mrs. Bellows admitted that she shot her husband, but claimed it was in self-defense. The state introduced into evidence testimony of police officers and friends of the Bellows which negated her defense.

During the course of the trial defendant raised the following objections, which are now made assignments of error on appeal.

Assignment # 1

Immediately following the shooting, defendant stated her version of the incident to the police. These statements were recorded and later received as evidence in the trial. Defendant asserts that she had not been notified by the state of its intent to introduce the inculpatory statements. Because of this, defendant could not prepare adequately for the trial.

Defense counsel moved for a mistrial on the basis that proper notice pursuant to LSA-C.Cr.P. art. 768 had not been complied with by the state; therefore, the in-culpatory statements of the defendant should not have been admitted into evidence.

At the time this trial took place, LSA-C. Cr.P. art. 768 provided:

“Art. 768. Same; use of confession or inculpatory statement; notice to defendant prior to opening statement
If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

The state concedes that it did not comply with the notice provisions of LSA-C.Cr.P. art. 768. However, the state contends that the defendant had actual notice of the statements and thus, should not have been surprised. Nevertheless, defendant moved for a mistrial. The trial judge asked defense counsel if copies of the inculpatory statements had been furnished to him and he responded affirmatively. Also, in answering defendant’s motion for discovery, the state noted that it had possession of taped statements made by the defendant.

The purpose of the statutory scheme of LSA-C.Cr.P. art. 768 is to prevent surprise and to allow adequate time for the preparation of the defense. State v. Russell, 416 So.2d 1283 (La.1982), cert. denied, — U.S. -, 103 S.Ct. 309, 74 L.Ed.2d 288 (1982). We note that in State v. Sneed, 316 So.2d 372 (La.1975), the court held that even in the absence of the written notice required by Article 768, a defendant is not prejudiced by the admission of statements if he had actual notice by other means. See, State v. Williams, 416 So.2d 914 (La.1982).

It appears from a review of the record that the defendant knew of the existence of the statements and of the state’s intention to use them at trial. In light of Sneed, supra, the trial court did not commit reversible error. Therefore, this assignment of error lacks merit.

Assignment #3

At trial, Miss Mary Ann Nix testified for the state. She stated that two days prior to the shooting the defendant told her: “I promise you Benny (inaudible) will be a dead so and so.” Also Miss Nix testified that upon arriving at the scene of the alleged crime, the defendant stated: “I told you I was going to kill the so and so.” Defendant contends the trial court erred in allowing this testimony into evidence, particularly the incriminating statements made by the defendant, without prior notice that it was going to be introduced into evidence.

Defense counsel never objected to this testimony on the grounds of surprise or noncompliance with the discovery rules. In State v. Quimby, 419 So.2d 951 (La.1982), the court stated that a defendant who fails to object to the state’s response in a motion for discovery, to state clearly for the trial court his basis for complaint, and to request the granting of any of the sanctions afforded by LSA-C.Cr.P. art. 729.5 for failure to comply, has effectively waived his right to complain on appeal in connection therewith. See also, State v. Bonanno, 373 So.2d 1284 (La.1979).

Further, in the recent decision of State v. Hooks, 421 So.2d 880 (La.1982), the court noted that the state is not required to give notice or to divulge the contents of an oral statement made by the defendant to a private citizen when the state plans to use that evidence at trial.

Accordingly, this assignment is without merit.

Assignment #1/.

Defendant contends under this assignment that defense counsel was not allowed to effectively cross-examine state’s witness, Evodna Reid. The trial judge instructed defense counsel to question the witness only as to that which was adduced on direct examination by the state.

We agree that the trial court erroneously restricted defendant's right of cross-examination. Defendant has an absolute right to conduct a relevant cross-examination of the state’s witness upon the whole ease. LSA-R.S. 15:280; State v. Morgan, 367 So.2d 779 (La.1979).

Nevertheless, we find that defendant was not deprived of any valid defense by this trial court error. The point or fact which defense counsel sought to prove by this attempted cross-examination was substantially established during the trial through other witnesses and by admitted photographs.

We therefore hold that this assignment is without merit since the trial court error does not constitute reversible error.

Assignment #10

Defendant contends that the trial court erred in not granting a new trial on the basis that defendant had discovered new and material evidence. Defense counsel, in the motion for a new trial, stated that after trial he learned that Mary Ann Nix had been arrested for prostitution in New Orleans on several occasions and had been involved in the traffic of marijuana. Defense counsel further noted that he did not know she was going to testify and had he known such, he would have effectively rebutted her testimony, undermining her credibility.

In State v. Cobb, 419 So.2d 1237 (La.1982), the Louisiana Supreme Court reasoned:

“[15-17] The motion for a new trial rests upon the supposition that some injustice has been done, therefore it is incumbent upon the mover to show that this is the ease. C.Cr.P. Art. 851. See: State v. Coleman, 390 So.2d 865 (La., 1980). The trial court is granted much discretion in evaluating the impact of newly discovered evidence and its ruling will not be disturbed, absent a clear abuse of discretion. State v. Spell, 399 So.2d 551 (La., 1981). In considering a motion for a new trial based upon newly discovered evidence, the test to be employed by the trial court is whether the newly discovered evidence is so material as to warrant a different result than that which was reached in the original proceeding. State v. Miles, 402 So.2d 644 (La., 1981); State v. Motton, 395 So.2d 1337 (La., 1981).”

It would be purely speculative to place such significance on this new evidence to the extent that this evidence would warrant a different result than that which was reached in the original proceeding. Therefore, it does not appear that the trial judge abused his discretion in denying the motion for a new trial. Consequently, this assignment of error lacks merit.

Assignment #12

Defendant asserts that the trial court erred by not granting a mistrial because of the prosecutor’s comments on the evidence made in his closing argument. Defendant notes the following comments by the District Attorney:

1. “He was not drunk.”
2. “He never really tried to kill her.”
3. “He certainly was not trying to kill her.”

At trial, defense counsel moved for a mistrial after the prosecutor had completed his closing argument. In denying the motion, the trial judge reasoned that the state’s counsel had a right to expound his theories of the case and that defense counsel had ample opportunity to rebut the same.

The scope of a closing argument is set forth in LSA-C.Cr.P. art. 774 which provides:

“Art. 774. Argument; scope
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.”

The first statement which defendant contends violated LSA-C.Cr.P. art. 774 was, “He was not drunk.” This statement pertained to the condition of the victim at the time of the alleged offense. The state introduced expert testimony to prove that the victim’s blood-alcohol level indicated that the victim was only slightly intoxicated, rather than extremely drunk. The state discussed this evidence in closing arguments and admitted that the victim had been drinking. Consequently, it does not appear that the District Attorney violated LSA-C.Cr.P. art. 774 by commenting on the degree of intoxication of the victim, since evidence was adduced by the state on that matter at trial from which the state could appropriately draw conclusions of fact. See State v. Prestridge, 399 So.2d 564 (La.1981).

The second statement which defendant contends violated Article 774 was, “He never really tried to kill her.” The District Attorney, in making the statement, was commenting on the defendant’s testimony that the victim had threatened her life. In particular, the District Attorney elicited testimony on cross-examination of Deputy Sheriff Merrill about an incident which took place a couple of days before the shooting. Reportedly, while in efforts of escaping, the defendant’s car was struck by a shotgun blast fired by Mr. Bellows. Deputy Merrill testified, without objection, that Mr. Bellows told him that he was only trying to frighten her by shooting over the car. The statement of Mr. Bellows was in response to a police investigation of the incident. Since there was evidence admitted concerning Mr. Bellows’ efforts in frightening the defendant, the District Attorney’s comments in closing arguments pertaining to this statement appear to fall within the permissible scope of argument under LSA-C.Cr.P. art. 774.

The third statement which the defendant contends violated Article 774 was, “He certainly was not trying to kill her.” This comment was in reference to the defendant’s claim that she shot Mr. Bellows in self-defense. On cross-examination of the defendant, the District Attorney attacked inaccuracies of statements made by the defendant after the shooting. In particular, the District Attorney attempted to attack the different explanations given by the defendant as to what transpired between her and the victim immediately before the shooting. In examining the comments of the District Attorney in closing argument pertaining to this statement, it appears that the comments were intended to convince the jury that defendant’s version of the facts was incredulous. Thus, it would appear that the comments of the District Attorney were proper. See State v. Webb, 419 So.2d 436 (La.1982).

Before a case will be reversed on the grounds of improper argument, we must be convinced that the remarks influenced the jury and contributed to the verdict. State v. Barrow, 410 So.2d 1070 (La.1982), cert. denied, — U.S.-, 103 S.Ct. 115, 74 L.Ed.2d 101 (1982). We hold that even if the remarks were improper, they do not constitute reversible error. Therefore, this assignment lacks merit.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Assignments of Error Nos. 2, 5, 6, 7, 8, 9, 11 and 13 were abandoned by the defendant. Assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).


text:
    Bernadine T. MAYFIELD, Plaintiff-Appellant, v. CASUALTY RECIPROCAL EXCHANGE, et al., Defendant-Appellee.
    No. 83-332.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied Feb. 27, 1984.

      Guillory, McGee, Mayeux & Fontenot, Robert K. Guillory, Eunice, for plaintiff-appellant.
    Woodley, Barnett, Cox, Williams & Fen-et, Edmund E. Woodley, Lake Charles, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Bernadine T. Mayfield, plaintiff-appellant, filed suit against a number of defendants, seeking to recover damages for injuries which she sustained in an accident. Among the named defendants was the Casualty Reciprocal Exchange, appellee, May-field’s uninsured motorist carrier. Casualty filed a motion for summary judgment contending that the uninsured motorist provision of Mayfield’s policy failed to furnish uninsured motorist protection to her because the operator was a fellow employee and immune from tort liability. The trial court granted Casualty’s motion for summary judgment and dismissed Mayfield’s suit against Casualty. Mayfield appeals. We affirm.

The issues on appeal are as follows:

1. Whether or not Mayfield’s uninsured motorist coverage furnishes her insurance if the negligent party was an uninsured co-employee.
2. Whether or not a state vehicle exclusion in Mayfield’s policy violates the Louisiana uninsured motorist statute requiring uninsured motorist coverage.

Mayfield was injured in an automobile accident' on February 19, 1981, while riding as a guest passenger in a state-owned automobile being driven by her fellow state employee, Yvonne S. Celestine. At the time of the accident, both Mayfield and Celestine were employees of the State of Louisiana, Office of Family Security, and were in the course and scope of their employment. Mayfield sued her own unin- . sured motorist carrier, Casualty. May-field’s petition alleged that Celestine, a co-employee, was an uninsured motorist and that Casualty was bound to pay all sums for which the uninsured motorist was liable. Casualty filed a motion for summary judgment contending that the uninsured motorist provision of Mayfield’s policy failed to furnish uninsured motorist protection to her because Celestine was a co-employee and immune from tort liability under the Worker’s Compensation Act and that the uninsured coverage of Mayfield’s policy contained an exclusion for state-owned vehicles. The trial court granted Casualty’s motion for summary judgment and dismissed Mayfield’s suit against Casualty on the basis that the Worker’s Compensation Act prohibited Mayfield from recovering damages from Celestine, her co-employee.

Mayfield contends that the trial court erred in sustaining Casualty’s motion for summary judgment.

Louisiana Statutes Annotated R.S. 22:1406 D, the Uninsured Motorist Statute, provides in pertinent part, as follows:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall • not be applicable where any insured' named in the policy shall reject in writing the coverage or selects lower limits.”

Mayfield’s insurance policy with Casualty provides, in pertinent part, as follows:

“Coverage J — Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.”

Thus, in order for Mayfield to recover under the uninsured motorist provision of the policy, she must be “legally entitled to recover” damages from Celestine.

Louisiana Statutes Annotated R.S. 23:1032 provides that the immunity from tort liability afforded an employer applies as well to the fellow employees of an injured worker:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.”

We interpret the above provision to mean that Mayfield is not legally entitled to recover damages from Celestine, her co-employee. Thus, Mayfield is not entitled to recover under the uninsured motorist provisions of her insurance policy with Casualty.

Mayfield asserts that when an insurer contracts for certain types of insurance coverage, it waives its personal immunity that an individual may have. Mayfield cites the case of Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3rd Cir.1976), cert. denied, 341 So.2d 408 (La.1977) as authority for her premise. She argues that since the doctrine of inter-spousal immunity could not operate to preclude the wife from being “legally entitled” to recover damages, then also the exclusive feature of the worker’s compensation statute should not operate to preclude her from being “legally entitled” to recover damages from her own insurance policy under the uninsured motorist provision. We disagree.

Mayfield’s argument has been previously considered by this court in Fox v. Commercial Union Insurance Company, 413 So.2d 679 (La.App. 3rd Cir.1982). In Fox, we distinguished interspousal immunity from fellow employee tort immunity as follows:

“Plaintiffs’ further arguments based on Gremillion v. State Farm Automobile Insurance Company, 302 So.2d 712 (La. App. 3rd Cir.1974), writ denied, 305 So.2d 134 (La.1974) are also inapplicable to the present case. In Gremillion, interspousal immunity which was a procedural bar to the recovery of the wife from her husband for her damages caused by his negligence did not prevent the wife from recovering from her husband’s uninsured motorist carrier. This is so because a spouse’s- defense of no right of action against the other spouse is personal to the spouse being sued and is not available to his insurer. Deshotel v. Traveler’s Indemnity Company, 257 La. 567, 243 So.2d 259 (La.1971). However, the bar against recovery from the insurer of a negligent worker who is immune from suit under workmen’s compensation law is a defense of no cause of action based on statutory law which is available to the insured. Carlisle v. State, Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir.1981), cert. denied, 404 So.2d 1256 (La.1981).”

Secondly, in support of her contention, Mayfield argues that LSA-R.S. 23:1032 does not provide that the rights and remedies of the employee shall be exclusive of all other rights and remedies of the employee against people other than those listed in the statute, including Casualty. May-field cites Melvina Bryant v. New Orleans Public Service, Inc. and ABC Insurance Company, 406 So.2d 767 (La.App. 4th Cir.1981), aff’d, 414 So.2d 322 (La.1982) as authority. We disagree. Bryant is distinguishable in that it deals with worker’s compensation and the collateral source rule.

In the recent case of Carlisle v. State, Department of Transportation and Development, supra, we considered the identical issue as raised in this appeal. In that case, the plaintiff, Carlisle, had been injured in an automobile collision while riding with a fellow employee, Beeson. Both were acting within the course and scope of their employment at the time of the accident. With regard to Carlisle’s claim against his own uninsured motorist carrier, we stated:

“This same reasoning applies to Car-lisle’s claim against his uninsured motorist carriers, U.S.F. & G. and Hartford. Uninsured motorist coverage is contingent upon there being liability by an uninsured or underinsured motorist. Since Carlisle has no cause of action in tort against Mrs. Beeson, no liability by Mrs. Beeson could arise. Thus, no cause of action exists against Carlisle’s uninsured or underinsured motorist carriers, U.S.F. & G. and Hartford.”

We conclude that our opinions in Carlisle, supra, and Fox, supra, are valid and control in this case. An uninsured motorist carrier is liable only for the damages which an insured is “legally entitled” to recover from owners or operators of uninsured motor vehicles. The Worker’s Compensation Statute provides that a fellow employee is immune from suit by another employee when he sustains an injury which is compensable by worker’s compensation benefits. Thus, an employee injured while working within the course and scope of his employment is not “legally entitled” to collect damages from a fellow employee and therefore, may not recover from his uninsured motorist insurer.

Based on the above, Mayfield’s assignment of error concerning the exclusion in her policy of state-owned vehicles is not germane to the outcome of this appeal, so it will not be discussed.

For the foregoing reasons, the judgment of the trial court, granting Casualty Reciprocal Exchange’s motion for summary judgment and dismissing Bernadine T. Mayfield’s suit, is affirmed. Costs of this appeal are assessed against plaintiff-appellant, Bernadine T. Mayfield.

AFFIRMED.

      . The Supreme Court affirmed the result reached by the Court of Appeal. However, the court refused to discuss the question of whether the collateral source rule applied. Mayfield relies on the Court of Appeal’s discussion of this issue in her argument.


author: DOMENGEAUX, Judge.

text:
    Elvis CAUBARREAUX, Plaintiff-Appellant, v. Cicero E. HINES, et al., Defendants-Appellees.
    No. 83-346.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 16, 1984.
    Harold J. Brouillette, Marksville, for plaintiff-appellant.
    Trimble, Randow, Percy, Wilson & Foote, James T. Trimble, Jr., Eugene P. Cieardo, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, STOKER and YELYERTON, JJ.
   DOMENGEAUX, Judge.

This is a contract warranty case. The appellant, Elvis Caubarreaux, entered into a construction contract with Cicero E. Hines and John W. Fuqua (d/b/a Hines and Fuqua Construction Company and as Hines and Fuqua Swimming Pools) [hereafter referred to as “Hines and Fuqua” ] to build a swimming pool in the back yard of the Caubarreaux residence. The contract specified the total cost as $15,000.00. The contract further provided that the “Contractor warrants the work to be free from defects in materials and workmanship for one year from the date of completion.” The appellant sued under this clause of the contract. At trial on the merits, the trial judge determined that the defendants had breached the express warranty provisions of the contract, and therefore, judgment was rendered in favor of plaintiff. From this judgment, plaintiff has devolutively appealed, seeking an increase in the damages award. Defendants answered the appeal, alleging error on the part of the trial judge in finding them liable for breach of contract.

FACTS

On August 11, 1981, Elvis Caubarreaux signed a contract for $15,000.00 with Hines and Fuqua for construction of a swimming pool in Mr. Caubarreaux’s back yard. Construction commenced soon afterwards, and the pool was completed on September 1, 1981. Mr. Caubarreaux paid $7,500.00 on August 14, 1981, and a remaining amount of $7,600.00 on August 28, 1981, upon completion of the swimming pool. The extra $100.00 included the purchase of a swimming pool ladder.

Some time in October, 1981, Mr. Caubar-reaux and his wife noticed a crack on the bottom of the pool, and they notified Hines and Fuqua. Mr. Hines assured the owners that a hairline crack would have no effect upon the use of the swimming pool.

In November, 1981, the crack became larger; more cracks appeared on the bottom and along the sides of the pool. During this time Mr. Fuqua drained the pool, repaired the cracks, and refilled the pool. The conditioned worsened, however; the pool lost water continuously; mud seeped through the hull and into the pool. The repaired concrete became discolored. During this time, Mr. Caubarreaux telephoned Hines and Fuqua. The testimony at trial reveals a discrepancy: Mr. Caubarreaux stated that he telephoned Hines and Fuqua repeatedly (for a total of approximately forty times for a five-month period) to report the problem with the swimming pool, and that the calls were never returned; whereas Mr. Hines testified that he received only one telephone call from Mr. Caubarreaux which he promptly returned.

In May, 1982, the pool was drained again, this time by Mr. Hines and his employee, John Cobb. For four days Mr. Cobb, under Mr. Hines’ supervision, attempted to repair the cracks and fissures to stop the mud and water which was seeping into the swimming pool. At that time, the hull of the pool “floated” (a term which refers to lifting of the hull). The floating resulted in cracked and broken decking which surrounded the pool. The entire pool tilted which shifted the diving board, slide, and ladder. The whole filtration system, including the main drain, failed to function after the hull floated. Voids were created under the swimming pool because of the radical movement of the hull.

Mr. Caubarreaux notified Hines and Fu-qua of the severity of the problems with the swimming pool. Mr. Caubarreaux filed suit on July 15, 1982, against Hines and Fuqua when the defects were not corrected. The suit sought damages consisting of a refund of the purchase price paid for the pool ($15,000.00), the cost of demolition and removal, and for inconvenience and loss of use.

A written opinion was rendered by the trial court on January 3, 1983, which held: (1) The express warranty provisions of the contract were breached by Hines and Fu-qua due to negligent acts of both commission and omission; (2) The evidence clearly established that the pool was beyond repair; (3) Richardson Industries, Inc. was not a manufacturer nor did it have any agency or franchise relationship with Hines and Fuqua; therefore claims against Richardson Industries, Inc. were dismissed with prejudice to the plaintiff; (4) The cost of demolition and removal of the pool was established to be $15,570.00; to replace the pool, an additional $15,100.00; and to fill in the hole left by the defective pool, without replacing the pool, $1,225.00; (5) That plaintiff was “at the very least entitled to have his back yard returned to him in its original condition” but that the Court was “unwilling to award plaintiff a new pool,” and accordingly; (6) Plaintiff was entitled to judgment for the cost of demolition and removal ($15,570.00), plus the cost of refilling the hole ($1,225.00), for a total of $16,-795.00, plus legal interest and costs. The trial judge held that the plaintiff was not entitled to attorney’s fees and therefore denied an award of such.

ISSUE

The plaintiff alleges that the trial court erred by awarding judgment only for a portion of the damages incurred as a result of a breach of the warranty provision of the contract. The issue on appeal is whether appellant is entitled to judgment for reimbursement of the cost paid for the defective swimming pool, and for inconvenience and loss of use.

The contract entered into between Mr. Caubarreaux and defendants is a construction contract governed by La.C.C. Art. 2756. We conclude that the rights and obligations of the parties under the contract in question are governed by the legal principles set forth in the Civil Code. La. C.C. Arts. 2756, 2762, 2768, and 2769. The legal principles derived from these code articles concerning construction contracts are applicable in the present suit. In Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir.1975), writ denied, 319 So.2d 440 (La.1975), we stated:

“It is implied in every building contract that the work of the builder be performed in a good workmanlike manner, free from defect either in material or workmanship. Nichols Ford Co., Inc. v. Hughes, 292 So.2d 345 (La.App. 2nd Cir.1974).
The basic law in regard to a contractor’s liability for failure to properly perform a building contract is found in LSA-C.C. Art. 2769....”
At 289.

The Code expressly provides for damages when the contractor is liable for non-compliance with the contract:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

La.C.C. Art. 2769. Further, if the defects of the work performed are such that cannot be corrected except by removing and replacing the construction, under the jurisprudence the owner may require the contractor to remove the object from his land and restore the premises to their prior condition. In addition, the owner is entitled to damages. Martin v. AAA Brick Company, Inc., 386 So.2d 987, 991 (La.App. 3rd Cir.1980), citing Neel v. O’Quinn, supra, and cases cited therein.

In the case sub judice, the trial court determined that defendants had breached the warranty terms of the contract. The trial court also fixed liability. We accept the factual findings as set forth in the trial judge’s written reasons that the swimming pool was defective and unsuitable for its intended use; because it was beyond repair it had to be demolished and removed. From our review of the record we conclude that these determinations are supported by the evidence and are not clearly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, we find that the trial court’s determination of damages is incorrect.

The improper installation of the swimming pool was the breach of the warranty of good workmanship implicit in every building contract, and in the instant case, of the explicit guaranty provisions of the written contract. See Martin, supra, at 991; Wetmore v. Blueridge, Inc., 391 So.2d 951 (La.App. 4th Cir.1980). The testimony adduced at trial regarding the amount necessary to remedy the defects in workmanship was given by the owner of another swimming pool company, Dalton Thibo-deaux, and by Thomas Walker, who is in the trucking and backhoe business. Mr. Thibodeaux testified that in order to completely repair the swimming pool it would be necessary to demolish the entire pool and replace it with a new one. Mr. Walker gave an estimated cost for demolition and removal. In view of this evidence, we hold that plaintiff is entitled to recover the full purchase price plus damages under the warranty clause of the contract for breach due to acts of both commission and omission. The swimming pool is totally unusable due to faulty construction; it is of little or no value in its present condition. Plaintiff and his family received no benefits from the construction of the defective swimming pool. In order to rectify such flaws, the trial judge determined that the entire structure as built must be demolished and removed, and the premises restored to their original condition. Since the defects were due to the poor workmanship and improper performance of the contractor in accomplishing his obligations under the contract, the costs of these damages are properly assessed against him. We conclude that this finding is correct. However, this finding constitutes only part of plaintiff’s right to recover. He is still out the $15,000.00 which he paid to have the pool built, which as aforesaid was useless to him. Therefore he is entitled to a return of the purchase price paid on the contract as well as damages. Accordingly, plaintiff is awarded reimbursement in the amount of $15,000.00 due to defendants’ non-compliance with the terms of the contract. La. C.C. Art. 2769; Martin v. AAA Brick Co., Inc., at 991; Toepfer v. Thionville, 299 So.2d 415 (La.App. 4th Cir.1974).

DECREE

For the above and foregoing reasons the judgment of the trial court is affirmed in part and reversed in part. Accordingly, it is Ordered, Adjudged, and Decreed that there be judgment in favor of plaintiff, Elvis Caubarreaux, and against the defendants, Cicero E. Hines and John W. Fuqua, and the partnership, Hines and Fuqua Construction Company, in solido, in the sum of $15,000.00 for reimbursement of the purchase price of the swimming pool, in addition to the sum of $16,795.00 for the cost of demolition and removal of the defective swimming pool and restoration of the backyard to its original condition. Both amounts subject to legal interest from date of judicial demand until paid.

The judgment of the trial court is affirmed in all other respects.

All costs on appeal are assessed against defendants, Cicero E. Hines and John W. Fuqua, and the partnership, Hines and Fu-qua Construction Company, in solido.

AFFIRMED IN PART AND REVERSED IN PART.

      . Mr. Caubarreaux also filed suit against Air-wick Pool Products, Inc., as the manufacturer of the products used in the construction of the pool. Prior to trial, Richardson Industries, Inc., the corporate successor to Airwick, was substituted as a party defendant. The trial court found no liability on the part of Richardson Industries and dismissed the suit against it; appellant concedes that this finding is correct. Accordingly, there is no issue on appeal as to this defendant’s liability.

      . Plaintiff also brought an action in redhibition, but later acknowledged in the trial court memorandum that redhibition does not apply to a construction contract. La.C.C. Art. 2762; Catalina Pools v. Sellers, 322 So.2d 812 (La.App. 4th Cir.1975).

      . Art. 2756 defines a construction contract thusly:
      "To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.”

      . The author of this opinion feels that appellant should be entitled to an award of non-pecuniary damages because of loss of use and inconvenience. However, we are precluded from awarding plaintiff damages for mental anguish in this contract action under La.C.C. Art. 1934(3); Os-trowe v. Darensbourg, 377 So.2d 1201 (La.1979); Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). But see Martin v. AAA Brick Company, Inc., 386 So.2d 987 (La.App. 3rd Cir.1980), concurring opinion at 992.


author: STOKER, Judge.

text:
    Deborah Lanclos JOHNSON, Plaintiff-Appellee, v. John W. JOHNSON, Jr., Defendant-Appellant.
    No. 83-351.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Sherman Stanford, Opelousas, for defendant-appellant.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

This suit concerns an award of permanent alimony. Plaintiff, Deborah L. Johnson, filed a rule for alimony and an increase in child support. Defendant, John W. Johnson, Jr., answered by a rule to decrease child support. The trial court awarded Mrs. Johnson permanent alimony in the amount of $350 per month and denied her request for an increase in child support.

Mr. Johnson appeals alleging that the trial court erred in (1) granting Mrs. Johnson permanent alimony for the period of her training as a nurse while she was already trained to earn a living as a beautician and (2) in finding that Mr. Johnson’s net income was approximately $1,583 to $1,667 per month. Because we find that the trial court erred in awarding Mrs. Johnson permanent alimony, we do not reach the issue of Mr. Johnson’s net income.

FACTS

In the original separation suit, Mrs. Johnson was awarded $500 per month for child support and alimony pendente lite. After several rules for past due alimony and child support, Mrs. Johnson agreed to give up her alimony because she was working. In 1978, the parties stipulated to child support in the amount of $450 per month.

In January of 1980, Mrs. Johnson filed suit for divorce based on LSA-R.S. 9:302. She sought only child support and made no claim for permanent alimony under LSA-C.C. art. 160. A judgment of divorce was granted on May 22, 1980 awarding child support in the amount of $450 per month.

Mrs. Johnson’s fault was never in issue in either the separation or the divorce suit. Although the above facts do not appear in the record, they are not disputed. (See written reasons for judgment. Tr. 10 et seq).

On January 20, 1983, Mrs. Johnson filed a rule for alimony and an increase in child support. In support of her request for permanent alimony she alleged that her financial circumstances had changed as a result of her attending nursing school. She requested an award of $900 per month to cover both alimony and child support. Mr. Johnson answered by a rule to decrease child support.

Both rules were heard on February 4, 1983. In its judgment signed on February 22, 1983, the trial court (1) awarded Mrs. Johnson permanent alimony in the amount of $350 per month and (2) refused her request for an increase in child support.

AWARD OF PERMANENT ALIMONY

Mr. Johnson urges that it was error for the trial court to award Mrs. Johnson permanent alimony in any amount. He contends that he should not be required to subsidize her training as a nurse because she has already demonstrated a capacity to earn sufficient wages to meet her basic needs.

For a court to alter an alimony award, the party seeking modification must show a change of circumstances of either party from the time of the award to the time of the trial on the alimony rule. Cromwell v. Cromwell, 419 So.2d 974 (La.App. 3rd Cir.1982). The spouse’s earning capacity is a factor to be considered in determining need for purposes of permanent alimony. LSA-C.C. art. 160. Further training and education for a reasonable period of time directed toward improving earning capacity is another proper consideration under Article 160. Geter v. Geter, 404 So.2d 1283 (La.App. 2nd Cir.1981). An award of alimony will not be disturbed on appeal in the absence of clear showing of an abuse of discretion. Cormier v. Cormier, 422 So.2d 719 (La.App. 3rd Cir.1982), writ denied, 427 So.2d 869 (La.1983).

The parties were divorced in 1980. Mrs. Johnson did not seek permanent alimony at that time. Approximately three years later she decided she wanted to become a nurse and enrolled in nursing school. Prior to enrolling in nursing' school, Mrs. Johnson was working and apparently had sufficient income to meet her needs. On January 20,1983, after completing almost one semester at nursing school Mrs. Johnson filed the present rule for permanent alimony. Besides receiving approximately $200 per month in food stamps, she now has no other income.

We believe that under the facts, the award of alimony made by the trial court was an abuse of discretion and was not consistent with the criteria of Article 160. We hold that it would be inconsistent with the codal mandate requiring consideration of earning capacity to require Mr. Johnson, at this time, to subsidize Mrs. Johnson’s training as a nurse because she has demonstrated capacity to earn sufficient wages to meet her basic needs.

At the time Mrs. Johnson filed the rule for alimony, the parties had been divorced nearly three years. Shortly before filing the rule Mrs. Johnson enrolled in nursing school. Prior to that time she worked, earning enough to meet her needs. Because almost three years have passed since their divorce we find that the time necessary for Mrs. Johnson to acquire further education, training or employment has elapsed.

This is not a case in which one spouse wishes to continue further education or training already begun at or near the time of separation or divorce, nor one in which the spouse is in need of further education or training in order to become employable. Rather, this is a case in which after working for almost three years and apparently earning sufficient income to meet her needs, Mrs. Johnson decided that she wanted to become a nurse and so enrolled in nursing school. As a result of this decision, she apparently quit her job and now has no income other than approximately $200 per month in food stamps.

For the reasons assigned, the judgment of the trial court is reversed insofar as it awards permanent alimony to plaintiff. Judgment is now rendered in favor of defendant John W. Johnson, and against plaintiff, Deborah L. Johnson, rejecting plaintiffs demand for permanent alimony. That portion of the judgment of the trial court denying an increase in child support is affirmed. Costs are assessed against plaintiff-appellee in both the trial court and on appeal.

REVERSED.


author: YELVERTON, Judge.

text:
    James Wardner JORDAN, Plaintiff-Appellant, v. DEPARTMENT OF PUBLIC WELFARE, Defendant-Appellee.
    No. 83-356.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Sherman Stanford, Opelousas, for plaintiff-appellant.
    Dwight D. Reed, Opelousas, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   YELVERTON, Judge.

The single issue here is whether the trial court abused its discretion in refusing to permit the adoption of a three year old child by his stepfather.

The appellant is James Jordan. He married the child’s mother, Selma, on January 4, 1982. Selma was at that time 30 years old and this was her fifth marriage. The child sought to be adopted, Michael David McCullough, was born of the fourth marriage. He was two years and seven months old when his mother married appellant. They had been married one year when this petition for adoption was heard.

Selma gave her consent to the adoption as required by LSA-R.S. 9:422. Selma had legal custody of the child and its father, the other legitimate parent, had failed to comply with- a court order of support for a period of one year prior to the date of the hearing, facts which the trial court found dispensed with the necessity for the father’s consent under LSA-R.S. 9:422.1. Accordingly, the trial court found that all statutory requirements for the adoption were met. However, the court concluded that it was not in the best interest of the child to grant the adoption at this time. Jordan appealed. We affirm.

The best interest of the child is the major standard to which a court must look before it can determine when or whether to order an adoption. LSA-R.S. 9:432. Adoption of Latiolais, 384 So.2d 377 (La.1980). Each case is to be determined on its own facts and the great discretion of the trial court is not to be disturbed in the absence of a clear abuse of that discretion. In re Hinton, 390 So.2d 972 (La.App. 2nd Cir.1980).

As we said in Adoption of Edwards, 369 So.2d 210, 213 (La.App. 3rd Cir.1979):

“Even where the statutory requirements are met and the non-supporting parent has forfeited the right of consent, the adoption can be denied in order to serve the best interests of the child. Where, for example, the parent proposing to adopt has been married for a brief period, there is no abuse of discretion in denying the adoption.”

In its reasons for judgment in the instant case the trial court explained why it was of the opinion that the prospective adoptive parent failed to demonstrate the adoption would be in the best interest of the child. The trial judge noted that the child’s mother had been married five times: in 1968 for five years, in 1973 for not quite a year, in 1974 for one year, in 1978 (to the child’s father) for two years, and to her current husband, appellant, for one year. In the words of the trial court:

“Mitigating against adoption is the mother’s proclivity for unstable marriages, and the short duration of her marriage to Jordan and the other marriages. Three of the prior marriages lasted two years or less. The present marriage has been in existence for only a year.”

The trial court then denied the adoption adding, however, that “Time may alter the circumstances of this case.”

The trial court’s determination was not an abuse of discretion and will not be disturbed. For the reasons assigned, the judgment of the trial court is affirmed. Appellant is to pay the costs of this appeal.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Clifton CLAUSE, Jr., Plaintiff-Appellee, v. Eldie F. MANUEL, Defendant-Appellant.
    No. 83-420.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearings Denied Jan. 13, 1984.

      Preston N. Aucoin, Ville Platte, for defendant-appellant.
    Dubuisson & Dubuisson, James G. Du-buisson, Opelousas, for defendant-appellee.
    Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

This is a suit in warranty brought by the • purchaser of real property against his vendor. The plaintiff, Clifton Clause, Jr., alleges that the property he purchased from the defendant, Eldie F. Manuel, is encumbered by a federal tax lien resulting from the defendant’s failure to pay federal inheritance taxes. By this suit, the plaintiff seeks judgment compelling the defendant to file an Additional Federal Estate Tax Return and to pay such taxes as are necessary to free the property from the tax lien. The defendant filed a third party demand against Aaron Frank McGee, the attorney who, in connection with the sale of the property from the defendant to the plaintiff, examined the title to the property on behalf of the plaintiff. By the third party demand, Mrs. Manuel seeks to recover from McGee any amount she is required to pay in judgment or in additional taxes.

The trial court granted a motion for summary judgment filed on behalf of the plaintiff, ordering the defendant, Mrs. Manuel, to file a United States Additional Estate Tax Return and to pay any taxes necessary to release the property from the lien. A motion for summary judgment, filed on behalf of the third party plaintiff, Mrs. Manuel, against Aaron Frank McGee was denied. Summary judgment was rendered in McGee’s favor, rejecting the third party demand. Mrs. Manuel, defendant and third party plaintiff, appeals.

The issues presented by this appeal are: (1) whether the trial court may properly order the defendant in this warranty action to file an Additional Federal Estate Tax Return and pay any additional Federal Estate Taxes assessed by the Federal government; and, (2) whether the defendant, if she is cast in judgment, is entitled to indemnity from McGee based on the title opinion he rendered on behalf of the plaintiff.

FACTS

The property in question was acquired by the defendant in 1978 from the estate of her late husband, Horace Manuel. The plaintiff and Burton Ortego purchased the property from the defendant by an act of sale dated September 13, 1979. In connection with their acquisition, the plaintiff and Ortego retained Aaron Frank McGee, a Eunice attorney, who examined the title and prepared the act of sale. McGee rendered a title opinion to St. Landry Bank & Trust Company, in connection with a mortgage loan to the plaintiff and Ortego to be secured by a mortgage on the property in question. By a letter to St. Landry Bank dated September 21, 1979, McGee stated his opinion that good and merchantable title vested in Clause and Ortego.

In March, 1982, Clause sought to sell a portion of the property to James A. Johnson. By this time, Ortego had sold his undivided interest to Clause, making Clause the sole owner. Johnson was a client of the Eunice law firm of Pucheu and Pucheu. The latter firm advised Johnson that there was a lien on the property resulting from the failure of Mrs. Manuel to pay federal inheritance taxes. The plaintiff thereafter filed this suit.

The only information in the record regarding the existence of a tax lien encumbering the subject property appears in the affidavit of attorney John H. Pucheu, which is attached to the plaintiff’s motion for summary judgment. Pucheu holds a Master of Laws Degree from the University of Miami and does considerable work in the field of tax and estate planning. Pu-cheu stated that in his opinion a lien on the subject land arose as a result of a special use valuation utilized in computing the value of the property in the estate of Horace Manuel. The property in question was included in the estate of Horace Manuel and was bequeathed to the defendant in Horace Manuel’s will. According to the Pucheu affidavit, if such specially valued property is sold within fifteen years of inheritance, the estate becomes liable for additional federal estate taxes. Pucheu stated that in his opinion, all property formerly in the estate of Horace Manuel, including the property involved in this suit, is affected by a federal tax lien resulting from the sale of this specially valued property within fifteen years of inheritance.

RELIEF AVAILABLE TO THE PLAINTIFF

The trial court judgment orders the defendant, Mrs. Manuel, to file the appropriate tax returns and to pay all additional taxes due in order to remove the encumbrance from the plaintiff’s property. For the reasons which follow, we find that this relief is not available to the plaintiff, and the summary judgment granting such relief is erroneous.

It is the obligation of the seller to warrant the purchaser’s peaceable possession against the claims of third persons, both as to the title of the thing sold and as to charges thereon not declared at the time of the sale. LSA-C.C. Art. 2501; O’Reilly v. Poche, 162 So.2d 787 (La.App. 4th Cir.1964). In the case of a partial eviction, the buyer may have the sale cancelled if the eviction is of such consequence relative to the whole, that he would not have purchased it without the part from which he is evicted. LSA-C.C. Art. 2511. If the sale is not cancelled, the buyer is entitled to a proportionate reimbursement from the seller. LSA-C.C. Art. 2514.

The relief granted by the trial court is not authorized by our law. In short, to sustain the judgment of the trial court would require the application of an extraordinary remedy, in the nature of a writ of mandamus or a mandatory injunction, to which the plaintiff is not entitled under the facts of this case. Under the stated facts, the plaintiff’s .remedy, if the subject property is in fact encumbered by a valid tax lien, is rescission of the sale or a proportionate reimbursement from the defendant.

Due to the nature of the relief sought by the plaintiff and granted by the trial court, there is no evidence in the record with regard to the extent to which the plaintiff’s property is allegedly encumbered, a determination which is vital before the appropriate relief can be determined. Accordingly, we reverse the trial court’s judgment in favor of plaintiff and remand this matter to the trial court to allow the amendment of pleadings and the introduction of any additional evidence either party wishes to offer.

THIRD PARTY DEMAND

By the third party demand, Mrs. Manuel seeks indemnity from McGee for any amount, in judgment or additional taxes, which she is condemned to pay. She bases the claim on McGee’s failure to inform her and the parties to the sale of the alleged outstanding tax lien. The trial court granted McGee’s motion for summary judgment, dismissing the third party demand. We affirm this portion of the trial court’s judgment.

The affidavit of Aaron Frank McGee, which is attached to his motion for summary judgment, establishes that he was retained by the purchasers, Clifton Clause and Burton Ortego, to examine the title to the property in question. He stated that he was not employed by Mrs. Manuel, as an attorney or otherwise, to advise her as to the validity of her title. His only contact with Mrs. Manuel was in his capacity as notary for the act of sale. Generally, in the absence of any attorney-client relationship, there can be no liability on the part of an attorney for legal malpractice.

Mrs. Manuel relies on the case of Capital Bank & Trust Company v. Core, 343 So.2d 284 (La.App. 1st Cir.1977), writ refused 345 So.2d 504 (La.1977). In that case, an attorney was engaged by a corporation to examine title to certain property. The property was used to secure a loan from the plaintiff bank. When the title opinion rendered by the attorney proved faulty, the bank brought a direct malpractice action against the attorney. The plaintiff bank did not engage the attorney to examine the title to the property, nor did it pay the attorney for his services. However, the evidence established that the plaintiff bank, in accepting the property in question as security for the loan for the corporation, relied on the title opinion rendered by the defendant. Furthermore, the defendant attorney was fully aware of the reliance the bank would place on the title opinion. Our brethren of the First Circuit held that the plaintiff bank could bring a direct malpractice action against the attorney. The court held that the attorney’s liability arose from a stipulation pour autrui. The attorney rendered the title opinion for the benefit of a third party, the bank. Upon the bank’s acceptance of the benefit of the title opinion (by lending money in reliance thereon), privity of contract was created sufficient to support the malpractice action.

The instant case is factually distinguishable from the situation in the Capital Bank case. The affidavit of McGee, which is corroborated by the deposition of Mrs. Manuel, establishes that McGee was not retained by Mrs. Manuel, and that at no time did he advise her as to the merchantability of her title. He never represented to her that her property was free of encumbrances.

Counsel for Mrs. Manuel argues that she would not have sold the property in question had she known that additional tax liability would result. While this may be true, the facts of the instant case fall short of establishing a privity of contract between McGee and Mrs. Manuel. To render McGee liable as a result of a stipulation pour autrui, we would have to find that his title examination and title opinion were rendered for the benefit of Mrs. Manuel. Clearly this was not the case. McGee's title opinion was rendered on behalf of Clause, Ortego, and St. Landry Bank & Trust Company. He had no reason to believe that Mrs. Manuel would base her decision to sell the property on his title opinion. We find no error in the trial court’s summary judgment in favor of the third party defendant.

For the reasons assigned, the judgment rendered by the trial court in favor of plaintiff, Clifton Clause, Jr., is reversed and set aside and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed one-half to Eldie F. Manuel and one-half to Clifton Clause, Jr., with assessment of the trial court costs to await a final determination of this matter.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


text:
    F.W. CHAPMAN, III & H.C. Harris, Jr., Plaintiffs-Appellees, v. Emile STECKLER, Defendant-Appellant.
    No. 83-422.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.

      Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellant.
    Carrol L. Spell, Sr., Lafayette, for plaintiff s-appellees.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

This suit concerns damages for wrongful sequestration. Plaintiffs, F.W. Chapman, III, and H.C. Harris, Jr., instituted this action by a petition for sequestration in which they alleged that they were the owners of a Beech Baron airplane which defendant, Emile Steckler, had in his possession and refused to return. Based upon this petition and a supporting affidavit, a writ of sequestration was ordered on March 15, 1983. Pursuant to the writ, the Sheriff. of St. Landry Parish, Louisiana, seized the airplane on March 17, 1983.

Upon learning of the seizure Mr. Steckler filed a motion to dissolve the writ on March 28, 1983, claiming damages resulting from wrongful sequestration. A hearing to show cause why the writ of sequestration should not be dissolved and why damages should not be awarded was held on April 13, 1983. In a judgment signed on April 26, 1983, the trial court gave judgment for Mr. Steckler ordering the writ of sequestration be dissolved and vacated and awarding him $350 in attorney’s fees.

The only issues on appeal concern damages and attorney’s fees. Mr. Steckler urges that the trial court erred in (1) failing to award damages for the wrongful sequestration and (2) only awarding $350 for attorney’s fees. We hold that the trial court erred in both these respects and amend the judgment.

APPLICABLE LAW

A court may allow damages for the wrongful issuance of a writ of sequestration on a motion to dissolve, and attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages. LSA-C.C.P. art. 3506. Where sequestration has been wrongfully issued, defendant is entitled to recover actual damages which he sustained as a result thereof, including damages for loss of profit, loss of use, and injuries to social standing or reputation as well as humiliation, inconvenience and mortification. LSA-C.C.P. art. 3506; Mathieu v. Nettles, 383 So.2d 1337 (La.App. 3rd Cir.1980), writ denied, 390 So.2d 202 (La.1980); Talley v. Bradley, 177 So.2d 624 (La.App. 3rd Cir.1965).

The proof to substantiate claims of damages from wrongful sequestration must be clear and definite and not subject to conjecture. Talley v. Bradley, supra. The fact that a party seeking to recover damages because of wrongful sequestration cannot establish with certainty the amount of damages to which he is entitled does not discharge the person at whose instance the sequestration was issued from liability; rather, a court should fix the quantum of damages as best it can with the record before it. Mathieu v. Nettles, supra.

A reviewing court has the authority to award attorney’s fees by applying its knowledge as to the extent of services rendered and value thereof to the record before it. Mathieu v. Nettles, supra.

DAMAGES

The specific items of damages claimed by Mr. Steckler are: (1) loss of use, (2) indebtedness for interest due on the purchase price and (3) general damages. His airplane was wrongfully sequestered from March 17, 1983, to April 26, 1983.

Mr. Steckler alleges that during the period of sequestration he could have derived $5,940 in profit from his plane by letting Solar Equipment, a company with which he had some business dealings, use the plane. He claims that Solar Equipment’s payments for such use would have enabled him to make a profit of $110 for each hour that they used the plane. This claim is in actuality one for loss of profits rather than for “loss of use”. The record reveals that Mr. Steckler contradicted himself. He first testified that the payments made by Solar Equipment covered only his costs in operating the airplane. Later, he testified that he made profits of $110 per hour from these payments. We cannot say the trial judge was clearly wrong in finding that there was no loss in profits from the sequestration. However, we find that Mr. Steckler did not in fact have the airplane available for his own use during the period of wrongful sequestration and that the trial judge erred in not awarding him damages for the loss of use. We hold that Mr. Steckler is entitled to damages for the loss of use of his airplane in the amount of $1,500.

Mr. Steckler next alleges that Chapman and Harris are indebted to him for $1,188 in interest. We are unable to discern the basis for this claim. From plaintiff’s assertions this is an amount calculated at $44.00 per day for twenty-seven days that the plane was under sequestration. The interest is apparently interest due on a mortgage note secured by mortgage on the plane. It is our understanding that Chapman and Harris made whatever payments were due during the period involved. However, even if plaintiff had made the payments the basis of the claim is not clear. Plaintiff asserts in his brief that he was indebted for this interest. If he was indebted for the interest, that fact is unrelated to his claim for damages for wrongful sequestration. No award will be made for the interest claim.

The next item claimed is for general damages. The sheriff seized the airplane by serving the writ of sequestration on the manager of the airport where the airplane was kept, and appointed the manager as custodian of the property. Mr. Steckler testified that people were surprised that something like this would happen to him and they asked him what was wrong. He claims that the seizure caused him embarrassment and humiliation, and he should be compensated for these emotional injuries. We agree. The airplane was seized at a public airport and remained under wrongful seizure for almost one month. Under these circumstances, we find that Mr. Steckler suffered the emotional injuries complained of and that the trial judge erred in not awarding damages for these injuries. We hold that Mr. Steckler be awarded damages for embarrassment and humiliation in the amount of $1,000.

ATTORNEY’S FEES

Finally, Mr. Steckler urges that the $350 in attorney’s fees awarded by the trial court were inadequate. We agree.

The hearing on the motion to dissolve the writ of sequestration took one day. Several witnesses were called to testify. Additionally, counsel points out in his brief that he twice had to travel from Ville Platte to Opelousas, once to review the proceedings and to obtain a copy thereof from the clerk of court since Mr. Steckler was never served with the petition for sequestration, and a second time for the hearing on the motion to dissolve. We find that the award of $350 in attorney’s fees is insufficient under the circumstances. We hold that Mr. Steckler be awarded attorney’s fees in the amount of $1,000.

For the reasons assigned, the judgment appealed from is amended by awarding Emile Steckler damages for (1) loss of use in the amount of $1,500 and (2) embarrassment and humiliation in the amount of $1,000. Additionally, the amount awarded for attorney’s fees is increased from $350 to $1,000. The judgment against defendants, Chapman and Harris, is to be insólido. In all other respects, and as thus amended, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.


author: DOMENGEAUX, Judge. PER CURIAM.

text:
    George E. WOODARD, Plaintiff-Appellee, v. GREGORY AND COOK, INC., and Gray and Company, Inc., Defendants-Appellants.
    No. 83-577.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.

      Allen, Gooch, Bourgeois, Breaux & Robi-son, P.C., Arthur I. Robison and Raymond Jackson, Lafayette, for defendants-appellants.
    James Miguez and Carl Leckband, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   DOMENGEAUX, Judge.

George E. Woodard, plaintiff-appellee, filed suit against Gregory and Cook, Inc., [hereafter referred to as “Gregory”] and its insurer, Gray and Company, Inc., [hereafter referred to as “Gray”] defendants-appellants, seeking workers’ compensation benefits under the provisions of La.R.S. 23:1031 et seq. The trial court found that Woodard was entitled to workers’ compensation benefits for total disability under the “odd-lot” doctrine. Further, the trial court found that Gregory and Gray acted arbitrarily and capriciously in terminating Woodard’s workers’ compensation benefits and awarded penalties and attorney’s fees to Woodard. Gregory and Gray appeal. Woodard answers seeking only additional attorney’s fees for defending this case on appeal. We amend and affirm as amended. We find that Woodard is entitled to an increase of $500.00 in attorney’s fees for his efforts in connection with this appeal.

ISSUES

The issues on appeal are as follows:

1) Whether or not the trial court erred in finding that Woodard was totally and permanently disabled under the Louisiana Workers’ Compensation Statute.

2) Whether or not the trial court erred in finding that Gregory and Gray were arbitrary and capricious in their handling of this claim.

FACTS

Woodard, an employee of Gregory, was injured in the course and scope of his employment. On December 12, 1981, Woodard hurt his back trying to throw a heavy piece of concrete off and over the side of a flatbed truck. The accident was reported to Gregory that day. The following Monday, Woodard received chiropractic treatment. Gregory and Gray instituted payments of workers’ compensation benefits on January 4, 1982.

Woodard was admitted to the West Cal-casieu-Cameron Hospital in Sulphur, Louisiana, on March 29, 1982, and was discharged on April 21, 1982. Gregory and Gray terminated Woodard’s compensation benefits on April 16, 1982.

On May 27, 1982, the present suit was filed by Woodard. The trial court rendered judgment in favor of Woodard ordering Gregory and Gray to pay the following:

1) Total and permanent disability benefits at a weekly rate of $183.00, commencing on April 18, 1982;
2) All unpaid medical bills;
3) Statutory penalties of twelve percent (12%) on the amount in arrears;
4) Attorney’s fees in the amount of $2,500.00.

TOTAL DISABILITY

The fact that Woodard was injured on the job and that he is disabled is not at issue. The focus of our inquiry is to what extent Woodard is disabled. The specific issue is whether under the odd-lot doctrine Woodard is entitled to total disability benefits for his injury. The odd-lot doctrine entitles an employee to compensation for total disability when, as a result of a compensable injury, he is rendered unable to perform any services for which a reasonably dependable market exists. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). An odd-lot claimant need not be absolutely helpless to qualify for total disability status. If the claimant can prove that his physical condition, his mental capacity; his education, training, age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd-lot category. The employer or insurer must then show that some form of suitable work is regularly and continuously available to the claimant in the area where he resides. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980).

Applying the above stated rules to the present case, the first question is whether Woodard has made out a prima facie case that he is in the odd-lot category. We conclude that the trial judge’s determination that he sustained the burden of proof is correct. A review of the record reveals that Woodard had a pain-free back and an excellent work history prior to the accident. The deposition of Dr. Clark E. Gunderson, an orthopedic surgeon, was introduced into evidence. As Woodard’s treating physician, Doctor Gunderson testified that Woodard suffered a lumbar straining-type injury superimposed on degenerative changes at the L3-4 level. Doctor Gunderson’s opinion was that Woodard suffers from chronic back pain and mechanical pain. Doctor Gunderson stated in his deposition that Woodard could not at that time return to performing heavy labor; and that he was unable to determine whether Woodard would be able to return to heavy work in the future. Woodard’s past work experience had been that of a construction carpenter and a pipeline laborer. Both occupations require manual work, lifting, bending and climbing. The union business agent testified that one who could not perform these tasks is unemployable as a house carpenter, construction carpenter or pipeline laborer. Woodard has not been employed since the accident; he only has an eighth grade education.

Having concluded that Woodard has made out a prima facie case that he is an odd-lot employee, the next question is whether Gregory and Gray have shown that some form of suitable work is regularly and continuously available to the claimant in the area where he resides. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). We conclude they have not. A review of the record reveals that no evidence was presented to show that suitable work was available to Woodard. Therefore, we cannot say that the trial court was manifestly erroneous in concluding that Woodard was totally disabled.

STATUTORY PENALTIES AND ATTORNEY’S FEES

Gregory and Gray assign as error the trial judge’s finding that its termination of benefits was arbitrary and capricious. Whether or not a termination of benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the employer at the time of its action. DeJean v. B.F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3rd Cir.1973). The determination by the trial court of whether the employer’s conduct is arbitrary, capricious or without probable cause is at least in part a factual determination. Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir.1977). Therefore, we should not disturb the trial court’s finding unless it is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Woodard’s workers’ compensation benefits were terminated while he was in the hospital. Gregory and Gray contend that they did not have any knowledge that Woodard was hospitalized at the time of termination. There is conflicting testimony in the record as to whether Gregory’s and Gray’s agent, Mr. Foreman, had actual knowledge of the situation. Regardless of the actual knowledge at the time of termination, Gregory and Gray did not resume compensation payments from the date of termination upon receiving notice that Woodard was in the hospital. ■ Gregory and Gray argue that they had not been shown conclusively that Woodard was suffering from anything that occurred during his employment. We disagree. Woodard reported his injuries to Gregory on the day of the accident. Further, the counsel for Gregory and Gray, in his opening statement, stated that it was their position that Woodard had recovered as of June 8, 1982. In effect, counsel acknowledged that Woodard had not recovered from his accident as of the date of termination of benefits on April 16, 1982.

If the termination was excusable due to lack of knowledge, there was no justification whatsoever in thereafter refusing to resume compensation payments when the company admittedly became aware of the fact that Woodard was hospitalized at the time of the termination of benefits. Therefore, we conclude that the trial court was correct in finding that Gregory and Gray acted arbitrarily and capriciously.

In answering the appeal, Woodard requested an increase in attorney’s fees for defending this appeal. This Court has addressed the issue of additional attorney’s fees when required for an appeal. In Conlay v. Houston General Insurance Co., 370 So.2d 196 (La.App. 3rd Cir.1979), writ granted, 371 So.2d 618 (La.1979), dismissed upon settlement, 374 So.2d 650 (La.1979), we explained this practice:

“An increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal. Horn v. Vancouver Plywood Corporation, 322 So.2d 816 (La.App. 3rd Cir.1975).”

In this case, plaintiff is only protecting his rights relative to defendant’s appeal; he is not seeking any additional relief denied at the trial level. Under these circumstances, we find that additional attorney’s fees, in the amount of $500.00, for services rendered on appeal are warranted.

DECREE

For the above and foregoing reasons, the judgment of the trial court is amended to increase the award of attorney’s fees therein from $2,500.00 to $3,000.00, and in all other respects it is affirmed. Costs are assessed against defendants-appellants, Gregory and Cook, Inc., and Gray and Company, Inc.

AMENDED AND AFFIRMED AS AMENDED.

ON REHEARING

PER CURIAM.

Our opinion in this case, dated December 14, 1983, granted additional attorney’s fees in the amount of $500.00 to plaintiff-appellee for services rendered to him on appeal. Defendant-appellant, Gregory and Cook, Inc., on motion for rehearing, suggests that we were in error in awarding the additional attorney’s fees inasmuch as plaintiff-appellee had not appealed nor answered the appeal.

We find merit to movant’s allegations and consequently the $500.00 awarded as additional attorney’s fees for services rendered on appeal is hereby rescinded and deleted from our referred to opinion. Knott v. Welltech, Inc., 428 So.2d 1221 (La.App. 3rd Cir.1983); Wainwright v. Files Timber Co., Inc., 404 So.2d 1287 (La.App. 2nd Cir.1981); Richard v. Standard Fittings, 379 So.2d 33 (La.App. 3rd Cir.1980).

Considering the above referred deletion, the decision of the trial court is affirmed, without amendment, and accordingly, the motion for rehearing is denied.

DENIED.

      . In his written reasons for judgment, the trial judge also stated that the plaintiff "appears to fall within the definition of permanent total disability without consideration of the odd-lot doctrine. He has been completely unemployed since the date of the accident, and there is no evidence to indicate that he is able to engage in any gainful occupation.”


author: FORET, Judge.

text:
    Steven CHARLES, et al., Plaintiffs-Appellants, v. Ronnie DURAND, et al., Defendants-Appellees.
    No. 83-674.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Walter J. Rippas, St. Martinville, for plaintiffs-appellants.
    Roy, Forrest & Lopresto, Alex A. Lo-presto, III, New Iberia, for defendants-ap-pellees.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

This tort action arose out of an automobile accident that occurred on May 2, 1981, in New Iberia, Louisiana. The plaintiff is Steven Charles, acting as the administrator of the estate of his minor child, Racquel Charles The defendants are Ronald Du-rand, administrator of the estate of his minor daughter, Michelle Durand, and his insurer, State Farm Mutual Automobile Insurance Company. Plaintiff appeals from a judgment in favor of defendants. The issue on appeal is whether Racquel Charles’ injuries were caused by the aforementioned accident.

FACTS

The facts concerning the accident are not in dispute. Racquel Charles, plaintiffs two-year-old daughter, was a back seat passenger in a 1978 Chevrolet being operated by Nolton George, Jr. The George vehicle was stopped at an intersection when it was hit from the rear by a Volkswagen owned by Ronald Durand and being driven by his fifteen-year-old daughter, Michelle. Because of the impact, Racquel was thrust forward into the back side of the front seat.

On May 18, 1981, sixteen days after the, accident, Racquel was brought to Charity Hospital in Lafayette by her mother, after the child had been complaining of pain in her right leg. She was examined by Dr. Kelly Nations, who was working in the emergency room at the time. Dr. Nations’ examination was normal and he saw no objective signs of bruises, contusions, or tenderness in any of the child’s extremities. Inasmuch as the child had full range of motion, and a normal degree of flexia and extension, and no other discernible injuries, she was fully discharged to resume full normal activities.

After the examination by Dr. Nations, the child was brought to Dr. Boring Montgomery on May 26, 1981. Dr. Montgomery found that the child walked with a slight limp and showed signs of pain when pressure was put on her right calf muscle. His observation was that the child suffered from a contusion of the right leg and a sprained right ankle. After seeing the patient on five more occasions, Dr. Montgomery released the child on November 16, 1981, and indicated that she had fully recovered.

At the trial, plaintiff introduced the deposition of Dr. Montgomery in evidence. Also, the child’s mother and grandmother testified that the child was constantly complaining of pain and often fell while playing. Defendants’ chief evidence was the deposition of Dr. Nations.

The trial judge ruled in favor of the defendants without assigning written reasons. Plaintiff now seeks reversal of the court’s ruling, arguing that its decision was manifestly erroneous.

CAUSATION

Causation is a question of fact as to which the trial court’s determinations are entitled to great weight and cannot be disturbed unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Dr. Nations was the first doctor to examine the child after the accident. He was of the opinion that a contusion and/or sprain-type soft tissue injury is usually worse immediately following an accident. He saw nothing which would indicate any pain or injury to the child. On the other hand, Dr. Montgomery saw the patient eight days after the examination of Dr. Nations, i.e., some three weeks after the accident. As to the testimony of the plaintiff’s witnesses, we see no reason to challenge the trial court’s evaluation of their testimony because a trial judge is in a much better position to judge the credibility of witnesses.

The trial court obviously felt that the injury, if it existed, was not caused by or resulted from the accident of May 2, 1981. Since we do not find that the decision of the trial court is clearly wrong, we affirm.

DECREE

For the reasons set forth above, the decision of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Plaintiff did not sue to recover any damages in his individual capacity.


author: BROOM, Presiding Justice,

text:
    William B. JONES v. STATE of Mississippi.
    No. 54611.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Rehearing Denied Jan. 11, 1984.
    Ross Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   BROOM, Presiding Justice,

for the Court:

Manslaughter is the offense for which appellant (William B. Jones, defendant herein) was convicted, in the Circuit Court of the First Judicial District of Hinds County, the Honorable William F. Coleman presiding. Trial was actually upon a murder indictment but resulted in the manslaughter, lesser offense, conviction, and sentence of twenty (20) years imprisonment. The unusual feature of the case is that the defendant’s victim, his wife, Laura C. Jones, lived almost a year and a half after she was found severely beaten on November 9, 1980. Insufficiency of the evidence is the only ground argued for reversal. We affirm.

Facts of the case are briefly stated as follows: The deceased and defendant were first married in April, 1979, but they were divorced in a short time and remarried September 20, 1980. The deceased (Laura) was a nurse, and lived with the defendant in her small house in Clinton. Her daughter, Rebecca, in the late afternoon of November 9, 1980, found her sitting on the floor in the upstairs portion of the house with dried blood in her nose and ears. The house was in disarray with the phones having been pulled or cut loose. An ambulance was called which carried Laura to Hinds General Hospital, where she was treated. Subsequently she was in a nursing home at intervals until death on April 30, 1982. At trial the defendant admitted that on the occasion in question he and his wife, Laura, had an altercation in which he struck her some five or six times with his hand, which he said was in self-defense. Other testimony will be related in discussing the assignment of error.

Sole proposition argued by the defendant is his contention that the verdict “is contrary to the overwhelming weight of the evidence”.

Testifying in his own defense, the defendant stated that he was 47 years old, father of three children by a former marriage, and that he last saw Laura on Friday night, November 7, 1980, when he left her standing at the top of the stairway. (She was found injured, semi-unconscious on Sunday, November 9, 1980). His version is that when he came home on Friday afternoon November 7, 1980, his wife began to curse him, berate him, and threaten to have her former husband, T.T. Dearing, and also some “big fellow” stomp him and kill him. He said that when she was on the telephone he jerked the cord from the wall, after which she went upstairs and he followed her. Upstairs he said that she jerked the phone from the wall and in the process turned over the coffee table, spilling its contents on the floor and breaking a glass on top of it. Then he said she kicked him and scratched him and tried to choke him. He said that she also bit him and finally he slapped her with the palm of his hand some five or six times, after which he left. At that point, she was standing at the top of the stairway throwing his clothes after him. Upon deciding to move out, Jones returned to the house, approximately an hour later, and picked up the clothes. Laura again came to the top of the stairway, whereupon Jones left and never saw her again.

Testifying in his behalf were a number of character witnesses who established that he enjoyed a good reputation. He also presented testimony of others who saw scratches on him.

First doctor to see Laura after her admission into the hospital on November 9, 1980, was Dr. Eugene Wood, who stated that she was comatose and “her eyes were swollen; her face was bruised; she had markings on the upper neck in the subman-dibular area. She had blood — dried blood in her right ear.” Brain scans were done on Laura, as shown from the following excerpted from Dr. Woods’ testimony,

Q And what type of brain injury did the brain scan show?
A The brain scan showed an enlargement of the ventricles and some loss or widening of what is call (sic) convolutions of the brain, which usually indicates brain injury and brain — I don’t like the word used, brain death — but say brain injury anyway. Something similar that you would see in boxers’ brains sometimes when they’ve had repeated trauma.
Q Her brain had some things consistent with what you see in a boxer—
A Trauma, yes. They felt it was consistent with an electroencephalogram showed consistent with anoxia or loss of oxygen to the brain.

After her death, Laura’s body was autopsied by Dr. Rodrigo Galvez, from whose testimony the following is excerpted:

Q As a result of this autopsy, were you able to determine to a reasonable medical certainty what the cause of death was?
A Yes, sir. Her brain — her brain show (sic) many areas of necrosis — what we call necrosis is many dead parts of the brain. Okay? Those — those changes of the necrosis in the brain took place sometime before. I couldn’t tell you exactly how long, whether it was three months or a year because beyond three months, it’s very difficult to tell the exact time of necrosis. Now—
Q Now, Dr. Galvez, necrosis could also be defined in layman’s terms as at least partial brain death, can it not?
A Yes. That’s what the laymen call brain death or brain necrosis. Okay?
Q Now, from your autopsy, were you able to determine again to a reasonable medical certainty as to what caused the brain necrosis?
A Yes, sir. She had also evidence of bilateral subdural bleeding long time before. That was caused by a blunt trauma in perhaps more than one, but at least one blow to the head — one blow to the head. As a result of the bleeding inside the head, she stopped breathing. When she stopped breathing, a part of the brain died. When part of the brain died, she couldn’t feel or eat or talk or move like other human beings and she had to be fed by tube. A tube was put through the mouth down to the stomach so she could be fed by tube. And the final event in the life of the woman was gastric bleeding, what we call a hemorrhagic gastritis. Okay? Hemorrhagic gastritis. And that’s what caused the death of this woman.

Pictures in the record show that the house after the altercation between the defendant and Laura was in great disarray with items scattered all about. Testimony showed that Laura, the deceased, was a small woman: 5 ft. 1 in. in height and 107 pounds in weight. Testimony further established that 4 telephones were in the house and all of them were either pulled out or cut loose and inoperable. When Rebecca found her mother, she was dressed in a slip, robe and white nursing stockings (she was a nurse by profession), with her nurse’s uniform in a corner. Scattered about on the floor were buttons from her nurse’s uniform.

Other testimony established that there was considerable ill-feelings between the defendant and Laura’s former husband. Further the testimony established that Laura's two grown daughters by her prior marriage did not have any congeniality or friendly attitudes toward the defendant.

All of this evidence went to the jury and the jury concluded that the defendant’s version of slapping Laura in self-defense was not plausible or acceptable to them. Instead of finding him guilty of murder, the jurors found the defendant guilty of the lesser included offense of manslaughter, and we cannot say that the jury verdict was unsupported by the evidence. The evidence which went to the jury, together with reasonable inferences which the jurors were entitled to draw from the testimony, including the defendant’s testimony that he slapped Laura with his hand some five or six times, established his guilt of manslaughter and we find no reversible error.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.