author: MORIAL, Judge.

text:
    In the Interest of Tina Marie GRAS.
    No. 7009.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.

      Abbott J. Reeves, Metairie, for plaintiff-appellee.
    Robert Glass, New Orleans, for respondent-appellant.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This matter previously was before this court (La.App., 320 So.2d 578) and remanded to us by the Supreme Court (La., 323 So.2d 473).

The sole issue for our determination on remand is whether LSA-R.S. 13:1569, subd. 15(b), (c), and (d) and LSA-R.S. 13:1570, subd. A(3) are constitutional.

Appellant attacks the statutes on three grounds:

1. LSA-R.S. 13:1569, subd. 15(b), (c), and (d) on their face violate the due process clause of the 14th Amendment to the United States Constitution because they are vague and over-broad.
2. The provisions of LSA-R.S. 13:1569, subd. 15(b), (c), and (d) punish a status rather than specific acts in violation of the 8th Amendment to the United States Constitution.
3. Adjudication pursuant to LSA-R.S. 13:1569, subd. 15(b), (c), and (d) and LSA-R.S. 13:1570, subd. A(3) constitutes a restraint of the child’s liberty for non-criminal behavior without a legitimate state purpose.

The language of LSA-R.S. 13:1569, subd. 15(b), (c), and (d), is not vague on its face as to deny a “child in need of supervision” (CINS) due process of law. A reading of the statute clearly indicates the intent of the legislature is to provide for judicial supervision of a certain class of children who are engaging in conduct which is detrimental to their development and well-being in lieu of affixing the stigma of delinquence on such children upon adjudication. Where there is an allegation of a violation of section (b) or (c), the court must also consider section (d) which contains a mandatory prerequisite second element for a CINS adjudication. Inherent in LSA-R.S. 13:1569, subd. 15(b), (c), and (d) is the requirement for an adjudicatory hearing to determine judicially if the elements of either (a) or (b) are present and that the child is “in need of care or rehabilitation.” Appellant’s fear that a child who engages in normal adolescent misbehavior or trivial juvenile conduct will be adjudicated a CINS arbitrarily is without merit. That danger is eliminated by the requirement of LSA-R.S. 13:1569, subd. 15(d). See A. v. City of New York, 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432 and In re S, 10 Cal.App.3d 944, 89 Cal.Rptr. 685.

A detailed listing of every type of behavior falling within the purview of “child in need of supervision” is unrealistic. A cursory attempt to define all types of behavior injurious to a child with mathematical precision makes the reason for granting Broad and general jurisdiction obvious. The state’s interests in protecting the physical, moral or mental well-being of children under seventeen years of age is at the heart of the juvenile act. See La.Const.1921, Art. 7, § 52; La.Const.1974, Art. 14, § 16(A); LSA-R.S. 13:1580.

We are of the opinion that an adolescent child is capable of discerning conduct on his part which is contrary to the reasonable demands of his parent or guardian. Further, at the statutorily mandated inquiry the child becomes aware of his conduct which will result in further court action, i. e., an informal adjustment or the filing of a petition. See LSA-R.S. 13:1574.

The contention of appellant that the statute prevents a child from adequately preparing a defense is without merit. LSA-R.S. 13:1574 requires a specific pleading of the facts which bring the child within the purview of the provisions of Chapter 6 of the Revised Statutes. Additional procedural due process safeguards are provided by LSA-R.S. 13:1574 and 1575.

Appellant relies heavily on Gesicki v. Oswald, 336 F.Supp. 371, aff’d, 406 U.S. 913, 92 S.Ct. 1773, 32 L.Ed.2d 113 (1972), in which a portion of the New York Wayward Minor Act (N.Y.Code of Crim.Pro. § 913(a)-(dd)) was held unconstitutional on the ground of vagueness. However, in Gesicki the court clearly distinguished between the penal nature of the Wayward Minor Act and the state’s statutory scheme for treatment of juvenile offenders. The Wayward Minor Act, which was contained in the New York Code of Criminal Procedure, provided for trials of juveniles in the courts of general criminal jurisdiction, and permitted placement of minors in adult correctional facilities. The court was concerned with the probability that these children would not be treated substantially different from adult criminals. Gesicki is not persuasive in the interpretation of our statutory scheme for the treatment of juveniles.

Appellant’s argument that a “child in need of supervision” may be punished for constitutionally protected behavior is less than persuasive and unrealistic. A CINS child is not being adjudicated a criminal and placed in a facility as a punitive measure. See In re Parker, 118 La. 471, 43 So. 54 (1907). The object of the CINS statute is to provide rehabilitation and treatment for juveniles who engage in the sort of conduct therein proscribed. Although marginal cases could be placed where doubts might arise that is no basis to strike down the statute for vagueness. See United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989.

We do not find that LSA-R.S. 13:1569, subd. 15(b), (c), and (d) punish a status which does not involve any specific acts on the part of the child. The statute requires a finding by the court that the child in question is engaging in the type of conduct proscribed by the statute.

Tina Marie Gras ran away six times and violated the provisions of her probation agreement. On the basis of those actions, the court found it necessary to classify Tina as a “child in need of supervision” and to place her in a closed setting.

This court is cognizant of the difficulties experienced in the adolescent years. However, we agree with the judge of the juvenile court that Tina Marie needed some form of control and discipline in her life. A child who is having a particularly difficult time in adjusting during the difficult adolescent period is more than likely to benefit from a state program when his parents or guardians can no longer provide him with the necessary guidance and supervision.

We find that the placement by the juvenile court of CINS children in approved facilities with' qualified staffs is a valid exercise of parens patriae and serves a legitimate state purpose. Under the theory of parens patriae, the state is responsible for the welfare of its children. In the case of CINS the state is attempting to provide these children with the treatment, guidance, and care which under normal circumstances is provided in the home. The proceedings in the instant case illustrate the concerted effort of the juvenile court and its probation office to act in the best interest of the child by providing her with an environment best suited to meet her adolescent behavior problems.

We agree that a child adjudicated a CINS should not be placed in custody with children who have been adjudicated delinquents. Nevertheless, such placement, which is alleged to be a constitutional violation, is not a defect in the statute; it is a potential defect in the state’s performance of its custodial function following a disposi-tional order. The placement does not invalidate the statutory provision which authorized the CINS adjudication preceding placement. See Vann v. Scott, 7 Cir., 467 F.2d 1235. Furthermore, appellant was not committed to the Department of Corrections following her CINS adjudication. She was committed to the Department of Corrections at a dispositional hearing following her adjudication as a delinquent. See LSA-R.S. 13:1580(2). This adjudication was based upon her admission to the charges in a petition alleging her to be a delinquent by virtue of the extreme violation of the terms of her probation placement.

For the foregoing reasons the judgment of the Juvenile Court for the Parish of Jefferson is affirmed.

AFFIRMED.

      . LSA-R.S. 13:1569 in pertinent part provides:

      “15. ‘Child in need of supervision’ means a child who:

      “b. habitually disobeys the reasonable and lawful demands of his parents, tutor, or other custodian, and is ungovernable and beyond their control; or
      “c. has committed an offense not classified as criminal or one applicable only to children; and
      “d. in any of the foregoing, is in need of care or rehabilitation.”

      . LSA-R.S. 13:1570 in pertinent part provides:
      “Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
      “A. Concerning any child whose domicile is within the parish or who is found within the parish:
      * * * * * *
      “(3) Who absents himself from home or usual place of abode without the consent of his parent or other custodian or who is habitually disobedient or beyond the control of his parent or other custodian.”

      . LSA-R.S. 13:1569(18) states: “ ‘Adjudicatory hearing’ means a hearing to determine whether the allegations of a petition under this chapter are supported by the standard of proof applicable to that case or class of case.”


source: Caselaw Access Project

author: REDMANN, Judge. SAMUEL, Judge

license: Public Domain

text:
    Mrs. Orelia Moten THOMAS et al. v. Honorable William H. STEWART, M. D., et al.
    No. 7209.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Rehearing Denied Oct. 13, 1976.

      Revius O. Ortique, Jr., New Orleans, for plaintiffs-appellants.
    James P. Screen, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN, GULOT-TA, STOULIG and BEER, JJ.
   REDMANN, Judge.

This is another case of alteration of vital statistic records by a former Orleans registrar whose zeal for correctness of her records at times overcame her reason, and whose medicines were therefore at times worse than the ills she sought to cure.

Years after the births of the six plaintiff children, the registrar substituted'for their long-standing birth records new certificates deleting their father’s name (leaving that space blank) and changing their own surnames from that of their father to that of their mother. This the registrar did on no other evidence than an unsworn statement of plaintiff mother (obtained under perhaps threatening circumstances) that the mother had never married — an incorrect statement, the mother testified at trial.

That unsworn statement does contradict the original records’ recital that the children are legitimate. But legitimacy is not here at issue. That part of the birth record which is photocopied for the usual “birth certificate” does not include this information, or certain other items, such as birth weight. Thus our ordering restoration of the original birth certificates, so as to restore the recitals of paternity and surname, does not constitute a determination of legitimacy.

Plaintiffs appeal from the trial court’s refusal to order restoration of the original certificates. We reverse and so order.

The statute prohibits any alteration “except upon submission of sufficient documentary or sworn evidence . . . .” R.S. 40:266.

The registrar had no documentary evidence and no sworn evidence.

Even on the non-documentary and unsworn evidence the registrar had no basis to dispute, much less to delete, the original certificates’ declaration that James Thomas was plaintiff children’s father. Those declarations are in no way contradicted by the mother’s unsworn statement that she had never married. Only if the mother gave a sworn statement (or preferably, documentary evidence) that she was married to another at the children’s conception could the registrar arguably make a change in the father’s name (not a deletion, since R.S. 40:244(8) requires the certificate to contain the full name of the father). Only in that case would the registrar be called on to resolve the conflict between biological paternity and the legal paternity which C.C. 184 ascribes to the mother’s husband.

Nor, similarly, did the registrar have any basis for changing the children’s surnames. There is no Louisiana law denying to children their father’s surname, except, possibly, C.C. 184.

The judgment is reversed and defendants are ordered to restore to plaintiffs their original birth certificates. All costs are to be paid by defendants insofar as legally chargeable.

SAMUEL, J., dissents with written reasons to follow.

SAMUEL, Judge

(dissenting).

It might appear from the opening paragraph of the majority opinion and that opinion’s almost total disregard of the sworn testimony given during the trial that the former registrar of vital statistics, rather than the issue involved, is on trial in this proceeding. I find it necessary to state the facts shown by the record.

Relators, Orelia Moten, individually and on behalf of her minor children, Gary Wilton Moten and Wesley Randolph Moten, and her major children, Olga Juan Moten, Lois Leander Moten, James Ronald Moten and Gail Patricia Moten, filed this suit against William H. Stewart, M. D., executive director of Louisiana Health, Rehabilitation and Human Resources Administration, seeking a writ of mandamus compelling the defendant to change the present birth certificates of the six children so as to show James Thomas as their father and their surnames as Thomas instead of Moten, the latter being the maiden surname of the relator-mother. All of the relators live in New Orleans where all of the children were born.

Following trial, there was judgment in favor of the defendant, dismissing the suit. Relators have appealed.

The record reveals Orelia Moten lived with the late James Thomas, the alleged father of the children, for a number of years without being married to him and she testified the children were born as a result of that cohabitation. Each of the original birth certificates contained the surname Thomas because the mother, using the name Orelia Thomas, had stated the father’s name was James Thomas and, apparently, that the children were legitimate. The eldest of the six children was born May 19, 1947; the youngest was born June 17, 1956.

On May 25, 1964, Orelia Moten appeared at the office of the then registrar of vital statistics for the Parish of Orleans in response to notice from that office, apparently sent for the purpose of obtaining information relative to her application for a certified copy of the birth certificate of one of the children. There she executed an office form substantially stating she had never been legally married at any time, and, particularly, that she and James Thomas were never married to each other. On the strength of this acknowledgment the registrar changed the birth certificates of the children so that their surnames appeared thereon as Moten instead of Thomas and the spaces provided for the father’s name and information regarding the father were left blank.

The trial court allowed relators to proffer baptismal certificates on which the name James Thomas was entered as the father of the children. Although it was alleged in the proffer Thomas was present at the time of each baptism, those certificates were not signed by him and it is admitted Thomas and Orelia Moten were never married to each other. Moreover, Thomas did not legitimate the children in accordance with our codal and statutory law. Relators also entered into evidence documents executed by Thomas authorizing Charity Hospital to accept the mother for childbirth.

Relators contend the changes in the birth certificates were made without proper authority and constitute a deprivation of their liberty and property without due process of law. Defendant relies on the statutory provisions which have been judicially interpreted as authority for the alteration of birth certificates upon the presentation of acceptable evidence.

The authority for the alteration of birth and death certificates and the evidence necessary to justify such alterations in the City of New Orleans is R.S. 40:266, which now reads:

“No certificate or record on file in the local registrar’s office shall be altered except upon submission of sufficient documentary or sworn evidence acceptable as a basis of the alteration.” LSA-R.S. 40:266.

The jurisprudence has recognized the constitutionality of this statute insofar as due process is concerned. In State v. City of New Orleans, the constitutionality was upheld against an argument of denial of due process of law under both state and federal constitutions, even though the statute did not provide for prior notice or hearing or for an appeal, since the remedy of mandamus was available to have the records corrected “in accordance with the true facts.” The importance of having public records which reflect the true facts in the area of births and deaths is obvious and, as the courts have recognized, the paramount pub-lie interest is to have birth and death records correct in substance.

The history of R.S. 40:266 shows the legislature clearly intended the integrity of public records in the area of births and deaths be maintained administratively and not judicially. As originally enacted by Act 257 of 1918 the statute specifically provided no certificate of birth or death “shall be altered or changed in any respect otherwise than by judgment of court of competent jurisdiction. * * *” The statute was amended by Act 181 of 1942 to eliminate the necessity of judicial proceedings to effect alteration of such records. As thus amended the statute stated no birth or death certificate may be altered or changed “except upon submission of sufficient documentary and/or, sworn evidence acceptable as a basis of such change or alteration.” The statute again was amended in 1950 to remove surplus verbiage, but it otherwise remains unchanged from the 1942 amendment in its substantive provisions.

By maintaining the right of the state to alter birth and death records administratively, both State v. City of New Orleans cases recognized the intent of the legislature to remove from the courts the burden of guarding the correctness of these records. The impracticability of requiring notice and a hearing was specifically recognized in one of those opinions, in which the court said:

“The complete impracticability of requiring notice and a hearing in such cases is made apparent by the facts which are found here where it is shown that almost innumerable persons will be affected. What members of the family must be notified? What members must be present at a hearing? After the second or third generation innumerable children, grandchildren and great grandchildren may be interested. It would be completely impracticable to hold that a correction could not be made in the public record unless a notice and opportunity to be heard had been given to each person who, as a blood decedent, might be interested in the matter.”

However, as in the instant case, judicial review by mandamus was recognized as an alternative for those with a legitimate right to have the records altered to reflect the true facts. Thus, the rights involved in this case are governed by Act 181 of 1942 and Act 237 of 1950, now R.S. 40:266, and the evidence must be reviewed in the context of these acts and the jurisprudence interpretive thereof.

Orelia Moten acknowledged over her signature on the registrar’s office form that she was never married to Thomas. Assuming arguendo, as strongly implied in the majority opinion and only for the purpose of this dissent, the action of the registrar in some way denied relators’ right to due process by not affording prior notice of the purpose for which the relator-mother' was contacted, such denial was rendered moot by the fact that she testified upon judicial review to the truth of the identical facts she gave to the registrar. If she had been tricked, intimidated, or otherwise abused by the registrar into stating an untruth to her prejudice or to the prejudice of the other relators, their right to mandamus clearly afforded more than ample time and opportunity to discover the true facts and to so testify with the benefit of able counsel to assist her. Nevertheless, her sworn testimony only reinforced her statements to the registrar.

At the trial Orelia Moten not only testified she was never married to Thomas and that he never acknowledged or legitimated the children; she also testified that before she began to live with Thomas and before the children were conceived, she was legally married to a man named Jones in Poncha-toula, during which marriage she bore two children. She also testified she had not seen Jones since 1937.

The only evidence relative to a termination of the marriage between Orelia Moten and Jones is the testimony of Orelia Moten herself. She did not testify she and Jones had been divorced. She did testify Jones had died before the eldest child in suit was born. However, that testimony was only unacceptable hearsay. She admitted she knew of Jones’ death solely as a result of being so informed by his son, who lived in Gretna (immediately adjacent to the City of New Orleans), and she gave neither the time the information was given to her nor the time or place of the asserted death. The failure to produce Jones’ death certificate, particularly in view of the fact that information necessary to obtaining the same was readily available from Jones’ son, could be indicative of one of two facts, either Jones was not dead or he had died subsequent to the conceptions of the children in suit. Thus, the record contains no acceptable evidence showing the marriage between Jones and Orelia Moten was ever terminated.

What has been described in the jurisprudence as “the strongest presumption known in law” is found in Civil Code Article 184, which provides:

“The law considers the husband of the mother as the father of all children conceived during the marriage.”

Under our jurisprudence only the husband can contest paternity, and then only within narrow limitations; the courts consistently have disregarded the mother’s declaration that the father of her child is someone other than her husband.

In a mandamus proceeding to change an official public record, it is incumbent upon the relator to show that the record is incorrect and that the change sought is correct. Here the relators have failed to carry that burden. As the record contains no acceptable proof of a termination of the marriage between Orelia Moten and Jones, the father of the children in this suit must be presumed to be Jones, who, insofar as is shown by this record, was the husband of the mother at the time of their conception. To grant their request to change the birth certificates to show James Thomas as their father and Thomas as their surname would result in the certificates stating facts which, on the record before us, are not legally true. It is inconceivable to me that the strong presumption of Jones’ paternity can be ignored or that, upon the proof offered by relators, the birth records correctly can reflect anything to the contrary.

It is the truth of the information contained in the vital statistics records which is the issue before this court. Assuming ar-guendo that the unsworn statement of the mother of the children, that she had never been legally married, was not documentary or sworn evidence sufficient under R.S. 40:266, we are still faced with the sworn testimony of Orelia Moten, testimony which clearly and unequivocally asserts she had never been legally married to Thomas and that she had been legally married to Jones. The trial court could not, and this court should not, ignore such sworn testimony. Nor should either court ignore the fact that, insofar as is shown by this record, the legal marriage to Jones had not been terminated when the children in suit were conceived.

Accordingly, being of the opinion the judgment appealed from should be affirmed, I respectfully dissent.

      . On the document the mother signed is the notation: “Birth records of first six children to be returned, false record. If not returned by June 8, 1964, case to be turned over to Dist. Atty.”

      . The majority opinion states “Even on the non-documentary and unsworn evidence the registrar had no basis to dispute, much less to delete, the original certificates’ declaration that James Thomas was plaintiff children’s father.” The testimony of the mother at the trial is given no consideration in this regard.

      . See Civil Code Article 200 and Revised Statute 9:391.

      . State v. City of New Orleans, La.App., 94 So.2d 108; see R.S. 40:265 and 40:266; see also R.S. 40:322 and 40:323, which applied to the remainder of the state.

      . See State v. City of New Orleans, supra, footnote 3; State v. City of New Orleans, La.App., 78 So.2d 855.

      . Supra, footnote 3.

      . 94 So.2d 108, at 113.

      . State v. Louisiana State Board of Health, La.App., 54 So.2d 343. This case involved the State Board of Health but arose out of the City of New Orleans and was decided on an appeal from the Civil District Court for the Parish of Orleans.

      . Act 237 of 1950.

      . See footnotes 3 and 4, supra.

      . State v. City of New Orleans, La.App., 94 So.2d 108, at 113.

      . See Feazel v. Feazel, 222 La. 113, 62 So.2d 119.

      . Feazel v. Feazel, supra, footnote 11; Beard v. Vincent, 174 La. 869, 141 So. 862; Dejol v. Johnson, 12 La.Ann. 853; Succession of Barlow, La.App., 197 So.2d 682; see Case Note, Persons-Presumption of Paternity Under Louisiana Civil Code Article 184, 16 Loyola L. Rev. 235.


text:
    Felipe HERRERA et al. v. SOUTHERN SCRAP CO., et al.
    No. 7461.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Rehearing Denied Oct. 13, 1976.
    John J. Cummings, III, Gregory F. Gam-bel, David Kattan, New Orleans, for plaintiffs-appellants.
    Christovich & Kearney, Lawrence J. Ernst, New Orleans, for defendants-appel-lees.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   MORIAL, Judge.

On August 6, 1973 at approximately 6:30 A.M., plaintiffs, Felipe, Maria and Jose Herrera, were involved in a vehicular collision with a truck owned by defendant, Southern Scrap Company, at the intersection of Gentilly and DeSaix Boulevards in the City of New Orleans. At the time of the accident, the Herrera vehicle was being driven in a southerly direction on Gentilly Boulevard by Jose Herrera while the defendant vehicle was being driven in an easterly direction on DeSaix Boulevard by L. B. Joseph Boudreaux, an employee of Southern Scrap Company. As both vehicles approached this extremely complex intersection involving multiple roadways and multiple traffic lights, the accident occurred which resulted in plaintiffs suffering serious personal injury and property damage. Both parties claimed to have the right of way at the time of the accident.

As a result of the accident, plaintiffs sued Southern Scrap Company and its insurer, Continental Insurance Company. After trial on the merits, the district court, with written reasons, rendered judgment in favor of defendants and against plaintiffs, dismissing plaintiffs’ suit at their cost. Plaintiffs appeal alleging the trial court judgment to be against the weight of the evidence. We affirm.

At the trial, Felipe and Maria Herrera testified that prior to the accident they had been stopped at a red light on Gentilly Boulevard and when the light changed their vehicle started forward and was immediately struck on the right side by defendant vehicle which had run the red light on De-Saix Boulevard. Plaintiff-driver, Jose Herrera, did not testify due to an illness, but the Herreras’ testimony was corroborated by two eyewitnesses to the accident. These witnesses, who were at the time of the accident each standing at different bus stops in and around the intersection, testified that from their vantage points it appeared the Herrera vehicle had the green light.

Two witnesses testified in support of defendants’ claim that its vehicle possessed the right of way. Defendants’ driver, Mr. Boudreaux, testified that he saw a green light facing him about 300 feet from the intersection and that at this time he also observed two vehicles stopped in obedience to the red traffic signal on Gentilly Boulevard. He stated he slowed slightly as he proceeded and as he entered the intersection the Herrera vehicle, which had not been one of the two vehicles previously stopped at the light, ran the light and the accident occurred. Boudreaux’s testimony was essentially corroborated by the testimony of Bruce Betzer, a driver of one of the two vehicles stopped at the intersection. Although Mr. Betzer was somewhat confused as to which vehicle had been traveling on which street, he was unequivocal in stating that the vehicle on Gentilly Boulevard had failed to obey the traffic signal and that the DeSaix Boulevard vehicle had the right of way.

After listening to all the witnesses, the trial judge concluded “that the accident most likely happened as described by the defendant driver, Boudreaux” and, therefore, dismissed plaintiffs’ suit. The trial judge was obviously impressed by defendants’ witnesses and believed that the evidence preponderated in favor of their version of the accident even though two eyewitnesses testified the Herrera vehicle had the green light. After our careful review of the record in light of the principle that determinations of credibility of witnesses are within the province of the trial judge, we cannot say that his conclusion is manifestly erroneous.

The judgment of the district court is affirmed.

AFFIRMED.

      . The trial judge noted in his “Reasons for Judgment” that one witness testified the intersection contained 22 traffic signals.


author: REDMANN, Judge.

text:
    Wilda MELANCON v. Bill JUNO d/b/a Bill’s Truck Stop and Trailer Service.
    No. 7506.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Rehearing Denied Oct. 13, 1976.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.

      Jules A. Carville, III, Carville & Edring-ton, La Place, for defendant-appellee.
    Máchale A. Miller, Montgomery, Barnett, Brown & Read, New Orleans, for third-party defendant.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of her claim for $4,000 damages from moving her house trailer. We reverse and award $448.

Defendant mover testified that plaintiff agreed he would not be responsible when she insisted on moving the trailer despite the wetness of the land from which and to which it was to be moved. Defendant’s tow-truck promptly bogged down in soft mud, while plaintiff’s attached trailer was still on the street, and a third party (made third-party defendant but not brought before us on this appeal) was called to assist. When the trailer also bogged down despite the third party’s efforts to move it with a winch, defendant left the job, disclaiming further responsibility. Plaintiff employed others to complete the job.

The bulk of the damages claimed were done after defendant left. The only damage prior to his leaving was to two axles and to one rear panel, and this damage occurred when the third party was using his winch. Defendant helped in the winch operation, but says the third party was the person who supposedly knew about winch operations and who directed the operation. The third party testified that defendant directed the operation.

The trial judge concluded that plaintiff “failed to prove by a preponderance of the evidence that these defendants (sic) caused in fact the damage complained of.” This conclusion is amply supported by the evidence as to most of the damages claimed, which may have been done by a fork-lift whose brief presence is unexplained; but we deem the trial judge’s conclusion erroneous as to the axles and the one rear panel.

Everyone agrees that the axle and rear panel damage was done prior to defendant’s quitting the job; and that it was done by the third party’s winch while being used by these two persons together. Each of these two blames the other, but the overall circumstances show that they acted in concert — even after the first axle broke — and defendant cannot exculpate himself on the theory that he was following instructions of the third party.

We must reject defendant’s argument that, in effect, plaintiff agreed he would not be responsible for any damages. An agreement to relieve one from liability for his malperformance of a contract is in substance comparable to an agreement to indemnify one against one’s own negligence. Such an indemnity must be “expressed in unequivocal terms,” Green v. Taca Int’l. Airlines, La.1974, 304 So.2d 357, 361. Defendant’s testimony does not assert any express and unequivocal stipulation that he would not be liable for his own malperformance.

We will therefore award to plaintiff, consistent with the repairman’s estimates, $400 for replacing the axles and $48 for replacing the one rear panel. The temporary repairs to the axles, the removal of the trailer from the mire and the leveling of the deep ruts caused were all done by the same third party who assisted in causing those damages. His unpaid bills to plaintiff are not collectible from her, and we therefore need not award their amount to her.

The other damages to the trailer may well have resulted from some third party’s bungling efforts to complete the moving contract which defendant had obliged himself to perform. His pre-con-tract insistence that he would not be “responsible” due to the wetness might have constituted an agreement that he could withdraw from the contract in case of a bog-down. But assuming he had no right to withdraw and therefore breached his contract, his liability would only extend to “the damages . . . sustained by his default,” C.C. 1930, i. e., the reasonable cost of completing the contract in excess of the original contract price. The damages caused by successor contractors’ bungling (whether by misusing a fork-lift or not) were not “sustained by” reason of the original contractor’s default.

We also reject plaintiff’s argument that defendant is liable for all damages as a depositary under C.C. 2937. If he ever was a depositary, defendant was no longer, once he left the job and plaintiff employed a third party to complete it.

Finally, we reject plaintiff’s argument that trial should have been reopened after submission in order to allow testimony about the fork-lift. There was ample pretrial time for plaintiff to have developed this aspect of her case. We find no abuse of the trial court’s discretion.

Reversed; judgment for plaintiff against William Juneau for $448 with legal interest from judicial demand and all costs.


text:
    CARTE BLANCHE PLUMBING AND HEATING REPAIR SERVICE, INC. v. Arnold VAN HAELER.
    No. 7577.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Roy S. Lilley, Lea, Lilley & Brainis, Me-tairie, for plaintiff-appellee.
    Michael H. Bagot, John H. Gniady, New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

On defendant’s appeal from a $775 default judgment for an alleged open account balance, we annul for lack of proof and remand.

C.C.P. 4896 (applicable in this Parish Court, R.S. 13:2561.10, and in cases over $100, C.C.P. 5002) provides that “prima fa-cie proof may be submitted by affidavit” in taking a default judgment for a sum due on a conventional obligation.

Our affidavit, however, does not refer at all to the account filed with the petition, and says nothing of substance except that “the amount owed to plaintiff by defendant is $775.” This is only a conclusion, drawn from facts not recited, and it would not suffice as testimony to support a default judgment; Kentgen & Co. v. Jordan, 1860, 15 La.Ann. 219. The affidavit is therefore insufficient in substance.

The affidavit is also insufficient in form. Affiant recites, again, only a conclusion, that he is “familiar and well acquainted with the account”; no facts establish this conclusion. Affiant is identified only as attorney for plaintiff — -a capacity in which one’s knowledge of plaintiff’s claims is usually hearsay; see Buffalo Specialty Co. v. G. Pitard’s Sons, La.App.1917, 14 Orl.App. 395 (in which the attorney’s affidavit was the then customary verification “to the best of his knowledge and belief”). Hearsay, unless admissible by some exception to the exclusionary rule, will not suffice to support a default judgment; Board of Com’rs of Port of N.O. v. McGrath, La.App.1973, 274 So.2d 749; Verrette v. Saltzman & Gordon Welding Svc. Inc., La.App. 1971, 248 So.2d 876. C.C.P. 4896 (compare C.C.P. 1702) might grant an exception to the hearsay rule by impliedly authorizing, e. g., the bookkeeper to give hearsay evidence on an account; his books’ entries are presumably made from information supplied by sales clerks and cashiers. But art. 4896 does not purport to authorize the double hearsay of the lawyer’s saying what the bookkeeper says the clerks say. See McCormick, Evidence (2d ed. 1972), § 310.

Annulled at plaintiff’s cost; remanded.

      . We disagree with the reasoning of Merchants Adjustment Bur. v. Chriss, La.App., 2 Cir. 1958, 106 So.2d 797. Chriss, without adverting to the problem of a balance’s being a conclusion (from addition and subtraction of the specific charges and payments), rejected the trial judge’s distinction between an affidavit of correctness of the balance of an account and one of correctness of the account. The court of appeal, 106 So.2d 799, asserted “[i]f the balance of an account is established it is clear that any error in itemization would be immaterial.” This view ignores that the balance is the result, rather than the source, of the itemized charges and payments making up the account.


author: SAMUEL, Judge.

text:
    Abraham J. ADAMS, Jr. v. AVONDALE SHIPYARDS, INC.
    No. 7733.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Rehearing Denied Oct. 13, 1976.

      Kronlage, Dittmann & Caswell, Albert S. Dittmann, Jr., New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Avondale Shipyards, Inc., seeking workmen’s compensation benefits for total and permanent disability which he asserts he incurred as a result of an accident on May 8, 1973 while employed by defendant at its shipyard in Jefferson Parish, Louisiana. Defendant answered, denying any further liability to plaintiff for workmen’s compensation benefits.

After a trial on the merits, there was judgment in favor of the defendant, dismissing plaintiff’s claim. Plaintiff has appealed.

The record reveals that on May 8, 1973 plaintiff was employed by defendant as a general laborer at its shipyard. He was working as a switchman at the time of the accident in suit. His duties involved coupling and uncoupling railroad cars, directing the operator of the locomotive, and throwing switches. As he was removing a chock from the wheel of a flatcar, a large piece of equipment fell from the car. Plaintiff claims his head and back were struck by the falling object and he was either knocked unconscious or was comatose from fright. In any event, he testified he heard a loud noise, the genesis of which he was unaware, and found himself lying on the ground a few minutes later. In addition to some injury to the back, he also sustained superficial injuries to his face and a minor injury to his right knee.

Immediately after the accident, he was brought to the first aid station maintained by defendant on its premises and then transported to West Jefferson General Hospital, where he remained for eleven days under the treatment of Dr. Howard A. Nelson, Jr., a general surgeon. Thereafter, he was seen at the Avondale first aid station by Dr. Francis Gidman, also a general surgeon, who examined him three times. Plaintiff was treated by Dr. Thomas S. Whitecloud, III, an orthopedist, from August 1, 1973 to October, 1974, during which interval he was hospitalized at Touro Infirmary at New Orleans. He was examined on four occasions by Dr. Walter Brent and on-three occasions by Dr. Arthur Kleinsch-midt, both orthopedic surgeons. He was seen on one occasion by Dr. Carl F. Culicc-hia, a neurosurgeon, on one occasion by Dr. Jay W. Seastrunk, a psychiatrist, and on one occasion by Dr. Robert A. McFarlain, a psychologist, who administered a Minnesota Multiphasic Personalty Inventory in order to determine the likelihood of successfully tolerating surgery.

Trial of the matter took place on three separate days over the course of a year. The record is quite large and the medical testimony is extensive. The issue presented arises from an apparent conflict between the testimony of Dr. Whitecloud and the testimony of the psychiatrist, Dr. Seas-trunk. The basic factual question for our determination is whether plaintiff has sustained compensable disabling injuries to his lower back as a result of the accident, or whether his inability to perform results from schizophrenia unconnected with the injury.

Dr. Nelson first saw plaintiff at West Jefferson General Hospital on the day of the accident. He examined plaintiff on admission and found abrasions of the back. Plaintiff claimed paralysis, but he was able to move all four extremities normally and there was no muscle weakness or neurologic deficit. In addition to the absence of objective findings of injury, plaintiff complained to Dr. Nelson of pain in a different area of his body each day. Dr. Nelson testified his migratory complaints were consistent with a diagnosis of schizophrenia. In addition he stated plaintiff appeared frightened and anxious over his injury and concluded he was suffering from an anxiety reaction in the hospital. At the time of plaintiff’s discharge, Dr. Nelson felt plaintiff was able to return to work.

Dr. Brent and Dr. Kleinschmidt are both orthopedic surgeons. Each examined plaintiff on several occasions, neither reached a finding of degenerative disc disease, neither found positive objective findings, and each concluded plaintiff was able to return to work. Particularly significant is Dr. Kleinschmidt’s comparison of x-rays taken at different times, from which he reached the conclusion there was no radiologic evidence of narrowing of the intervertebral disc space, thereby minimizing the possibility of plaintiff suffering from degenerative disc disease. This testimony largely contradicts that given by Dr. Whitecloud as to this particular finding.

Dr. Gidman found no objective signs of injury and advised plaintiff to return to work. In the examination of May 24,1973, he complained of discomfort in the anterior and posterior chest. On the straight leg raising test, plaintiff complained of pain in the neck and shoulders. Dr. Gidman testified his complaint was not consistent with a 45° elevation of the leg and further explained the straight leg raising test is not designed to elicit complaints in the neck or shoulders. On the basis of the disparity between plaintiff’s subjective complaints and objective test results, Dr. Gidman was of the opinion that plaintiff was not being truthful and also concluded plaintiff attempted to voluntarily limit his normal range of motion.

Dr. Culicchia, a neurosurgeon, examined plaintiff on June 20, 1974. His opinion was based upon the physical examination, a comparison of x-rays taken on June 1, 1973 and April 3, 1974, and the reports from the other physicians. He was of the opinion there was no neurologic disease or injury which accounted for plaintiff’s symptoms. While Dr. Culicchia indicated there was some narrowing between the fourth and fifth cervical vertebrae, the absence of change over a period of a year indicated no progressiveness of that disorder and that it is static. He was of the definite opinion that plaintiff did not have degenerative disc disease arising from the accident for the reason that there was no relationship between plaintiff’s symptoms and the anatomic change indicated by the x-rays. This conclusion was reached because plaintiff had no objective findings, the level of degenerative disc disease necessary to induce plaintiff’s symptoms was not consistent with the distribution of his symptoms, and there was no evidence of a progressive disorder consistent with a degenerative type disease. In short, he testified plaintiff had no neurologic disorders.

Dr. McFarlain, a psychologist at Tulane Medical School, evaluated plaintiff for the sole purpose of determining the probability of his successful recovery from surgery. He testified that the Minnesota Multiphasic Personality Inventory revealed plaintiff was abnormally high on that portion of the test indicating a propensity for hypochondria as well as that portion of the test indicating a propensity for hysteria. Dr. McFarlain did not investigate plaintiff’s condition in order to determine a mental disorder, and he consequently did not give a diagnosis on such disorder. Plaintiff did complain during the interview with him, however, of two hallucinations prior to the date of the accident in suit.

Plaintiff saw Dr. Seastrunk, a psychiatrist, at the request of the defendant. Dr. Seastrunk testified the patient’s complaints arose from a pre-existing condition known as schizophrenia. He testified schizophrenia results from a biochemical brain imbalance and cannot be affected by trauma. As a result, the schizophrenia was not affected or aggravated by the accident. He also testified that Triavil, a drug administered by Dr. Whitecloud, was the cause of plaintiff’s complaints of muscle problems in his hands, stiffness in the back of his neck and stiffness in his legs. He stated plaintiff’s inability to work is a direct result of his depression over his disability and was of the opinion that the accident sued upon was not a factor in plaintiff’s depression. Finally, he testified the pre-existing schizophrenic condition explains the patient’s subjective complaints and that, in the absence of objective physical findings, plaintiff should not be treated for any physical ailments.

Finally, plaintiff was seen for approximately fourteen months by Dr. Whitecloud, an orthopedist. On April 1, 1974, eleven months after the accident, he was hospitalized by this physician and placed in pelvic and cervical traction. During hospitalization, Dr. Whitecloud noted objective findings of muscle spasm in the area of the neck and lower back. Dr. Whitecloud’s opinion is that plaintiff had a degenerative disc condition which was aggravated by his accident of May 8, 1973. During the course of his treatment, Dr. Whitecloud did indicate a need for psychiatric or psychological help for plaintiff. He requested Dr. McFarlain to administer the personality test in order to determine plaintiff’s potential for a satisfactory result from surgery. All factors considered, Dr. Whitecloud concluded plaintiff would never be able to perform heavy labor again.

It is important to note Dr. Whitecloud’s original opinion was based upon x-ray examinations and the plaintiff’s stated symptoms. The doctor’s x-ray findings were contradicted substantially by the findings of Dr. Kleinschmidt with regard to the narrowing of the intervertebral disc space and the resulting evidence or lack of evidence for a conclusion of degenerative disc disease. On cross examination, Dr. Whitec-loud was questioned with regard to the effect a diagnosis of schizophrenia by a psychiatrist would have upon his diagnosis. He responded that if plaintiff were diagnosed as a schizophrenic, he could not say whether or not plaintiff had an orthopedic problem. He indicated a schizophrenic condition would require additional diagnosis, evaluation and tests before the existence or nonexistence of an orthopedic problem could be established.

The law on the point now before us is clear. The disability of the workmen’s compensation claimant is presumed to have resulted from an accident if prior thereto the injured person was in good health and subsequent thereto the symptoms of the disabling condition appear and continuously manifest themselves. This rule only applies when the medical evidence shows there is a reasonable possibility of causal connection between the accident and the disabling condition.

In the present case, the testimony of the psychiatrist establishes unequivocally that plaintiff’s condition is the result of his pre-existing schizophrenia and that this condition cannot be traumatically induced or aggravated. When asked what effect a psychiatrist’s diagnosis of schizophrenia would have on his diagnosis of plaintiff, the only physician who diagnosed a physical cause for plaintiff’s problems, Dr. Whitec-loud, was obliged to qualify his testimony by stating his original diagnosis would not hold firm in the face of schizophrenia without additional extensive tests to verify the existence of the physical condition by means not dependent upon the plaintiff’s recitation of his subjective symptoms. In short, the uncontradicted and unqualified testimony of the psychiatric expert shows there is no causal connection between the accident and plaintiff’s complaints. Considering the testimony as a whole, and especially in view of the fact that a plaintiff in a workmen’s compensation case, as in other civil cases, bears the burden of proof and is required to establish his claim to a legal certainty by a preponderance of the evidence, we agree that plaintiff’s suit must be dismissed.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Defendant has paid $1,511.84 for compensation disability benefits and $1,176.40 for medical benefits under the workmen’s compensation statute.

      . See, for example, Bourque v. Monte Christo Drilling Corporation, La.App., 221 So.2d 604.

      . Id.

      . See 19 A La.Dig. &wkey; # 1421.


author: DOMENGEAUX, Judge.

text:
    John S. ELLIS, Plaintiff-Appellee, v. Gilbert L. DOZIER and G. L. Dozier Development Corporation, Defendant-Appellant.
    No. 5649.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1976.
    Dozier, Keyser & Kirkpatrick by Thomas K. Kirkpatrick, Baton Rouge, for defendant-appellant.
    Richard M. Olsen, New Orleans, for plaintiff-appellee.
    Marcantel & Cassidy by Charles R. Cassi-dy, Jennings, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

ON MOTION TO DISMISS

The plaintiff-appellee, John S. Ellis, moves to dismiss the appeal of the defendant-appellant, G. L. Dozier Development Corporation, on the grounds that the defendant-appellant has failed to perfect its appeal by timely posting the required bond.

This is a suit for a money judgment for architectural fees. Formal judgment was signed and rendered on April 26, 1976, in favor of the plaintiff-appellee in the amount of $20,000.00, and on May 26, 1976, the defendant-appellant moved for, and obtained an order for a suspensive appeal.

The order of appeal set the suspensive appeal bond at $25,000.00. On the same day the defendant-appellant moved for its suspensive appeal, it filed a suspensive appeal bond in the amount of $20,000.00, which amount was $5,000.00 less than the amount set by the trial court in its appeal Order.

The record was lodged with this court on July 21, 1976, and on August 6, 1976, the plaintiff-appellee filed this Motion to Dismiss the defendant-appellant’s appeal. After the record had been lodged and the plaintiff-appellee had filed his Motion to Dismiss, the defendant-appellant filed on August 9, 1976, a motion to file and/or to remand the appeal in order to file, a new bond in the amount of $25,000.00.

The defendant-appellant has attached to its motion a letter from the trial judge in which the trial judge acknowledges receipt of a letter from the attorney for the defendant-appellant dated July 11, 1976, attached to which was a motion to file a new bond. The trial judge stated in his letter that he did not believe he had jurisdiction to receive a new bond and suggests that the attorney for the plaintiff-appellee contact the clerk of the appellate court.

We disagree with the trial judge. LSA-C.C.P. art. 2088 clearly provides that after an appeal has been perfected, jurisdiction remains in the trial court to “. consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126.”

LSA-C.C.P. art. 5123 declares that a party wishing to test the validity or sufficiency of an appeal bond shall rule into court the party furnishing the surety to show cause why the surety should not be ruled insufficient or invalid. LSA-C.C.P. art. 5124 prescribes in detail the manner and delay during which an appellant may furnish supplemental surety.

Applicable here is the decision of our learned brethren of the First Circuit in Arrow Construction Company, Inc. v. American Employers Insurance Company, 273 So.2d 582 (La.App. 1st Cir., 1973), where that court stated:

“. . . This is not an instance in which there was a total failure to file an appeal bond, or in which an appeal bond was untimely filed. Here a bond was timely filed. The contention made by Appellee herein addresses itself to the validity of the appeal bond, not the failure to post bond, or the untimely posting of bond. The question posed is whether the bond actually filed meets the requirements of law.”
* * * * * *
“Our jurisprudence is well established to the effect that an appeal will not be dismissed because the appeal bond is invalid or insufficient unless the validity or sufficiency of the bond is first contested in the trial court, and Appellant has been afforded opportunity to supply the insufficiency or cure the invalidity.” (Emphasis supplied).

See also: Pardue v. Pardue, 285 So.2d 552 (La.App. 1st Cir., 1973); Bertrand v. Home Indemnity Company, 202 So.2d 670 (La.App. 3rd Cir., 1967); Wilks v. Allstate Insurance Company, 191 So.2d 663 (La.App. 3rd Cir., 1966).

For the reasons herein set out, the motion to dismiss the suspensive appeal filed herein is denied. .

MOTION DENIED.


author: GUIDRY, Judge.

text:
    PILGRIM MANOR NURSING HOME, INC., Plaintiff-Appellee, v. Joseph GERACE, Administrator, Louisiana Department of Employment Security, et al., Defendants-Appellants.
    No. 5608.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.

      C. O. Brown, Alexandria, James A. McGraw, Baton Rouge, for defendants-appellants.
    Gravel, Roy & Burnes by Robert L. Roy-er, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This appeal is from a decision of the district court which in reversing a decision of the Board of Review of the Division of Employment Security, State of Louisiana, rejects the defendant’s, Mary Ann Battles, claim for unemployment compensation benefits. We reverse the trial court judgment and award unemployment compensation benefits.

Defendant, Mary Ann Battles, was employed by Pilgrim Manor Nursing Home, Inc., as a nurse’s aide on September 4, 1971. She continued in this employment until her discharge on March 25, 1975. Ms. Battles was discharged for alleged misconduct, i. e., sleeping on duty. Following her discharge Ms. Battles made application for unemployment compensation benefits.

Defendant’s claim for unemployment compensation benefits was initially granted by the Division of Employment Security on a finding that at the time of defendant’s discharge from her employment she was sleeping during a break and not having been allowed to explain her situation her discharge was not due to misconduct connected with her employment under LSA-R.S. 23:1601(2).

Plaintiff filed an appeal from this award and after a hearing before the Appeals Tribunal for the Department of Employment Security the referee made the following “Findings of Fact”:

“The claimant worked for the employer from September 4, 1971 to March 25, 1975, having last worked as a Nurse Aide. The claimant was working last on the 11:00 P.M. to 7:00 A.M. shift. The claimant was aware that she could be discharged automatically in the event that she was caught sleeping on the job. On March 25, 1975 at 1:50 A.M. the Director of Nursing Services arrived at the establishment to make a periodic check. As she walked past the Nursing Station she observed the claimant asleep and the claimant did not rouse. At 1:55 A.M. the Director of Nursing Services returned to the Nurse Desk and called the claimant once, then again, and shook the claimant. She then told her to wake up and go home and go to sleep. The claimant was not on a break at that time. When the Nurse Aides go on a break, they were to clock out and the claimant had not clocked out for a break. The claimant denied that she was asleep and she stated that she was just dozing. The claimant further asked if she were fired and it was answered in the affirmative by the Director of Nursing Services.”

The appeals referee expressed the following opinion:

“The claimant was discharged from her job for sleeping on the job after having been aware of the policy of the employer that an employee could be discharged automatically for sleeping on the job. It is found that the claimant was discharged for sleeping on the job which is a discharge for misconduct connected with her employment.”

On appeal by claimant to the Board of Review the Appeals Tribunal was reversed, the Board of Review finding that there was not sufficient evidence to substantiate the charge of misconduct. A comparison of the decision of the Board of Review with that of the Referee reveals no substantial conflict in the facts as found by each. The Referee determined that claimant was asleep as opposed to a finding by the Board that Ms. Battles had “dozed off”. The Referee determined that claimant was not on her break at the time she was asleep. The Board made no specific determination in this regard. In addition to the facts found by the Referee, however, the Board made further findings which appear to have prompted its decision that on the occasion in question claimant was not guilty of misconduct within the intendment of LSA — R.S. 23:1601(2). These further findings of fact which are uncontradicted and which we likewise find pertinent are as follows:

(1) Claimant had worked for plaintiff for some 3V2 years prior to her discharge.
(2) On the occasion in question claimant was called in on her day off to replace a nurse who had not shown up and for this reason she had not rested in preparation for the 11:00 P.M. to 7:00 A.M. shift.
(3) Although claimant did momentarily doze off she had not left her post at the nurses station.

The trial court in reversing the decision of the Board of Review gave no reasons for its judgment.

The scope of judicial review of a decision of the Board of Review is limited by LSA-R.S. 23:1634 which provides that findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the courts shall be confined to questions of law.

We do not disagree with the findings of fact as made by the Referee or the Board. Like the Board of Review, however, we consider pertinent the above summarized additional facts and determine that under all of the circumstances claimant was not guilty of misconduct sufficient to disqualify her from unemployment compensation benefits.

Misconduct under LSA-R.S. 23:1601(2) has been defined by the jurisprudence as an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; a disregard of the standards of behavior which the employer has the right to expect of his employee; or, negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer. Heard v. Doyal 259 So.2d 412 (La.App. 2nd Cir. 1972); Horns v. Brown 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoine’s Restaurant 217 So.2d 514 (La.App. 4th Cir. 1969); Rankin v. Doyal 223 So.2d 214 (La.App. 2nd Cir. 1972).

Considering the claimant’s term of service with the plaintiff and the fact that she was at her station working a late night shift on her day off in replacement of another nurse at the employer’s request, we conclude that the defendant’s action in dozing off while on duty did not constitute a deliberate violation of the employer’s rules nor did such action, under the circumstances, constitute a wanton, willful or negligent disregard of the employer’s interest.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that the Board of Review of the Division of Employment Security, Department of Labor, State of Louisiana, issue an order directing payment to defendant of the unemployment compensation benefits to which she is entitled under the Louisiana Employment Security Law. The plaintiff-employer is cast for all costs.

REVERSED AND RENDERED.


text:
    Keith L. BURSON, applying for adoption, Plaintiff-Appellee, v. Craig S. LASSEIGNE, Defendant-Appellant.
    No. 5611.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.

      Lippman, Hunter & Rawls by Dale P. Martin, Morgan City, for defendant-appellant.
    Haik & Broussard by C. E. Broussard, New Iberia, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellee, Keith L. Burson, instituted proceedings to adopt Eric Paul Lass-eigne, the minor child of his present spouse. Defendant-appellant, Craig S. Lasseigne, the child’s natural father, opposed the action. From a judgment granting the adoption and changing the name of the child to Eric Paul Burson, the defendant has appealed. We affirm.

The defendant and plaintiff’s wife were divorced on March 21, 1974, in St. Mary Parish, Louisiana, pursuant to a judgment rendered by the Sixteenth Judicial District Court. Custody of their child was awarded to the wife, and the defendant was ordered to pay the sum of $50.00 per month as support for the minor child.

In November of 1973, prior to the judgment of divorce, but subsequent to a judicial separation, defendant’s wife informed him that she and the child were leaving the country, apparently to join plaintiff who was then working for Petroleum Helicopters, Inc., in Portuguese West Africa. In their conversation defendant offered no objection to his wife’s leaving and taking the child with her. Defendant however did indicate his opinion that any transportation costs to send the child back for visits with him should be borne by his wife. The wife was of the opinion that the defendant should bear that cost. Defendant was not provided with an address where his wife and child could be reached in Africa.

In accordance with the judgment of March 21, 1974, ordering him to pay child support, defendant mailed one check to his former wife at her parents’ home with the instructions that it be delivered to the addressee only. Of course, the letter was returned. Defendant did attempt to make partial payment after this suit was filed, but plaintiff refused to accept it.

Plaintiff and the child’s mother were married on July 5, 1974, at Luwanda, Portuguese West Africa. Defendant admitted that he knew of the marriage, plaintiff’s identity, and the name of his employer. When asked why he failed to contact plaintiff’s employer in an effort to determine the overseas address of his child, defendant answered that he felt it was not his duty to take such action.

Defendant’s former mother-in-law had knowledge of her daughter’s mailing address in Africa. She readily divulged this information to defendant’s sister who corresponded on one occasion with plaintiff’s wife. Defendant testified that his former mother-in-law refused to provide him with the address when he requested it. However, the former mother-in-law denied that defendant ever contacted her concerning the address and stated that she would not have withheld that information from him. At any rate, the record is clear that defendant knew that his sister was in possession of an address where his child and former wife could be reached.

Plaintiff’s spouse and stepchild returned to Louisiana in November of 1974, and he joined them approximately three months thereafter. The family lived in Florida from January, 1975, until May of that year, after which time they moved to Lafayette, Louisiana, where they currently reside. The adoption proceedings were instituted on September 12, 1975, the petition alleging that consent of the natural father was unnecessary under the provisions of LSA-R.S. 9:422.1.

LSA-R.S. 9:422.1 provides:

“§ 422.1 Adoptions by step-parent, grandparent; consent
If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1)The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents. Added Acts 1958, No. 501, § 1, as amended Acts 1960, No. 268, § 1; Acts 1962, No. 106, § 1.”

In interpreting the above statute our courts have consistently held that a parent may fail to comply with a court order of support only if said failure is due to circumstances which are beyond his control. See In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963); In re LaFitte, 247 La. 856, 174 So.2d 804 (1965); Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir. 1974), writ refused, La., 296 So.2d 832; Adoption of Fouts, 254 So.2d 649 (La.App. 4th Cir. 1971); In re Merrill, 246 So.2d 207 (La.App. 1st Cir. 1971).

A parent ordered to pay child support is not relieved of that duty merely because his spouse has failed to provide him with the child’s address. Rather, he must make an attempt to determine the child’s whereabouts in an effort to comply with the support order. See In re Daigle, 232 So.2d 548 (La.App. 1st Cir. 1970).

In the instant case, defendant made no attempt to locate his child by contacting the employer of his former spouse’s new husband. Furthermore, he knew that his sister had the child’s address but made no effort to send the support payments to that location. Under the facts presented herein we cannot say that the trial judge erred in finding that the defendant’s failure to comply with the child support order was not caused by circumstances which were beyond his control. Of course, defendant’s attempt to pay, after more than a year had passed and litigation had commenced, has no effect on the decision reached herein. See In re LaFitte, supra; In re Salmon, 318 So.2d 897 (La.App. 2nd Cir. 1975).

Defendant also contends that the trial court erred in recognizing the child support judgment since a certified copy of same was not placed into evidence at the trial (a certified copy was attached to and made a part of the petition). However, in paragraph seven of his petition plaintiff alleged that defendant had been condemned by a judgment of the Sixteenth Judicial District Court to pay the amount of $50.00 per month to support his minor child. Paragraph seven of defendant’s Answer states: “The allegations of fact contained in paragraph 7 of the petition are admitted.”

The admission in defendant’s Answer clearly constitutes a judicial confession on his part. See LSA-C.C. Article 2291. In civil proceedings a litigant is bound by the allegations and admissions of fact contained in his pleadings, and the adverse party need not offer evidence to prove a fact judicially admitted. See J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972); State v. Ward, 314 So.2d 383 (La.App. 3rd Cir. 1975), writ denied, La., 319 So.2d 440; State, Department of Public Safety, Drivers License Division v. Bundrick, 311 So.2d 34 (La.App. 2nd Cir. 1975).

Thus, we are of the opinion that the trial court properly allowed plaintiff to adopt the minor child of his spouse and defendant, albeit without the latter’s consent.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Alice Voltz TOLER, Plaintiff and Appellant, v. William Franklin TOLER, D.D.S., Defendant and Appellee.
    No. 5615.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.

      Louis B. Viviano, Opelousas, for plaintiff and appellant.
    A. Octave Pavy, Opelousas, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a suit for the dissolution of a sale of immovable property on the grounds that the buyer has not paid the purchase price. The plaintiff is Mrs. Alice Voltz Toler, who sold the property in 1963 to her son, Dr. William P. Toler. The defendants are (1) Dr. Toler, (2) the heirs of his deceased wife, who inherited her community interest in the property, and (3) Leon S. Haas, Jr., administrator of the estate of the deceased wife. The district judge sustained defendants’ exception of liberative prescription of ten years, on the grounds that this was a credit sale, the first payment being due on September 19, 1963, that no payments were ever made on the purchase price, and that this suit filed on October 21, 1975 is prescribed.

The defendants then filed an application for a new trial, on the grounds that newly discovered evidence showed that while Dr. Toler was the administrator of his wife’s succession in 1968 he filed a schedule of debts, in which he acknowledged the community owed $11,500.00 of the purchase price of the property. Plaintiff contends in her application for a new trial that this acknowledgment of the debt by Dr. Toler interrupted or suspended the prescription of ten years within which this suit for the dissolution of the sale could be filed.

At the hearing on the motion for a new trial, the entire record in the succession of Dr. Toler’s wife was introduced into evidence, but only the schedule of debts is in the record on appeal. The testimony of both Dr. Toler and of the plaintiff was also taken at the hearing. The district judge denied the motion for a new trial on the basis that the cause of action to dissolve the sale for failure to pay the purchase price and the cause of action for the collection of the credit portion of the purchase price are two separate and independent remedies. Thus, even if prescription on the debt was interrupted or suspended, this would not interrupt or suspend the ten-year prescriptive period within which plaintiff could file suit to dissolve the sale. From the judgments sustaining the exception of prescription and denying the motion for a new trial, plaintiff appealed.

The issues on appeal are: (1) Was the trial judge correct in sustaining the exception of prescription? (2) Was the trial judge correct in denying the motion for a new trial?

No evidence was taken at the original hearing on the exception of prescription. The exception was decided on the basis of the pleadings and the arguments and mem-oranda submitted by counsel. In her petition, plaintiff alleges that on August 19, 1963, she sold to the defendant, Dr. Toler, by an act of sale and mortgage, 162 acres of land in St. Landry Parish. A copy of the act of sale and mortgage attached to plaintiff’s petition shows that the purchase price was $15,000, the entire amount being represented by one note for the sum of $15,000, payable in equal monthly installments of $500, beginning on September 19, 1963. Of course, the instrument provides the usual vendor’s lien and mortgage to secure payment of the note. *

Plaintiff’s petition alleges that Dr. Toler failed and refused to pay any portion of the purchase price. The petition alleges further that on March 26, 1968, the clerk of court canceled and erased the “Mortgage” from his records, but that he did so without authority and the mortgage should be rein-scribed. Plaintiff prays for dissolution of the sale and return of the property to her free of all' encumbrances.

The trial judge was clearly correct in sustaining the exception of prescription. In the recent case of Sliman v. McBee, 311 So.2d 248 (La.1975), the court, citing prior jurisprudence, emphasized that the right of the seller, under LSA-C.C. Article 2561, to dissolve the sale for failure of the buyer to pay the purchase price, is an entirely separate and independent remedy from the right of the seller to sue for any amount due on the purchase price. The court stated:

“Where the commutative contract is one of sale, the special rules governing the contract of sale must be consulted, in addition to the general principles announced above. Id. art. 2438. The principal obligation of the buyer is to pay the price of sale. Id. art. 2549(1). Upon his failure to do so, the vendor has two remedies available: one for the enforcement, or affirmance, of the contract and the other for its dissolution. The second right, asserted here by Mrs. Sliman, is an independent, substantive remedy available under article 2561 of the Civil Code that is in no way dependent upon the existence of a security device such as a mortgage or a privilege, which secures the first remedy of the seller, i. e., the enforcement of the buyer’s obligation to pay the price agreed upon in the contract of sale.”

Applying the rule of Sliman to the present matter, we find that the allegations of plaintiff’s original petition show her suit to dissolve the sale is prescribed. She alleges that under the act of sale and mortgage dated August 19, 1963, the entire purchase price of J)15,000 was represented by one note payable in equal monthly installments beginning September 19, 1963. The petition then alleges that no portion of the price has ever been paid. Our jurisprudence has established the rule that the lib-erative prescription of ten years under LSA-C.C. Article 3544 is applicable to the right to dissolve a sale under LSA-C.C. Article 2561, and that in the case of credit sales the prescriptive period begins to run from the moment the buyer defaults on the payment of the credit portion of the price. Louis Werner Sawmill Company v. White, 205 La. 242, 17 So.2d 264 (1944); Latour v. Latour, 134 La. 342, 64 So. 133 (1914). In the present case, the prescriptive period of ten years commenced on September 19, 1963, which was the date Dr. Toler defaulted on the payment of the first monthly installment. Therefore, this suit filed on October 21, 1975 is, on its face, barred by prescription.

The next issue is whether the trial judge erred in denying the motion for a new trial. As stated above, the grounds for the motion are that after the hearing of the exception of prescription the plaintiff discovered new evidence, which she could not with due diligence have obtained before the hearing. Specifically, plaintiff contends that after the hearing she discovered that in the record of the Succession of Juanita Frances Toler, the wife of Dr. Toler, a schedule of debts was filed in 1968 by Dr. Toler, as administrator of the succession of his wife, in which he listed as a community debt the sum of $11,500 due and owing to the plaintiff, Mrs. Alice Lee Toler. Plaintiff contends this was an acknowledgment of the debt and interrupted or suspended prescription both as to the debt and the right to dissolve the sale.

Counsel have not cited, nor have we found, a case dealing with the precise issue of whether interruption of prescription as to the debt also interrupts prescription as to the right to dissolve. However, under the rule quoted above from Sliman, we find it necessarily follows that it does not. Since the right to dissolve the sale under Article 2561 is separate and independent from the right to enforce the buyer’s obligation to pay the price, the interruption of prescription as to the debt is immaterial to the right to dissolve the sale. Therefore, even assuming that Dr. Toler did in 1968 acknowledge that the community owed $11,500 on the purchase price, this acknowledgment would be relevant only to a suit by the vendor to collect the purchase price and to enforce any security devices which she might claim exist for the payment thereof. The acknowledgment of the debt would not interrupt the prescriptive period applicable to plaintiff’s right to dissolve the sale.

Plaintiff cites Southwestern Improvement Company v. Whittington, 193 So. 483 (La.App. 1st Cir. 1940) to support her position. In that case the plaintiff sued to dissolve a contract in which the defendant agreed to purchase a tract of land. The defendant’s exception of prescription of ten years was overruled on the grounds that defendant had made repeated acknowledgments of his obligation to buy the property, thereby interrupting prescription. The cited case is readily distinguishable since it involved a contract for the purchase of land, whereas the present case involves a sale and is controlled by LSA-C.C. Article 2561 and the jurisprudence from our Supreme Court construing that article.

Plaintiff makes a persuasive argument that it is illogical and inequitable to hold that interruption of prescription on the debt does not also interrupt prescription on the right to dissolve the sale. In effect, this would mean that the right to dissolve is an accessory of the debt. LSA-C.C. Article 2561 was amended in 1924 to add the provision that “This right of dissolution shall be an accessory of the credit representing the price”. (Emphasis added) The author of the comment in 1 La.L.Rev. 800, at page 805 et seq. (1939) expressed the opinion that the purpose of the 1924 amendment was to overrule prior jurisprudence by making the right of dissolution an accessory of the debt, with the result that the right to dissolve is coexistent with the debt. Nevertheless, in Louis Werner Sawmill Company v. White, 205 La. 242, 17 So.2d 264 (1944), which was the first case to reach our Supreme Court on the issue after the 1924 amendment, the court held that the right to dissolve is not an accessory of the debt. The court reasoned that since the legislature did not also amend Article 3544, the ten-year prescriptive period for filing the action to dissolve was not changed. In Sliman v. McBee, our Supreme Court followed Louis Werner and cited it with approval. We conclude these cases from our Supreme Court are controlling. If that court desires to change or modify its prior rulings, then perhaps it will grant a writ and do so.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


text:
    Michael M. WAHLDER, Plaintiff-Appellant, v. ROY O. MARTIN LUMBER CO., INC., Defendant-Appellee.
    No. 5622.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.

      Gold, Hall, Hammill & Little by Charles S.Weems, III, Alexandria, for defendant-appellee.
    Michael M. Wahlder, Alexandria, for plaintiff-appellant.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff filed this suit seeking to recover a $1200.00 bonus payment paid by a mineral leasee, Texas Pacific Oil Company, Inc., (hereinafter referred to as Texas Pacific) to the defendant-mineral lessor. The defendant, Roy Martin Lumber Co., Inc. is the owner of the tract of land which was leased to Texas Pacific. Plaintiff avers that the $1200.00 is due him because he is the owner of the minerals underlying the tract of land leased and owned by the defendant. An exception of no cause of action was filed by the defendant. The trial court sustained the exception and dismissed plaintiff’s action with prejudice. Plaintiff appeals from that judgment.

The plaintiff urges that the trial court erred in finding that his petition failed to state a cause of action.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the plaintiff’s petition and exhibits attached thereto and it is tria-ble on the face of the papers. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the papers present a case which legally entitles the mover to the relief prayed for. Innovative Data Systems of Louisiana v. Ellender, 316 So.2d 12 (La.App. 1st Cir. 1975); Hero Lands Company v. Texaco, Inc., La.App., 296 So.2d 345; 310 So.2d 93 (La.Sup.Ct.1975).

The plaintiff’s petition with exhibits attached sets forth the following allegations of fact which we accept as true:

1. By act dated July 18, 1966 plaintiff and defendant entered into an act of exchange whereby defendant acquired the tract of land leased by it to Texas Pacific.

2. The mineral rights in and under the tract of land transferred by plaintiff to defendant were reserved by plaintiff in the act of exchange.

8. On January 19, 1976 defendant executed a mineral lease to Texas Pacific covering the tract of land received by it in the exchange of July 18, 1966, which lease was recorded in the Conveyance records of Rap-ides Parish.

4. In consideration for the execution of said lease defendant was paid a bonus consideration of $1200.00.

5. Defendant did not own the minerals at the time it entered into the lease with Texas Pacific.

Plaintiff also alleges that the defendant had represented itself to Texas Pacific as owner of the minerals underlying the tract leased. However, an examination of the mineral lease which is attached to plaintiff’s petition shows that the plaintiff did not warrant title to the oil, gas and mineral rights leased to Texas Pacific, and nowhere in the lease did the defendant hold himself out as the present owner of the mineral rights in the subject tract. Obviously the plaintiff’s allegation regarding defendant’s representations to Texas Pacific is unfounded in light of the contradictory lease provisions.

Accepting as true the plaintiff’s assertions as outlined above we are unable to conceive of any legal theory which would allow recovery to plaintiff of the amount paid by Texas Pacific to the defendant. Nor does the plaintiff set forth either in his petition or in his brief to this Court the theory of law under which recovery may be granted to him. Plaintiff’s petition does not state a cause of action in contract, quasi-contract, or ex delicto.

To the contrary the allegations of the plaintiff’s petition clearly reflect the execution of a contract between defendant and Texas Pacific which is specifically sanctioned by our law.

The lease in question provides in part: “. . . this lease, without further evidence thereof, shall immediately attach to and affect any and all rights, titles, and interests in the above described land, including revisionary mineral rights, hereafter acquired by or inuring to Lessor and Lessor’s successors and assigns.”

Although plaintiff owned a mineral servitude over the subject tract, under the provisions of LSA — R.S. 31:27 (absent any interruption) his servitude was to expire on July 18,1976 at which time all of the mineral rights would revert to the defendant, who was the owner of the property. LSA-R.S. 31:144 recognizes that a lessor and a leasee may validly execute a lease covering outstanding mineral rights which may terminate and become reunited with the landowners title during the term of the lease. This is what was done in the instant matter.

Finally, plaintiff alleges that he has attempted to lease his mineral interest in the above referenced tract, but has found no buyers due to the fact that the minerals were leased by defendant to Texas Pacific. While the allegations of well-pleaded facts must be admitted as true the court must draw therefrom all proper legal inferences in determining the merits of the defendant’s exception of no cause of action. When the conclusions drawn from the circumstances alleged do not present justicia-ble cause the petition is amenable to an exception of no cause of action. Little v. Caterpillar Tractor Company, 169 So.2d 654 (La.App. 1st Cir. 1964). Admitting as true the fact that the plaintiff has attempted to lease his mineral rights in the subject tract but has been unable to do so, and admitting as true the fact that defendant leased its revisionary mineral interest in the subject tract to Texas, Pacific, we do not necessarily accept plaintiff’s conclusion that his failure to lease the tract was due to the fact that the minerals had been leased by defendant. This is a legal conclusion, not to be admitted as true. Furthermore, considering all the circumstances alleged, the plaintiff’s mineral rights were probably unmarketable in January of 1976, not because of defendant’s lease agreement with Texas Pacific, but because plaintiff’s mineral interest was due to expire absent interruption of prescription some six months later.

We conclude that the defendant was legally entitled to lease its revisionary mineral interest under LSA-R.S. 31:144, and accordingly plaintiff’s petition seeking to recover the bonus payment made to the defendant in connection with the lease does not state a cause of action.

For the foregoing reasons the judgment appealed from is affirmed. All costs of these proceedings to be borne by the plaintiff-appellant.

AFFIRMED.


author:
DOMENGEAUX, Judge.
      GUIDRY, Judge

text:
    Gertrude Josephine BEST, born Eulberg, Plaintiff and Appellee, v. George Andrew BEST, Defendant and Appellant.
    No. 5632.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    McLeod & Dow by William L. McLeod, Jr., Lake Charles, for defendant and appellant.
    Norman L. Williams, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Defendant-appellant, George Andrew Best, appeals a judgment of the District Court which awarded his wife, Gertrude Josephine Best, plaintiff-appellee, a judicial separation based upon cruel treatment and which also condemned him to pay alimony pendente lite in the sum of $550.00 per month.

Appellant contends that the trial judge erred in the following particulars: (1) In finding that plaintiff proved her case as to cruelty by a preponderance of the evidence, when all of that evidence was contradicted and uncorroborated; (2) In granting an award for alimony when there was no clear evidence as to the husband’s income, and in spite of the fact that the wife had no adequate reason for terminating her employment and without considering her pending receipt of social security benefits.

Mr. and Mrs. Best were married on April 18, 1939, and two daughters were born of the marriage, both being majors as of the time of trial.

PROOF OF CRUELTY

Mrs. Best testified generally that over the years her husband was unreasonably lacking in providing food stuffs for the family and that he had struck her frequently, not caring where the blows were struck. She said that their daughter, Mrs. Peggy Delafort, who resided in New York, came to visit the litigants on January 6, 1976, and stayed at the family home. She stated that on or about January 12, 1976, she and her husband were shopping for food at a supermarket and an argument ensued concerning payment for the food. He berated her and she proceeded alone to another store to do the shopping. When they both returned home he called her a “damn fool” and struck her on her right shoulder. Mrs. Best had bursitis in that shoulder, and her husband was cognizant of that fact. She further testified that the blow aggravated the bursitis, and she suffered therefrom for several days, necessitating a cortisone injection. The day after the right shoulder episode her husband threw a cup of coffee at her.

Mrs. Best testified to physical abuses and cursings prior to the altercations in question, and stated that her husband had struck her on numerous occasions. At one time he knocked her down and “almost broke my back trying to choke me over the kitchen cabinet”. Following the coffee throwing episode Mrs. Best testified that she became sad and depressed and even contemplated suicide. The next morning, with the encouragement of her daughter, Judy, she left the matrimonial domicile and subsequently filed these proceedings.

Mr. Best denied that he had ever struck his wife or otherwise abused her, or had thrown a cup of coffee at her. He also denied that he forced his wife to leave the matrimonial domicile but instead contends that his wife left, with his acquiescence, to go to New York with their daughter, Peggy, for a visit.

Another daughter of the litigants, Mrs. Judy Wells, testified generally that her father was always skimpy with her mother in providing food. On one occasion, in answer to her inquiry as to why there wasn’t any food in the house, her father laughed and joked about it saying “there was some dog food in there”.

Mrs. Peggy Delafort, who, as aforesaid, was visiting her parents’ home, confirmed her mother’s testimony with respect to the argument which took place in January, 1976, and said that her mother told her that her father had struck her. However, she did not witness the striking incident. Mrs. Delafort, at about that same time, went to Houston, Texas, to shop, and upon returning found her mother very depressed and seriously considering suicide because of Mr. Best’s conduct. She encouraged her mother, in view of the circumstances, to leave her father.

The trial judge, in oral reasons which were dictated into the record, recognized the conflicting testimony between the parties, stating, “The question is who is the court going to believe?” He proceeded to review the testimony, and referred to the testimony of Peggy Delafort, concluding that there was corroboration of Mrs. Best’s testimony to some extent. His conclusion in granting the separation to Mrs. Best on the grounds of cruelty makes it apparent that he believed her and disbelieved her husband. As was stated by our brethren of the Fourth Circuit in the case of Baggett v. Baggett, 311 So.2d 501 (La.App. 4th Cir. 1975):

“As occurs in the usual domestic relations case, the versions of particular incidents are contradictory. In such instance, as in our case, the resolution of fact questions is essentially a credibility determination to be made by the trial judge. In granting a separation in favor of the wife, the trial judge necessarily gave more weight to the testimony of plaintiff than that of defendant. As the court said in McVay v. McVay, 276 So.2d 926 (La.App., 3d Cir. 1973):
‘Trial judge’s conclusions, inferred from the testimony of witnesses whose credibility he must determine, will be accorded substantial weight on review.’
From our consideration of the record in the instant case, we cannot say the trial judge erred in placing more reliance and credibility on the testimony of the wife. We are confronted with a credibility question and not a sufficiency of evidence question as claimed by defendant.”

Considering the above cited language apropos to the facts herein, we find no manifest error in the trial judge’s determination that Mrs. Best proved by a preponderance of the evidence that the defendant was guilty of cruelty of such a nature as to render their living together insupportable.

ALIMONY

The record is sufficiently clear to demonstrate that defendant’s monthly income amounts to the sum of $1,935.00. He receives $790.00 per month under a retirement plan, $200.00 per month as a security guard, Social Security payments of $320.00 per month, stock dividends which proportion out to $180.00 per month, and income from interest which averages approximately $445.00 per month. There are no mortgages or other type indebtednesses.

Mrs. Best itemized her needs as amounting to $701.00 per month. She is entitled to alimony pendente lite under the provisions of C.C.Article 148, and we find no error in her award therefor in the amount of $550.00 per month under the facts and figures in the record.

Although the record does not indicate Mrs. Best’s age, judging from the date of her marriage and application for Social Security benefits as is shown hereafter, she has reached, or is nearing retirement age. Appellant suggested that appellee discontinued her employment without adequate reason and said action should have some bearing on the alimony award. Mrs. Best discontinued her employment as a surgical technician some three months prior to the trial of this matter, stating that the work was becoming too difficult for her and that she could not stay up eight hours a day and be on call during the night time. Regardless, a wife is not required to work and earn her own living during the pendency of a suit for a separation or divorce. Therefore, it is immaterial whether she had cause to terminate her employment. Bilello v. Bilello, 240 La. 158, 121 So.2d 728 (La.1960); St. Julien v. LeBlanc, 146 So.2d 296 (La.App. 3rd Cir. 1962); Cabral v. Cabral, 245 So.2d 718 (La.App. 4th Cir. 1971).

Mrs. Best testified that she had applied for Social Security benefits, but that she was not receiving same nor did she know when they would commence. Appellant contends that the trial judge erred in not considering the anticipated receipt of those benefits by his wife. The record reflects that Mrs. Best did not know if, and how much she would receive (although she thought the amount might be $110.00 per month), nor was she aware of when the benefits would be commenced. Under these facts the trial judge was correct in not considering this speculative eventuality in fixing alimony pendente lite.

Besides, should Mrs. Best begin receiving Social Security benefits, appellant would have the right to bring appropriate proceedings to determine whether the alimony pen-dente lite should be reduced. Kahn v. Kahn, 236 So.2d 654 (La.App. 2nd Cir. 1970).

For the above and foregoing reasons the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

GUIDRY, J., concurs and assigns reasons.

GUIDRY, Judge

(concurring).

We need not rely in this case on the jurisprudence cited in the majority opinion to the effect that a husband cannot escape the payment of alimony pendente lite on the grounds that a wife is capable of earning sufficient income for her support. In my opinion, as set forth in Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1975), a serious issue is presented as to whether the rule announced in Bilello v. Bilello, supra, St. Julien v. LeBlanc, supra, and Cabral v. Cabral, supra, all of which were decided prior to the adoption of the 1974 constitution, constitutes an unconstitutional application of the provisions of LSA-R.C.C. Article 148. I would pretermit any discussion of this issue determining that under the particular factual circumstances of this case the plaintiff is entitled to alimony pendente lite, without any requirement that she seek employment and contribute to her own support.

For the reasons assigned, I respectfully concur.

      . Although the status of defendant’s present income may be altered in the division of the community between the litigants, that matter is not before us at this time. Apparently the partitioning of the community of acquets and gains is now in progress.


text:
    John VAUGHAN d/b/a Vaughan Bros. Contracting, Plaintiff-Appellee, v. James Rex FAIR, Defendant-Appellant.
    No. 5642.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Richard N. Ware, Natchitoches, for defendant-appellant.
    Joseph M. Henry, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This is a suit on open account for recovery of the sum of $417.83 alleged to be owed plaintiff as rental for certain items of heavy equipment. Defendant filed answer generally denying all allegations of plaintiff’s petition and further answered asserting prior payment of all amounts due. The trial court rendered written reasons for judgment determining that plaintiff did rent certain heavy equipment to defendant; that the total rental amounted to the sum of $867.83; and, that defendant had previously paid to plaintiff the sum of $450.00 leaving a balance due in the sum of $417.83. Accordingly, j udgment was rendered in favor of plaintiff for the latter amount. Defendant appealed. We affirm.

There is documentary evidence in the record to support the total rental determined to be due by the trial court as well as the partial payment made by defendant. Appellant argues, however, that the trial court erred in the following particulars: (a) In concluding from the testimony of the several witnesses that plaintiff proved his claim by a preponderance of the evidence; and, (b) In failing to conclude on the basis of the verbal testimony adduced that the payment of $450.00 was made by defendant and accepted by plaintiff in full settlement of all sums due.

The record does not contain a transcript of the testimony adduced on the trial of the case. Presumably such testimony was not recorded and transcribed. The record does not contain a narrative of facts agreed to by the parties or made by the judge pursuant to the provisions of LSA-C.C.P. Articles 5001, 2130 and 2131. Under such circumstance, and considering that the respective claims of the parties present factual issues, this court must presume that the judgment of the trial court is correct and supported by sufficient competent evidence. As stated by our Supreme Court in Succession of Walker, 288 So.2d 328 (La.1974):

“The jurisprudence is uniform that, where there are factual issues involved and the record on appeal contains neither the transcript of the testimony nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review. Williamson v. Enterprise Brick Co., 190 La. 415, 182 So. 556 (1938); Aube v. American Insurance Co., 254 So.2d 654 (La.App.1971); Edisen v. Edisen, 236 So.2d 528 (La.App.1970); Omaha Steaks International v. Progressive Motor Hotel, 212 So.2d 558 (La.App.1968); So-Cam, Inc. v. Atkins, 189 So.2d 742 (La.App. 1966).”

See also, In re the Minor Tyson, 306 So.2d 822 (La.App. 2nd Cir. 1975) and Hutcherson v. Welch, 316 So.2d 144 (La.App. 2nd Cir. 1975).

For the reasons assigned, the judgment of the City Court is affirmed at appellant’s costs.

AFFIRMED.