text:
    Louis A. GATHRIGHT, Plaintiff-Appellee, v. Talmadge A. SMITH and Margie A. Lawrence, Defendants-Appellants.
    No. 13369.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.

      Paul H. Kidd, Monroe, George M. Strick-ler, Jr., New Orleans, for defendants-appellants Talmadge A. Smith and Margie A. Lawrence.
    Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for plaintiff-ap-pellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This is an appeal by defendants from a judgment declaring the marriage of their mother to plaintiff null and void and rejecting defendants’ claims to property acquired during the disputed relationship because of the bad faith of their mother in contracting the marriage.

Plaintiff, Louie Gathright, brought suit for a declaratory judgment against Margie Smith Lawrence and Talmadge A. Smith who are the only children and heirs of Clara Pearl Breland Smith (also known as Clara Gathright). He alleged that at the time of his marriage to Clara Smith she was not divorced from either of her two former husbands and was not capable of contracting a valid marriage with him. Plaintiff alleged he was unaware of this incapacity until after her death on January 14, 1973. He further alleged the decedent was in bad faith in contracting the marriage with him, and under La.C.C. Art. 118 she was not entitled to the civil effects of the marriage. Accordingly plaintiff contended the defendants had no rights of ownership in any of the property acquired during the existence of the null relationship.

Defendants denied the nullity of the marriage and sought to show that in any event their mother was a good faith putative wife entitled to the civil effects of the marriage.

The facts show that prior to decedent’s marriage to plaintiff in 1942, she had contracted two former marriages. The first to Alexander F. Smith in St. Tammany Parish on April 20,1920. Defendants were born of this marriage. Shortly after the birth of the second child, decedent and Smith separated. Smith did not obtain a divorce from decedent until March 13, 1963, in Orleans Parish.

On November 4,1930, decedent purported to marry John Turner in Arkansas and lived with him until 1933 or 1934 when they separated and decedent established her residence in Bastrop, Louisiana. The evidence clearly establishes that on August 12, 1942, when decedent married plaintiff both Alexander Smith and John Turner were living and neither was divorced from decedent.

In a comprehensive opinion, the trial judge held that decedent was in bad faith under La.C.C. Arts. 117 and 118, and declared plaintiff to be entitled to the sole ownership of all property acquired during the null marriage to her.

Defendants on this appeal allege five specifications of trial court error: first, in placing the burden of proving good faith on defendants; second, in upholding plaintiff’s contention he was in good faith; third, in requiring an unconstitutional burden of proof; fourth, in holding that burden was not met; and fifth, in failing to recognize the Louisiana property was co-owned by decedent.

I. APPLICATION OF BURDEN OF PROOF

Defendants contend that the trial court should have required plaintiff to prove their mother’s bad faith instead of placing upon them the burden of proving their mother’s good faith. Defendants contend that Lands v. Equitable Life Assurance Society of U. S., 239 La. 782, 120 So.2d 74 (1960) places the burden of proof on the party attacking the validity of a marriage. In Lands the court formulated a burden of proof for the party attempting to establish the nullity of a marriage, but the court did not reach the issue of whether the civil effects should flow from the null marriage. In the facts before us, plaintiff has met his burden of proving a null marriage. However, once a null marriage is proven, the burden of proving good faith in a putative marriage situation shifts to the party who contracted the null marriage in contravention of a prior, undissolved marriage. See Succession of Choyce, 183 So.2d 457 (La. App. 2d Cir. 1966), writ denied, 184 So.2d 735, and Succession of Davis, 142 So.2d 481 (La.App. 2d Cir. 1962).

II. PLAINTIFF’S GOOD FAITH

Defendants argue that plaintiff cannot be in good faith under C.C. 117 and 118 since he merely relied on decedent’s statement that she was no longer married, citing Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928). Plaintiff contends his belief was based on more than the mere declaration of decedent. The record shows that after decedent and John Turner separated in 1934, she moved to Bastrop in 1936. She held herself out to the community as a single woman. She bought real property in June 1936 by deed which stated she was divorced from her former husband, John Turner. In December 1936, she sold real property by deed which stated she was twice married, that her first husband was deceased, and her second husband divorced. Approximately four years later she met plaintiff, whom she subsequently married after a two year courtship. Plaintiff had the benefit of both the community reputation and the public records that decedent was legally single. This constitutes a sufficient basis for plaintiff to justifiably and reasonably believe that there were no legal impediments to the subsequent marriage.

III. UNCONSTITUTIONALITY OF STRICT AND CONCLUSIVE BURDEN OF PROOF

The trial court held that because decedent was in bad faith, no civil effects could flow in her favor under C.C. Art. 118. Therefore, in order to prove her one-half undivided ownership in the property acquired during the null marriage, defendants had to prove by “strict and conclusive” proof that decedent contributed to the funds used to purchase the property, and that the source of the funds must have been obtained independently from the concubinage relationship or common endeavor with plaintiff. Defendants contend this burden of proof is unconstitutional and a denial of equal protection since it does not apply to men. Plaintiff opposes our consideration of this question as he contends that the constitutional issue cannot be brought up on appeal because it was not pleaded in the trial court, citing Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971) and the cases cited therein. Defendants point out that these cases concern the pleading of the unconstitutionality of a statute; whereas, this case merely attacks the unconstitutionality of a burden of proof rule. They further assert that La.C.C.P. 2164 allows this court to render whatever judgment is equitable, and therefore, allows us to consider this constitutional question. Our research uncovers no cases which directly distinguish between a constitutional statute and a constitutional issue. In Sonier v. Louisiana Power & Light Co., 293 So.2d 24 (La.App. 1st Cir. 1974), plaintiff alleged the issue of unconstitutionality for the first time in the appellate court. Plaintiff complained that the method of selecting the jury was unconstitutional because of the alleged exclusion of women. Plaintiff did not contend that any statute or ordinance was unconstitutional. The court without discussion cited Summe-reli v. Phillips, supra, and stated that “questions of constitutionality” raised for the first time on appeal are precluded from consideration. The principle underlying this preclusion rule is based on rules of pleading. In Summerell, supra, the court stated the unconstitutionality of the statute or ordinance will not be heard unless it “is specially pleaded and the grounds particularized.” See Causey v. Opelousas-St. Landry Securities Co., Inc., 192 La. 677, 188 So. 739 (1939). Any plea of unconstitutionality must be specially pleaded in the trial court unless it is one of the recognized exceptions. See State v. Gatlin, 241 La. 321, 129 So.2d 4 (1961); Meyer v. Board of Trustees of F. Pension & R. Fund, 199 La. 633, 6 So.2d 713 (1942); Harris v. Monroe Building & Loan Ass’n., 185 La. 289, 169 So. 343 (1935); Long v. Northeast Soil Conservation District of La., 226 La. 824, 77 So.2d 408 (1954). This court cannot consider the constitutional question under La.C.C.P. 2164 as the language of the article clearly limits its application to any “judgment which is just, legal, and proper upon the record on appeal." (emphasis added) An issue of unconstitutionality not pleaded and not in the trial record cannot be considered on appeal. See Summerell, supra.

IV. SATISFACTION OF BURDEN OF PROOF

Defendants contend that even if the strict and conclusive burden of proof is applicable, it has been satisfied. Defendants point out that in 1955, decedent and plaintiff moved to California where they acquired two pieces of real property as “joint tenants.” In late 1967, and early 1968, they sold the California properties, and from the money received purchased three pieces of property in and around Bas-trop, Louisiana. Those properties were conveyed to “Louie Gathright, a married man whose wife is Mrs. Clara Gathright, nee Breland.” They moved back to Bastrop during 1968, and in 1969 acquired a fourth piece of property which was conveyed to “Louie Allen Gathright and Mrs. Clara Gathright, nee Breland, husband and wife.” These properties are the subject of this litigation.

Defendants contend that the applicability of the'joint tenancy rules under California law would define the funds used to buy the Louisiana properties as co-owned. Defendants theorize that the Louisiana properties are therefore co-owned since the properties retain the co-ownership nature of the funds used for their purchase. The rule is well settled that the status of real property is determined by the law of the situs. The jurisprudence of Louisiana holds that common law joint tenancy rules have no application in determining ownership of real or personal property in this state. See Northcott v. Livingood, 10 So.2d 401 (La.App. 2d Cir. 1942); Dawson v. Capital Bank & Trust Co. of Baton Rouge, 261 So.2d 727 (La.App.. 1st Cir. 1972), La.C.C. Arts. 9, 491. Therefore, the burden of proving decedent’s interest in the real properties can only be satisfied by applying Louisiana law.

V. CO-OWNERSHIP

Defendants contend that under Louisiana law decedent owned a one-half undivided share in the property which was sold to “Louie Allen Gathright and Mrs. Clara Gathright, nee Breland, husband and wife.” Defendants’ contention cannot be maintained. Jackson v. Hampton, 134 So.2d 114 (La.App. 2d Cir. 1961) presents a factual situation analogous to the present facts on appeal. In that case a paramour and concubine bought real property as “John Wright, Sr., and Louella Wright, husband and wife.” In Jackson the court reasoned that Wright attempted to buy the property as head and master of the community, and since one did not exist, deeds purporting to transfer property to a non-existent entity were of no avail to one claiming an interest therein. Since the bad faith wife has no greater rights than a concubine under Keller v. Keller, 220 So.2d 745 (La.App. 1st Cir. 1969), the Jackson rationale is applicable to the case before us. Therefore, the language of the Louisiana deed which purported to transfer the property to the decedent as “wife” of plaintiff and to a community of gains which did not exist, could not avail decedent or those claiming an interest through her. Neither can defendants assert their ownership through the civil effects which flow from a putative marriage since their mother was in bad faith. The sole remedy left to defendants is to establish by strict and conclusive proof that decedent purchased an interest in the properties with funds obtained independently from the concubinage relationship. See Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196 (1947).

We find no error in the finding of the trial court that defendants have not met the burden of proof in this regard. The judgment appealed is affirmed at defendants’ cost.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Newt V. MILLS, Plaintiff-Appellant, v. Jerry A. ADAMS, Defendant-Appellee.
    No. 13371.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.
    Writ Granted Jan. 20, 1978.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.
    Baker, Culpepper & Brunson by James R. Hatch, Jonesboro, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

An appellant may negate the presumption of abandonment of an appeal when he appears or otherwise informs the court before or at the time the appeal is called for argument that he intends not to abandon the appeal and that he will file a brief. Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969).

Here, the appellant neither appeared nor filed a brief when the appeal was called for argument on September 27, 1977, and the appeal was dismissed. Rule VII, § 5(b), Uniform Rules — Court of Appeal. Six days later, a brief of the appellant was received by this court, having been postmarked September 30, 1977.

The filing of a brief by the appellant after the appeal is dismissed does not negate the presumption under Rule VII unless before the case is called for argument appellant notifies the court that a brief will be filed forthwith.


author: HALL, Judge.

text:
    Sammie Joseph DeFATTA, Jr., Plaintiff-Appellee. v. Marianne Farmer DeFATTA, Defendant-Appellant.
    No. 13375.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.
    En Banc. Rehearing Denied Dec. 5, 1977.

      Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for defendant-appellant.
    Dale G. Cox, Shreveport, for plaintiff-ap-pellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Appellant, Marianne Farmer DeFatta, appeals from a judgment of the district court sustaining a declinatory exception of lack of jurisdiction filed by appellee, Sammie Joseph DeFatta, Jr., and dismissing her demands for alimony and child support made incidental to her action for a final divorce.

The issue on appeal is whether the court has jurisdiction over the person of the husband to render a judgment for permanent alimony and child support in connection with a petition for final divorce and custody filed by the wife where the husband originally filed the separation suit but moved out of the state after the separation judgment was rendered and before the divorce petition was filed.

We hold that when a party initiates an action for separation from bed and board, thereby submitting himself to the exercise of jurisdiction over him personally by the court, the court’s jurisdiction over the person is not divested by the party’s moving from this state, but continues throughout the pendency of the proceeding to the judgment of divorce as to all facets of the proceeding, including all matters incidental to the separation and divorce such as custody, child support and alimony, pendente lite and permanent.

The appellee-husband filed suit against the appellant-wife in January, 1976, seeking a separation from bed and board on the grounds of cruel treatment and abandonment. Appellee’s petition asked that the determination of custody of the three minor children born of the marriage be deferred until the final divorce. The appellant filed an answer in the nature of a general denial and did not ask for custody, alimony or child support.

After trial, judgment was rendered granting the separation as prayed for. The separation judgment, pursuant to the agreement of the parties, deferred the matter of custody “until a divorce hearing in these proceedings”; however, appellee was ordered to pay to appellant $150 per month for the support of their minor daughter as long as she lived with the mother. Appel-lee was also ordered to pay as alimony the monthly mortgage payment on the family home until such time as the home is sold. At the time of the separation judgment the two sons were living with the appellee and the daughter was living with the appellant.

Subsequently, appellee was transferred to Houston, Texas by his employer. The sons returned to live with their mother.

In February, 1977, appellant filed a motion to increase child support for the minor daughter and to obtain child support pen-dente lite for the support of the two sons. An attorney was appointed to represent the nonresident appellee, his original attorney of record having withdrawn as counsel. Judgment was rendered increasing the amount of the support for the daughter from $150 per month to $200 per month, but support was denied for the two sons because there was no judgment awarding their custody to appellant.

Later in February, 1977, appellant filed a rule to show cause why she should not be awarded the legal custody of the three minor children and be granted child support and alimony during the pendency of the suit. Service of the rule was made on the attorney previously appointed to represent the nonresident appellee. The appellee’s court-appointed attorney filed a declinatory exception of lack of jurisdiction over the person of the appellee. At the hearing, judgment was rendered awarding appellant custody of the three children, but sustaining the declinatory exception of lack of personal jurisdiction and refusing alimony and child support for the two sons.

In March, 1977, appellant filed a petition for a final divorce alleging that more than one year and sixty days had transpired since appellee obtained a decree of separation, and seeking permanent custody of the three children, permanent alimony for herself, and permanent support for the three children. Service of process was made on the attorney previously appointed to represent the nonresident appellee. The attorney filed an exception to the jurisdiction of the court alleging that since appellee was a resident of the State of Texas, the court was without authority to render any money judgment against him. After hearing, judgment was signed on May 2, 1977, sustaining appellee’s exception to the jurisdiction on appellant’s claim for permanent alimony and child support. Judgment of divorce granting permanent custody of the three minor children to appellant was signed on May 11,1977. Appellant perfected an appeal.

Appellee has filed a motion to dismiss the appeal based on the fact that appellant’s motion for appeal referred to a judgment of March 4, 1977, as to which a new trial was denied on May 2, 1977, which judgment denied alimony and child support pendente lite. Appellee contends that matters relating to alimony and child support pendente lite were merged into or abated by the judgment of final divorce and have become moot and the judgment relating thereto is unappealable. It is clear from the record and subsequent filings made by the appellant in response to the motion to dismiss that it was appellant’s intention to appeal from the final judgment of May 2, 1977, sustaining plaintiff’s exception to the jurisdiction and denying appellant’s claim for permanent child support and alimony. The inadvertent reference to the March 4 judgment should not defeat appellant’s appeal from the May 2 judgment. Appellee’s motion to dismiss is overruled.

Upon the jurisdictional issue, appellant ■ contends essentially that an action for separation and a subsequent action for divorce based on the separation and nonreconciliation is one continuous proceeding and that the court’s jurisdiction over the person, once attached, cannot be divested by a party’s moving out of the state. Appellee contends that the action for separation and the action for divorce, and the incidents of each, are entirely separate and distinct actions, and that the court had no jurisdiction over the person of the nonresident appellee in the divorce action and could not render a personal judgment against him for child support or alimony in that proceeding.

Jurisdiction is the legal power and authority of the court to hear and determine an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled. LSA-C. C.P. Art. 1. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon: (1) service of process on the defendant or his agent for the service of process; (2) service of process on an attorney at law appointed to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this State; or (3) the submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto. LSA-C.C.P. Art. 6. Under jurisdiction over status a court which is otherwise competent under the laws of this State has jurisdiction of a proceeding to obtain the legal custody of a minor if the minor is domiciled in or is in this State. It also has jurisdiction of an action of divorce or of separation from bed and board if one or both of the spouses are domiciled in this State and, except as otherwise provided for by law, the grounds therefore were committed or occurred in this State, or while the matrimonial domicile was in this State. LSA-C.C.P. Art. 10.

The court’s jurisdiction over status, that is, its legal power and authority to render a judgment of separation, divorce and custody, is not questioned in this case. However, a judgment for alimony or child support is a personal judgment and the court has legal authority and power to render such a judgment only if it has jurisdiction over the person of the party against whom judgment is sought. Imperial v. Hardy, 302 So.2d 5 (La.1974); de Lavergne v. de Lavergne, 244 So.2d 698 (La.App. 4th Cir. 1971), writ refused 258 La. 357, 246 So.2d 680 (1971); Broussard v. Domingue, 146 So.2d 445 (La.App. 3d Cir. 1962). Jurisdiction over the person can only be obtained in the manner provided in Article 6. It is clear that appellee submitted himself to the exercise of jurisdiction over him personally by the court under Article 6(3) when he filed the action for separation from bed and board.

One who has invoked the jurisdiction of the court to secure an alleged right cannot afterward deny its jurisdiction over his person. Dawson v. Frazar, 150 La. 203, 90 So. 570, 572 (1921); Iddle v. Hamler Boiler & Tank Co., 132 La. 476, 61 So. 532 (1913); Lawson v. Opelousas, G. & N. E. R. Co., 129 La. 649, 56 So. 625 (1911); Phillips v. W. T. Adams Mach. Co., 52 La.Ann. 442, 27 So. 65 (1899); United States v. The Bank of the United States, 11 Rob. 418, 430 (1845); Michigan Trust Company v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867, 874 (1913).

Where jurisdiction of the person or the res has once attached, it is not defeated by removal of the person or the res beyond the jurisdiction of the court. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321, 328 (1953); Wheeler v. Wheeler, 184 La. 689, 167 So. 191, 194 (1936); Bates v. Bates, 331 So.2d 122 (La.App. 4th Cir. 1976); Graves v. Graves, 122 So.2d 350, 353-354 (La.App. 2d Cir. 1960).

When a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of the court to bind him by every subsequent order in the cause. Imperial v. Hardy, supra.

According to the Articles of the Code of Civil Procedure, jurisdiction is the legal power or authority of the court to act in an “action” or “proceeding”. These terms are broader than “cause of action”. Multiple causes of action may be asserted in one action or proceeding. It presents no barrier to the court’s continuing jurisdiction or to the continuing nature of the proceeding to say that the petition for divorce, permanent custody, alimony and child support constitutes a separate cause of action from the original petition for separation and its incidents. A proceeding for separation under LSA-C.C. Art. 138 and a divorce based on the separation under LSA-C.C. Art. 139 and LSA-R.S. 9:302 is essentially one continuous, ongoing proceeding. A separation action is not terminated until judgment of divorce. The Civil Code provides for custody and alimony pending the litigation. LSA-C.C. Arts. 146 and 148. The cases recognize that the litigation is pending until judgment of divorce. This illustrates the continuing nature of the action commenced by the filing of a petition for separation and concluded by the granting of a divorce. Since custody, alimony and child support judgments contained in a judgment of divorce are subject to modification, the jurisdiction of the court over the person of the party concerned as to those matters may continue indefinitely.

Two Supreme Court cases, while not dealing directly with the issues involved in this case, discuss the continuing nature of an action for separation and subsequent divorce based on the separation. In Butler v. Washington, 45 La.Ann. 279, 12 So. 356 (1893), the court held:

“In our Code, separation from bed and board, and divorce, are treated of under one and the same title, (Rev.Civil Code, art. 138 et seq.;) and article 139 declares that ‘married persons may claim reciprocally a divorce for the several causes enumerated in article 138; but except in the cases where the husband or wife may have been sentenced to an infamous punishment or convicted of adultery, no divorce shall be granted, unless judgment of separation from bed and board shall have been rendered between the parties, and one year shall have expired,’ etc., (italics ours,) thus clearly evidencing the fact that such judgment of separation is merely a preparatory step to procuring a final divorce a vinculo matrimonii for any other causes than those enumerated in the exceptions just quoted. The two form parts and parcels of the same proceeding and suit; and, the defendant husband being a necessary party to the second or supplementary proceeding for divorce, it would seem illogical as well as inequitable, to hold that substituted service is inefficacious to bring him into court, though an absentee, in the furtherance of justice, and the acquired jurisdiction of the court over the defendant personally quoad the original suit; the object aimed at being defeated if he could not be thus held amenable to the law of the state in which the contract of marriage was celebrated.”

In Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890 (1928), the court stated:

“Act 25 of 1898 also confers upon plaintiff the right to obtain a judgment of absolute divorce in the separation proceeding instituted by her in the district court of Caddo parish .
“Even before the passage of Act 25 of 1898, it was held by this court in the year 1893 in Butler v. Washington, 45 La.Ann. 279, 12 So. 356, 19 L.R.A. 814, that a suit for an absolute divorce, based upon a judgment of separation from bed and board, was part and parcel of the same proceeding, and that, if the defendant was an absentee, substituted service might be invoked .
“It is well established as a general rule that, where the jurisdiction of the person or of the res has once attached, it is not defeated by a removal of the person or the res beyond the jurisdiction of the court. 15 C.J. 824; 7 R.C.L. 1045; U. S. v. Dawson, 15 How. 467, 14 L.Ed. 775; Lofton v. Collins, 117 Ga. 434, 43 S.E. 708, 61 L.R.A. 150; McSherry v. McSherry, 113 Md. 395, 77 A. 653, 140 Am.St.Rep. 426 [428].
“We are of the opinion that the district court of Caddo parish was vested with jurisdiction to grant plaintiff a divorce a vinculo matrimonii.”

Appellee argues that the separate and distinct nature of a separation action and a divorce action is illustrated by the cases holding that a separation judgment and its incidental judgments for alimony and child support pendente lite are abated by and merge into a judgment of final divorce. Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956). Contrary to this argument, the Thornton line of cases illustrates the close connection between separation and divorce. If the two were entirely separate, distinct and unrelated actions, judgment in one would not necessarily affect judgment in the other. Abatement of or merging of the separation judgment into the divorce judgment supports the concept that the litigation begins with the separation petition and ends with the judgment of divorce.

Particularly as to pendente lite and permanent custody and child support, the issues and cause of action are basically the same although one is asserted incidental to a separation action and the other incidental to a divorce action. The Codal basis for the cause of action is the same, that is, the parental obligation to support minor children. The interest of the state in continuing jurisdiction is strong. Numerous cases have found continuing jurisdiction in custody and child support proceedings under varying circumstances. See Imperial v. Hardy, supra; Bates, supra; Rice v. Kliebert, 330 So.2d 374 (La.App. 4th Cir. 1976); Heaton v, Garvin, 314 So.2d 363 (La.App. 3d Cir. 1975); Owen v. Owen, 306 So.2d 895 (La.App. 2d Cir. 1975); Anthony v. Anthony, 288 So.2d 694 (La.App. 4th Cir. 1974); Cannon v. Cannon, 242 So.2d 291 (La.App. 4th Cir. 1970); Carpenter v. Carpenter, 240 So.2d 13 (La.App. 2d Cir. 1970); Dupre v. Guillory, 216 So.2d 327 (La.App. 3d Cir. 1968); Pattison v. Pattison, 208 So.2d 395 (La.App. 4th Cir. 1968), writ refused 252 La. 168, 210 So.2d 52 (1968). See also Odom v. Odom, 345 So.2d 1154 (La.1977). Compare Smith v. Smith, 289 So.2d 271 (La.App. 1st Cir. 1974) and Smith v. Smith, 257 So.2d 446 (La.App. 1st Cir. 1972).

Perez v. Perez, 334 So.2d 719 (La.App. 4th Cir. 1976), cited by appellee, while stating that separation and divorce actions are separate causes of action, is authority only for the narrow procedural holding that a petition for divorce is not a supplemental petition requiring a court order permitting its filing.

An additional faetor in the instant case supporting continuing personal jurisdiction in the child support matter is that determination of custody was expressly deferred by the separation judgment, to be determined at the time of the divorce hearing, pursuant to the prayer of appellee and agreement of the parties to that effect. Thus, appellee expressly submitted himself to the exercise of the court’s jurisdiction and, in effect, waived any objections he might have to the jurisdiction of the court in regard to custody (and necessarily child support connected therewith) through the time of granting the final divorce. The action in this respect remained viable and undetermined and jurisdiction continued until its final determination.

Since the court had continuing jurisdiction over the person of the appellee, the appointment of an attorney to represent him and service of process on the attorney was proper under the provisions of LSA-C. C.P. Art. 5091.

Although the judgment sustaining the exception to the jurisdiction was erroneous both as to the claims for permanent (post-divorce) alimony and child support, it should be noted that appellant is not entitled to alimony for herself, her fault having been conclusively determined in the separation proceeding. LSA-C.C. Art. 160; Fulmer v. Fulmer, 301 So.2d 622 (La.1974).

The judgment of the district court sustaining the declinatory exception to the jurisdiction of the court is reversed and set aside and the exception is overruled. This cause is remanded to the First Judicial District Court for further proceedings in accordance with law and consistent with this opinion. Costs of this appeal are assessed to the appellee. The assessment of all other costs, including the fee of the attorney appointed to represent the appellee, shall await the termination of the litigation.

Reversed and remanded.

      . The Louisiana “Long-Arm” Statute, LSA-R.S. 13:3201, et seq., provides an additional method of establishing jurisdiction over the person of a nonresident as to certain enumerated causes of action. Act 734 of 1977, effective September 9, 1977, amended Section 3201 to permit the exercise of personal jurisdiction over a nonresident as to a cause of action arising from the nonresident’s “non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state.” The statute, as amended, is not applicable to this case because service of process was not effected in accordance with the statute and because the 1977 amendment did not go into effect until after judgment was rendered.


text:
    NORTH LOUISIANA MILK PRODUCERS ASSOC., INC., Plaintiff-Appellee, v. The SOUTHLAND CORPORATION, Defendant-Appellant.
    No. 13376.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1977.

      Booth, Lockard, Jack, Pleasant & Lesage by Joe C. LeSage, Jr., Shreveport, for defendant-appellant.
    Robert G. Pugh, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

This controversy concerns whether or not an agreement existed for the price of bulk milk delivered by the plaintiff producer to the defendant processor. Specifically, we are concerned with whether or not an offer was made, by whom, when and for what duration, and with whether or not an offer was accepted.

Judgment below was against the. defendant for the price claimed by the plaintiff producer. Defendant contends on appeal that since there was no agreement or contract as to the price, the lower court erred in supplying the price. We find there was a contract and affirm the judgment.

For several years, plaintiff supplied bulk milk to defendant’s processing plant (Midwest Dairy) in Shreveport. A state agency and a federal agency periodically (usually monthly) set minimum prices for bulk milk. Processors ordered milk from plaintiff weekly and sometimes daily. Plaintiff billed, and the processor paid, the higher of the minimum prices.

When the pricing of milk by the government agencies, even though as minimum prices, came under attack in the courts and in the legislature in 1976, the agencies set the minimum prices at an amount plaintiff’s membership thought too low. In August, 1976, plaintiff’s executive board or membership began to meet monthly and set its own price. The processors were notified of the price each month by letter. With little change in language from August, 1976, through April, 1977, plaintiff and defendant corresponded monthly, essentially in this language:

FROM PLAINTIFF TO DEFENDANT:

“Effective for the month of _, all milk purchased by your plant will be priced at $_
* * * * * *
“Your acceptance of milk from members of this association during (the month named) will constitute your agreement to these announced prices.”

PLAINTIFF’S LETTER, SEPT. 7, 1976:

“ * * * In regard to our recent conversations and correspondence concerning the pricing of milk purchased by your company from members of this association, I call your attention to pages 29 and 30 . . .of production stabilization plan, production marketing area # 1— Greater Louisiana area. This plainly states that the prices established by the state are minimum prices.
“By continuing to accept milk from members of this association in August and September you have agreed to the prices announced in our letters of August 12, 1976 and August 27, 1976.”

DEFENDANT’S REPLIES:

August IS, 1976
“I do not agree with your decision . to set the price of raw milk for the . Shreveport area . . As I see it now, the Commissioner’s set price would be the only price we could pay . . . ”
September 2, 1976
. .1 still contend we will pay the price that was announced by the Commissioner ... we will continue to pay the price that he has set for our area.”
February 28, 1977
“. . . for March ... we will continue to pay the Federal Order price
“We will pay the price announced by the Market Administrator each month. Accept this letter as a protest that we do not agree and will not pay above the Federal Order price.”

PLAINTIFF’S REPLY, MARCH 2, 1977:

“. . we do not accept your counter offer for milk ... as stated in your letter of February 28, 1977.
“All milk received by your plant from members of this association in March 1977 . will be on the terms as set out in my letter to you dated February 25, 1977.”

Defendant again responded that it would pay only the federal order price. Similarly, each manager of the respective litigants testified that he always had the last word in verbal communications with the other manager, “our price is” vs. “we won’t pay it.”

Several times each week, and even after this monthly correspondence began, another of defendant’s supervisory employees (not the manager) would telephone plaintiff’s shipping foreman, as was customary, and would order specific quantities of raw milk to be delivered almost daily. These employees, however, never discussed price. No milk was delivered except on defendant’s order. Defendant’s manager testified that defendant could have obtained, apparently with some difficulty, raw milk from a source out of state about 70 miles distant.

Plaintiff billed defendant at plaintiff’s declared prices. Defendant paid on its calculation of the government prices, but without conditioning its payment or otherwise attempting to effect accord and satisfaction. See Williams v. The Hanover Insurance Co. of New York, 351 So.2d 858 (La.App. 2d Cir. 1977). Suit was brought in December, 1976, for the difference in price, which at the time judgment was signed was $79,958. The existence or absence of an agreement as to price, and not payment is the issue.

During the years plaintiff and defendant did business together — with plaintiff as the sole supplier of milk for defendant — the quantity of milk periodically ordered by defendant did not greatly vary. The time and method of ordering and delivering of milk and billing and paying were established by custom. C.C. Art. 3. Price was not often discussed by the litigants because the price to be paid for milk was customarily established and understood.

OFFER AND ACCEPTANCE?

“No particular form is required for the offer or the acceptance. Either of them, the offer, as well as the acceptance of a contract, may be express, implied or tacit . However, as an offer is an indispensable element oí that concurrence of the wills of which the contract consists, it is of utmost importance to determine whether a certain declaration of will amounts to a real offer or is merely a declaration made without an intention of becoming bound, such as a simple proposition, or a simple pollicitation . . .”
“An offer is a proposal to do something or to refrain from doing something in return for a counter-promise, an act, or forbearance. To be considered properly as such, the offer must fulfill the following three requirements clearly established in the Louisiana Civil Code:
“(a) The design to give the other party the right of concluding the contract by his assent.
“(b) The offeror’s intention to obligate himself.
“(c) A serious intent.
“When requirement (a) is absent, the proposition cannot be considered an offer, but rather an invitation to negotiate, or an expression of willingness to receive an offer from the other party. The intention required under (b) must be that of creating a legal obligation — and not one in the moral sense or a duty in conscience. Requirement (c) will exclude, as a real offer, a proposition made in jest, as a part of a game, or at the peak of an argument
“Thus, in matters of everyday practices and dealings, it has been decided that a quotation of prices is not an offer to sell in the sense that a completed contract will arise out of the mere acceptance of the rate offered, or out of the giving of an order for merchandise in accordance with the proposed terms. But when a merchant, on request, sends a price list to a customer who orders goods in accordance with the price list, there is a contract formed between them for the price and upon conditions mentioned in the price list. The surrounding circumstances explain sufficiently the difference between the two situations: with merchants, the sending of a price list implies the intention to contract on its terms, while with persons who are not merchants, a quotation of a price implies no such intention.
“It has also been decided that an advertisement published in a newspaper may constitute an offer, the acceptance of which creates an obligation to perform in accordance with the terms of the offer.” 1 S. Litvinoff, Obligations, § 130 in 6 Louisiana Civil Law Treatise 211-213 (1969). (Footnotes omitted).
“An offer or proposal may be so worded that the offeree gets no power to accept by the words, written or spoken, T accept your offer,’ Where one party wrote to another offering to supply specified goods at certain prices for the period of twelve months in such quantities as the latter might order from time to time, — a reply by the offeree saying T accept your offer as made’ did not make a contract. This is not for lack of mutual expressions of assent, but because the form of the offer is such as to make the offeree’s expression insufficient as a consideration. By using the quoted words the offeree has made no promise to buy any quantity and has given no other consideration. Yet the proposal by the first party was an operative offer and remains so for a year unless sooner revoked. The offeree can effectively accept at any time within the year by ordering some specific quantity, thereby consummating a bilateral contract to sell and to pay for that quantity.” 1 A. Corbin, Corbin on Contracts, § 65 (2d Ed’. 1963), p. 270.

Before August, 1976, the dealings between the litigants could be viewed in two ways. Either the defendant, when placing the periodical order for a specific quantity of milk, was offering to buy at the government price as was customarily understood and practiced, or the plaintiff, by initially announcing to defendant that it had milk to sell at the government price, was offering to sell. An offer to buy a specific quantity of milk at a specific unit price would have been accepted by shipment. An offer to sell at a specific price would have been accepted by ordering a specific quantity of milk. The record does not enable us, and it is not necessary for us, to make such a determination. In any event, it would have been the specific order of the defendant upon which both parties intended to be bound.

After August, 1976, plaintiff clearly and expressly informed defendant that it would no longer abide with the custom which had existed between them and that it was offering to sell to defendant its milk at its stated price. Under these circumstances, we conclude that it made a standing or operative offer to sell for the stated period as was expressed in the monthly correspondence as well as in some telephone calls between the managers. As discussed in Corbin, supra, § 65, the contemplated acceptance of this offer was a specific order by defendant and not a promise by defendant that it would order in the future. Plaintiff’s offer remained in effect for the stated monthly period. That offer was not affected or revoked by defendant’s grumbling about price and it would not have been revoked even by an offer (or counter offer) from the defendant. See Corbin, supra, § 84, § 92, Litvinoff, supra, § 140, La.C.C. Arts. 1801, 1804, 1809.

On the other hand, and after August, 1976, defendant merely sought to get plaintiff to agree to continue to sell milk at the government price (“we will pay only . etc.”), which plaintiff would not do. Thus, we consider the offer which was made an offer to sell rather than an offer to buy. Defendant could have made, but did not make, an operable offer to buy (an order of a specific quantity at a specific price, “Please ship us X quantity of milk this date at the government price”). ■

“In order to deserve the name ‘counter offer,’ it must be so expressed as to be legally operative as an offer to the party making the prior proposal. It is not a counter offer unless itself is an offer, fully complying with all the requirements that have been previously discussed.” Corbin, supra, § 89, p. 379.
“In order to be legally operable and to create a power of acceptance, it is necessary that the offer shall contain all of the terms of the contract itself. It is not enough for one party to say what he will do; he must also say what he will do it for, that is, what the other party must do in exchange.” Corbin, supra, § 11, p. 26.

We hold that plaintiff made an operative offer to sell to defendant at stated prices for a stated period of time, the acceptance of which was contemplated to be an order made by defendant for a specific quantity of milk. We hold that defendant’s correspondence did not constitute an operable offer to buy from plaintiff because the correspondence did not order a specific quantity of milk at a specific price. We further hold that when the defendant’s employee verbally placed a periodical order for a specific quantity of milk, and without conditioning the order as to price, each periodical order constituted an acceptance of plaintiff’s standing offer to sell at its stated price which was in effect at the time rather than constituting an offer by defendant to buy the specific quantity of milk at a specific price.

A case with similar facts involving bulk milk prices, reaching the same result under common law principles, is Akron Milk Producers, Inc. v. Isaly Dairy Co., 109 Ohio App. 155, 164 N.E.2d 579 (1959).

At appellant’s cost, judgment is

AFFIRMED.


author: SCHOTT, Judge.

text:
    Jacques J. CREPPEL et al. v. The PARISH OF JEFFERSON et al. (two cases).
    Nos. 8896, 9059.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 31, 1977.
    Rehearing Denied Dec. 13, 1977.

      Joseph E. Leblanc, Jr., Metairie, for plaintiffs-appellants.
    Harry Lee, Gretna, for Parish of Jefferson, et al, defendants-appellees.
    Before BOUTALL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

These injunction proceedings arose out of changes made by the Jefferson Parish Council in a drainage project affecting property owned by plaintiffs on the west bank of Jefferson Parish. From a judgment denying a preliminary injunction plaintiffs applied for supervisory writs and also took an appeal. We granted a writ of certiorari because it appeared that defendants were about to spend funds derived from a bond issue for purposes inconsistent with those publicly announced when the election authorizing the issue was conducted. We also granted an expedited appeal in the matter, and with the arrival of the transcript and record on appeal the two matters were consolidated.

Plaintiffs’ land is bounded generally on the west and south by Bayou des Families and Barataría Boulevard, on the east by the Gulf Intercoastal Waterway and on the north by a V-shaped levee. Located within the area is Bayou Aux Carpes, which runs from the Gulf Intercoastal Waterway in a northwesterly direction toward the V-shaped levee. Also located on the south between the end of Bayou des Families and the beginning of the Gulf Intercoastal Waterway is Bayou Barataría. The land is a marshy area or wetlands subject to tidal overflow from the south.

On August 15, 1963, the Jefferson Parish Council adopted Resolution No. 5515 approving of a flood control project proposed for the area by the United States Army Engineers. Under this resolution the Council agreed to provide rights of way for new levees and to construct a pumping station at the mouth of Bayou Aux Carpes. The project involved the construction of new levees as well as the raising of the V-shaped levee on the north. Dams and dikes were to be placed at the mouth of Bayou Aux Carpes and at Bayou des Families. With the installation of the pumping station at the mouth of Bayou Aux Carpes the land would be drained and reclaimed for residential and industrial development. The project was to be financed with $1,000,000 of federal funds and $3,600,000 from a bond issue of Jefferson Parish Consolidated Drainage District No. 1.

On April 29, 1967, the bond issue was passed by the voters of the drainage district. On May 1, 1969, a servitude was granted by plaintiffs to the parish for constructing, maintaining and operating levees and drainage ditches involved in the project. In 1971 construction started and in 1973 Phase 1 of the project was completed. This included construction of levees and placement of the dams and dikes at the mouth of Bayou Aux Carpes and at Bayou des Families. By the end of 1974 Phase 2 which would involve primarily construction of the pumping station was to begin, but in November, 1974, the project was halted because of objections from a number of environmental groups. The Corps of Engineers then conducted a public hearing as required by § 404 of the Federal Water Pollution Control Act of 1972 (FWPCA), 33 U.S.C.A. 1344, and in March, 1975, a statement of findings was issued by the District Engineer in which he concluded that public interests would be best served by construction of the project. But the Corps of Engineers continued to encounter opposition from the Environmental Protection Agency of the United States. In October, 1975, the Corps, again requesting EPA approval for the project, concluded that then prevailing considerations might prevent the project from being completed if it were just beginning but insisted, in view of the fact that the project was approved in 1964 and was about 80% complete, it was reasonable to go ahead with the project. On March 31, 1976, EPA made a report, expressing a number of concerns adverse to the project. After much additional study, revised findings of fact were issued by the Corps on June 30, 1976. Once again the project was recommended as being in the public’s best interest.

At this point the Corps had received threats of a lawsuit by various environmental groups and warnings that the EPA would exercise its right to veto the project under § 404(c) of the FWPCA. Accordingly, on August 27, 1976, the Corps officially notified EPA that it would resume construction on the project within 15 days unless EPA exercised its veto in the meantime. On September 10 EPA responded as follows:

“I am in receipt of your letter of 27 August 1976 regarding the Harvey Canal-Bayou Barataría Levee project, Louisiana. Because of the involvement of EPA’s Dallas office, I have asked the Dallas Regional Administrator to assist me in preparing a response to your letter. “As you are aware, EPA is gravely concerned over the environmental impacts that are likely to result from granting this permit. Because of these continuing concerns, and the time necessary to prepare EPA’s response, we will not be able to provide you with our detailed response within the time frame you requested. “We ask, therefore,' that the Corps take no action regarding the resumption of construction by Jefferson Parish until we have completed our review.”

On October 7, 1976, at a meeting held among representatives of EPA, the Corps, Congress, Jefferson Parish and environmental organizations, a spokesman for some of the environmental groups stated that they would be satisfied if the plan were revised to the extent that pumping station would be eliminated from the plan and the dams and dikes at Bayou des Families and Bayou Aux Carpes would be replaced with flood gates which would remain open except in time of hurricane, with the result that the land of plaintiffs would be maintained as wetlands and would not be drained. At the same time the same environmental groups had been obstructing the completion of a highway between Lafitte and LaRose, and they offered to compromise both of these disputes by withdrawing their opposition to the highway project in return for the Parish abandoning the Bayou Aux Carpes pumping station and adopting the flood gates plan. The members of the Parish Council indicated a willingness to go along with this compromise, but wanted the Corps to come forward first with a directive withdrawing approval of the project which they would follow up with a resolution abandoning the pumping station project and converting to the flood gates project.

On October 14, 1976, the Ecology Center of Louisiana, Inc. directed a letter to the Corps of Engineers and to the President of the Jefferson Parish Council confirming his understanding of agreements made at that October 7 meeting substantially the same as outlined above.

On November 16,1976, the Corps issued a revised statement of findings in which it noted EPA’s continuing objections to the project as originally designed and concluded that flood control could be accomplished by completion of the dikes along Bayou Bara-taría, removal of the dikes closing Bayou Aux Carpes and Bayou des Families, replacement of the dikes with movable flood gates and elimination of the pumping station, so as to restore and maintain normal water flows in the area.

On April 14, 1977, this suit was filed alleging the foregoing facts as well as the following: At the October 7 meeting Jefferson Parish Councilmen Giardina, Lawson and Miller were advised by General Wilson of the Corps of Engineers that they would continue to support completion of the project, as originally conceived, despite objections by EPA and the environmentalist groups, but on that afternoon General Wilson was advised by Giardina that the Council would go along with the proposed compromise offered by the environmentalists. On the same day at another meeting between Giardina, the Parish attorney and General Wilson, the Parish officials expressed fear that entrance into the compromise would subject the Parish to legal action so, in order to insulate the Parish, they requested that the Corps initiate the action to abandon the original project. A further contact was had between General Wilson and Parish President, Douglas Allen, in which the latter assured Wilson that if the Corps abandoned the pumping station there would be no political repercussions from the Parish. Since Resolution No. 5515 authorizing the project in August, 1963, had never been rescinded but, on the contrary, was reaffirmed on four occasions, this action of the Parish officials was unauthorized.

Plaintiffs alleged further: The defendants continued to disregard Resolution No. 5515 and the successive resolutions by 1) meeting with representatives of the Corps on March 23, 1977, in order to implement the order of November 16; 2) considering an application for a permit to explore for gas in Bayou Aux Carpes, which permit, if granted, would require the removal of the dams and dikes at Bayou Aux Carpes and the dredging of the bayou, and 3) entering into a compromise agreement to settle pending litigation over the construction of the Lafitte-LaRose Highway.

Plaintiffs prayed for a temporary restraining order and a preliminary injunction against defendants prohibiting them from expending any of the bond issue funds for purposes not specifically authorized thereby, expending any other parish funds without authority and contrary to Resolution No. 5515, entering into an agreement to compromise the Lafitte-LaRose Highway project suit on the basis of abandoning the pumping station at Bayou Aux Carpes or removal of the dams and dikes at Bayou Aux Carpes, issuing a permit for gas exploration which would entail the removal of the dams and dikes, taking any action which would purport to use the lands covered by the right of way agreement between plaintiffs and the defendants for purposes other than completion of the project and construction of the pumping station as originally authorized and taking any action to implement the order of November 16.

On May 3, 1977, plaintiffs filed a supplemental and amending petition in which they alleged that defendants had passed a resolution on April 21 authorizing abandonment of the pumping station at Bayou Aux Carpes and letting a contract out to engineers for the design of the flood gates to be built in lieu of the dam and pumping station as theretofore planned. They now alleged that this new resolution, as an attempt to revoke and rescind the earlier resolution, was a divestiture of contractual rights in violation of the Constitutions of the United States and the State of Louisiana, and the taking of property without just compensation. In addition to the relief they sought in the original petition, plaintiffs now sought a temporary restraining order and injunction against defendants to prohibit them from implementing this new resolution.

The case went to trial strictly on a rule for a preliminary injunction. Defendants were asked to stipulate that the merits of the permanent injunction be tried simultaneously but they specifically declined to make this stipulation. Thus, the judgment appealed from is not a judgment on the merits but only a judgment dismissing a rule for preliminary injunction.

In Employer’s Overload Co. v. Employer's Overload Co., N.O., 266 So.2d 546 (La.App. 4th Cir. 1972) writ refused, 263 La. 375, 268 So.2d 260, this court discussed the difference between a judgment on a preliminary injunction and one on the merits, i. e., for a permanent injunction. The preliminary injunction is interlocutory and conservatory in nature. Its purpose is to maintain the status quo between the litigants on a prima facie showing that to do otherwise would cause irreparable injury pending a decision on the permanent injunction which would dispose of the issues with finality. The preliminary injunction may issue on a prima facie showing whereas a permanent injunction requires a preponderance of the evidence to support its issuance. See also, West Publishing Co. v. Intrastate Pipeline Corp., 254 So.2d 643 (La. App. 4th Cir. 1971), Picard v. Choplin, 306 So.2d 918 (La.App. 3rd Cir. 1975).

In declining to issue a preliminary injunction the trial judge gave extensive written reasons for his action, and we perceive that because he did not consider the above stated difference between the trial of a preliminary injunction application and that of the merits of the permanent injunction, he erred in his judgment.

The record clearly shows that the pumping station project had generated serious and determined opposition from a number of environmental groups who successfully gained the support of the Environmental Protection Agency of the United States. The last official action taken by the EPA before the meeting of October 7 and those events which led to the issuance of the November 16 order by the Corps of Engineers was the letter quoted in full in this opinion which left open the possibility of a veto of the project by the EPA. Nevertheless, General Wilson testified that the Corps would have fought to complete the pumping station over the objections of EPA and the environmentalists had the Parish continued on this course, and there is a clear inference that the reversal of the decision by the Corps was the result of the decision by the Parish officials to abandon the project notwithstanding the fact that Resolution No. 5515 and the four successive resolutions of the Parish Council calling for completion of the project was still the official position of the Parish.

The Parish President, Douglas Allen, who participated in the decision making process which eventually indicated a willingness on the part of the Parish to abandon project as originally envisioned was undoubtedly convinced in his own mind that the pumping station could never be built. He testified about other experiences the Parish had when other projects had been started at great expense to the Parish and were subsequently halted because of opposition from environmentalists. Thus, he felt that the conversion of the project from the pumping station to the flood gates concept was the only practical solution.

Even General Wilson, who was willing to fight for the project admitted that a threatened suit in Washington by a Washington law firm in behalf of the environmentalists would probably be lost by the Corps and the Parish because of past experiences he had in the Washington courts.

There are references in the pleadings and briefs to a suit filed by plaintiffs in the federal district court here in which they are attacking the validity of the Corps’ order of November 16, and while we are not officially aware of the status of that suit, counsel for plaintiffs in oral argument stated that the federal case is being held in abeyance pending the outcome of these proceedings.

From the foregoing, we are concerned that there are many issues involved which were not disposed of at the trial of the rule but which can only be adequately dealt with at the trial on the merits.

Another such issue emerging from the record is the effect of the agreement if any which was made for the Parish officials to trade off their support for the pumping station project in exchange for the environmentalists abandoning their opposition to the Lafitte-LaRose Highway project. The record does not show the extent to which the latter project has progressed, but it may be that governmental priorities and benefits involved will require ultimate enforcement of the compromise agreement.

The record of the trial on the preliminary injunction does not show the extent of benefit from the flood control project as it now stands if the project is not completed. There were two distinctive features of this project, 1) a flood control project as such, and 2) a land reclamation project. The latter aspect is lost unless the pumping station is completed. On the other hand, the construction of the levees and the raising of the V-shaped levee seem to afford some flood protection to individuals in the area even if nothing further is done on the project.

We have concluded that plaintiffs made out a prima facie case for the proposition that this project would never have been started had it not been for the pumping station feature because the cost of the project was justified by the benefits to be derived from land reclamation. Without the latter its cost as a pure flood control project with the flood gates outweighed its benefits. Thus, plaintiffs may suffer irreparable harm as citizens and taxpayers if the project as originally conceived is not completed considering the amount of money already spent on the project. A trial on the merits may dispose of this issue adverse to plaintiffs considering all of the other circumstances of the case, but in the meantime plaintiffs are entitled to a preliminary injunction to preserve the status quo.

We have also concluded that plaintiffs made out a prima facie case to show that they might suffer irreparable injury as taxpayers in that defendants are now in the process of expending bond issue funds for a purpose which was not contemplated in the original call and the public notices given in connection therewith. The trial court concluded that the construction of the pumping station at Bayou Aux Carpes was only a small part of the complex bond issue and was not of sufficient consequence to warrant the issuance of a preliminary injunction on this basis, but we disagree. Plaintiffs presented evidence to show that this pumping station was of sufficient import to the people in the drainage district that some would not have voted for the bond issue except for that feature. This evidence surely supports the conclusion that defendants should not spend these funds on something other than the pumping station project pending a trial on the merits. To hold otherwise would permit the defendants to dissipate these funds and make this part of the case moot by the time of the trial on the merits.

Finally, plaintiffs have made out a prima facie case that as citizens of the Parish they are entitled to a preliminary injunction preventing Parish officials from taking action which is contrary to official positions previously taken by them. As recently as June, 1976, the Parish Council had reiterated its support for the project in a formal resolution. This followed a meeting at which proponents and opponents had been heard by the Council. This occurred just after several new councilmen took office and the purpose of the hearing was to determine if the project still had the Council’s support. It may be that a trial on the merits will demonstrate that the actions of the councilmen in disregarding these formal resolutions were fully justified, but until the merits are tried plaintiffs are entitled to have the status quo maintained, i. e., to prevent defendants from abandoning the project in the meantime.

Finally, it may be that a trial on the merits would lead to the conclusion that plaintiffs are not entitled to a permanent injunction because they can be adequately compensated with damages in the event that they prevail. Plaintiffs included in their prayer for relief on the merits a plea for damages as an alternative to injunctive relief. But this does not detract from plaintiffs’ right to a preliminary injunction at this time.

Accordingly, the judgment appealed from is reversed and set aside to the extent that plaintiffs’ rule for a preliminary injunction against defendants is made absolute, enjoining and prohibiting them from expending any of the funds which originated from the bond issue election conducted by the Parish of Jefferson and Consolidated Drainage District No. 1 on April 29,1967, for any purpose other than that included within the original project, including the construction of a pumping station at Bayou Aux Carpes, and enjoining and prohibiting defendants from abandoning the project as authorized by Resolution No. 5515 of August 15, 1963, and by such bond issue.

The case is remanded to the trial court for the purpose of fixing a bond to be furnished by plaintiffs as a prerequisite to the issuance of this preliminary injunction in accordance with law and for further proceedings consistent with the views we have expressed. The costs of this appeal are assessed against defendants and the other costs are to await the outcome of the trial on the merits.

WRIT MADE PEREMPTORY, REVERSED AND REMANDED.


author: SAMUEL, Judge.

text:
    William O. JOHNSON v. William S. LEE.
    No. 8439.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Band & Hopkins, Leo Jerome Lahey, Gretna, for plaintiff-appellee.
    Calvin J. Laiche, Westwego, for defendant-appellant.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff, a certified public accountant, instituted this suit for $750 for professional services rendered to the defendant. He obtained a default judgment for that amount. After the delay for taking an appeal had expired, defendant filed a petition seeking nullity of the judgment and injunctive relief preventing its execution.

Following a hearing of the rule to show cause why a preliminary injunction should not be issued, there was judgment refusing to issue the preliminary injunction. Defendant has suspensively appealed from that judgment. The trial court has heard only the rule for a preliminary injunction.

Our courts will extend injunctive relief only when irreparable injury is imminent and, in order for a preliminary injunction to issue, the one seeking such an injunction must make a prima facie showing that he would suffer irreparable injury if the same is not granted. In addition, “irreparable injury” such as will warrant the issuance of an injunction is that injury, loss or damage for which damages cannot be measured by a pecuniary standard.

Here, the evidence offered at the trial of the rule was concerned mainly, and almost exclusively, with the merits of the suit to annul and, as those merits will be heard by the trial court at a later date, we prefer not to discuss or comment upon the same. It suffices to say we agree with the trial court’s conclusion that appellant failed to make the prima facie showing required for issuance of the preliminary injunction he seeks. This is particularly true in view of the fact that the record is devoid of any evidence showing any possible loss or damage to appellant other than satisfaction of the $750 judgment, which amount he admits he is quite capable of paying.

For the reasons assigned, the judgment appealed from is affirmed and the matter is remanded to the trial court for further proceedings in accordance with law.

AFFIRMED AND REMANDED.

      . Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83; State Board of Ed. v. National Collegiate Ath. Ass’n, La.App., 273 So.2d 912.

      . Schwegmann Bros. G. S. Mkts. v. Louisiana Milk Com’n., La., 290 So.2d 312; West Publishing Co. v. Intrastate Pipeline Corp., La.App., 254 So.2d 643.

        . State Board of Ed. v. National Collegiate Ath. Ass’n, supra, note 1.


text:
    LAKE FOREST, INC., Pati-Four and the Ground Pat’i, Inc. v. Edward R. DRURY and C. Reese Owen, Jr., a/k/a Clarence Reese Owen, Jr.
    No. 8461.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearings Denied Dec. 13, 1977.
    Montgomery, Barnett, Brown & Read, Omer F. Kuebel, Jr. and Patrick J. Browne, New Orleans, for Lake Forest, Inc., plaintiff-appellant;
    Reuter & Reuter, J. Richard Reuter, Jr., New Orleans, for The Ground Pat’i, Inc., plaintiff-appellant.
    Edward R. Drury, New Orleans, Clark A. Richard, Metairie, for Edward R. Drury, defendant-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

By this suit the plaintiffs, Lake Forest, Inc., the owner and the lessee of commercial property, seek injunctive relief to enforce a building restriction in the chain of title in defendants’ property. The defendants answered, denying plaintiffs’ right to injunctive relief.

Following trial of the rule for a preliminary injunction, there was judgment denying and dismissing the rule. Plaintiffs have appealed.

The properties involved are located in New Orleans on the eastern side of Read Boulevard to the north of U.S. Interstate Highway 10. They are zoned for commercial use and are contiguous. The northernmost lot was purchased by the plaintiff, Pati-Four, who then leased the lot to a restaurant known as The Ground Pat’i, Inc. The restaurant building was constructed on the lot with a setback of 50 feet from the Read Boulevard property line, the first 50 feet of the property being used for parking purposes.

Approximately a year and four months later, defendants acquired the adjoining lot (to the south of the Ground Pat’i). About a week after that acquisition, defendants began construction of a shopping center building, a part of which extended to the front property line. Thus, defendants’ building removes the view .of the Ground Pat’i Restaurant from traffic proceeding in a northbound direction on Read Boulevard because the restaurant is set back 50 feet further than defendants’ shopping center building.

This suit is based on a building restriction placed on a large 6-acre tract of land by plaintiff, Lake Forest, Inc., in a sale to Joseph M. Rault and Stanley D. Fejta on December 29, 1972. Both lots involved in this case were later subdivided from the parcel originally sold by Lake Forest, Inc. In the sale by Lake Forest to Rault and Fejta, the following building restriction was placed upon all of the property:

“No building or structure shall be erected or placed on the property herein conveyed until the construction plans and specifications and a plan showing the location of the building or structure have been approved by the Seller as to quality of workmanship and materials, harmony of external design, location with respect to topography and finished grade elevation. In the event Seller fails to approve or disapprove within 30 days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval of the Seller will not be required. This provision shall constitute a convenant running with the land and may be enforced by proceedings in law or equity against any person or persons violating this covenant, either to restrain any violation or to recover any damages by the Seller and its successors and assigns.”

The record indicates defendants were not notified of any disagreement with their building plan until after construction had begun. Following such notification, defendant Drury met with a representative of Lake Forest, Inc., presented plans and specifications for approval on June 15,1976, and Lake Forest expressed no objection to them at that time. Defendants continued construction, but they later received a letter and a telegram dated July 12, 1976 from Lake Forest advising them a setback would be required from the property line. A meeting was again arranged, and after some time elapsed after that meeting, defendants were advised by Lake Forest, Inc. they would be required to have their building set back 25 feet from the property line or the plans would not be approved.

Plaintiffs concede there has never been a Louisiana case approving a building restriction drafted in a similar manner to the one in suit. They rely on various decisions from common law jurisdictions which have upheld such a restriction. However, in Louisiana building restrictions similar to common law restrictive covenants have been consistently regarded as a form of predial servitude. These restrictions are interpreted and enforced under the provisions of the Civil Code relating to servi-tudes, and they are subject to the same limitations as civil law servitudes. In order to be valid and enforceable, a building restriction must comply with the provisions of the Civil Code.

Article 753 of the Louisiana Civil Code reads:

“Servitudes which tend to affect the free use of property, in case of doubt as to their extent of the manner of using them, are always interpreted in favor of the owner of the property to be affected.” LSA-C.C. Art. 753.

In McGuffy v. Weil, the Supreme Court recognized the limitations on the incum-brance of property with building restrictions as follows:

“The law favors the free and unrestrained use of immovable property. It follows that any doubt as to the interpretation of a servitude encumbering property must be resolved in favor of the property owner. LSA-Civil Code, Article 753. The intention of the proprietor to establish a servitude must clearly appear from the title document.”

The building restriction in suit provides that no building shall be erected until its plans have been approved by Laké Forest, Inc. “as to quality of workmanship and materials, harmony of external design, location with respect to topography and finished grade elevation.” A reading of the restriction will show there are no tests, guidelines or other standards by which Lake Forest, Inc. is obliged to guide itself in the granting or withholding approval. While uniformity of development and compatibility of improvements in an area have been regarded as legitimate concerns of a developer and purchasers buying from the developer, Louisiana has never permitted the enforcement of vague and indefinite restrictions which do not set forth the limitations placed on the use of property.

In Murphy v. Marino, the court said:

“It is our understanding of the law that in order to create a binding covenant running with the land in a subdivision, and enforceable by any purchaser of property therein, there should be a uniform plan of restriction applicable to the subdivision as a whole, or to a particular part of the subdivision known to each purchaser and thereby by reference, or implication, forming a part of his contract with the subdivider.”

The vague wording of the restriction in question cannot be squared with Louisiana’s policy of favoring the free and unrestrained use of immovable property or with the requirement that building restrictions should be known to each purchaser in order to form a part of his contract with the subdivider. Here, the wording of the restriction is so vague and ambiguous it constitutes a reservation in favor of Lake Forest, Inc., to dictate to any future purchaser of the property precisely what he can build thereon on penalty of not being able to build at all.

This conclusion is emphasized by the present controversy. There is no provision whatever in the restriction regarding building setbacks from the property line. Should such a restriction have been important to the developers it should have been placed in the building restriction where buyers could have seen and considered it prior to making purchases in the area subject to the restriction. Under the present wording, the effective development of the land subject to the restrictions could be postponed indefinitely while a potential builder continued time after time to submit new and different plans and specifications for the approval of the developer. Without some guidelines stated in the restriction, a potential builder has no way of ascertaining what, if anything, the developer would approve or disapprove. Such a restriction is indeed too burdensome and inhibits the free use and development of immovable property.

The record further discloses Lake Forest, Inc. did not establish any machinery for the approval of plans and specifications submitted to it prior to construction. The only persons who ostensibly possess authority to approve or reject such plans are two officers of Lake Forest, who appear never to have been authorized by any specific board of directors resolution to exercise this power. Howard Beck, the president of Lake Forest, Inc., stated at the trial he regarded that authority as his in his capacity as president of the company. Moreover, neither board of directors resolution nor executive policy has set forth any standard or guidelines by which applications for approval of plans and specifications would be judged.

In addition, Mr. Beck testified he considered standards and restrictions imposed on surrounding tracts of ground, but not imposed upon defendants’ lot, in order to arrive at a decision regarding the setback from the property line. Because building restrictions are strictly construed in favor of the free use of immovable property, this testimony demonstrates the wisdom of not enforcing a building restriction worded in such a vague and ambiguous manner as the one in suit. Without standards or guidelines, the developer has carte blanche to sell the property and at the same time maintain dictatorial control over its use and development. If such a result has been approved in other states, it is contrary to the meaning and spirit of our law and, as such, unenforceable in Louisiana.

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

AFFIRMED.

      . Compare Community Builders, Inc. v. Scarborough, La.App., 149 So.2d 141.

      . See, for example, Camelot Citizens Association v. Stevens, La.App., 329 So.2d 847.

      . 240 La. 758, 125 So.2d 154.

      . La.App., 60 So.2d 128.

      . See Community Builders, Inc. v. Scarborough, La.App., supra, note 1.


text:
    Mrs. Elaine Morlas ORY v. LOUISIANA AND SOUTHERN LIFE INSURANCE COMPANY.
    No. 7917.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Gamble & Gamble, Harry P. Gamble, III, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit to recover life insurance benefits in the sum of $20,000 under a group policy issued to her deceased husband by the defendant, Louisiana and Southern Life Insurance Company. Following trial on the merits, judgment was rendered in favor of the defendant, dismissing the suit. Plaintiff has appealed.

The facts are not in dispute. Mr. Ory was president of Marshland Flight, Inc., the group to which the policy was issued on May 1, 1970. He became totally disabled following a cancer operation on January 18, 1972, at which time the policy was in full force and effect. As of that date his active employment terminated. On April 7, 1972 the corporation was adjudicated a bankrupt. When defendant became aware of the bankruptcy, it terminated the policy, effective April 30, 1972, the date to which premiums had been paid. Mr. Ory died June 15, 1972.

Sometime prior to April 13,1972, Mr. Ory had submitted an application for waiver of premium which was denied by the insurer on May 4, 1972 for the reason that there were no life insurance benefits for which waiver could be granted inasmuch as all life insurance benefits automatically ceased from the date of the termination of the policy. The defendant continued to honor medical benefit payments due under the disability provisions of the policy, but it refused to honor the claim in suit for life insurance benefits.

At issue are these two provisions contained in the master policy:

“WAIVER OF PREMIUM BECAUSE OF TOTAL DISABILITY
If, while this policy is in force, due proof is furnished to the Company
(1) that any person, while insured hereunder and prior to his sixtieth birthday, became so disabled as a result of bodily injury or disease that he was wholly prevented thereby from engaging in any business or occupation and from performing any and all work for compensation or profit, which condition is referred to herein as ‘total disability’,
(2) that the insurance hereunder of such person terminated while he was so disabled,
(3) that such disability was continuous from the date of such termination of insurance to the date of death of such person, and
(4) that such death occurred within a period dating from such termination of insurance not longer than the time that such person’s insurance had been continuously in force at the date of such termination of insurance, but in no event longer than one year,
then the Company shall pay as a claim under this policy, the amount of life insurance applicable to such person according to the plan of insurance set forth herein, provided said proof is received at the Home Office of the Company (the Home Office address of the Company is shown on the face page) within one year after such date of death, unless claim is otherwise established hereunder because of death occurring within thirty-one days following termination of insurance.”
“TERMINATION OF GROUP LIFE INSURANCE
The Group Life Insurance of any person hereunder shall cease at the end of the insurance period for which contribution was last made if his employment or membership in the classes eligible for insurance hereunder terminates, or if the provisions of the Policy for his insurance terminate, or (if he is required to contribute toward the cost of his insurance) if he fails to make any contribution when off.
Cessation of active work in the eligible classes will be deemed to constitute termination of employment. However, the Policyholder, acting on a basis precluding individual selection, may consider any person who is disabled, granted leave of absence, temporarily laid off, or retired as still employed in the eligible classes until the Policyholder terminates the insurance of such person by notifying the Company to that effect or by discontinuing premium payments on account of his insurance, provided, that the employment of any person in the eligible classes shall not be deemed to continue for longer than three months following the date on which he begins a leave of absence or is temporarily laid off, nor for longer than twelve months following the date on which absence on account of disability commences.
In any event, all insurance hereunder shall automatically cease on the date of the termination of this policy.” (Emphasis ours).

The defendant was furnished with proof of disability when Mr. Ory submitted his application for Waiver of Premiums on April 13, 1972, while the policy was in effect. In addition, the other four other requirements of the “WAIVER OF PREMIUM BECAUSE OF TOTAL DISABILITY” were met. As to (1), it is clear the decedent became totally disabled as defined in the provision as a result of bodily disease following his cancer operation on January 18, 1972 during the time his insurance was in effect and, as stipulated, prior to his sixtieth birthday. As to (2), the insurance terminated while the decedent was so disabled. As to (3), the disability was continuous from the date of such termination to the date of death." And finally, as to (4), the death occurred within a period dating from the April 30, 1972 termination of insurance not longer than the time Mr. Ory’s insurance had been continuously in force at the date of such termination and within less than one year of that termination. Thus, the defendant was obligated to pay the life insurance benefits under that portion of the above quoted provision following the four numbered requirements which reads “then the Company shall pay as a claim under this policy, the amount of life insurance applicable to such person according to the plan of insurance set forth herein, . . ” (emphasis ours).

The underscored sentence appearing at the end of the above quoted “TERMINATION OF GROUP LIFE INSURANCE”, which provides that all insurance automatically ceases on the termination of the policy, thus conflicts with the discussed wording of the “WAIVER OF PREMIUM BECAUSE OF TOTAL DISABILITY”. However, it is a well established rule in Louisiana law that a policy of insurance is a contract between the insurer and the insured, and is to be enforced in accordance with its terms where such terms are clear and unambiguous. Such a contract is not to be given a strained, forced or unreasonable interpretation, but a fair, reasonable and sensible construction compatible with the apparent object and plain intention of the parties as expressed in words of the agreement.

It is equally well settled that any ambiguity in the contract is to be resolved against the insurer and in favor of the insured and when a policy admits of two interpretations the claim for the one sustaining indemnity will be adopted.

Furthermore, where the insurance contract is drawn exclusively by the insurer without participation of an insured, any possibility of doubt in interpretation thereof must be construed in favor of coverage.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Mrs. Elaine Morías Ory, and against the defendant, Louisiana and Southern Life Insurance Company, in the full sum of $20,000, together with legal interest from date of judicial demand until paid. All costs in both courts are to be paid by defendant-appellee.

REVERSED.

      . Defendant learned of the bankruptcy from a former Marshland employee who was inquiring about his own benefits.

      . We are aware of Walker v. Fidelity Bankers Life Insurance Company, La.App., 302 So.2d 397, but in that case the policy provision simply was to keep the life insurance in force without payment of premiums while in this case the commitment is to pay the claim.

      . Hobbs v. Fireman’s Fund Am. Ins. Companies, La.App., 339 So.2d 28; Nunn v. Hanover Insurance Company, La.App., 305 So.2d 676; Maggio v. Manchester Insurance Co., La.App., 292 So.2d 255; Corkern v. Main Insurance Company, Chicago, Ill., La.App., 268 So.2d 138.

      . Kendrick v. Mason, 234 La. 271, 99 So.2d 108; Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111; Cason v. Pan-American Life Ins. Co., La.App., 338 So.2d 138; Graham v. Maryland Casualty Co., La.App., 230 So.2d 264.

      . O’Donovan v. Bankers Life & Casualty Company, La.App., 305 So.2d 643; Phillip Rosamond Drilling Co., Inc. v. St. Paul F. & M. I. Co., La.App., 305 So.2d 630.


author: REDMANN, Judge.

text:
    Hubert L. AVERY v. BUCK STEBER, INC.
    No. 8440.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Harold J. Lamy, Dodd, Barker, Bou-dreaux, Lamy & Gardner, New Orleans, for plaintiff-appellant.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for defendant-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of his suit upon an employment contract for wages for a period of disability. We affirm.

Plaintiff, a diver, was at work in the Suez Canal on June 21, 1974 in 40' to 55' of water. Circumstances prompted his surfacing, being on the surface over ten minutes, diving again, dropping to the bottom, surfacing briefly and then returning to ten feet of water for 14 minutes of decompression. Plaintiff testified he didn’t “think” that was enough decompression for such a repetitive dive. At about two o’clock the next morning plaintiff awoke with numbness in his left hand and arm and then had trouble sleeping. Defendant’s diving superintendent “considered it a possible case” of the bends. He provided 36 to 40 hours of treatment in a decompression chamber. Pressure equivalent to 60' of water afforded no relief; pressures equivalent to 165' of water “seemed” to help. By the time of his return to surface pressure, plaintiff experienced pain, swelling and stiffness rather than simple numbness of his hands. About June 23 or 24 plaintiff noticed that his urine was changing color. About ten days later his face began to turn yellow.

On July 5 he was hospitalized with infectious hepatitis. On July 12 he was discharged from the hospital. Plaintiff sues for wages from that date until the end of his contract on December 15.

The applicable contractual provision is garbled:

“In the event employee becomes sick, ill or injured during the period of this contract, which illness, sickness or injury contracted and/or not related to diving or salvage operation, the employee will receive no pay for the time that he is sick, ill or injured unless the illness or injury arises from flu, common cold, diarrhea or such diseases listed in International Immunization or accident received on job site.”

The most we can firmly say of this provision is that its last half stipulates “no pay” unless for (more or less) specified illness or job-site accident. Plaintiff would have us interpret the first part of the provision to grant sick pay for illness, sickness or injury related (rather than “and/or not related”) to diving operations. Were this interpretation a plausible one we would accept it because of rules construing contracts against the obligor who drafted it, C.C. 1957 and 1958. Instead, we reject this interpretation as implausible both because it appears to substitute the contradictory of the “not related” language and because it makes the later grant of pay for “accident received on the job site” superfluous; see C.C. 1946 and 1951. At best, in the absence of any evidence upon which to grant reformation of the contract, one might surmise it intended to say “which illness, sickness or injury contracted and/or [received is] not related to diving . . . .” The paragraph in any case says an employee “will receive no pay” unless for an illness specified or job-site accident.

The trial judge concluded, on ample evidence, that plaintiff’s disability came from hepatitis (although he also concluded that plaintiff had suffered the bends, to an extent “not established”, which “fades away” into insignificance by the time of hospitalization for hepatitis). We are not in a position to disagree with that factual conclusion.

Accordingly we must agree with the trial judge’s conclusion that no injury on the job disabled plaintiff and that he cannot recover on that theory.

We also affirm the implied rejection of plaintiff’s contractual interpretation that any illness related to the employment is compensable. One might conclude that, more probably than not, plaintiff would not have contracted infectious hepatitis had he not gone to the job area. The medical evidence would support such a conclusion. But — so far as we can tell — the contract only provides pay for illness “from flu, common cold, diarrhea or such diseases listed in International Immunization” and plaintiff did not show that hepatitis is so listed.

Affirmed.

      . One expert testified that the fact that treatment at the simulated original depth did not relieve the symptoms “raises some question as to whether it was decompression sickness in the first place.”


text:
    Albertine MILLER v. Henry BROCK.
    No. 8479.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.
    Paul G. Aucoin, Vacherie, for plaintiff-appellant.
    Michael K. Heltz, Baton Rouge, Thomas J. Kliebert, Gramercy, for defendant-appel-lee.
    Before SAMUEL, REDMANN and BOU-TALL, 33.

   REDMANN, Judge.

At a “Meet the Candidates” political gathering sponsored by a nonpartisan group, defendant school board member and candidate for assessor declared, after questioning from plaintiff (although defendant denies having done so), something like “This woman has got a problem. She wanted a job but she wasn’t fit” (or “was unfit”). Plaintiff sued for defamation and now appeals from the dismissal of her suit.

Plaintiff was an active and valuable member of her community. She assisted in bringing there a breakfast program and a summer food program; she aided neighbors in social security and food stamp problems; she served for most of a school year as a volunteer teacher’s aide. A high school graduate, she also attended 25 hours of classes at the Institute of Human Relations at Loyola University in New Orleans during the time she worked as a volunteer teacher’s aide. When funding to pay teacher’s aides became available, she wanted and felt that she had worked for and had been recommended (by the program director) for employment as a paid teacher’s aide. However, she was not so employed, despite the program director’s preference for employing those who had worked as volunteers. (She has sued the school board and its members relative to her non-employment.)

Defendant was a member of the school board and, it appears, exercised some control over the employment of the teacher’s aides. He elected another person, who, he said, had five years experience in volunteer programs.

Plaintiff and defendant had also had some disagreement regarding minor automobile incidents, resulting in current civil litigation and in some other proceeding in which plaintiff’s son was charged $35 court costs.

The record supports the trial judge’s factual findings concerning the episode at the political meeting:

“Mr. and Mrs. Miller inquired would he [defendant] obtain jobs if elected. Mr. Miller asked whether or not he was going to go about it like he did with the ESEA [teacher aide] program. His reference to this program referred to Mrs. Miller’s application as a teacher’s aide. At this point, . . . the moderator of the meeting testified, the Millers were no longer asking questions but were making statements in such an abusive manner that he discontinued the meeting. . [H]e stated that the defendant had addressed his remarks [the alleged defamation] to the audience to explain the abuse of the plaintiff directed towards him.”

We find that the allegedly defamatory statement was not defamatory in its context. All that “fit” means is “suitable”. To say, in explaining a dispute between a political candidate and a questioner at a political meeting, that the questioner is disputatious because she wanted a job (which is fact) but was not suitable for it (which is conclusory and perhaps overstatement) is not defamation. At worst, this was a slightly impolitic reaction by a political candidate to the heckling that the Millers apparently gave him. A political candidate has no license to defame his hecklers, but he also has no obligation to suffer them silently. One who engages in fractious and factious dialogue at a political meeting cannot demand sweetness and light from his adversary. Mrs. Miller did not get sweetness and light, but she equally did not get defamation.

Affirmed.