author: DENNIS, Justice. MARCUS, Justice SANDERS, Chief Justice SANDERS, Chief Justice. TATE, Justice, DENNIS, Justice, SUMMERS, Justice CALOGERO, Justice,

text:
    Neila LeBlanc, wife of Eugene James LOYACANO v. Eugene James LOYACANO.
    No. 59688.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Dissenting Opinion Feb. 22, 1978.
    On Rehearing April 10, 1978.

      A. D. Freeman, Satterlee, Mestayer & Freeman, New Orleans, for applicant-plaintiff.
    Charlotte A. Hayes, New Orleans, for applicant-plaintiff on rehearing.
    Jacob J. Meyer, Coleman, Dutrey, Thomson, Meyer & Jurisich, Lawrence D. Wiede-mann, Wiedemann & Fransen, New Orleans, for defendant-respondent.
   DENNIS, Justice.

The questions presented for decision in this case are: whether Louisiana Civil Code Article 160, which allows a court to grant a divorced wife alimony, denies equal protection of the law in contravention of the federal and state constitutions; and whether the court of appeal properly revoked an alimony award as having become unnecessary. We answer both inquiries in the negative, reverse the court of appeal decision, and reinstate the district court judgment.

In 1971 Mrs. Neila LeBlanc Loyacano was granted a divorce from her husband, Dr. Eugene Loyacano, on the grounds of living separate and apart for two years pursuant to Louisiana Revised Statute 9:301. The default divorce judgment provided Mrs. Loyacano with $1,000 per month alimony and $1,000 per month for the support of their two minor children. Dr. Loyacano voluntarily supplemented these payments with extra sums which were discontinued upon his remarriage in February of 1974.

Mrs. Loyacano filed a rule to increase both the alimony and child support awards in May of 1974. Following an involved procedural history, during which Dr. Loyacano filed rules to reduce the child support award and reduce or revoke the alimony, hearings were held on the respective rules in October of 1975. Child support was awarded in the amount of $500 per month per child and the alimony was reduced to $300 per month. Both parties appealed to the court of appeal. The child support award was affirmed but the $300 per month alimony award was revoked. Loyacano v. Loyacano, 343 So.2d 365 (La.App. 4th Cir. 1977). We granted Mrs. Loyacano’s application for certiorari to review the judgment revoking alimony. 345 So.2d 57 (La.1977).

I.

Alimony after divorce is governed by Article 160 of the Civil Code which authorizes a court, under proper circumstances, to allow the wife alimony out of the property and earnings of the husband. There is no provision of positive law which expressly authorizes a court to grant alimony after divorce to the husband. Defendant-respondent contends that Article 160, therefore, is an unconstitutional denial of equal protection of law prohibited by both the Fourteenth Amendment to the United States Constitution and Article I, § 3 of the Louisiana Constitution of 1974.

The argument based on federal constitutional grounds may have merit. We do not consider it here, however, for we agree that to allow only wives to collect alimony after divorce would amount at least to arbitrary and unreasonable discrimination against persons because of sex and thus a denial of equal protection under the Louisiana Constitution. Although not based solely on sex, such classifications for purposes of entitlement to alimony after divorce probably were founded on the assumption that all former husbands have sufficient means for their support, or that few divorced women have property and earnings out of which alimony could be paid, or upon both. If these propositions were ever true, common experience tells us that the deviations from them are now too numerous for the classifications to withstand equal protection challenge.

The failure of the legislature to expressly authorize the allowance of alimony after divorce for male citizens, however, does not necessarily invalidate Civil Code article 160. Because Louisiana is a civil law jurisdiction, the absence of express law does not imply a lack of authority for courts to provide relief. In all civil matters, where positive law is silent, the judge is bound by the Civil Code to proceed and decide according to equity, i. e., according to natural law and reason, or to received usages. La.C.C. art. 21. This Court has recognized its duty to proceed and decide important issues under these circumstances on many occasions.

In order to ascertain if there truly is no positive law either authorizing or prohibiting the allowance of alimony for divorced men we must carefully examine the legislative expressions in the light of the other articles of the Civil Code pertaining to the application and construction of laws. We are also mindful of the doctrine of reputable scholars, which teaches that civilian judges are not required to depend merely upon a logical analysis of the existing statutes, but may employ other recognized methods of interpretation. They may perform extensive exegesis to discover the original legislative intent; legislative texts may be interpreted so as to give them an application that is consistent with the contemporary conditions they are called upon to regulate; and a particular conflict of interests before the court may be resolved in accordance with the general policy considerations which induced legislative action rather than by reliance on logical deductions from the language of the text. Both the codal and the doctrinal principles should be employed to discover the meaning of the words of the law.

The general policy consideration and practical reason which appear to have induced the legislature to provide alimony after divorce was to prevent divorced women without sufficient means from becoming wards of the state. Although the legislative history of Civil Code article 160 sheds little light on the different treatment accorded husbands and wives, the most reasonable and probable basis is the assumption that married men were capable of supporting dependents, whereas married women usually could not support themselves. Although the assumption may have had substantial empirical support at the time of the legislation’s enactment, it is clearly outmoded in today’s society in which nearly half of the married women are employed and contribute to the standard of living of their families. The evolving nature of the role played by women in our state was clearly and emphatically recognized by the provision banning invidious gender based discrimination in the Louisiana Constitution of 1974. Indeed, the debates at the 1973 Louisiana Constitutional Convention concerning the provision reflect that the delegates considered alimony to be an important statutory right and contemplated that the new equal protection clause would require that it be granted equally to both sexes. Consequently, when we attribute to Article 160 the meaning that a present day legislator would have attributed to it, we must assume that he would have taken cognizance of the increasing and expanding nature of women’s activities and responsibilities, as well as our constitution’s prohibition of arbitrary or unreasonable gender based legal classifications, and that he would not have intended by the legislation to discriminate against husbands who have not sufficient means for their maintenance by declaring them ineligible for alimony after a divorce.

Accordingly, the question of alimony for a husband after divorce is a civil matter upon which there is no express or implied law, and we are bound to proceed and decide according to equity. La.C.C. art. 21. Our appeal to natural law and reason informs us that the general policy considerations which induced the legislature to authorize alimony allowances for wives after divorce would also be served by granting such support to either spouse when the circumstances provided by Article 160 prevail. Equity and our constitution demand that the husband be awarded alimony under the same circumstances in which it can be claimed by the wife. For these reasons, we conclude that a Louisiana court may allow alimony to a husband after divorce, under the same circumstances in which it can be claimed by the wife, and that the contention of the defendant-respondent that Civil Code Article 160 denies equal protection of the law is without merit.

II.

In the case at bar the original alimony award, contained in the 1971 divorce decree, was rendered with the consent of Dr. Loyacano. This consent amounted to a judicial admission on his part that his wife was entitled to alimony. Therefore, when Dr. Loyacano filed his rule to decrease or revoke the alimony, it was incumbent upon him to prove that Mrs. Loyacano’s circumstances, or his own, had changed in order to obtain a reduction or revocation of the alimony. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3d Cir. 1975).

Although Dr. Loyacano had remarried, he stipulated that he could pay any amount of alimony ordered by the court. Therefore, a change in his circumstances was not urged as the basis for the reduction or revocation of the previous alimony award.

Dr. Loyacano introduced evidence that his former wife owned assets valued approximately as follows: savings and loan certificates of deposit, $20,000; bank accounts, $1200; pension fund contributions, $2500; corporate stock, $5,625; 1974 automobile, $5,300 (original cost); 1975 automobile, $5,500 (original cost); house, $41,500. Her liabilities included: $28,500 indebtedness secured by a mortgage on the house; $6,000 certificate of deposit pledge to finance the purchase of an automobile. The evidence also reflected that Dr. Loya-cano had given her, over a period of time, $25,000 in cash, part of which was used for a down payment on her house. Mrs. Loya-cano had elected to be a fulltime mother and homemaker, and was not otherwise employed at the time of the trial, although she had been a wage earner in the past.

The trial court found that Mrs. Loyaca-no’s circumstances had changed favorably but that she still lacked means sufficient for her maintenance. Accordingly, her alimony was reduced from $1,000 to $300 per month. The court of appeal determined that the lower court’s finding of insufficient means was manifestly erroneous in the light of Frederic v. Frederic, 302 So.2d 903 (La.1974), and Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), and set aside the alimony award.

In Smith v. Smith, this Court defined terms crucial to the requirement of Louisiana Civil Code Article 160 that the wife must be without sufficient means for her maintenance to be eligible for alimony after a divorce. We said that “means” included both income and property, and that “maintenance” consisted primarily of food, shelter and clothing. The opinion of the Court took pains, however, to point out that the wife need not be practically destitute to qualify for alimony, but that she could apply if she had some means which were not sufficient. With equal care the Court cautioned that a wife with property should not be made to fully deplete her capital before she is allowed alimony. But the Court did not find it necessary to decide to what extent the wife should be made to use up her capital before applying for the alimony, because it found that property and assets valued at $20,000 at the time of the divorce in 1948 were certainly sufficient means for her maintenance at that time. Therefore, the Court purposely left unanswered the question of what manner and rate of asset depletion may be required of the wife in calculating her entitlement to alimony.

A number of dimensions have been added to these definitions in later decisions by this Court. The meaning of “maintenance” was enlarged to include “reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife.” In Frederic v. Fre deric, the element of the liquidity of the wife’s assets was introduced as a factor which should be considered in determining whether her means were sufficient for her maintenance. The courts of appeal, in reviewing trial judges’ determinations of “sufficient means,” have considered the additional factors of the relative financial positions of the parties, the type of asset under consideration and the consequences of its liquidation.

All of these factors should be taken into consideration in determining whether alimony should be allowed, and, if so, in fixing the amount of the award. On the question of what extent of asset depletion, if any, should be required of a spouse before he or she may receive alimony, it is impossible to say what relative weight must be given to any one factor in a particular case. The court should instead apply a rule of reasonableness in light of all the factors named herein and any other circumstance relevant to the litigation. For example, in determining the rate at which a spouse may be required to deplete his or her assets, it may be pertinent to consider the mental and physical health of the parties, their age and life expectancy, the parties’ other financial responsibilities, the relative ability, education and work experience of the parties, and the potential effect of any contemplated depletion of assets upon the children of the marriage. The problem is of such a nature as to be insusceptible of solution by any exact formula or monetary index, and the court should proceed with great caution and due regard for the probable long range effects of any depletion contemplated.

Under the provisions of Article 160 of the Civil Code, it is within the discretion of the trial judge to allow and fix the amount of alimony. The discretion granted by the code article means sound discretion, to be exercised by the trial judge, not arbitrarily or wilfully, but with regard to what is just and proper under the facts of the case. Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948); Jones v. Jones, 200 La. 911, 9 So.2d 227 (1942); Abbott v. Abbott, 199 La. 65, 5 So.2d 504 (1941). ,

According to the evidence of record in the instant case, Mrs. Loyacano owned property having a net value of approximately $46,-000. Some of the assets were easily susceptible of liquidation while others could only be converted to cash with difficulty and perhaps great loss in utility and value. From our review of the trial judge’s reasons for judgment it is apparent that he considered the factors which have been presented in the jurisprudence and some of the additional ones suggested in this opinion. It is clear that the court determined Mrs. Loyacano had some means but not sufficient means for her support. It is evident also that the trial court judgment will have the effect of requiring her to deplete her assets to some extent but not as rapidly as if no alimony had been allowed.

The trial judge’s decision was not contrary to the principles of law announced here or in our previous opinions.

Under all of the circumstances presented, including the factors mentioned earlier such as the relative financial positions of the parties, the counterproductive effects of requiring a sale of the family home and the potential effects on the children, as well as the circumstances of the case, it appears that the trial judge exercised sound discretion, did not decide arbitrarily or wilfully, and reached a reasonable and just result. The trial court judgment, therefore, should have been affirmed on appeal.

For these reasons the judgment of the court of appeal is vacated and the judgment of the trial court is reinstated. All costs are assessed to the defendant-respondent.

MARCUS, J., concurs and assigns reasons.

SUMMERS, J., dissents.

SANDERS, C. J., dissents and assigns written reasons.

MARCUS, Justice

(concurring).

I do not agree with the majority that to allow only wives to collect alimony after divorce would amount to arbitrary and unreasonable discrimination against persons because of sex and thus a denial of equal protection under La.Const. art. 1, § 3 (1974). Nor do I consider it a violation of the equal protection clause of the fourteenth amendment to the United States Constitution. Rather, I consider that there are many good reasons to support alimony to a wife after divorce; therefore, La. Civil Code art. 160 provides a reasonable legislative classification, not arbitrary, and rests upon a ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated are treated alike. See discussion and compare Williams v. Williams, 331 So.2d 438 (La.1976) and State v. Barton, 315 So.2d 289 (La.1975).

Moreover, I disagree with the majority that courts are permitted to allow alimony to a husband after divorce where the legislature has expressly allowed alimony after divorce only to a wife under conditions set forth in La. Civil Code art. 160. I consider the majority opinion in this respect amounts to legislation by the court.

However, I concur in the result reached by the majority because I do not consider that the trial judge abused his much discretion in allowing Mrs. Loyacano $300 per month alimony under the circumstances here presented.

Accordingly, I respectfully concur.

SANDERS, Chief Justice

(dissenting).

Perhaps, the most obvious error in the judgment here is the postulation that the law is silent as to whether or not a husband is entitled to alimony after divorce. Article 160 of the Louisiana Civil Code authorizes alimony, but limits it to “the wife [who] has not been at fault.” The article further requires that the wife be without “sufficient means for her support.” The alimony is payable from the “property and earnings of the husband” but cannot exceed one-third of his income.

The language of the article clearly excludes a husband’s entitlement to alimony from the wife. This exclusion is reinforced by the history of the article. Article 301 of the Code Napoleon (1804) allowed either husband or wife in necessitous circumstances to receive alimony if he or she had obtained a divorce. This provision was omitted in the Louisiana Civil Code of 1808, where divorce, as distinguished from separation from bed and board, was not recognized. Although divorce was authorized in the Louisiana Civil Code of 1825, the provision for alimony after divorce was intentionally omitted. Thus, no alimony was payable, since alimony after divorce is in the nature of a pension and must be specifically authorized. See Matheny v. Matheny, 205 La. 869, 18 So.2d 324 (1944); Player v. Player, 162 La. 229, 110 So. 332 (1926).

On March 19, 1827, the Legislature in “An Act Relative to Divorces” provided for alimony after divorce for the first time. The alimony was limited to “the wife who has obtained the divorce” and payable “out of the property of her husband.” The identical provision was later reenacted in Act 307 of 1855. The provision was later incorporated in the Louisiana Civil Code of 1870 as Article 160. See C. E. Lazarus, “What Price Alimony,” 11 La.L.Rev. 401, 412-415. The history of the statute demonstrates the intentional legislative restriction of alimony-after-divorce to the wife. Hence, resort to equity under Article 21 of the Louisiana Civil Code is unjustified.

I agree with Mr. Justice Marcus that, because of present day economic realities, the separate classification of wives for alimony purposes has a fair and substantial relationship to the object of the legislation. In my opinion, it contains no constitutional infirmity. See Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Williams v. Williams, La., 331 So.2d 438 (1976); State v. Barton, La., 315 So.2d 289 (1975).

Under Article 160, alimony is payable to the wife after divorce only if she does not have “sufficient means” for her own support.

The divorced wife in the present case has the following assets: savings and loan certificates of deposit, $20,000; bank accounts, $1,200; pension fund accumulations, $2,500; corporate stock, $5,625; 1974 automobile, original cost $5,300; 1975 automobile, original cost $5,500; house, $41,500. The husband gave the wife $25,000, a part of which was used as a down payment on her house. The home mortgage indebtedness was $28,-500, and a $6,000 certificate of deposit was pledged to secure an unspecified balance on the purchase of an automobile.

As used in Article 160, means refers to available resources, such as property or money, from which the needs of life may be supplied. Ward v. Ward, La., 339 So.2d 839 (1976). Sufficient means refers to resources adequate to provide food, clothing, shelter, and other basic necessities. The wife has the burden of establishing her necessitous circumstances.

In Ward v. Ward, supra, this Court stated:

“Under Louisiana Civil Code Article 160, alimony after divorce is in the nature of a pension, obtainable by the former wife only when she has not been at fault and when she has not sufficient means for her support. Frederic v. Frederic, La., 302 So.2d 903 (1974); Bernhardt v. Bernhardt, La., 283 So.2d 226 (1973); Hays v. Hays, 240 La. 708, 124 So.2d 917 (1960); Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954). This alimony after divorce is not awarded in an amount sufficient to support the former wife in the manner in which she is accustomed to live; rather, it is awarded in an amount sufficient to provide for her maintenance, which includes food, clothing, shelter, and other basic necessities; and the wife has the burden of establishing her necessitous circumstances. Bernhardt v. Bernhardt, supra; Vicknair v. Johnson (Vicknair), 237 La. 1032, 112 So.2d 702 (1959); Stabler v. Stabler, 226 La. 70, 75 So.2d 12 (1954).”

At the time of the trial, the crucial time for the alimony determination, the wife in the present case clearly had sufficient means for her support. Liquid assets included the bank accounts ($1,200); the corporate stock ($5,625); and the unpledged certificates of deposit ($14,000), aggregating in excess of $20,000. If the home equity is considered, the wife’s means are more than $33,000.

In Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), the Court held that a wife with $20,000 in war bonds, notes, and an automobile had sufficient means.

In Stabler v. Stabler, 226 La. 70, 75 So.2d 12 (1954), the Court held that a wife whose share of the community was valued at $20,000 had sufficient means.

In Fruehan v. Fruehan, La.App., 153 So.2d 75 (1963), the Court of Appeal affirmed the trial court’s decision that $13,000 in cash and interest bearing notes constituted sufficient means.

In Rabun v. Rabun, 232 La. 1004, 95 So.2d 635 (1957), the wife who had assets of $11,-000, consisting of $3,700 in cash, equity in a mortgaged home, and an interest bearing promissory note was held to have sufficient means when considered in connection with a monthly salary of $125.

In Frederic v. Frederic, La., 302 So.2d 903 (1974), this Court held that a wife who had received a check for $20,700, representing her share in the community real estate and had an unliquidated half interest in other community assets had sufficient means and was not entitled to post-divorce alimony. This Court stated:

“As used in Article 160 reference to ‘means for her maintenance’ refers primarily to food, shelter and clothing. Rabun v. Rabun, 232 La. 1004, 95 So.2d 635 (1957); Stabler v. Stabler, 226 La. 70, 75 So.2d 12 (1954).
“The test is not whether the wife has the means to support herself in the manner to which she is accustomed to live, but what will provide her with sufficient means for her maintenance, Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959), the wife having the burden of establishing her necessitous circumstances. Malone v. Malone, 260 La. 759, 257 So.2d 397 (1970). The amount necessary for maintenance of a divorced wife is to be determined by the circumstances of each particular case. Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954); Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953).
“And in determining means for the wife’s maintenance, her income is not the sole consideration. All of her means must be regarded to determine their sufficiency for her maintenance. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950).”

Applying the principles of these decisions, I am of the opinion that the Court of Appeal correctly denied the wife alimony at this time. See La.App., 343 So.2d 365 (1977). I would affirm that judgment.

For the reasons assigned, I respectfully dissent.

ON REHEARING

SANDERS, Chief Justice.

The major issue presented here is whether Louisiana Civil Code Article 160 unconstitutionally denies husbands equal protection of the law. Fourteenth Amendment to the United States Constitution; Article I, § 3 of the Louisiana Constitution (1974).

We now hold that although Article 160 does not provide alimony to a needy husband, it is, nonetheless, constitutional and that here the wife is entitled to alimony.

The background facts, as stated' on original hearing, are as follows:

“In 1971 Mrs. Neila LeBlanc Loyacano was granted a divorce from her husband, Dr. Eugene Loyacano, on the grounds of living separate and apart for two years pursuant to Louisiana Revised Statute 9:301. The default divorce judgment provided Mrs. Loyacano with $1,000 per month alimony and $1,000 per month for the support of their two minor children. Dr. Loyacano voluntarily supplemented these payments with extra sums which were discontinued upon his remarriage in February of 1974.
“Mrs. Loyacano filed a rule to increase both the alimony and child support awards in May of 1974. Following an involved procedural history, during which Dr. Loyacano filed rules to reduce the child support award and reduce or revoke the alimony, hearings were held on the respective rules in October of 1975. Child support was awarded in the amount of $500 per month per child and the alimony was reduced to $300 per month. Both parties appealed to the court of appeal. The child support award was affirmed but the $300 per month alimony award was revoked.”

In this Court, the wife seeks restoration of the alimony award.

I.

Does LSA-C.C. Art. 160 allow alimony to a needy husband?

The very first article of the Civil Code provides that “[l]aw is a solemn expression of legislative will.” Article 2 discusses the attributes of the law, stating: “[i]t orders and permits and forbids, it announces rewards and punishments, its provisions generally relate not to solitary or singular cases, but to what passes in the ordinary course of affairs.” “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” LSA-C.C. Art. 13.

The language of Article 160 clearly excludes a husband’s entitlement to alimony from his wife. It limits alimony to “the wife” payable from the “property and earnings of the husband.” This exclusion is reinforced by the history of the article. Article 301 of the Code Napoleon (1804) allowed either husband or wife in necessitous circumstances to receive alimony if he or she had obtained a divorce. This provision was omitted from the Louisiana Civil Code of 1808, where divorce, as distinguished from separation from bed and board, was not recognized. Although divorce was authorized in the Louisiana Civil Code of 1825, the provision for alimony after divorce was intentionally omitted. Thus, no alimony was payable, since alimony after divorce is in the nature of a pension and must be specifically authorized. See Matheny v. Matheny, 205 La. 869, 18 So.2d 324 (1944); Player v. Player, 162 La. 229, 110 So. 332 (1926).

On March 19, 1827, the Legislature in “An Act Relative to Divorces” provided for alimony after divorce for the first time. The alimony was limited to “the wife who has obtained the divorce” and payable “out of the property of her husband.” The identical provision was later reenacted in Act 307 of 1855. The provision was later incorporated in the Louisiana Civil Code of 1870 as Article 160. See C. E. Lazarus, “What Price Alimony,” 11 La.L.Rev. 401, 412-415. The history of the article demonstrates the deliberate legislative restriction of alimony-after-divoree to the wife.

Article 160 speaks clearly on the subject of alimony. It limits alimony to needy wives.

II.

Is Article 160 constitutional?

It is well settled that equal protection of the law does not require that all persons in all matters be treated in exactly the same manner; neither does it prohibit all classifications.

Article I, Section 3 of the state constitution provides:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.” (Emphasis added.)

The section prohibits only arbitrary and unreasonable classification. If a classification is not arbitrary or unreasonable, it has no constitutional infirmity.

We interpreted the foregoing constitutional provision in State v. Barton, La., 315 So.2d 289 (1975), as follows:

“The first sentence of the section was intended only as a restatement of the federal equal protection guarantee . The second sentence (which uses absolute language), in comparison with the third sentence (which employs the arbitrary, capricious, or unreasonable formula), permits no discrimination because of race or religious ideas, beliefs, or affiliations.
“The third sentence delineates the limitation on the power of the state to discriminate by law against persons of specified classes, including members of either sex. The limitation imposed does not absolutely preclude the legislature from defining the range of persons affected by legislation according to the various classes listed in the section; rather, it proscribes the unreasonable or arbitrary definition of those affected according to class. Accordingly, if the discrimination that results from the legislative classification is found to be within reason, the statute is not in violation of the constitution.”

We later cited that language with approval in Williams v. Williams, La., 331 So.2d 438 (1976). In upholding the constitutionality of alimony pendente lite, we reasoned further that:

“Nor does the equal protection clause of the fourteenth amendment to the United States Constitution deny this state the power to accord differing treatment to the sexes in its legislation. The United States Supreme Court has held that the equal protection clause does not prohibit a legislative classification based on sex, provided that the classification is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly situated shall be treated alike. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). See also Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).”

We have upheld both civil code articles and criminal statutes classifying males and females differently against constitutional attacks. In Williams v. Williams, supra, Civil Code Article 148 weathered a constitutional challenge based on equal protection. That article allows alimony pendente lite only to a wife. Similarly, in State v. Barton, supra, a statute criminalizing only a husband’s non-support of his family survived the same equal protection attack.

Article 160 has previously withstood a direct constitutional challenge on another basis, due process of the law. In Hays v. Hays, 240 La. 708, 124 So.2d 917 (1960), we upheld this article despite its sex based classification under the Fourteenth Amendment to the United States Constitution and Article 1, § 2 of the Louisiana Constitution of 1921.

Statutes elsewhere allowing alimony only to wives have withstood the equal protection argument which defendant asserts. Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458, cert. denied, 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1974). Bugden v. Bugden, 225 Ga. 413, 169 S.E.2d 337, cert. denied, 396 U.S. 1005, 90 S.Ct. 558, 24 L.Ed.2d 497 (1969); M. v. M., 321 A.2d 115 (Del.Supr.1974); Hendricks v. Hendricks, 535 S.W.2d 668 (Tex.Civ.App.1976).

The United States Supreme Court has upheld the constitutionality of a Florida statute granting widows an annual property tax exemption of $500, but offering no analogous benefit for widowers. Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

Likewise, in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), the Court upheld the constitutionality of a California disability insurance system which excluded benefits for normal pregnancy and delivery. The Court reasoned that a state may take one step at a time in legislatively solving problems. As long as the legislative attempts are rationally supportable, the courts will not impose their judgment. Quoting from Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), the Court stated, " ‘[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.’” (Emphasis added.)

In passing upon constitutionality, it is not within the province of this Court to evaluate the legislative policy embodied in the statute. Modification addresses itself to the legislature.

We conclude that Article 160 is constitutional.

III.

Is plaintiff entitled to alimony?

A majority of this Court agrees that the trial court’s alimony award of $300 per month is correct. For the reasons set forth in Section II of our original opinion, the trial court’s alimony award is reinstated.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the district court, awarding the wife $300 per month alimony, is reinstated and made the judgment of this Court in accordance with the decree on original hearing.

DIXON, J., concurs.

TATE, J., concurs for the reasons assigned.

DENNIS, J., concurs in decree only and assigns reasons.

SUMMERS, J., concurs in part and dissents in part and dissents in part for the reasons assigned.

CALOGERO, J., dissents and assigns reasons.

TATE, Justice,

concurring.

I respectfully concur for the reasons assigned by the original majority opinion. The provision granting a divorced wife alone the right to alimony is saved from unconstitutionality on the ground of unreasonable gender-based discrimination only because, interpreting the Civil Code as a whole, a -divorced husband in need has the same alimony rights.

DENNIS, Justice,

concurring in decree only.

I concur in the decree for the reasons stated in the original majority opinion.

It should be noted that our various opinions today leave the status of Civil Code Article 160 in a state of considerable doubt. Three members of the Court are of the opinion that the article is constitutional and does not deny equal protection of the laws although it discriminates on the basis of sex in granting an important statutory right. Three other members of the Court are of the opinion that if the article were to be interpreted to deny alimony to one sex that it would be unconstitutional, but that it does not contain such a prohibition; and that, since there is other authority in the civil code for granting alimony rights to both sexes, Article 160 does not deny equal protection of the laws. One member of the Court is of the view that Article 160 is unconstitutional.

Thus it is arguable whether, after our lack of decisiveness today, Civil Code Article 160 is either valid or invalid. Accordingly, while I disagree with much of the plurality opinion, I heartily concur that this matter very much recommends itself for legislative action.

SUMMERS, Justice

(concurring in part and dissenting in part).

I agree that Civil Code Article 160 is constitutional for the reasons stated by the Chief Justice in the opinion authored for the Court on rehearing. However, I dissent from Part III of the opinion on rehearing awarding alimony to the wife.

CALOGERO, Justice,

dissenting.

I believe that it is too clear for argument that Article 160 of the Louisiana Civil Code which allows wives (and not husbands) to claim alimony after divorce unconstitutionally denies to husbands equal protection of the laws as guaranteed by the state and federal constitutions. For a related matter and a fuller expression of my views, see the dissent in Corpus Christi Parish Credit Union v. Selina K. Martin, 358 So.2d 295 (La.1978), handed down this day. In this case, I would invalidate Article 160 because of its gender-based discrimination but I would not usurp the legislative function by grafting onto our law a constitutionally permissible alimony provision. I believe that function should and will be performed by the legislature.

      . A default judgment on Mrs. Loyacano’s rule was rendered on June 7, 1974 which increased the alimony and child support awards to $1100 and $1500 per month respectively. Dr. Loyaca-no subsequently filed a motion for a new trial and a rule to reduce the child support and to reduce or revoke the alimony. The trial judge denied the motion for new trial and dismissed the rules. Dr. Loyacano appealed these rulings and the Fourth Circuit Court of Appeal set aside the default judgment of June 7, 1974, because no change in circumstances was shown at the hearing on Mrs. Loyacano’s rule to justify the increases. The case was remanded to the trial court for reconsideration of the rules filed by both parties. Loyacano v. Loyacano, 311 So.2d 910 (La.App. 4th Cir. 1975), writ refused, 313 So.2d 847 (La.1975).

      . The issue of child support is not before us.

      . Louisiana Civil Code Article 160 provides, in pertinent part:
      “When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income.”

      . Professor Pascal has observed:
      “No legislation makes provision for alimony for the husband after divorce and, the marriage being terminated, there is no possibility of reasoning to the husband’s right thereto under Article 119 of the Civil Code. Should an ‘Equal Rights Amendment’ to the U.S. or State Constitution be adopted, however, probably either the husband will have to be awarded alimony under the same circumstances in which the wife can claim it, or alimony will have to be denied the wife in every case.” Pascal, Louisiana Family Law Course, § 11.19, p. 178 (1975).

      . See, Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

      . La.Const. of 1974, Article I, § 3 provides:
      “No person shall be denied the equal protection of the laws.t No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

       “ * * * Women’s activities and responsibilities are increasing and expanding. Coeducation is a fact, not a rarity. The presence of women in business, in the professions, in government and, indeed, in all walks of life where education is a desirable, if not always a necessary, antecedent is apparent and a proper subject of judicial notice. * * * ” Stanton v. Stanton, 421 U.S. 7, 15, 95 S.Ct. 1373, 1378, 43 L.Ed.2d 688, 695 (1975).
      “ * * * Statistics compiled by the Department of Labor indicate that in October 1974, 54.2% of all women between 18 and 64 years of age were in the labor force. United States Dept, of Labor, Women in the Labor Force (Oct. 1974). * * * ” Taylor v. Louisiana, 419 U.S. 522, 535, n. 17, 95 S.Ct. 692, 700, 42 L.Ed.2d 690, 701 (1975).
      “In 1971, 43% of all women over the age of 16 were in the labor force, and 18% of all women worked full time 12 months per year. See U.S. Women’s Bureau, Dept, of Labor, Highlights of Women’s Employment & Education 1 (W.B.Pub.No.72-191, Mar. 1972). Moreover, 41.5% of all married women are employed. See U.S. Bureau of Labor Statistics, Dept, of Labor, Work Experience of the Population in 1971, p. 4 (Summary Special Labor Force Report, Aug. 1972). * * * ” Frontiero v. Richardson, 411 U.S. 677, 689, n. 23, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583, 593 (1973).
      “Although the underlying assumption that married men support their families and married women do not may once once [sic] have borne a substantial and self-perpetuating relationship to hard economic realities, it was not entirely accurate at the time (at the turn of the century, 5 million women workers comprised 18 percent of the total labor force); clearly, it is outmoded in a society where more often than not a family’s standard of living depends upon the financial contributions of both marital partners. (Kanowitz, Women and the Law (1969) p. 100; U.S. Bureau of the Census, Statistical Abstract of the U.S. (96th ed. 1975 p. 346)).” Arp v. Workers’ Compensation Appeals Board, 19 Cal.3d 395, 138 Cal.Rptr. 293, 299, 563 P.2d 849, 854-5 (1977).

      . In connection with matters of contractual interpretation Article 1965 declares that equity “is founded in the Christian principle not to do unto others that which we would not wish others should do unto us . . .” La.C.C. art. 1965.

      .Professor Yiannopoulos’ random selection of cases provides an insight into the jurisprudence under Article 21 of the Civil Code:
      “ * * * In Minyard v. Curtis Products, Inc. [251 La. 624, 205 So.2d 422 (1967)], the Supreme Court took a decisive step toward generalization of the remedy of unjust enrichment in Louisiana, relying expressly on Articles 21 and 1965 of the Civil Code. In West v. Ortego [325 So.2d 242 (La.1975)], in the absence of a rule of positive law, the Louisiana Supreme Court resorted to Article 21 of the Civil Code for the apportionment of workmen’s compensation benefits between the community of acquets or gains and the separate property of the injured spouse. In Jacob v. Roussel [156 La. 171, 100 So. 295 (1924)], when the receiver of an insolvent corporation abandoned an existing lease prior to its termination and the owner was compelled to grant a new lease at a lower rental, the court held the receiver responsible for the difference, this being the ‘equitable’ solution in the absence of positive law. In Crescent City Gaslight Co. v. New Orleans Gaslight Co. [27 La.Ann. 138 (1875)], the court granted a remedy for the reparation of an injury in the absence of procedural law governing the action. In Frazier v. Willcox [4 Rob. 517 (La.1843)], when a debtor was wasting his property to the prejudice of his creditors, the court allowed the creditors to take conservatory measures by reference to Article 21. In Ouachita Parish Police Jury v. Northern Ins. Co. [176 So. 639 (La.App. 2d Cir. 1937)], when a fire risk had been covered by several insurance companies, the court maintained that there should be a proportional distribution of the loss among them. Finally, in Lawton v. Smith [146 So. 361 (La.App. 2d Cir. 1933)], the court apparently adopted the notion of abuse of right, holding that equity prevents a first mortgagee from exercising his choice in such a way as to injure the second mortgagee without benefit to himself.” A. Yiannopoulos, Louisiana Civil Law System, § 38 (1977).

      . La.C.C. arts. 13-20.

      . A. Yiannopoulos, Louisiana Civil Law System, § 47, pp. 89-93 (1977); Barham, A Renaissance of the Civilian Tradition in Louisiana, 33 La.L.Rev. 357, 371 (1973); Tate, Law Making Function of a Judge, 28 La.L.Rev. 211 (1968); Tate, Louisiana and the Civil Law, 22 La.L.Rev. 727 (1962).

      . In theory, according to Planiol, alimony was not a continuance of the obligation of support which the spouses owe to each other mutually during the marriage, but was founded upon the delictual principle “whatever act of man causes damage to another obliges him by whose fault it happened to repair it.” 1 M. Planiol, Civil Law Treatise, No. 1259 (La.St.L.Inst. transí. 1959). However, it would appear that the underlying practical reason for alimony is to provide support for those who need it, with a minimum amount of social dislocation, by extracting it from those who have provided similar maintenance in the past. As Planiol observes:
      “The community of life permitted the spouse without means to share the welfare of the other. Suddenly through no fault of the spouse in question, he or she finds himself or herself devoid of resources and plunged into poverty. It is manifestly in such a case as this that the guilty party should be made to bear the consequences of his wrong acts.” Id. at § 1259. It is clear that without the antecedent marital obligation of mutual support there could be no breach of a quasi-delictual obligation or resulting damage upon divorce. Moreover, under Article 160 of our present Civil Code, the wife may be allowed alimony without proving the husband’s fault. According to Justice Barham, the provision for this alimony is a “legislative attempt to fix economic responsibility for women who, having been deprived by divorce of their husbands’ earnings, are now without means or income for their maintenance. This socio-economic legislation is intended to assign responsibility for the dependency of such divorced women so as to relieve them from destitution and the State from their care.” Montz v. Montz, 253 La. 897, 907, 221 So.2d 40, 44 (1969) (dissenting opinion).

      .Glick and Norton, “Marrying, Divorcing and Living Together in the U.S. Today,” Population Bulletin, Vol. 32, No. 5, Oct. 1977, pp. 10-12. (A publication of the Population Reference Bureau, Inc.); H. Hayghe, “Families and the Rise of Working Wives — An Overview,” Monthly Labor Review, May 1976, pp. 12, et seq.; H. Hayghe, “Special Labor Force Report — Marital and Family Characteristics of the Labor Force,” Monthly Labor Review, Nov. 1975, pp. 52, et seq.; Kanowitz, Women and the Law, p. 100 (1974).

      . La.Const.1974, Art. I, § 3.

      . Another indication of this intention is seen in the manner in which Article I, § 3 was produced by the convention. The original committee proposal, which contained language that could be read as an absolute ban against gender based discrimination, was replaced by a compromise which, as amended and finally adopted, forbids arbitrary, capricious or unreasonable discrimination because of sex. Since both the proponents of the original proposal and its opponents, who favored simply borrowing the general language of the Fourteenth Amendment’s equal protection clause, expressed sentiments for the retention of alimony laws, the almost unanimous vote for the compromise indicates an expectation that alimony would be allowed to both spouses. See, XII, Constitutional Convention of 1973, Verbatim Transcripts, August 29, 1977, pp. 57, et seq.; August 30, 1973, pp. 1-6.

      . See, footnote 4, supra..

      . Only a minority of this Court is of the opinion that a woman’s earning capacity should be considered, together with the need for her services at home as a parent, the availability of suitable employment, and other relevant factors, in determining whether she has sufficient means for her support. See, Ward v. Ward, 339 So.2d 839 (La.1976); see also, Ward v. Ward, 332 So.2d 868 (La.App. 4th Cir. 1976).

      . Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973).

      . 302 So.2d 903 (La.1974). This consideration would include determining whether assets, such as thrift and annuity funds, are presently available for maintenance. See, Bryant v. Bryant, 310 So.2d 648 (La.App. 1st Cir. 1975).

      . Phillpott v. Phillpott, 321 So.2d 797 (La.App. 4th Cir. 1975). This Court has also alluded to the “highly inequitable” nature of an alimony award in which the wife would be “permitted to retain [her property] and at the same time cause her husband to deplete his.” Smith v. Smith, supra, 47 So.2d at 35.

        . See, e.g., cases discussing whether sale of the family home should be required, Phillpott v. Phillpott, supra; Bryant v. Bryant, 310 So.2d 648 (La.App. 1st Cir. 1975); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975); Hardy v. Hardy, 214 So.2d 231 (La.App. 4th Cir. 1968).

      . For the reasons set forth in the author’s dissent to the Court’s original opinion, he believes that the Court of Appeal correctly denied the wife alimony at this time.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Gregory SMITH and Eldridge Michael Armstead.
    No. 61256.
    Supreme Court of Louisiana.
    April 19, 1978.
    Rehearing Denied May 19, 1978.

      Bruce C. Ashley, II, Orleans Indigent Defender Program, New Orleans, for Gregory Smith.
    John J. Dolan, New Orleans, for Eldridge Armstead.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, CALOGERO and DENNIS, JJ. and all were of the opinion that a rehearing should be granted.

See dissent in State v. Jackson, 307 So.2d 604, 605 (La.1975).


author: GARSAUD, Judge. PER CURIAM.

text:
    Santiago Roberto ANGELI v. PELLERIN MILNOR CORP. and the XYZ Insurance Company (Employers’ Fire Ins. Co.).
    No. 9099.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    On Rehearing April 11, 1978.
    Warren M. Simon, Jr., Metairie, for defendants-appellants.
    Murray, Murray, Ellis, Braden & Landry, Romualdo Gonzalez, New Orleans, for plaintiff-appellee.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   GARSAUD, Judge.

An exception of prescription was filed prior to submission of the case by defendant-appellant Pellerin Milnor Corporation on January 11, 1978, the date this Court heard oral arguments on this appeal. The exception is based on the finding of fact by the trial court that the accident involved occurred on January 24, 1975, the injury, a hernia, was first diagnosed on February 15, 1975, and suit was not filed until February 19, 1976.

Ordinarily a suit for workmen’s compensation must be filed within one year of the date of the accident or of the last compensation payment or salary paid as a gratuity in lieu of compensation. R.S. 23:1209. Suit was not filed within one year of the date of the accident here, and there was no showing that plaintiff did not earn his wages during the period of time in question. Thus, there were no wages in lieu of compensation.

It is our view that this case is controlled by Points v. D. H. Holmes Co., Ltd., 260 So.2d 362 (La.App.4th Cir. 1972), wherein it was held that in a workmen’s compensation case arising from a hernia, the one-year prescriptive period begins to run when plaintiff is first advised by the physician of the hernia condition. Here, the plaintiff was advised of the hernia, and admits being so advised, on February 15, 1975, when examined by Dr. Andres Pedrosa. Furthermore, the physician to whom Dr. Pedrosa referred plaintiff immediately advised him that surgery was necessary. Plaintiff’s brief indicates that plaintiff became “aware of his injury” on that day. Accordingly, as more than one year has elapsed since the plaintiff became aware of his injury here, we have no alternative but to maintain the exception of prescription.

The exception is maintained and the plaintiff’s suit is dismissed.

EXCEPTION MAINTAINED, SUIT DISMISSED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff consulted a Spanish-speaking pediatrician on February 15, 1976 because of a bad cold. When plaintiff incidentally mentioned intermittent pain in his groin area over the past three weeks, the doctor suspected a hernia and referred plaintiff to Dr. Fernandez. Plaintiff scheduled an appointment for February 27, 1975 and continued working in the meantime. Dr. Fernandez confirmed the existence of a hernia and recommended immediate surgery. On the following day plaintiff reported the condition to the employer and was referred to the company doctor who first found nothing, but eventually confirmed the existence of a hernia. Surgery was performed on March 19, 1975.

Considering the overall circumstances, we are concerned about the question of whether the prescriptive period commenced when the pediatrician, who did not testify in person or by a stipulated report, made what was at best a preliminary diagnosis. In fairness to all parties, we believe that it would be appropriate, as was requested by plaintiff and as provided by Code of Civil Procedure Article 2163, to remand to the trial court for presentation of evidence on the plea of prescription.

Accordingly, the decision in Case Number 9099 is annulled and the matter is remanded for a trial on the exception consistent with this opinion.

ANNULLED AND REMANDED.


author: FORET, Judge. GUIDRY, Judge,

text:
    BUNKIE BANK & TRUST COMPANY, Plaintiff-Appellant, v. AVOYELLES PARISH POLICE JURY and Central Louisiana Bank & Trust Co., Defendants-Appellees.
    No. 6457.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 24, 1978.

      Gravel, Roy & Burnes, Chris J. Roy, Alexandria, Knoll & Knoll, J. Eddie Knoll, Marksville, for defendants-appellees.
    Boatner & Luke, John A. Boatner, Jr., Bunkie, for plaintiff-appellant.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This action was brought by the plaintiff, Bunkie Bank and Trust Company (Bunkie Bank), who seeks to annul a fiscal agency contract entered into between the Avoyelles Parish Police Jury, and the Central Louisiana Bank and Trust Company (CENLA). The fiscal agency contract between the two defendants had been entered into pursuant to advertisement by the Police Jury that it would receive sealed bids for its fiscal agency and depository bank for the period beginning January 1, 1977, to December 31, 1978. The Police Jury, in its advertisement for bids, did not ask for specific services nor did it give any information on its specific needs.

Only two bids were submitted, those bids being the plaintiff’s, Bunkie Bank and Trust Company, and defendant’s, Central Louisiana Bank and Trust Company. At a meeting of the Police Jury held on December 16, 1976, by a vote of 8 to 4 with 1 abstention, the Police Jury selected the bid of defendant, CENLA Bank. According to the stipulations of counsel for all parties, the jurors considered the fiscal bids about the same; however, they favored and voted for the CENLA Bank bid because it handled the food stamp program for the Police Jury in the past, and the safety and convenience of the CENLA Bank being in Marks-ville to administer that program, instead of one in Bunkie, some seventeen miles away.

The trial court studied the two submitted bids and concluded that although, on the face of the bids, the Bunkie Bank bid appeared to be the best, when the bids were considered in the light of the Police Jury’s actual financial needs and on the history of the Police Jury’s financial needs, the Police Jury had not erred or abused its discretion in awarding the contract to the CENLA Bank.

The trial testimony indicates that the Bunkie Bank, bidding for this fiscal agency contract for the first time, utilized the prior year’s bid by the CENLA Bank in composing its bid for the present fiscal year. The Bunkie Bank included in its bid several different categories of certificates of deposit varying in both amounts and percentage interest rates, and the number of days until maturity. The CENLA Bank, however, failed to include in its bid most of the different categories offered by Bunkie Bank. Also, the Bunkie Bank had in its bid what is called a Golden Passbook Savings Account for deposits of $1,000 or more, whereas the CENLA Bank made no such offer in its bid. Apparently the main basis for the argument of Bunkie Bank is that its bid was the best bid and the highest bid because of these offerings of certificates of deposit and the Golden Passbook Savings Account.

The primary issue in the case is: What discretion and power does the Police Jury have, and secondly, did it properly exercise that discretion and stay within the scope of its powers.

The plaintiff cites the only two Louisiana cases dealing with this subject which our research revealed. The most important of these is the Parish National Bank v. Bogalusa School Board, 256 So.2d 763 (La.App. 1 Cir. 1971); writs denied 260 La. 1120, 258 So.2d 375 (La.1972). In the Bogalusa School Board case, the Court concluded that the local government concerned had no discretion to reject, without cause, a low bid in favor of a higher bid because to do so would render La.R.S. 39:1214 and 1220 meaningless. The overriding concern is the principle of competitive bidding. The Court held that since La.R.S. 39:1220(1) requires allocation of funds to each qualified bank which submits an identical low bid, a fortiori, the local governing body is bound to accept a single lower competitive bid if the difference between the bids is clear and if there is no evidence of any disqualifying or disadvantageous factor.

The parties stipulated that were the Police Jury members to testify before the court, they would testify that they considered the fiscal bids of the two banks approximately equal. Furthermore, they would testify that they favored and voted for the Central Louisiana Bank and Trust Company’s bid because it handled the food stamp program in the past, and the safety and convenience of the CENLA Bank, some three or four blocks away, instead of one in Bunkie, some seventeen miles away.

Plaintiff cites the case of State ex rel. Bank of Franklinton v. Louisiana State Board of Agriculture and Immigration, 122 La. 677, 48 So. 148 (La., 1909) in support of its contention that a distant bank could not be excluded by reason of any supposed or real danger resulting from its distance. The Supreme Court reasoned that if that were permitted, competition would be confined to local banks, or local banks would be given an advantage although the statute, in terms and in manifest spirit, extends competition to all chartered banks within the jurisdiction of the defendant, and places them all on a footing of perfect equality.

A problem in addition to transporting large sums of money over the distance to the Bunkie Bank is that the Bunkie Bank business hours are such that, unless changed, would require the depositing of these food stamps at a time when the bank is closed. Therefore, the food stamps would have to be deposited into a night depository. According to the testimony of the President of the Bunkie Bank (tr., pg. 154, 155), it appears that such funds as are deposited in a night depository must be verified by the bank employees, and until such time as they are verified, there may be a question as to upon whom the risk of loss would fall were there to be a discrepancy between the amount said to be deposited and the amount verified by the bank employees in the morning.

The plaintiff’s assertion of the applicability of State ex rel. Bank of Franklinton, supra, and the evidence in the record of the importance of the geographical and safety factors involved, raises two questions. First, is Franklinton applicable, and second, were there any other factors actually considered by the Police Jury which were a rational basis for their choice?

Franklinton can be distinguished from the instant case. First, Franklinton dealt with a different statute, with different provisions. For example, in Franklin-ton, the statute required that the bank chosen be the one offering the highest rate of interest. In the instant case, there is no requirement that the bank selected be the one offering the highest rate of interest. The discretion of the local governing body is broader in the instant case than in State ex rel. Bank of Franklinton because the Police Jury is not limited to choosing the bank which offers the highest rate of interest as stated in the bid. Therefore, it may be proper for police juries to consider such factors as expenses which they, rather than the bidder, must incur in transmitting funds to and from the selected bank.

Assuming, arguendo, that State ex rel. Bank of Franklinton is applicable and thus that the Police Jury could not base its decision upon geographical and safety factors of transportation of funds alone, the question arises as to whether there were other factors actually considered by the Jury which constitute a rational basis or just cause for choosing the defendant CENLA Bank. If there were other factors which constituted a cause for disqualifying or considering one bid to be disadvantageous, then the Police Jury would have acted within its discretion.

Several different factors of the bids were considered at the trial. Among these were the availability of different categories of certificates of deposit offered by the plaintiff in its bid. A comparison of the two bids was made by the plaintiff, which indicates that in several of these categories the defendant, CENLA Bank, made no bids. This, the plaintiff states, is reason for holding plaintiff’s bid to be the lowest and/or best bid.

The interest rates and terms of the certificates of deposit as scheduled in the bid of the plaintiff indicate that were funds to be invested in these certificates, the interest rate would be better than if funds were deposited into passbook savings accounts. Therefore, it would appear at first blush that the bid of the plaintiff, offering certificates of deposits, is better than that of the defendant which did not offer as many different types of certificates of deposit. The defendant argues that, in reality, the bid of the plaintiff in offering more types of certificates of deposit was not any better than the bid of the defendant. The reason for the defendant’s argument is that the financial history of the parish Police Jury indicates that certificates of deposit would be a poor investment vehicle and that the passbook savings account has been, and would most probably continue to be, the prevalent investment for the Police Jury.

If the Police Jury, in its discretion, decides that the proper investment vehicle is a passbook savings account, then the offering in a bid of various types of other vehicles for investment would be of little actual significance. To allow a bidder to prevail over another bidder simply on the basis of providing different services, including investment vehicles and services which the Police Jury would not utilize, would severely restrict the Police Jury’s discretion in controlling its own finances.

Another possible basis for choosing the CENLA bid over that of the plaintiff is the varying terms of the passbook savings accounts. This argument is an inseparable part of the arguments relating to the certificates of deposit above. The defendant, CENLA Bank, pays interest on all funds from the first of the month which are deposited by the tenth of the month regardless of whether these funds are left on deposit for at least ninety days, providing that a minimum amount is left in the account for at least ninety days. The plaintiff, Bunkie Bank, pays interest only on funds which are left for a total of at least ninety days. Apparently, the two banks interpret the banking regulations differently and this accounts for the differences. The president of the defendant bank and an officer of the defendant bank, Mr. Norman, so testified at the trial. Thus, it would appear that the CENLA Bank’s bid is advantageous in paying interest on funds which are not left on deposit for a total of ninety days in some circumstances. It should be noted that the plaintiff, in its appeal, does not refer the Court to any banking regulations which would not permit the defendant to so pay interest. Thus, the issue of whether the banking regulations do permit the payment of interest in these circumstances is not an issue before this Court.

Another argument raised by the plaintiff is that the Police Jury is without authority to deposit funds into a passbook savings account. The plaintiff cites La.R.S. 39:1271:

Any municipality, parish, school board, police jury, or other political subdivision of the state, may invest in United States bonds, treasury notes, or certificates, and time certificates of deposit of state banks organized under the laws of Louisiana and national banks having their principal office in the state of Louisiana, such monies in any general or special fund of the respective subdivision as might constitute a surplus, or the expenditure of which is deemed inadvisable by the subdivision at the time.
The interest earned on bonds, notes or certificates, or time certificates of deposit, so purchased shall be credited by the respective subdivision to the fund from which the bonds, notes or certificates or time certificates of deposit, were acquired, or it may be applied to the payment of the principal and interest of the outstanding bonded indebtedness of the respective subdivision.
Any law of the state of Louisiana which may appear to restrict, limit or condition the herein granted authority is hereby declared to be inapplicable to this section.
Amended by Acts 1968, No. 249, § 1.

This statute was amended in 1968 so as to authorize political subdivisions to invest in certificates of deposit. Prior to these amendments, the Attorney General, according to the plaintiff, had ruled that a political subdivision could not invest surplus funds in a savings account or certificate of deposit. (Op.Atty.Gen. 1944 — 46, P-721 and 1966, P-22).

The trial court held that the Police Jury is authorized to invest idle funds in passbook savings accounts. According to the court:

“The fact that the statute quoted says the Police Jury ‘may’ invest in certificates of deposit of state banks, does not mean that it is prohibited from investing in passbook savings accounts in state banks. . . . What the law does not prohibit, it allows.”

The defendant persuasively argues in its brief that the provisions of R.S. 39:1271 merely provide that a political body which has surplus funds which it desires to invest, may utilize the investment forms mentioned in the statute. The defendant argues that these laws do not prohibit a public body from keeping money in a savings account. Furthermore, the defendant contends that it would be absurd to declare that R.S. 39:1271 prohibits public bodies from temporarily keeping money in a savings account, not only because of the discretionary language in the statutory provisions, but also because it would require a political subdivision like the Avoyelles Parish Police Jury to either keep all of its money in checking accounts or to invest only in long term certificates of deposit. The former alternative would result in loss of interest, and the latter would unduly restrict the flow of the Jury’s money.

It may be reasonably concluded that had the legislature intended to prohibit the investment of surplus funds in passbook savings accounts, rather than stating that the political subdivision may invest in United States bonds, Treasury notes, or certificates, and time certificates of deposit of state banks, it would have said “may only invest in United States bonds, . . . , etc.” This, the legislature has not done, and instead has used only discretionary language which merely permits one form of investment while making no reference to the prohibition of any other type of investment.

Another specification of error claimed by the plaintiff is that the trial court erred in considering payment of daily interest on passbook savings accounts by CENLA which was not provided for or contained in the sealed public bid. This argument appears without merit since although testimony was received on the computation basis for interest, namely being computed on a daily basis, it would appear that this testimony had no prejudicial effect as there were other provisions dealing with the passbook savings accounts by which the two banks could be distinguished.

The plaintiff also argues that the trial court erred in holding that the bids of both banks were not equal. Plaintiff argues this in the alternative. According to the plaintiff’s argument, the two bids are at least equal and, therefore, there must be an allocation of funds by the Police Jury to each bank according to the provisions of La.R.S. 39:1220(1). The plaintiff also relies upon the Bogalusa School Board case, supra, in arguing that an allocation must be made.

This argument is clearly without merit since La.R.S. 39:1220(1) requires an allocation of funds to each qualified bank only where more than one bank has submitted an identical low bid. In the instant case, the bids are not identical.

Plaintiff calls this Court’s attention to the fact that Bunkie Bank’s bid provided for a substantially lower rate of interest which the Police Jury would have to pay for money borrowed. However, the record reveals that in the past five years the Police Jury has borrowed only $45,000, and consequently it is obvious that this difference in the bids is insignificant considering the past borrowing practices of the Police Jury. Our able brother in the trial court recognized this fact when he opined that the bids were considered in light of the Police Jury’s actual financial needs, and on the history of the Police Jury’s financial needs. He correctly concluded that the Police Jury had not erred or abused its discretion in awarding its fiscal contract to the CENLA Bank.

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

Costs of this appeal are assessed against the plaintiff, Bunkie Bank and Trust Company.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

In this action Bunkie Bank & Trust Company (hereafter Bunkie Bank) seeks annulment of a fiscal agency contract entered into between the Avoyelles Parish Police Jury (hereafter Jury) and Central Louisiana Bank & Trust Co. (hereafter CENLA). Bunkie Bank asserts that the Police Jury abused its discretion in awarding the contract to CENLA because its bid was obviously better than that of CENLA. In the alternative, Bunkie Bank asserts that the bids were, at the very least equal, and the Jury should have, pursuant to the mandatory requirements of LSA-R.S. 39:1220(1), contracted with both qualifying banks allocating its funds to each in the ratio that the total capital, declared surplus and undivided profits of each bears to the total capital, declared surplus and undivided profits of all banks qualifying as fiscal agents in the area.

The trial court studied both bids and concluded that although, on the face of the bids, the Bunkie Bank bid appeared to be the best, the jury did not abuse its discretion in awarding the contract to CENLA because the (1) evidence showed that the calculation of interest by CENLA on passbook savings accounts was more advantageous than the method used by Bunkie Bank for- calculation of interest on like accounts; and, (2) convenience of location of CENLA and the fact that said bank had previously handled the Jury’s Food Stamp program warranted awarding the bid to CENLA.

The majority affirms the trial court judgment finding that geographical location is a factor which can be properly considered (they distinguish State ex rel. Bank of Franklinton v. Louisiana State Board of Agriculture and Immigration, 122 La. 677, 48 So. 148 (La.1909)); and, a Police Jury may deposit funds in passbook savings accounts and the method used by CENLA for calculation of interest on such accounts is more advantageous than that offered by Bunkie Bank. My esteemed brethren of the majority find that on the basis of the above showing the Jury did not abuse its discretion in awarding the fiscal agency contract to CENLA. I cannot agree with this conclusion for the following reasons.

The record indicates that the members of the Police Jury, in exercising their discretion to award the contract to CENLA, did not even consider that the interest calculation on savings accounts by CENLA was more advantageous. This circumstance was never considered by the Jury, rather the record indicates that all members of the Jury who voted to accept the CENLA bid considered both bids equal but awarded the contract to CENLA because of the convenience and security offered by the geographic location of CENLA and the fact that said bank had handled the Jury’s Food Stamp program in the past. In my opinion, neither of these circumstances should properly have been considered. In State ex rel. Bank of Franklinton, supra, our Supreme Court declared that a distant bank cannot be excluded solely by reason of any supposed or real danger resulting from its distance, a governmental body’s discretion being confined solely to a determination of which bank offers the best bid. In so deciding the Supreme Court reasoned that if geographical location was a circumstance to be considered this would frustrate the manifest spirit of the act by limiting competition to banks located within the municipality where is located the main office of the governmental unit. In my opinion this decision is still viable and it is good law. The majority distinguishes Franklinton finding that that case dealt with a different statute. In my opinion, this is not a valid distinction for the statute there considered, like LSA-R.S. 39:1211 et seq., permits bidding by each of the banks located in any parish which embraces all or any portion of the political subdivision in which the depositing authority is domiciled and for which it acts.

With regard to the Food Stamp program the fiscal agent has no function to perform other than to receive deposits of money derived by the Jury from the sale of food stamps. The record does not indicate that plaintiff could not do this just as well as CENLA. Here again the preference shown CENLA is based on geographic location. The jury members objected to transporting the large sums of money derived from the sale of food stamps a distance of 17 miles rather than several blocks. As set forth in Franklinton, supra, this is not a valid objection and should not have been considered.

Although the bid of both banks reflected that on passbook savings interest at the rate of 5% per annum is paid, at trial the Executive Vice-President of CENLA testified that his bank paid interest on such savings on a daily basis provided the deposit remained for a period of 30 days. On the other hand the record reflects that it is the policy of Bunkie Bank to pay interest on such accounts on a deposit left for a period of 90 days. The trial court held that this single factor was sufficient to warrant an award of the fiscal agency contract to CENLA. The majority affirms. I disagree for several reasons. First, the record clearly indicates that this factor was not even considered by the Jury in the exercise of its discretion to award the bid to CENLA. Secondly, the different methods used by the two banks for calculation of interest on passbook savings does not appear on the face of the bid and it is not shown that the Jury was made aware of this difference until evidence to that effect was presented on trial, so this clearly could not have been a consideration by them in awarding the bid to CENLA. Thirdly, the same interest rate was offered by Bunkie Bank on a 30 day Certificate of Deposit, as reflected by the face of its bid. Fourthly, the Bunkie Bank bid offers many other varied investment features, not offered by CENLA, which are clearly more advantageous than that offered by CENLA. In my opinion, it was clearly wrong, in view of this bid comparison, for the trial court to seize upon this one allegedly more attractive proposal, which the Jury did not even consider, and which did not appear on the face of the bid, to affirm the award to CENLA.

A side issue to all of the above concerns whether the Police Jury is authorized to invest idle funds in passbook savings accounts. Plaintiff suggests no in view of LSA — R.S. 39:1271 and 33:2955 which grants authority to political subdivisions to invest idle funds in U.S. bonds, treasury notes, or certificates, and time certificates of deposit, no mention being made of savings accounts. The trial court held that passbook savings were not prohibited reasoning that what the law does not prohibit it allows. I would agree but for a different reason. In my view, the cited statutes refer to investment of idle funds other than deposits with the fiscal agent. A political subdivision is not required to invest all surplus funds with its fiscal agent. In my view, under R.S. 39:1211 et seq. a political subdivision can deposit funds with its fiscal agent in passbook savings so long as such political subdivision requires security for such deposits pursuant to the provisions of R.S. 39:1221. Once security is given as required by the latter statute there is no valid reason why a political subdivision could not deposit in passbook savings as well as checking accounts.

Having concluded that the Police Jury’s reliance on geographical convenience in awarding the bid to CENLA was unwarranted, (Parish National Bank v. Bogalusa School Board, 256 So.2d 763 (La.App. 1st Cir. 1971, writ refused), I would decide the instant case on a basis not considered by the trial judge or the majority. The bid of both Bunkie Bank and CENLA contains a provision (paragraph 12) wherein each agrees to match the terms offered by the other bank. I would consider that this provision in both bids renders the bids equal and identical (the Jury being at liberty to select the most advantageous features of either), which under the provisions of LSA-R.S. 39:1220 requires the depositing authority to allocate its funds to both banks pursuant to the formula therein set forth. (Washington Bank & Trust Co. v. City of Bogalusa School Board, 345 So.2d 1265 (1st Cir. 1977)). Accordingly, I would render judgment rescinding the fiscal agency contract and order the Jury to contract with both banks on the above basis.

For the above reasons I respectfully dissent.

      . The record indicates that in the past the jury invested most idle funds in savings accounts.


author: WICKER, Judge. SCHOTT, Judge,

text:
    Delia Myles HILL, Individually and on Behalf of her minor daughter, Ulisa Hill and Hilda L. Edwards v. Donna BENOIT, Richard Benoit, Isabelle Harris, and Willie Harris.
    No. 8694.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for plaintiffs-appellees.
    Zelden & Zelden, Max Zelden, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   WICKER, Judge.

This is a suit for personal injuries resulting from an automobile accident which occurred just beyond the toll booths of the Greater New Orleans Mississippi River Bridge. Named defendants were the drivers of both cars involved, and their husbands.

The district court rendered judgment in favor of plaintiffs, against Isabelle Harris, the driver of the car in which they were guest passengers, and her husband, Willie Harris, who was not present at the time of the accident, and dismissed plaintiffs’ claim against the other defendants. Defendants cast have appealed.

While conceding negligence on the part of the wife, appellants contend: (1) Mr. Harris should not have been found liable; and (2) quantum is excessive.

Relative to appellants’ first contention, our Supreme Court in Martin v. Brown, restated the rules for determining the husband’s liability as follows:

“. . . The very basis of liability in such cases for a tort committed in the husband’s absence by the wife while using an automobile belonging to the community is agency; hence his permission, actual or implied, for the use of the car by the wife and that she was engaged in the service of her husband or in activity for the benefit of the community are necessary elements, . . . ”

In this case plaintiffs, as a basis for their claim that the husband was soli-darily liable with the wife for damage caused, alleged in their petition that the wife was driving an automobile owned in community by Willie and Isabelle Harris and driven by Isabelle Harris. Defendant admits this allegation in their answer. Such an admission adequately establishes a community existed between Isabelle and Willie Harris at the time of the accident.

The petition further alleges that Mrs. Harris was driving on a community mission at the time of the accident. The proof offered at the trial was that Mrs. Harris was returning from the funeral of her sister in Tylertown, Mississippi. Mr. Harris did not testify.

Thus, we have no evidence as to actual permission of the husband for the wife to use the family car. We are of the opinion, however, that the permission is implied from the fact that the defendants have admitted that the car belongs to the community and, as an owner in community of one-half of the community vehicle, we are of the opinion that Mrs. Harris has the implied permission of her husband to use such vehicle for community purposes.

The case of Alpaugh v. Krajcer is in point. In Alpaugh the wife, accompanied by her mother, was going to a funeral parlor where the body of an uncle by marriage was being held. Counsel in that case contend the community had no interest in the funeral of an uncle by marriage of the wife. The court stated:

“We thoroughly disagree with this view. We know of nothing in which a marital community should be more interested than in the assuaging of the griefs and sorrows of the members of the community. Surely it is highly important to the welfare of the community that either the husband or the wife attend the funerals and marriages of the relatives of either, and that they take part in all such affairs, be they occasions of sorrow or of happiness.”

We find, therefore, that the wife had the implied consent of her husband to use the community vehicle, and the parties concede that Mrs. Harris was negligent. Thus, the necessary elements are present in the instant case to hold Mr. and Mrs. Harris liable in solido.

Relative to appellants’ second contention, the trial court awarded plaintiff, Delia Myles Hill, the sum of $830, rendered judgment on behalf of her minor daughter in the amount of $318, and in favor of Hilda L. Edwards in the sum of $2,310.

Appellants impugn the testimony of Dr. Louis Ensenat on the basis of this doctor’s testimony in previous matters, and the fact that most of his practice is limited to whiplash-type injuries. We find no merit in these contentions.

In the matter of Delia Hill, medical expenses amounted to $80 of the $830 award. Mrs. Hill was treated for mildly severe cervical strain and moderately severe lumbosacral strain. Treatment consisted of diathermy for a brief period.

Ulisa Hill, the 4 year old minor, had ecchymosis and tenderness and swelling of the forehead and posterior cervical muscle limitation and spasm. She was discharged after minimal treatment. Her award of $318 (including a $68 medical bill) was likewise minimal.

In the matter of Hilda Edwards, the medical evidence is to the effect that plaintiff sustained moderately severe cervical and lumbosacral strain and was treated three times per week with diathermy to the neck and back and muscle relaxants and analgesics for approximately three months. Of the award of $2,310, $310 is attributable to medical expenses.

It is well established that in the assessment of damages in tort cases, much discretion must be left to the judge or jury. We are satisfied that there is no abuse of discretion here.

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

AFFIRMED.

SCHOTT, J., concurring with written reasons.

SCHOTT, Judge,

concurring.

The distinction between this case and the Supreme Court cases of Pond v. Campbell, 251 La. 921, 207 So.2d 535 (1968) and Martin v. Brown, 240 La. 674, 124 So.2d 904, is in the pleadings. As the majority opinion points out, plaintiffs in the instant case alleged that Isabelle Harris was driving an automobile owned by the community between her and her husband and that she was on a community mission at the time of the accident. In Pond v. Campbell there was no allegation to the effect that Mrs. Campbell was on a community mission at the time of the accident in any pleading in the case, and in Martin v. Brown it was not even alleged that the defendant driver was the wife of the defendant much less that she was engaged in any activity for the benefit of the community.

In Martin v. Brown the court stated: “. . . once the plaintiff has stated a cause of action and established that the accident occurred through the negligence of the wife in her use of the community car, which she was operating with the permission and consent (actual or implied) of the husband, since the husband has peculiar knowledge of facts which would relieve him of liability it then devolves upon him should he seek to avoid responsibility to show, to the satisfaction of the court, that the wife was on a mission of her own.”

Applying this statement of principles to the instant case, plaintiffs stated a cause of action in their pleadings as already discussed, were relieved of proving that Isabelle Harris was using the community car by the admission of defendants in their answer and established that she had her husband’s implied permission and consent since Isabelle was attending a funeral of relatives following the rationale of Alpaugh v. Krajcer, 57 So.2d 700 (La.App.Orl.1952).

The burden of proof was therefore on Willie Harris to avoid responsibility by showing that his wife was on a mission of her own. Since he failed to carry this burden I concur in affirming the judgment against him.

      . By supplemental and amended petition the insurer of one of the vehicles was also made a party defendant.

      . 240 La. 674, 124 So.2d 904, 907.

      . Employers Liability Assurance Corp. v. Carter, La.App., 227 So.2d 616.

      . La.App., 57 So.2d 700.

      . Id., at page 702.

      . We distinguish the case of Pond v. Campbell, 251 La. 921, 207 So.2d 535, wherein the Supreme Court held a wife was not on a community mission while attending a wedding. In Pond, there was no allegation in any pleadings that Mrs. Campbell was on a community mission and no proof offered to show anything except that she was going to a wedding. It is to be noted that in Alpaugh the funeral was that of a relative and the petition contained the necessary allegations.

      . LSA-C.C. Art. 1934(3); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149; Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64; Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127.


author: GAUDIN, Judge.

text:
    Harry D. ROBERTS v. ALLSTATE INSURANCE COMPANY and Enrique Canes.
    No. 8937.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Pitard, Pitard & Porobil, Robert F. Pi-tard, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, New Orleans, for defendants-appellees.
    Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

Petitioner-appellant, Harry D. Roberts, was injured on December 6, 1975, when his automobile was rear-ended, and he is before us contending that a jury award of $2,500 is grossly inadequate. Liability is not at issue, only quantum.

A review of the record indicates, however, that the jury did not abuse its discretion, and we affirm.

A 45 year old taxicab driver, Mr. Roberts did sustain a soft tissue injury and he was treated by Dr. John Lindner, a general practitioner, until March 29, 1976. Subsequently, Mr. Roberts was seen by two orthopedic surgeons, Drs. Bernard Manale and Irving Redler.

Mr. Roberts had sustained an earlier injury for which he underwent a lumbar lami-nectomy. The sprains Mr. Roberts received as a result of the December 6,1975, incident were superimposed on a weakened back more susceptible to injury because of the previous accident and surgery.

Regardless, by late March of 1976, Dr. Lindner felt that he “. . . had done as much as I possibly could do with him,” and Mr. Roberts was discharged.

Dr. Manale suggested that Mr. Roberts seek different employment, while Dr. Re-dler testified that Mr. Roberts had fully recovered from the sued-on accident and could continue driving his cab.

In addition to pain, suffering and residual disability, Mr. Roberts sought awards for lost income and for property damages.

He did not file income tax returns in 1973, 1974 and 1975, and he was unable to produce the 1976 return he said he did file. Likewise, Mr. Roberts had no trip sheets or documentary proof of any kind showing either his actual income or loss thereof.

Mr. Roberts did not have an appraisal made of damages to his car, a 1969 Chevrolet, yet he called it “a total loss” and sold it to a neighbor, he said, for $50. The other motorist said the impact was so slight that “. . . the collision did not affect his car or mine.”

Credibility was clearly at issue throughout the trial, and the jury apparently resolved this to Mr. Roberts’ detriment.

Considering the inconclusive medical testimony and the futile attempts to show lost wages and property damages, we cannot say that the $2,500 award was either inadequate or an abuse of the considerable discretion granted to the trier of fact — in this case, a 12 person jury — by LSA-C.C. Art. 1934(3).

AFFIRMED.


author: GULOTTA, Judge.

text:
    Lillian Schon SMALL, on behalf of Royal Crystal Art Company, Inc. v. Gertrude Loreck WABNIG, a/k/a Trude Wabnig, Trude John Von Spilwall, Mrs. Trude Wabnig, Baroness Von Spilwall and Morris Herman, Liquidator of Royal Crystal Art Company, Inc.
    No. 8986.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Glenn L. Morgan, New Orleans, for plaintiff-appellant.
    Henry L. Klein, New Orleans, for defendant-appellee, Gertrude Loreck Wabnig, etc.
    Herman & Herman, Maury A. Herman, Thomas M. Brahney, Jr., New Orleans, for defendant-appellee, Morris Herman, etc.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment maintaining an exception of no cause of action. We reverse and remand the matter to permit amendment of the petition.

Plaintiff, a stockholder of Royal Crystal Art Company, Inc., in judicial liquidation, filed suit, on behalf of the corporation, for the collection of five demand promissory notes payable to the corporation. Named as defendants were the liquidator and Gertrude Loreck Wabnig, assignee and holder of the notes. The notes had been ..issued to Royal Crystal by a purchaser in payment of merchandise bought from the corporation and Royal Crystal had thereafter assigned the notes to Wabnig who agreed to pay the assignor corporation the balance of all payments made on the notes after deducting and retaining for herself the interest stipulated.

In her petition, plaintiff alleges that Wabnig has paid no money to Royal Crystal and has made no efforts to collect from the maker of the notes other than writing two letters of amicable demand. Plaintiff further alleges that the liquidator has not taken any legal action to enforce the rights of the corporation despite plaintiff’s demands. The petition states that plaintiff as a stockholder “is forced to institute this action to protect the interests” of the corporation and prays “on behalf of” the corporation for a judgment against Wabnig in the full amount of the notes.

Defendant Wabnig filed exceptions of no cause of action, no right of action and non-joinder of an indispensable party. The trial judge maintained the exception of no cause of action and dismissed the suit as to Wab-nig. The cause of action against the corporation remains viable.

It is true that a stockholder of a corporation in liquidation has no right of action on behalf of the corporation against a corporate debtor. In such instance, the liquidator is the proper party plaintiff and the shareholder’s remedy is against the liquidator to compel him to act. See LSA-C. C.P. art. 681; LSA-C.C.P. art. 692; Derbes v. Till, 13 La.App. 495, 128 So. 196 (Orl.1930).

However, a shareholder is provided with a remedy, in a secondary action, to enforce a corporate right. See LSA-C.C.P. arts. 591 and 611. This remedy is provided to a shareholder by virtue of stock ownership in the corporation. The suit may be brought by the shareholder on his own behalf or on behalf of others in a class action when the persons constituting the class are so numerous as to make it impracticable for all of them to be joined as plaintiffs in the action. See LSA-C.C.P. art. 591. In the instant case, plaintiff is the sole owner of the corporate stock. Because the corporation is in liquidation and a liquidator has been appointed, plaintiff has no right of action “on behalf of” the corporation. The petition, so worded, is defective in that it is asserted “on behalf of” the corporation. We conclude the trial judge, confronted with this petition, properly maintained the exception of no cause of action against Wabnig. However, LSA-C.C.P. art. 934 affords plaintiff the opportunity to amend where the objection (“on behalf of” the corporation) may be removed by amendment. Plaintiff is entitled to a remand to permit amendment in this case.

Accordingly, that part of the judgment dismissing plaintiff’s suit against defendant Wabnig is reversed and set aside. Judgment is now rendered maintaining Gertrude Loreck Wabnig’s exception of no cause of action, however, the matter is remanded to the trial court to permit plaintiff the opportunity to amend the petition, within 15 days, in accordance with the views expressed herein.

REVERSED, RENDERED AND REMANDED.

      . The representation in brief that Mrs. Small is the sole stockholder of Royal Crystal Art Company, Inc. has not been disputed.