author: CUTRER, Judge.

text:
    Anna Mae Bower DUHON, Plaintiff-Appellee, v. Kenneth DELCAMBRE, Department of Public Safety, Division of State Police, State of Louisiana, and Appalachian Insurance Company, Defendants-Appellants.
    No. 6685.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Voorhies & Labbé, D. Mark Bienvenu, Lafayette, for defendants-appellants.
    J. Minos Simon, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff, Anna Mae Duhon, brings this action for the wrongful death of her husband, Valliet Duhon. This suit arises out of an incident in which Duhon was struck with a flashlight by Trooper Kenneth Delcam-bre, an officer of the Louisiana State Police. Plaintiff sued Kenneth Delcambre, the Department of Public Safety, Division of State Police, State of Louisiana, and Appalachian Insurance Company, the insurer of the Department. The trial court rendered judgment in favor of plaintiff. Defendants appeal. We reverse.

In its written reasons for judgment the trial court set out the circumstances surrounding this incident:

“On the 19th day of September 1975, the deceased was stopped by Sergeant Delcambre for operating his motor vehicle while intoxicated. The testimony of Sergeant Delcambre was to the effect that he met the vehicle being driven by the deceased while on his regular patrol and noticed that the deceased was going from one side of the highway to the other whereupon the officer turned his vehicle around and gave chase to the vehicle being driven by the deceased and upon overtaking him he had to force him to the shoulder of the road in order to stop the vehicle. Sergeant Delcambre parked his patrol unit partially in front of the decedent with the decedent’s vehicle on the right travel lane, the sergeant then approaching the decedent’s vehicle and ordering him to get out of his vehicle. Sergeant Delcambre testified that the decedent was staggering and had to lean against the automobile for support. Upon being asked for his driver’s license the decedent was dropping his wallet and papers therein in an attempt to find his license. Sergeant Delcambre testified that he did not handcuff Mr. Valliet Du-hon, the decedent, because he wanted to clear the vehicle from the highway in order to clear the traffic hazard. The trooper then told the deceased that he wanted to move his car onto the shoulder and the decedent is then said to have informed the officer that, ‘You won’t move my damn car.’ In an effort to move the vehicle, Sergeant Delcambre attempted to get into the car at which time he testified that Mr. Duhon struck him behind the neck on the right side which dazed him momentarily and he fell against the door of the Duhon vehicle. Sergeant Delcambre testified that he reached up at which time the deceased bit the left middle finger of Sergeant Del-cambre. The officer was carrying in his hand a 5 cell flashlight which he swung up and hit the deceased on the left side of his head, at which time the deceased released the officer’s finger. Sergeant Del-cambre then attempted to cuff Mr. Du-hon, who refused to give him his hands and the Sergeant testified that he then had to tap with both hands on the shoulders of Mr. Duhon in order to get his hands open to be placed into the cuff.”

Duhon was taken to the parish jail. He was released the following day. He consulted Dr. William Bernard on September 23rd. Dr. Bernard hospitalized Duhon for headaches and chronic alcoholism. X-rays revealed a linear skull fracture on the left side of the head. Duhon was discharged and returned home September 27th. He died five days later. The three physicians who testified were in agreement that Du-hon died from hemorrhage. They each felt, however, that a trauma of more recent origin than the September 19th incident contributed to the death. The trial court found, however, that the blow of September 19th caused the death as the evidence did not support the occurrence of a second trauma.

The first assignment of error is whether the trial court erred in its finding that Trooper Delcambre had used excessive force in effecting the arrest of Duhon.

The trial court found that the force used was excessive, stating as follows:

“The flashlight used by the officer in striking Mr. Duhon was introduced into evidence and examined by this Court and the Court found it to be a rather heavy object and when used as a weapon could inflict serious injury upon the person being struck therewith, which in fact did occur in this particular instance. The force used and the weapon with which it was applied was certainly excessive in that it caused a fracture of the skull and hemorrhaging within the skull cap and brain area of the decedent. The officer here was dealing with an individual who according to the officer’s own testimony was staggering drunk and while certainly the officer may have felt justified at the time in using such force yet the attack by Mr. Duhon was not of such a nature as to require the use of such force.”

The trial court concluded that the force was excessive on the basis first, that the blow was severe causing a fracture of the skull and resulting hemorrhage, and secondly, on the ground that the deceased was highly intoxicated.

We disagree with the trial court and reverse.

“. . . While the nature of the injury has relevance to the factual question of the amount of force exerted, it is not determinative of the question of whether under the circumstances the force used was reasonable or excessive and, therefore, tortious. . . . ” Picou v. Terrebonne Parish Sheriffs Office, 343 So.2d 306 (La.App.1st Cir. 1977).

The degree of intoxication may also have relevancy if such renders the person incapable of being effective in an attempted battery upon an officer. The facts here, however, reflect that the deceased was most effective in his aggressive, provocative acts on the night in question.

Delcambre was in the process of making a lawful arrest. In doing so he is authorized by law to use reasonable force to accomplish same.

LSA-C.Cr.P. art. 220 provides as follows:

“A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the «person being arrested or detained.”

In making an arrest, a police officer is justified in using a weapon in order to protect himself from violence and to enforce an arrest. Loyden v. J. C. Penney Company, 352 So.2d 755 (La.App.3rd Cir. 1977); Greening v. Hill, 221 So.2d 261 (La. App.2nd Cir. 1969), writ refused June 5, 1969.

“. . . It is well settled that one cannot recover damages for a battery if the evidence establishes that he was at fault in provoking the difficulty in which the injury complained of was received unless it be proved that the person attacked has used excessive force in defending himself.” Bernstine v. City of Natchitoches, 335 So.2d 51, 54 (La.App.3rd Cir. 1976).

With these well established principles in mind we examine the circumstances at hand to determine their applicability.

The incident that resulted in the injury and alleged resulting death of Duhon was of his own making. Duhon had created a dangerous condition by driving while intoxicated and by parking his vehicle on the traveled portion of the highway when stopped by the trooper. His drunken condition, antagonistic attitude and commission of a battery upon the officer justified the officer’s use of the flashlight to complete the arrest and protect his person. Up to the time when the officer struck Duhon with the flashlight, the actions of Duhon had been illegal, dangerous and provocative. The actions of the officer were consistent with the requirements of the law in the execution of his duty. Duhon created the situation that made it necessary for the officer to resort to the use of the flashlight. The alleged result of the incident is regrettable, but the principle enunciated in the case of Crawford v. Maryland, 169 So.2d 612 (La.App.2nd Cir. 1964) is applicable.

“. . . The risks which are necessarily faced by peace officers in the discharge of their duties cannot be over-emphasized. An incident of the nature which is here under consideration is of such instantaneous development and immediate menace that it does not afford time for reflection and consideration as to the nature or degree of necessary force which an officer might use in protection of his own life and safety.”

The plaintiff further argues that Delcambre violated police procedures in that he did not handcuff Mr. Duhon immediately upon arrest. Plaintiff alleges that such was the cause of the subsequent violence. Trooper Delcambre testified that he did not immediately handcuff Mr. Duhon upon arresting him because his primary concern was to clear the road of the hazard created by Mr. Duhon’s vehicle resting in the southbound lane. We find this to be a reasonable action and the officer cannot be faulted for following the procedure used. Our reading of the police manual indicates that it is within the discretion of the arresting officer as to when he is to handcuff his prisoner.

The record in this case clearly supports the conclusion that Duhon was the aggressor; that Duhon was in the act of committing a battery upon the officer; and that the force which the officer used, faced with the bodily harm being inflicted upon him by Duhon, was not unreasonably excessive. Duhon’s injuries resulted when he attacked the officer in an attempt to avoid a lawful arrest.

A review of the circumstances surrounding this incident and the law applicable thereto leads us to the conclusion that the trial court was in error in the application of the law in its ruling that the force used by the officer was excessive. Under these circumstances the plaintiff, as surviving spouse, cannot recover damages.

The conclusion we have reached herein renders it unnecessary to treat the remaining assignments of error pertaining to causal connection between the injury and the death (we note that the testimony of the three physicians presented a serious question as to the issue of causal connection), and quantum of damages.

For the above reasons, the judgment of the trial court is reversed. Costs of this appeal are assessed to the plaintiff-appellee.

REVERSED.

      . Other cases where severe injuries resulted but were not excessive under the circumstances presented:

        Crawford v. Maryland Casualty Company, 169 So.2d 612 (La.App.2nd Cir. 1964). Plaintiff, being arrested for D.W.I., became argumentative and belligerent but did not hit officer. Officer hit plaintiff with night stick on side of head causing serious permanent injury.

        Roberts v, American Employers Insurance Company, Boston, Mass., 221 So.2d 550 (La. App.3rd Cir. 1969). Officer in process of arresting plaintiff for disturbing the peace. He grabbed officer in a belligerent manner, cursing him. The officer stepped back and shot plaintiff in the jaw causing some permanent injuries.

        Logan v. Swift, 327 So.2d 168 (La.App.2nd Cir. 1976). A 26-year old woman being placed under arrest hit policeman with his night stick. He struck her twice with his pistol causing serious back injury (3 disc injuries).

      . There was little disparity in the size of the two men. Deceased — well nourished individual who was 6 feet tall. Officer — 6 feet IV2 inches tall; weight 220 pounds.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Charles R. CASSIDY et al., Plaintiffs-Appellees, v. BILLY M. CORPORATION et al., Defendants-Appellants.
    No. 6694.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Pugh, Craton & Jones, Lawrence G. Pugh, Jr., Crowley, for defendants-appellants.
    Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, Marcantel & Cassidy by Charles R. Cassidy, Jennings, for plaintiffs-appel-lees.
    Sanders, Downing, Kean & Cazedessus by Donald E. Bradford, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, WATSON, and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a suit for a declaratory judgment brought by property owners in order to determine their rights and obligations under a contract termed “ATTORNMENT AND NON-DISTURBANCE AGREEMENT.”

Plaintiffs are the owners of twenty acres of land situated in Jennings, Louisiana. On August 12,1976, they entered into a ground lease for 9.5 acres of their property in favor of the Singer Housing Company, d/b/a The Mitchell Company. The lease had a preliminary term of six months, a primary term of twenty-five years, and four successive options to renew for five years each. It also had provisions permitting assignment and subletting of the property, which are set forth as follows:

“12. ASSIGNMENT AND SUBLETTING. Tenant may sublet the premises or any part thereof to such subtenants as Tenant, in its sole discretion, shall determine advantageous; and Tenant shall have the right to assign, mortgage, pledge or otherwise hypothecate all its rights and interest under this lease, but Landlord shall be furnished with true copies of any such assignment, subletting or hypothecation. Tenant shall also have the right to grant easements, licenses and concessions to others for rights of ingress, egress, parking and utilities services. Landlord further agrees with respect to any subtenant, that in the event of any default by Tenant hereunder, such subtenant shall not be disturbed in the possession of their respective premises provided the terms and provisions of their respective leases are complied with.
15. SUBTENANTS. In the event of default by Tenant, as provided in the preceding paragraph, Landlord agrees that all subleases of Tenant’s leasehold interest shall remain in full force and effect for the balance of the term of each such sublease so long as the subtenant thereunder complies with the terms and conditions thereof; however, all rental payments due by all subtenants shall be paid to Landlord during the period of default by Tenant, but no sublease of any of the premises or renewal options shall be for a longer term than the primary term and renewal terms of this lease. Landlord agrees to execute such agreements between Landlord, Tenant and such subtenants as shall be requested to reflect the agreement of Landlord set forth herein.”

On February 7, 1977, the Singer Housing Company entered into a document which assigned the original ground lease between it and the owners, plaintiffs herein, to Mayer Mitchell, Abraham A. Mitchell, W. A. Lubel, and Chester M. Baker, hereinafter referred to as the Mitchell defendants.

On February 16, 1977, the Mitchell defendants entered into a sublease arrangement with the Billy M. Corporation for a portion of the land leased from plaintiffs. The following relevant provisions are found in the sublease:

“Lessor [Mitchell defendants] agrees that upon Lessee’s [Billy M. Corporation’s] request a non-disturbance and at-tornment agreement will be executed granting Lessee non-disturbance of its right of possession in and use of the premises so long as Lessee is not in default under the terms of this lease.
COMPETITIVE USE
The Lessor hereby agrees that it shall not, except with the written consent of the Lessee first had and obtained, directly or indirectly engage in, or acquire any beneficial interest in, or grant a Lease to any persons to engage in a hamburger oriented self-service restaurant of a type operated by Lessee in which food and beverages are dispensed within a radius of 4,000 feet of the Premises. If Lessor is a corporation, the foregoing restrictions and limitations shall apply to all activities of all officers, directors, subsidiaries and affiliates of Lessor during the term of this Lease, and any extension thereof. The restriction of use or other property of the Lessor within the vicinity of the Premises is part of the consideration for which the Lessee has agreed to enter into this Lease.

On March 8, 1977, a document captioned “ATTORNMENT AND NON-DISTURBANCE AGREEMENT” was executed between plaintiffs, the Mitchell defendants, and the Billy M. Corporation. The agreement provided, in part, as follows:

“WITNESSETH:
WHEREAS, OWNER, by lease dated August 12, 1976, and by Assignment of Lease dated December 23, 1976 between Singer Housing Company d/b/a The Mitchell Company and LESSEE, did, as LESSOR, lease and demise unto LESSEE certain property, . . ., upon the covenants and conditions set forth therein, and
WHEREAS, OWNER is the owner in fee of the said property, together with the interest of LESSOR in the ground lease, and has full authority to execute and deliver this agreement, and
WHEREAS, the ground lease has been at all times since its execution date and now is in full force and effect, and no default has occurred in the performance of any covenant of LESSEE thereunder, and
WHEREAS, there has been executed and delivered between LESSEE, as Landlord, and TENANT, as Tenant, a lease, hereinafter called ‘sublease’, dated February 16, 1977, of certain premises to be located in a proposed shopping center development, said shopping center property consisting of a portion of said parcel of land demised to LESSEE under the said ground lease ., which sublease is for a term of twenty (20) years, together with certain extension options, as particularly described in said sublease, and
WHEREAS, OWNER is willing to consent to the sublease, and to approve the terms, covenants and conditions thereof, and OWNER and TENANT are willing to agree that the sublease shall remain in effect in the event of the termination of the ground lease.
NOW, THEREFORE, in consideration of the premises, the parties hereto mutually covenant and agree as follows:
1. OWNER consents to the execution and delivery of the sublease by and between LESSEE and TENANT.
2. OWNER and LESSEE agree that no act which LESSEE or TENANT is required or permitted to do under the terms of the sublease shall constitute a default under the ground lease or under any mortgage (which term shall include all security instruments) now or heretofore or hereafter constituting a lien upon the premises described in the ground lease.
3. LESSEE and TENANT agree with OWNER that they will perform and comply with all terms, covenants and conditions of the sublease which are binding upon them respectively.
4. OWNER and LESSEE agree not to interfere- with or disturb the right of possession of TENANT in and to the portion of the Premises demised by the sublease and the sublease shall remain in full force and effect in accordance with its tenor, and the sublease shall remain in full force and effect for the term and any renewal terms therein set forth; provided, however, TENANT shall not then be in default under the sublease beyond any period permitted therein to cure the default.
5. In the event that the ground lease shall at any time, after the commencement of the sublease and prior to the expiration, cancellation or other termination of the sublease, be terminated by reason of default, bankruptcy, insolvency, receivership or for any reason whatsoever, OWNER and TENANT agree that the sublease shall, in accordance with its terms, remain in full force and effect as a direct lease between OWNER, as Landlord, and TENANT, as Tenant, whereupon this agreement shall be null and void. . . . ” [Italics added]

At some date after execution of this agreement, the Billy M. Corporation informed plaintiffs, the owners, that the restriction against leasing property for the operation of a self-service hamburger restaurant within a 4,000 foot radius, found in the sublease between the Mitchell defendants and the Billy M. Corporation, was binding on plaintiffs as to their other un-leased lands by virtue of the italicized language found in the attornment and non-disturbance agreement. Plaintiffs filed this suit against the Mitchell defendants and the Billy M. Corporation on October 27, 1977, seeking a declaratory judgment in order to ascertain whether they were so prohibited.

After trial on the merits, the trial judge determined that plaintiffs were not bound by the provisions of the sublease until such time as the Mitchell defendants would default on their lease. The Billy M. Corporation appeals. We affirm.

Four contracts were introduced into evidence: the original ground lease, the assignment, the sublease, and the attornment and non-disturbance agreement. At the outset, we note that the trial judge found these contracts to be non-ambiguous and would not permit the use of parol evidence in their construction. Nevertheless, parol evidence was offered under a proffer, and plaintiffs maintain that it should be considered by us on appeal.

It is unnecessary for us to consider this evidence because we feel, as did the trial judge, that the intent of the parties and the effect of the contracts can be determined from their face.

We hold that the attornment and non-disturbance agreement does not bind plaintiffs to the provisions of the sublease, until such time as the original lease existing between them and the Mitchell defendants collapses.

We begin our resolution of the controversy by looking to the title of the document itself. “Attornment” is a common law term. It refers to a situation where there is a change in a lessor. The effect is a continuation of an existing lease, i. e. the lessee holds the property from his new lessor under the same conditions as with his former lessor. The new lessor steps into the shoes of the old lessor, vis-a-vis the lessee. See 51C C.J.S. Landlord and Tenant § 22 (1968).

The document under consideration is captioned “ATTORNMENT AND NON-DISTURBANCE AGREEMENT.” One would assume from this that the purpose of the document is to provide that the subles-see, Billy M. Corporation, will continue to lease the property from plaintiffs, in the event that the Mitchell defendants would default in their lease and no longer have the right to sublease the property. One would assume also, from the inclusion of “non-disturbance,” that the owners, plaintiffs herein, will not disturb the Billy M. Corporation in its possession under the sublease.

We now look to the specific provisions of the agreement. The instrument sets forth a series of premises, prefaced by “Whereas,” which clearly set forth the actual intent of the parties and the purpose of the document. The most significant one of these states:

“WHEREAS, OWNER is willing to consent to the sublease, and to approve the terms, covenants and conditions thereof, and OWNER and TENANT are willing to agree that the sublease shall remain in effect in the event of the termination of the ground lease.”

We feel that this means just what it says. First, the owners intend to consent to the sublease. However, it should be noted that the owners are not consenting to the sublease as lessors, but as the owners of the property. That is, the owners are obviously approving the sublease as not being repugnant to them, nor repugnant to any of the provisions of the lease existing between them and their lessee, the Mitchell defendants. Second, it also indicates that the owners recognize the power of their lessee to grant a sublease. Finally, it shows that the owners intend to honor the sublease, in the event of a default or termination of the original ground lease.

There then follows the specific obligations of the contract, previously quoted, which enacts this intention. The first paragraph provides that the owners consent to the execution and delivery of the sublease between the lessee and the tenant, i. e. the right of the lessee to sublease is specifically recognized. The second paragraph provides that no act required or permitted under the sublease existing between the lessee and the tenant will constitute a default under the lease existing between the owners and the lessee.

The third provision of the agreement is at the core of this dispute. It provides:

“3. LESSEE and TENANT agree with OWNER that they will perform and comply with all terms, covenants and conditions of the sublease which are binding upon them respectively.”

The question is whether this language can be construed to mean that the owners, plaintiffs herein, agreed to be bound by all the terms, covenants, and conditions of the sublease, including the non-competition clause, from the moment the agreement was executed. As previously indicated, we think not.

The language in paragraph 3 seems to correspond with the language found in paragraphs 12 and 15 of the original lease existing between plaintiffs and their original lessee. Paragraph 12 provides, in part:

“Landlord [owners] further agrees with respect to any subtenant, that in the event of any default by Tenant [Mitchell defendants] hereunder, such subtenant shall not be disturbed in the possession of their respective premises provided the terms and provisions of their respective leases are complied with." [Italics added] Paragraph 15 provides, in part:
“In the event of default by Tenant [Mitchell defendants], as provided in the preceding paragraph, Landlord [owners] agrees that all subleases of Tenant’s leasehold interest shall remain in full force and effect for the balance of the term of each such sublease so long as the subtenant thereunder complies with the terms and conditions thereof; . . .
[Italics added]

When the italicized language of Paragraphs 12 and 15 of the original lease is compared with Paragraph 3 of the attornment and non-disturbance agreement, it is quite clear that all the plaintiffs intended to obligate themselves to do was to honor the sublease in the event of default by the sublessors on the original lease, as long as the sublease arrangement between the sub-lessor and the sublessee was not breached.

In addition, if we were to find that Paragraph 3 bound plaintiff to the conditions of the sublease from the moment of the execution of the attornment and non-disturbance agreement, we would have to find that the pronouns “they” and “them” in Paragraph 3, refers to the nouns “lessee,” “tenant,” and “owner.” We feel that common usage dictates that “they” and “them,” as used in the sentence construction of Paragraph 3, refers only to “lessee” and “tenant,” and not to “owner.”

Moreover, Paragraph 3 would make no sense if the pronouns “they” and “them” were construed to refer to the “lessee,” “tenant,” and “owners” because of the phrase “terms, covenants and conditions of the sublease which are binding upon them respectively.” At the time the document was executed, the terms, covenants, and conditions of the sublease were not binding on the owners because they were not a party to the sublease. In order to make sense, the owners would have had to be bound by the sublease when this language was agreed to.

In summary, when all the verbosity is stripped away from the attornment and non-disturbance agreement, there remains simply an obligation of the owner to step into the shoes of the lessee, vis-a-vis the sublessee, in the event that the lease between the owner and the lessee falls. If and when this occurs, the conditions of the sublease then become binding upon the owner.

Stated differently, the attornment and non-disturbance agreement is an obligation contracted on a suspensive condition, as described by Article 2043 of the Louisiana Civil Code. It depends upon a future and uncertain event, viz. the dissolution of the lease existing between the owners, plaintiffs herein, and their lessee, the Mitchell defendants.

Since there has been no default or termination of the lease existing between the owners and their lessee, the sublessor, the suspensive condition has not been realized. We conclude, therefore, that the owners are bound only by the conditions contained in the lease existing between them and their lessees, the Mitchell defendants, and not by the conditions contained in the sublease existing between the Mitchell defendants and their sublessee, the Billy M. Corporation.

For the above reasons, the judgment of the District Court is affirmed at appellants’ costs.

AFFIRMED.

      . The Mitchell defendants did not appeal.

      . Article 2043 provides:
      “The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
      In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.”


author: FORET, Judge.

text:
    Consuelo Pratt BERNARD et al., Plaintiffs-Appellants, v. Richard VIDRINE et al., Defendants-Appellees.
    No. 6710.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Darryl J. Tschirn and John M. Robin, Covington, for plaintiffs-appellants.

      Yoorhies & Labbe, H. Lee Leonard, Lafayette, Fournet & Adams, Robert J. Adams, Lafayette, Durrett, Hardin, Hunter, Dam-eron & Fritchie, Wallace A. Hunter, Baton Rouge, Provost, Ernest & Schwing, James W. Schwing, New Iberia, Armentor & Wat-tigny, Dean M. Wattigny, New Iberia, Davis, Saunders, Miller & Rizzio, Benjamin B. Saunders, Metairie, for defendants-appel-lees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a suit for damages instituted by decedent’s widow arising out of a fatal aircraft collision which occurred April 3, 1976, in the air space above Acadiana Regional Airport in New Iberia. Among others, the petition named as a defendant, Paul Four-net Air Service, Inc. alleging that it was negligent in failing to: (1) properly maintain the aircraft that it rented to Dr. Sheppard on April 3, 1976; and (2) in failing to properly supervise and instruct Dr. Sheppard in the flying of the aircraft. Subsequently, defendant Paul Fournet Air Service, Inc. was granted a summary judgment dismissing it from the suit on its contention that there was no genuine issue of material fact under which it would be liable to the plaintiff. Plaintiff has appealed this judgment.

On April 3, 1976, Dr. Raymond L. Sheppard, a licensed pilot, rented a Cessna 150 airplane from defendant, Paul Fournet Air Service, at Lafayette Airport, Lafayette, Louisiana. From Lafayette, Dr. Sheppard, accompanied by a passenger, Lt. Col. Raymond Christy (USAF-Retired), flew the rented Cessna to New Iberia’s Acadiana Regional Airport where he made two or three successful “touch and go” landings, and was in the process of making another when his aircraft was involved in a mid-air collision with a Cessna 177 owned by Pelican Aviation Corporation and piloted by Dr. Stephen A. Bernard. After the impact, Dr. Sheppard was able to maneuver his craft to a safe landing;. Dr. Bernard’s plane fell to the ground and he was killed.

As a result of this accident, Dr. Bernard’s widow brought suit, individually and on behalf of her minor children, in both Federal and State courts against a number of defendants including Paul Fournet Air Service. In the State court suit Paul Fournet Air Service moved for a summary judgment and filed several depositions and affidavits which it contends showed no dispute as to material facts. Plaintiff opposed the motion contending that there were facts alleged from which a jury might find negligence on the part of the defendant.

The procedural requirements for a summary judgment are set out in Louisiana Code of Civil Procedure Articles 966 and 967. In considering a trial court granting of a summary judgment, in Walker v. Graham, 343 So.2d 1171 (La.App. 3 Cir. 1977), we said at page 1172:

“A summary judgment may not be rendered unless the pleadings, depositions, affidavits, and like evidence show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Arts. 966, 967; State Farm Fire & Cas. Co. v. Sentry Indemn. Co., 316 So.2d 185 (La.App. 3 Cir. 1975); cases too numerous to cite. It is no substitute for a trial on the merits. All reasonable doubts are resolved against the granting of a summary judgment (Mandella v. Russo, 294 So.2d 598 (La.App. 4 Cir. 1974) even where it may be favored by a preponderance of the evidence. Odom v. Hooper, 273 So.2d 510 (La.1973) (contributory negligence); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

The burden of proof rests on the mover for summary judgment; all doubts are resolved against him. Parker v. South Louisiana Contractors, 340 So.2d 322 (La. App. 1 Cir. 1976). Nor is summary judgment intended to be used as a vehicle to circumvent trial of genuine issues even where it might appear to the court that the pleadings are frivolous and the party so pleading has little chance of success at trial. The denial of a pleader his day in court should be applied with caution in the interest of fairness and due process. Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1 Cir. 1975); Magie v. Patio Motel, Inc., 301 So.2d 381 (La.App. 4 Cir. 1974); Scanlan v. Haristy, 316 So.2d 841 (La.App. 3 Cir. 1975).

Despite the various depositions and affidavits submitted by defendant, not all issues presented by the plaintiff are addressed. In particular, plaintiff alleges that the radio in the Cessna 150 was defective in transmitting on 122.8 megacycles (the “unicorn” frequency used to communicate between aircraft at the uncontrolled Acadiana Regional Airport). Defendant has entered an affidavit of one Whitney J. Savoy in an effort to show the air-worthiness of the Fournet aircraft. This affidavit is defective in three ways: (1) it is not based on personal findings of affiant but on the findings of another mechanic, and thus lacks the requisite trustworthiness; (2) it does not state the condition of the radio, merely stating a conclusion that the craft was air-worthy; (3) even if the radio were operating properly at the time of inspection, there is no showing that it was indeed functioning correctly in the moments prior to the accident.

In the depositions of Truman W. Finch, accident investigator of the National Transportation Safety Board, and Lt. Col. Christy, plaintiff points out several statements that leave open the question of the operation of the radio in the Fournet airplane at the time of the accident.

In the light of the foregoing and in considering the record as a whole, we feel that there are unresolved factual issues that may or may not be provable at trial. Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3 Cir. 1966). The plaintiff should be given the opportunity to attempt to do so and not be forced to try her case before such time.

For the foregoing reasons, the judgment appealed from is reversed, and the matter is hereby remanded to the trial court for further proceedings.

All costs of this appeal are assessed against defendants-appellees.

REVERSED AND REMANDED.


author: GUIDRY, Judge.

text:
    Gwendolyn Batten HYAMS, Plaintiff-Appellant, v. Harry HYAMS, Defendant-Appellee.
    No. 6713.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.

      Brittain & Williams, Jack 0. Brittain, Natchitoches, for plaintiff-appellant.
    Gahagan & Gahagan, R. E. Gahagan, Natchitoches, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

On June 8, 1976, by judgment of the Tenth Judicial District Court Harry Hyams was ordered to pay $450.00 per month for the support of his minor child, Catherine Webb Hyams. On February 15, 1978, Mr. Hyams filed a motion seeking a reduction in child support payments to $250.00 per month, alleging that there had been a change in his circumstances. Mrs. Hyams reconvened for an increase to $670.00 per month, alleging that the needs of the child had increased beyond her means since the previous award had been made.

The trial court rendered judgment reducing the amount which Mr. Hyams would have to pay for the support of his child to $300.00 per month, rejecting Mrs. Hyams’ reconventional demand. Appellant, Mrs. Hyams, appeals this reduction, alleging that Mr. Hyams offered no evidence at the hearing on the motion to support his contention that his financial circumstances had actually changed. Appellant does not on appeal question the dismissal of her reconventional demand for an increase in support.

In his oral reasons for judgment, the trial judge concluded that:

“. . .in June of ’76 Mrs. Hyams was making sixteen thousand three hundred dollars ... a year — now she’s making nineteen thousand, six hundred dollars a year plus some travel expenses of approximately nineteen hundred in 1977. Mr. Hyams has had a reduction, not so much in his basic pay from the City of Natchitoches and from the State’s supplementary, but from the National Guard, and (sic) that he is not receiving what is called a commander’s pay . . . Considering the inflation that we are presently undergoing . . . the Court will reduce the amount of child support from four fifty to three hundred dollars per month . . . ”

The trial court is vested with much discretion in fixing the amount of alimony, and such award will not be disturbed on review unless there has been a clear abuse of this discretion or manifest error in his factual appreciations. Vestal v. Vestal, 216 So.2d 386 (La.App. 3rd Cir. 1968).

The record does not indicate whether the original judgment setting the child support award was a consent judgment. However, the jurisprudence is clear to the effect that even if the original judgment was based upon an agreement between the parties, any modification of the judgment must be predicated upon a change in the circumstances of one of the parties. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

It is the burden of the litigant requesting an adjustment in a prior award to prove that such a change in the financial circumstances of one of the parties has taken place. Bernhardt, supra; Vanier v. Lanier, 344 So.2d 1077 (La.App. 3rd Cir. 1977).

Examination of the record reveals that Mr. Hyams offered no evidence to support his allegation of a change in his financial situation, and that consequently the trial court abused its discretion when it reduced his monthly child support payments.

According to the record, when the original child support award was fixed, Mr. Hyams was earning $1050.00 per month, or $12,600.00 per year from the City of Natchi-toches. He was also receiving $175.00 per month, or $2100.00 yearly in the form of supplemental pay from the State of Louisiana. At the time of the hearing on his motion for a reduction in his child support obligation, the record indicates that he was earning $1,175.00 per month, or $14,100.00 per year from the City of Natchitoches, and $200.00 per month, or $2400.00 yearly by way of supplemental pay from the state. Therefore, since the date of the original child support award, Mr. Hyams’ salary has increased by $150.00 per month, or $1,800.00 per year from the above named sources.

Mr. Hyams contends that while he was employed by the National Guard at the time of the original award, and continues to be so employed, he has received a demotion. He further contends that the result of this demotion was a reduction in his salary, which has adversely affected his financial situation so as to constitute a change in circumstances. This change, he argues, warrants a reduction in his child support payments. The record before us does not substantiate appellee’s contentions.

In 1977, prior to Mr. Hyams’ demotion, he received a net salary from the National Guard of $3,649.25. This figure was based upon monthly allocations and compensation for participation in summer camp. Following the demotion, Mr. Hyams’ monthly allocations were $290.48, or $3,485.76 per year for the present year. He is also entitled to receive $1,148.67 for his participation in this year’s summer camp. Therefore, Mr. Hyams’ gross income from the National Guard will be approximately $4,634.43 this year. Based upon the above figures, appel-lee’s gross income from the National Guard since his demotion will EXCEED his net income prior to the demotion by approximately $1,000.00. This year’s figure will necessarily be reduced by withholding taxes, however, the record clearly indicates that Mr. Hyams’ income from the city, the state, as well as the National Guard will in each case still be greater this year than it was when the original award was fixed, his National Guard demotion notwithstanding.

Mr. Hyams has remarried since the original child support award was made. His second wife is employed, earning approximately $625.00 per month. Such income from a second spouse is likewise properly considered in evaluating the means of a parent to support a child of a former marriage. Parent v. Parent, 327 So.2d 576 (La. App. 1st Cir. 1976), writ refused April 13, 1976.

Insofar as the trial court found that ap-pellee’s income has decreased since the original child support was set, we find that conclusion to be manifestly in error.

The trial court also found that Mrs. Hyams’ income had substantially increased in the last two years. The record does indicate that in 1976 appellant’s salary was approximately $16,300.00 per year, while her present yearly income is $19,600.00, reflecting an increase of $3,300.00 per year since the original support award was made. However, the record also indicates that Catherine, the minor child, has just started high school, and that Mrs. Hyams is paying $929.40 for the child’s tuition. The needs and wants of a teenage girl just beginning high school are necessarily greater and more costly than the needs of a girl of twelve. Therefore, while Mrs. Hyams’ means have increased in the last two years, so have the needs of the child. A child support award must reflect both of these factors — the child’s needs and the financial circumstances of those who must provide them. La.C.C. 231.

Insofar as the trial court recognized an increase in Mrs. Hyams’ income without offsetting such increase with the increased needs of the child, we find the trial court erred.

The final basis given for reducing appellee’s child support payments was the role which inflation played upon his circumstances. Such a conclusion is likewise manifestly erroneous. The fact that the cost of living is higher now than it was when the original award was made is not properly a basis for reducing that award. An increase in the costs of living affects equally both parties. Fakouri v. Perkins, 322 So.2d 401 (La.App. 3rd Cir. 1975); Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975).

For the above reasons, we reverse the judgment of the trial court insofar as it reduces the monthly child support payments due by Mr. Hyams for the support of Catherine Webb Hyams to $300.00, and order that his motion for a reduction in child support be dismissed. All costs of this appeal are to be paid by appellee.

REVERSED AND RENDERED.

      . This figure does not include any compensation appellee would receive for clothing or expenses.


text:
    Glynn W. REYNOLDS, Plaintiff-Appellee, v. Margaret Susan Romero REYNOLDS, Defendant-Appellant.
    No. 6715.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Granted Feb. 23, 1979.

      J. Minos Simon, Lafayette, for defendant-appellant.
    Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This appeal presents the substantial issue, as between a husband and wife, now divorced, of the status (community or separate) of certain property, i. e., distributed and undistributed earnings from property subject to a testamentary trust in favor of the wife as income and principal beneficiary, where the wife did not execute an affidavit of para-phernality as required by LSA-C.C. Article 2386.

The issue presented arises as a result of the following facts which are undisputed. The parties litigant were married to each other on July 9, 1966. On February 6, 1970 they were judicially separated and eventually divorced. Mrs. Reynolds did not execute and record an affidavit of paraphernality pursuant to the provisions of LSA-C.C. Article 2386. The community of acquets and gains existing between plaintiff and defendant acquired property however, upon termination of the community, the bulk of the community estate was settled amicably. The only property, the status of which is disputed on appeal, are monies distributed to Mrs. Reynolds and monies accrued but undistributed to Mrs. Reynolds at the dissolution of the community, as a principal and income beneficiary under a testamentary trust established in the last will and testament of her grandmother, Mrs. Minnie Smith Sledge. The testamentary trust came into existence at the death of the settlor which occurred some nine years before the marriage of the Reynolds. Under the terms of the trust a large rice farm in Vermilion Parish, Louisiana, together with all improvements, equipment, etc., was bequeathed to C. H. Brookshire, as trustee, to hold the property in trust for the settlor’s grandchildren, including Mrs. Reynolds, as principal and income beneficiaries, who were to share and participate in said property, pursuant to the trust, in equal proportions. It is undisputed that Mrs. Reynolds participation was to the extent of one-fourth. The trust so created was to continue until such time as the youngest of the grandchildren living at the time of settlor’s death attained the age of twenty-one years. At the termination of the trust the entire trust estate was to be delivered to the beneficiaries in equal proportions and in full ownership. During the duration of the trust the trustee was directed to pay to the beneficiaries monthly, or at such periodic intervals as the trustee might determine best in his discretion, such sums as might be necessary to permit the beneficiaries to properly maintain and educate themselves, including ordinary and usual luxuries, which the trustee, in his discretion, might deem proper and reasonable. During the period of the marriage Mrs. Reynolds received as distributed trust income the sum of $11,913.85. These funds were deposited in a checking account in the Kaplan State Bank, which account was exclusively controlled by Mrs. Reynolds. At trial the parties stipulated that from this account Mrs. Reynolds expended the sum of $9660.26 on items like clothes for herself and the children, household items etc. The record reflects that upon dissolution of the community a balance of $555.18 remained in this account and the balance in the account of C. H. Brookshire, Trustee, representing undistributed earnings, amounted to the sum of $11434.80.

In light of these facts the defendant, Mrs. Reynolds (now Mrs. Stewart), contends that the distributed trust income and her proportionate share of the undistributed trust income, constitutes separate property and she thus is entitled to judgment recognizing this to be the status of such property and restitution from the former community to the extent of $9660.26. On the other hand the plaintiff, Mr. Reynolds, contends that the distributed and undistributed income, constitutes “fruits” of the paraphernal property of his former wife which, absent execution and recordation of the LSA-C.C. Article 2386 affidavit, formed part of the community of acquets and gains which existed between the parties. Plaintiff thus contends that defendant’s demand for restitution should be rejected and he should be awarded judgment against his former wife for one-half of the distributed trust income remaining on deposit, i. e., the sum of $277.59, and one-half of his former wife’s proportionate share of the undistributed income, i. e., $1429,35.

The trial court concluded that both the distributed and undistributed trust income was the separate property of Mrs. Reynolds, reasoning as follows:

. . The fact to keep in mind in this case is that the property that was the corpus of the trust was not Mrs. Margaret Romero Reynolds’ property. Since she did not have this property there was no way for her paraphernal property to produce fruits which would become community property. The law states that the property belongs to the trustee. R.S. 9:1781 provides:
‘A trustee is a person to whom title to the trust property is transferred to be administered by him as a fiduciary.’
The instrument setting up the trust placed the title to the property in the trustee.
T. I give and bequeath my farm property, comprising 640 acres, more or less, situated in the Parish of Vermillion (sic) Louisiana, together with all improvements, equipment, farm implements, and movable property situated therein, under (sic) C. H. Brookshire, a resident of the Parish of Vermillion, (sic) Louisiana, trustee, to have and to hold all of the said property in trust for my grandchildren . . . .’
Mrs. Margaret Romero Reynolds did not own the property therefore it could not be considered her separate and parapher-nal property. She had no right to make demands of anything of the trustee, not even the monies that were deposited in her bank account. The trust provided that the trustee was to pay sums to Mrs. Reynolds but solely at his discretion and that ‘the discretion given to the trustee shall be absolute and not be subject to the questioned (sic) by any of the beneficiaries of the trust.’ The trustee had the authority to sell the property. Actually the only property that Mrs. Reynolds received from this source during the community regime was the funds that were deposited in the bank. The funds were the property. The funds were not the fruits of her paraphernal property but were the property per se. There is no proof that the funds deposited in the bank bore any fruits whatever. Apparently no interest accrued on this account nor did it create any kind of revenue from any source or for any reason.
The Court is of the opinion also that Mrs. Margaret Romero had no interest in the account maintained by the trustee. The only time she was entitled to any of the funds from the trust were when the trustee, at his sole discretion, transferred funds to her. The funds in the bank account of the trustee belonged to the trustee and not to Mrs. Romero. They became hers when they were transferred from the trustee’s bank account to her bank account. Even if it is considered that it was her separate property there is no proof that it produced any fruits. Only the fruits became community property . .

Although concluding that the distributed income was Mrs. Reynolds’ separate property the trial judge denied her claim for restitution assigning the following reason therefor:

“. . . The Court is of the opinion that Mrs. Margaret Romero Reynolds is not entitled to be reimbursed for the funds that she claims that she spent for the benefit of the community. It is apparent that she spent these of her own free will and of her own desire to spend them and to benefit the recipient of her benevolence. Apparently they were gifts, or contributions or donations to the community without any expectation of anything in return. There is no proof that there was any enhancement to the community from her separate and para-phernal funds. . .

Defendant appealed and assigns as error the trial court’s conclusion that she is not entitled to restitution of her separate property expended for the benefit of the community. Plaintiff has answered defendant’s appeal assigning as error the trial court’s determination as to the status of the property in question and its failure to award plaintiff the relief required by proper disposition of that issue.

We believe that our learned trial brother erred when he concluded that during the existence of the community the defendant, Mrs. Reynolds, was not vested with any interest in the property which formed the corpus of the “Minnie Smith Sledge Trust” and therefore, distributed and undistributed trust income “were not the fruits of her paraphernal property but were the property per se.”

We acknowledge that under our trust law, as it exists now and as it existed when the instant trust came into being, title to the trust corpus vested in the trustee. LSA-R.S. 9:1731 former 9:1792(16) and 9:1811. However, this vesting of title in the trustee was for the sole purpose of his faithfully administering the property for the benefit of the beneficiary heirs and did not, in our opinion, serve to exclude the immediate vesting of interest in the principal beneficiaries at the moment of the set-tlor’s death. Mrs. Reynolds was both a principal and income beneficiary.

In Burglass v. United States, 76 F.Supp. 904 (E.D.La.1948) the court, in deciding that trust income paid to a beneficiary husband constituted fruits of the husband’s separate property and thus formed part of the community existing between him and his wife, stated that . . the title or ownership of the property in trust . . . was vested in the heirs at the death of the father, subject only to the limited trust . ” In affirming this decision on appeal the U.S. Fifth Circuit in United States v. Burglass, 172 F.2d 960, 963 (1949) stated:

“While the act states that a trust shall be created when a person, in compliance with the provisions of the act, transfers the legal title to property to a trustee in trust for the benefit of himself or a third person, the provision does not chanere the Louisiana law of inheritance; and, under that law, as stated by the court below, appellee and his coheirs became, by operation of law, the owners in indivisión of a portion of the properties at the . instant of the death of the father. The interest inherited from the father was transmitted to them subject to the terms of the testamentary trust. . . . ”
(Emphasis supplied)

We recognize that our brethren of the First Circuit in Dunham v. Dunham, 174 So.2d 898 (La.App. 1st Cir. 1965) expressed disagreement with these pronouncements, but we find such pronouncements to be persuasive, especially in light of our Supreme Court’s decision in Succession of Stewart, 301 So.2d 872 (La.1974).

In Stewart, supra, nullity of the testator’s last will and testament, which created a testamentary trust in favor of certain nieces and nephews and their descendants was sought on the ground that the trust provisions contained a prohibited substitution. The trust there under attack came into existence upon the death of the settlor on January 11, 1956, several years prior to the adoption of the Louisiana Trust Code of 1964 and the amendment of LSA-C.C. Article 1520 which amendment (Act 45 of 1962) excepted substitutions permitted by the laws relating to trusts from the prohibition of that article. Specifically, the opponents contended that because title to the corpus vested in the trustees and then subsequently upon termination of the trust in the principal beneficiaries the will contained a prohibited substitution within the meaning of the provisions of LSA-C.C. Article 1520 in effect at the time of settlor’s death. In rejecting this argument our Supreme Court stated:

“Applying the law as it existed at the time the present testament went into effect and the prior jurisprudence to the facts of this case, we conclude that the testament herein does not contain a prohibited substitution. The bequest to the trustees was not made to them as owners or as beneficiaries but rather ‘in trust’ subject to the terms and conditions as therein set forth. The trustees were charered only with the administration of the property for the benefit of the beneficiaries pending- its distribution to them. As previously noted, the settlor clearly and unmistakably bequeathed the property placed in trust to his nieces and nephews and their descendants. The trust was created with the immediate vesting of interest in the beneficiaries at the moment of the settlor’s death. There is no double or successive vesting of interest here . .

Although the issue before the court in Stewart was different from that presented in the instant case, the resolution of the issue in Stewart, as it is at least in part in this case, was dependent upon when the interest of the beneficiary heir vests.

In passing we observe that our present trust code specifically provides that the interest of a principal beneficiary is acquired immediately upon the creation of a trust, subject only to certain exceptions not applicable to the trust under consideration (LSA-R.S. 9:1971) and that upon a principal beneficiary’s death his interest vests in his heirs or legatees, subject to the trust. (LSA-R.S. 9:1972) Although Louisiana’s Trust Act of 1938 contained no provision specifically providing that the interest of a principal beneficiary vested immediately upon creation of the trust, it did specifically provide for the vesting of a beneficiary’s interest in his heirs or legatees at his death, subject to the trust. (See former LSA-R.S. 9:1921) We consider the above indicative that our present trust code specifically recognizes and our former trust law recognized, at least by implication, that in testamentary trusts the doctrine “le mort saisit le vif” applies in the same manner in which it would if there were no trust.

We are aware that our decision in this case presents a seeming conflict with our prior decision in Succession of Hines, 341 So.2d 42 (La.App. 3rd Cir. 1976). We discern no real conflict in the two cases. In Hines, supra, we correctly concluded that property bequeathed in trust was bequeathed to the trustee to be administered by him as a fiduciary for the benefit of the principal beneficiary and thus the trustee and not the principal beneficiary was alone empowered to demand delivery of the legacy bequeathed to the trust estate. LSA-R.S. 9:1731; 1781; and, LSA-C.C.P. Articles 699 and 742. We did not decide in Hines that the beneficiary heir was not vested with any interest in the trust corpus for such conclusion would be clearly contrary to LSA-R.S. 9:1971 and 1972.

In sum we conclude that Succession of Stewart, supra, is decisive of the issue presented and accordingly we hold that on the date of defendant’s marriage to plaintiff she was, as a principal beneficiary under the Minnie Smith Sledge Trust, vested with an interest in the corpus held in trust, which interest formed part of her separate estate. LSA-C.C. Article 2334. The record clearly reflects that the distributed and undistributed income in question represents income derived by the trustee from farming and other operations conducted on the property held in trust. Therefore, this being so, it necessarily follows that the distributed income constitutes “fruits” of the paraphernal property of the wife within the intendment and meaning of LSA-C.C. Article 2386. We also conclude that, under the facts of this case, the undistributed income earned during the existence of the community constitutes “fruits” of the para-phernal property of the wife because one-fourth of such income was certain to be received by Mrs. Reynolds either in distributions to her as income beneficiary or as principal beneficiary at the termination of the trust.

Considering the above, the sole remaining inquiry concerns the classification of the “profits” or “fruits” of the paraphernal property of the wife as community or separate pursuant to the provisions of LSA-C.C. Articles 2386 and 2402. In Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir. 1976) writs refused, we considered the effect of the change in Article 2386 brought about by La.Acts, 1944, No. 286. Therein we stated:

“Prior to August 1, 1944, LSA-C.C. Art. 2386 provided as follows:
‘When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil, or the result of labor, belong to the conjugal partnership, if there exists a community of gains. If there do not, each party enjoys, as he chooses, that which comes to his hands; but the fruits and revenues, which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.’

By Act No. 286 of 1944, effective August 1, 1944, this article was amended to read as follows:

‘The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.
If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.’

The 1944 amendment provided a definite manner in which the wife might retain the separate administration of her property, and thus claim the revenues therefrom as her separate property. The amendment did not give the wife any new rights, but provided an irrefutable and conclusive manner for the wife to establish the separate administration of her property. Where formerly the wife, in order to establish her separate administration, was required to prove a negative — that is, that her property was not administered by her husband or that it was not administered by the husband and wife indifferently, now she may establish her separate administration simply by proof that she has executed and filed the written instrument provided for in the amended Article 2386. The method of proving or establishing the separate administration of the wife’s property was the only change made by the 1944 amendment.” (at pgs. 555-6)

Although Art. 2402, which has remained unchanged since 1825, appears to require an evidentiary showing that the husband has had the administration and enjoyment either “of right or in fact” of his wife’s separate effects before the profits thereof will be declared community property, whatever proof is required under that article is determined by the wife’s action or inaction under Art. 2386 as amended. That is to say, if the wife files an affidavit of paraphernality, she is conclusively presumed to be administering her separate effects, and the profits will not enter the community. On the other hand, if the wife fails to file such an affidavit, then the husband is conclusively presumed to have the “administration and enjoyment” of his wife’s separate effects, and the profits thereof belong to the community.

Counsel for appellee contends that Dun-ham v. Dunham, 174 So.2d 898 (La.App. 1st Cir. 1965) fully supports the trial court’s conclusion as to the separate nature of the distributed and undistributed trust earnings in that according to the cited case, before the profits of a marital partner’s separate effects can be classified as community property it must be established that the husband has had the administration “of right or in fact” of those separate effects. Accordingly, counsel for appellee argues that since neither plaintiff nor defendant had the administration and enjoyment of the corpus held in trust (such being vested exclusively in the trustee) the profits thereof did not fall into the community.

In Dunham the court determined that the husband, a principal beneficiary of property held in trust, did not have the administration “of right or in fact” of the trust corpus or its fruits (this right being in the trustee alone) and that consequently the profits or fruits of this separate trust interest remained separate property. We find ourselves in disagreement with our brethren of the First Circuit. First, we do not interpret the phraseology of Article 2402 to require the administration and enjoyment by the husband of his own separate effects before the profits thereof fall into the community. Rather we interpret such provisions as having reference only to the separate effects of the wife of which the husband has the administration and enjoyment. In our view, the profits of the husband’s separate effects, however administered, fall into the community. Additionally, we believe that such proof as is required under Article 2402 (insofar as the “administration and enjoyment” of the wife’s separate effects by the husband are concerned) is controlled by the provisions of Article 2386 and the wife’s action or inaction pursuant thereto. In the instant case, since the defendant wife failed to execute the LSA-C.C. Art. 2386 affidavit, her husband is conclusively presumed to have had the administration of her separate effects, and no further inquiry under LSA-C.C. Art. 2402 is either required or necessary.

In the recent case of Guilott v. Guilott, 361 So.2d 1271 (La.App. 3rd Cir. 1978), our docket No. 6494, our court was faced with a situation in which a wife was receiving income from her interest in a partnership in commendam in which neither spouse had an administrative function of right or in fact. We concluded that absent the filing of an affidavit of intent by the wife as provided for in Art. 2386, the fruits or income from the partnership entered the community, without regard to who was managing the partnership. We herein conclude that the position taken in Guilott is consistent with the legislative intent behind the amendment of LSA-C.C. Art. 2386.

There is no dispute that Mrs. Reynolds did not file an authentic act in which she reserved the exclusive use and administration of her paraphernal effects and the profits thereof. We therefore find that all trust income which was generated during her marriage to appellee, whether it was distributed to her or not, was community property. As such, she is not entitled to restitution for any part of such income allegedly expended for community purposes, (Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir. 1976), writ refused) and the plaintiff, Mr. Reynolds, is entitled to judgment against the defendant for one-half of the distributed and undistributed trust profits unexpended on the date on which the community was dissolved as prayed for by him, i. e., the sum of $1,706.94.

For the above and foregoing reasons, we amend the trial court judgment and render judgment in favor of plaintiff, Glynn W. Reynolds, and against the defendant, Margaret Susan Romero Reynolds (now Stewart) in the full sum of $1,706.94, together with legal interest thereon from the date of judicial demand until paid. In all other respects the judgment appealed from is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.

      . The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.
      If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.

      . LSA-C.C. Art. 2386 provides in pertinent part:
      “The fruits of the paraphernal property of the wife, wherever the property be located and however administered . fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone . . .”

      . LSA-C.C. Art. 2402 provides in pertinent part:
      “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact . ”

      . For a more comprehensive criticism of this decision and its effect as an obstacle to the integration of trust law with Louisiana property law concepts see, Pascal, Work of the Louisiana Appellate Courts for the 1965-66 term, 26 La.L.R. 459, at 483.


text:
    Erastus BRYANT, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellee.
    No. 6718.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23,1979.

      John L. Van Norman, III, Lake Charles, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Lafayette, William N. Nolen and William R. Tete, Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

This appeal presents a question of whether the trial judge committed error by granting the defendant’s motion for a directed verdict in this malpractice suit against St. Paul Fire & Marine Insurance Company, the insurer of Lake Charles Memorial Hospital.

Erastus Bryant, the father of Elijah Bryant, deceased, brought the suit alleging that Lake Charles Memorial Hospital (hereinafter referred to as Memorial), through its employees, including Dr. Arthur Rhoades, was negligent in the care rendered to his 26-year old son Elijah Bryant, causing his death. Plaintiff’s son was admitted to the emergency room of Memorial for a gunshot wound and then later was placed in an ambulance to be transferred to Lafayette Charity Hospital for further treatment and surgery. En route to Lafayette the son died. Plaintiff sued St. Paul Fire & Marine Insurance Company (hereinafter referred to as St. Paul), the insurer of Memorial. St. Paul filed a third party demand against Hartford Accident & Indemnity Company, the insurer of Dr. Rhoades. Dr. Rhoades was the director of emergency services at Memorial.

At the close of plaintiff’s evidence, St. Paul filed a motion for a directed verdict on the ground that the plaintiff failed to produce any expert testimony to establish the “community standards” of hospital practices in the area which could be used by the jury to determine whether there was a lack of proper care, skill and diligence by Memorial employees. The motion was also grounded upon the lack of evidence of the community standards for physicians. The trial court granted the motion for a directed verdict on those grounds. The court concluded that lack of such “community standard” testimony compelled a directed verdict. Plaintiff appealed.

The witnesses presented by the plaintiff in regard to the activities, examination, and decisions made on the evening of April 16, 1975, in the emergency room of Memorial Hospital were as follows: Dr. Arthur Rhoades, Dr. Avery Cook, a pathologist, Mark Pleasant, a nursing assistant in the emergency room, Susan Zeringue, a registered nurse assigned to the emergency room, and Bert Billedeaux, an ambulance driver for Lake Charles Charity Hospital. Dr. Rhoades was called on cross-examination. The remaining witnesses were called on direct examination.

The facts briefly are as follows: On the evening of April 16, 1975, Elijah Bryant was admitted to the emergency room of Memorial Hospital in Lake Charles, Louisiana. Present were Dr. Rhoades, nursing assistants and technicians. Bryant had received a wound from a bullet which had entered the left rear portion of his rib cage. He was administered an I.V. and was examined by Dr. Rhoades. This physician concluded that the bullet had traversed the upper chest area. Bryant responded within a short time to the I.V. as his vital signs returned to approximately normal.

A call was made for a staff surgeon, Dr. Bennerscheidt, in order that he could examine Bryant and determine whether he should be admitted to Memorial. Dr. Ben-nerscheidt was not available at that time, however. Dr. Rhoades, as director of the emergency room, was not authorized to admit a patient to Memorial. Before Dr. Ben-nerscheidt arrived, Lake Charles Charity Hospital was called and was told to send an ambulance to transfer Bryant to Lafayette Charity Hospital. Bryant was in the emergency room a short time. The testimony ranges from 20 minutes to IV2 hours. The ambulance arrived with a driver but no attendant. Bryant was placed in the ambulance and died on the way to the Lafayette Hospital. The principal cause of death was internal bleeding.

Plaintiffs principal contentions are that Memorial, through its employees, was negligent in transferring Bryant without having him examined by a staff surgeon; that Memorial was negligent in not admitting Bryant for further care; that Memorial was negligent in authorizing the removal of Bryant by ambulance while in a serious condition; and that Memorial was negligent in releasing Bryant to be transferred in an ambulance without an attendant.

The first issue is whether it is necessary to establish community standards for hospitals in order that the jury may determine negligence of the hospital.

This court, in the case of Williams v. Sisters of the Incarnate Word of Galveston, Texas, 341 So.2d 1299 (La.App. 3rd Cir. 1977), set out the standard of care a hospital owes to its patients, wherein the court stated as follows:

“In the case of Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974), our Supreme Court has stated the duty of a hospital toward its patients as follows:
“ ‘A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.’
“However, the hospital’s duty has been traditionally limited by the jurisprudence, and the oft-quoted limitation has been recently reiterated in Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2d Cir. 1976):
. . .On the other hand, a private hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.” ’ (Emphasis added)
“See also Guidry v. State, Department of Hospitals, 317 So.2d 222 (La.App. 3rd Cir. 1975), writ refused, 320 So.2d 904 (La.1975); LeBlanc v. Midland National Insurance Company, 219 So.2d 251 (La. App. 3rd Cir. 1969); Killgore v. Argonaut-Southwest Insurance Company, 216 So.2d 108 (La.App. 2nd Cir. 1968), and DeBlanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4th Cir. 1968).”

The standard of care enunciated above does not require the establishment of a “community standard” in order to make a determination of negligence of hospitals. The trial court was in error in its ruling in this regard.

Plaintiff relies, in part at least, on the negligence of Dr. Rhoades for recovery. Recent jurisprudence has developed making a change in the standard of care by medical specialists. While a discussion of this jurisprudence may not be necessary to this decision, we feel that such a change in this area should be pointed out for the benefit of the trial court in the retrial of this matter.

Dr. Rhoades testified that he was a physician specializing in traumatic and industrial surgery. This suit was tried in November, 1977. The trial court did not have the benefit of Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (La. 1978), rehearing denied July 26, 1978, wherein the Supreme Court enunciated the standard of care of physician specialists by holding as follows:

“For the foregoing reasons, we hold that a medical specialist is required by La.Civil Code Articles 2315 and 2316, and La.R.S. 9:2794, to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by physicians within his medical specialty; that the plaintiff seeking to prove that a medical specialist failed to adhere to these standards of care or skill is not limited to expert medical testimony by witnesses practicing or familiar with the standards of care and skill within the defendant specialist’s community or locality; and that, accordingly, the lower courts fell into error in the instant case by ruling that testimony pertaining to the standard of care or skill within the involved medical specialty could not be presented because of a locality rule.
“Accordingly, testimony of qualified experts, regardless of whether practicing within or familiar with the defendant doctor’s locality is admissible to prove the degree of care ordinarily exercised and the degree of skill or knowledge ordinarily possessed by physicians within the involved medical specialty. However, evidence of the local facilities and resources available, as well as evidence of other pertinent local conditions, is also admissible and should be considered by the trier of fact in determining whether a physician exhibiting the care, knowledge and skill ordinarily exhibited by physicians within the involved speciality would have acted or failed to act in the manner of the defendant doctor at the time in question.”

The effect of this ruling was to abolish the “locality” rule or “community standard” rule of physicians who are specialists. Since Dr. Rhoades is a specialist, the standard of care required of him would be determined according to the ruling in Ardoin.

In view of our conclusions, we find it unnecessary to make a determination of the remaining issues.

For these reasons, the judgment of the trial court is reversed and the case is remanded to the trial court for a new trial in accordance with the views expressed herein. Costs of this appeal are assessed to St. Paul Fire & Marine Insurance Company.

REVERSED AND REMANDED.


text:
    Dewey MYERS, Plaintiff-Appellant, v. HOWELL ELECTRIC MOTORS COMPANY et al. (Butler International, Inc.), Defendant-Appellee.
    No. 6719.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.
    Edwards, Stefanski & Barousse, J. Mike Stefanski, Crowley, La., for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Keith M. Borne, Lafayette, Ronald R. Thompson, Baton Rouge, Davidson, Meaux, Sonnier & Roy, J. J. Davidson, III, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Dewey Myers made a claim under the Jones Act and the question before us is whether a pontoon bridge is a “vessel.” The trial court granted a motion for summary judgment, finding the bridge was not a “vessel” but was “an extension of land” and was not “in navigation.” The plaintiff has appealed.

The facts are not in dispute. The plaintiff was employed by the Louisiana Department of Transportation and Development as a bridge tender on the Estherwood Pontoon Bridge which crosses Bayou Plaque-mine in Acadia Parish. The structure was in three sections: a north section, a south section, and a middle section. The north and south sections were attached to pilings, thus being permanent structures. These two sections did not move. The middle section was a barge-type structure which was permanently attached to the south section by a pivotal mechanism. The middle section would pivot to the west to allow marine traffic to pass. This section was pivoted by means of a cable system attached to two “drums” operated by an electric motor. The bridge tender’s room from which he operated the mechanism to open and close the bridge was located on the south side of the river and next to the southern structure. This room and the equipment were installed on a concrete foundation.

There were devices called “aprons” on the north and south sections of this structure. The purpose of these devices was to hold the middle section in place when it was placed between the north and south sections; also, the aprons provided a passage for vehicular traffic to travel onto the middle section. Each apron contained a locking system which locked when the middle section was closed. On the day of the accident (May 8, 1975) plaintiff alleges that the water was exceptionally high and there existed a strong current. Plaintiff also claims that he was attempting to open the structure to allow marine traffic to pass. After he lifted the aprons the current pushed the middle section open. The plaintiff attempted to hold the clutch of the gear system against the force of the current to prevent the middle section from swinging. As he did this, the clutch jerked the plaintiff and he alleges that he thereby sustained injuries.

Plaintiff sued Howell Electric Motors Company (hereinafter referred to as Butler International). Butler International was the alleged manufacturer of the electric motor that controlled the gear system on the structure. The plaintiff also sued the State of Louisiana through the Department of Transportation and Development and its insurer, Houston General Insurance Company. Houston General filed a motion for summary judgment, and it was signed on March 29, 1978. Butler International also filed a motion for summary judgment and it was signed on April 5, 1978. The plaintiff has appealed the March 29, 1978 (Houston General) judgment only. The plaintiff filed his claim under the Jones Act, contending the pontoon was a “vessel” and as an operator thereof, he was a seaman. The Louisiana Department of Transportation and its insurer, Houston General, contend the structure was not a “vessel” and plaintiff is relegated to a workmen’s compensation claim.

Since the plaintiff has alleged that his activities were within the admiralty jurisdiction, we look to the federal cases construing and defining “vessel” as an aid in resolving the problem. Intracoastal Liquid Mud, Inc. v. Choate, 225 So.2d 642 (La.App. 3rd Cir. 1969).

We find that the federal court classified the nature of a “pontoon bridge” in the case of Cookmeyer v. Louisiana Department of Highways, 309 F.Supp. 881 (E.D.La.1970), affirmed 433 F.2d 386, certiorari denied 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 332 (1971), rehearing denied 402 U.S. 980, 91 S.Ct. 2179, 29 L.Ed.2d 169 (1971). That structure extended Highway 47 across a Mississippi Gulf Outlet. That pontoon bridge stretched from one bank to an island in the middle of the outlet and from the island to the other bank. Thus, it had two swinging barges attached to permanent structures located on each bank and on an island in the middle of the river. In all other aspects, this structure was essentially the same as that in our present case. That court held:

“Clearly, before having become parts of the pontoon bridge assembly, each pontoon may have been a barge in navigation and, hence, a vessel of admiralty cognizance. However, the mere fact that a part of the bridge assembly was at a former time a vessel, or could become, by detachment and adaptation at a future time, capable of navigation, is not disposi-tive of the issue presented in this case. Whether the pontoon bridge is an extension of land or a vessel turns on its ‘nature, purpose and character’ at the time of the accident which forms the subject matter of this suit.
“The primary purpose of the pontoon bridge was to serve as a span connecting North and South shores of the Mississippi River Gulf Outlet, over which vehicular traffic might pass, pending completion of a high level bridge at an adjacent site. It was not intended to ply the navigable waters of the United States, carrying goods and passengers in commerce. When the pontoons were turned on their pivots to allow water traffic to pass, they were performing a function ancillary to the primary purpose of bridging the distance between the two shores. At such times, it should be noted, the pontoons remained attached to the permanent pivot piling structure, and carried no passengers or cargo in navigation. In the light of the function or mission of this special structure, the assembly was a bridge and not a barge. It functioned as a bridge, and was moved through the water only when that function yielded of necessity to the requirements of the Gulf Outlet’s water traffic.”

The court concluded that the structure was a bridge or an extension of land and was not a “vessel.”

The plaintiff relies principally on the case of Peytavin v. Government Employees Insurance Co., 453 F.2d 1121 (5th Cir. 1972) to support its position that this “pontoon bridge” was a “vessel.” In Peytavin, the court in affirming the trial court’s granting of a motion for summary judgment, disagreed with the trial court’s ruling that the floating pontoon which served as an approach to a Mississippi River ferry boat was an extension of land. The court noted that the pontoon was held to the shore only by two cables. It affirmed the trial court’s ruling, however, on the basis that the claim of Peytavin “lacks substantial connection with maritime activities or interests.” (Peytavin’s automobile was rear-ended by another car as he was in position on the pontoon.)

The Cookmeyer case was referred to in Peytavin and distinguished.

The structure in this case was substantially the same as the structure in Cook-meyer, supra, and served a similar purpose. We thus find that the structure in question was a bridge or extension of land and cannot be classified as a “vessel” under admiralty law.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant.

AFFIRMED.

      . Howell Electric Motors Company was sold and its name was changed to Howell International, Inc. Thereafter Howell International, Inc. changed its name to Butler Aviation, International, Inc. Subsequent to that change, the company again changed its name to Butler International, Inc.

      “4 Johnson v. C. F. Harms Co., 25 N.J.Misc. 457, 55 A.2d 165, N.J.C.C.P.; Tucker v. Bran-ham, 151 F.2d 96 (3rd Cir. 1945).

      “5 Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir. 1969).

      “6 Offshore Co. v. Robison, 266 F.2d 769, 766, 75 A.L.R.2d 1296 (5th Cir. 1959).”

      . The question of whether a construction platform composed of barges was a “vessel” was very recently considered by the Fifth Circuit in the case of Leonard v. Exxon Corp., 581 F.2d 522, 1978, wherein the court held as follows:
      “. The platform consisted of four flat-deck barges. These barges were not self-propelled, and could be moved only by the application of some external source of power. Three of the barges were placed end to end and lashed securely together. According to the trial court, this three-barge structure was moored ‘more or less permanently’ to the shore by separate steel cables. The fourth barge which served as a crane platform and as an access ramp to the other three barges, was located between the shore and the remaining barges. This fourth barge was connected to shore by a wooden ramp. To permit the crane to service each of the three outer barges, the three-barge platform would occasionally be untied and move slightly forward or backward until properly positioned.
      “This court has previously held that a similar floating construction platform, which was neither designed for navigation nor engaged in navigation at the time of the accident, was, as a matter of law, not a vessel under the Jones Act. Cook v. Beiden Concrete Products, Inc., 472 F.2d 999 (5th Cir. 1973). In Cook, as in the instant case, the barges were afloat, but that fact alone was not determinative of status.”


text:
    Howard RATTLIFF, Plaintiff-Appellant, v. DIAMOND CRYSTAL SALT CO. et al., Defendants-Appellees.
    No. 6730.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Martzel & Montero, Charles F. Gay, Jr., New Orleans, for plaintiff-appellant.
    Voorhies & Labbe by Greg Yoorhies, Lafayette, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is a suit for workmen’s compensation benefits. The determinative issue raised in this appeal involves the application and constitutionality of LSA-R.S. 23:1209.

On July 15, 1970, the plaintiff received a head injury while working for Diamond Crystal Salt Company. After a six month period of convalescence, during which time workmen’s compensation benefits were paid, the plaintiff resumed work and his duties in full with Diamond Crystal Salt Company. On July 9, 1975, almost five years later, after reporting for work petitioner suffered an epileptic seizure. On July 6, 1976, plaintiff filed a petition for workmen’s compensation against the defendant, Diamond Crystal Salt Company and its insurer, Liberty Mutual Insurance Company. The time of the filing was less than one year after the injury had manifested itself, but more than the two year period of limitation established in LSA-R.S. 23:1209. The defendants filed an exception of prescription and a plea of peremption, which exception and plea were referred to the merits. After a trial on the merits, the trial judge found that plaintiff had established by a preponderance of the evidence that the epileptic seizure which he suffered was causally related to the injury sustained by him on July 15, 1970, but sustained the defendants’ plea of peremption and dismissed plaintiff’s suit at his cost. From this judgment, the plaintiff has taken this devolutive appeal.

Louisiana Revised Statute 23:1209 provides a two year peremptive period from the date of the “accident” within which an injured worker must begin workmen’s compensation proceedings or he shall be forever barred from making any claim stemming from the accident.

The jurisprudence on this issue is now settled. Both our Supreme Court, infra, and this court, in Funderburk v. Calca- sieu Paper Company, 261 So.2d 277 (La. App. 3rd Cir. 1972), have previously held the above mentioned provision valid and decisive in this factual context. In Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (La.1971), the Supreme Court addressed both the constitutionality and the proper interpretation of R.S. 23:1209. The court found that the legislature was not constitutionally required to provide a cause of action in workmen’s compensation for losses arising more than two years after the accident. Even if an injury does not manifest itself immediately after the accident, a claim for recovery must still be brought within two years of the date of “accident” or the claim perempts.

Although, unlike Ancor, the manifestation of plaintiff’s injury appeared shortly after he had reported for work, there is no evidence whatever that the onset of plaintiff’s seizure was caused by a job related accident or by the strain of plaintiff’s work. Rather, to the contrary, it is undisputed that the epileptic seizure occurred solely as a result of the accidental injury suffered on July 15, 1970. Under these circumstances there being no subsequent “accident”, within the meaning and contemplation of the workmen’s compensation act, plaintiff’s claim has perempted.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

FORET, J., concurs in the result.

      . In Ancor, supra, plaintiff neither alleged not curred while plaintiff was on the job. proved that the manifestation of injury oc-


author: ELLIS, Judge.

text:
    Frank C. BLOSSMAN, Jr., Robert C. Blossman and June Blossman Oulliber, Plaintiffs-Appellees. v. Pearl Blossman OLSEN, Defendant-Appellant.
    No. 12292.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Iddo Pittman, Jr., Hammond, for plaintiffs-appellees.
    Richard L. Muller and Martha L. Jumon-ville, Mandeville, for defendant-appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

Ella Theresa Barnett, widow of Frank C. Blossman, Sr., died intestate on August 16, 1975, leaving as her sole heirs Frank C. Blossman, Jr., Robert C. Blossman, June Blossman Oulliber and Pearl Blossman Olsen. Following the death of her husband, Mrs. Blossman had purchased a lot on the corner of Water and St. Joseph Streets in Madisonville, Louisiana, and built a house thereon, in which she made her home.

On March 31, 1973, Mrs. Blossman executed an act of sale, by which she purported to transfer the said property to Mrs. Olsen for a cash consideration of $1,000.00. This suit was brought by the other three heirs against Mrs. Olsen to have the sale of March 31, 1973, declared a simulation, and null and void. Alternatively, they pray that the said sale be declared lesionary beyond one-fourth; that the transaction be found to be a donation omnium bonorum, and null and void; and that Mrs. Olsen be ordered to collate the said property to the Succession of Mrs. Blossman.

By way of defense, if the sale be found to be lesionary, defendant alleges that the transfer was, in fact, an onerous donation, supported by the care given Mrs. Blossman during the last three years of her life; and by improvements made to the property by Mrs. Olsen. Alternatively, defendant claims that the property was transferred to her as an extra portion, and is not subject to collation. By amended answer, defendant further prayed that, in the event the sale is rescinded, she be reimbursed all amounts expended to maintain, improve and preserve the improvements on the property; and, finally, that plaintiffs be es-topped to deny the validity of the transfer, because of their participation in having it made.

After trial on the merits, judgment was rendered, declaring the sale to be a simulation, and therefore null and void, and denying defendant’s reconventional demand for reimbursement of the amounts expended on the property. Defendant has appealed.

Although the testimony of the witnesses is in conflict on some of the circumstances surrounding the transfer, two facts are entirely clear and uncontradicted. First, Mrs. Blossman transferred the property to Mrs. Olsen in order to induce Mrs. Olsen to come and live with her and second, that there was no cash consideration paid. There can be no doubt that both parties intended that a transfer take place. In Owen v. Owen, 336 So.2d 782 (La.1976), the court said:

“In our law, a simulation is a transfer of property which is not what it seems. Simulations are of two types: pure simulations, and disguised transfers. In a pure simulation, sometimes called a non-transfer, the parties only pretend to transfer the property from one to the other, but in fact both transferor and transferee intend that the transferor retain ownership of the property. When this type of simulation is successfully attacked, the true intent of the parties is revealed, which was that no transfer had in fact taken place. In a contest between a vendor and vendee in this situation the true intent of the parties is effectuated and the courts hold that no transfer took place because the simulated sale is an absolute nullity. Successions of Webre, 247 La. 461, 172 So.2d 285 (1965); Schalaida v. Gonzales, 174 La. 907, 142 So. 123 (1932); Milano v. Milano, 243 So.2d 876 (La.App. 1st Cir. 1971). The other type of simulation is a disguised transfer which seems on its face to be a valid sale, but which is intended by the parties to be a gift rather than a sale. When this sort of simulation is attacked successfully, as it has been here under Article 2444, the true intent of the parties is likewise effectuated by the law. A valid transfer has taken place, but its form is a donation rather than a sale and the Code articles on donations apply to the transfer. Stevens v. Stevens, 227 La. 761, 80 So.2d 399 (1955); Carter v. Bolden, 13 La.App. 48, 127 So. Ill (La.App. 2nd Cir. 1930); 35 La.L.Rev. 192 (1974); 25 La.L.Rev. 313 (1965).”

The trial judge was therefore in error when he found the transfer to Mrs. Olsen to be a pure simulation, and therefore null. The transaction is clearly a simulation of the second type, a disguised donation, and the transaction is governed by the codal provisions on donations.

We find it equally clear that the transaction cannot be considered null as a donation omnium bonorum. Article 1497 of the Civil Code provides:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

It is uncontradicted in the record that Mrs. Blossman had sufficient income for her support. The donation to Mrs. Olsen did not, therefore, leave her without enough property for subsistence, and cannot be nullified under Article 1497, supra.

Article 2444 of the Civil Code provides: “The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

Such a donation is not null, however, but is subject to collation and reduction if it infringes on the legitimate portion of the forced heirs. Articles 1227, 1502 et seq., Civil Code. If the donation is remunerative or onerous, it is subject to collation only if the value of the thing donated exceeds by one-half the value of the charges or services imposed on the donee. Articles 1523-1526, Civil Code.

However, under Article 1242 of the Civil Code, “The collation is made only to the succession of the donor.” A demand for collation must be brought as an incident to a succession proceeding, and not in a suit such as this, which was brought primarily to nullify a sale. Owen v. Owen, supra.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein in favor of defendant, dismissing plaintiffs’ suit at their cost, but without prejudice to their right to seek collation in a proper proceeding.

REVERSED AND RENDERED.