author: HOOD, Judge. CULPEPPER, Judge

text:
    Louise Clair Temple GRAVEL, Plaintiff-Appellee, v. Alfred C. GRAVEL, Jr., Defendant-Appellant.
    No. 5174.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 1976.

      Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendant-appellant.
    Louise Qair Temple Gravel, in pro per.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Mrs. Louise Clair Temple Gravel filed this suit against her husband, Alfred C. Gravel, Jr., for separation from bed and board, for custody of the two children of the marriage, for child support and for alimony pendente lite. The trial judge granted the separation and awarded custody of the two minor children to plaintiff. In addition, he awarded plaintiff child support in the amount of $200.00 per month per child and alimony pendente lite to the wife in the amount of'$150.00 per month. From this judgment, the defendant husband appeals.

The issues are: (1) Is LSA-C.C. article 148 unconstitutional as a denial of equal protection of the law to married men? (2) Where the mother is capable of gainful employment, must she seek such employment to fulfill her duty to support her children? (3) Is the wife entitled to alimony pendente lite where she is capable of gainful employment? (4) Are the awards for child support and alimony pendente lite so excessive as to constitute an abuse of the trial court’s discretion ?

Plaintiff and defendant were married on August 28, 1962. The two children born of the marriage are respectively 10 and 12 years of age. This suit was filed on March 11, 1975, and tried on April 11, 1975.

Constitutionality of Article 148

The first issue is whether LSA-C. C. Article 148, which provides for alimony pendente lite, denies to defendant equal protection of the law under the Louisiana Constitution of 1974 and under the United States Constitution. This question was decided by our Supreme Court in the recent case of Williams v. Williams, 331 So.2d 438 (La.1976). There a majority of the court, with two justices dissenting and two concurring separately, stated “. (Civil Code) article 148 does not deprive males of equal protection or due process of law under the fourteenth amendment to the federal constitution, nor does it violate article 1, sections 2 and 3 of the Louisiana Constitution of 1974.”

Must the Mother Work to Support the Children?

The next issue is whether the mother who is capable of gainful employment must seek such employment to fulfill her duty to support her children. LSA-C. C. Article 227 provides:’ “Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children.” Jurisprudence construing this article has established the rule that both the means of the mother and her ability to earn must be considered in determining the amount of child support which she is obligated to bear. Fellows v. Fellows, 267 So.2d 572 (La.App. 3 Cir. 1972); Zara v. Zara, 204 So.2d 76 (La.App. 4 Cir. 1967); Poydras v. Poydras, 155 So.2d 221 (La.App. 1 Cir. 1963).

In Ducote v. Ducote, 331 So.2d 133 (La.App. 3 Cir. 1976), we held that the mother, a licensed practical nurse, would be obligated to work to pay her share of the support of the children, were it not for the fact that it was necessary for her to remain at home to care for her three young daughters. We believe that where the mother is capable of gainful employment, she must work if necessary to fulfill her duty to support the children, unless she has good cause not to seek employment.

The facts in the instant suit are that Mrs. Gravel worked as a registered nurse before she married defendant. Shortly after the marriage, she terminated her employment. During the 12 years of the marriage, she worked for about one year as an instructor in a school of nursing. At the time she separated from defendant and at the time of the trial, she was enrolled as a full-time student in the graduate school of Northwestern State University, seeking a Masters Degree in Nursing Education. She is not presently employed. She expects to graduate in the spring of 1976, however, and after her graduation she plans to work and can probably earn a substantial salary in nursing education.

Applying the above rules to this case, we have concluded that Mrs. Gravel should not be required to seek employment at this time, since that would make it necessary for her to discontinue her graduate course. We believe that the fact that she is enrolled in school and expects to obtain a Masters Degree soon is sufficient reason to relieve her of the necessity of seeking employment now.

We also note that at the time of the trial plaintiff’s daughter was 9 years of age and her son was 11. The relatively young ages of her children, their need for a mother’s care and supervision in the home, and the other circumstances presented here, also would constitute sufficient grounds to relieve Mrs. Gravel from her obligation of obtaining employment and contributing to their support now.

We assume that the district judge took all of the above facts into consideration in deciding that plaintiff was not required to seek employment at this time. We find that he did not abuse his discretion in reaching that conclusion.

Denial of Alimony Pendente Lite Where Wife Capable of Working

The next issue is whether the wife should be denied alimony pendente lite on the grounds that she is capable of earning sufficient income for her support.

We are aware of the jurisprudence which indicates that the husband cannot escape the payment of alimony pendente lite to his wife on the grounds that she is capable of earning sufficient income for her support during the pendency of the suit. See Abrams v. Rosenthal, 153 La. 459, 96 So. 32 (1923); Bilello v. Bilello, 240 La. 158, 121 So.2d 728 (1960); Small v. Small, 173 So.2d 854 (La.App. 4 Cir. 1965); Scott v. Scott, 174 So.2d 193 (La.App. 2 Cir. 1965); Street v. Street, 188 So.2d 164 (La.App. 2 Cir. 1966); McMath v. Masters, 198 So.2d 734 (La.App. 3 Cir. 1967); Cabral v. Cabral, 245 So.2d 718 (La.App. 4 Cir. 1971).

The above cases were decided before 1974. Article 1, Section 3, of the Louisiana Constitution of 1974 provides, in part, that “No law shall arbitrarily, capriciously or unreasonably discriminate against a person because of sex . . . .” The Supreme Court has held that LSA-C. C. art. 148 does not violate that provision of our .constitution, A question is presented, however, as to whether the rule applied in the above cases constitutes an unconstitutional application of the provisions of that article.

It is unnecessary for us to resolve that issue in the instant suit, because we have decided that Mrs. Gravel should not be required to quit school and obtain employment now, regardless of how the above legal question might be answered. The views we might express on that issue thus would be dicta. Assuming, but without deciding, that plaintiff ordinarily would be required to obtain some gainful employment and contribute to her own support, we think she would be relieved from that obligation at this time for the same reasons which we assigned in relieving her from the obligation of contributing to the support of her children.

Our conclusion is that Mrs. Gravel is entitled to alimony pendente lite and to child support, without any requirement at this time that she contribute to her own support or to the support of her children.

Are the Awards Excessive ?

The next issue is whether the awards for child support and alimony pen-dente lite are too great. In the case of Trahan v. Adams, 264 So.2d 358 (La.App. 3 Cir. 1972) we stated: “Under Civil Code Article 231, child support payments are fixed on the basis of the ability of the father to pay and the needs of the child .” Trial courts are vested with considerable discretion in fixing the amounts which the parents should contribute for the support of their children, and the judgment of the trial court in these matters will not be disturbed unless there appears to be an abuse of that discretion. Wingo v. Cook, 306 So.2d 370 (La.App. 3 Cir. 1975); Broussard v. Broussard, 320 So.2d 236 (La.App. 3 Cir. 1975); Fakouri v. Perkins, 322 So.2d 401 (La.App. 3 Cir. 1975); Janise v. Janise, 328 So.2d 711 (La.App. 3 Cir. 1976).

Alimony pendente lite under LSA-C.'C. Article 148 is awarded as a judicial enforcement of the husband’s obligation to support the wife during the existence of the marriage. Small v. Small, supra; Sachse v. Sachse, 150 So.2d 772 (La.App. 1 Cir. 1963). The amount of alimony to which she is entitled will be proportioned to her needs and to the means of her husband. Vestal v. Vestal, 216 So.2d 386 (La.App. 3 Cir. 1968); Smith v. Smith, 185 So.2d 830 (La.App. 2 Cir. 1966); but it should be sufficient to allow her to live as she had during marriage if the husband’s means be sufficient to so provide. Johnson v. Johnson, 317 So.2d 691 (La.App. 2 Cir. 1975). Where the amount required by the wife under these standards exceeds the husband’s ability to pay, alimony pendente lite should be fixed in an amount which as far as possible is fair and just to all parties. Thomas v. Thomas, 281 So.2d 471 (La.App. 4 Cir. 1973).

In determining a proper award to, be made to the wife as alimony pendente lite, all of the facts and particular circumstances of the case must be considered. The fixing of the amount to be paid for such support and maintenance is largely within the discretion of the trial judge and his conclusions ordinarily will not be interfered with on appeal unless there has been a clear abuse of discretion. McMath v. Masters, supra; Guilbeau v. Latour, 168 So.2d 422 (La.App. 3 Cir. 1964); Bernard v. Bernard, 300 So.2d 499 (La.App. 3 Cir. 1974); Chauvin v. Chauvin, 282 So.2d 869 (La.App. 3 Cir. 1973).

In the instant case the trial judge awarded $200.00 per month per child for a total of $400.00 per month in child support. Additionally, $150.00 per month was awarded to defendant as alimony pendente lite, for a total monthly payment of $550.-00. Though the defendant introduced evidence that his income after taxes was only approximately $800.00 per month, the trial judge apparently did not believe this. After awarding the above sums he stated: “Now, this is not enough to compensate Mrs. Gravel for the needs of these children and herself, nor is it quite as much as Mr. Gravel perhaps can pay. . . . ” (Emphasis supplied). We find an adequate evidentiary basis for this conclusion. In his reasons for judgment, the judge listed many of the monthly expenses for the household and observed that “(a)dding these figures together, the family had to have an income in excess of $1,045 a month prior to the time they separated.” Based on the evidence in the record and considering the wide discretion accorded a trial judge in these matters and his unique posture to determine credibility, we conclude appellant has failed to show a manifest abuse of discretion in the awards complained of.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.

CULPEPPER, J., concurs and assigns written reasons.

CULPEPPER, Judge

(concurring).

I concur in the majority opinion except that I do not think we should pretermit the legal issue of whether the wife should be denied alimony pendente lite on the grounds that she is capable of earning sufficient income for her support. This issue is separate from that of whether the mother must work to fulfill her duty to support the children and should be decided on different grounds.

Under the existing jurisprudence cited in the majority opinion, the wife cannot be denied alimony pendente lite on the basis that she is capable of working and earning sufficient income for her support. Although there may be some question about this jurisprudence in light of the new Louisiana Constitution of 1974, it is my view that we should follow these cases unless they are overruled by our Supreme Court.

For the reasons assigned, I respectfully concur.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Dorothy Kate Colclough CAMBRE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 10650.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writs Refused July 2, 1976.

      George R. Covert, Baton Rouge, for appellant.
    Donald S. Zuber, Baton Rouge, for ap-pellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff, (Appellant), a resident of East Baton Rouge Parish, appeals dismissal of her tort action against defendants: (1) The Department of Anesthesiology of the University Hospital at Jackson, Mississippi, a Mississippi partnership (Partnership), composed of Doctors James F. Arens, Joseph Carl Gabel, Donald David Glass, Jessie G. Mullen, and Allen Tonne-sen, all residents of Mississippi; (2) Dr. Joel H. Ory, a former member of Partnership, now residing in East Baton Rouge Parish, Louisiana, and; (3) St. Paul Fire and Marine Insurance Company (Insurer), medical malpractice insurer of Partnership. The trial court dismissed Appellant’s action upon defendants’ exceptions of lack of jurisdiction, improper venue and insufficient service of process. We affirm dismissal of Appellant’s action as to all defendants except Dr. Joel H. Ory.

Appellant alleges as a cause of action that a member of Partnership negligently damaged Appellant’s jugular artery during surgery on Appellant at the University Hospital, Jackson, Mississippi, on April 4, 1974, causing total paralysis of Appellant’s right side.

The following operative facts are stipulated :

Insurer, is the liability insurer of the named doctors, individually and as co-partners, pursuant to policies issued in Mississippi. The alleged medical malpractice occurred in Mississippi. Partnership’s domicile is in the State of Mississippi, the only state in which any of Partnership’s members ever rendered medical services. It was the practice of the Partnership to render service to any Louisianan who presented himself to the hospital in Jackson, Mississippi. Partnership did not solicit business in Louisiana by advertising or any other means. At the time of surgery, Appellant’s admittance chart identified Appellant as a resident of Laurel, Mississippi, listing an address, employment and referring physician in Laurel. Appellant refused to stipulate she was a resident of Mississippi at the time of surgery. Since the operation, Appellant has undergone corrective surgery in Louisiana and is presently receiving treatment in this state for her injuries. Insurer is authorized to do and does business in the State of Louisiana. Dr. Ory withdrew from the Partnership on August 15, 1974 and established both residence and domicile in Louisiana where he was living when suit was filed.

Process was served on Partnership and Dr. Ory by personal service upon Dr. Ory, individually and as Partnership representative, in East Baton Rouge Parish. Insurer was served through its legal representative, The Secretary of State, State of Louisiana. Insurer excepted to the court’s jurisdiction and peremptorily excepted to Appellant’s alleged right of direct action against Insurer. Additionally, Insurer filed exceptions of res judicata and collateral estoppel predicated upon dismissal of Appellant’s action against Insurer filed in the United States District Court, Middle District of Louisiana, which action was dismissed on the ground that Appellant had no right of direct action against Insurer under Louisiana law.

Partnership filed declinatory exceptions of lack of personal jurisdiction, improper venue and insufficient service of process.

Dr. Ory also filed exception to the court’s jurisdiction over the Partnership and excepted to the venue as being improper for an action against the Partnership. As to the suit against him personally, Dr. Ory filed exceptions of no cause of action, no right of action and non-joinder of an indispensable party in the event the court sustained the declinatory exception of Partnership.

INSURER’S EXCEPTIONS.

As noted above, Insurer filed exceptions of lack of personal jurisdiction as to the cause of action alleged, no right of direct action against Insurer pursuant to La.R.S. 22:655 (The Louisiana Direct Action Statute) and res judicata or collateral estoppel based on dismissal of Appellant’s Federal Court action against Insurer. While the trial court dismissed the action against Insurer, the record does not show which exception was sustained or why.

We find the exception of lack of a right of direct action against Insurer to have been well taken. We also find the issue thus raised does not properly address itself to the question of jurisdiction vel non but rather to the procedural right to pursue Insurer directly in the courts of this state. There can be little doubt but that Insurer, being qualified to do and doing business in Louisiana, is subject to the jurisdiction of the courts of this state. The federally required “minimum contacts” to support jurisdiction on a constitutional, due process basis are patently present in this instance. In this area, Louisiana has chosen to assert its jurisdiction pursuant to La.R.S. 22:985, which provides that a foreign insurer doing business in the state names the Secretary of State as its agent for service of process in all actions brought against the insurer in this state. The language of the cited statute has been declared sufficiently broad to include any action by a Louisiana resident against a foreign insurer, regardless of whether or not the action arises from business transacted in or out of the state. Morse v. Hartford Casualty Insurance Company, La.App., 301 So.2d 741; Smith v. Globe Indemnity Co., La.App., 243 So.2d 882.

Despite personal jurisdiction of our courts over Insurer, Appellant’s action against Insurer must be dismissed because Appellant has no right of direct action against Insurer under the Louisiana Direct Action Statute, La.R.S. 22:655, which pertinently provides:

“This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not . . . provided the accident or injury occurred within the State of Louisiana.”

The broadest application of the above statute, of which we are aware, is contained in Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398, wherein the Supreme Court held a Louisiana resident entitled to bring a direct action against an insurer if the accident occurred in Louisiana or if the policy sued upon was issued or delivered in the state. Following Webb, above, several decisions have disallowed direct action against an insurer in this state when the cause of action arose in another state and the policy sued upon was neither issued nor delivered in Louisiana. See Morse v. Hartford Casualty Insurance Company, above; Kirchman v. Mikula, La.App., 258 So.2d 701; Grinnell v. Garrett, La.App., 295 So.2d 496.

Since the accident in this case occurred outside Louisiana and the policy sued upon herein was neither issued nor delivered in this state, Appellant has no right of direct action against Insurer.

Appellant notes that La.R.S. 22:655 provides that the injured party may bring suit “in the parish in which the accident or injury occurred.” It is contended that the corrective surgery and treatment performed and administered in East Baton Rouge Parish is “injury” occurring in said parish and entitles Appellant to proceed directly against Insurer.

We reject this argument as unsound. We believe the phrase “accident or injury” as used in the statute means, insofar as “accident” is concerned, the act, event or circumstance which produces the harm. We believe that said phrase, insofar as “injury” is concerned, means and refers to the harm or damage which results from defendants’ negligent act. Corrective surgery or treatment required to remedy or alleviate the ill effects of medical malpractice do not, in our opinion, constitute “injury” within the meaning of the term as contained in the statute in question.

THE PARTNERSHIP’S EXCEPTION OF LACK OF PERSONAL JURISDICTION

Constitutional due process provisions require that, for personal jurisdiction to attach to a non-resident defendant, there must be both a nexus between the non-resident defendant and the state of the forum, and adequate notice to the non-resident defendant predicated on a method fairly and reasonably designed to afford the non-resident actual notice of the litigation instituted against him. Since defendant Partnership is not domiciled in this state, has never been present in this state, has never resided here and has not consented to or waived its objection to the jurisdiction of our courts, the only possible nexus between this state and said defendant must be founded upon the Partnership’s activities within the state as prescribed by our so-called Long-Arm Statute, La.R.S. 13:3201, which states:

“3201. Personal jurisdiction over nonresidents
A court may exercise personal jurisdiction over a nonresident who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits any business, or engages in an other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
(e) having an interest in, using, or possessing a real right or immovable property in this state.”

Application of La.R.S. 13:3201 must stand the test of the due process clause of the United States Constitution as interpreted by the United States Supreme Court. Fisher v. Albany Machine and Supply Company, 261 La. 747, 260 So.2d 691. Valid application of such a statute must meet two basic requirements. First, does the statute encompass the particular activity or “jurisdictional act” of the nonresident over whom jurisdiction is sought to be exercised? Second, does the exercise of jurisdiction, if authorized, violate Federal due process requirements? See Comment, Personal Jurisdiction over Nonresidents—the Louisiana Long-Arm Statute, 40 Tul.L.R. 366 (1966).

The stipulated facts presented herein, render unnecessary a consideration of the due process aspects of Partnership’s exception to personal jurisdiction, because La.R.S. 13:3201 does not, itself, extend jurisdiction to a non-resident defendant in Partnership’s situation. As noted in Rush v. Matson Navigation Company, La.App., 221 So.2d 265, La.R.S. 13:3201 confers jurisdiction on a nonresident defendant only when one of the jurisdictional bases therein specified is found to be present and the cause of action sued upon arises from one of the enumerated jurisdictional bases.

It is clear that Appellant’s injury did not arise from Partnership’s transaction 'of any business in this state. Equally evident is the fact that Appellant’s injury occurred in Mississippi from an operation performed in a Mississippi hospital. Appellant’s injury did not result from a Partnership contract to supply services or goods in this state; all services rendered Appellant under her contract for the surgery were supplied and rendered to appellant in Mississippi. Defendant Partnership committed no offense or quasi offense in this state, nor did it cause Appellant injury or damage in this state by an offense or quasi offense committed elsewhere.

Appellant was either a Mississippi resident seeking medical services in her own state or a Louisiana resident seeking medical services in Mississippi from a Mississippi partnership. The alleged tortious conduct occurred in Mississippi and Appellant’s injuries were sustained in that state. Louisiana’s only contacts with this case are that Appellant was a resident of Louisiana when she filed suit and that Dr. Ory, a member of the Partnership at the time of the surgery, later withdrew from the Partnership and moved to Louisiana where he was personally served.

Admittedly our Long-Arm Statute was intended to take maximum advantage of United States Supreme Court decisions dealing with the due process issue herein concerned. Nevertheless, we find the statute, if applied to Partnership under the stipulated facts, would not stand the constitutional test of due process required to constitute valid service of process upon a foreign partnership. See Hall v. Lanning, 91 U.S. 160, 23 L.Ed. 271.

Having found merit in Partnership’s exception to the jurisdiction over its person, it is unnecessary to consider said defendant’s remaining exceptions.

DR. ORY’S EXCEPTIONS

Having sustained Partnership’s dismissal herein, there remains for decision only Dr. Ory’s exception of no cause or right of action against him as an individual during the existence of the Partnership and his exception of non-joinder of an indispensable party predicated upon Partnership’s dismissal from this action.

It is conceded by all parties that the Partnership made defendant herein no longer exists and that its dissolution resulted from Dr. Ory’s withdrawal therefrom in 1974.

As a general rule, a dissolved partnership maintains a fictional existence with respect to its past transactions and existing assets, until its affairs are wound up and completed. It is also generally held that a dissolved partnership ceases to exist as a separate entity, nevertheless, it continues to exist fictionally for the liquidation of its affairs, the performance of existing contracts, the collection of debts, the payment of its obligations and the distribution of its assets according to the partnership agreement. 68 C.J.S. Partnership § 351, page 859.

Both of Dr. Ory’s exceptions are based in essence on the fictitious continuation of the partnership involved herein. Basically, exceptor contends that the fictitious continuation of the partnership is equivalent to its actual existence before dissolution and, in either instance, individual partners may not be sued by creditors of the partnership unless the partnership itself is joined as a party. This position is predicated upon the applicability of La.C.C.P. Article 737.

We must first determine what law is applicable. Under the stipulated facts it is obvious that the character of Partnership, as well as the rights and liabilities of its members, are matters properly determinable under Mississippi law. While we are cognizant of our duty to take judicial note of the law of other states pursuant to La.C.C.P. Article 1391, we view the cited statute as eliminating the necessity of proving foreign law as a fact. It does not require the courts to take judicial notice of foreign law, except when the law of another state is brought to the court’s attention by the record or briefs. In so concluding, we adopt the majority rule as appled by other jurisdictions in the interpretation of the Uniform Judicial Notice of Foreign Law Act, upon which our own Article 1391, above is predicated. See 23 A.L.R.2d 1437, and cases therein cited. In so holding, we also rely upon the decisions of our own courts in Pecora v. James, La.App., 150 So.2d 90, and Succession of Shadrick, La.App., 129 So.2d 606.

Neither party herein has cited or relied upon, either in brief or oral argument, Mississippi statutory or jurisprudential law. Consequently, we apply the well established presumption that the applicable foreign law is the same as the law of our own state on the subject matter in question, Welch v. Jacobsmeyer, 216 La. 333, 43 So.2d 678; Clair v. Gaudet, La.App., 144 So.2d 638; Hattiesburg Manufacturing Co. v. Pepe, La.App., 140 So.2d 449.

Upon dissolution of a Louisiana partnership, the partners become owners in indivisión of the partnership assets; and, in ordinary partnerships each partner becomes liable for his virile share of the partnership debts. La.C.C. Article 2873; Johnson v. Iowa Rice Dryer, Inc., La.App., 226 So.2d 194. A dissolved partnership may be sued in its partnership name at the same places in which it was amenable to suit prior to dissolution, and service of process on a dissolved partnership may be obtained by citation in the firm name served upon a former partner. Montague v. Weil & Bro., 30 La.Ann. 50; Guess & Albin v. Ham, La.App., 183 So. 61. However, a creditor may choose to sue the partners, or any of them individually, since the liability of each partner for the partnership’s obligations is fixed at the time of dissolution. Vernon Company v. Adams, La.App., 165 So.2d 541; Muller v. Davis-Wood Lumber Co., et al., 2 La.App. 359. Therefore, Appellant has a valid cause and right of action against Dr. Ory, individually, for whatever liability Dr. Ory incurred, under Mississippi law, upon dissolution of the partnership. Johnson v. Iowa Rice Dryer, Inc., above; Vernon Company v. Adams, above. Considering the partnership is no longer in existence, the venue provisions of La.C.C.P. Article 78, which provide that an action against a partner of an existing partnership, on a partnership obligation or an obligation arising out of the partnership, must be brought in the proper venue as to the partnership itself, is inapplicable herein. Consequently, under La.C.C.P. Article 42, our general venue statute, Dr. Ory may be sued, individually, at his domicile.

We find no merit in Dr. Ory’s contention that La.C.C.P. Article 737 requires dismissal of Appellant’s action for non-joinder of an indispensable party. Under our law, former partner of a dissolved ordinary partnership are joint ob-ligors and therefore merely necessary parties to an action. La.C.C.P. Article 643; La.C.C. Article 2873. Non-joinder of a necessary party does not mandate dismissal of an action where the non-joined party is not subject to the jurisdiction of the court, as in the present case. La.C.C.P. Article 642; Johnson v. Iowa Rice Dryer, Inc., above; Vernon Company v. Adams, above. We conclude the trial court erred in sustaining the exception of no cause or right of action and the exception of non-joinder of an indispensable party filed by Dr. Ory.

It is ordered, adjudged and decreed that the judgment of the trial court dismissing this action against defendants Department of Anesthesiology of the University of Mississippi and St. Paul Fire and Marine Insurance Company, be and the same is hereby affirmed.

It is further ordered, adjudged and decreed that the judgment of the trial court dismissing this action against defendant Dr. Joel H. Ory, individually, be and the same is hereby reversed and set aside; that said defendant’s exceptions be and the same are hereby overruled, and that this matter be remanded to the trial court for further proceedings consistent with the views herein expressed, the costs of this appeal to be shared equally by plaintiff Dorothy Kate Colclough Cambre and defendant Dr. Joel H. Ory.

Affirmed in part, reversed in part and remanded.


author: LOTTINGER, Judge.

text:
    Mrs. Ruby Yvonne H. OGDEN v. John Randolph OGDEN.
    No. 10667.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      Fred H. Belcher, Jr., Baton Rouge, for appellant.
    Ashton L. Stewart, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

Plaintiff, Mrs. Ruby Yvonne H. Ogden, filed this suit on May 8, 1968, against defendant, John Randolph Ogden, for a partition of a dissolved community. The parties were married on December 26, 1956, and lived in Baton Rouge. Mrs. Ogden filed a suit for a separation of bed and board on April 14, 1966, on which a judgment was rendered on June 7, 1966. The parties were divorced on August 24, 1967. This suit seeks an accounting of the community affairs from Mr. Ogden, an inventory of its assets, and a partition thereof.

After trial on January 15 and 17, 1969, the District Court entered written reasons on the issues presented to it dated May 20, 1970.

On April 4, 1975, Mrs. Ogden (then remarried to Kelleher) filed a rule against defendant to complete the partition. A final judgment was signed by the District Court encompassing its reasons for judgment of May 20, 1970, and its rulings on the issues on the above rule, which was tried on May 19, 1975. As is shown by the evidence, the parties have partitioned the immovable property. The final judgment made an accounting of money and granted Mrs. Ogden a judgment against Mr. Ogden for $10,730.00, with legal interest from date of the separation. This judgment ordered a partition in kind of various shares of stock and household furniture. The judgment also recognized the parties as owners in indivisión of various promissory notes. Both parties have appealed.

There are five areas in which one of the other of the parties is not satisfied with the ruling of the Trial Court, and we will discuss them in the following order.

I.Mrs. Ogden contends that the Trial Court improperly allowed Mr. Ogden ’ a claim for $10,461.09 which the Trial Court found to be his separate property as his one-sixth interest in the net worth of Gordon Theatre at the time of his marriage to Mrs. Ogden.
II.Mr. Ogden submits that the District Court erred in classifying 250 shares of stock of Broadmoor Theatres, Inc. in his name as community property.
III. Likewise Mr. Ogden claims that the Trial Court erred in classifying 127 shares of stock of Gordon C. Ogden Theatre, Inc. in his name as community property.
IV. Mr. Ogden contends that the Trial Court erred in classifying the money paid to him at the end of the years 1966, 1967 and 1968 by Broad-moor Theatres, Inc. as dividends instead of as compensation for work actually done.
V.Mrs. Ogden complained that the Trial Court incorrectly allowed Mr. Ogden a claim for $6,689.94 which was the amount of a down payment he made on real property known as Rittiner Terrace duplex.

Defendant inherited from his father an undivided one-sixth interest in a motion picture enterprise known as the Gordon Theatre at 412 North Fourth Street in Baton Rouge. Defendant’s father and mother originally owned the theatre business, and he and his two brothers inherited his father’s undivided one-half interest in undivided thirds.

Though defendant was a minor at the time of his father’s death, the Gordon The-atre continued to be operated in the same manner it had always been even though no Court authority was obtained to do so with regard to the share of the minor children. After the death of defendant’s father, the theatre business had one bank account in the name of Gordon C. Ogden Partnership, and it filed a partnership return for federal income tax purposes. Defendant argues that the business is a partnership, whereas plaintiff argues it to be a joint venture. Since the question of whether Gordon The-atre was a partnership is common to a number of the questions before us, we will consider that question at this time.

Darden v. Cox, 240 La. 310, 123 So.2d 68, 71 (1960), rehearing denied (1960), sets out the requirements for a partnership, to-wit:

“First, the parties must have mutually consented to form a partnership and to participate in the profits which may accrue from property, skill or industry, furnished to the business in determined proportions by them. Arts. 2801, 2805 of the Civil Code; Labat v. Labat, 232 La. 627, 95 So.2d 129. Secondly, all parties must share in the losses as well as the profits of the venure. Art. 2814 of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read & Hunt, 27 La.Ann. 103; Chaffraix & Agard v. Lafitte & Co., 30 La.Ann. 631; Shushan Bros. & Co. v. Drennan & Hillcoat, 158 La. 480, 104 So. 214.”

Mrs. Ogden argues that the Gordon Theatre business could not have been a partnership because Mr. Ogden, the defendant, was a minor at the time of his father’s death and could not give the necessary consent for the formation of a partnership. While the partnership was a relative nullity up to the time of Mr. Ogden's marriage to plaintiff, the marriage emancipated him. LSA-C.C. art. 379. Following emancipation, Mr. Ogden’s failure to object to the partnership and his participation therein was a tacit ratification of the partnership. LSA-C.C. art. 1785. The second and third requisites of a partnership have also been met. Therefore, the Gordon Theatre business was a partnership which the partners named Gordon C. Ogden Partnership. Further, it appears to us that even though in his written reasons for judgment, the Trial Judge does not declare the Gordon Theatre business as a partnership, he treated it as such because he only allowed the community the enhanced value. Abraham v. Abraham, 230 La. 78, 87 So.2d 735 (1956).

I.

Mrs. Ogden contends that the Trial Court improperly allowed defendant his claim for $10,461.09 which was his undivided one-sixth interest in the net worth of the Gordon Theatre business known as Gordon C. Ogden Partnership at the time of his marriage to Mrs. Ogden. There is no question that $10,461.09 is the correct net worth, but Mrs. Ogden argues that the majority of this net worth was in the form of cash in the Gordon Theatre bank account in the name of Gordon C. Ogden Partnership. She argues that income from Mr. Ogden’s separate property was community property which is correct, but she further argues that as partnership income was commingled with cash on deposit at the date of marriage the commingling caused defendant’s interest in the account to be considered community property under our jurisprudence.

We do not agree. The Gordon Theatre business was a partnership, and as such it is a separate legal entity. The defendant, Mr. Ogden, owns only an undivided interest in the partnership. He has no interest in the assets of the partnership other than his interest. All of the income deposited in the partnership account belonged to the partnership, and not to the partners in undivided interests. Dubuisson v. Moseley, 232 So.2d 870 (La.App.3rd Cir.1970).

The only claim that the community can have against this partnership is for the enhanced value of the interest, owned by the defendant since he married. LSA-C.C. art. 2408 and Abraham v. Abraham, supra.

We, therefore, find no error in the Trial Judge allowing the defendant his claim for $10,461.09, representing his one-sixth of the net worth in the Gordon Thea-tre business on the date of the marriage of plaintiff and defendant.

II.

Mr. Ogden submits that the District Court erred in classifying 250 shares of stock of Broadmoor Theatres, Inc. in his name as community property.

Broadmoor Theatres, Inc. was formed by the Ogden family during the marriage of plaintiff to defendant. Defendant obtained his original forty shares of stock in Broad-moor Theatres, Inc. by check drawn upon the Gordon C. Ogden Partnership in the amount of $400.00 by the partnership bookkeeper and debited to defendant’s drawing account, which check was used as payment in full for stock issued in the name of defendant. Ten of these original shares were later transferred to defendant’s brother who was a minor at the time the corporation was formed.

The Trial Judge made the following comment with regard to the purchase by defendant of the stock in Broadmoor Theatres, Inc.:

“It is clear to this Court from an examination of the evidence that defendant has failed to overcome the presumption that the original Broadmoor stock acquired during the existence of the community is community property. The argument that the profits from the alleged partnership though reflected on defendant’s capital account or net worth account belong to the partnership rather than to defendant is a non sequitur once funds from the capital account have been withdrawn by the defendant. All earnings of the defendant from whatever source or method constitute an asset of the community, Louisiana Civil Code Article 2334, and it is clear that the earnings from the alleged partnership attributable and belonging to the defendant during the existence of the community constituted community assets. Inasmuch as these annual earnings were commingled with the original separate funds, it is simply impossible to say on the basis of the evidence whether the $400.00 allegedly withdrawn from this account to purchase the original Broadmoor stock constituted an expenditure from the separate or community funds. Defendant enjoyed full dispositive power over this capital account, and to say that the $400.00 he withdrew to satisfy his stock subscription came from his separate funds rather than from the community funds would necessitate resort to sheer speculation.”

Defendant argues that the Gordon Theatre business was a partnership and as such a legal entity and that none of the income belonged to him until it was actually paid to him. He further argues that the $400.00 was not income, was from his partnership account, and was an exchange of separate property for the stock which became separate property.

We agree that none of the partnership income belonged to the defendant until it was actually paid to him, Dubuisson v. Moseley, supra, but whether or not the income to the partnership is separate or community property, the income that the defendant receives from the partnership is community property. LSA-C.C. art. 2402 and Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952).

Of course, the defendant argues that the $400.00 was not income to him from the partnership, but merely a transfer of money in his partnership capital account to Broadmoor Theatres, Inc. for stock. This argument might hold true if the stock had been placed in the name of the partnership, for then it would simply be nothing more than another asset of the partnership ; however, the stock in Broadmoor Theatres, Inc. was issued in the name of the defendant. Whether the check from the partnership was issued to the defendant in his name, deposited by him, and a new check issued to Broadmoor Theatres, Inc. for the purchase of the stock, or whether the check was issued in the defendant’s name and endorsed by him to Broadmoor Theatres, Inc., or written directly to Broadmoor Theatres, Inc. on his behalf is of no moment, because under any of these circumstances the defendant was receiving income from the partnership, either directly or indirectly. Since the money that was used to purchase the stock is community, the stock is community.

There is the additional question as to whether 220 shares of Broadmoor Thea-tres, Inc. stock issued to defendant after the legal separation was community or separate property. At first, it would certainly appear that this would be his separate property; however, the Trial Court found the shares to be community property because the charter of Broadmoor Theatres, Inc. gives shareholders pre-emptive rights. At the time this second certificate for 220 shares was issued, a few months after the separation judgment, defendant was still in full and complete control of the community property. He had a fiduciary relationship to his wife. Pitre v. Pitre, 247 La. 594, 172 So.2d 693 (1965). To hold otherwise would not only violate the rights of the dissolved community to its pre-emptive rights, both in the charter of the corporation and in the law, but would violate the fiduciary relationship which defendant then had to his wife from whom he was separated. Defendant, if he had not so purchased for the community, would still have owed his wife full disclosure of the opportunity provided by the pre-emptive rights to buy such stock for the community, which he did not do. We agree with the Trial Court that this second issue of stock, though purchased after the effective date of the legal separation, was still community property.

III.

Mr. Ogden argues that the Trial Court erred in classifying 127 shares of stock in Gordon C. Ogden Theatre, Inc. as community property. Like the stock of Broad-moor Theatres, Inc. this stock was purchased with a check written on the account of Gordon C. Ogden Partnership which was the account of the Gordon Theatre business. For reasons already discussed we find that the Trial Judge was correct in finding this stock to be community property.

IV.

Mr. Ogden contends that the Trial Court erred in classifying monies paid to him at the end of the years 1966, 1967, and 1968 by Broadmoor Theatres, Inc. as dividends instead of as compensation for work actually done. Corporate resolutions authorizing said payments designate them as salaries, and they were so treated on the tax returns of the corporation. However, with only one exception, which we will mention later, all of these lump sum payments were made to officer-director-shareholders of the corporation. The Trial Court points out that not all of the recipients of the payments lived in the Baton Rouge area, and all had already received compensation for their services as officers and directors in accordance with resolutions of the corporation. Additionally, for the year 1966, each of the four shareholders received the same amount at the end of the year, that is the sum of $7,500.-00. For the year 1967, defendant and his brother, Gordon Ogden, Jr., received $11,850.00, their brother Guy received $9,150.00, and their mother received $8,170.00. In the year 1968 the shareholders each received $6,500.00 with the exception of defendant who received nothing. However, at the identical time, an employee of the corporation who is now the wife of defendant received $6,500.00. It was apparently obvious to the Trial Judge that she was paid in place of defendant for the specific purpose of avoiding the claim that is now made by plaintiff. The fact that these payments are in fact dividends rather than compensation is more evident when considered in light of the evidence that the division was made each year and changed each year so that the approximate sum of $25,000.00 was reported as corporate income each year. The year end divisions had no apparent relationship to work performed but were according to the ownership of stock.

The Trial Court found that the payments were dividends and as such belonged to the owner of the stock rather than being compensation due defendant. This Court will not disturb this factual finding of the Trial Court because “[T]here is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding . . .” Canter v. Koehring Company, La., 283 So.2d 716 (1973), rehearing denied (1973).

V.

Mrs. Ogden complains that the Trial Court incorrectly allowed defendant a claim of $6,689.94 which was the amount of a down payment he made on real property known as Rittiner Terrace duplex during the marriage. The opinion of the Trial Court sets out the basis of this dispute:

“A further point of disagreement between the parties involves the validity of plaintiff’s written acknowledgment that the down payment made on a piece of property bought during the existence of the community came from defendant’s separate funds and that the community is indebted to defendant in that amount. The record shows that on August 24, 1967 the litigants, in the presence of and with the advice of their respective counsel, executed a cash sale whereby defendant conveyed to plaintiff his undivided one-half interest in and to immovable property referred to as Rittiner Terrace duplex. (Defendant Exhibit 3) At the same time plaintiff signed the following letter:
I hereby acknowledge that the cash payment in the amount of $6,689.94 in the purchase on July 6, 1957, of Lot 41 Rittiner Terrace, was your separate property and that the late community between us owes you that much money.’ (Defendant Exhibit 2)
“Plaintiff takes the position, however, that despite her execution of this ac-knowledgement and the consummation of the aforementioned sale, she is not bound thereby and defendant, in order to claim this credit, must prove that he used separate funds in the indicated amount as down payment for this property. Defendant, on the contrary, contends that plaintiff is estopped to repudiate her acknowledgment.”

The Trial Court, with the ability to observe the witnesses and judge their credibility, found that plaintiff had knowingly and with the advice of counsel, acknowledged this down payment as her husband’s separate property. The Trial Judge held plaintiff was estopped to now repudiate the acknowledgment. It so held, relying on the theory of detrimental reliance of Mr. Ogden and the fact that, a mere six months into marriage defendant could easily have had 'separate funds to use for this purpose. The Trial Court relied on Lieberdorfer v. Gayle, 217 So.2d 37 (La.App. 3rd Cir. 1968), writ refused, 253 La. 623, 218 So.2d 901, cert. den., 396 U.S. 863, 90 S.Ct. 137, 24 L.Ed.2d 116. There, the Court held that where the evidence failed to establish that the ex-husband fraudulently induced his ex-wife to sign a community property settlement that recognized stock as separate property of the ex-husband, the wife would be estopped from attacking her acknowledgment. This record contains no evidence of fraud. This Court will not disturb this factual finding of the Trial Court. Canter v. Koehring Company, supra.

For the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid equally by the parties.

AFFIRMED.

Before ELLIS, BLANCHE and LOTTINGER, JJ.

PER CURIAM:

It has been brought to the Court’s attention that a misinterpretation of the facts as stated in the original opinion have occurred wherein we stated that: “After the death of defendant’s father, the the-atre business had one bank account in the name of Gordon C. Ogden Partnership, and it filed a partnership return for federal income tax purposes.” We did not intend to imply that the Gordon C. Ogden Partnership account and the partnership federal income tax return were filed after the death of the defendant’s father and prior to the defendant’s marriage. From the entire record, we are convinced that the the-atre business was operated as a partnership between the time of the divorce of the de-iendant’s father and mother and the marriage of the defendant on December 26, 1956. The subsequent maintenance of the Gordon C. Ogden Partnership account and the filing of the partnership federal income tax return are merely additional indications of the intentions of the defendant, his mother and brothers, to operate the business as a partnership.

Therefore, the rehearing applied for is refused, and for the foregoing reasons the original opinion is affirmed.

      . LSA-C.C. art. 379 provides:
      “The minor, whether male or female, is emancipated of right by marriage.”

      . LSA-C.C. art. 1785 provides:
      “Minors emancipated may contract in the cases already provided by law, and when not emancipated, their contracts are valid, if made with the intervention of their tutors, and with the assent of a family meeting, in the cases where by law it is required.
      “When the minor has no tutor or one neglects to supply him with necessaries for his support or education, a contract or quasi contract for providing him with what is necessary for those purposes, is valid.
      “A minor is also capable of accepting the contract of mandate, under the restrictions and modifications contained in the title on that subject.
      “His stipulations in a marriage contract, if made with the consent of those whose authority is in such case required by law, are also valid.
      “The obligation arising from an offense or quasi offense, is also binding on the minor. “In all other cases, the minor is incapacitated from contracting, but his contracts may be rendered valid by ratification, either expressed or implied, in the manner and on the terms stated in this title under the head: Of nullity or Rescission of Agreements.”

      .LSA-C.C. art. 2408 provides:
      “When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.”

      . LSA-C.C. art. 2402 provides :
      “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, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.’ ”


author: BLANCHE, Judge.

text:
    Edward Joseph CROSS v. DELGADO JUNIOR COLLEGE.
    No. 10748.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      Robert L. Danner, Jr., New Orleans, for appellant.
    Ronald P. Nabonne, New Orleans, for plaintiff-appellee.
    R. Gray Sexton, Baton Rouge, interve-nor for Civil Service Commission.
    Before ELLIS, BLANCHE and LOTTINGER, JJ.
   BLANCHE, Judge.

Edward Joseph Cross was employed by Delgado Junior College as a Campus Security Officer-I, serving with probational status. On October 10, 1974, he was officially notified by his appointing authority, through the Director of Physical Facilities, that he was being separated from his position effective at the close of business on October 11, 1974.

On October 29, 1974, in proper person, Cross filed with the Civil Service Commission a letter of appeal. The letter set forth several grounds for his reinstatement, one of which was an allegation that he was discriminated against because of his color. A hearing thereon was set for 9:00 o’clock A.M. on June 25, 1975. The minutes of the Commission reflect that Delgado denied knowledge of the assignment of the appeal on that date, and, further because appellant Cross was before the Commission unrepresented by counsel and his single witness was unable to be present, the Commission on its own motion granted a continuance.

The matter was rescheduled for a public hearing before the Commission at 2:00 o’clock P.M. on August 27, 1975. A copy of a letter from the Director of the Commission dated July 29, 1975, notifying Delgado of the reassignment of the appeal is filed in the record. When the appeal came on for hearing according to the foregoing assignment, appellant Cross and his counsel were present but the appointing authority, Delgado, was not. When the appointing authority had made no appearance by 2:20 o’clock P.M., the Commission summarily and without hearing any evidence sustained the appeal of Cross and he was reinstated to his position as of October 11, 1974.

The decision of the Commission was filed with the Director of the Commission on August 29, 1975, and seventy-six days later, on November 13, 1975, Delgado made an application to the Commission to appeal its decision to this Court.

Before us is the motion of Cross to dismiss the appeal of Delgado. Also before us is the motion of the Director of the Commission, Harold E. Forbes, to intervene in this appeal on the grounds that the appeal contains substantive and procedural questions of law involving the interpretation and construction of the Commission’s rules as well as provisions of the Civil Service Law that may substantially affect the operation and procedure of the State Civil Service and the State Civil Service Commission.

We agree that any decision we render will involve the rules of the Civil Service Commission and Civil Service Law relative to the taking of appeals from decisions of the Civil Service Commission. If the intervention is permitted, Forbes joins Cross in his motion to dismiss Delgado’s appeal.

The motion to intervene is unopposed, and LSA-R.S. 13:3417 seems to us to be statutory authority to permit the intervention, as it provides, in part:

“In any judicial proceeding involving an interpretation of or decision under any provision of [the Civil Service Law] in which a director of [a Civil Service System] functioning thereunder is not an indispensable party, the director may be made a party thereto at any stage of the proceeding on his own motion or by motion of an indispensable party. Directors made parties to such proceedings shall possess all of the rights afforded to parties in litigation by the laws of this state including the right to appeal and to apply for and obtain writs from the courts of the state. * * * ”

Accordingly, the intervention of the Director of the Civil Service Commission is hereby allowed.

Rule XVI of the Uniform Rules of the Courts of Appeal requires that an application for an appeal of a decision of the State Civil Service Commission must be made in writing to the Commission within thirty days after the filing of the Commission’s. final decision with the Director. Section 1 of Rule XVI, in pertinent part, provides:

“* * * A decision [of the Civil Service Commission] shall he final on the date the respective Commission files its written decision disposing of the case with the Director of Personnel of the Civil Service Commission, * * * if no timely application for rehearing is made to the Commission. * * * ”
(Emphasis supplied)

Section 2 of Rule XVI, in pertinent part, provides:

“An application for an appeal shall be made to the respective Commission in writing within thirty (30) days after the date of filing of the Commission’s final decision with the Director of Personnel * * (Emphasis supplied)

Civil Service Rule 13:33 provides that no rehearing shall be granted from a final decision of the Commission. Our Court rule, in predicating the finality of a decision of the Commission on the absence of a rehearing, is meaningless, as Civil Service rules have the effect of law, and we are without authority to impose a procedural requirement on the Commisssion providing a rehearing from its decision. Civil Service Rule 13:28 (a) provides, as does our Rule XVI, that the decision of the Commission shall be final on the day that it is filed with the Director. See, also, Patorno v. Department of Public Safety, 226 La. 471, 76 So.2d 534 (1954), which holds that a rehearing before the Commission is not a constitutionally protected individual right.

Therefore, the decision of the Civil Service Commission became final when it was filed with the Director on August 29, 1975. Since Delgado did not make application to the Commission to appeal its decision within the thirty-day limitation prescribed by Rule XVI, this Court is without jurisdiction and the appeal must be dismissed.

Respondent, Delgado, in an effort to overcome the obvious tardiness in filing the application for appeal, argues that the decision appealed from was not a final decision because it was rendered in violation of the Commission’s own rules. In support thereof, it cites the applicability of Commission Rule 13:28 (a) which provides that after hearing of an appeal the Commission shall make a written decision containing its findings of fact and conclusions which shall be filed with the Director.

Respondent notes that no hearing was had in the instant appeal. In fact, the order reinstating appellant was rendered summarily. Therefore, it argues that since the Commission rendered this decision without a hearing, the decision is not final, and consequently, the delays for appealing a final decision are not applicable in the instant case.

The question of the finality of the decision of the Civil Service Commission for purposes of appeal is not dependent upon whether the decision of the Commission was improperly rendered but upon whether it was a final decision in accordance with Civil Service Rules. If it was, then our Court rules governing the taking of appeals from a final decision of the Commission apply.

Since we have found that the decision was final when it was filed with the Director of the Commission, it is immaterial for the purposes of our jurisdiction whether it was granted with or without a hearing or with or without findings of fact and conclusions based thereon.

For the foregoing reasons, the motion to dismiss filed by Edward Joseph Cross is granted and the appeal of respondent, Delgado Junior College, is dismissed, at its costs.

APPEAL DISMISSED.


author: BARON B. BOURG, Judge Pro Tem.

text:
    CANAL MORTGAGE & FINANCE COMPANY, INC. v. Marian Slipman, divorced wife of, and Hilbert S. LOEB.
    No. 6427.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 3, 1976.
    Karno, Lockhart & Brainis, Metairie, Robert A. Hatcher, LaCombe, for plaintiff-appellee.

      Joseph V. Bologna, New Orleans, for defendant-appellee.
    Edwards, Porteous, Amato & Lee, Jacob J. Amato, Gretna, for defendant-appellant.
    Before STOULIG and MORIAL, JJ., and BARON B. BOURG, Judge Pro Tern.
   BARON B. BOURG, Judge Pro Tem.

Appellee has moved to dismiss the appeal herein on the ground that appellant has failed to post new security for this appeal after having been given an opportunity to do so in accordance with law.

Subsequent to the rendition of the judgment on the merits by the trial court, and as a result of a contradictory hearing provoked by the appellee, the trial judge rendered judgment declaring the appeal bond previously furnished by the appellant to be invalid by reason of insolvency of the surety. The trial judge, in accordance with law, required that new security be furnished by the appellant within four legal days of his judgment decreeing the original security to be invalid, or in default thereof, the order granting the suspensive appeal would be revoked, set aside, and dissolved. Rather than posting the security required in accordance with the court’s original order, the appellant sought and obtained from the trial judge a series of orders which progressively extended the time within which he would be permitted to file the new security. From the record, it appears that as of the time of the argument of this case in this court, appellant had still not filed the requisite bond.

The law permits a party four days, exclusive of legal holidays, from the rendition of a judgment holding the original bond insufficient or invalid within which to furnish a new or supplemental bond and' prohibits the dismissal of any appeal on the ground that the bond furnished is insufficient or invalid unless the party who furnishes it is afforded an opportunity to furnish a new or supplemental bond. LSA-C.C.P. Articles 5124 and 5125.

In the instant case appellant failed to file the new bond within the four day period permitted him by the trial judge after holding the original bond invalid. While LSA-C.C.P. Article 2088 does vest the trial judge with limited jurisdiction in a case after the signing of the order of appeal, we do not believe that that Article, when considered in conjunction with Article 5124, vests the trial judge with any authority whatsoever to extend the four day period which the law gives a party within which to furnish new or supplemental security. It is our opinion that the trial judge exceeded his authority in granting extensions of the time within which appellant would be permitted to file the new security, and, that the failure of the appellant to furnish the new bond within the original four day period allowed by the trial court must cause this appeal to be dismissed by reason of there being no security furnished in connection with this appeal.

Accordingly, the motion to dismiss is granted.

Appeal dismissed.


author: ELLIS, Judge.

text:
    Junius COLLINS v. Alvin WILSON et al.
    No. 10671.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 1, 1976.

      Byron Magbee, Baton Rouge, for appellant.
    Emile C. Rolfs, III, Baton Rouge, for Northern Assur. Co. of America.
    Donald T. W. Phelps, Baton Rouge, for Alvin Wilson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

On September 4, 1974, Junius Collins and Wilbert Rogers were pupils in a class in brickmasonry being taught by Alvin O. Wilson at Capitol Senior High School in Baton Rouge. In the course of an altercation in the class, Rogers struck Collins in the head with a brick. This suit was filed by Junius Collins against Mr. Wilson and Northern Assurance Company of America, the liability insurer of the East Baton Rouge Parish School Board for damages arising out of the altercation. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and he has appealed.

Plaintiff testified that a few days before the incident, he asked Mr. Wilson for permission to go to the principal to tell him that a number of students were “picking at him” in Mr. Wilson’s class. He stated that Mr. Wilson refused him permission and told him that the class was under control. On the day of the incident, plaintiff testified that Rogers was verbally picking at him, and that Mr. Wilson had to reprimand Rogers.

Later, the class went from the classroom part of the room to the demonstration section, where Mr. Wilson was to show them how to build a corner. Plaintiff testified that Rogers hit him with a broom and raised a knot on his arm. He stated that Mr. Wilson did not see this occur, and plaintiff did not report the incident.

A few minutes later, during the demonstration, Rogers backed up into plaintiff and stepped on his foot. A fight broke out between them, which was immediately broken up by Mr. Wilson, who then returned to his demonstration. Plaintiff testified that Rogers threatened to “get” him at the time that the scuffle was broken up. Rogers then picked up a brick and came after plaintiff with it.

Plaintiff testified that he attempted to hide behind the other students, but that they scattered. He then went behind Mr. Wilson. Rogers continued his pursuit, despite Mr. Wilson’s verbal order to stop, and plaintiff ran out of the classroom. Rogers caught him in the hall and struck him in the head with the brick, causing the injuries complained of. The fight was then broken up by Mr. Wilson and another professor.

It is plaintiff’s position that Mr. Wilson had adequate notice, and therefore should have known that Rogers was going to attack plaintiff again and that Mr. Wilson was negligent in failing to take any action to prevent the attack.

Mr. Wilson’s testimony is at variance with that of plaintiff. He testified that plaintiff did not come to him a few days before the incident. He stated that Rogers was a new student and had only been in his class one or two days when the fight took place. He knew of no trouble between the boys until the first fight broke out.

Mr. Wilson stated that after he broke up the fight, he returned to the demonstration. At the trial, he had no recollection of having heard a threat made by Rogers at that time, although he may have told a school board investigator that Rogers threatened to “get” plaintiff. Very shortly after the demonstration was resumed, he saw plaintiff running out of the room, chased by Rogers, who was carrying a brick. Plaintiff did not attempt to hide behind him, and he was not close enough to Rogers to grab him. He stated that the classroom door was jammed by the other students, so that he had difficulty in getting to the scene of the fight. He pulled Rogers off as soon as he got there. Mr. Wilson’s testimony is borne out by that of several eye-witness students who were called to testify.

The trial judge accepted Mr. Wilson’s testimony, and found that he had no reason, after the first scuffle, to anticipate that there would be a further attack on plaintiff, and therefore no duty to guard against such an attack. Under the circumstances, he found no negligence on the part of Mr. Wilson and dismissed plaintiff’s suit. We find no manifest error in his conclusion.

Another ground for liability urged is under Article 2320 of the Civil Code, which provides:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
“Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
“In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

It is argued that if the line of reasoning adopted by the Supreme Court in the recent cases of Holland v. Buckley, 305 So.2d 113 (La.1974); Turner v. Bucher, 308 So.2d 270 (La.1975); and Loescher v. Parr, 324 So.2d 441 (La.1975) be followed, there would be a presumption of fault on the part of the teacher in the event of damage to a third party by a student under his supervision.

Such an interpretation would place the teacher in the same relationship to the student as the master occupies towards his servant and the parent to the child. We do not believe this to be a proper interpretation of Article 2320 in that respect. In any event, however, the record clearly reflects that Mr. Wilson could not have prevented the act which caused the damage under the circumstances of this case. We are of the opinion that he did everything in his power to prevent Rogers from striking plaintiff with a brick, but was unable to do so.

The judgment is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    William David SMITH v. LOUISIANA WELDING SUPPLY CO., INC., et al.
    No. 10658.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused Sept. 8, 1976.
    Robert L. Raborn, Zachary, for appellant.
    William C. Kaufman, III, Baton Rouge, for appellees.
    Before LANDRY, SARTAIN and EDWARDS, JJ.
   EDWARDS, Judge.

The plaintiff Smith sues for workmen’s compensation benefits for total and permanent disability and for penalties and attorney’s fees. He appeals from judgment dismissing his suit against his employer and its insurer.

The trial court in written reasons held that Smith had failed to prove the occurrence of an accident in the course of his employment. This is the principal issue on appeal.

Plaintiff had injured his shoulder previously in an automobile accident on September 13, 1972. Because of continuing problems with his shoulder following the accident, plaintiff underwent surgery, performed by Dr. Alvin Stander in September, 1973. Dr. Stander left, as intended, certain non-absorbable sutures in plaintiff’s shoulder tissues. Following the operation, plaintiff worked at various jobs, but quit at least one of these because of yet persisting difficulties with his shoulder.

Dr. Stander, whom plaintiff continued to see, testified that his records showed visits by the plaintiff on May 7, 1974 and again on August 14,1974.

On September 9, 1974 plaintiff started working for Louisiana Welding Supply Company, Inc. He alleges that, on that day, he twice strained his shoulder while unloading gas cylinders. Plaintiff was working alone at these times; there were no other witnesses to the alleged accidents.

Plaintiff continued working that day at various jobs around the warehouse, making no mention to anyone of the accidents. Dennis Sanders, a co-employee, testified that he and plaintiff worked together late that afternoon moving some welding rods, without complaint from plaintiff.

Plaintiff’s brother, also employed by Louisiana Welding, took him home from work that evening. He testified that the plaintiff told him then that he had hurt his shoulder lifting cylinders that day. Plaintiff’s other witnesses—his girlfriend, his roommate, his roommate’s girlfriend, and his mother—all testified that plaintiff complained to them at home that evening of having hurt his arm at work.

Because of the pain in his arm, plaintiff testified that he did not return to work the next day. He stated that he notified his uncle, who had helped him secure the job, but did not otherwise report the accident.

Plaintiff did not thereafter return to work, although he did return to pick up his paycheck a few days later. He was paid by Gene Hansen, a supervisor at Louisiana Welding. Hansen testified that he asked the plaintiff why he quit and that plaintiff had told him that he was unable to do the work because of a previous injury to his shoulder, but did not mention having been hurt on the job.

On September 18, nine days after the alleged accident, plaintiff went to see Dr. Stander. (Plaintiff maintained the visit took place some three days after the accident, but the doctor’s records indicate otherwise.) Plaintiff was hospitalized, treated, and discharged on September 30. He was readmitted on October 20, at which time Dr. Stander performed a second operation on his shoulder.

Both Dr. Stander and Dr. Bolton, who reviewed Dr. Stander’s treatment, agreed that the plaintiff’s problems with his shoulder were caused by a “host” reaction to the silk sutures employed in the first operation of September, 1973. While a trauma, such as a blow or strain, could have caused an aggravation of a preexisting condition, both doctors stated that it was just as likely the reaction could have occurred spontaneously. In short, the doctors’ opinions were inconclusive as to the probable cause of plaintiff’s present condition.

Dr. Stander did testify that plaintiff told him on October 24, 1974 that he had strained his shoulder while working at Louisiana Welding. However, Dr. Stander found no objective evidence of the occurrence of a strain either in his earlier examination of September 18 or when he performed the operation a month later.

The applicable rule of law is well established that the testimony of a plaintiff alone, in a workmen’s compensation case, is sufficient to establish the occurrence of an accident, if there is nothing to discredit his account thereof and where his statements are supported by the surrounding circumstances. Dolhonde v. Gullett Gin Co., 25 So.2d 104 (La.App. 1st Cir. 1946); Cavender v. Flenniken Construction Co., Inc., 247 So.2d 652 (La.App. 2nd Cir. 1971). Nevertheless, as in all civil cases, the employee must establish an accident by a preponderance of the evidence; that is, by evidence which as a whole shows it to be more probable than not that an accident occurred. Landry v. Employers’ Liability Assurance Corporation, Ltd., 233 So.2d 624 (La.App. 3rd Cir. 1970).

The surrounding circumstances tend to negate, rather than support, plaintiff’s allegation that an accident occurred on the day in question. They include: (1) plaintiff’s past history of persistent shoulder problems, (2) plaintiffs most recent visit therefor prior to employment with Louisiana Welding coming less than a month before the alleged accident, (3) the lack of objective manifestation of injury on examination by Dr. Stander, (4) the delay in reporting the accident, (5) the failure to mention the accident on plaintiff’s first visit to Dr. Stander nine days after the alleged accident, (6) the lack of any corroboration by Dennis Sanders who worked with plaintiff after the alleged accidents, (7) the testimony of Gene Hansen that plaintiff said he had quit because of an injury prior to his employment.

Considering the above apparent inconsistencies, we cannot say that the trial court committed manifest error in rejecting plaintiff’s and his friends’ testimony, especially in view of the great weight afforded the trial court’s evaluation of the credibility of witnesses.

We therefore affirm the ruling of the trial court dismissing plaintiff’s suit. Costs of the appeal are to be paid by the plaintiff-appellant.

AFFIRMED.


author: PONDER, Judge.

text:
    Joe LEE v. ALLIED CHEMICAL CORPORATION et al.
    No. 10662.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Frank M. Coates, Jr., and A. Michael Dufilho, Baton Rouge, with him, for third party plaintiffs-appellants.
    Paul H. Spaht, Baton Rouge, for plaintiff-appellee.
    William C. Kaufman, III, Baton Rouge, for third party defendants-appellees.

      Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Third party plaintiffs, J. S. Hadaway, W. P. Chamberlain, J. Herb Lowery, H. D. Howard, A. L. Austen, Red Roberts, John Shelton and The Travelers Indemnity Company, appeal the dismissal on a motion for summary judgment their claim for indemnity against National Maintenance Corporation and Fireman’s Fund Insurance Company.

National Maintenance Corporation had a contract with Allied Chemical Company, the pertinent provisions of which read as follows:

“5.01 During the performance of the work covered by this contract, [NATIONAL MAINTENANCE] shall carry the following insurance:
* * * * * *
b) (2) Comprehensive General Liability Insurance with limits of not less than $250,000 per person and $500,000 per occurrence for bodily injury, and $500,000 per occurrence for property damage, including Contractor’s Protective Coverage and Blanket Contractural Coverage, including, but not limited to, the provisions of [P]aragraph 9.01(b) of Article IX hereof.”
*******
“6.02 CONTRACTOR’S FEES—-In addition to the payments by ALLIED CHEMICAL to CONTRACTOR set forth in paragraph 6.01 above, ALLIED CHEMICAL shall pay to CONTRACTOR for its services in the performance of the work covered by this agreement the following:
a) a fee which shall be determined as the sum of the figures arrived at by multiplying the percentages shown below by the total monthly wage and salary costs (defined in item a), paragraph 6.01 Reimbursable Direct Costs —Cost of Work) falling in the corresponding wage and salary bracket(s).
Total Monthly Wages and Salaries ($) Percentage for Each Step (%)
0 - 50,000 20.5
50,001 - 75,000 20.0
75,001 - 100,000 19.5
100,001 - 125,000 19.0
Over 125,000 19.0
The above fee shall include compensation to CONTRACTOR for: F.I.C.A. taxes at 4.2% rate, Louisiana State Unemployment Insurance at 2.7% rate, Federal Unemployment Insurance at 0.4% rate, CONTRACTOR’S insurance coverage as required by Article V—Insurance herein, small tools of a proper kind and in sufficient numbers including power units with a new replacement cost up to and including $300 per unit (specialty tools costing less than $300 but available only from plant equipment vendórs excepted), CONTRACTOR’S home office general and administrative expenses (includes salaries of CONTRACTOR’S personnel above superintendent not directly assigned to this work) and profit.
It is understood that the above fee is based on CONTRACTOR’S prevailing rates for all taxes and insurance. If any changes that are beyond CONTRACTOR’S control occur in these rates, the above percentage fees will be adjusted upward or downward, as required by the exact amount of the change(s).”
* * * * * *
“9.01 [NATIONAL MAINTENANCE] shall be responsible for and shall indemnify, exonerate and save harmless ALLIED CHEMICAL, its officers, agents and employees, from and against:
* * * * * *
b) Any and all liability, damage, loss cost, expense, claims, demands, suits, actions, judgments, or recoveries for or on account of any injury to or death of persons or damage to property, including, but not by way of limitation, damage to property of [NATIONAL MAINTENANCE], ALLIED CHEMICAL or others, or injury, death of, or damage to property of ALLIED CHEMICAL or [NATIONAL MAINTENANCE]’s officers, agents, employees, servants or representatives, arising out of or in any way occurring directly or indirectly in connection with the work, including, without limitation, delegable or non-delegable duties imposed on [NATIONAL MAINTENANCE] or ALLIED CHEMICAL by law, whether or not any such injury, death, or damage may have been caused or alleged to have been caused by the negligence (whether classified as active, passive or otherwise) of ALLIED CHEMICAL, or the condition of the premises or otherwise,
And [NATIONAL MAINTENANCE] shall at its own expense defend any and all actions based thereon. Any loss, damage, cost or expense incurred by ALLIED CHEMICAL in connection with the foregoing may be deducted from [NATIONAL MAINTENANCE’S] compensation them due or thereafter to become due, in addition to any other remedy that ALLIED CHEMICAL may have.
* * * * * *
“9.02 Anything to the contrary notwithstanding, CONTRACTOR’S liability under this Article IX shall not include the risks to be insured against by ALLIED CHEMICAL which are set forth in Sections 5.04 and 5.05 of Article V insofar as any loss is covered by such insurance.” (emphasis added)

The plaintiff, Joe Lee, an employee of National Maintenance Company, filed suit against the above named defendants, plus Allied Chemical Corporation, Joe Rhy, and Frank Gare, the latter two supervisory employees of National Maintenance Company, alleging injury as a result of a fall caused by unsafe working conditions. The above appellants filed a third party petition against National Maintenance Corporation and Fireman’s Fund Insurance Company, who in turn filed a motion for summary judgment contending that the indemnity agreement did not obligate them to indemnify and defend Allied, Travelers and the seven individual Allied employees.

The lower court denied the motion as to Allied and Travelers as the insuror of Allied, but granted the motion as to the seven individual employees of Allied and Travelers as their insuror.

It is quite plain that Section 9.01 does indemnify Allied, its officers, agents and employees from the specified liabilities. Third party defendants, however, contend that the clause of subsection (b), supra, does not include indemnity to the defendant-employees against their own negligence.

We cannot accept that position. First of all, the fair reading of plaintiff’s petition is that he is complaining of “the condition of the premises.”

Appellees’ contention that these words cover only the strict liability imposed by C.C.Art. 667 and similar ones is certainly not without question. Such liability would devolve upon Allied alone as the owner. The agreement, however, indemnifies not only Allied but also its officers, agents and employees. To adopt appellees’ position therefore would render unnecessary and senseless the enumeration of these indem-nitees.

Secondly, we believe and hold that the fair import of the language used in Section 9.01 in naming the indemnitees and in using the words “occurring directly or indirectly in connection with the work, including, without limitation, delegable or non-delegable duties imposed on Contractor or Allied Chemical by law, whether or not any such injury, death, or damage may have been caused by the negligence (whether classified as active, passive or otherwise) of Allied Chemical, . . . ” is that it was the intention of the parties to afford indemnity to the officers, agents and employees of Allied Chemical, a corporation that can be actively negligent only through the acts of these officers, agents and employees. The words “without limitation” and “whether or not” would have little or no meaning otherwise.

We are fortified in our position that such was the intent of the parties by the provisions of Article 6.02 of the agreement that Allied Chemical was obligated to pay for the Contractor’s Insurance as required by Article V—Insurance.

In so interpreting Section 9.01 we are not unmindful that the general rule is that “a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms.” Arnold v. Stupp Corporation, 205 So.2d 797 (La.App. 1st Cir. 1967); writ not considered, 251 La. 936, 207 So.2d 540. We simply believe that each case must be determined on its own facts and that the instant indemnity agreement is unequivocal.

We believe that the import of Arnold v. Stupp Corp; supra, and those of similar holding to be that the absence of the words “negligence of the indemnitees” is evidence of the intent not to cover such negligence. However, the real question posed is that of the intent of the parties, and the intent so to cover has' been found even in the absence of the magic words. See Jennings v. Ralston Purina Co., 201 So.2d 168 (La.App. 2nd Cir. 1967) and Elephant, Inc. v. Hartford Accident & Indemnity Co., 239 So.2d 692 (La.App. 1st Cir. 1970). See also Hospital Service District No. 1 v. Delta Gas, Inc., 171 So.2d 293 (La.App. 4th Cir. 1965) in which the words “without reference to negligence” were found to require indemnity against indemnitee’s negligence.

For these reasons, the judgment dismissing National Maintenance Corporation and Fireman’s Fund Insurance Company from the suit is reversed at the cost of the third party defendants.

REVERSED AND REMANDED.


text:
    Dorothy C. SMITH v. Woodrow W. SMITH.
    No. 10663.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.

      Joel B. Dickinson, Baton Rouge, for appellant.
    Larry D. Book, Baton Rouge, for appel-lee.
    Before SARTAIN, ELLIS and EDWARDS, JJ.
   EDWARDS, Judge.

This is an appeal from a judgment rendered in favor of plaintiff .granting a separation from bed and board and alimony pendente lite in the amount of $497.12 per month. The separation was granted on the ground of habitual intemperance. La.Civ. Code art. 138(3).

On June 10, 1975, Mr. Smith came home in an intoxicated condition and precipitated an argument with his wife over her paying for nursery services for her grandchild. The argument escalated into physical violence with Mr. Smith .first assaulting Mrs. Smith. She then picked up a drain tray loaded with dishes and threw them at Mr. Smith. At least one of the missiles struck him, opening a small -wound on his head. Mr. Smith then left the home and when he returned, approximately three days later, Mrs. Smith had moved to another house owned by the couple.

At the time of this incident, Mr. Smith had been drinking heavily for several weeks. Testimony also established that Mr. Smith had periodically, in the past, indulged in fairly prolonged bouts of heavy drinking. Three such bouts had occurred in the year preceeding June 10, 1975. On at least two of these occasions, Mr. Smith required hospitalization to temporarily overcome his problem.

The defendant-appellant asserts the following as errors committed by the trial court:

I. The Family Court Judge committed error in permitting plaintiff to enlarge her pleadings over defendant’s objection, by permitting evidence as to defendant’s habitual use of alcoholic beverages.
II. The Family Court Judge committed error in granting the plaintiff a legal separation on the grounds of excessive use of alcoholic beverages when the evidence was to the effect that the plaintiff had condoned his use of alcohol.
III. The Family Court committed error in refusing to grant defendant a judgment of separation on grounds of abandonment as alleged in his reconventional demand.
IV. The Family Court committed error in awarding the plaintiff alimony pen-dente lite when the evidence showed the plaintiff had in her possession over $5,000 in community funds and had full charge of and received the profit from the Bar and Lounge, which also was community property.

I. That the trial court permitted enlargement of the pleadings over objection.

We are satisfied that the petition filed herein does not allege sufficient facts to raise the issue of habitual intemperance. The defendant is alleged to have been “guilty of numerous acts of intemperance” and is alleged to have been intoxicated on June 10, 1975.

The first allegation is merely a conclusion of the pleader and is ineffectual. Cf. Keir v. Digby, 166 La. 92, 116 So. 711 (1928). The second allegation merely recites one instance of short duration and is not indicative of habitual conduct.

C.C.P. 1154 provides:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

In Webster v. Rushing, 316 So.2d 111 (La.1975), the Court said:

“The general rule established by the jurisprudence is that pleadings may be enlarged by evidence adduced without objection when such evidence is not per tinent to any other issue raised by the pleadings and, hence, would have been excluded if objected to timely.”

Our review of the record fails to disclose one instance of objection to evidence concerning Mr. Smith’s habitual abuse of alcohol on the ground that such evidence was beyond the pleadings. In fact, most of the evidence on this point came in without objection of any nature.

We find that the pleadings were enlarged by the evidence to include the issue of habitual intemperance.

II. That the plaintiff had condoned the use of alcohol by the defendant.

The trial court found that the plaintiff had exercised forbearance and tolerance toward the defendant’s use of alcohol. Our review of the record convinces us that is an accurate appreciation of the circumstances. Such does not constitute condonation of the defnedant’s behavior. See McWaters v. McWaters, 209 So.2d 163 (La.App. 1st Cir. 1968), and the cases cited therein.

III. That the trial court erred in not granting defendant’s reconventional demand for a separation on the ground of abandonment.

Our review of the record convinces us that the evidence supports the conclusion of the trial judge that the separation of the parties was occasioned by the fault of the husband. Therefore, it suffices to say that the departure of Mrs. Smith from the family home was justified, being caused by the fault of the defendant, and he cannot assert that departure as being fault on the part of the plaintiff.

IV. The appellant complains of the award of alimony pendente lite to the plaintiff.

The trial court awarded $497.12 per month in alimony, finding that the defendant’s income approximated $2000.00 per month. Nearly $1000.00 per month of that amount was attributed to income from the liquor store owned by the community. The court below treated the income from the liquor store as being available to the defendant to assist in payment of the alimony obligation.

Evidence adduced at trial of this matter established that the liquor store was being operated by the son of the parties with all proceeds being paid to the plaintiff.

The standard for alimony pendente lite is found in Civil Code Art. 148, which provides :

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”
(Emphasis added)

The trial judge found that the community business was producing income at the rate of $300.00 per week. The evidence is clear that this income is being directed to Mrs. Smith, not the defendant.

We find no error in the trial court’s conclusion that $497.12 is a sufficient amount to maintain Mrs. Smith. Since one-half of the income from the business, which belongs to Mrs. Smith, exceeds the amount found to be necessary for her maintenance, we find that she has sufficient income within the meaning of R.C.C. 148 and is not entitled to receive alimony pendente lite from her husband.

The judgment of the trial court is affirmed insofar as it grants appellee a separation from bed and board, and is reversed insofar as it awards appellee alimony pen-dente lite. Costs are to be borne equally be appellee and appellant.

AFFIRMED IN PART AND REVERSED IN PART.


author: SARTAIN, Judge.

text:
    Cornelius LANIEUX, Plaintiff-Appellant, v. STATE of Louisiana Through the LOUISIANA STATE PENITENTIARY and the DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
    No. 10665.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      Byron Magbee, Baton Rouge, for plaintiff-appellant.
    James P. Dore, Baton Rouge, for defendant-appellee.
    Before SARTAIN, LOTTINGER and EDWARDS, JJ.
   SARTAIN, Judge.

Plaintiff-appellant, Cornelius Lanieux, brings this appeal from judgment rendered against him dismissing his claim for personal injuries and other damages asserted against defendant, State of Louisiana Through the Louisiana State Penitentiary and the Department of Corrections. We affirm.

The record shows that plaintiff, an inmate in the State Penitentiary at Angola, was a member of a range crew which engaged in herding cows and separating calves. Plaintiff performed his function in this task on horseback and while so engaged was fallen upon by the horse he was riding when the horse slipped and fell. As a result of this incident plaintiff claims damages to his left leg, ankle and foot.

Plaintiff argues on appeal that defendant was negligent in not having the horse shod and/or for placing plaintiff in a known dangerous job. He further asks for an award of damages for inadequate medical care received following the accident.

Plaintiff’s testimony at trial is to the effect that he was familiar with the horse and had done this kind of work all his life. In fact, the horse he was riding on the day of the incident had been broken and trained by him. He stated that the accident occurred when the horse, attempting to work, whirled, but due to the boggy condition of the soil, slipped and fell. Plaintiff claims that had the horse been shod it would have had more stability and would not have fallen.

Victor Wright testified on behalf of the plaintiff and stated that although he was not present on the day of the accident he was familiar with the horses at Angola, had worked with them previously, and that very few of them were shod.

James Oliveaux, an employee at Angola for the last twenty-four years, was in charge of the range crew on the day of the incident and testified that he saw the accident. He stated that the particular horse upon which plaintiff was riding had a “soft mouth” and didn’t need much pressure to make her respond. He stated further that he observed plaintiff pull the reins too hard thus causing the horse to rear and stumble.

Donald McNeil, another employee at Angola and member of the range crew, stated that he, too, observed the accident and saw plaintiff pull the reins too quickly and too hard, causing the mare to raise up. He also acknowledged that the horses were not shod but stated the ground was generally too hard to keep the horses shod and the horses were able to perform better without shoes.

No other witnesses were called to testify.

The trial court concluded upon hearing the evidence that plaintiff was familiar with the horse and that the cause of the accident was the negligent conduct of plaintiff himself in reining back on the mare with excessive force.

We find no manifest error in the trial judge’s conclusion that the testimony of the two Angola employees was accurate and in fact plaintiff did rein the horse excessively. Even absent such a finding there is no evidence in the record to substantiate the plaintiff’s position that the cause in fact of the accident was lack of shoes on the horse.

We find no merit to plaintiff’s argument that he was placed in a dangerous job by the state. Assuming, arguendo, that such action by the state could be a valid basis upon which to state a cause of action, plaintiff himself testified at trial as follows :

“Q. You say you are experienced enough to handle a horse ?
A. Yes, sir.
Q. And you were doing a job that you could do?
A. Yes, sir.
Q. Did you feel any danger in it?
A. No, sir.”

Furthermore, the facts of the case itself do not indicate that the job in which plaintiff was engaged at the time of the accident was particularly dangerous.

As to plaintiff’s claim for damages due to inadequate medical care following the accident, we find no competent evidence in the record. The only evidence submitted in support of this claim is the hospital records and the testimony of the plaintiff himself describing the medical procedure used in treatment. He stated that it was not until four days following the accident that he was able to see a doctor. However, it appears that x-rays were taken and medication administered immediately following the accident albeit not by a doctor. Absent expert medical testimony it would be conjecture on our part to say that this treatment received by plaintiff for his particular injuries was either insufficient or inadequate.

For the above and foregoing reasons, the decision of the trial court is affirmed at ' appellant’s cost.

AFFIRMED.