author: LANDRY, Judge.

text:
    Camille SHELFO v. LHHRA, PINECREST STATE SCHOOL.
    No. 12003.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 26, 1978.
    Eugene P. Cicardo, Alexandria, for appellant Camille Shelfo.
    Sidney W. Hall, Baton Rouge, for appel-lee.

      Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from a decision of the Civil Service Commission (Commission) sustaining Appellant’s dismissal from the position of Attendant II at Pine-crest State School (Pinecrest), an institution for the care of persons with serious mental and physical disabilities. Appellant was dismissed for allegedly striking with his fist, a deaf, mute and almost blind inmate. The primary issue is whether Appellant was given adequate and timely notice of dismissal. We affirm the Commission’s determination that such notice was given.

On April 7,1977, and for some time prior thereto, Appellant was employed as an attendant assigned to Cottage J of Pinecrest on the 10:00 p. m. to 6:00 a. m. shift. By letter of his appointing authority dated April 22, 1977, Appellant was informed of his dismissal as of 10:00 p. m., April 25, 1977, for the following reasons:

“You are being separated from your position because you abused resident Leonard Navarro on Friday, April 8, 1977, while you were on duty on Cottage J.
“By your own admission in a written statement, you struck this resident in the stomach while he was in a disturbed state. This action would be considered abusive and in violation of Blue Book Policy Supt. 38 — 1-5-72, Paragraph 11, which forbids abuse of residents.
“Additionally, you are being separated because during the investigation it came to light that you have been selling items such as bread, peanut butter and cigarettes to the residents on the cottage. This was admitted by you through a written statement submitted by you dated April 11, 1977. This is in direct violation of Supt. Directive 50 — 1-5-72 (Revised 1-4-76), Expending a Resident’s Personal Funds.”

When it was discovered that the alleged abuse occurred on April 7, rather than April 8, Appellant’s appointing authority issued the following written notice of dismissal on May 3, 1977:

“You are hereby informed you are being separated from your position as Attendant II effective at 10:00 p. m. on May 3, 1977.
“You are being separated from your position because you abused Resident Leonard Navarro on Thursday, April 7, 1977, while you were on duty on Cottage J.
“By your own admission in a written statement, you struck this resident in the stomach while he was in a disturbed state. This action would be considered abusive and in violation of Blue Book Policy Supt. 38 — 1-5-72, Paragraph 11, which forbids abuse of residents.
“Additionally, you are being separated because during the investigation it came to light that you have been selling items such as bread, peanut butter, and cigarettes to the residents on the cottage. This was admitted by you through a written statement submitted by you dated April 11, 1977. This is in direct violation of Supt. Directive 53 — 1-5—72 (Revised 1-4-76), Expending a Resident’s Personal Funds.
“In view of the above violations, we have no alternative but to remove you from your position.
“In addition to the above, you were suspended from duty without pay beginning at 10:00 p. m. on April 25, 1977, through 10:00 p. m. on May 3, 1977.”

On July 7, 1977, the charges were heard before a referee appointed by the Commission. At this time, Appellant filed an exception contending, inter alia, that the charges were vague in that they did not specify the time of the alleged abuse or the times, places and names of persons to whom sales were purportedly made. The appointing authority concedes that the April 22, 1977 notification of dismissal is defective and that Appellant is entitled to pay and all privileges attending his position until 10:00 p. m., May 3, 1977. Appointing authority dismissed, for lack of specificity, the charges relating to sales to inmates and stipulated the sole charge was for the alleged inmate abuse. Appellant objected to hearing of the abuse charge on the ground that it did not provide the time of the alleged abuse or the names of witnesses thereto.

Civil Service Rule 12.3 provides that in case of removal, demotion or reduction in pay for cause, of a permanent employee, the appointing authority or his authorized agent:

“shall furnish to the employee at the time such action is taken or prior thereto, a statement, in writing, giving detailed reasons for such action. The appointing authority shall furnish the director a copy of said statement within fifteen (15) calendar days of the date the employee was notified.”

La.Const.1921, Article 14, Section 15(N)(l)(a) placed the burden of proof on the employee on appeal. The jurisprudence interpreting Rule 12.3 in the light of the 1921 constitutional provision requires that the employee be given detailed facts, dates, places and names of witnesses to enable the employee to discharge the heavy burden placed upon him. See Hays v. Louisiana Wild Life and Fisheries Commission, 243 La. 278, 143 So.2d 71 (1962); Hoover v. Department of Finance, 283 So.2d 298 (La. App. 4th Cir. 1973).

Pursuant to La.Const.1974, Article 10, Section 8, the burden of proof in cases of this nature has been shifted from the employee to the appointing authority. Despite this change in burden of proof, we find that a classified employee is entitled to reasonable notice of the nature of the charges against him. Depending upon the circumstances of each case, such an employee must be informed as to the time, place and nature of the offense in such detail as will enable him to adequately prepare his defense.

On April 7, 1977, Appellant was in charge of Cottage J as alleged in the notice of dismissal. So far as the record shows, Appellant was the only attendant on duty at that time, and the only possible witnesses, other than Appellant, were the inmates under Appellant’s care. The letter of dismissal recites the particular shift and date on which the alleged abuse took place. On April 10,1977, Appellant gave an oral statement to his superior, Joe Reed, who reduced the statement to writing in Appellant’s presence. Reed read the statement to Appellant who acknowledged its correctness and signed the document in Reed’s presence. The statement acknowledges that Appellant struck an inmate, Leonard Navarro, with Appellant’s fist. In the statement, Appellant noted that sometime after midnight, Navarro began making noises that were disturbing and awakening other patients. Upon investigation, Appellant observed Navarro pointing to his bare feet and indicating the need for socks. To humor the patient, Appellant proceeded toward the clothing room to get some socks for Navarro. Apparently Navarro became more confused and struck Appellant on Appellant’s left hand. Navarro then struck Appellant on the side of Appellant’s neck with Navarro’s open hand. At this juncture, Appellant struck the patient in the stomach with Appellant’s fist.

Since Appellant was the only attendant on duty and all other possible witnesses were patients with varying degrees of mental and physical disability, and since Appellant had given a statement (shown to have been free and voluntary) in which he personally detailed the incident in question, we conclude Appellant was given adequate notice of the charge against him.

Relying upon Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343 (1954) and Louviere v. Pontchartrain Levee District, 199 So.2d 392 (La.App. 1st Cir. 1967), Appellant contends that the charges must be dismissed because of lack of proof of service thereof on him conformable with Rule 12.3, above. Joy Nether-land, Appellant’s superior, testified that she personally gave the dismissal letter of May 3, 1977 to Joe Reed, who hand delivered it to Appellant. On this issue, we note that in the exception filed on the day of hearing, Appellant expressly acknowledged receipt of the letters of April 22 and May 3, 1977, on their respective dates. Although the Commission did not make an express finding that the notice of May 3 was timely served, the action of the Commission in sustaining' Appellant’s dismissal clearly infers such a finding. In any event, the record affirmatively shows timely service of the May 3, 1977 notice of dismissal.'

Appellant also complains that the referee improperly allowed Appellant to be cross-examined as part of the proof offered by the appointing authority in establishing its case. Appellant argues that since the burden of proof now rests on the appointing authority pursuant to La.Const.1974, Article 10, Section 8, and Civil Service Rule 13.-19(C), an employee may not be cross-examined as part of the proof offered by the appointing authority in presenting its case in chief. We find the argument without merit.

Civil Service Rules have the effect of law. La.Const.1921, Article 14, Section 15.1(8) was retained as an ancillary to La. Const.1974.

Civil Service Rule 13.19(d) and (e) provides:

“(d) Where appropriate and consistent with these Rules, the rules of evidence applicable to civil trials in the district courts of the State shall be observed in all hearings before a referee or the Commission.
“(e) The Commission may require the appellant to give his sworn testimony before hearing any other witness on his behalf, and, if the Commission finds from such testimony that he has no just or legal ground to support his appeal, it may decline to hear or consider any other evidence and thereupon dismiss the appeal.”

La.C.C.P. Article 1634 permits any party to litigation to call an adverse party under cross-examination. Rule 13.19(d) and (e), which has the force and effect of law, renders Article 1634, above, applicable in hearings before the Commission. The referee properly allowed Appellant to be cross-examined.

Appellant attempted to show that his use of force was justified as an attempt at self-defense. The Commission resolved this factual matter adverse to Appellant. We find that the content of Appellant’s statement, as well as Appellant’s testimony at the hearing, supports the finding in this regard.

The judgment of the Commission is affirmed at Appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: CULPEPPER, Judge. DOMENGEAUX, Judge,

license: Public Domain

text:
    Gloria Ann GUILOTT, Plaintiff and Appellee, v. Clyde B. GUILOTT, Defendant and Appellant.
    No. 6494.
    Court of Appeal of Louisiana, Third Circuit.
    June 14, 1978.
    Writ Refused Sept. 1, 1978.

      Camp, Carmouche, ■ Palmer, Carwile & Barsh, Karl E. Boellert, Lake Charles, for defendant and appellant.
    Victor A. Sachse, Baton Rouge, W. Ellis Bond, Lake Charles, for plaintiff and appel-lee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is a suit to partition the community of acquets and gains formerly existing between the plaintiff and the defendant. The plaintiff wife also seeks the restitution of her paraphernal property and the fruits thereof. When the case was previously before us, 326 So.2d 551 (3rd Cir. 1976), we held as a matter of law that the wife was not entitled to restitution of the fruits of her paraphernal property, which fruits consisted mostly of earnings from her 5% interest in a partnership. We remanded the case for a new trial on all other issues.

When the case was retried, counsel for both parties agreed at the outset that the stipulation entered into during the first trial as to the commingling of the wife’s separate funds with community funds, which stipulation this court found to be ambiguous, must be disregarded. Thus, the trial was conducted and the case decided as if that stipulation had never been made.

At the new trial, further evidence was introduced to identify what was community property and what was the separate para-phernal property of the wife. But the central issue was to determine whether the earnings attributable to the wife’s 5% interest in the partnership, but not distributed in cash by the partnership to the wife, should be classified as paraphernal property, to which the wife is entitled to restitution, or as fruits, to which she is not entitled to restitution. On this central issue, the district judge held that only the earnings of the partnership which were actually distributed to her in cash were “fruits” of the wife’s paraphernal interest in the partnership. The court held that the earnings which were not distributed and remained in the wife’s partnership drawing account were not fruits. Also, the court held that certain “in kind” distributions of corporate stock and municipal bonds to the wife were not fruits.

The defendant husband has appealed, urging three specifications of error: (1) The trial court erred in declaring only the cash distributions or revenues of a paraphernal, limited partnership interest to be community property and in classifying the non-cash revenues as paraphernal property. (2) The trial court erred in accepting the wife’s uncorroborated testimony that checks drawn by a partnership in which she had an interest constituted donations of cash as her paraphernal property, in view of the legal presumption that all property acquired during the marriage is community property. (3) The trial court erred in ordering the restitution by the husband of funds received by the wife and never delivered to the husband.

PARTNERSHIP EARNINGS

In his written reasons for judgment, the trial judge correctly finds that during the years 1957 through 1969 Mrs. Guilott received cash distributions from the partnership totaling $122,787.59. The judge held these must be considered fruits which were community property and are not subject to restitution. However, the district court held that the remaining distributions by the partnership to the wife were not “fruits”, but, instead, were the increase or enhancement in value of the wife’s interest in the partnership, and therefore remained her separate and paraphernal property and did not fall into the community.

Briefly, the pertinent facts are that in 1956 the wife’s father, Mr. Robert Barber, donated to her a 5% interest in a partnership known as Barber Bros. Company, a large construction firm. Mrs. Guilott was an in commendam partner. In December of 1959, the general partners decided to form a new corporation named Barber Bros. Contracting Company, Inc. The new corporation was capitalized with $92,000 of partnership cash assets debited to the drawing account of each partner in proportion to his interest in the partnership. Mrs. Guilott received 50 shares of the capital stock ($100 par value) of the corporation in return for $5,000 debited to her partnership drawing account. Also in 1959 the partnership acquired 1,500 shares of this stock in return for the transfer to the corporation of certain equipment. In 1967 the partnership transferred these 1,500 shares to the partners on the basis of three shares for each share already owned, so Mrs. Guilott received 150 shares, making her total 200 shares. In 1969 the partnership again transferred shares of the stock to the partners, and Mrs. Guilott received 300 shares with a book value of $7,500. Mrs. Guilott’s drawing account in the partnership was debited $7,500 in June of 1969 to pay for these 300 shares. The net result is that Mrs. Guilott received a total of 500 shares of the capital stock of the Barber Bros. Contracting Company, Inc. 350 shares were paid for by debiting her partnership drawing account, the same account from which she drew $122,787.59 in cash over the years 1957 through 1969. The remaining 150 shares were transferred to her by the partnership in 1967 as her portion of the 1,500 shares which were received by the partnership in 1959 in consideration of the transfer by the partnership to the corporation of certain equipment.

In January of 1969, Mrs. Guilott sold to the corporation her 500 shares of stock for a total consideration of $156,242.75, of which $39,060.94 was paid in cash, and the balance was represented by a note for the principal sum of $117,182.81, bearing interest at the rate of 4% per annum, and payable in three annual installments of $39,064.94 each.

The evidence does not show what happened to all of the cash realized from the sale of this stock. Mrs. Guilott testified some of it was deposited in a trust account at the Lakeside National Bank in Lake Charles, designated as the “C. E. Guilott Personal Trust”. This trust was created on February 9, 1971, and was executed by both plaintiff and defendant in authentic form. It was funded with an initial cash contribution of $60,000. In this agreement the parties considered the proceeds of the stock sale to be community property, because the trust instrument expressly declares: “The property originally placed in trust is community property of the community of ac-quets and gains existing between the set-tlors and it shall retain that character.” The testimony also shows that an additional $84,656.58 was deposited during the life of the trust. Although the exact origin of these additional funds is not clear from the evidence, the wife testified they came from the stock sale. It is noteworthy that the trust instrument also contains the following language: “If any property is later delivered to the trustee to be held under this act, the settlor delivering it shall identify it either as separate property of that settlor or as community property.” There is no evidence offered that any identification as community or separate property was ever made as to these later deposits.

In his written reasons, the trial judge gave the following rationale for holding that only the cash distributions by the partnership to the wife were fruits which fell into the community:

“The initial interest in the partnership was plaintiff’s separate property, having been donated to her by her father. The value of this partnership interest increased, yet the increase or enhancement was not due to any labor, industry or expense whatsoever of either plaintiff or defendant. It follows, therefore, that any increase or enhancement thereof cannot be claimed for the community. Abraham v. Abraham, 230 La. 78, 87 So.2d 735; Daigre v. Daigre, 228 La. 682, 83 So.2d 900, C.C. 2408.
“When the corporation was formed, the $5,000.00 which was used to purchase stock in the name of plaintiff was not at that moment community property, nor did its conversion into 50 shares of the corporation stock cause these shares to become community property. If the money had been paid in cash to plaintiff, it would have become community property, but it was not. It was simply the conversion of separate property from one form to another. See Kittredge v. Grau, 159 La. 154, 103 So. 723, and Succession of Hollier, 247 La. 384, 171 So.2d 656 (on rehearing). Under the holdings of these cases, these 50 shares became the separate property of Mrs. Guilott.
“The same reasoning with the same result is applicable to the 300 shares received by Mrs. Guilott from the conversion of partnership assets into stock of the corporation.
“Plaintiff also received an additional 150 shares of stock in the corporation when a stock dividend increased her 50 shares to 200 shares. These additional 150 shares also became her separate property. A stock dividend is not a dividend as the word is used in C.C. 2386, and does not fall into the conjugal partnership. Daigre v. Daigre, 228 La. 682, 83 So.2d 900.
“Thus, the entirety of the 500 shares at the time of their sale to the corporation was the separate property of Mrs. Gui-lott, and their sale did not in itself result in the proceeds thereof becoming community property.”

With all due respect to the district judge, we cannot agree with the above holding. The record shows that the partnership maintained a capital account, also referred to as a “net worth account”, which was owned by each partner in proportion to his respective interest in the partnership. There is no dispute that when the partnership was finally liquidated in 1970, as discussed hereinafter, Mrs. Guilott’s share of the capital account of the partnership was $50,000.

The partnership also maintained a drawing account for each partner. Each year each partner’s share of the earnings of the partnership was placed in his respective drawing account from which he could draw at any time.

It is our opinion that all partnership earnings transferred by the partnership into Mrs. Guilott’s personal drawing account were the fruits of- her paraphernal interest in the partnership and became community assets when transferred to her drawing account. LSA-C.C. Article 2386 expressly provides that “The fruits of the parapher-nal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of ac-quets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone.” Of course, in the present case the wife did not declare by a written instrument that she reserved the fruits of her paraphernal property or that she intended to administer the property separately and alone. In our original decision in this case, we decided that, in the absence of such a written instrument by the wife, all of the fruits and revenues of her paraphernal property fall into the community.

The trial judge was apparently of the view that even though the wife filed no written instrument, the earnings from the wife’s interest in the partnership did not fall into the community because these earnings were not due to any “labor, industry or expense whatsoever of either the plaintiff or the defendant.” We cannot agree. Article 2386 expressly states that “The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, . fall into the conjugal partnership.” Under the trial judge’s rationale, it would clearly be inconsistent to hold that the cash distributions to the wife fell into the community but the other partnership earnings which were placed in her drawing account did not. For it is clear that neither the cash distributions nor the money placed in the wife’s drawing account were due to any labor, industry or expense of the husband or the wife.

The cases cited by the trial judge in his above quoted written reasons are distinguished because in those cases the court held under LSA-C.C. Article 2408 the increase in the value of the capital inures to the benefit of the separate estate. In the present case, it is conceded by the defendant husband that the increase in the capital value of the wife’s interest in the partnership inures to her separate estate. The cases cited by the district judge do not hold that fruits of paraphernal property inure to the benefit of the separate estate of the wife.

The case of Ogden v. Ogden, 331 So.2d 592 (La.App. 1st Cir. 1976), writ of certiora-ri denied, 337 So.2d 523 (La.), for the reason “There is no error of law in the judgment”, is very similar to the present one. In Ogden, the husband owned, as his separate property, a one-sixth interest in a partnership. A corporation was organized and the husband received 40 shares of stock paid for by debiting his drawing account in the partnership. The court held that the earnings of the partnership credited to the drawing account of the husband became community property, and the stock acquired with these earnings also became community property. The plaintiff wife in the present case concedes that the Ogden case is against her.

During oral argument, counsel for the plaintiff wife made an additional argument that since she was only a partner in com-mendam, she had no voice in the management of the partnership and, therefore, the earnings from her interest in the partnership did not fall into the community. Essentially, this is the same rationale used by the trial judge, although he did not mention that the wife was a partner in commendam. For the reasons stated above, we reject this contention. It is our view that regardless of whether the wife or the husband had any voice in the management of the partnership, the earnings from the paraphernal interest in the partnership fell into the community.

Counsel for the plaintiff wife also argues that the funds placed in the wife’s drawing account remained under the control of the partnership until withdrawn by her, and hence that the undrawn funds never became community property. We also reject this contention. The evidence shows clearly that periodically the earnings of the partnership were distributed to the drawing accounts of the respective partners in proportion to their interest. Each partner could withdraw from his drawing account as he desired. This is corroborated by the fact that Mrs. Guilott actually did withdraw a total of $122,787.59 over the years 1957 through 1969. There is no evidence that she needed the consent of the partnership or any of the partners to make these withdrawals. It is apparent that she could withdraw at her discretion from this account.

Having concluded that all partnership earnings placed in the drawing account of Mrs. Guilott were fruits of her paraphernal property which fell into the community, it follows that when the corporation was organized in 1959, and $5,000 was debited to Mrs. Guilott’s drawing account in the partnership to pay for her 50 shares of stock in the corporation, this stock became community property. Also, when Mrs. Guilott acquired 300 shares from the partnership in 1969, these were paid for by debiting Mrs. Guilott’s drawing account and hence became property of the community. Thus, 350 of the 500 shares of stock in Barber Bros. Contracting Company, Inc. were paid for with funds debited to Mrs. Guilott’s drawing account, and these 350 shares were owned by the community.

We will now discuss the 150 shares which were transferred to Mrs. Guilott by the partnership in 1967. These 150 shares were not paid for by debiting Mrs. Guilott’s drawing account. They were a portion of the 1500 shares acquired by the partnership from the corporation in 1959 in consideration of the transfer by the partnership to the corporation of certain equipment. The 150 shares received from the partnership by Mrs. Guilott in 1967 represented her proportionate share of the 1500 shares, based on her interest in the partnership.

The equipment transferred by the partnership to the corporation for the 1,500 shares was capital of the partnership. Thus, the 1,500 shares became capital of the partnership. When these 1,500 shares were distributed by the partnership to the partners in proportion to their respective interests in the partnership, this constituted a distribution of capital assets of the partnership, as distinguished from fruits or earnings. The 150 shares of stock received by Mrs. Guilott did not change from capital to fruits. Thus, the 150 shares were separate and paraphernal capital of the wife. In Kittredge v. Grau, 158 La. 154, 103 So.2d 723 (1925) and State ex rel. Waterman v. J. S. Waterman & Company, Inc., 178 La. 340, 151 So. 422 (1933), the court held that the mere change of separate and paraphernal property from one form to another does not change the ownership from the separate estate to the community.

When the 500 shares owned by Mrs. Gui-lott were purchased by the corporation in 1969 for the sum of $156,242, 350 of these shares were owned by the community and 150 shares were owned by Mrs. Guilott’s separate estate. The price per share was $312.48, so the price of the 350 shares owned by the community was $109,370 and the price of the 150 shares owned by Mrs. Guilott’s separate estate was $46,872.

In the trial judge’s written reasons, he referred to the 150 shares received by Mrs. Guilott in 1967 as a “stock dividend”. He then cited Daigre v. Daigre, 228 La. 682, 83 So.2d 900 (1955) for the rule that a stock dividend is not a fruit of paraphernal stock. It is our view that the Daigre case has no application here, because this was not a stock dividend by the corporation.

In his brief, counsel for Mr. Guilott states that Mrs. Guilott acquired the 150 shares in a “stock split”. This is also erroneous. This was not a stock split by the corporation. It was a distribution by the partnership to the partners of shares of stock which the partnership owned as part of its capital assets.

When the partnership was finally liquidated in June of 1970, the records of the partnership showed that Mrs. Guilott’s interest in the capital account was valued at $50,000, and she had a balance of $57,066 in her drawing account. Together with interest on the funds in her drawing account, she was entitled to a total of $108,564. This amount was distributed to her in the form of four municipal bonds valued at $69,064 and cash in the sum of $39,500. The defendant husband concedes that the sum of $50,000 representing Mrs. Guilott’s interest in the capital account is her separate property. However, he contends that her un-drawn profits and interest, amounting to $58,564, which sum was paid to her in the form of the municipal bonds, are fruits and fall into the community. The record shows that Mrs. Guilott retained the municipal bonds and later sold them and retained the proceeds.

The district judge held that these municipal bonds delivered to Mrs. Guilott were not fruits of her paraphernal interest in the partnership because they were not cash. We cannot agree. It is our view that whether the earnings from Mrs. Guilott’s paraphernal interest in the partnership were paid in cash or in kind is immaterial. That portion of the value of the bonds representing funds due her from her drawing account was community property.

It is noteworthy that during the trial the defendant husband sought to introduce the income tax returns showing that the community, not Mrs. Guilott individually, paid income taxes on all of the earnings of the partnership attributable to the 5% para-phernal interest of Mrs. Guilott, regardless of whether these earnings were withdrawn from Mrs. Guilott’s drawing account or not. The trial court sustained an objection that this was irrelevant to a determination of whether the earnings were fruits, but the defendant put the tax returns in the record under an offer of proof. The fact that the community assumed the tax burden for these earnings is consistent with our decision that all of the earnings placed in Mrs. Guilott’s drawing account became community property.

FUNDS APPLIED TO THE CONSTRUCTION OF THE FAMILY HOME

The defendant husband’s second specification of error is that the trial court erred in accepting the wife’s uncorroborated testimony that certain checks drawn by the partnership constituted donations to her and were her separate paraphernal property. This assignment of error concerns the total sum of $57,785.98 which the trial judge found was donated to Mrs. Guilott by her father during the years 1961 and 1962 for the construction of a family home. The defendant admits that $12,000 of this sum was represented by two checks from the father’s personal account and were donations to plaintiff. However, defendant contends that the remainder of these funds to build the home were represented by checks drawn on the partnership and came from Mrs. Guilott’s drawing account, which, as we have already held, was community property. The plaintiff wife contends these checks represented the donation by the partnership to her of funds for the construction of the home. On the face of it, we think it is highly suspect that all of the other partners would donate to Mrs. Guilott funds to build her home.

These partnership checks were issued to Mrs. Guilott, and the evidence shows that during 1961 and 1962 her drawing account was debited for $28,000 on one occasion and $30,925 on another occasion. Of course, the plaintiff wife has the burden of proving by clear evidence that the funds used to build the house were donated to her and were her separate property for which she is entitled to restitution. The only evidence to support her, in addition to the two checks totaling $12,000 from her father’s own account, is her own testimony that the partnership intended to donate these funds to her to build the house. We find this is not sufficient to overcome the strong presumption that the funds in dispute came from her partnership drawing account and were community funds.

RESTITUTION OF WIFE’S SEPARATE CAPITAL

The husband’s third specification of error is that the trial court erred in ordering the restitution by the husband of funds which were never delivered by the wife to the husband’s control. The husband concedes that the wife is entitled to restitution of the sum of $12,000 donated to her by her father and used for the construction of the community home. This is clearly correct under the rules that even commingled and nontraceable paraphernal funds are subject to restitution where they were used to enhance the value of community property. See Succession of Bell, 194 La. 274, 193 So. 645 (1939), Succession of Videau, 197 So.2d 655 (La.App. 4th Cir. 1967), Succession of Russo, 246 So.2d 26 (La.App. 4th Cir. 1971), and the other cases cited in our original opinion in the present case, 326 So.2d 551.

The husband contended in his original brief that the $50,000 received by Mrs. Gui-lott when the partnership was liquidated in 1970, representing her interest in the capital of the partnership, was never delivered to him or to the community, and, therefore, never benefited the community. Furthermore, the husband argues that even if some of the wife’s paraphernal capital was delivered to the community, it was so commingled with large sums of community funds that it cannot be identified nor traced.

In his supplemental brief filed in this court, the husband appears to soften his position regarding the $50,000 of capital assets of the partnership received by the wife in 1969. He concedes that the wife is entitled to this $50,000 as well as the $12,-000 donated' to the wife by her father and used in the construction of the community home. Thus, the husband concedes the wife is entitled to restitution of $62,000.

Of course, the husband does not concede that any portion of the funds received from the sale of the 500 shares of stock was the separate property of the wife, because the husband contends that all 500 shares were owned by the community. However, as set forth above, we conclude that 350 shares were owned by the community and the other 150 shares were owned by the separate estate of the wife. The price received for the 150 shares, at $312.48 per share was $46,872.

We now consider the law regarding restitution of the wife’s separate capital. Our jurisprudence construing LSA-C.C. Article 2391 has established the rule that, both during the marriage and after its dissolution, the wife, unlike the husband, has the absolute right to restitution of her para-phernal capital, either delivered to her husband or delivered for use to the community, except in instances governed by Civil Code Article 2389, which is not applicable here. And, the wife has this right of restitution of her separate capital regardless of whether the separate funds have been commingled with community funds. Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (1958); Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968); Emerson v. Emerson, 322 So.2d 347 (La.App. 2d Cir. 1975). Although the author of the article in 31 Louisiana Law Review 252 is of the opinion that LSA-C.C. Article 2391 is applicable only during the marriage, the above cases have held to the contrary.

For the reasons stated above, we find that not only the $50,000 received by the wife in 1970 but also the sum of $46,872 representing the sale price of the 150 shares of stock which were her separate property, were the separate capital of Mrs. Guilott. Furthermore, the wife satisfied her burden of proving that these funds were delivered to the husband or to the community for the use and benefit of the community. She testified that these funds, as well as the funds which represented the fruits, were delivered to her husband for use by the community. Of course, portions of these funds were eventually placed in the trust account at the Lakeside National Bank, and the funds initially deposited in this trust are expressly designated as community funds. The trial judge held as a fact that all of these funds were delivered to the husband and used for the benefit of the community. The evidence amply supports this finding. Therefore, the wife is entitled to restitution of her separate capital.

CONCLUSION

The judgment appealed orders the defendant husband to make restitution to the plaintiff wife of the following:

“1. $39,500.00 received in liquidation of the partnership Barber Bros. Contractors
2. $39,060.94 received as a portion of the sale price of the stock of Barber Bros, to the Corporation
3. The principal of the note for $117,-182.81 received in three annual installments of $39,060.94 each being a portion of the sale price of the shares of stock of Barber Bros. Corporation; and
4. $57,785.98 representing a gift from Robert Barber to his daughter, Ann Barber Guilott in 1961 and 1962.
Total . $253,529.73
Restitution is limited to the extent these amounts may be satisfied out of the community assets.”

For the reasons stated above, the judgment appealed must be amended to reduce the amount which defendant is ordered to make restitution to plaintiff from the sum of $253,529.73 to the sum of $108,872, itemized as follows:

(1) $12,000 donated to Mrs. Guilott by her father in 1961-62 and used to build the community home
(2) $50,000 received by Mrs. Guilott in 1970 as her share of the capital of the liquidated partnership
(3) $46,872 received by Mrs. Guilott in 1969 as the price of the 150 shares of stock which were her separate property.

As to defendant’s contention that the fair market value of the municipal bonds ($69,-064) should be included in the inventory of the community and debited to the account of the plaintiff wife, we have held that the value of the municipal bonds did fall into the community to the extent that this value represented the remaining balance in the drawing account of Mrs. Guilott, which was delivered to her on liquidation of the partnership. As stated above, there was a balance of $58,564 in Mrs. Guilott’s drawing account at the time the partnership was terminated. We conclude that this amount should be included in the inventory of the community and debited to the account of the plaintiff wife, and that the judgment should be amended accordingly.

For the reasons assigned, the judgment appealed is amended to reduce the amount which the defendant husband is ordered to make restitution to the plaintiff from the sum of $253,529.73 to the sum of $108,872. The judgment is further amended to add to the community existing between the parties at the time of its dissolution the sum of $58,564, representing that portion of the value of the municipal bonds delivered by the partnership to Mrs. Guilott in payment of the remaining balance in her drawing account when the partnership was liquidated. The judgment is further amended to debit the account of Mrs. Guilott with the said sum of $58,564 represented by the municipal bonds. Otherwise, the judgment appealed is affirmed. All costs of the trial court, as well as the costs of this appeal, are assessed to the parties in the proportion of one-half to each.

AFFIRMED, AS AMENDED.

DOMENGEAUX, J., dissents and will assign reasons.

DOMENGEAUX, Judge,

dissenting.

I continue to subscribe to my comments concerning the case of Slater v. Culpepper, and Code Articles 2386 and 2391, and the other matters discussed in my concurring and dissenting opinion commencing at page 560 of 326 So.2d. These matters are still viable as shown by the writ refusal by our Supreme Court, wherein it was stated that the rights of all parties on all issues in this litigation are reserved. 330 So.2d 316.

In the original case, the District Judge ordered restitution by the husband of the entire amount of the wife’s separate funds and fruits therefrom in the sum of $461,-061.99, in addition to certain tax payments and insurance premiums paid by the wife. After reviewing the original record and this one on remand, I would conclude that the amounts ordered restituted are correct.

Overall, it is my impression that the facts of this case are akin to and controlled by the case of Kittredge v. Grau, 158 La. 154, 103 So. 723 (1925). See also State ex rel. Waterman v. J. S. Waterman & Company, 178 La. 340, 151 So. 422 (1933); Succession of Hollier, 247 La. 384, 171 So.2d 656 (On rehearing) (1965); Abraham v. Abraham, 230 La. 78, 87 So.2d 735 (1956); Daigre v. Daigre, 228 La. 682, 83 So.2d 900 (1955).

Should I be in error in concluding that the trial court was correct in its original judgment, then in that event I would subscribe to its judgment on remand which ordered the sum of $253,529.73 restituted by the husband.


text:
    George L. JOHNSON v. BATON ROUGE MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD and Maxie E. Cox, State Examiner of Municipal Fire & Police Civil Service.
    No. 12283.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1978.
    Sam J. D’Amico, Baton Rouge, for plaintiff-relator.
    Charles H. Pilcher, Baton Rouge, for defendant-respondent.
    Before LANDRY and ELLIS, JJ.
   ORDER

Considering the application for a stay order filed herein by George L. Johnson (Appellant), incident to his appeal:

It is ordered that the judgment of the trial court be stayed pending Appellant’s appeal and that Defendants, Baton Rouge Municipal Fire and Police Civil Service Board and Maxie E. Cox, State Examiner of Municipal Fire and Police Civil Service, be and they are hereby prohibited and restrained from holding or conducting a Civil Service admissions test for the position of Colonel in the Baton Rouge City Police Department, pending the outcome of this litigation.

It is further ordered that Appellant be and he is hereby ordered and directed to file a brief in this court on or before July 10, 1978, and that Defendants file a brief herein on or before July 25, 1978, whereupon this matter will be considered submitted to this court for decision without oral argument.

It is further ordered that the sole issue to be considered on this appeal is whether Appellant was qualified as of May 22,1978, to take the admission test for the position of Colonel in the Baton Rouge City Police Department and that if found not to be so qualified Appellant shall be ineligible to take the first such test given by Defendants for the above mentioned Civil Service position.

Thus done, rendered and signed at Baton Rouge, Louisiana, this 29th day of June, 1978.


text:
    Clifford D. PAUL v. NATIONAL AMERICAN INSURANCE COMPANY.
    No. 12053.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 26, 1978.

      A. Clay Pierce, Jr., Baton Rouge, of counsel for plaintiff-appellee Clifford D. Paul.
    Paul B. Deal, New Orleans, of counsel for defendant-appellant National American Insurance Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment awarding plaintiff (Insured) 25% penalties and $3,500.00 attorney’s fees for alleged untimely payment of a fire loss which completely destroyed Insured’s home and its entire contents. We amend to reduce the penalties to 12% and the attorney’s fees to $2,750.00.

The dwelling and contents were insured for $50,000.00 and $25,000.00, respectively. The fire occurred June 30, 1976, on which same day Insured reported the loss to his local insurance agent, who informed Insured that an adjuster would contact Insured within a few days. Shortly thereafter, Insured was contacted by T. J. Pittman, an adjuster in the employ of General Adjustment Bureau, to which concern Appellant assigned the claim for handling. Pittman sent Insured a set of forms to fill out concerning the contents of the residence. Insured completed these forms, listing and itemizing contents valued at approximately $20,000.00. Thereafter, Pittman personally inspected the scene of the fire, examined the remains of the residence and contents, reached a valuation of the structure, and verified content valuations by checking with one or more stores where Insured reported purchases to have been made: After said inspection, Pittman valued the residence at $74,000.00. According to Insured, Pittman discussed in detail the list of contents and upon being advised that Insured had put new carpeting in the residence, Pittman advised Insured that the value of the contents, including carpeting, should equal the policy limits of $25,000.00 on the contents. Pittman concedes that he never requested Insured to sign a formal proof of loss statement, and that Insured was fully cooperative and complied with every request Pittman made for information about the loss. Pittman further concedes that the list of contents was apparently accurate and sufficient for adjustment purposes. Insured acknowledges that he never executed a formal proof of loss statement.

Insured’s uncontradicted testimony is that when he submitted the requested itemization of contents, he was told by Pittman that such claims were usually settled within two weeks or so. Hearing nothing from Pittman, Insured began calling Pittman, requesting information as to the status of the claim. Pittman’s response was that he had heard nothing from the “main office”, although Pittman had recommended settlement. Insured called Pittman every week or every other week, and was told that Pittman could not understand why the claim had not been paid. Insured further stated that on several occasions, commencing in late 1976, or early 1977, Insured made it clear to Pittman that Insured wanted his money, but that Insured never demanded any specific amount. Insured’s testimony in effect is that he never demanded any specific amount because he was led by Pittman to believe that policy limits would be paid on contents.

In early February, 1977, Insured was contacted by Richard Green, to whom the matter had been referred for settlement. Green requested a statement and Insured replied that he would let Green know. Insured then consulted an attorney, following which Insured informed Green that Insured would furnish a statement if Insured received payment within 5 to 7 days, because Insured had waited long enough for his money. Insured then engaged an attorney, called Green and advised Green to contact the attorney. This suit was filed February 24, 1977.

In February and March, 1977, Green requested and received formal proof of loss from two mortgagees holding outstanding liens against subject property. Upon submission to Appellant, these claims were paid promptly. Pittman’s testimony leaves the clear impression that the claims were not paid sooner because Appellant was waiting to hear from the State Fire Marshall’s Office, which it was believed was investigating the fire, but that no such investigation was under way. In any event, Pittman’s testimony is crystal clear that the delay was not due to lack of cooperation by Insured or to failure of Insured to furnish any information or data requested. Pittman’s testimony affirmatively shows that Insured was most cooperative.

After filing suit, Appellant posed interrogatories. In response thereto, Insured admitted the content loss to be $17,589.14. Appellant then deposited in court $20,439.91 on June 24,1977, which included a tender of $17,589.14 for contents loss and $2,850.77 due on the residence over and above the amount paid mortgagees. Based on this alleged tender, Appellant moved to dismiss the action on the ground that the claim was paid within 60 days of demand, Appellant contending that Insured’s admission of content value constituted the first legal demand for payment.

Appellant maintains that no penalties and attorney’s fees are due because Insured never filed formal proof of loss or made demand for a specific amount. Alternatively, Appellant claims it properly considered Insured’s judicial admission of amount claimed as a legal demand pursuant to which the claim was timely paid. In the further alternative Appellant contends: (1) Penalties, if due, are owed in the amount of 12% only, not 25% as awarded by the trial court; (2) Penalties are due only on the amount actually paid Insured personally, namely $20,439.91, and not on the amount paid the mortgagees, as was allowed by the trial court; and, (3) attorney’s fees should be reduced in accordance with reduced penalties.

La.R.S. 22:658 provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.” Amended and reenacted Acts 1958, No. 125.

Citing Nichols v. Iowa Mutual Insurance Company, 232 La. 856, 95 So.2d 338 (1957); Tedesco v. Columbia Insurance Company, 177 La. 142, 148 So. 8 (1933); and Cryer v. Gulf Insurance Company, 276 So.2d 889 (La.App. 1st Cir. 1973), Appellant correctly urges that the applicable statute is penal and must be strictly construed. On authority of American Motorist Insurance Company v. Wilson, 256 So.2d 813 (La.App. 4th Cir. 1972) and Steadman v. Pearl Assurance Company, 127 So.2d 366 (La.App. 4th Cir. 1961), Appellant argues that penalties and attorney’s fees are not due unless demand therefor is made in a specific amount.

Notwithstanding the rule of strict construction applicable in cases of this nature, our jurisprudence establishes that the pertinent statute does not require written proof of loss, or any other formal style of proof; it is required only that the insurer have actual knowledge of the facts. Artigue v. Louisiana Farm Bureau Mutual Insurance Company, 339 So.2d 880 (La.App. 3rd Cir. 1976); Wilkins v. Allstate Insurance Company, 173 So.2d 199 (La.App. 1st Cir. 1965). In this case, Appellant was fully apprised of the claim through Pittman’s personal investigation of the premises and the list of contents furnished by Insured. Pittman’s testimony establishes conclusively that the delay in payment was not due to any fault of Insured.

Insured testified without contradiction that beginning in about December, 1976, he repeatedly requested of Pittman that payment of the loss be made. Insured admits that he did not request payment of a specific sum. The clear import of Insured’s testimony is that he was led by Pittman to believe that the entire content coverage would be paid. We find, as did the trial court, that Insured made verbal demand for payment. Written demand is not required. Artigue, above. So finding, we reject Appellant’s contention that penalties are not due because of a lack of demand and also reject Appellant’s alternative argument that payment was made within 60 days of Insured’s answer to Appellant’s interrogatories, which answer Appellant contends is the only demand made by Insured.

Insured requests that we re-examine Foster v. Western World Insurance Company, 339 So.2d 395 (La.App. 1st Cir. 1976), wherein we held that penalties of 12% and not 25% are due for failure to timely pay a fire loss on a dwelling. In Foster, we reviewed the issue in detail. We think the views expressed in Foster are correct and see no useful purpose to be gained by repeating them herein. We conclude that the trial court erred in assessing penalties of 25% herein.

We find, however, that penalties of 12% are due on the entire loss of $67,589.14, even though a portion of the sum was paid to two mortgagees pursuant to the mortgages and loss payable provisions of the policy. A mortgagor’s interest encompasses the full value of the property because, in the event of loss, mortgagor is still liable for the debt. Allen v. Houston Fire and Casualty Company, 243 So.2d 905 (La.App. 3rd Cir. 1971).

Our attention has been directed to Woodard v. Prudential Insurance Company of America, 350 So.2d 948 (La.App. 2d Cir. 1977), which involved payment of proceeds of a health and accident policy to a credit union in discharge of the insured’s loan. In the cited case, the court awarded 12% penalties on the amount paid the lender, without discussion of whether such payment was “loss, payable to the insured . . .”

Since payment tó the mortgagees discharged a personal obligation owed by Insured herein, such payment meets the statutory requirement of “loss, payable to the insured . . . .” Penalties of 12% are due for failure to pay such loss within 60 days as provided by La.R.S. 22:658.

We find that Insured is entitled to penalties of 12% of $67,589.14, or $8,110.70. Considering the reduction in penalties and that Insured’s attorney has had to defend this appeal, we find an award of $2,750.00 for attorney’s fees to be in order.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby amended to award Insured penalties in the sum of $8,110.70 and attorney’s fees in the amount of $2,750.00, together with legal interest from date of judicial demand, until paid. All costs of these proceedings to be paid by Appellant.

Amended and rendered.


text:
    QUALITY MATERIALS OF TANGIPAHOA, INC. v. LABARAMA, INC.
    No. 12057.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writs Refused Oct. 20, 1978.

      L. B. Ponder, Jr., Amite, for Quality Materials, plaintiff-appellee.
    Thomas B. Waterman and Tom H. Math-eny, Hammond, for Labarama, Inc., defendant-appellant.
    Edward B. Dufreche, Ponchatoula, for John Halbert & E. B. Dufreche, interve-nors.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiffs, Quality Materials of Tangipa-hoa, Inc. (Quality), Mrs. Frances Tycer Evans and Miss Norma Lee Tycer (Lessors), brought this action to dissolve a sand and gravel mining lease granted defendant, La-barama, Inc. (Lessee), for alleged damage due to trespass upon Lessor’s property not subject to the lease; and, for wages purportedly due Mrs. Evans, pursuant to a counter-letter wherein Lessee employed Mrs. Evans to handle the sale of sand, gravel and other products mined from the leased premises. The lease entered into on May 24, 1967 covers a 24 acre tract belonging to Quality and leased for the purpose of mining sand, gravel, topsoil and other products contained therein. The lease is for a primary term of 5 years commencing June 1, 1967, but stipulates its indefinite continuation at Lessee’s option. Lessee reconvened, seeking specific performance and damages for alleged wrongful eviction and breach of Lessors’ obligations under the lease. Interventions were filed on behalf of Edward B. Defreche and John H. Halbert who, on February 27, 1974, purchased from Lessors certain properties reputedly covered by the lease. From judgment in favor of Lessors and Intervenors ordering cancellation of the lease, Lessee has appealed. Mrs. Evans and Miss Tycer have answered the appeal praying for damages, disallowed by the trial court, for alleged trespass by Lessor upon property personally owned by said parties and not subject to the lease. Mrs. Evans has also answered the appeal, praying for wages due by virtue of the mentioned counter letter, which claim was also rejected below. We reverse the judgment ordering cancellation of the lease and order its reinstatement. We affirm the judgment disallowing Lessee’s claims for damages, and also affirm the judgment rejecting the claims of Mrs. Evans and Miss Tycer for damages for trespass upon their personally owned property, and for past wages due Mrs. Evans.

The following lease provisions are pertinent herein:

“The term of this lease shall be for a period of five years beginning on the 1st day of June 1967, with an option on the part of the Lessee to continue the lease indefinitely so long as the lease is operative under the same terms and conditions as hereinafter described. It being understood and agreed that the Lessee may begin operations at any time during the first year of said contract.
It is further understood and agreed by and between the parties that when the Lessee begins operation the said lease will be operative indefinitely so long as Lessee maintains mining from said land provided, however, that Lessee may be inoperative for as long as one hundred eighty (180) days.
It is specifically provided that in the event that all merchantable sand, clay, gravel, topsoil, pea gravel, etc. that it is economically feasible to mine is mined and shipped from the leased premises pri- or to the expiration of the said five years, then in that event the lease automatically expires and becomes of no force and effect concurrently with the depletion of all merchantable sand, gravel, clay, pea gravel, topsoil, etc. It is specifically provided that it is the Lessee’s privilege to decide when and if all merchantable sand, gravel, clay, topsoil, pea gravel, etc. that it is economically feasible to mine has been mined.
Provided, however, that after all the merchantable sand, gravel, clay, topsoil, pea gravel, etc. that it is economically feasible to mine on the above described site has been mined, then it is the option of the Lessee to move the mining equipment to another economically feasible site on property owned by the Lessors, and particularly any of the following described property, to-wit: .
In that event, the said Mrs. Frances Tycer Evans, Miss Norma Lee Tycer and Miss Andrea Jane Evans will transfer the desired property to the Quality Materials of Tangipahoa Parish, Inc. .
The royalties above referred to shall be paid by the Lessee to the Lessor on the 15th day of each calendar month for all sand, dirt, clay, gravel, topsoil, pea gravel, wash gravel, etc. mined or removed and sold by the Lessee during the preceding calendar month. The Lessee binds and obligates himself to commence mining operations as sOon as feasible and then engage, pursue and conduct sand, gravel, clay, topsoil, pea gravel, etc. mining operations diligently on the property described herein, during the term of said lease and to pay the rental and royalties in accordance with the stipulations shown above.”

Lessee commenced operation on the 24 acre (primary) tract described in the lease and continued operation thereon until some time prior to March 1, 1976, when Lessee decided it was no longer feasible to mine the primary tract. On or about March 1, 1976, Lessee began operation on a 131 acre tract described in the lease as one of the alternate tracts to which Lessee might shift its operation. This land was then and still is in the name of Mrs. Evans and Miss Tycer who are sisters. It constitutes their “homesite” on which is situated the residence in which they live. In 1975, Lessee served notice of intent to move operations to the homesite, but delayed the move until later at Lessors’ request, in order not to disturb Lessors’ growing corn crop. Operation on the homesite commenced about March 1, 1976, and after considerable topsoil had been sold from the 131 acre tract, Lessors enjoined further operation thereon.

A counter-letter, dated May 24,1967, provides that Lessee shall operate as “miners and producers” and that Lessors shall operate as “owners and producers”. It also stipulates that Lessee will use Lessors’ equipment except where needed equipment is not owned by Lessors; that Lessor will run the office and handle the sales of material produced; and that Lessee will pay Mrs. Evans $25.00 a week to be adjusted up according to production, to a maximum of $75.00 per week.

At commencement of operation on the primary tract, Mrs. Evans kept a record of yardage shipped and was paid pursuant to the terms of the counter-letter. At a time not fixed precisely in the record, the accounting responsibility was assumed and discharged by Lessee who has continued this function to the time of suit. It is conceded that Mrs.. Evans had not performed any service for a number of years and has received no compensation since accounting responsibility has been undertaken by Lessee. Mrs. Evans contends that she was forcibly prevented from discharging these duties. Lessee maintains she voluntarily relinquished her right to handle sales.

Lessors primarily urge invalidity of the lease for an alleged potestative condition in that Lessee is permitted to extend the lease indefinitely, at Lessee’s option. We find this provision is not potestative. La.C.C. Article 2036 expressly provides that the duration of an obligation may be made dependent upon the will of the obligee.

Next, Lessors maintain that the duration of the lease is ambiguous, therefore it should be treated as reconducted after expiration of its 5 year primary term. So arguing, Lessors maintain that they have a right to terminate at the expiration of any month, which option they have exercised. We find no ambiguity in the lease term. The right of extension commences subsequent to termination of the primary term and rests with the Lessee. Such a term is analogous to the term of the lease involved in Baggett v. Mid-State Sand and Gravel Company, 326 So.2d 633 (La.App. 3rd Cir. 1976), which authority held valid a provision permitting indefinite extension of a lease.

Lessors’ reliance upon Sharpe v. Jenkins, 150 So.2d 353 (La.App. 1st Cir. 1963) is misplaced in that the term of the lease involved in that case differs vastly from the term of the lease at hand.

Lessors also urge cancellation on the following alleged breaches of Lessee’s lease obligations: (1) failure to maintain mining operations for a period of over 180 days; (2) failure to remove all merchantable sand, gravel, topsoil, etc. that it was economically feasible to remove from the primary tract before moving to an alternate site; (3) failure to diligently mine the primary site; (4) commencement of operation on the 131 acre alternate site without proper notice of intent to do so; (5) failure to make royalty payments on the 15th of each month as required by the lease; and (6) failure to comply with the counter-letter regarding employment of Mrs. Evans to handle sales.

It is Lessors’ position that the provision “Lessee may be inoperative for as long as one hundred eighty (180) days” is ambiguous. Therefore, it. is argued, the provision should be interpreted adversely against Lessee to mean an accumulated 180 days, whether consecutive or not. Conversely, Lessee maintains that the provision means 180 consecutive days during which no operation was conducted by Lessee. It is also conceded that there is an accumulation of well over 180 non-consecutive days on which no mining occurred. As pointed out by Lessee, this total included week-ends and holidays on which operations would not ordinarily be conducted.

The trial judge made no specific finding as to the meaning of the provision that Lessee might be inoperative for as long as 180 days. In his reasons for judgment, however, the trial judge stressed the significance of a total royalty payment of only $46.68 during the 15 month interval of May 1, 1974, through August 25, 1975. We find the importance of such payments more properly addresses itself to the alleged lack of diligent operation hereinafter discussed. To hold that an accumulation of 180 nonconsecutive days of nonoperation constitutes ground for dissolution of the lease results in an eventual inevitable termination clause which appears clearly contrary to the intent of the parties as evidenced by other provisions of the contract. We hold, therefore, the only reasonable interpretation is that the term contemplates 180 continuous nonproduction days.

Lessors’ contention that Lessee failed to remove all material capable of feasible economic removal from the primary tract must be resolved in the light of the lease provision vesting Lessee with the right to make that decision, and the reasonableness of such decision as reflected in the record. The record supports Lessee’s claim that all material susceptible of feasible economic removal had been removed from the primary site before Lessee gave notice of intent to shift operation to the homesite. Two experts, Fred Anderson, who was appointed by the court and Wallace Adams, a Civil Engineer called by Lessee, supported Lessee’s position by testifying that further operation on the primary site would be dangerous due to the possibility of cave-ins and that for all practical purposes the site had been completely mined.

Lessors failed to carry the burden of establishing that the primary site was capable of additional feasible economic production. At oral argument before this court, on authority of Rule 9-A, Uniform Rules, Courts of Appeal, Lessors attempted to offer in evidence records of alleged production from the primary tract by Lessors subsequent to institution of this action. Rule 9-A does not permit introduction of evidence at the Appellate level; it permits, in the interest of justice, consideration of legal and factual issues not specifically raised as error by an appellant. We decline to consider the evidence offered. This matter was pending for quite some time before trial. The record clearly indicates that all parties had full knowledge of the issues and ample time to prepare. We see no reason why Lessors could not have produced testimony of experts of otherwise established that Lessee breached its obligation by abandoning the primary site before it had been completely mined, if such were actually the case.

We find the most troublesome issue to be whether Lessee breached the lease by failing to mine diligently. We commence our discussion by noting that our law does not favor cancellation of leases. Warren J. Tullier et al v. Tanson Enterprises, Inc., et al, 359 So.2d 654 (La.App. 1st Cir. 1978); Stoltz v. McConnell, 202 So.2d 451 (La.App. 4th Cir. 1967); Arbo v. Jankowski, 39 So.2d 458 (Orl.App.1949).

The trial judge ordered cancellation “because of various defaults on the part of defendant and more outstanding, the payment of only the sum of $46.68 for a 15 month period of the lease from May 1, 1974 through August 25, 1975 . . . . ” The “various defaults” found were not particularized. It appears that the trial judge was peculiarly impressed by such small royalty payments in a 15 month interval. His finding of the amount is eminently correct considering it is readily admitted by Lessee. Such minimal payment does not, however, per se establish Lessee’s lack of diligent operation.

Lessee explained that the low volume of production and sales during this crucial period resulted from the lack of a market for the marketable sand and gravel remaining on the primary tract at this stage of operation. Lessee pointed out that the remaining gravel was small and therefore unfit for construction and road paving purposes. Lessee also noted that such gravel was usable primarily for graveling roads, and that the chief purchaser of such gravel, the local police jury, was not graveling roads during this interval. We note also that prior to this interval, Lessee had notified Lessor that all topsoil and clay had been removed from the primary site and Lessee would have to move to an alternate location for these particular materials. We deem it elementary that the exercise of diligence depends upon the facts of each particular case. Lessors offered no testimony in rebuttal of Lessee’s plausible testimony explaining the reasons for extremely low production during the 15 month interval in question. Lack of production efforts during a period in which there can be no sales due to reasons beyond a lessee’s control does not constitute lack of diligent operation. We find the trial judge erred in holding otherwise.

Lessors complain of lack of notice of Lessee’s intent to move operations to the 131 acre homesite and that Lessee trespassed thereon by beginning operations before the property was transferred by Mrs. Evans and Miss Tycer to Quality. As noted above, Lessee reconvened herein seeking specific performance of the lease provision requiring such transfer. The record does not support Lessors’ position on this issue. Significant in this regard is the testimony of Mrs. Evans that she denied Lessee access to the 131 acre tract. Additionally, the record discloses that upon suit by Mrs. Evans and Miss Tycer, Lessee was enjoined from further operation on the homesite. We concede that Lessee’s proper remedy was by way of suit for specific performance to permit entry to the land over Lessors’ objection. It would be most inequitable, however, to deny Lessee’s rights because Lessors’ refusal to transfer the property to Quality prompted Lessee’s entry upon the land prior to such transfer. Moreover, Mrs. Evans and Miss Tycer signed the lease as individual lessors. As such, it is their obligation to maintain their lessee in peaceable possession. La.C.C. Article 2692.

The demand for cancellation due to Lessee’s failure to make royalty payments on the 15th of each month, as required by the lease, is without merit. The record shows that the parties had for a long time developed the practice of making and accepting such payments at irregular intervals — usually at the request of Mrs. Evans, who preferred that royalties be allowed to accumulate until they reached a meaningful amount rather than receive small monthly royalties. Our jurisprudence is well established to the effect that where a lessor indulges his lessee by customarily accepting late rental payment without demanding punctuality, strict enforceability is deemed waived. Under such circumstances, to hold the lessee to strict compliance, lessor must give advance notice of intent to strictly enforce the lease terms. Himbola Manor Apartments v. Allen, 315 So.2d 790 (La. App. 3rd Cir. 1975); Jones v. Paul, 254 So.2d 915 (La.App. 1st Cir. 1971). No such notice was given in this instance. On the contrary, the record reflects Lessors’ repeated acquiescence in the irregular payments.

Mrs. Evans’ claim for past due wages is the sole remaining issue. The counter-letter establishes her employment to handle sales and the record shows she did so for a time. Mrs. Evans contends she was replaced shortly after production began. We find as a matter of fact that Mrs. Evans acquiesced in her replacement. Her failure to challenge the loss of the job for several years indicates that she did not object. However, since the agreement between the parties has been reinstated, the terms of the counter-letter are also effective. Mrs. Evans should, therefore, be permitted to resume her position and should be compensated in accordance with the terms of the counter-letter.

It is ordered, adjudged and decreed that: (1) the judgment annulling the lease is reversed and set aside and judgment rendered herein in favor of Labarama, Inc., and against Lessors and Intervenors declaring subject lease in full force and effect with respect to the following described property:

40 acres of land in Section 18, Township 5 South, Range 8 East, bounded North by Bennett, East by Cate, South by Lanier, West by Dunnington, being the same property acquired COB 21, page 322 and COB 35, page 754, records of Tangipahoa Parish, Louisiana, and also described as the Southeast Quarter of the Southeast Quarter of said Section 18, Township 5 South, Range 8 East in the Parish of Tangipahoa, State of Louisiana.
The Northeast Quarter of the Northeast Quarter of Section 19, Township 5 South, Range 8 East in the Parish of Tangipa-hoa, State of Louisiana.
The East Half of the Northwest Quarter of the Southeast Quarter containing twenty acres, being in Section Eighteen (18), Township Five (5) South, Range Eight (8) East, and the Northeast Quarter of the Southeast Quarter of Section Eighteen (18), Township Five (5) South, Range Eight (8) East known as the Learner Place.
The North Half of Headright Number Forty-Three (43), Township Five (5) South, Range Seven (7) East, Greensburg Land District comprising 131.68, less one (1) acres for cemetery in the Parish of Tangipahoa, State of Louisiana;

(2) the judgment of the trial court rejecting the demands of Lessee and Lessors for damages is affirmed; (3) the judgment rejecting the claim of Mrs. Frances Tycer Evans for alleged unpaid wages is affirmed; (4) the judgment rejecting the demands of Mrs. Frances Tycer Evans for specific performance of her contract of employment by Labarama, Inc. is reversed and set aside and judgment rendered herein in favor of Mrs. Evans and against Labarama, Inc., ordering specific performance of said agreement; and that (6) all costs of these proceedings shall be paid one-half by plaintiffs, Quality Materials of Tangipahoa, Inc.; Mrs. Frances Tycer Evans and Miss Norma Tycer and one-half by Labarama, Inc.

Affirmed in part, reversed in part and rendered.


text:
    Charles WHITE, Jr., et al. v. Dr. W. R. EDISON.
    No. 12060.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 20, 1978.

      Roy Maughan, Baton Rouge, of counsel for plaintiffs-appellees Charles White, Jr. & Gertrude Gayden White.
    Frank W. Middleton, Jr., Baton Rouge, of counsel for defendant-appellant Dr. W. R. Edison.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant (Appellant), an obstetrician, appeals from judgment in favor of plaintiffs Charles, Jr., and Gertrude Gayden White, for medical malpractice in failing to provide post-delivery treatment of sixteen year old Mrs. White during the interval following her discharge from the hospital after the normal birth of her child, and her voluntary re-hospitalization a few days later for a condition which proved to be a ruptured tubo-ovarian abscess necessitating removal of the patient’s fallopian tubes and ovaries. The trial judge held that Appellant, though not responsible for the loss of the patient’s bodily organs, was remiss in failing to see or examine the patient subsequent to her hospital discharge, despite telephoned complaints of pain and other symptoms of illness. So finding, the trial judge held that Appellant’s negligence in failing to heed the patient’s complaints and either see or examine the patient contributed to the patient’s pain and discomfort. The trial court also found that had Appellant seen the patient, the rupture of the abscess might have been prevented, thus sparing the patient the inconvenience, suffering and expense attendant upon a more complicated surgical process and a more prolonged recuperative period. We affirm.

Except as otherwise noted, there is little dispute as to the operative facts. On January 11, 1973, Appellant delivered Mrs. White of an 8 pound 11 ounce child. Because of the mother’s youth and the size of the child, delivery required a somewhat larger than normal incision to aid delivery. Recovery was uneventful except for complaints of abdominal pain which Appellant attributed to the incision and normal after birth discomfort. At approximately noon, January 14, 1973, the patient was discharged from the hospital pursuant to orders of Appellant, who had seen her earlier that morning and ordered discharge despite her complaints of pain, which were deemed by Appellant to be normal.

In the evening of the day of discharge, Appellant was contacted by the patient’s mother, who reported via telephone that the patient was experiencing intense pain and that the patient’s stomach was black and hard. Appellant attributed the symptoms to normal after birth complaints of an exceptionally young mother having borne a very large child. Appellant directed that the patient be continued on previously prescribed medication, begin taking sitz baths (sitting in hot water), and prescribed additional medication. On January 15, the mother again called Appellant, stating that the patient was worse and was having difficulty getting out of bed. Appellant acknowledges the call, but contends it was merely reported that the patient was still having pain and did not want to get up. Appellant concedes that he again prescribed continuation of medication and sitz baths. On January 16, the mother called Appellant again and reported a worsening of the condition. Appellant again advised continuation of prescribed medication and baths. On January 17, patient’s mother called Appellant and advised that the patient was worse and was having chills and fever. Appellant concedes that fever was mentioned on this occasion, but he was not told the patient was having chills and fever. Appellant admits he instructed that the patient’s temperature be taken with a thermometer, and that he be advised of the result. The mother responded that she did not have a thermometer and could not read one. Appellant suggested that she obtain a thermometer, have a friend or neighbor take a reading, and that Appellant be advised as to the result. It is conceded that the mother did not take a temperature reading. The mother attested to further calls on January 18 and 19, advising that the patient was worse and was still having chills and fever. Appellant disputes these alleged calls and maintains that he heard nothing further after the call on January 17. He also maintains that he was never advised that the patient was having chills and fever.

At approximately 5:00 A.M. January 20, 1973, the patient was voluntarily re-admitted to the hospital emergency room. Appellant was summoned and saw her at approximately 6:00 A.M. At this time, the patient was found to have a low grade fever of 994/s degrees, a distended abdomen, and to be in considerable pain and distress. Appellant ordered immediate large doses of antibiotics for what he believed to be an inflammatory infection of the pelvic area. A blood count and urinalysis proved essentially negative. By noon, the patient’s temperature had risen to 100 degrees, and at midnight it reached almost 104 degrees. On the afternoon of Sunday, January 21, 1973, the patient was seen by Dr. Anthony Leggio, Chief of the hospital’s obstetrical and gynecological staff. Dr. Leggio considered the patient very ill, and concluded that she had a “surgical abdomen” which needed exploration. Dr. Leggio concluded that the problem could be due to appendicitis, a gall bladder condition, an ulcer, or tubo-ovarian abscess. Dr. Leggio ordered greatly increased dosages of antibiotics administered intraveneously to expedite hoped for beneficial results. Despite increased medication, the condition of the patient worsened so that on Monday, January 22, 1973, Dr. Leo Farmer, General Surgeon, was called in consultation. Dr. Farmer diagnosed the condition as a generalized abdominal inflammation or infection. He was of the view that a ruptured appendix was the most likely cause of the problem. Dr. Farmer approved the dosage and medication then being administered and recommended its continuation. The patient’s condition continued to worsen and on January 23, 1973, Dr. Farmer performed surgery which revealed abscesses of the patient's fallopian tubes and ovaries (on both sides), the right side having ruptured and spread purulent material throughout the abdominal cavity. Additionally, two secondary abscesses of the lower diaphragm were also noted. Both tubes and ovaries were removed, the secondary abscesses were drained, the abdominal cavity was cleared of purulent material. The patient was placed in intensive care for approximately two weeks. In early February, Dr. Farmer performed additional surgery to redrain the secondary abscesses. The patient remained hospitalized until February 18, 1973. By March 16, 1973, the patient had recovered to the extent that she could commence a recommended mild exercise program.

The expert testimony is clearly to the effect that the abscesses were present prior to the patient’s readmission to the hospital, although none of the experts could say when the abscesses started to form. The experts are also in agreement that upon readmission to the hospital, Mrs. White was a very sick person. It is also agreed by the experts that tubo-ovarian abscesses require surgical removal because antibiotics cannot cure an abscess once it forms. There is also expert unanimity to the effect that delay in treatment in this instance would not have averted removal of the patient’s tubes and ovaries; that the rupture of the tube enhanced the danger to the patient; and that post-operative recovery for a ruptured tubo-ovarian abscess is considerably longer and more expensive than for removal of such abscesses which have not ruptured.

The trial judge concluded that Appellant was negligent in not heeding the complaints of pain, abdominal distention and chills and fever, and that the patient’s distress would have been less had earlier treatment been afforded. The trial judge also found that the deferred treatment might have made a difference only in the patient’s discomfort or chance of dying and concluded that, although the medical evidence does not show exactly when the rupture occurred, earlier treatment could have well prevented the rupture of the abscess.

A physician must exercise the degree of skill ordinarily employed under similar circumstances by members of his profession in good standing in the same community or locality, and must also use reasonable care and diligence along with his best judgment in the application of his skill in each instance. Meyer v. St. Paul Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1953).

A physician holding himself out as a specialist in the treatment of a particular disease, organ, or type of injury, is bound to exercise not only the degree of skill exercised by the average general practitioner, but also that special degree of skill and knowledge possessed by specialists in the same field, regard being made to the state of scientific knowledge at the time. Percle v. St. Paul Fire & Marine Insurance Co., 349 So.2d 1289 (La.App. 1st Cir. 1977). See also Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978).

Although our own jurisprudence is silent on the question, it appears well established that a physician is not negligent in allowing intervals to lapse between his visits to a patient when the patient needs no attention, but that he is negligent if he fails to see or attend to a patient in need of his care or services. Mehigan v. Sheeham, 94 N.H. 274, 51 A.2d 632 (1947); Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1928); Crooks v. Jonas, 204 N.C. 797, 169 S.E. 218 (1933); Reed v. Laughlin, 332 Mo. 424, 58 S.W.2d 440 (1933). We find the rule imposes a reasonable duty of care and adopt it as our own.

In a medical malpractice suit, plaintiff bears the burden of establishing the physician’s deviation from the standard of care required by others in the same field or specialty. Ardoin, supra.

In a medical malpractice suit, plaintiff also bears the burden of establishing causal relationship between the physician’s alleged negligence and the injury allegedly resulting therefrom. Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir. 1975).

Appellant, a practicing physician since 1920, has limited his practice mainly to obstetrics and gynecology since 1940, although he has had no specialized training, residency or internship in these particular fields. His specialized knowledge in these areas has been gained from experience and in keeping up with medical journals. In addition to Appellant, expert testimony was offered by Drs. Leggio and Farmer, and Drs. Jack Jones and Julius Mullins, Obstetrician-Gynecologists. The overwhelming preponderance of their testimony is that post-delivery symptoms of abdominal pain and distention and slight temperature are normal and to be expected following birth of a large child by a young mother.

Appellant disputed the mother’s claim to have reported the patient having chills and fever. He explained that slightly elevated temperature alone would be no cause for alarm or further treatment subsequent to the patient’s discharge from the hospital, but that a patient having chills and fever would require further attention because such symptoms usually indicate infection. Appellant made it clear that he would not make a diagnosis of fever without a thermometer reading and did not accept the mother’s diagnosis of fever based simply on touch and feeling. He added that he assumed the patient was doing all right because he heard nothing further after requesting a thermometer reading of temperature and was most surprised when he received the telephone call advising that the patient had been re-admitted to the hospital.

Dr. Jones testified that it was to be expected that the patient would experience pain and slight temperature following delivery. He stated that if the patient were having true chills and fever, attention of the physician was in order. He also stated that slight fever, as much as 100 degrees, would not require attention in the absence of accompanying chills. Dr. Jones was of the view that had the patient been rehospi-talized on the 17th or 18th, treatment would have been the same, namely, conservative by way of antibiotics and that the course of the infection and/or abscesses would not have been altered.

Dr. Mullins’ testimony was virtually the same as that of Dr. Jones. He felt that hospitalization two or three days earlier would have changed nothing. He, too, would not have re-hospitalized the patient for abdominal pain and mild fever. He stated, however, that had he received two or three calls stating that the patient had fever, he would have brought the patient back to the hospital.

Dr. Leggio testified that a patient rarely develops abscesses during pregnancy. If such potential is present (as in this case it was due probably to prior venereal disease), the condition remains quiescent until delivery and then “pops up” and the patient becomes very ill. He has seen an average of about 2 such cases per month, a total of about 150, of which only 5 occurred during pregnancy. He stated that if he were advised a patient was having chills and fever, he would see the patient in his office or at the hospital and if he received such information on successive days, he would examine the patient. He believed the rupture could have occurred at any time within 24 hours before he saw the patient or between the time of his 'examination and first surgery.

Dr. Farmer considered the patient quite ill on first examination, but felt that antibiotics should be given a chance to work before resorting to surgery. He agreed with the other experts that once the abscesses developed, antibiotics could not cure them, but were nevertheless administered in the hope that the patient would improve. He also agreed that once abscesses formed, the loss of the patient’s tubes and ovaries was inevitable, because their function and use had been destroyed.

Thus, the crucial question is whether Appellant should have heeded the complaints of continued pain, distention of the abdomen and chills and fever. Appellant admitted he chose not to heed the mother’s report of temperature without thermometric confirmation. He denied receiving reports of the patient having chills and fever. The trial judge believed the mother’s testimony that she reported on successive days that the patient was having chills and fever. Considering the testimony of the mother (believed by the trial court), and also that of Drs. Leggio and Mullins, we find that there is ample evidence to support the finding that a duty was owed by Appellant to see his patient in this instance. Finding no manifest error in this conclusion of the trial judge, we affirm. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

. That Mrs. White was gravely ill upon re-admission to the hospital is evidenced by the rapid rise in her temperature on that day. Dr. Leggio’s initial examination showed that an exploratory operation was absolutely necessary. The significant increase in the dosage of antibiotics ordered also affirms the severity of the patient’s condition. In this connection, Dr. Leggio testified that if abscesses are the cause of a patient’s problem, the sooner they are treated with antibiotics, the greater possibility exists for prevention of rupture prior to surgery. We agree with the trial judge’s conclusion that the delay in treatment exposed the patient to greater morbidity as well as complications attending surgery for a ruptured abscess as compared to an abscess which has not ruptured. As did the trial judge, we find causal relationship between Appellant’s remission and the added discomfort and exposure to the patient.

The medical evidence establishes that in the removal of unruptured abscesses, a second operation is rarely, if ever, required to provide additional drainage. In this instance, the patient was subjected to a second surgical procedure because the secondary abscesses of the diaphragm had to be redrained. In allowing recovery, the trial judge awarded $12,500.00 for pain and suffering. Considering that the patient’s tubes and ovaries would have had to be removed regardless of her post delivery treatment by Appellant, and also considering that the rupture of the abscess required longer than normal hospitalization, the trial judge awarded medical expense in the sum of $5,790.78, or two thirds of total hospital costs. We find this solution equitable.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.