author: SARTAIN, Judge.

text:
    Catherine Castille THOMPSON, Plaintiff-Appellee, v. William Walter THOMPSON, Sr., Defendant-Appellant.
    No. 10949.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.

      James B. Thompson, Baton Rouge, of counsel for plaintiff-appellee Catherine Cas-tille Thompson.
    Ralph W. Brewer, Baton Rouge, of counsel for defendant-appellant William Walter Thompson.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

In this domestic relations case, William Walter Thompson, Sr., appeals from the judgment of the Family Court granting his wife, Catherine Castille Thompson, a judgment of separation on the grounds of constructive abandonment, denying him a separation on the grounds of abandonment, and cruel treatment, and awarding to his wife the sum of $250.00 per month as alimony pendente lite. Appellant also asserts the uneonstitutionality of C.C. Arts. 119, 120 and 148. We affirm.

We are not favored with oral or written reasons for judgment. However, by virtue of the judgment rendered it must be assumed that the trial judge declined to hold the parties mutually at fault, in which case the relief sought by both parties would have been rejected. Callahan v. Callais, 224 La. 901, 71 So.2d 320 (1954).

The record reflects that this couple was married on July 27, 1974, in the City of Baton Rouge, where their matrimonial domicile continued to remain. There are no children issue of this marriage; however, appellee had the custody of a young girl, age ten, and a young boy, age eight, issue of her previous marriage.

We will not detail here nor respond to the various allegations of fault asserted in these parties’ respective pleadings because a perusal of the testimony satisfies us that neither bore the burden of proving that the cruelties complained of were sufficient to warrant a judgment of separation in either instance. The only two witnesses to testify were the parties themselves. Appellee’s sister did testify but her testimony related solely to the issue of constructive abandonment on the part of appellant.

There are two significant dates, namely: September 19, 1975 and October 12, 1975.

In July of 1975 appellant applied to his employer for work in Florida. His request was accepted and he, his wife and her two children moved to and resided in an apartment in Florida. His reason for doing so was that the young daughter had qualified for a beauty contest at Disneyworld and he felt like it would be an opportunity for the family to go. Later, appellant complained that it \yas this sojourn in Florida that was one of the factors precipitating their difficulties. He claims that shortly after the conclusion of the beauty contest the children became insistent on returning “home” and that because of their insistence he suggested to appellee that she and the children return to Baton Rouge. Appellee’s version is that without justification appellant informed her that the marriage would not work, etc. His testimony in his regard better explains the circumstances:

“Q You admit that before Mrs. Thompson left, you told her to pack up and go back to Baton Rouge?
A Right.
Q You told her that the marriage wasn’t going to work out?
A I told her it don’t look like it was going to work out.
Q And for her to pack up and go back to Baton Rouge?
A Right.
Q And that happened — -You told her that around four or five o’clock in the morning before you went to work one morning, is that right? Or
A No. I told it to her one day — one evening in the week and then I told her one morning.
Q About five-thirty one morning? O*
A When I was going to work. <1
Q When you were going to work? O*
A Yes, sir. <1
* * * * * *
Q And you gave her that check that morning about five-thirty and told her to pack up and go home and it wasn’t going to work out. Gf
A Right.
jfc :{: s}: sjc s|« sfc
A She didn’t leave until the next day. I asked her to leave.
Q What was her reaction when you told her to pack up and go home that morning? <y
A ‘I don’t want to.’ I said, ‘Well, are you sick?’ T don’t want to.’ ‘The kids say they want to go home.’ T don’t want to.’ That was that.
Q She didn’t want to go home? <y
A That was her answer. She said, T don’t want to.’ But still she went on and was packing when she said that. «,
Q And you told her it wasn’t going to work out and pack up and go home. .©
A I said it didn’t look like it was going to work; but we had already separated one time before over the same thing.
* * * * * *
Q And when you- — let me ask you. After you told her that you didn’t think it was going to work out, for her and the kids to go back to Baton Rouge, did she ever call you down in Florida? G?
A Every evening. I had sixty — She’s got the telephone bill. I had something like sixty-five dollars worth of telephone bills in Florida plus forty dollars worth of telephone bills in Baton Rouge. She called me every day and she called all of my children and everybody in the country.
Q She wanted you to try to come back and try to work it out, didn’t she?
A There was no way for me to come back until — No. She didn’t say nothing about working it out. She just— All she would say is, T love you.’
Q She just called you to tell you she loved you.
A That’s right.”

Appellant’s testimony with respect to his reasons for insisting that his wife leave does not justify his doing so.

On or about September 20, 1975, the wife returned to Baton rouge and to the matrimonial domicile. She went to this residence rather than one she had acquired during her previous marriage because the latter was occupied and not available to her.

We now turn to the events surrounding October 12, 1975, on this occasion plaintiff had concluded his work in Florida and returned unannounced to Baton Rouge. He went to the matrimonial domicile occupied by his wife and the children. When asked what his intentions were he explained that he was tired, wanted a bath, and some sleep. Appellee explained to him that if he persisted in remaining at the home she and the children would have to leave. Appellant then left and went to a camp he owned at False River. Appellant contends that his wife’s conduct on this occasion constituted abandonment on her part because she refused to remain in the same house with him.

Appellee’s version is that when her husband arrived, she asked him what his intentions were with respect to their marriage and was told that it “would not work” and “could not work” and that appellant had not changed his position. It was for this reason, appellee states, that she could not remain in the home under these circumstances and that it was for this reason only that she was going to leave the matrimonial domicile. The evidence is clear that appellant’s appearance at his home on this occasion was not for the purpose of a reconciliation or to pursue any efforts that would tend to resolve their differences.

Appellant confirmed this intention in his response to certain questions:

“Q You didn’t intend to try to make the marriage work. You wanted to stay in your house because it was your house, isn’t that right?
A Right. I didn’t come to make that marriage work because I think I had tried and tried and tried to make it work.
Q I see. So you came home and you came to Baton Rouge and you went to the house because it was your house, but you didn’t go there to try to make the marriage work. That’s what you said.
A That’s right. That’s right. I went there—
THE COURT: How about right now? She indicates she would go back with you?
A Heck no. I wouldn’t go with her. I am busted. I am completely wiped out.
Q When you came home from Florida you wouldn’t go back with her, would you?
A No. I pretty well knew where I stood when I come home from Florida.”

We fully realize that it is almost an impossible task to reflect in an opinion such as this the true feelings of the parties and the many factors that contribute to marital discord. We do not for one minute say that in appellant’s own mind he did not feel that he was warranted in pursuing the course of conduct that he did in having his wife leave the apartment in Florida or his refusal to reside with her on his return to Baton Rouge. He explains that one of his major problems was family finances. Yet, there is no reasonable evidence in the record that supports a conclusion that appellee committed acts of financial irresponsibility contrary to her marital obligations.

Appellant urges the constitutional infirmity of C.C. Arts. 119, 120 and 148 in the light of Article 1, Sec. 3 of the Louisiana Constitution of 1974. Basically, he contends that subsequent legislation, Married Women’s Emancipation Act (Act 283 of 1928, R.S. 9:101, et seq.), and our Constitution of 1974 have rendered the subject articles obsolete.

With respect to C.C. Art. 148, our Supreme Court in a recent decision in Wi7-liams v. Williams, 331 So.2d 438 (La.1976) expressed itself contrary to the views espoused by appellant. In Williams, the article was tested for reasonableness and found to be constitutionally firm. The court stated that it was not unreasonable for the legislature “to afford her (the wife) special protection during the final (and often non amicable) stage of the community’s existence” when her lack of control over the assets of the community under our system of community of acquets and gains is considered.

We fail to see how C.C. Art. 119 can be considered discriminatory. To the contrary, its requirements of mutual support and assistance appear to be the very essence of fairness.

The facts in the instant case do not warrant a discussion of the alleged constitutionality of C.C. Art. 120.

Lastly, we turn to the award of $250.00 per month to the plaintiff as alimony pendente lite under C.C. Art. 148. We assume that appellant’s objection is two fold, namely: that any award was made; and (2) that the amount is excessive. With respect to the first objection, we believe that we have answered the same in our response to the constitutional attack on the subject article. With respect to the second objection, we note that plaintiff has a net weekly take home pay of approximately $284.00. The only income of the wife is the sum of $200.00 per month which she receives from her former husband for the support of the two minor children of that marriage. While the wife listed numerous expenses ($575.00), some of which necessarily included these children, we do not find that the award of $250.00 per month by the trial judge is an abuse of the discretion accorded the trier of fact. The husband listed a house note of $245.00 per month, a piano payment of $30.00 per month and church contributions of $80.00 per month. This is the extent of the itemization of his expenses. Under these circumstances, we can not say that the award made by the trial judge is in error.

Accordingly, for the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Art. 119. The husband and wife owe to each other mutually, fidelity, support and assistance.

      . Art. 120. The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.

      . Art. 148. 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.

      .Sec. 3. No person shall be denied equal protection of the laws. No law shall discriminate against a person because of race or religion, ideas, beliefs or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    BOARD OF COMMISSIONERS OF the LAFOURCHE BASIN LEVEE DISTRICT v. BOARD OF COMMISSIONERS OF ATCHAFALAYA BASIN LEVEE DISTRICT.
    No. 10946.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Joseph W. Cole, Jr., Port Allen, for defendant and appellant.
    Simmons & Savoie, by Felix H. Savoie, Jr., Napoleonville, for plaintiff and appel-lee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit seeking the issuance of a writ of mandamus to compel the Board of Commissioners for the Atchafalaya Basin Levee District to pay its prorata share to the Lafourche Basin Levee District for the maintenance of a canal located in Assumption Parish. From a judgment granting the issuance of the writ, defendant has appealed.

By Act 9 of 1900, the Louisiana Legislature authorized the Boards of Commissioners of the Atchafalaya Basin and Lafourche Basin Levee Districts to place locks at the head of Bayou Lafourche, and the expense of such works was to be shared equally by each Board. This Act of the Legislature further provided that all matters pertaining to the construction, maintenance, and management of said locks was to be considered by the two Boards meeting in joint session, but voting separately, and in case of a tie vote, the governor would decide the issue. The express purpose of this Act was to close Bayou Lafourche to the uncontrolled flow of the Mississippi River and thus reduce the drain on the state’s fisc in maintaining the levees along Bayou Lafourche.

Two years later, in 1902, the Legislature enacted Act 84 which authorized the two Boards to place a temporary dam at the head of Bayou Lafourche pending the construction of the locks. The legislature required that from the time of the placing of the dam to the completion of the locks the Boards would maintain a depth of not less than 6 feet by not less than 60 feet in width of fresh water throughout Bayou Lafourche either by supply of river water at Donald-sonville or by lake connection below the lower line of the Parish of Assumption, and that in order to carry out the purpose of the Act the Boards could dredge the bayou, construct pumps, syphons, build dams and locks and operate same, and do other necessary acts. It is apparent that even though the damming of Bayou Lafourche at its headwater was being allowed, and the flow of water from the Mississippi River was to be completely curtailed temporarily, a channel for navigation was mandated by the legislature.

In 1904, by Act 36, the legislature amended and reenacted a portion of Act 84 of 1902 to provide that the lake connection for the supply of fresh water could be made at any point of Bayou Lafourche, and that in order to carry out the purpose of the Act the Boards could, in addition to what was authorized by Act 84 of 1902, dig canals. Both Acts provided that the works specified would be carried out and paid for in accordance with Act 9 of 1900.

The two Levee Boards acting jointly in an attempt to maintain a flow of fresh water throughout Bayou Lafourche dredged a canal from Bayou Lafourche to Lake Verret utilizing an old drainage district canal for a portion of its length. From its dredging until August 1, 1972, both Boards acting jointly and in accordance with the above referred to two Acts of the Legislature shared equally the cost of maintenance of the canal.

In 1950 the legislature enacted Act 113 which created the Bayou Lafourche Fresh Water District comprising portions of the parishes of Ascension, Assumption and La-fourche, for the express purpose of furnishing fresh water from the Mississippi River to the incorporated villages, towns and cities along Bayou Lafourche and within or adjacent to the boundaries of said district. It is obvious of course that the purpose of this Act of the Legislature was to provide fresh water for drinking purposes rather than for the maintenance of a channel for navigation in Bayou Lafourche.

In 1952 the legislature adopted Act 192 which allowed the Bayou Lafourche Fresh Water District to construct, maintain and operate a pumping facility at the head of Bayou Lafourche in the vicinity of Donald-sonville for the purpose of providing fresh water from the Mississippi River to Bayou Lafourche. At the same time the legislature also adopted Act 191 of 1952 which authorized the Boards of Commissioners for the Atchafalaya Basin and the Lafourche Basin Levee Districts to contribute from funds available the sums of $250,000.00 each for the purpose of defraying the expenses of the construction of a pumping facility as provided for in Act 192, and upon paying said sums of money, both of the levee districts would be fully relieved of any further obligation to provide a fresh water supply for Bayou Lafourche and would be particularly relieved of the obligations imposed by those portions of Acts No. 9 of 1900, No. 8 of 1902, No. 84 of 1902 and No. 36 of 1904, which required that the levee boards maintain a supply of fresh water in said bayou.

It is apparent from the record that for many years both the Atchafalaya Basin Levee District and the Lafourche Basin Levee District jointly maintained the canal in question that had been dredged, and meeting jointly they would authorize the maintenance of this canal. Apparently the Lafourche Basin Levee District would out of its funds pay all the bills for the maintenance of the canal, and the Atchafalaya Basin Levee District would reimburse the Lafourche Basin Levee District one half of the maintenance cost. At the last joint meeting of the two levee districts at which a quorum was present, on July 14, 1966, the following resolution was adopted, to wit:

“Be it resolved that the Atchafalaya Board cooperate to the full extent in cleaning out Cancienne Canal, that effective July 1, 1966 a $10.00 a month raise from each Board be given to the three employees of the joint organization working on Cancienne Canal but that the foregoing be held in abeyance until such time as the Attorney General has ruled formally on the legality of the joint organization expenditures on Cancienne Canal. That until such time as the Attorney General rules, the joint organization continue its present activities.”

There were no other meetings held after this meeting, however, a meeting was called for February of 1973, but a quorum was never obtained.

The Lafourche Basin Levee District continued under the former practice of paying the expenses for the maintenance of the Cancienne Canal, and submitting one half of the bills to the Atchafalaya Basin Levee District for reimbursement. However, on August 1, 1972, the Atchafalaya Basin Levee District refused to pay any further-reimbursement to the Lafourche Basin Levee District for expenditures on the Can-cienne Canal, and thus this suit was filed.

The defendant-appellant argues that a serious legal question has been raised as to the propriety of its continuing to expend tax monies for the maintenance of the Can-cienne Canal, and thus any duty imposed upon the Board of Commissioners of the Atchafalaya Basin Levee District is not a clear ministerial duty required by law, and therefore mandamus will not lie for a resolution of the problem.

The question therefore before the Court under the facts as presented is whether mandamus is the proper remedy?

A writ of mandamus is issued to compel the performance of a ministerial duty required by law, and only in those cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. arts. 3862 & 3863.

Plaintiff is seeking to collect from the defendant money that it claims the defendant owes it. Normally, one would file an ordinary suit for the collection of money due. Mandamus is an extraordinary remedy which is used sparingly by the courts to compel something that is clearly provided by law, but only where it is the only available remedy, or where the delay occasioned by the use of any other remedy would cause an injustice.

“Mandamus will not lie to enforce payment of a claim against a governmental body where there is another adequate remedy; and it is generally held that mandamus is not the proper remedy to enforce a claim which has been presented to the proper officers and disallowed by them where there is an adequate remedy by action.” 55 C.J.S. Mandamus § 17.

In State v. Police Jury of Rapides Parish, 131 So.2d 623 (La.App. 3rd Cir. 1961) rehearing denied (1961), wherein, the bonding company sought a writ of mandamus against the Rapides Parish Police Jury commanding that they pay to it the sum of $2,500.00 as the refund of an appearance bond which had been forfeited due to the failure of an accused to appear in court, after an acting governor of the state formally remitted the forfeiture, our Brethren on the Third Circuit in upholding the denial of the use of mandamus said:

“In the instant suit relator clearly has a right to proceed by ordinary process, and there is nothing in the pleadings or in the arguments advanced by counsel to indicate that the ‘slowness of ordinary legal forms is likely to produce such a delay that the public good and the administration of justice will suffer from it.’ ”

The plaintiff in the matter before this Court could have just as easily used ordinary process in attempting to collect the money which it alleges is due it, and there is no showing to this Court that an injustice will be done by denying the use of mandamus.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and IT IS ORDERED, ADJUDGED AND DECREED that plaintiffs application for a writ of mandamus be and the same is denied. To the extent permitted by law, all costs of this appeal are to be paid by plaintiff-appellant.

REVERSED AND RENDERED.


author: LOTTINGER, Judge. LOTTINGER, Judge

text:
    Robert L. HENSLEY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 10961.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18,1977.

      John R. Olds, Baton Rouge, for plaintiff-appellant.
    David W. Robinson, Baton Rouge, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This appeal is from a Judgment of the Trial Court sustaining defendant’s peremptory exception of no cause of action. From this judgment, plaintiff has appealed.

According to plaintiff’s petition, he was involved in a vehicular accident when the second car in front of him stopped abruptly at an intersection apparently for the purpose of making a left turn. The automobile in front of plaintiff was able to stop in time to avoid hitting the automobile which had stopped abruptly, but plaintiff who was behind both cars on a motorcycle ran into the rear of the automobile in front of him resulting in injuries to his person.

Plaintiff’s petition alleges that the cause of the accident was not the car immediately in front of him but was the unidentified vehicle in front of that car which stopped abruptly to make a turn. Plaintiff has sued his own insurance company for his damages alleging that the unidentified vehicle is an uninsured vehicle within the meaning of his policy and LSA-R.S. 22:1406. LSA-R.S. 22:1406 D(l)(a). provides in part:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; . . .”

The pertinent portion of plaintiff’s insurance policy was offered into evidence by stipulation. Said policy defines an uninsured automobile in two ways; first, as an automobile which does not have bodily injury liability insurance in at least the amounts specified by the financial responsibility law of the state, and secondly, as a hit and run automobile. A hit and run automobile is defined in the policy as “an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, . . . .”

The defendant filed a peremptory exception of no cause of action contending that since there was no physical contact between plaintiff’s automobile and the alleged uninsured motorist’s automobile, no cause of action had been stated against defendant under its policy of insurance.

Appellant argues that the requirement of physical contact in defining a hit and run as uninsured is restrictive of the rights granted by LSA-R.S. 22:1406, and thus invalid. Appellee counters by arguing that similar clauses have been upheld, citing Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir. 1970), writ refused, 256 La. 375, 236 So.2d 503 (1970).

In deciding the validity of the exception of no cause of action, evidence is not admissible, LSA-C.C.P. art. 931, though once admitted without objection, the pleadings are considered enlarged. Rheuark v. Terminal Mud & Chemical Co., 213 La. 732, 35 So.2d 592 (1948). The Court must take the allegations of the petition as true, Ruddock Orleans Cypress Co. v. DeLuppe 119 La. 952, 44 So. 794 (1907), and the exception must be overruled unless the allegations exclude every possible hypothesis of admissible facts other than those negativing plaintiff’s right to recover. Stanley v. Missouri Pac. R. Co., 179 So.2d 490 (La.App. 3rd Cir. 1965). Even if it can be shown that even though plaintiff can prove every fact alleged in his petition he still cannot recover as a matter of law, the exception must be sustained. Black v. American Mut. Liability Ins. Co., 37 So.2d 63 (La.App. 1st Cir. 1948).

As we interpret Collins v. New Orleans Public Service, Inc., supra, and as approved by the Louisiana Supreme Court in the refusal of writs with the notation “on the facts found by the Court of Appeal, there is no error of law in its judgment”, the plaintiff must prove one of two elements to be successful in his claim for uninsured motorist coverage, i. e.' (1) that there was physical contact under the “hit and run” definition of the insurance policy or (2) the identity of the operator of the mystery automobile or the mystery vehicle. Since plaintiff admits that there was no physical contact, and that he does not know the identity of the operator of the mystery automobile, we agree that he has not stated a cause of action.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All cost of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

LOTTINGER, Judge

(concurring).

I voted with the majority in affirming the Trial Court, ultimately authoring the majority opinion, because of the holding of Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir. 1970) and its approval by our Supreme Court by the refusal of writs at 256 La. 375, 236 So.2d 503 (1970). However, with all due respect to my Brethren on both the Supreme Court and the Court of Appeal, I cannot agree with Collins and thus file this concurring opinion.

The uninsured motorist law is found at LSA-R.S. 22:1406 D(l)(a) and provides:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.” (emphasis supplied).

In discussing the reasons behind the uninsured motorist statute, our brethren on the Third Circuit in Elledge v. Warren, 263 So.2d 912, 916 (La.App. 3rd Cir. 1972) said:

“By the end of the 1968, forty-six states had legislation requiring insurance companies to include uninsured motorist coverage (unless specifically waived) in all liability policies issued or delivered by an insurer licensed in the state, upon any motor vehicle principally used or garaged in the State. * * *.
“In the light of the history of this legislation as reported by the cited authorities, we find it appropriate to review our appreciation of our own statute.
“There existed in our society a situation whereby financially irresponsible people could acquire and drive vehicles capable of great damage. Because of their financial irresponsibility and lack of insurance, they were unable to respond to their victim in damages under LSA-C.C. Art. 2315. This created a class of injured people in our state who were left without recourse and who, without some form of relief, might become wards of the state. Insurance plans (such as the financial responsibility law) oriented towards coercing motorists to purchase insurance or removing them from the highways if they did not, proved ineffective. Other plans had to be developed.
“In an effort to forestall plans distasteful to itself, the insurance industry set forth a plan of compensation for the innocent victim of the uninsured motorists. In surveying the problem, it became evident to our legislature that the source of the harm was a danger peculiar to the use of the automobile and the industry most capable and most interested in resolving the problem was the one most closely related thereto in terms of economics and self interest — the automobile insurers. Therefore, our legislature seized upon the solution set forth by the insurance industry and made the offering of uninsured motorist protection a mandatory condition precedent before the companies could conduct business in Louisiana. “The evil and the injuries existed. By the terms of our statute, whenever evil perpetrates itself upon a policy holder availing himself of uninsured motorist coverage (or insureds under his policy), he is to be compensated for his injuries. In Booth v. Freeman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580, 583 (1969), our Supreme Court concluded ‘that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.’ See also Valdez v. Federal Mutual Insurance Company, 272 Cal. App.2d 223, 77 Cal.Rptr. 411, 413 (1969). ‘. . . Such statutes must be liberally construed to carry out this objective of providing compensation for those injured through no fault of their own.’ ”

It is obvious that the purpose of Louisiana’s uninsured motorist statute is “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles * *

There is no legislative mandate or expression of intention found in this statute that can lead one to reasonably believe that the insured must place himself in a position to obtain a judgment against the wrongdoer. The above quoted terminology has been interpreted to mean that the insured establish legal liability on the part of the uninsured, and this requires that the insured only prove the negligence of the uninsured, the insured’s freedom from contributory negligence and the resulting damages. It has been further stated that no provision either by statute or in the policy contract requires that the insured establish his claim by judgment. Booth v. Fireman’s Fund Ins. Co., 197 So.2d 352 (La.App. 2nd Cir. 1967).

The statute in question does attempt to define an “uninsured motor vehicle”, but only as to when the insurer is unable to pay or coverage is less than the damages. LSA-R.S. 22:1406 D(2). Other than the language contained in LSA-R.S. 22:1406 D(6) which describes certain evidence which shall be admissible as prima facie proof of no insurance, i. e. affidavit by owner of no insurance, affidavit by Casualty and Surety Division of no insurance and any evidence or any admissible evidence showing owner or operator a resident or citizen of a foreign country or a non-resident or not a citizen of Louisiana in conjunction with an affidavit of the Casualty and Surety Division of no insurance, which was amended into the statute by the legislature for the obvious purpose of side stepping the “heresay rule”, there is no other attempt to define an uninsured or underinsured.

But more important than the lack of any express definition of an uninsured, there is no mandate nor express intention by the legislature that the identity of an uninsured or the uninsured motor vehicle be absolutely necessary for the successful prosecution of a claim.

Under Booth, [253 La. 521, 218 So.2d 580 (1968)] the plaintiff must show that he is “legally entitled to recover damages” that is, that the other car was at fault and he was not. There is no mention made in Booth that he identify the other driver, owner or vehicle, for to do this he could then get a judgment against the tort fea-sor, and this he is not required to do. I, therefore, see no restriction in the statute prohibiting the plaintiff from attempting to prove that a mystery car caused the accident.

It was argued in Collins that the physical contact rule as found in the insurance policy was invalid because it went beyond the provisions of the uninsured motorist law. Correctly, however, Collins held that though the hit and run rule with the physical contact provisions did go beyond the statute, it was for the benefit of the insured and thus not void. All that the physical contact rule means is that where there is a hit and run with physical contact the insurer concedes that the offending vehicle is uninsured without any further proof on the part of the insured. Since clauses in insurance contracts cannot be in derogation of the requirements of the uninsured motorist law, Wilkinson v. Fireman’s Fund Ins. Co., 298 So.2d 915 (La.App. 3rd Cir. 1974), the hit and run rule with physical contact provisions cannot detract from the rights granted an insured by this statute.

It is obvious to me that though we approve the physical contact rule because it grants an advantage to the insured, and thus cannot be said to be in derogation of the uninsured motorist law, its true intention is an attempt to cloud the issue and restrict the rights of the insured under uninsured motorist coverage. Louisiana Courts have taken a liberal approach to the physical contact rule in approving the chain reaction theory in allowing the insured who was not in direct contact with the uninsured to recover even though the policies generally provide that the physical contact of the hit and run automobile be with the insured or with an automobile the insured is occupying. Springer v. Government Employees Ins. Co., Inc., 311 So.2d 36 (La.App. 4th Cir. 1975).

It is the inclusion of the hit and run clause with its accompanying physical contact mandate that has been misapplied in ascertaining the broad rights granted an insured by the uninsured motorist law. The apparent reasoning for the inclusion of the physical contact rule in the definition of a hit and run vehicle is to avoid as much as possible false or fraudulent claims. It is contended by most insurers that if the requirement for physical contact is disallowed, there will be an onslaught of false claim 'by negligent drivers who are seeking to recover for their own negligence. This very argument concedes that without the physical contact rule there would be more claims, thus, with the rule less claims and a restriction on the right of the insured.

It seems, however, that the insurers and the proponents of the concept that there must be physical contact lose sight of the fact that the plaintiff must still prove to the satisfaction of the trier of fact that not only was there another vehicle which caused the accident, but that it left the scene of the accident under circumstances which would lead one to the conclusion that it was uninsured.

As the same court that authored the Collins opinion said in Springer v. Government Employees Ins. Co., Inc., supra, “the inference that one who hits and runs is uninsured, especially when further supported by circumstances such as the old age and un-kept condition of his car, is not an unreasonable one. An insured driver ordinarily has less reason to flee the scene of an accident than has an uninsured driver (although even an insured driver might flee to avoid serious problems such as a drunk driving charge, or discovery with another’s spouse).”

It is certainly then not unreasonable to foresee that a vehicle could run a stop sign, thus causing another vehicle to attempt to avoid a collision and strike a parked car, without ever coming into contact with the offending automobile, and yet the offending driver stops and fully notices what he has done in view of many independent witnesses to the accident, but still leaves the scene. The conclusion, was he drunk, did he have another’s spouse with him, was he fearful of a traffic citation, or did he simply not have insurance. As the Florida Supreme Court in Brown v. Progressive Mutual Ins. Co., 249 So.2d 429 (1971) said in discussing the physical contact rule “the only reason for such a requirement is to prove that the accident actually did occur as the claimant may say it did. This is a question of fact to be determined by the jury or the judge if demand for jury trial is not made. If the injured party can sustain the burden of proof that an accident did occur, he should be entitled to recover, regardless of the actuality of physical contact. If twenty witnesses will swear they saw the accident happen, their testimony should not be deemed worthless, as it would be under the decision here for review.”

What Collins has forced this court in the majority opinion to do is to deny to the plaintiff the opportunity to prove his claim. I agree that where there is no physical contact the chances of false claims are greater, but I cannot agree that every claim of a miss and run with no physical contact is a false claim. As stated by the Third Circuit in Elledge, the obvious purpose of the uninsured motorist law was to afford coverage to the financially responsible drivers as to that injury caused them by the financially irresponsible people because of their financial irresponsibility and lack of insurance. I cannot agree that it was the intention of the Legislature in enacting the uninsured motorist law to limit the application of this statute to only those situations where you can identify the driver of the automobile or you can identify the automobile. To place such a restriction on the statute defeats its purpose. Those individuals who have no insurance are not going to be inclined to sit around and wait for the traffic accident investigation after the accident has occurred.

Therefore, for the above and foregoing reasons I do not agree with the rationale of Collins, though under the facts it might have been impossible for the plaintiff to convince the trier of fact that the mystery automobile was uninsured. However, because our Supreme Court has refused writs in Collins and apparently approved same, I am compelled though disagreeably to vote with the majority in affirming the Trial Court.


author:
ELLIS, Judge:
      PONDER, Judge

text:
    Barry WOODS v. NICHOLS CONSTRUCTION CORPORATION et al. (two cases).
    No. 10987.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18,1977.
    Simmons & Savoie, Felix H. Savoie, Na-poleonville, Talbot, Sotile & Carmouche, Donald T. Carmouche, Donaldsonville, for plaintiff-appellee-appellant.
    Breazeale, Sachse & Wilson, Henry D. Salassi, Jr., Baton Rouge, for Fireman’s Fund Ins. Co., and Barry Woods.
    Henderson, Hanemann & Morris, Philip E. Henderson, Houma, for Nicklos Drilling Co., and Argonaut Ins. Co.
    Seale, Smith & Phelps, A. G. Seale and James H. Morgan, III, Baton Rouge, for Nichols Const. Corp. and Associated Indemnity Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

These two consolidated cases arise out of an automobile-truck collision in which plaintiff’s wife was killed and his minor daughter injured. Defendants are Nichols Construction Corporation and Associated Indemnity Corporation, its insurer; and Nicklos Drilling Company and Argonaut Insurance Company, its insurer.

The accident happened in Belle Rose, Louisiana, on November 1, 1973, at the intersection of Louisiana Highway 1 and Louisiana Highway 998. At the point of the accident, Highway 1 runs approximately north and south and is intersected by Highway 998 at right angles. Shortly before the accident, three trucks belonging to Nichols, which were heading north on Highway 1, pulled off onto the east shoulder of the road because the second of the trucks, a large mobile crane, was having mechanical difficulties. The crane, which was 13V2 feet high and 13 V2 feet wide, was parked off the travelled portion of the highway, but quite close thereto. It was near enough to the intersection to block the vision southward of those on Highway 998 entering Highway 1 from the east.

Plaintiff’s wife, Mrs. Lorraine Woods, was driving in a westerly direction on Highway 998. She approached the intersection intending to negotiate a left turn onto Highway 1 and head south. She inched out into the highway at a slow rate of speed, estimated by witnesses at from one half to five miles per hour. When the front end of her automobile was just over the center line of Highway 1, .she was struck by a tractor-trailer rig belonging to Nicklos and operated by Wilson Vidrine. Mrs. Woods was thrown from the car and killed, and her daughter, who was a guest passenger, suffered personal injuries.

These two suits were filed by Mr. Woods, individually and as tutor of his daughter, Tanya Woods. No. 10987 is for damages for the wrongful death of Lorraine Woods, and No. 10988 is for the personal injuries suffered by Tanya. All defendants third partied Mr. Woods and his insurer, Fireman’s Fund Insurance Company, alleging Mrs. Woods’ negligence and asking indemnity or contribution. Nichols also third partied Nicklos, seeking indemnity or contribution should Nichols be found liable.

After trial on the merits a single judgment was rendered for the two consolidated eases in favor of plaintiffs and against Nichols and Associated Indemnity. All other demands and incidental demands were dismissed.

From that judgment Nichols and Associated Indemnity perfected a suspensive appeal. Plaintiff has appealed devolutively from the dismissal of the suit as to Nicklos and its insurer. Plaintiff also answered Nichols’ appeal, seeking an increase in the award.

After the appeals were perfected, an agreement was entered into by Nichols and Associated Indemnity on one hand and Barry Woods on the other, completely settling the case as between them, with the parties reserving their rights in this appeal against Nicklos. Since Nicklos did not appeal the dismissal of its third party demand against plaintiff, the only question presented by this appeal is that of the alleged negligence of Nicklos.

Wilson Vidrine testified that he was driving north on Highway 1, about 300 or 400 feet behind a crane truck, going 30 or 35 miles per hour. He stated that when he first saw the Woods vehicle, he could see about the front one foot thereof, and that it had stopped. When it began to move out into the highway again, he began to pull to his left to avoid a collision. He sounded his horn but did not apply his brakes until the impact. He stated that he had to release the brakes immediately to avoid losing control of his rig. Mrs. Woods continued to move slowly across the highway to the point of impact. Mr. Vidrine testified that when he first saw the Woods vehicle, he did not think that he could make a safe stop with his rig in time to avoid the collision, but that he felt he had room to go around her car to the left.

On cross examination, Mr. Vidrine testified at first that he was alongside the mobile crane when he first saw Mrs. Woods’ vehicle, and then later testified that he might have been further back, perhaps a truck length behind the lowboy rig which was parked behind the mobile crane.

Both Nichols and Nicklos introduced expert testimony relative to reaction time and braking distance. One expert was of the opinion that Mr. Vidrine could have stopped short of the intersection had he applied his brakes immediately. The other was of the opinion that he could not have stopped in time.

It is argued by plaintiff and Nichols that, in either event, if he had applied his brakes, the truck would have been slowed sufficiently to enable Mrs. Woods to clear the intersection and avoid the accident.

The trial judge, who saw and heard the witnesses, concluded that Mr. Vidrine, who was driving safely and within the speed limit, was confronted by a sudden emergency, not of his own making, and that he did everything he could to avoid the accident. He found him not to be negligent. Since there is some evidence on which this conclusion could be based, we find no manifest error therein.

The judgment of the trial court is therefore affirmed, at appellants’ cost.

AFFIRMED.

PONDER, J., dissents and assigns written reasons.

PONDER, Judge

(dissenting).

I believe that Nicklos Drilling Company had the last clear chance to avoid the accident. This doctrine has application when 1) the plaintiff is in a position of peril of which he is unaware or from which he cannot extricate himself; 2) the defendant discovers or could reasonably discover the plaintiff’s peril; and 3) the defendant has an opportunity to avoid the accident. Messex v. Louisiana Department of Highways, 302 So.2d 40 (La.App. 3rd Cir. 1974).

A careful reading of the testimony of the Nicklos driver will show that he was one truck length behind the third Nichols vehicle when he first saw Mrs. Woods. The calculations of the Nicklos expert made this 233 feet from the middle of the intersection. Using a reaction time of 2.5 seconds and a braking coefficient of .33, both of which are liberal to Nicklos, and without any locking of the brakes, the expert finds the truck could be stopped in 250.3 feet. While this would have been 17.3 feet beyond the point of impact, the slowing of the truck under the braking would have given Mrs. Woods additional time to clear the intersection and avert the collision.

Even if the Woods car were not completely out of the northbound lane, the speed of the truck would be sufficiently decreased to allow the truck to be maneuvered behind her at the intersection of La. 1 and La. 998. Furthermore, even if the collision could not have been completely avoided, the decreased speed of the Nicklos truck would have caused such a reduction in the impact as to avoid the catastrophic consequences.

I therefore dissent from the holding of the majority that absolves Nicklos from liability under the sudden emergency doctrine.


author: SAMUEL, Judge.

text:
    The FEDERAL NATIONAL BANK AND TRUST COMPANY OF SHAWNEE v. CALSIM, INC., et al.
    No. 7692.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writs Refused March 11, 1977.

      William P. Stahl, New Orleans, and Cook, Clark, Egan, Yancy & King, James Robert Jeter, Shreveport, for plaintiff-appellee, The Federal Nat. Bank & Trust Co. of Shawnee.
    Moliere, Flanagan, Arceneaux & Hardin, James S. Arceneaux, Metairie, for Standard Title Ins. Co., appellee.
    Usry & Leefe, Richard K. Leefe, New Orleans, for Howard H. Walker, Trustee.
    Lemle, Kelleher, Kohlmeyer & Matthews, C. Murphy Moss and William Penick, New Orleans, for International Title Agency, Jacob Senter and St. Paul Fire & Marine, appellee.
    McCollister, Belcher, McCleary & Fazio, Thomas R. Elkins, Baton Rouge, for Leslie Henry Day, defendant-appellant.
    Bernhardt C. Heebe, New Orleans, for Brady Steel Co., Inc., defendant-appellant.
    Henry L. Klein, New Orleans, for General Elec. Co., defendant-appellant.
    Maurice D. Armagnac, Metairie, for Dura-Tuft Carpets, Inc., La. Lightweight Inc., Ben C. Baldwin Contractor, Inc., Ar-mond Delle, Jr., d/b/a Town & Country Landscaping, Enterprise Elec. Inc., defendants-appellants.
    Molony, Nolan, North, Reiss & Hall, Bruce A. North, New Orleans, for Enterprise Elec., Inc., defendant-appellant.
    T. M. McBride, III, Chalmette, for Bolton Plumbing Supply Co., Inc., defendant-appellant.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SAMUEL, Judge.

This concursus proceeding was filed by The Federal National Bank and Trust Company of Shawnee against Calsim, Inc. seeking recognition of its mortgage rights to the extent of $5,245,914.71 against property upon which Calsim, Inc. had partially completed an apartment complex on real estate in Jefferson Parish. Plaintiff made defendants numerous subcontractors and material men who claim liens and privileges against the real estate superior in rank to plaintiffs mortgage. Also named as defendants were Howard H. Walker, Trustee, who purchased the property “subject to” plaintiff’s mortgage, and Standard Title Insurance Company under its title insurance agreement which allegedly insured the mortgage as a first lien and privilege against the subject property. As relief plaintiff sought judgment casting Calsim, Inc. and Howard H. Walker (the latter in rem) for $5,245,-914.71, recognizing and maintaining its mortgage as superior to all other liens and privileges, and alternatively, as against Standard Title Insurance Company, for the amount of all liens and privileges determined by the court to have priority over the mortgage.

After answers had been filed to the con-cursus petition, the plaintiff bank, Standard Title Insurance Company, and other parties filed a motion against Ben G. Baldwin Contractors, Inc., Brady Steel Company, Inc., Leslie H. Day, Dura-Tuft Carpet Corp., Enterprise Electric, Inc., General Electric, Inc., Georgia-Pacific Corp., Lake-view Plumbing & Heating Co., Inc., Louisiana Lightweight, Inc., Armond Delle, Jr., d/b/a Town & Country Landscaping, and William B. Serant Co., Inc., seeking a summary judgment stating the liens filed by those defendants have either prescribed or perempted. The motion for summary judgment is based on the fact that those defendants had neither filed suit on their liens nor filed a notice of lis pendens in the mortgage office within one year of the recordation of their liens.

The trial judge granted the motion for summary judgment against all defendants named therein except William B. Serant Co., Inc. and ordered the recorder of mortgages for the Parish of Jefferson to cancel from his records the liens filed by the other defendants in motion.

Various defendants have appealed. Ap-pellees have filed an answer to the appeals seeking amendment of the trial court’s judgment to change the spelling of numerous names and to correct the property description as those names and description appear therein.

The primary issue presented is whether the appellant lien holders lost their liens by not filing a suit independent of the concur-sus proceeding and by failing to record a notice of lis pendens in accordance with R.S. 9:4812. A subsidiary issue is the validity of a notice of lis pendens timely filed with the recorder of mortgages but not recorded in the mortgage records.

The relevant portion of R.S. 9:4812 reads: “The effect of the recordation of the claim shall cease and the privilege preserved by the recordation shall perempt unless a notice of filing of a suit (giving the name of the court, the title and number of the proceedings, and date of filing, a description of the property and a reference to the recorded claim), on said claim is recorded within one year from the date of the recordation of the inscription of said claim.” LSA-R.S. 9:4812.

The statute is clear that timely recording the claim (which was done by all appellants) is not sufficient to preserve the lien; the additional requirements of filing suit and filing a notice of lis pendens within one year of recording the claim must be met to prevent peremption. The statutory language of peremption shows the importance of failure to file an appropriate suit or to record a notice of lis pendens. The general rule is that statutes of prescription merely bar recovery, but statutes of per-emption totally extinguish a cause of action. Because lien statutes are strictly construed, the technical requirements of R.S. 9:4812 must be met.

Literal compliance with the provisions of R.S. 9:4812 creates problems for a lien holder made defendant in a concursus proceeding when, as in the present case, no contract or bond for the work has been recorded under R.S. 9:4802. Revised Statute 9:4804 sets forth a statutory concursus procedure established by the legislature to deal with ranking of liens and privileges when there is a recorded contract and bond. Such procedure is not applicable to a lien holder under R.S. 9:4812 because that statute applies to situations where there is an absence of contract and bond. Consequently, a concursus proceeding under R.S. 9:4812 must be filed pursuant to the general con-cursus provisions of Code of Civil Procedure Articles 4651-4662.

Code of Civil Procedure Article 4656 provides each defendant in a concursus proceeding is considered both a plaintiff and a defendant with respect to all other parties. Moreover, being placed under the provisions of the concursus statute, any separate suit filed under R.S. 9:4812 to assert a privilege is subject to being enjoined by the provisions of Code of Civil Procedure Article 4660. Consequently, under the limited circumstances of this case, we hold an answer filed in a proceeding under the concursus provisions of the Code of Civil Procedure is equivalent to a suit under R.S. 9:4812 and satisfies that portion of the statute requiring the filing of suit to prevent peremption. As all appellants filed such answers within the one year time period, they have effectively “filed suit” within the contemplation of that requirement as contained in the statute.

Provision for filing a notice of lis pendens is specifically spelled out in the above quoted R.S. 9:4812. The notice must give the name of the court, the title and number of the proceedings, the date it was filed, a description of the affected property, and the location in the public records where the lien is recorded. No such notice was recorded by any of the appellants. However, they argue that the bank’s concursus proceeding obviated the necessity of their filing a notice of lis pendens and, alternatively, a notice of lis pendens timely filed by one lien claimant in this proceeding serves as notice of the suit for the other lien claimants.

Revised Statute 9:4812 requires that the claimant record a notice of lis pendens which contains information relating not only to the suit but also to the claimant’s specific recorded lien. Each claimant must record a notice of lis pendens which includes the required information applicable to his particular claim. In this light, the statute is not, as argued by defendants, designed merely to give a prospective purchaser notice that liens have been filed against immovable property. The statute is quite emphatic in requiring that notice must be given to prospective purchasers of each suit filed in furtherance of each claim against the property. The lis pendens is not merely a procedural notice vehicle. An owner is entitled to have liens cancelled from the mortgage records if the lien claimants do not record the required notice of lis pen-dens. Since the lis pendens requirement is necessary to avoid peremption of each individual claim, there is no justification for holding the filing of one notice of lis pen-dens by a single lien claimant meets that requirement for the benefit of all potential lien holders because that one notice does not contain the required information regarding other liens and does not show that any other lien claims are being pursued.

Defendants urge the case of Hunt v. La Chere Maison, Inc., as authority for dispensing with the requirement of a notice of lis pendens. We find this argument to be without merit.

Prior to 1966, a lien claimant was required to reinscribe his lien annually, on penalty of losing it. This court created an exception to that rule by holding annual reinscription was unnecessary to preserve a lien when the property subject thereto was sold by the sheriff and a fund thereby created.

In 1966 R.S. 9:4812 was amended to its present form to substitute filing notice of lis pendens for annual reinscription of liens. In the Hunt case, the court relied upon the exception to the general rule created by this court for proceedings prior to 1966 and applied it by analogy to the requirement of a notice of lis pendens. The Hunt court stated:

The present requirement of a notice of lis pendens serves the identical purpose of lien reinscription required by Section 4812, above, prior to its amendment in 1966. In this instance, the Sheriff’s sale occurred within a year of recordation of Carson’s lien. Carson asserted his lien in Appellant’s concursus proceeding within a year of the date the lien was filed. This suffices to preserve the rank of his claim, and render it immune to a plea of prescription predicated upon failure to file a notice of lis pendens.”

The only manner of rationalizing the applicable rules before and after the 1966 amendment to R.S. 9:4812 is to reach the conclusion that a lien claimant under R.S. 9:4812 must record a notice of lis pendens within one year of recordation of his lien, and this requirement can only be dispensed with when the property subject to the lien is sold to create a fund for the benefit of the lien claimants prior to the termination of the one year period. If the property is sold pursuant to judgment cancelling the lien and relegating the claimants to the proceeds of the sale, the liens no longer exist against the property and the claimants then have only an action to recover their money out of the sale price. That price simply takes the place occupied by the property prior to its sale. Notice of lis pendens in such a situation would be futile since it would be subject to erasure from the public records at the request of interested parties.

The Hunt case is not authority for dispensing with notice of lis pendens in this case. In Hunt, the property was sold by the sheriff and the claimants were relegated to a fund prior to the expiration of one year from the filing of the liens. In the present case the property was not sold prior to the expiration of the year and there is no fund to which the claimants have been referred. Consequently, the filing of the notice of lis pendens was a substantive requirement to prevent the peremption of the lien.

One defendant, Leslie Henry Day, contends his notice of lis pendens should be recognized from the date it was deposited with the clerk of court. This defendant mailed a notice of lis pendens to' the clerk. The clerk placed the notice in the record of this proceeding but did not record it in the mortgage records. Day argues he should not be penalized by the failure of the clerk to properly handle the notice of lis pendens.

The clear provisions of R.S. 9:4812 show the notice of lis pendens must be recorded or the claim shall perempt. It is unnecessary to discuss the statements of the Supreme Court in Kinnebrew v. Tri-Con Production Corporation, where the court stated the effective date of a mortgage recor-dation was retroactive to the date of its filing with the clerk when the mortgage was actually inscribed in the mortgage records a few days after filing. The court in Kinnebrew refused to express an opinion on the results to be reached if the inscription of the mortgage had never occurred or had been excessively delayed. In the present case, the question is statutorily required recordation of the notice of lis pen-dens in time to prevent peremption of the claim and there is no doubt the Day notice never has been recorded. Thus, here there can be no question regarding any retroactive effect because of a small delay between filing and actual recordation by the clerk caused by routine office procedures. We agree with the trial court conclusion that this claim also has been perempted.

Finally, plaintiffs have answered these appeals seeking amendment of the judgment to correct the names of the parties and the description of the property as set forth therein. As the record before us is designated and piecemeal, and as it may be necessary to take evidence regarding the correct names of the parties and the appropriate property description, this function is more properly for the trial court.

For the reasons assigned, the judgment appealed from is affirmed. However, the matter is remanded to the trial court solely for the purpose of affording the parties who answered the appeals an opportunity to correct the names of the parties and the description of the property now appearing in the judgment.

AFFIRMED AND REMANDED.

      . The defendant lien holders are American Builders Supply, Inc., Ben G. Baldwin Contractor, Inc., Brady Steel Company, Inc., Arthur C. Brown Co., Inc., C. & H. Drywall, Leslie H. Day, Drake Concrete Co., Inc., Dura-Tuft Carpet Corporation, Enterprise Electric, Inc., Reily Bros., Inc., Gems, Inc., General Electric Company, Georgia-Pacific Corporation, Glassow Sales Company, Hogan Scarboro Corporation, Lake-view Plumbing & Heating Co., Inc., Bolton Plumbing Supply Co., Inc., LeFlore County Tile Co., Louisiana Lightweight, Inc., Mac’s Painting Company, Standard Paint & Varnish Co., Inc., R. J. Marshand & Co., Inc., Marrero Glass Company, Inc., Marrero Heating & Air Conditioning Co., Payne Co., Carrier Corporation, Marrero Sheet Metal Work, Morehead Pools, Ltd., Inc., National Picture & Frame Co., Nord-strom Larpenteur Agency, Wm. B. Serant Co., Inc., Musco, Inc., Terminix, Inc., Southern Landscaping Consultants, Inc., L. & W. Supply Corp., W. H. Ward Lumber Co., Inc., Woodward-Wight & Co., Ltd., Yale Cleaners, Inc., Armond Delle, Jr., d/b/a Town & Country Landscaping, and Delta Bank & Trust Co.

      . The other parties to the motion for summary judgment were International Title Agency, Jacob Senter and St. Paul Fire & Marine Insurance Company.

      . Ben G. Baldwin Contractor, Inc., Brady Steel Company, Inc., Dura-Tuft Carpet Corp., Enterprise Electric, Inc., General Electric Company, Louisiana Lightweight, Inc., Armond Delle, Jr., d/b/a Town & Country Landscaping and Leslie H. Day.

      . Harris v. Traders & General Ins. Co., 200 La. 445, 8 So.2d 289; Gilmore v. State, La.App., 79 So.2d 192.

      . See Subdivision Planning Engineers, Inc. v. Manor Development Corporation and Trinity Universal Insurance Company, La.App. 1976, 337 So.2d 618, and cases cited therein.

      .See Hunt v. La Chere Maison, Inc., La.App., 316 So.2d 850.

      . Id.

      . Lumber Products, Inc. v. Crochet, 244 La. 1060, 156 So.2d 438; Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566.

      . City Nat. Bank of Baton Rouge v. Sunshine Process. Co., La.App., 209 So.2d 161.

      . Id.

      . It should be noted the record on appeal was designated by the parties and is not complete. Nevertheless, the parties to this appeal agree in brief that there was no sheriff’s sale of the property prior to the expiration of the time within which the required notice of lis pendens must be filed.

      . 244 La. 879, 154 So.2d 433.


author: MARVIN, Judge.

text:
    CITY OF MONROE, Plaintiff-Appellee, v. James A. NOE et al., Defendants-Appellants.
    No. 13050.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    En Banc. Rehearing Denied, Jan. 10, 1977.

      Davenport, Files & Kelly by Thomas W. Davenport, Jr. and C. T. Munholland, Monroe, for defendants-appellants, James A. Noe, Individually and as Executor of the Estate and Succession of Mrs. Anna Gray Sweeney Noe, Gay Noe McLendon, James A. Noe, Jr. and Noe Enterprises, Inc.
    Jesse S. Heard, Jr., Monroe, for defendant-appellee, H. F. Breard, Jr.
    Coon & Lewis by Allen H. Coon, Monroe, for defendant-appellee, Heloise R. Chambers.
    Robert C. Downing, Asst. Atty. Gen., Monroe, for defendant-appellee, Atty. Gen., State of La.
    Billye L. Adams, Monroe, for defendant-appellee, Grammont C. Breard.
    Dimos, Brown & Erskine by David G. Erskine, Monroe, for defendant-appellee, Anne Breard.
    Thomas V. Gardner, Jr., Monroe, for defendant-appellee, Charles R. Reichler.
    Benjamin M. Peters, Monroe, for defendants-appellees, Benjamin M. Peters and John R. Peters.
    Hargrove, Guyton, Ramey & Barlow by Ray A. Barlow, Shreveport, for defendants-appellees, Pennzoil Producing Co. and United Gas Pipeline Co.
    Thompson, Sparks & Cudd by Robert C. Cudd, III, and Theus, Grisham, Davis & Leigh by Charles H. Heck, Monroe, for plaintiff-appellee, City of Monroe.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

Without any action by contiguous property owners, a municipality, by the enactment of an ordinance, may annex territory which has boundaries 90 percent in common with those of the municipality. An annexation by this means is not effective until the district court with jurisdiction, in contradictory proceedings, declares the annexation reasonable and in the best interest of the overall community.

The plaintiff City here employed this means of annexation and the court below rendered the requisite declaration. Because the annexed property included a one-foot strip meandering through the City a distance of almost two miles, the number of property owners against whom the City proceeded contradictorily was exceedingly large. Many of the property owners along this strip did not appear in the district court and none appealed.

As the plat (reproduced hereafter) of the annexed property shows, the principal property annexed is a rectangular tract owned by interests or persons deriving title from the late James A. Noe. Only these defendants appeal.

Appellants urge numerous errors, including the unconstitutionality of R.S. 33:172(C); the insufficiency of “notice” to appellants; discrepancies in the description of the property proposed to be annexed; the pendency of declaratory proceedings to annex the same property instituted about six months before this proceeding, and that the annexation is not reasonable and is not in the best interest of the overall community.

CONSTITUTIONALITY OF R.S. 33:172(C)

R.S. 33:172 originally provided for annexation by petition of 25 percent of owners (and value of property) in the area to be annexed. Act 338 of 1972 amended and reenacted section 172 to provide for annexation by a referendum election (subsection D); by ordinance (subsection C); and changed the petition requirements from 25 percent to a majority (subsection A). Subsection B provides for notice.

Appellants contend that the methods provided by subsections A and D are consistent with the title and purpose of the act, while subsection C is broader than and inconsistent with the title of the act, and violative of Art. 3, Section 16 of the 1921 Constitution.

The title of Act 338 of 1972 provides: “An act to amend and reenact Section 172 of Title 33 of the Louisiana Revised Statutes of 1950, relative to petition required in connection with the procedure for enlarging the boundaries of a municipality; to require the petition to contain the written assent of a majority of the registered voters provided there are registered voters residing in the area and a majority of the resident property owners and 25% in value of the property of the resident property owners within the area to be included in such municipality; to provide for alternative methods of annexation and otherwise to provide with respect thereto.” (Emphasis Ours).

The purpose of the constitutional provision is to give not only the public, but legislators fair notice of the scope of legislation and avoid intentional or unintentional practice of misleading the legislature into passing legislation not indicated in the title of bill. Terrebonne Parish Police Jury v. Board of Commissioners, 306 So.2d 707 (La. 1975).

This provision is to be construed, however, with a view of effectuating rather than frustrating legislative intent. Louisiana Independent Auto Dealers Assn. v. State, 295 So.2d 796 (La.1974). It is necessary that we examine the body of the act for its purpose or aim to determine whether the title of the act is appropriate for the subject matter of the statute. State v. Welkner, 259 La. 815, 253 So.2d 192 (1971); State v. O’Dell, 253 La. 418, 218 So.2d 318 (1969).

The constitutional provision is applicable to amending legislation. New matters may be enacted by amending legislation but are required to be germane to the original statute as if originally enacted. Southern Hide Co. v. Best, 176 La. 347, 145 So. 682 (1933).

Act 338 of 1972 covers the subject matter of annexation, by petition, and by providing “alternative methods of annexation.” All things reasonably necessary to carry out the general object of the law, as stated in the title, are considered to be within the scope of the title. Bethlehem Supply Co. v. Pan Southern Petroleum Corp., 207 La. 149, 20 So.2d 737 (1945).

We hold the title of Act 338 is not misleading and R.S. 33:172(C) is germane to and within the scope of the title of the act.

OTHER CONTENTIONS

R.S. 33:178, in part, is pertinent as to the sufficiency of the description of the property:

“Where the boundaries of a municipality have been enlarged or contracted, the ordinance with reference thereto must define with certainty and precision the territory which it is proposed to include in or exclude from the corporate limits, as the case may be . .

The Noe rectangular tract presents no problem of description. It is an understatement to say that the one-foot strip obviously presents perplexing problems.

“Conceding that such descriptions must be certain and precise, the rule of interpretation applied is stated in Rhyne’s Municipal Law, page 29, Sec. 2:29 as follows: “ ‘As a general rule, descriptions sufficient for private deeds are sufficient for describing municipal boundaries. However, in order to give effect to the legislative intent, the same strictness will not necessarily be applied to descriptions affecting municipal boundaries, as in the case of private deeds. In ascertaining the municipal boundaries on the ground, practical location, such as permanent markers and well-defined monuments, will prevail over a conflicting description, unless the markers are so manifestly wrong as to lead to an absurd result.’ ” Dupre v. Mayor and Board of Aldermen of City of Houma, 126 So.2d 637, 644 (La.App. 1st Cir. 1961). (Emphasis Ours).

Our review of the record convinces us that the trial court correctly weighed the evidence and applicable principles of law with respect to the description. We adopt his findings and conclusions on these issues:

“[An expert witness] conclusively testified that from his surveys in the area plus checking and using existing plats on recordation he would be able to locate the subject description on the ground.
“He pointed out several instances, however, where the calls in the subject description were in error . “. . . Defendants insist that LSA-R.S. 33:178 means that the entire boundary of the City of Monroe prior to the enactment of Ordinance # 5004, which purports to annex the property in this case must be proved in addition to the boundary of the property sought to be annexed and that the two boundaries must be common on at least 90% of their points.
“The evidence showed that the last annexation ordinance filed in the public records prior to the enactment of Ordinance # 5004 was Ordinance # 4097. That ordinance contained two flaws in that the direction ‘South 52° 50' East’ should have read ‘South 52° 50' West’ and the words which were in the preceding ordinance, to-wit: ‘. .of 691.50 feet thence measure South 52° 49' 30" West, a distance . . . ’ were omitted.
“This omission, it is argued, causes a gap to exist in the city boundary and since the city is bound by the recorded description other means and sources of proof available to individual property owners in their disputes or to other governing bodies, other than municipalities are not available to the City of Monroe in this case.
. . the Court is of the opinion that the quoted language from R.S. 33:178 regarding the official boundary of the city does not prevent reference to other sources to clarify and establish with reasonable certainty the official boundary.” Tr. pp. 128-141.

Considering that the property sought to be annexed was already surrounded by the City and that the City’s exterior boundaries were not changed by the annexation, we conclude the City has substantially complied with the statute. Extrinsic evidence may be used to resolve questions in descriptions and in matters of this type, earlier ordinances may be considered in determining whether the annexed property is defined with reasonable certainty. See Thibodeaux v. Comeaux, 243 La. 468, 145 So.2d 1 (1962); Cheshire v. City of Minden, 83 So.2d 526 (La.App. 2d Cir. 1955), writ denied; Smith v. Lincoln Parish Police Jury, 327 So.2d 641 (La.App. 2d Cir. 1976); Town of Coushatta v. Valley Electric Membership Corp., 139 So.2d 822 (La.App. 2d Cir. 1962).

We observe, as did the lower court, that appellants do not contend or show they were prejudiced or mislead in any way by the written description.

The notice or publication requirement of R.S. 33:172(B) and (C) deserves mention here. Subsection (C) provides in part:

“All such ordinances [for annexation] . shall comply with the provisions of Subsection (B) . .
Subsection (B) provides:
“Notice by publication shall be given once of the filing of the petition in some newspaper published or having general circulation in the municipality. No ordinance enlarging the boundaries of the municipality shall be adopted until ten days after the publication of the notice. Anyone desiring to be heard with reference to the proposed ordinance shall notify the clerk or secretary of the municipality in writing and the governing authorities, before adopting any ordinance, shall grant such hearing.”

Subsection (C) provides that before the annexation ordinance can be declared effective, the property owners must be cited and served and, by implication, heard, in a contradictory proceeding.

Our interpretation of R.S. 33:172 leads us to conclude that notice of the City’s intention to adopt the ordinance must be published in a newspaper having general circulation in the municipality. The publication must either describe the property proposed for annexation or state where such a description may be reasonably available to the public.

Appellants do not claim they did not have actual notice that the City was proposing by ordinance to annex appellants’ property. Since appellants have proceeded contradictorily with the City and have made no showing of prejudice because of the alleged deficiency in the publication, we find no merit in the contentions of defendant as to insufficient notice or discrepancies in description.

Southside Civic Assn. v. Guaranty Savings Assurance Co., 329 So.2d 767 (La.App. 1st Cir. 1976) does not persuade us to the contrary. Notice there was required under a zoning ordinance. It was insufficient because it actually misled property owners into believing their property was to be subjected to less restrictive zoning when in fact, their property was to be zoned more restrictively. The court there correctly found the notice inadequate. We have no showing here that appellants were misled in any way and we find appellants’ complaints in this respect without merit.

The declinatory exception of lis pendens urged by appellants is founded upon an attempt, apparently later abandoned, by the City in September, 1972, to annex appellants’ property by the same means as employed here. The instant proceedings were begun in March, 1973.

“When two or more suits are pending in Louisiana courts on the same cause of action, between the same parties, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto. C.C.P. art. 531. The exception of lis pendens thus has the same requirements of identities as the exception of res judicata. See C.C. art. 2286. Both exceptions serve to promote efficient judicial administration and to prevent harassment or undue oppression. The exception of lis pendens, however, is applicable before judgment on the merits is rendered in any of the pending suits, while the exception of res judicata is applicable after judgment has been rendered in one of the suits.” Slater v. Slater, 336 So.2d 965, 966 (La.App. 4th Cir. 1976).

The first proceeding by the City concerned an ordinance of slightly different wording, and was against different defendants. Publication of the City’s intent to enact the first ordinance occurred on September 18, and the ordinance (No. 4065) was adopted September 25.

La.C.C. Art. 2286 provides:
“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Louisiana’s doctrine of res judicata is not as broad as the common-law doctrine of collateral estoppel or estoppel by judgment. See 34 La.L.R. 763 and Sliman v. McBee, 311 So.2d 248 (La.1975). Our doctrine is construed stricti juris and is not applied unless all conditions are clearly fulfilled. Barnett v. Develle, 289 So.2d 129 (La.1974).

The object of the two suits actually are concerned with different ordinances, although both ordinances seek to annex apparently the same property and many of the defendants in the first suit are named in the second suit. The second suit names many more defendants (apparently owners along the one-foot strip). All doubt in such instances is to be resolved against exceptor. Makar v. Ivy, 291 So.2d 861 (La.App. 3d Cir. 1974).

We uphold the lower court’s action in overruling the exception of lis pendens because the causes the action (ordinances) and the parties were different. See Stanfill v. Johnson, 258 So.2d 141 (La.App. 2d Cir. 1972), writ refused.

Remaining for our consideration is the contention of appellants that the lower court erred in finding the proposed annexation is reasonable and in the best interest of the overall community. The burden of proving these statutory requisites is on the City. We agree with the lower court’s conclusions in this respect. The record establishes, among other factors:

The property is drained through the City’s drainage system.

KNOE-TV is supplied with City water and natural gas.

The nearest fire station, one mile away, is a City station which has answered the only call to the property. A parish fire station is eight miles away.

The property is accessible only through the city limits over City streets.

The property exists as an. island or enclave, not subject to the City'building codes, zoning and planning ordinances.

Regularity of boundaries, unity and compactness of municipal limits is one of many factors to be considered in annexation cases. Pyle v. City of Shreveport, 215 La. 257, 40 So.2d 235 (1949).

“With reference to annexation, what is reasonable or unreasonable depends largely upon the particular facts in any given situation . . . ” Barbe v. City of Lake Charles, 216 La. 871, 45 So.2d 62, 70 (La.1949).

The record is replete with testimony that the subject annexation is reasonable and in the best interest of the overall community. The City did propose the 1972 legislation, which with some amendment was enacted as Act 338 of 1972. We also recognize that appellants may probably be faced with an increased tax burden. These factors, however, and despite cries of political motivation, are incidental to the reasonableness and community interest. The lower court summarized the factors mentioned which warranted annexation and concluded:

“In short, the primary reason for this proposed annexation was to bring the Noe property under the control of the City for planning and development before Noe decided to do it on his own, which was inevitable as the property was in the direct line of development.
* * * * * *
“This annexation may act negatively in some respects, but it also acts affirmatively for the public welfare; the benefit accrues not only to the municipality, but also to the abutting property owners. “Furtherance of the social, as well as the economic and political advantages of a community are reasonable objectives.” Opinion, pages 11 and 12.

At appellants’ cost,

WE AFFIRM.

      . R.S. 33:172 provides that contiguous property owners, by petition or by election, may determine the issue of annexation. Part (C) of Section 172 authorizes another alternative means of annexation in this language:
      “C. Notwithstanding the provisions of Subsection (A) of this section, any municipality may annex contiguous areas without the petition required by Subsection (A) of this section, by ordinance, provided at least ninety percent of the boundary of the area to be annexed is common to the boundary of the municipality, and provided further, that said annexation is reasonable and in the best interest of the overall community. All such ordinances adopted under the provisions of this subsection shall comply with the provisions of Subsection (B) of this section, and shall not become effective until the district court of the judicial district wherein the municipality lies shall have ruled after contradictory trial with the owner or owners of the area to be annexed, that the annexation is reasonable and in the best interest of the overall community. In all such proceedings, the rules governing actions for declaratory judgments shall apply except that the municipality shall bear the burden of proving that the ordinance is reasonable and in the best interest of the overall community.”

      . The rectangular tract contains 62 acres. Noe Enterprises, Inc., owns 12 acres on which is situated KNOE-TV. Mr. Noe died while this appeal was pending and the remaining 50 acres, owned by Noe at his death, is being administered as a part of his estate. The executor of Mr. Noe’s estate, C. T. Munholland, has been substituted as a party appellant. Rule 13, Uniform Rules, La. Courts of Appeal.

      . This section reads:
      “Every statute enacted by the Legislature shall embrace but one object, and shall have a title indicative of its object.
      “The Legislature may, however, by means of a single statute, enact or revise a system of laws of a general or public nature, such as the general statutes, or a codification of laws on the same general subject matter, or both. Such a statute shall be deemed to embrace but one object and its title need only refer to the general purpose and scope of the statute.”


author: JONES, Judge.

text:
    Clara Louise LA HOOD, Plaintiff-Appellant, v. Jerry Wayne LA HOOD, Defendant-Appellee.
    No. 13055.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Bothell & Lawson by Herman L. Lawson, Mansfield, for plaintiff-appellant.
    Colvin, Hunter, Brown & Plummer by D. Scott Brown, Mansfield, for defendant-ap-pellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

The appellant was awarded a divorce, custody of her 3 young daughters and child support, but was denied alimony. She appeals, assigning as error the denial of her claim for alimony. We affirm.

The only issue on appeal is whether the trial court was correct in denying the wife alimony under all circumstances of this case.

In his reasons for judgment the trial judge found that the wife was not in necessitous circumstances and had sufficient means for her support within the contemplation of Civil Code Art. 160 The court suggested she sell her $32,000 home in which she had $10,000 equity and use the proceeds from the sale to rent a place for her and the children to live. The wife’s assets, other than the home, are limited to less than $1,000 in cash, a 1973 Pontiac automobile, household furniture and a claim against her former husband for past due child support in the amount of $1,500.

Louisiana cases have held that where the former wife has no other source of income she must have net assets in excess of $20,000 in order for her to be considered as having sufficient means to deny her alimony under Civil Code Art. 160. Smith v. Smith, 217 La. 646, 47 So.2d 32 (La.1950); Montz v. Montz, 253 La. 897, 221 So.2d 40 (La.1969); Paddison v. Paddison, 255 So.2d 504 (La.App., 4th Cir. 1971). Even when her total assets consists of a home having a net value in excess of $20,-000 this is not sufficient means for her support where the home is needed to provide a place for the minor children of the marriage to live. The former wife under such circumstances is not required to sell the home and use the proceeds from the sale to provide her support in lieu of receiving alimony from her former husband. Hardy v. Hardy, 214 So.2d 231 (La.App., 4th Cir. 1968); Nicolle v. Nieolle, 308 So.2d 377 (La.App. 4th Cir. 1975). The assets of the wife in the instant case are substantially less than $20,000 and her principal asset is the equity in the home where she and her three children live. Therefore the court was in error when it indicated she could not qualify for alimony under C.C. Art. 160 because of the home owned by her.

The trial judge also stated in his reasons for judgment that plaintiff should go to work and her failure in this respect was a factor in her failure to be considered without sufficient means for her support. The plaintiff’s children are ages 3, 5 and 7. The mother of small children is justified in remaining at home to care for them and her failure to seek employment under these circumstances will not deprive her of alimony after divorce. Ward v. Ward, 332 So.2d 868 (La.App., 4th Cir. 1976). See also Ducote v. Ducote, 331 So.2d 133 (La.App., 3d Cir. 1976).

Although the wife does not have sufficient means for support, her right to alimony must be determined based upon the ability of the husband to pay, as C.C. Art. 160 provides for payment thereof out of “the property and earnings of the husband.”

Plaintiff’s former husband owns and operates a sporting goods store. The building is valued at $20,000 and the store has $27,000 in merchandise. He owns stock worth approximately $9,000 and has debts totaling $29,000. Defendant’s 1975 income was $8,731, $8,074 of which was received from operation of the sporting goods store. If this annual income is prorated on a 12 months basis, it reflects a monthly income of $728. He has been ordered to pay plaintiff $375 monthly child support and further ordered to provide hospitalization for the 3 children, at a cost of approximately $25 per month. He therefore has a monthly outlay of $400 for the children, which leaves him only $328 to meet his own needs. He testified his living expenses amounted to $587 monthly.

It is apparent that if defendant liquidated his property he would have little left after payment of debts. He needs his store (his principal asset) to continue making a living for the children. At the time of trial in April, 1976, the sales records available from the store showed volume off approximately 50% from 1975 which could result in less funds available to meet his child support obligations.

We feel that the situation was aptly summarized by the trial judge when he stated:

“There simply isn’t enough money to go around. Mr. LaHood does not earn enough to support himself, and to support the children in the manner in which they are presently living.
“It is conceivable — and probable — that both Mr. and Mrs. LaHood are going to be compelled to make sacrifices that they had not anticipated and that they would prefer not to make. The dictates of necessity are, however, paramount.”

In Laughman v. Laughman, 170 So.2d 207 (La.App., 2d Cir. 1964) a wife was denied alimony under C.C. Art. 160 where her former husband had a total monthly income of $396.04 from which he was ordered to pay $200 per month child support, leaving him for his own living expenses $196.04. The wife had received property valued at $4,000 from the community settlement. The court there said:

“Balancing the needs of the former wife against the ability of the former husband to pay alimony, we find no substantial basis for disagreement with the conclusion reached by the trial court that defendant is unable to pay more than that which he has been .directed to pay to the mother for support of the daughters.” Id. p. 208.

We find after defendant meets his child support obligation, he does not have the ability to pay any alimony to his former wife.

We affirm the lower court’s decision rejecting plaintiff’s demands for alimony at her cost.

      . Art. 160. Wife’s alimony after divorce
      “When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income

      . This decision held under some circumstances the failure of a divorced wife to seek employment could deprive her of alimony under C.C. Art. 160. The Louisiana Supreme Court has reversed, in Ward v. Ward, 339 So.2d 839 (La.) # 58279. This decision is not yet final. Stated briefly, that holding does not allow a trial court to compel a divorced wife to seek employment as a prerequisite to obtaining alimony under C.C. Art. 160 under any circumstances. This decision merely reinforces our position here.