author: SARTAIN, Judge.

text:
    DOLESE CONCRETE COMPANY, Plaintiff-Appellee, v. Nicholas TESSITORE, Jr., Defendant-Appellant.
    No. 11834.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Writs Refused June 9, 1978.
    George Matthews and Ben Louis Day, Baton Rouge, of counsel, for plaintiff-appel-lee Dolese Concrete Co.
    Erwin A. LaRose, Baton Rouge, of counsel, for defendant-appellant Nicholas Tessi-tore, Jr.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Dolese Concrete Company, brought this action against defendant, Nicholas Tessitore, Jr., urging that he be found personally liable for a debt of $25,-028.51 owed to it by Mid-South Metal Building Corp., of which he was a director and the treasurer. Liability is asserted on the ground that Tessitore fraudulently misrepresented certain facts to Dolese which was injured through its reliance thereon and also that Tessitore personally guaranteed payment of a certain check for $23,000.00 given by Mid-South to Dolese which was dishonored. The trial judge granted plaintiff recovery of $23,000.00 under the misrepresentation theory. We affirm.

The facts in this case are nearly identical to those found in the case of Altex Ready-Mixed Concrete Corp. v. Employers Commercial Union Insurance Co., 308 So.2d 889 (La.App. 1st Cir.), writ refused, 312 So.2d 872 (La.1975). Both cases concern the disposition of a $95,088.41 draw paid by Thomas F. Roberds, the prime contractor, to Mid-South, a sub-contractor, on August 25,1971, for work done on a job for Georgia-Pacific Corp. near Port Hudson, Louisiana. Before releasing such a draw, Roberds required that its sub-contractors furnish evidence that payment had been made for all labor and materials used on the job. Mid-South did not have funds to pay the suppliers of its labor and materials.

Mr. Tessitore was aware of the poor financial condition of Mid-South, having been present at the regular board meetings at all of which the company’s financial problems were discussed. In August of 1971, Mr. Tessitore, as treasurer of Mid-South, signed a check for $23,000.00 in favor of Dolese dated August 31, 1971.

On August 20, 1971, while Gilbert Slaughter, a sales representative for Dolese, was making a routine sales call at Mid-South, he was approached by Howard Gor-by and Nicholas Tessitore. They wanted him to take the check, which Mr. Tessitore told him was post-dated, and sign a lien release form stating that Mid-South had paid Dolese. Slaughter told Tessitore that he had no authority to execute such release and that Tessitore would need to see Dolese’s credit manager, Joseph C. Perot. On August 23, Tessitore took the check and release to Perot who took the check and signed the release as he had done several times in the past for Mr. Tessitore on the Georgia-Pacific job. Perot was not informed that the check was post-dated. Mr. Perot deposited the check in Dolese’s account but it was returned by the bank. The check was never paid.

On August 25, 1971, Mid-South received its draw of $95,088.41 from Roberds in the form of three checks which were deposited in Mid-South’s checking account at the Fidelity National Bank. On the same day the checking account was debited upon instructions from Tessitore in the following manner: $30,460.00 in payment of a promissory note which was personally endorsed by defendant, $22,500.00 to Cloverleaf Shopping Center in which defendant had at least a fifty percent interest, and $11,025.00 in payment of two notes made and executed by defendant individually. The minutes of the board meeting of August 26, 1971, also reflect a $30,000.00 payment to a Pendarvis, not further identified. These payments nearly exhausted the draw. The minutes further reflect that as of August 26 the board did not consider that Dolese had been paid despite the fact that the $23,000.00 check had been delivered.

From the above facts it can be readily seen that Tessitore knew the corporation did not intend that the check which he issued and delivered to Dolese would be paid. He was well acquainted with the fact that Dolese executed the lien release with the clear understanding that it would be paid out of the draw Mid-South was endeavoring to obtain as had been done on previous occasions. Notwithstanding this understanding, Tessitore obtained the release and then participated as an officer and board member of Mid-South in diverting these funds to satisfy obligations on which he was personally liable.

As we stated in Altex, above, “officers, directors and shareholders of a corporation can become personally liable to those who suffer loss because of fraudulent misrepresentations made by the officers, directors or shareholders on behalf of the corporation. R.S. 12:95; Texas Industries, Inc. v Dupuy & Dupuy Develop., Inc., 227 So.2d 265 (La.App. 2 Cir. 1969).”

Having determined Tessitore to be liable under a theory of fraudulent misrepresentation, we need not address the issue of personal guaranty. We must, however, determine whether the damages recoverable by plaintiff are $23,000.00, the amount of the check, or $25,028.51, the actual amount owed by Mid-South to Dolese. We believe the trial judge was correct in awarding $23,000.00. Dolese agreed to release its lien rights for this sum. Because of Tessitore’s misrepresentation, it released its lien rights. Since Dolese had agreed to release these rights for $23,000.00, we feel that an award in this amount is the full extent of Tessi-tore’s liability. Had the check been good Dolese would have still had no lien rights on the extra $2,028.51.

For the reasons assigned, the judgment is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Raymond B. GAUTREAU, Plaintiff-Appellee, v. MODERN FINANCE COMPANY OF GONZALES, INC., Defendant-Appellant.
    No. 11837.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Benjamin C. Vega, Jr., Donaldsonville, for plaintiff-appellee.
    Keith D. Jones, Baton Rouge, for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a suit to compel the redemption of certain debentures prior to the maturity dates shown on the instruments themselves. From an adverse judgment, defendant now appeals. We affirm.

Raymond B. Gautreau (appellee) purchased certain debentures totaling $34,-000.00 issued by Modern Finance Company of Gonzales, Inc. (appellant) providing interest at the rate of ten percent per annum (payable quarterly) and maturing three years from date of issue. Appellee was the attorney for the appellant-corporation. When his client-attorney relationship was terminated, he sought to redeem the subject debentures. Appellant refused and this litigation followed.

Appellee bases his claim on an alleged oral agreement between himself and appellant’s managing officer under which, in accordance with company policy, he would be permitted to redeem his debentures at any time.

Appellant contends (1) that parol evidence may not be used to vary the terms of a written instrument; and (2) that its managing officer, Steve Morris (now deceased), had no authority to enter into such an agreement. Appellant also re-urges its peremptory exception of failure to join an indispensable party, General Electric Credit Corporation (GEC) on the grounds that GEC is the holder of superior indebtedness of appellant.

C.C. Art. 2276 provides that: “Parol evidence shall not be admitted against or beyond what is contained in the act, nor on what may be said before or at the time of making them or since.” This article has not been strictly applied and numerous exceptions have developed. See: Comment, Louisiana’s Parol Evidence Rule: Article 2276, 35 La.L.Rev. 779 (1975).

It has been held that, as between parties to an instrument, parol evidence is admissible and competent to show 'fraud, mistake, illegality, want or failure of consideration, to explain an existing ambiguity when the explanation sought to be offered is not inconsistent with its written terms, or to show that the instrument is but a part of the entire oral contract between the parties. Gulf States Finance Corporation v. Airline Motors Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965); Goldsmith v. Parsons, 182 La. 122, 161 So. 175 (1935). It is the latter noted exception to the rule, if applicable here, with which we are concerned.

Appellee testified that at the time he purchased the subject debentures he was assured by Morris that they could be redeemed at any time he wished. Earlier debentures of his (appellee’s) had been redeemed prior to maturity. It is undisputed that, both prior and subsequent to the purchase of the debentures now in contest, the directors of appellant were allowed to cash in their debentures at any time under just such an agreement.

Mr. Richard Brazen, the present chairman of the board of directors of appellant-corporation, testified that such a practice was not the policy of the corporation. He did concede that certain persons were allowed to cash their debentures early through specific agreements with Morris. Brazen had had such an agreement and had cashed in some of his debentures earlier prior to Morris’ death.

Under the above circumstances, the question is not whether appellant had such a general policy that it is now estopped to deny appellee the same privilege that it had accorded others. Rather, the question is whether the issuance of the debentures to appellee was part of an oral agreement between appellant and appellee that these particular debentures would be redeemed by the former prior to maturity at the latter’s request. The existence of that oral agreement is a fact to be proved.

With respect to such proof, we should note that in his petition appellee averred that appellant had established a “policy” of redeeming its debentures prior to maturity and on request. On the day of the trial, appellant filed a peremptory exception of no cause of action premised on the grounds that the petition contained no allegations which would justify or support any relief in derogation of the written terms of the debentures. The trial judge properly referred the exception to the merits. C.C.P. Art. 929.

However, when this matter was tried on the merits, appellee went further than just adducing evidence as to “policy.” He testified as to assurances given to him by Morris that his request for early redemption would be honored. This latter testimony was admitted without objection and has the effect of enlarging the pleadings. It is this evidence that forms the basis for appellee’s contention of the existence of an oral contract.

The evidence clearly preponderates to the effect that there was in fact an oral agreement and we so hold.

The remaining question then is one of law. Does the existence of this oral agreement have the effect of altering or varying the terms of the instrument, i. e., the maturity dates. We hold that it does. The facts here presented are basically indistinguishable from those upon which the decisions in the Gulf States Finance Corp. and Goldsmith cases, above, are based.

We find no merit in appellant’s contention that Morris was without authority to enter into such an agreement. We are not dealing with an isolated incident. The directors were not given preferential treatment when their respective debentures were redeemed prior to maturity. The corporation needed the money and they, as well as appellee, were encouraged to purchase debentures under similar agreements. We think it ill behooves the present directors to argue that Morris had the authority to enter into such agreements with them but not with appellee. While Morris was not acting with formal corporate approval, he was certainly acting with the full knowledge, consent, approval and even participation of the individual directors.

We also find that appellant’s exception of appellee’s failure to join an indispensable party (GEC) was properly overruled by the trial judge. The debenture does contain language to the effect that it is subordinated to holders of “Superior Indebtedness” of appellant-corporation. However, there is no evidence in the record that the proceeds from the sale of these debentures was actually pledged to GEC or that GEC was in any manner a preferred creditor. To the contrary, GEC was not a party to the contract. The dispute in the instant matter is solely between appellee and appellant. Therefore, the basic issue remains the same. Is appellant bound by its oral agreement to redeem the subject debentures notwithstanding the written terms to the contrary. We hold that it is and for the same reasons given hereinabove with respect to the maturity dates.

Finally, we should note that these debentures were never offered to the general public. They were only sold to the directors and other persons closely associated with appellant. It is quite apparent that it was not the intention of appellant that the holders thereof or appellant would be bound by written terms. Appellant not only did not adhere to the written maturity dates but also paid interest in excess of that provided for in the debentures. All of this was done in an obvious attempt to encourage designated individuals to invest funds in the corporation.

For the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Grace Ingersoll SMITH v. William Bailey SMITH.
    No. 11790.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      Leroy H. Scott, Shreveport, of counsel for plaintiff-appellant Grace Ingersoll Smith.
    Robert L. Kleinpeter, Baton Rouge, of counsel for defendant-appellee William Bailey Smith.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff, Grace Ingersoll Smith,' appeals a judgment terminating all future alimony payments and denying her claim for attorney fees.

On December 26, 1976, plaintiff filed a rule against her former husband, the defendant herein, seeking accrual of past due alimony payments pursuant to a judgment rendered on October 17, 1958, ordering the defendant to pay alimony and child support at the rate of $500.00 per month. Plaintiff also sought to have defendant held in contempt and prayed for attorney fees. In response thereto the defendant answered seeking to have all future alimony payments terminated.

The family court judge rendered judgment accruing said past due and unpaid alimony in the amount of $62,500.00, and interest thereon was fixed at $26,142.00. The defendant was adjudged in contempt; plaintiff’s claim for attorney fees was denied; and, all future alimony payments were terminated, effective with the installment that came due on June 1, 1977.

Plaintiff appeals only those portions of the judgment denying her claim for attorney fees and terminating all future alimony payments. The defendant has not answered nor has he taken an appeal.

Plaintiff asserts the evidence does not support a finding that there was a change in the relative circumstances between the parties between the date of October 17, 1958, and the day of trial, May 5,1977, and, that there is no evidence from which it can even be reasonably inferred that alimony was no longer necessary. We cannot agree.

The record discloses that subsequent to the judgment of divorce, plaintiff became permanently employed as a school teacher with the Caddo Parish School Board; that she was still employed as such at the time of trial of the rule with full tenure and retirement benefits; that she and her sister live together in her sister’s home; and, that their son attained the age of majority in 1969 and that their daughter was married in 1970.

Defendant did therefore establish substantial changes in circumstances since the rendition of the judgment awarding alimony to plaintiff. In the absence of a showing that plaintiff had not sufficient means for her maintenance as of the trial of the rule, the trial court was correct in terminating all future alimony payments.

As to the claim for attorney fees, plaintiff contends she is entitled to such an award under the holding of Newson v. Newson, 176 La. 699, 146 So. 473 (1933) and/or Act 462 of the Third Regular Session of 1977 (La.R.S. 9:305).

There are only two Louisiana Supreme Court cases dealing with attorney fees in this type of case. The first is Newson, supra, wherein attorney fees were allowed for the prosecution of a child support claim against the father. The second and more recent case is Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950), wherein attorney fees were disallowed in a suit to recover accrued alimony and to increase the amount of future alimony.

The Second Circuit in Stanfield v. Stanfield, 342 So.2d 1195 (La.App.1977) and the Fourth Circuit in Stoltz v. Stoltz, 162 So.2d 103 (La.App.1964) have followed the Wainwright decision and refused to allow an award for attorney fees.

The Third Circuit is split and has followed Newson on two occasions and has followed Wainwright on two occasions.

We choose to follow the Wainwright decision because it is the latest expression of the Supreme Court on the subject and it is consistent with the long established rule that attorney fees are not ordinarily recoverable unless provided for by statute or by contract,

Act 462 of 1977 went into effect on September 9,1977. The attorney fees sought by plaintiff are for services performed long prior to the effective date of Act 462. Act 462 confers substantive rights, is not remedial in nature, and is not a statute governing procedure. We hold that Act 462 of 1977 cannot be applied retroactively and is not applicable to this case.

For these reasons the judgment of the Family Court is affirmed at plaintiffs cost.

AFFIRMED.

      . Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App.1975), and Baldwin v. Baldwin, 337 So.2d 245 (La.App.1976).

      . Janise v. Janise, 328 So.2d 711 (La.App.1976), and Champagne v. Champagne, 345 So.2d 229 (La.App.1977).


text:
    Helen Ann Butler ALMOND v. Pat William ALMOND.
    No. 11749.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Writ Refused June 30, 1978.

      David L. Dawson, Jr., Baton Rouge, for plaintiff-appellant.
    Joseph W. Cole, Jr., Port Allen, for defendant-appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

On November 7, 1973, defendant was ordered to pay the sum of $200.00 per month to plaintiff for the support of his two minor children. In June of 1976 one of the children reached the age of majority and defendant filed a petition and rule to reduce the amount of child support. At the same time he stopped paying $200.00 per month and began paying the sum of $100.00 per month for the support of the remaining minor child.

The rule to reduce child support was tried on December 23, 1976, and by judgment signed on January 6, 1977, but effective as of January 1, 1977, child support was reduced to the sum of $150.00 per month. No appeal was taken as to the judgment of January 6, 1977, but on April 22, 1977, plaintiff filed the instant rule seeking past due support in the sum of $700.00 representing the difference between the amount called for in the judgment of November 7, 1973, and the amount paid by defendant until the reduction took effect on January 1, 1977.

Plaintiff also seeks to recover attorney’s fees for having to bring the action to collect the past due support. On May 25, 1977, judgment was rendered dismissing the rule to affix arrearage. From that judgment, plaintiff filed this appeal and assigns as errors the failure of the trial court to grant her a judgment for such arrearage, and the failure of the trial court to award her reasonable attorney fees in connection with the rule nisi.

In the recent decision of Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), the Supreme Court held that reduction of or discharge from a judgment condemning one to pay alimony must be sued for by the party against whom the judgment was rendered and therefore the husband who is condemned to pay child support has no right to proportionately reduce the in globo award in favor of the children as they attain the age of majority. It was further held that the wife who is charged with the legal care, custody and control of the children of the marriage has the right to sue for past due support payments that accrue until the husband seeks a reduction thereof. Therein, the court stated:

“ . . . unless automatic reduction, modification or termination is provided for by operation of law, the award remains enforceable notwithstanding that a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction. Support for this rule is found in a proper regard for the integrity of judgments. Such a regard does not condone a practice which would allow those cast in judgment to invoke self-help and unilaterally relieve themselves of the obligation to comply. Any other rule of law would greatly impair the sanctity of judgments and the orderly processes of law. To condone such a practice would deprive the party, in whose favor the judgment has been rendered, of an opportunity to present countervailing evidence, and at the same time deny the judge an opportunity to review the award in light of the alleged mitigating cause which had developed since its rendition.”

On the basis of the Halcomb decision we find that the judgment of the trial court was in error. Since the judgment of January 6, 1977, reducing the defendant’s payments to $150.00 was not given retroactive effect to the time of the filing of the rule to reduce, plaintiff is entitled to recover the sums that are past due and owing under the judgment of November 7, 1973, until the effective date of the judgment of 1977, said sums amounting to $700.00.

With respect to the request for attorney’s fees this court has recently held that such are not allowable in suits for the collection of child support or alimony in arrears arising prior to the effective date of Act No. 462 of the Third Regular Session of the Legislature of 1977. Smith v. Smith, La.App., docket number 11,790, 357 So.2d 873. For this reason the same are denied herein.

For the above reasons the judgment of the trial court is reversed and judgment is hereby rendered in favor of Helen Ann Butler Almond and against Pat William Almond in the sum of $700.00, with legal interests thereon from date of judicial demand until paid and for all costs of these proceedings.

REVERSED AND RENDERED.


author: CHIASSON, Judge. BLANCHE, Judge,

text:
    WOMETCO COMMUNICATIONS, INC. v. Joseph L. LUTS et al.
    No. 11799.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.

      J. Harrison Henderson, III, Guste, Barnett & Shushan, New Orleans, William McM. King, Covington, for plaintiff-appellant.
    Wendell E. Tanner, Slidell, for defendants-appellees Joseph L. Luts and Larry E. Gunn.
    Philip C. Ciaccio and Richard A. Najolia, New Orleans, for defendant-appellee Ralph L. Agee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff, Wometco Communications, Inc. (Wometco), appeals a judgment dissolving the temporary restraining order and denying it a preliminary and permanent injunction. The defendants, Joseph L. Luts, Larry E. Gunn, Ralph L. Agee and Harry A. Bennett, have not answered nor have they appealed said judgment.

The facts giving rise to this suit are as follows:

On September 20, 1976, the sole owners of the capital stock of Slidell Cablevision, Inc. were Joseph Luts and Larry E. Gunn, who each owned fifty percent (50%) of the capital stock of the said corporation. On that date an offer for the purchase of their stock typed on Wometco stationary was received by the defendant, Mr. Gunn. This document was originally signed by Mr. John M. Lewis, President of Wometco, and subsequently signed by Mr. Luts and Mr. Gunn. However, prior to returning the document to Wometco, Provision 5 was amended in handwriting and initialed by Mr. Luts and Mr. Gunn to read: “The non-competition agreement shall be for St. Tammany Parish only.” This document was never returned to them nor was the acceptance of this amendment ever communicated to them. Instead, Wometco forwarded a somewhat longer and more detailed formal purchase agreement on October 1,1976, which included a consulting agreement and incorporated the change made on the September 20th document, but extending the term to five years. This document was unsigned by any Wometco representative.

Subsequently, on October 20, 1976, Mr. Luts and Mr. Gunn entered into an agreement with defendant, Mr. Ralph L. Agee, whereby they agreed to sell ninety percent (90%) of their stock to Mr. Agee for a total consideration of twelve thousand dollars ($12,000.00) to be paid in two payments of six thousand dollars ($6,000.00) each.

Thereafter, in a letter dated November 5, 1976, Mr. Luts and Mr. Gunn returned the formal purchase agreement of October 1, 1976, to Wometco unsigned by either of them.

The first payment was made by Mr. Agee to Mr. Luts and Mr. Gunn and ninety percent (90%) of the capital stock of Slidell Cablevision, Inc. was transferred to Mr. Agee on December 23, 1976, in accordance with their agreement of October 20, 1976.

Suit for specific performance on the basis of the documents of September 20th and October 1st was originally filed by Womet-co against Mr. Luts and Mr. Gunn on December 29, 1976. On January 17, 1977, plaintiffs filed a supplemental petition adding Ralph L. Agee as defendant, alleging that most of the stock had been transferred by the original defendants to Mr. Agee. Finally, on April 25, 1977, plaintiffs joined Harry Bennett as defendant, alleging that he had acquired an interest in the stock from Mr. Agee.

Plaintiffs assignments of error can be summarized as follows:

1. That the trial court erred in failing to find the document of September 20, 1976, a valid and enforceable contract of sale or in the alternative a valid and enforceable contract to sell entitling Wometco to specific performance;

2. That the trial court erred in failing to find Mr. Agee in bad faith, thereby entitling plaintiff to have the sale of the stock to Mr. Agee set aside.

Plaintiff asserts that on the basis of the document of September 20, 1976, a sale of the stock was perfected entitling it to specific performance.

Article 2439 of the Civil Code provides: “The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. “Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”
Article 2462 of the Civil Code provides: “A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.”

The letter of September 20th states:

“Dear Mr. Gunn:
This letter is to convey the offer of Wometco Communications, Inc. (‘Wom-etco’) to purchase 100% of the capital stock of Slidell Cablevision, Inc. (the ‘Company’).
We are willing to pay a total of $6,000 in cash at closing for all the outstanding capital stock of the Company subject to the following conditions: .
4. Within 45 days from the date hereof, Wometco and the stockholders of the Company shall enter into a formal purchase agreement containing terms and conditions necessary to protect the parties.”

From the wording of the document it is apparent that nothing more than an offer for the purchase of the said stock was conveyed, which, if validly accepted by the defendants would have obligated them to enter into a formal purchase agreement pursuant to provision four (4) for the trans-' fer of the stock. However, provision five (5) of the document further sets forth that Gunn and Luts were to enter into a consulting and non-competition agreement with Wometco for a period of three years. With respect to this provision the trial judge found that there was no mutuality of agreement between defendants Gunn and Luts and plaintiff. We are in agreement with this finding. The evidence establishes that the September 20th document was drafted by counsel for plaintiff and that the terms of the consulting and non-competition agreement were never set forth prior to termination of negotiations between the parties. Consequently, although Gunn and Luts seemingly accepted, as was evidenced by their signatures at the end of this document, they changed the terms of provision five (5) by printing in the words: “The non-competition agreement shall be for St. Tammany Parish only.” And this change was initialed by both defendants in the left margin of the page before the document was returned to Wometco by mail.

Article 1805 of the Civil Code provides in part: “The acceptance to form a contract must be made in all things conformable to the offer; . . . ” and Article 1806 further provides: “The modification or change of the proposition is, in all respects, considered as a new offer, and the party making it, is bound by the acceptance in the same manner as if the original proposition had been made by him.” Thus, under Louisiana Law, the initialed change made by the defendants was equivalent to a new offer or a counter-offer on their behalf, which required acceptance by the plaintiff for the perfection of a valid and binding contract. The evidence reveals that the document was never initialed by any representative of the plaintiff, Wometco. Thus, there was no express acceptance on plaintiff’s part.

Plaintiff asserts, however, that its assent to the modification of the acceptance was implied by its actions. Civil Code Article 1807 provides:

“When, however, from the circumstances of the case, the offer necessarily implies an assent to the modification of the acceptance, then the obligation is complete, although there be a difference in terms between the one and the other. . . ”

We cannot agree with this contention. Rather than simply initial provision five (5) of the September 20th document and return it to the defendants thus evidencing plaintiff’s acceptance, Mr. Lewis, Wometco’s president, chose to mail the formal purchase agreement which incorporated the change contemplated by the defendants in provision five (5) of the former document. Additionally, the latter document, which was mailed on October 1st, increased the duration of the non-competition and consulting agreement to five years. It was never signed by any Wometco representative nor was it signed by either of the defendants. Under these circumstances we are unable to conclude that plaintiff’s actions implied an assent to the defendants’ modification of the acceptance.

Further, there is creditable evidence of record which would justify the trial court’s finding that no verbal acceptance was ever made by plaintiff of the counter-offer made by defendants Luts and Gunn.

Plaintiff next asserts that provision five (5) of the September 20th document was a purely accidental provision which should not invalidate the contract in its entirety. Civil Code Article 1764(3) defines accidental stipulations as those “ . which belong neither to the essence nor the nature of the contract, but depend solely on the will of the parties. . . . ” This contention is untenable because paragraph two of the document conditions payment of the purchase price upon the fulfillment of provisions one (1) through five (5). Consequently, if provision five (5) is not met, the contract is invalid by its very terms. Since provision five (5) is one which is of the essence of the contract and not one which is dependent solely on the will of the parties, it is not an accidental stipulation within the meaning of Article 1764(3).

For the above-mentioned reasons we hold that the finding of the trial court, that there was no mutuality of agreement and, thus, no binding promise to sell under Civil Code Article 2462 and no binding contract of sale under Civil Code Article 2439, is correct.

Having concluded that plaintiff had no valid contract with defendants Gunn and Luts, we need not consider whether the defendant, Ralph Agee, was a good faith third party purchaser.

For the above and foregoing reasons the judgment of the trial court in favor of defendants, Joseph L. Luts, Larry E. Gunn, Ralph Agee, and Harry Bennett, and against plaintiff, Wometco Communications, Inc., dissolving the temporary restraining order and denying plaintiff’s claim for a preliminary and permanent injunction is hereby affirmed.

AFFIRMED.

BLANCHE, Judge,

dissenting.

In my opinion, the plaintiff Wometco and the defendants Luts and Gunn had an agreement for the purchase and sale of the capital stock of Slidell Cablevision on September 20,1976, as evidenced by the acceptance by Luts and Gunn of Wometco’s offer. After the acceptance of this offer, Luts and Gunn obtained a better offer from Ralph L. Agee and then refused to honor their previous agreement with Wometco.

Both the trial court and my colleagues allowed Luts and Gunn to slip out of their agreement on a technicality of their own making concerning the “non-competition” agreement. The majority is in error in assuming this minor change in the original offer amounted to a counter offer which required Wometco’s acceptance. The thing to be sold and the price to be paid therefor had been agreed upon, and the provision concerning the change in the non-competition agreement was at most an accidental stipulation. If not, the evidence shows that the same was accepted by Wometco by both word and action.

I respectfully dissent.


author: COVINGTON, Judge.

text:
    Ella Rae Falgout ADAMS v. Errol ADAMS.
    No. 11864.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Writ Refused June 30, 1978.

      John T. Pettigrew, Houma, for plaintiff and appellant.
    Sidney C. Sundberry, Houma, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

The plaintiff, Ella Rae Palgout Adams, sought a separation on the ground of abandonment, and custody of the only minor child, Kamala Marie Adams, and child support. Her husband, Errol Adams, reconvened for separation on the ground of cruel treatment and asked for custody .of the minor child. Subsequently, Errol Adams filed a second reconventional demand in which he alleged that his wife had engaged in a lesbian relationship with another woman, who was named at the trial, and again sought custody of Kamala Marie. In her answer, she denied such a relationship and also set up reconciliation as a defense.

Judgment was rendered in favor of Errol Adams granting his reconventional demand, awarding him separation from bed and board and awarding permanent custody of the minor child to him. The judgment dismissed the demands of Ella Rae Falgout Adams. Mrs. Adams has appealed.

The primary issues presented are whether the evidence supports the trial court’s evident finding that an adulterous lesbian relationship occurred on the dates indicated, thus constituting such cruel treatment as to entitle the husband to a legal separation, and whether or not a reconciliation took place between the parties to this action.

Like heterosexual adultery, the commission of acts of homosexual adultery, alleged as a ground for separation (or divorce), may be established by indirect or circumstantial evidence. When proof of heterosexual adultery is based solely on circumstantial evidence, the proof must be so convincing that it will exclude any other reasonable hypothesis but that the alleged act was committed. Hermes v. Hermes, 287 So.2d 789 (La.1973). We hold that the same degree of proof is necessary in the case where one party to a marriage is accused of having a homosexual relationship with someone other than his or her spouse.

The factual findings of the trial court, particularly where those findings are based on an evaluation of the credibility of witnesses, are entitled to great weight and will not be disturbed unless clearly erroneous. Lapeyrouse v. Lapeyrouse, 331 So.2d 69 (La.App. 1 Cir. 1976).

We find that the evidence in the case at bar supports the trial court’s factual conclusions. We find, as did the trial court, that the acts of adulterous lesbianism were committed by Mrs. Adams on the occasions alleged and proven.

There were several incidents, which need not be detailed, each of which could be said to be so convincing that any other reasonable hypothesis but that the alleged act was committed must be excluded. In addition, there was a tape and letters from the co-respondent to the wife which tend to corroborate the lesbian relationship.

Next, the wife contends that there was a reconciliation which was effected through October 16 and possibly up to October 21, 1977.

The trial judge concluded that sexual intercourse did not take place between the parties during this period of time. Our review of the evidence convinces us, as it did the trial judge, that the parties did not engage in sexual intercourse on these occasions, that the husband did not forgive his wife for her acts of infidelity, and that no reconciliation took place. Cade v. Cade, 351 So.2d 319 (La.App. 3 Cir. 1977).

The next issue to consider is the awarding of custody to the husband. We have repeatedly held that an appellate court should disturb the custody determination of the trial court only in the case of a clear abuse of its discretion. Jones v. Jones, 344 So.2d 414 (La.App. 1 Cir. 1977). Finding no such abuse of its discretion in the instant case, we concur in the award of custody to the husband.

There are several miscellaneous matters having to do with the admissibility of evidence, particularly the tape recording. We view this tape recording as having probative value for corroborative purposes and rule it admissible for this purpose.

We find the refusal of the trial judge to allow pretrial discovery of the investigative work of the husband’s investigator to be harmless error. There is ample evidence to support the factual conclusion of the trial court without considering this evidence at all.

For the foregoing reasons, we affirm at appellant’s costs.

AFFIRMED.

      . This language, once unnecessary, is used because of nondiscriminatory legislation, the import of which allows marriage between persons of the same sex, a relatively, new phenomenon in our society.


author: BLANCHE, Judge.

text:
    MARTIN LEBRETON INSURANCE AGENCY v. Mrs. Sara Phillips, wife of and Lewis Ray LAMASTUS, Metro, Inc., and Lucy Reid Rausch, Clerk of Court.
    No. 11869.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.

      Edmond T. Wegener, Jr., New Orleans, for plaintiff-appellant.
    Conrad Meyer, III, New Orleans, Julian J. Rodrigue, Covington, for defendant-ap-pellee, Metro, Inc.
    Robert T. Hughes, New Orleans, for defendants-appellees Sara Phillips Lamastus, and Ray Lewis Lamastus.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff, Martin Lebreton Insurance Agency, is appealing a judgment of the trial court dismissing its action to set aside a dation en paiement made by Mr. and Mrs. Lewis Ray Lamastus to Metro, Inc.

On February 11, 1977, Mr. Lamastus executed a promissory note for $30,000 secured by a collateral mortgage on property in St. Tammany Parish for insurance premiums due Martin Lebreton Insurance Agency. The mortgage was not recorded until March 24, 1977. Between the time of the execution of the note and collateral mortgage and the recording of the mortgage, Mr. and Mrs. Lamastus, on February 24, 1977, made a dation en paiement of this same St. Tammany Parish property to Metro, Inc., for a stated consideration of $257,442.52.

The plaintiff subsequently filed this revo-catory action to set aside the dation en paiement on the grounds that the transfer was in prejudice of his rights as a creditor in contravention of LSA-C.C. art. 2658, and that it should be revoked in accordance with LSA-C.C. art. 1970. In this regard plaintiff alleges that the property given in payment was worth more than the consideration of $257,442.52 recited in the dation.

The trial judge factually found that the debtors, Lewis Ray Lamastus and his wife, were not insolvent.

Our consideration of this appeal is limited solely to the issue of whether plaintiff successfully discharged the burden of proof required in a revocatory action.

LSA-C.C. art. 2658 prohibits the giving in payment by an insolvent debtor. It further prohibits giving in payment to one creditor to the prejudice of others. The jurisprudence has required proof of both insolvency and prejudice. Harman v. Defatta, 182 La. 463, 162 So. 44 (1935); Deposit Guaranty National Bank v. Shipp, 232 So.2d 810 (La.App. 2nd Cir. 1970).

With regard to the insolvency of the debtors, we find that the trial judge was manifestly erroneous in concluding that Lewis Ray Lamastus and his wife were not insolvent. It appears from the record that the value of their only asset was $303,500 and that their debts, either by their own admission or as found by the trial judge, substantially exceeded their assets.

As noted by Judge Dixon, now Justice Dixon, in Deposit Guaranty National Bank v. Shipp, prejudice to the creditor is as necessary an ingredient in a revocatory action as the insolvency of the debtor.

With regard to the question of whether prejudice resulted to plaintiff, our review of the evidence reveals the following. In addition to the $257,442.52 which Mr. and Mrs. Lamastus owed Metro, Inc. (consisting of $199,859, with $57,442.53 of interest, costs and attorney’s fees), it was documented in a •mortgage certificate offered in evidence as Defendant Exhibit No. 10 that mortgages inferior to those of Metro, Inc., included a principal indebtedness of $52,843.31 plus $3,364.16 in attorney’s fees for a total of $56,207.47. Thus, the' preferred claims plus the debt discharged by the dation would be far in excess of the value of Lamastus’ asset of $303,500, namely for the value of the Saray Beach Marina.

It is obvious, therefore, that the plaintiff could not be prejudiced by the dation, even if the property were the object of a forced sale by executory process, because the claims of these creditors primed that of plaintiff to such an extent that their satisfaction would leave nothing available to apply against its debt.

“ * * * The rule that the property of the debtor is the common pledge of his creditors is qualified in C.C. 3183 by the clause ‘unless there exist among the creditors some lawful causes of preference.’ ” (Deposit Guaranty National Bank v. Shipp, 232 So.2d 810, 812)

For these reasons, the judgment of the trial court is affirmed, at plaintiff-appellant’s costs.

AFFIRMED.

      . LSA-C.C. art. 2658 provides:
      “This difference gives rise to another in the effect of these contracts, in cases of the insolvency of the debtor. He may, although insolvent, lawfully sell for the price which is paid to him; but the law forbids to give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due.”

      . LSA-C.C. art. 1970 provides:
      “The law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors where there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.”


text:
    Michael X. ST. MARTIN, as Administrator of the Estate of the Minor Child, Steven Paul St. Martin v. MARYLAND CASUALTY COMPANY and Marcel J. Rayne.
    No. 11880.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Writ Refused June 9,1978.

      Danny J. Lirette, Houma, for plaintiff and appellee.
    Ronald L. Menville, Ted J. Borowski, Houma, for defendants and appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

The defendants, Maryland Casualty Company and Marcel J. Rayne, have taken a suspensive appeal from a judgment against them and in favor of plaintiff, Michael X. St. Martin, etc., in the amount of $65,835.00 for personal injuries sustained by plaintiff’s minor son, Steven Paul St. Martin, and for. medical expenses incurred, as a result of dog bites to the head, neck and face of Steven from defendant Rayne’s German Shepard dog.

The facts giving rise to this case are as follows:

On the evening of October 14, 1975, plaintiff’s wife Mrs. Mary Virginia Rayne St. Martin, went to the home of her parents, Mr. and Mrs. Rayne, accompanied by her sons, Michael, Jr., Christopher, and Steven, then ages twelve, seven, and five, respectively, for the purpose of feeding Mr. and Mrs. Rayne’s German Shepard dog, Toby, while they were on vacation. The dog was kept in the yard, enclosed by a four and one-half foot high hurricane fence. The Raynes customarily requested the St. Martins to feed their dog whenever they were away from home and the children usually played with the dog in the yard by making him fetch one of his toys. They had done this on previous occasions in the presence of Mr. Rayne who is their grandfather. Their previous visits had all been without incident and the dog had never displayed dangerous or vicious tendencies. On this occasion, upon arriving at his grandparents’ home, young Steven commenced playing fetch with the dog, as his mother watched from outside the fence. While his older brother Michael, Jr. was inside the house looking for dog food, the dog suddenly and without warning, jumped on Steven, knocked him down, and began to bite him. At that moment Michael, Jr. came from the house into the yard and pushed the dog away. By the time Mrs. St. Martin was able to reach Steven the dog had been successfully repelled by Michael, Jr. Steven suffered severe lacerations about the head, neck and face.

In finding defendants liable the trial court followed the rule of Holland v. Buckley, 305 So.2d 113 (La.1974), wherein the Supreme Court stated:

“When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”

With respect to quantum the trial court awarded plaintiff $60,000.00 for Steven’s past, present and future physical and mental pain and suffering and permanent disfigurement and embarrassment; $2,325.00 for past medical bills; and $3,510.00 for future medical expenses.

Plaintiff has not answered nor has he appealed.

The defendants-appellants make the following assignment of errors:

1. “The Court misapplied the rules of Holland Vs. Buckley, 305 So.2nd 113.
2. “The Court failed to recognize an intervening eause-in-fact without which the incident would not have occurred.
3. “The award of $60,000.00 for past, present and future physical and mental pain and suffering, permanent disfigurement and embarrassment is grossly excessive and so disproportionate with respect to awards for similar personal injuries in Louisiana as to be beyond the discretion of the trial judge.
4. “The Court erroneously awarded damages for past, present and future psychological effects of the injury even though such damages were not sought in plaintiff’s petition and no evidence was offered to substantiate such damages.
5. “The Court reached conclusions regarding future disfigurement and future pain which are not supported by the evidence.”

Defendants contend that under Holland v. Buckley, supra, the acts and omissions of Steven’s mother, Mrs. St. Martin, in bringing him to the dog yard during the dog’s feeding time and allowing him to enter the dog yard even though she had been warned by her father not to do so, constituted fault of a third person sufficient to exonerate defendants from liability. We cannot agree. The record discloses that on this occasion Mr. and Mrs. Rayne specifically requested that their daughter, Mrs. St. Martin, feed their dog while they were to be away from home. Consequently, Mrs. St. Martin was acting as an agent of her parents in allowing her son to enter the dog yard. Therefore, it cannot be contended that the harm was caused by the fault of a third person for whom the owners, Mr. and Mrs. Rayne, were not responsible. Furthermore, there has been no showing that the harm was caused by the victim, Steven Paul St. Martin, or that the harm was caused by a fortuitous event. Therefore, defendants have failed to show that they fall within one of the exceptions to the owner’s presumption of fault within the guidelines of the Holland ease.

Defendants next contend that the damages award for pain and suffering, permanent disfigurement and embarrassment is grossly excessive and disproportionate with respect to awards for similar personal injuries as to be beyond the discretion of the trial court.

“The trier of fact is granted much discretion in the award of general damages, i. e., those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style which cannot really be measured definitely in terms of money. Civil Code Article 1934(3) .” Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.” Anderson v. Welding Testing Laboratory, Inc., supra; Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

“The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.” Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, 302 So.2d 278 (La.1974).

Defendants urge the case of Adkins v. Fireman’s Fund Insurance Company, 313 So.2d 328 (La.App. 1st Cir. 1975), in support of their position. Therein a four year old boy was attacked by a Weimaraner and bitten about the face. The court awarded $5,000.00 for pain and suffering and disfigurement. Notwithstanding the similarity of Adkins to the instant case the trial judge chose to follow Miller v. Thomas, supra, wherein the Supreme Court reinstated the trial court’s award of $60,000.00 in general damages for facial injuries to a seventeen year old female majoring in physical education. That award had previously been reduced by the court of appeal on the basis of other similar cases in the jurisprudence. In Reasons for Judgment the trial judge in the instant case stated:

“I find that although he has suffered more lacerations and greater pain and suffering and medical treatment and costs than that suffered by the young lady in the case of Miller v. Thomas, . I feel that the adverse psychological affect of permanent scars to the young lady in the Miller case would be slightly greater than that which will be suffered by Steven Paul St. Martin. That where he would be entitled to more for pain and suffering than Miss Miller he would be entitled to less for the damages caused to his anxiety and adverse psychological affect, embarrassment and discomfort.”

Unlike the circumstances of the Adkins case the injuries sustained by Steven in this case were severe in comparison. After the attack Steven bled a great deal. His eyelid was cut through to the eyeball, and his face had a deep gouge across the nose almost to the point where the bone was visible. He was not given sedatives for pain until he was brought to surgery at Oschner Foundation Hospital in New Orleans, a trip which was approximately fifty-five miles from Houma to New Orleans. He was put under anesthesia at 10:15 P.M. and surgery began at 10:40 P.M. Surgery was completed at 1:25 A.M. the following morning. The child received approximately three hundred sutures in the face. Approximately five days later the sutures were removed under anesthesia. Upon returning home he was required to remain quiet for several weeks thereafter. Besides one jagged and obvious scar which commences on the bridge of his nose next to his right eye then proceeds across the left side of his nose towards his left cheek bone and terminates out on the left cheek at a point approximately parallel with the lower portion of his nose, there are other scars on his face, chin and neck.

The deposition of Dr. Duncan M. McKee, Steven’s plastic surgeon, established that future operations for the purpose of reducing these scars will only be successful to the extent of 50-60% improvement.

Accordingly, we do not find that the trial judge abused the “much discretion” accorded to him under the law in the assessment of general damages in light of the facts and circumstances peculiar to this case.

With respect to the defendants’ forth assignment of errors we find that the scope of the pleadings were enlarged by the testimony given at trial without objection and that there was sufficient credible evidence of record to support an award of damages on the basis of Steven’s past, present and future mental pain and suffering and embarrassment. C.C.P. Article 1154.

Likewise the award for future disfigurement and future pain was also supported by the evidence. The scarring is permanent and the testimony of Dr. McKee established that all patients who have facial deformity experience some degree of emotional trauma.

For the above reasons the judgment of the trial court is affirmed at defendants-appellants’ cost.

AFFIRMED.

BLANCHE, Judge,

dissenting.

Question:

“* * * When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog, who created the risk by letting the dog go loose?”

Answer: The dog owner. Holland v. Buckley, 305 So.2d 113, 114 (La.1974).

Our case is not like the Buckley case. Young Steven was not an innocent bystander. He was permitted by his mother to play with the dog in the fenced-in yard. The dog was not running loose but was in a yard where he was supposed to be. The owner did not create the risk when he asked his daughter to go and feed his dog. It was the mother who created the risk when she permitted her son to play with the dog in the dog yard. It accords with more reason to find that young Steven’s mother, under these circumstances, assumed a risk of the dog’s first bite. If neither the mother nor the owner knew the dog had such vicious propensities, the blame ought to be placed on the one who created the risk by exposing the child to the dog. In this case, it was the mother.

I further dissent on the grounds that the amount of the award is grossly excessive. Young Steven was offered in evidence and viewed by this Court, and the minimal nature of the scarring makes such an award an injustice. There is no permanent disability as a result of this unfortunate incident. There is no evidence to support an award for psychological damages. The testimony of the plastic surgeon indicates that he was of the opinion that after scar revision they would not be very visible at all and would be very fine scars. Resort to quantum in other cases is an exercise in futility because it is inconceivable that this young boy was damaged to the extent found by the trial judge. The evidence surrounding his injury is no more than this. He was severely bitten about the face in a savage attack by a large dog. It was a frightening experience. There were no permanent injuries, and the scarring at the time this Court viewed the child was minimal. By the wildest stretch of the imagination, the upper limits of the trial judge’s discretion could not be more than $15,000.


text:
    P. A. C. T. BARGE COMPANY v. BAYOU CONSTRUCTION OF HOUMA, INC.
    No. 11902.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.

      Gerald F. Lofaso, Houma, for plaintiffs and appellants.
    L. Milton Cancienne, Jr., Houma, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, P.A.C.T. Barge Company, is appealing a judgment dismissing its claim for damages against defendant-appel-lee, Bayou Construction of Houma, Inc., and awarding Bayou a judgment of $4,422 in reeonvention.

The claim in the main demand and the reconventional demand arose out of the lease of a barge by Bayou from P.A.C.T. The barge sank on the second day defendant used it and for two days it was necessary to maintain a pump watch, which consisted of personnel manning pumps while the barge was being used. Bayou leased the barge on January 4, 1976, and returned it on March 28, 1976. The lease rate was $65 per day. P.A.C.T. asked for $8,290.65 in repairs and $7,670 for 118 days of lost rental due to the time the barge was being repaired. In reconvention, Bayou asked for $4,422 as damages for resulting expenses of the pump watch and of the unproductive time of men and equipment standing by while the leased barge was pumped out as a result of its leaking condition.

On appeal, P.A.C.T. argues that it was Bayou’s duty to deliver the barge to them in the same state and condition in which it was at the time Bayou took possession, and because no inventory had been made when the barge was delivered, Bayou was presumed to have received it in good order. P.A.C.T. relies on LSA-C.C. arts. 2719-2721, which provide:

“Art. 2719. If an inventory has been made of the premises in which the situation, at the time of the lease, has been stated, it shall be the duty of the lessee to deliver back everything in the same state in which it was when taken possession of by him, making, however, the necessary allowance for wear and tear and for unavoidable accidents.”
“Art. 2720. If no inventory has been made, the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exceptions contained in the preceding article.”
“Art. 2721. The lessee is only liable for the injuries and losses sustained through his own fault.”

The presumption referred to in Article 2720 which is raised by the failure to inventory is a rebuttable one. We believe, as did the trial judge, that it was successfully rebutted by evidence to the contrary. As a matter of fact, the barge “B-l” had a sinking spell on the Superior Oil job just prior to its use by Bayou. With reference to its condition, the trial judge observed:

“ * * * [T]he court finds that the preponderance of evidence proves that the barge rented by P.A.C.T. Barge Company to Bayou Construction Company of Houma, Inc. was an old barge, worn and damaged over many years of use and exposure to the elements, with holes in the deck, with holes above the waterline but in an area which goes below water when fully loaded within its normal full capacity; that, because of its state of disrepair and the condition mentioned it had sunk on its location on a previous rental at Superior Oil Company premises; that no repairs were made to it by P.A. C.T. Barge Company after said barge came off the Superior location which would prevent recurrence of its sinking.
“On the point of the condition of the barge when received by defendant, the testimony of its witnesses is believable, especially the testimony of Mr. Crochet on the subject. Mr. Crochet was an impartial witness. The photographs clearly show an old barge, the damages to which are the result of many years of use, wear and deterioration from the elements and use. Its condition is not the result of a single recent event.” (Written Reasons for Judgment, Record, pp. 42, 43)

The record supports the finding that Bayou returned the barge to P.A.C.T. in as good a condition as when it was received. Accordingly, we affirm the trial court’s dismissal of plaintiff’s claim for damages.

We next turn our attention to Bayou’s reconventional demand. The evidence supports the finding that holes in the deck and above the water line caused the barge to sink when it was loaded, thus occasioning delay in Bayou’s operation and additional expense. However, P.A.C.T. argues that the lessee may not recover from the lessor unless he first notifies the lessor of the vices in the thing leased and calls upon him to make repairs, citing LSA-C.C. art. 2694 and Brignac v. Boisdore, 288 So.2d 31 (La.1973).

However, we find these authorities inapplicable because Bayou does not seek recovery of sums expended for repairs. Bayou seeks damages for expenses in pumping out the barge and resulting expenses for men and equipment standing idle while the barge was being pumped.

For the foregoing reasons, the judgment of the trial court is affirmed, at plaintiff’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Varis BARENIS v. Joseph GERACE, the Administrator, Department of Employment Security, a Division of the Department of Labor of the State of Louisiana, and Louisiana Public Employees Council No. 17, American Federation of State, County and Municipal Employees, AFL-CIO, et al.
    No. 11861.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 2, 1978.
    Writ Refused June 30, 1978.
    Lewis 0. Unglesby, Baton Rouge, of counsel for plaintiff-appellant Varis Baren-is.
    James A. Piper, Baton Rouge, Mary E. Howell, New Orleans, of counsel for defendants-appellees Joseph R. Gerace, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal from a judgment of the district court which sustained defendants’ exceptions of lack of jurisdiction over the subject matter and no cause of action, and dismissed plaintiff’s suit.

Plaintiff, Varis Barenis, an employee of the Department of Employment Security, brought this suit styled as a “Suit for In-forcement of Contract” against the appropriate appointing authority and the labor union representing employees in the Department, seeking to obtain a promotion to Personnel Technician IV with back pay from December 12, 1976. Plaintiff alleges that he is entitled to the promotion by virtue of the terms of the union contract, in particular Article IX thereof, which provides for promotions to be made by seniority from the three highest scoring candidates who took the civil service examination. Plaintiff further alleges that he was among the top three applicants and that he was the applicant with the most seniority.

Defendants filed exceptions of lack of jurisdiction, no cause of action and nonjoin-der of an indispensible party. Defendants argue that this suit involves a matter which is in the exclusive jurisdiction of the Civil Service Commission.

The district court sustained the exceptions of lack of jurisdiction and no cause of action, finding: that the union agreement was invalid as a violation of Art. X, Sec. 10(A)(3) of the Constitution; that the matter was governed by civil service regulations; and that it had no jurisdiction.

The pertinent statutory provisions necessary for a resolution of this case are contained in Art. X of the Louisiana Constitution of 1974. Art. X, Sec. 10(A)(1) grants broad rule-making powers for the administration and regulation of the classified service to the Civil' Service Commission. Included among these powers is the authority to adopt rules for regulating employment, promotion, demotion, and other personnel matters and transactions. Art. X, Sec. 8 establishes a right of appeal for permanent status employees “to the appropriate commission.” Art. X, Sec. 10(B) empowers the commissions with investigatory powers. And finally, Art. X, Sec. 12 states that each commission shall have exclusive jurisdiction in removal and disciplinary cases.

In the instant case, plaintiff has attempted to circumvent the jurisdiction of the Civil Service Commission by styling his suit as an ordinary civil suit ex contractu.

However, the nature of a suit is not governed by the title affixed to the petition.

The subject matter of this suit falls peculiarly within the province of the Civil Service Commission and lies within their exclusive jurisdiction. La.Const. Art. X; Raborn v. Louisiana Health and Human Resources Administration, 349 So.2d 903 (La.App. 1st Cir. 1977). See also Slicho v. City of New Orleans, 235 La. 305, 103 So.2d 454 (1958); Peete v. Scheib, 156 So.2d 280 (La.App. 4th Cir. 1963).

Having found that the district court lacked jurisdiction over the subject matter, we hold that it was not necessary to consider the validity of the union agreement.

Accordingly, for the reasons assigned herein, the judgment of the trial court dismissing plaintiff’s suit is affirmed, at plaintiff’s cost.

AFFIRMED.

      . This procedure differs from the basic civil service regulation which permits the appointing authority to choose among the three highest scoring applicants.


author: PONDER, Judge.

text:
    In re Mr. and Mrs. Henry MARTIN Applying for Adoption of the minor child, Lance LeBouef.
    No. 11890.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Ralph D. Hillman, Thibodaux, for plaintiff and appellant.
    Michael J. Scurto, Houma, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an appeal from the denial of an application for an interlocutory decree of adoption.

The issue is the necessity of the approval of the natural father of an informally acknowledged illegitimate. The lower court held such consent was necessary. We reverse and remand.

The natural parents, though unmarried, lived together for eighteen years. When Lance LeBouef, the subject of these proceedings, was born, the father’s name was listed on the birth certificate but he did not sign it. When Lance was about seventeen months old, the father’s mother took him into her home. After the father’s sister, Brenda, married Henry Martin, they moved in with Mrs. LeBouef. Lance has therefore been in the home with the one proposed adoptive parent for about 16 years and with the other about 12. Thinking the natural parents married, counsel for the Martins had an attorney appointed to represent the father, who is working overseas. The father received notification but did not respond. When Mr. and Mrs. Martin found out that the natural parents had not been married, they proceeded with the petition on the grounds that they had the consent of the mother and that the consent of the father was not necessary.

Finding that the father’s name was listed on the birth certificate, evidently without objection on his part, that the natural parents were living together at the time of the child’s birth, that Mr. LeBouef had admitted the child to be his, the lower court held that the father’s consent was required and dismissed the petition for an interlocutory decree.

Louisiana Civil Code Art. 203 requires the acknowledgment of an illegitimate to be by declaration before a notary public and two witnesses unless it shall “have been made in the registering of the birth or baptism of said child.”

Although the natural father’s name was given on the birth certificate, there is no contention that he signed it. The lower court alludes to the fact that he did not contest his name being entered. However, we believe this to be insufficient; the code speaks in terms of the acknowledgment being made in the “registering of the birth”. It is difficult to equate the entering of the name plus the failure to protest under circumstances not made clear with an acknowledgment. See Allen v. Anderson, 55 So.2d 596 (Orl., La.App.1951).

None of the statutes on adoption expressly requires the consent of the father of an unacknowledged or informally acknowledged illegitimate. While the case was concerned with another point, in Moreland v. Craft, 244 So.2d 37 (La.App. 3rd Cir., 1971), writ refused 258 La. 348, 246 So.2d 197 (1971), the consent of the father was evidently not required. Lange v. Cole, 289 So.2d 304 (La.App. 1st Cir., 1971), expressly held that the consent of the father of an illegitimate not acknowledged under Civil Code Art. 203 was not required.

We get some additional support for our position from the terms of La.R.S. 9:431 that speaks of the withdrawal of consent by the parent who has acknowledged the child under C.C. 203. The surrender of an illegitimate not formally acknowledged or legitimated by the father does not require the consent of the father. LSA-R.S. 9:404. See Golz v. Children’s Bureau of New Orleans, Inc., La., 326 So.2d 865 (1976).

The decision is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    Nancy J. SACHNOWITZ, as natural tutrix of Nancy Katherine Nelson, Anne Schreiner Nelson and Strauder Goff Nelson, III v. Carolyn Moffitt Henderson NELSON and Fidelity National Bank of Baton Rouge.
    No. 11894.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 2, 1978.

      Frank M. Coates, Jr., Baton Rouge, of counsel for plaintiff-appellee Nancy J. Sachnowitz.
    Victor A. Sachse, Jr., Baton Rouge, of counsel for defendant-appellant Fidelity National Bank Building.
    Charles H. Dameron, Baton Rouge, of counsel for defendant-appellant Carolyn Moffitt Henderson Nelson.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by Nancy J. Sachnowitz, natural tutrix of Nancy Katherine Nelson, Anne Schreiner Nelson and Strauder Goff Nelson, III, forced heirs of Strauder Goff Nelson, Jr., against the legatee, Carolyn Moffitt Henderson Nelson and the Fidelity National Bank of Baton Rouge (Fidelity), trustee, for the partial termination of a trust. From a judgment concluding that the trust was terminated to the extent of two-thirds as of July 15,1974, and assessing Fidelity for all costs, Fidelity has appealed.

The record points out that Strauder G. Nelson, the father of Strauder Goff Nelson, Jr., died on July 26, 1972, domiciled in San Antonio, Texas, and leaving property in both Louisiana and Texas. He was survived by three children. That portion of his estate bequeath to Strauder Nelson, Jr. both in Texas and in Louisiana was left in trust, with Strauder Nelson, Jr. being the income beneficiary of the Texas trust of all income remaining after the payment of charges and expenses incurred in the administration of the trust as well as the establishment of a reserve payable quarterly or other convenient installments. Fidelity is the trustee of the Louisiana trust and was to hold the property for ten years and to cumulate the funds except for $300.00 to be distributed to Strauder Nelson, Jr.

Strauder Nelson, Jr. died on July 15, 1974, and plaintiff contends that pursuant to LSA-R.S. 9:1832 and 9:1841(3) the Louisiana trust of that portion of the property constituting the legitime of Strauder Nelson, Jr. terminated on his death and an undivided two-thirds of said trust property became free of all restrictions of the trust instrument creating such trust.

Fidelity argues that the legitime of Strauder Nelson, Jr. was satisfied by the bequest of an income interest in property outside of Louisiana held in trust for him for life.

The trial judge concluded that since the only interest acquired by Strauder Nelson, Jr. in the Texas trust was that of an income beneficiary, under LSA-R.S. 9:1845, his leg-itime was satisfied to the same extent as that of a usufruct, and thus an undivided two-thirds of the trust terminated and became free of all restrictions.

The question before the court is whether an income interest in a Texas trust can satisfy the rights of a nonresident forced heir under Louisiana law?

We hold it cannot.

The determination of Strauder G. Nelson, Jr.’s forced portion as an heir of his father is computed by the value of the property located in Louisiana only, however, the total bequest to Strauder Nelson, Jr., wherever located, can satisfy the amount of the forced portion. Jarel v. Moon’s Succession, 190 So. 867 (La.App. 2nd Cir. 1939). Thus, if the legitime of Strau-der Nelson, Jr. held in trust by Fidelity was not satisfied by any bequest outside of Louisiana, the trust must fall under the provisions of LSA-R.S. 9:1832 and 9:1841(3).

The only bequest "to Strauder Nelson, Jr. outside of Louisiana was in a Texas trust, wherein he was only an income beneficiary.

LSA-R.S. 9:1845 provides that “an unconditional income interest in the trust, without an interest in principal, payable not less than annually for a term or for the life of the beneficiary satisfies the legitime to the same extent as would a usufruct of the same property for the same time period”. Thus, we must conclude that by the adoption of this section, the legislature has determined that an income interest in trust is synonymous with a usufruct as far as the satisfaction of the legitime is concerned.

Since a usufruct cannot satisfy the legitime, Succession of Williams, 184 So.2d 70 (La.App. 4th Cir. 1966) writ refused, 250 La. 748, 199 So.2d 183 (1967), neither can an unconditional income interest in a trust, irrespective of where the trust may be located.

Fidelity further argues the trial judge erred in assessing it for all costs citing LSA-R.S. 9:2091.

LSA-C.C.P. art. 1920 allows the trial judge to assess costs against either party as he may consider equitable. We find no abuse of discretion.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Defendant, Carolyn Moffitt Henderson Nelson, adopted the position of the plaintiff and has not appealed.


text:
    W. E. PELTIER, Jr. v. DEPARTMENT OF HIGHWAYS of the State of Louisiana and Dixie Carriers, Inc. Antoine LUKE v. DEPARTMENT OF HIGHWAYS of the State of Louisiana and Dixie Carriers, Inc.
    Nos. 11897, 11898.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearings Denied May 2, 1978.
    John E. Conery, Franklin, for plaintiffs-appellees.
    John W. King and Chas. W. Roberts, Baton Rouge, for defendant-appellant.
    Donald R. Abaunza, New Orleans, for Dixie Carriers.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

The Highway Department appealed from a judgment in favor of two sugar cane farmers for increased costs of harvesting and loss of crop after an accident to a bridge caused at first temporary closure of the bridge and then decreased load limits.

The issues are:

(1) Validity of exceptions of no cause and no right of action;

(2) scope of protection of duty of the Highway Department; and

(3) quantum.

We reverse and render.

On November 14, 1973, the Bayou Sale drawbridge operated by defendant over the Intercoastal waterway was damaged when hit by a vessel owned by Dixie Carriers, Inc. The trial judge found that the bridge tender was negligent because of his failure to raise the bridge and to warn the vessel of this failure in time to avoid the collision. The negligence of the vessel was not considered because of compromise prior to trial.

This incident occurred during the sugar cane harvest season. The plaintiffs are sugar cane farmers on the south side of the waterway. The drawbridge was a major route for them to transport the cane to the mill. The bridge was out of use for 12 days and subject to a 30 ton load limit when reopened. Mr. Peltier alleged that the hauler he was depending upon to carry his cane would not allow its trucks to cross the bridge at all. There is evidence that partial loads of sugar cane did cross the bridge under this 30 ton limit.

The Highway Department first contends that the petition fails to state a claim on which relief can be granted since the damages claimed were general to all the users of the bridge rather than special to these plaintiffs and should be considered “dam-num absque injuria”. This exception states, in another form, the major issue on appeal. We shall consider the first two issues together.

Plaintiffs rely heavily, as did the trial judge, upon Pharr v. Morgan’s L. & P. R. & S. S. Co., 115 La. 138, 38 So. 943 (1905). Recovery was allowed for the increased costs of plaintiff’s sugar cane farming operation due to the obstruction of navigation by a railroad’s negligent damage to its drawbridge and deliberate closure of all navigation for a lengthy rebuilding. The scope of defendant’s duty was considered under proximate cause language. The Supreme Court held that the scope of the duty of defendant not to block navigation included the risk of causing others increased operating costs. The policy that the private railroad company had no right to block navigation of the waterway to continue its own profitable business at the expense of other private users of the waterway was clearly stated.

There are a number of distinguishing features between the Pharr case and the one presented to us. In the older case, a railroad company after causing damage to its drawbridge deliberately closed all navigation to the public in order to continue its own private profitable business during repairs. Here the Highway Department after suffering damage to the bridge maintained by it for public use expedited the temporary repairs so that passage could be resumed as soon as possible on a basis no more restricted than was required for the safety of life and property. The permanent repairs were performed as soon as possible.

We prefer, however, to analyze the cases on the duty-risk ambit principles of Hill v. Lundin & Associates, 260 La. 542, 256 So.2d 620 (1972) and other similar cases.

In the Pharr case, the defendant had the duty to avoid damage to its drawbridge and not to close deliberately all navigation on the river for its benefit. It breached this duty and caused damages to the plaintiff. The ambit of this duty covered the risk of increased cost of transportation resulting from the total obstruction.

In the instant case, the Highway Department owed a duty to operate and maintain the drawbridge so as to allow the public to travel across the bridge. It breached this duty and caused damages to the plaintiffs among others.

However, it is not every injury resulting from negligence, though causally connected and foreseeable, that will be re-dressable. As the Supreme Court said in Hill v. Lundin & Associates, supra, quoting from an article by Professor Wex Malone, stated:

“ ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exists for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises . . . ’ ”

Even though the risk of harm may be foreseeable or easily associated with the duty imposed upon the Highway Department, we find this duty does not include the risk of the increased costs of operation claimed by the plaintiffs. To hold the Highway Department to such a duty would reduce its ability to perform the necessary governmental function of providing adequate means of transportation to the general traveling public in favor of providing the most advantageous means for private business to reduce its costs. This cost of operations is a risk that should be borne by those engaging in commerce rather than by the entire tax paying public. We can hardly imagine a business today that could not show an increased cost of doing business because of some instance of negligence or the exercise of judgment on the part of the Highway Department in its overseeing and operating the State’s highways.

Admittedly, there is considerable range of judgment in the determination of the scope of protection from loss resulting from a breach of duty in cases such as this. Admittedly, there will be frequent differences of opinion in the courts and in the legislature. Nevertheless, the courts will have to attack those problems on a case to case basis as has often been pointed out.

In finding that the scope of protection of defendant’s duty does not extend to these plaintiffs we do not reach the issue of the damages.

For these reasons the judgments of the trial court in favor of Mr. Antoine Luke and Mr. W. E. Peltier and against the Highway Department are reversed; these claims are dismissed with prejudice. All costs of these appeals are taxed to the plaintiffs.

DOCKET NO. 11,897 — REVERSED AND DISMISSED.

DOCKET NO. 11,898 — REVERSED AND DISMISSED.

      . The trial judge stated in his written reasons: “This court reaches its decision on the rationale of the Pharr case.”

      . The court in Pharr, supra, stated:
      “We cannot concur in the proposition that a railroad company has the legal right to close a river to navigation for three months or more, for the purpose of repairing a bridge broken by its own negligence, or of facilitating its own business. The right of the public in a navigable stream is at least equal to the right "of the railroad to cross the same, and this right to cross is subject to the condition that its bridge be so constructed and maintained as not to unnecessarily interrupt navigation.”


author: WATSON, Judge.

text:
    Fausta Cecile DEVALL, Plaintiff-Appellee, v. Claude Pierson DEVALL, Defendant-Appellant.
    No. 6535.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 1978.
    Writ Granted May 12, 1978.

      Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, for defendant-appellant.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

MOTION TO DISMISS

A rule was issued, ex proprio motu, to show cause why defendant-appellant’s appeal in this matter should not be dismissed due to failure to timely file an appeal bond. The defendant-appellant has answered the rule.

On November 15, 1977, the trial court signed a judgment in favor of appellant, decreeing a legal separation from bed and board. Additionally, the judgment awarded the permanent care, custody and control of the minor child to plaintiff-appellee, and granted child support. Since the case was not taken under advisement, nor was a request for notice made, no notice of the signing of the judgment was required. LSA-C.C.P. art. 1913. The delay for applying for a new trial expired on November 24, 1977. LSA-C.C.P. art. 1974. Since the judgment relates to a separation, custody, and child support, the appeal had to be perfected within thirty days. LSA-C.C.P. art. 3942 and 3943. Therefore, defendant-appellant had until December 26, 1977 within which to move for an appeal and to file the appeal bond.

The appeal bond was not filed until January 6, 1978, although a timely motion for appeal was made on December 6, 1977. As in many other cases through the years, failure to timely file the appeal bond requires dismissal.

Appellant argues that his appeal should not be dismissed because (1) appeals are favored in law, (2) Act 176 of 1977 eliminates the requirement of a devolutive appeal bond, and (3) this court should follow the case of In Re Bacmonila Garden Apartment, Inc., 355 So.2d 288 (La.App. 4th Cir. 1978).

While appeals are favored, this court has not applied Act 176 of 1977 retroactively. That act amends C.C.P. art. 2124 to eliminate the requirement of security for a de-volutive appeal. Section 4 of that act reads as follows:

“The effective date of this Act is January 1, 1978; the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof.”

Procedural statutes changed by the legislature are normally applicable to pending as well as subsequent litigation. However, where there is contrary language limiting its effectiveness, that language is controlling. See Quinney v. United States Fideiity and Guaranty Company, 345 So.2d 262 (La.App. 3rd Cir. 1977). We find Section Four of Act 176 of 1977 controlling as to its effective date.

Since the order of appeal was granted before the effective date of Act 176 of 1977, a devolutive appeal bond was mandatory. While the holding of the Fourth Circuit in In Re Bacmonila Garden Apartment, Inc., supra, (that payment of estimated costs within the delay for appealing is the equivalent of furnishing a cash bond) is at odds with our holding today, it is also contrary to the established jurisprudence of this court. This court has previously refused to apply Act 176 of 1977 to orders of appeal granted before the effective date of the act. See Robbins v. Estate of Bordelon, 356 So.2d 113 (La.App. 3rd Cir. 1978).

For the reasons assigned, defendant-appellant’s appeal is hereby dismissed at his cost.

APPEAL DISMISSED.


author: PRICE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Davis R. NEATHERY, Defendant-Appellant.
    No. 13514.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    Ellis & Ellis by Carey J. Ellis, Jr., Ray-ville, for defendant-appellant.
    William R. Coenen, Jr., Asst. Dist. Atty., Rayville, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Defendant, Davis R. Neathery, has appealed from the judgment which declared him an habitual offender under the Louisiana Motor Vehicle Habitual Offender Statute, La.R.S. 32:1471, et seq., and revoked his driving privileges for five years.

Defendant presents two issues on appeal: (1) Whether the Louisiana Motor Vehicle Habitual Offender Statute is unconstitutional, and (2) If not, whether said statute can be interpreted to allow the trial judge the discretion to permit restricted driving privileges.

Defendant contends the statute is unconstitutional and violative of due process under Art. 1, § 2 of the Louisiana Constitution of 1974 and the fifth and fourteenth amendments of the United States Constitution because the hearing afforded under R.S. 32:1476 does not confer upon the trial judge the discretion to restrict, rather than revoke, driving privileges even if the circumstances so warrant. Neither procedural nor substantive due process requires allowance of discretion under this statute. To achieve procedural due process in an action seeking to deprive one of life, liberty, or property, he must only be given notice of the proceedings and a hearing which is appropriate to the nature of the case. Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692 (1944); Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111 (1938); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The Louisiana statute provides notice under R.S. 32:1475 and a hearing under § 1476. The hearing is appropriate to the nature of the case because it allows the cited person the opportunity to disprove the issue of identity and the allegation of prior convictions, either of which will preclude him from being adjudged an habitual offender. Substantive due process requires that there be no deprivation of life, liberty, or property through arbitrary action or unreasonable legislation. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934); Jones v. Brim, 165 U.S. 180, 17 S.Ct. 282, 41 L.Ed. 677 (1897); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). The Louisiana statute is not arbitrary because it applies equally to all persons, and it is not unreasonable since the state has a compelling interest to protect the public from danger. Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir. 1971); Whitaker v. State, Dept. of Pub. Safety, Driv. Lic. Div., 264 So.2d 725 (La.App. 1st Cir. 1972). So long as the state is free of arbitrary, capricious, or invidious discrimination, it may validly restrict driving privileges to promote the public welfare. State v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1975). The absence of any discretion on the part of the trial judge to allow restricted driving privileges to habitual offenders does not offend due process. Furthermore, any doubt must be resolved in favor of the constitutionality of a statute. Whitaker, supra.

Defendant contends that the habitual offender statute as written can be judicially interpreted to allow restricted driving privileges. Neither the language nor the intent of the statute affords such a construction. R.S. 32:1479 requires filing of a petition to the court, furnishing of financial responsibility requirements, and the passage of five years from the date of the court’s ruling before privileges can be restored. R.S. 32:1471(2) declares that the policy of the state is “To deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference to safety and welfare of others and their disrespect for the laws of this state, the orders of its courts, and the statutorily required acts of its administrative agencies .” The statute should be given a liberal interpretation in order to effectuate its policies. State v. Rone, 324 So.2d 867 (La.App. 3rd Cir. 1975).

For the above reasons, the judgment is affirmed with costs assessed against defendant.


author: HALL, Judge.

text:
    Succession of Anna Gray Sweeney NOE. Succession of James Albert NOE.
    Nos. 13517 and 13518.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    James Robert Murrell, III, New Orleans, for plaintiffs-in-rule-appellants, Jan Mc-Lendon Moss and Kristen M. McLendon.
    Robert G. Pugh, Shreveport, for executors-appellees, James A. Noe, Jr. and Charles Thomas Munholland.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Decedents were the owners of all the shares of stock of two corporations, which shares are included among the assets of each succession under administration. Two of several residuary legatees sought mandatory injunctive relief against the testamentary executors to require the executors to give them advance notice of the meetings of the board of directors of each corporation, to furnish them with copies of the minutes of the board meetings, and particularly to secure the attendance of the legatees or their counsel at all future meetings of the directors. The legatees’ petitions were dismissed when an exception of no cause of action was sustained in each succession proceeding. The legatees appeal. We affirm.

The injunction was sought on allegations that petitioners have not been furnished with requested information concerning the operation of the corporations, that one of the defendant-executors who is president of both corporations has received unauthorized payments from the corporations, and that the corporations are being used as a shield to prevent petitioners from being informed as to the true status of the affairs of the successions in violation of the executors’ fiduciary duty.

The allegations of the petitions do not allege a cause of action for the relief sought, which is to require the executors to secure the attendance of petitioners or their counsel at all meetings of the boards of directors of the corporation and to keep petitioners informed about board meetings of the corporations. Petitioners cite no law which would give them the right, even if they were shareholders of the corporations, which they are not, to attend meetings of the boards of directors. Further, petitioners cite no authority which requires executors of successions, authorized to continue the business of the successions, to keep residuary legatees advised of day-to-day operations of the successions’ business; Certainly, directors of corporations owe to shareholders a duty of faithful administration of the corporations’ affairs, and executors owe to legatees a duty of faithful administration of succession affairs. Statutes governing corporations and the administration of successions require certain reports and accountings by corporate officers and directors and by succession representatives. Petitioners do not allege noncompliance with any such statute. The allegations of the petitions do not set forth any breach of duty on the part of the executors which threatens to cause petitioners irreparable injury, or for which there are no other adequate remedies, or for which the relief sought would be an appropriate remedy.

The exceptions of no cause of action were correctly sustained and the judgments dismissing the legatees’ petitions are affirmed at petitioners’ costs.


text:
    Frances Elliott SMITH by and on behalf of minor child, Terry Lynn Stamper, Plaintiff-Appellee, v. Carroll Lynn STAMPER, Defendant-Appellant.
    No. 13519.
    Court of Appeal of Louisiana, Second Circuit.
    March 27, 1978.
    Dimos, Brown & Erskine by David G. Erskine, Monroe, for defendant-appellant.
    Paul Wilkins, Columbia, for plaintiff-ap-pellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

This is an appeal by the father of an illegitimate five-year-old child from the judgment ordering him to pay alimony of $275 per month for support of the child. Appellant admits he is the natural father and has an obligation of support to the child, but questions the amount awarded by the trial court and the criteria used by the court in fixing the award. We find no error and affirm the judgment.

Appellant contends the trial court improperly considered his means and standard of living in computing the amount of alimony awarded because alimony for an illegitimate child is based solely on the child’s needs and not the father’s ability to pay. Appellant also contends the court erred in not considering the mother’s obligation to equally pay for the child’s support. Appellant further contends the sum of $275 is excessive for the needs of the child on the evidence presented.

The sole authority for .appellant’s argument that his means should not be considered in the award of alimony to his illegitimate child is the statement without supporting authority in Rousseau v. Bartell, 224 La. 601, 70 So.2d 394 (1954), that “. . . alimony is not based on the means of the father to pay, but on the need of the illegitimate child, LSA C.C. Art. 240.- ” This statement does not appear to be in accord with the Civil Code provisions and is contrary to the action of the Supreme Court in McConkey v. Pinto, 305 So.2d 469 (La.1974) in which the court found paternity was established and remanded to the trial court to receive evidence on “the needs of the child and current income of the father for the fixing of support.”

La.C.C. Arts. 240 and 244 provide that mothers and fathers owe alimony to their illegitimate children who are in need. Art. 244 provides that “the other rules established respecting alimony to be granted to legitimate children take place likewise with respect to illegitimate children, except so far as they may be contrary to the foregoing provisions.” Art. 231 provides that “alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.”

These codal provisions clearly indicate it is appropriate to consider both the needs of the child and the ability of the father to pay.

The mother of the child is a thirty-four-year-old woman who works and earns approximately $400 per month. She estimated her total needs for the maintenance of herself and the child at approximately $800. The father of the child is a logging contractor whose gross receipts were in excess of $280,000 last year. After paying most of his personal living expenses from his gross, he nevertheless reflected a net income for income tax purposes in excess of $13,000. A substantial part of his expense ($100,000) was for depreciation on his equipment. During the nine-and-one-half-year period plaintiff lived with defendant, they resided in a large, comfortable brick home. She and the child now occupy a used mobile home furnished by defendant which is in a bad state of repair. Defendant has no other legal dependents. He presently lives with his new girl friend and her three children in the same residence formerly occupied with plaintiff.

Considering the needs of the child and the ability of both parents to contribute to his support, the trial court has not abused its discretion in awarding the sum of $275 per month.

The judgment is affirmed at appellant’s cost.