text:
    Leon Austin FONTENOT v. Winnie Belle Sibley FONTENOT.
    No. 10584.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Walton J. Barnes, Baton Rouge, for appellant.
    Richard B. Nevils, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an appeal from a judgment awarding to the defendant wife and mother, Winnie Belle Sibley Fontenot, the permanent care, custody and control of the minor children born of the marriage between the defendant and the plaintiff, Leon Austin Fontenot. From this judgment, the plaintiff husband and father has perfected this appeal.

The plaintiff-appellant, Leon Austin Fontenot, filed this suit for divorce, based on adultery, and also seeking both the temporary and permanent care, custody and control of his three minor children, Charlene Adelle Fontenot, Barbara Ann Fon-tenot, and Bryan Austin Fontenot. Suit was filed on April 21, 1975. At the time this suit was filed, the plaintiff and defendant were legally separated as per a judgment of the Trial Court in a suit instituted by Mrs. Winnie Belle Sibley Fonten-ot, and in which suit, Mrs. Fontenot was awarded the permanent care, custody and control of the minor children. In the instant proceeding, there was no serious argument made against the adulterous activities of Mrs. Fontenot, and no argument is raised on appeal as to that portion of the judgment.

It is argued by plaintiff-appellant that the Trial Judge erred (1) in awarding custody to the defendant in the face of convincing proof that she was morally unfit, (a) in holding that a short interval between the hearing on the rule and the trial on the merits sufficed to show a conscientious effort at moral reformation on the part of the wife and mother, (b) by the Trial Judge’s blind adherence to the maternal preference rule; (2) by rejecting the more stable environment presented by the husband and father; and (3) in alluding to the doctrine of mutual fault and yet granting final judgment on the merits.

The plaintiff-appellant had his wife under observation by a private detective, and it was reported that the defendant and one Ora Mitchell, a widower whose wife had died in November of 1974, were together some 68 times between February 11, 1975, and May 8, 1975, the date of the hearing on the rule. Of these 68 observations, it was .testified that the defendant and Mitchell were only alone some 13 times, and of these 13 times they were supposedly alone, only four of these occurred in the home of the defendant where her children also lived and were present.

Particular note should be made of the four times that the defendant and Mitchell were at her home. One time was from approximately 11:40 p. m. to midnight, and the three other times ranged from 9:30 p. m. to 10:40 p. m. On these occasions the witness who had observed them testified that a light was on in the kitchen, but that this was the only light that could be seen. The other times the defendant and Mitchell were alone were at Mitchell’s house. There is no question but that the defendant and Mitchell saw each other quite often during this period of time, and that this was known by the defendant’s children. As to whether any immoral conduct took place while the defendant’s children were in the same house is not known for certain.

In the separation judgment, the Trial Judge had granted the defendant the permanent care, custody and control of the minor children, but at the hearing on the rule,- in the instant proceeding, he changed that judgment to temporary care, custody and control. In his oral reasons for judgment at the hearing on the rule the Trial Judge said:

“It would not be fitting or proper for these children to growup thinking that this Court, or any other court, can condone and overlook completely the type of conduct in which Mrs. Fontenot is presently indulging herself. It has not, although the actual intimatices [sic] between them have occurred out of the home, out of the presence of the children, their companionship with each other has become of such a nature and of such a degree and intensity and frequency that for all practical intents and purposes they might as well be man and wife. She has a key to his house and he has a key to her house. It has not as yet, perhaps, reached the point of where it is an open and notorious course of public indiscretion, nor has it quite yet, however, reached defiance and complete disregard of generally accepted moral principles. She has tried to exercise at least a degree of discretion about it.
“So, the Court has to weigh Mr. Fonte-not’s prior track record, his sudden conversion, if there has been one, against Mrs. Fontenot’s current indiscretions, and try to determine what is in the best interest of the children, and yet make the children, and, also, the parties realize that the Court is not going to condone the type of life Mrs. Fontenot is currently living. I do think that, and I won’t prolong the agony, I do think that at the present time the Court is going to make purely and simply a temporary award of custody to Mrs. Fontenot. I am going to continue it temporarily and provisionally in her, but if she doesn’t clean things up in her relationship with Mr. Mitchell she is going to be placed in serious jeopardy of loosing those children; and if at the time of the trial of this case on the merits that situation has continued to exist; if the situation at the time of the trial is exactly the same as it is today the Court will switch custody. I will give you advance notice of that right now.”

At the trial on the merits, some six weeks later, it was shown that the defendant and Mitchell had some six dates, but always other people were with them, and never in the home of the defendant. In granting the defendant the permanent care, custody and control of the minor children, the Trial Judge said:

“I believe in the last several weeks she has made a conscientious sincere effort to change the moral climate in which she is living, and in which she is raising these children. I think she has limited her contacts with Mr. Mitchell very drastically. I don’t think she has engaged in any further sexual activity with him since that time. I believe that she is sincere when she says that she wants to marry him. Counsel is well aware of the Fulco case, [(Fulco v. Fulco) 259 La. 1122, 254 So.2d 603 (1971)] of course, in which a mother given custody of her children in a situation somewhat similar to this, where at the time the suit was filed the mother was living in an immoral environment, but prior to the trial of the case she had straightened her life out, and the Court then found that under those circumstances she was entitled to have the continued custody of her children. The moral background here might be even worse than it was in the Fulco situation, but, nevertheless, the Court weighing the alternatives that is available to it here as to whether these children should be placed with Mr. Fon-tenot or Mrs. Fontenot at this time believes that it would be in the best interest now, particularly in the light of the fact that Mrs. Fontenot has straightened herself out. In view of the fact that she proposes to marry her alleged paramour believes that it would be in the best interest of these children to continue them in her custody. And, of course, that is a situation which is always subject to change, and if it should be proven at a later date that the Court is wrong in that respect, and if she continues to indulge herself in an immoral type of life and existence, I can assure you that if it comes before this Court I will not hesitate to take those children away from her. So, she is going to have to straighten up and teach those children the proper type of moral values or she is going to have to loose her children. I believe that she is making a sincere effort to do that at this point, but she came awfully close to loosing her children.”

In Fulco v. Fulco, 259 La. 1122, 254 So. 2d 603 (1971), Justice Tate set down the following rules and legal principles that are applicable in Louisiana in regards to child custody cases, to-wit:

“(1) The paramount consideration in determining to whom custody should he granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they.are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App. 1962) (citing numerous decisions of this court to such effect).
“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So. 2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).
“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960) ; Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955) ; Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).”

In answering the specifications of error, we find that the Trial Judge was well within the rules and principles of law as set down in Fulco v. Fulco, supra, and exercised wisely the great discretion granted him. He alone had the opportunity to observe the witnesses as they testified, and is fully capable of determining their validity. He apparently was deeply impressed by the defendant’s testimony at the trial on the merits and her seriousness in attempting to correct the errors of her ways and lead a better life with her children.

As to the specification of error concerning any mention of mutual fault, we are at a loss as to why plaintiff-appellant brings this issue before this Court inasmuch as plaintiff sued for a divorce, the defendant wife did not reconvene, nor does it appear from the record that any defense was attempted against the action for the divorce, and his request for a divorce was granted. Perhaps he has now changed his mind and wants it all undone.

Be that as it may, we must dispose of this issue. The rule in Louisiana is well settled that in an action for separation or divorce, mutual equal fault will bar relief to both parties. Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952). Even though the Trial Judge did allude to some mutual fault, we assume that since he granted the plaintiff’s request for the divorce, he did not reason the mutual fault to be equal, and we see no reason to disturb his findings.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by the community of acquets and gains formerly existing between plaintiff-appellant and defendant-appellee, or in the alternative to be divided equally between appellant and appellee.

Affirmed.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Stanley BABIN v. HOUMA MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 10566.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.

      Dodd, Barker, Avant, Wall & Thomas by Floyd J. Falcon, Jr., Baton Rouge, for appellant.
    Eddie N. Pullaro, Houma, for appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment of the trial court affirming a ruling of the Houma Municipal Fire and Police Civil Service Board (Board), which sustained action by the City of Houma (Appointing Authority), demoting Appellant from the alleged position of Probational District Fire Chief to Appellant’s acknowledged classified position of Permanent Captain, Houma Fire Department, in the civil service of the City of Houma. We affirm.

Appellant basically contends he was appointed Probational District Fire Chief to fill a vacancy existing in that classification, and that he was later removed and demoted therefrom without proper notice or good cause. Appellant also maintains he was replaced in said probational position by one not properly qualified pursuant to the provisions of LSA-R.S. 33:2471-2508, inclusive, the Civil Service Law for Municipalities Between 13,000 and 250,000 (Civil Service Law).

In September, 1970, Homer Bland, Chief, Houma Fire Department, was discharged from that position by Appointing Authority. Chief Bland appealed his dismissal to the Board, which after a hearing, confirmed Bland’s discharge. Thereafter Bland appealed to the courts, which appeal was ultimately heard by this tribunal. On June 26, 1972, we affirmed Bland’s removal as Chief. See Bland v. City of Houma, La.App., 264 So.2d 729, writs refused, 1972, 263 La. 1, 266 So.2d 713.

Following Bland’s discharge in September, 1970, Appointing Authority named Bennie Bourg, then classified as Permanent District Fire Chief, as Acting Chief to serve as such until the matter of Bland’s discharge was finally resolved. From September, 1970, Bourg served as Acting Chief and also continued his duties as District Chief. However, the dual role proved to be more onerous than Bourg could endure, and in December, 1971, Bourg threatened to resign as Acting Chief and resume his position as District Chief, but he did not do so. Instead, in April, 1972, Bourg “appointed” Appellant, who then held the rank of Permanent Captain, as Probational District Chief to relieve Bourg of the duties of District Chief. It is conceded that from April, 1972, until January 7, 1973, Appellant served as District Chief; that he received the salary for that position, and that Appellant capably and efficiently discharged the duties incumbent upon a District Chief.

On three occasions while Appellant served as District Chief, Bourg executed personnel change of status forms indicating Appellant’s classification as Probational District Chief. The first was dated April 10, 1972, effective April 3, 1972; the second was dated May 5, 1972, effective April 1, 1972; and the third was dated July 25, 1972, effective April 1, 1972. These forms were submitted to Peter Hamilton, the Board’s Chairman, who approved the April 10, 1972 and July 25, 1972 submissions by Bourg.

On May 8, 1969, February 2, 1971, and October 12, 1972, examinations were given by the Board for the positions of District Fire Chief. In each instance, Appellant attained the highest score of those examined. Emery Dufrene, Permanent Captain, who took the examination only on October 12, 1972, made a grade of 77 thereon while Appellant earned a score of 89.

Bland’s dismissal became final September 29, 1972, when writs were refused by the Supreme Court on Bland’s application for review of the decision of this court. On December 18, 1972, the Board’s Secretary wrote Bourg suggesting that Appellant be returned to the position of Captain, and, thereafter, on January 7, 1973, Appointing Authority relieved Appellant of his duties as District Chief and returned Appellant to the position of Permanent Captain. At this time Appointing Authority appoint Bourg to the classification of Chief to fill the vacancy created by Bland’s final discharge. Simultaneously, Appointing Authority appointed Emery Dufrene District Chief to occupy the void resulting from Bourg’s promotion to Chief.

In essence Appellant contends he was appointed Probational District Chief by Bourg’s action which was confirmed by Hamilton on two occasions. He so argues on the ground that he filled the office with the knowledge and consent of Appointing Authority' and ably discharged the duties incumbent upon him in said capacity. Appellant argues that he was therefore given a probational appointment as District Chief and could not be removed therefrom without notice and for cause as provided by the Civil Service Law. Appellant maintains he was not so removed. Additionally, Appellant contends that at the time of his alleged probational appointment, he headed both the competitive and promotional lists from which the position of District Chief had to be filled, and that he was the only person eligible for the promotion at the time he was so designated.

Appointing Authority maintains that Appellant was never appointed Probational District Chief pursuant to civil service regulations. In this regard, Appointing Authority notes that neither Bourg as Acting Chief, nor Hamilton as Secretary, nor the Board itself have authority to name employees to civil service positions. The position of Appointing Authority is well taken in this respect considering that the Civil Service Law gives Appointing Authority the sole and exclusive right, power and authority to make appointments to the classified service of the City of Houma. Finally, Appointing Authority urges that when the appointment was made to fill the vacancy in the position of District Chief created by Bourg’s promotion to Chief, Du-frene’s elevation to District Chief was accomplished in strict compliance with the Civil Service Law in that Dufrene was then on the promotional list from which the appointment had to be made.

It is conceded that vacancies must be filled in accordance with La.Const.1921, Article 14, Section 15.1 and LA-R.S.-33:2487, which provides as follows:

“Vacancies in positions in the classified service shall be filled by one of the following methods:
(1) Demotion
(2) Transfer
(3) Reinstatement
(4) Promotional appointment
(5) Competitive appointment
(6) Reemployment
(7) Temporary appointment
A vacancy shall be considered filled under any of the methods specified above, and employment thereunder effective, as of the date on which the employee enters upon the duties thereof.”

All parties acknowledge that in this instance it was not possible for the vacancy in question to be filled by either demotion, transfer or reinstatement. It is also admitted that the vacancy had to be filled first from the promotional list and next from the competitive list. Appellant contends that in either event he was required to be appointed because at the time of his alleged appointment in April, 1972, Appellant was first on both lists. Appointing Authority maintains that no appointment was made in April, 1972, because none was possible at that time, and that when the vacancy was filled in January, 1973, Dufrene was then on the promotional list and under civil service rules, Dufrene being senior employee on the list in time of service was entitled to the promotion notwithstanding Appellant’s higher score on the promotional list examination.

LA-R.S. 33 :2494 provides that whenever an Appointing Authority desires to fill a vacancy, except by demotion, transfer, emergency appointment or substitute appointment of not more than thirty day.s duration, it shall request the Board to certify names of eligibles from which the appointment must be made. The section next establishes guidelines pursuant to which the Appointing Authority makes its selection first from the reinstatement list if possible and if not the vacancy must be filled by appointment of the senior employee on the promotional list. This section contemplates appointments in which the employee gains permanent status apparently after serving a probationary period therein.

Temporary appointments to civil service positions, in which the appointee acquires no permanent status, are provided for by LA-R.S. 33:2496. This statute establishes three basic types of temporary appointments, namely, provisional, substitute and emergency appointments. Provisional appointments are defined as those made to fill vacancies in instances where the board is unable to certify to the Appointing Authority the names of persons eligible for regular and permanent or substitute appointment. Substitute appointments are prescribed for in Paragraph B, Section 2496, as follows:

“B. A substitute appointment may be made to any position in the classified service (1) from which the regular and permanent employee is away on an authorized leave of absence, or (2) from which the regular employee is substituting for some other regular employee who is authorized to be away from his respective position. No position shall be filled by a substitute appointee for a time beyond that for which the regular and permanent incumbent is away on an authorized leave. Whenever such appointment shall continue for not more than thirty days, the appointing authority may appoint thereto any one whom he deems qualified. Substitute appointments made for a period exceeding thirty days shall be made in the same manner as provided in R.S. 33:2494 for the filling of a vacancy by a regular and permanent appointment. Any person employed on a substitute basis shall, for the duration of the temporary employment, enjoy the class title and be entitled and receive the rate of pay for the class and position in which he is employed. The appointing authority shall notify the board within fifteen days following any substitute appointment made for a period to exceed thirty days, the name of the appointee, the class of position filled, the period for which the appointment was made and attach to the notification a signed copy of the leave of absence granted the employee for whom the appointee is substituting.”

Emergency appointments, governed by Section 2496 C, may be made at any time the needs of the service require due to local emergency of a temporary and special nature, but may not exceed ten days.

We conclude that Appellant was never appointed to the position of Probational District Chief in the manner required by the Civil Service Law. Appointing authority is defined by Section 2473 as any official, officer, board, commission, council or person having the power to make appointments to positions in the municipal fire and police services. In this instance such authority rests exclusively in the governing authority of the City of Houma, namely, the Mayor and Board of Aldermen of that municipality. The Board is not an appointing authority, it has no power or authority to hire, engage or employ persons in the classified service of the City of Houma. LA-R.S. 33 :2476 provides for the Board’s composition of five members, appointed by the governing authority of the City of Houma, according to a prescribed format. The duties of the Board, as statutorily defined, are to assist the municipality in administering the Civil Service Law, advise and assist classified employees, hear and pass on complaints of alleged violations of civil service rules by either employees, public officials or others charged with the obligation of administering the Civil Service Law, conduct investigations of alleged civil service violations, adopt and maintain a classification plan and make rules necessary to carry out the purposes and intents of the Civil Service Law.

As acting Chief, or in any other capacity whatsoever, Bourg had no authority to appoint Appellant to any position temporary or permanent. As such, Bourg could at most recommend appointments to Appointing Authority.

At this juncture we note that the scope of an appeal under the Civil Service Law is limited by LA-R.S. 33:2501 which, after providing for appeal to the Board from the action of an appointing authority, pertinently states:

“This hearing shall be confined to the determination of whether the decision made by the board was in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds.”

Under the circumstances of this case, Appellant’s alleged appointment does not fall precisely within any form of appointment authorized by the Civil Service Law. In this regard, the Civil Service Law appears to lea-ve a hiatus which addresses itself to the attention of the legislature. Appellant’s appointment was neither a provisional nor emergency appointment as defined in Section 2496, above. Also, it was not a substitute appointment as provided by Section 2496, because it was not intended to replace an employee away on leave Of absence or some other form of authorized leave. We find, however, that the appointment in question more nearly approaches a substitute appointment than other form of appointment provided for by the Civil Service Law.

Assuming, arguendo the appointment was a substitute appointment, under either Section 2496 (B), which authorizes a substitute appointment for less than thirty days, or Section 2494, which controls such an appointment of more than thirty days duration, appointment must be made by the appointing authority from a list of eligibles submitted to the appointing authority by the Board. This statutory requirement was not followed in this instance. Moreover, such an appointment, if valid, carried no permanent status as provided in Section 2496. It follows that Bourg’s “appointment” was of no legal efficacy notwithstanding its “approval” by the Board’s Secretary.

We hold, as impliedly found by the Board in rejecting Appellant’s appeal, that the action of Appointing Authority in removing Appellant from the position of District Chief, was accomplished in good faith and for cause under the provisions of the Civil Service Law. In this instance Appointing Authority was faced with a dilemma which apparently could not be solved by a literal application of the Civil Service Law. Bland’s removal as Chief was subject to the possibility of reversal and Bland’s reinstatement to his former position. Meanwhile, in Bland’s absence, it was imperative that the municipal fire department be adequately and properly staffed so that the efficiency of its operation would not be impaired. Bourg, as Acting Chief, filled the vacancy in the position of District Chief, which action was tacitly approved by the Appointing Authority as a temporary solution to the situation in which Appointing Authority found itself. For cause, namely, the possibility of Bland’s return, the Appointing Authority saw fit not to formally appoint Appellant as District Chief. Under the circumstances, we cannot say that the Appointing Authority so acted in bad faith and without good cause. On the contrary, we view the decision as practical and in keeping with the spirit of the Civil Service Law.

We find no merit in Appellant’s contention that he attained probational status by virtue of Section 2487, above, which provides that a vacancy is considered filled under any method of appointment provided therein, effective as of the date the employee enters upon the duties of the position involved. This provision must be viewed in conjunction with those provisions of the Civil Service Law governing appointments to classified positions. Section 2487, above, can only apply when an employee enters upon performance of duties of a position pursuant to proper appointment thereto. Any other interpretation of Section 2487, above, would sanction evasion of the unambiguous provisions of the Civil Service Law which require formal appointment by duly constituted appointing authority. It appears the provisions of Section 2487, above, are intended primarily for the purpose of determining seniority, pay and such related matters resulting from a proper appointment.

The judgment of the trial court is affirmed; all costs of these proceedings to be paid by Appellant.

Affirmed.


author: SARTAIN, Judge.

text:
    Herbert R. STOREY, Plaintiff-Appellee, v. STATE FARM MUTUAL FIRE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 10549.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 13, 1976.

      Horace C. Lane, Baton Rouge, for Mickey Skinner and State Farm.
    Iddo Pittman, Hammond, for State Farm Mut. Fire Ins. Co.
    Ralph W. Brewer, Baton Rouge, for Herbert Storey.
    William J. Staser, Baton Rouge, for Douglas Skinner.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

This litigation arises out of an altercation between plaintiff, Herbert R. Storey, and one Doug Skinner. Made co-defendants in the trial court were Mrs. Mickey Stone Skinner and her insurer, State Farm Mutual Fire Insurance Company, on the grounds that Mrs. Skinner aided and abetted Doug Skinner in the alleged attack on plaintiff Storey.

Following trial by jury, plaintiff was awarded $5,000.00, the jury finding that Doug Skinner, intentionally and unprovoked, attacked Storey and that. Skinner was aided by Mrs. Skinner in the commission of the battery, but that the injuries suffered by plaintiff in the attack were neither expected nor intended from Mrs. Skinner’s standpoint. Accordingly, the trial judge rendered judgment against Doug Skinner, Mickey Stone Skinner and her insurer, State Farm Mutual Fire Insurance Company, in the amount of $5,000.-00, said judgment being in solido as it related to Doug Skinner and Mickey Stone Skinner, and as it related to Mickey Stone Skinner and her insurer, but not as it related to Doug Skinner and the insurer of Mrs. Skinner.

Defendants Mickey Stone Skinner and State Farm Mutual Fire Insurance Company now bring this appeal alleging error in the jury’s finding that Mrs. Skinn'er aided and abetted Doug Skinner in any way in the commission of the act. Further error is urged by defendant, State Farm, in the conclusion that its policy provided coverage under the particular facts of this case. Plaintiff has answered the appeal seeking an increase in damages. Defendant, Doug Skinner, has not appealed the judgment against himself.

We reverse the judgment of the trial court insofar as it relates to appellant herein holding Mickey Stone Skinner liable with Doug Skinner and her insurer liable insofar as she was liable.

The testimony presented at trial on this matter reveals that plaintiff was employed by one Steve Perry, a private investigator, to aid and assist in surveillance upon the home of Mrs. Earl Gros (now Mickey Stone Skinner) pending separation and divorce proceedings between she and her former husband. According to testimony by Mr. Perry and plaintiff, this surveillance was conducted at night or early evening on three different occasions sometime between August and October of 1972. During this time Mrs. Gros was observed in frequent company with Doug Skinner. Further, it seems that Mrs. Gros was working for Mr. Skinner, himself a private investigator, typing reports as she 'had done prior to her separation from her husband.

Plaintiff testified that on January 15, 1973, while walking his dog in a vacant field across from Mrs. Gros’ home and in which he frequently exercised his dog (plaintiff lived some three to five blocks from the Gros home), Doug Skinner drove up in his car, alone, exited his car with pistol in 'hand, and after a few words with plaintiff, struck him, first with the empty hand, and then once with the hand holding the pistol, breaking plaintiff’s jaw in the process. He testified further that the only contact he had had personally with Doug Skinner prior to that time was once when he was walking his dog and Mr. Skinner drove by 'him and questioned him as to whether his dog had bitten anyone, and another occasion some five days prior to the attack by Skinner when plaintiff appeared at the Family Court of East Baton Rouge to testify in Gros’ proceedings. At that time he was sequestered along with Mrs. Gros and Mr. Skinner. He was not called to testify on that date as the trial had to be continued and 'had not testified prior to the January 15th incident.

Mr. Taylor Brooks, part-time attendant at a gas station near the residency of both Mr. and Mrs. Gros, was called to testify on behalf of plaintiff and stated that on one occasion (he could not remember when) Mr. Skinner and Mrs. Gros drove up to him at the station and inquired of the plaintiff whether or not Mr. Brooks had seen a man go up the street with a red dog. He answered affirmatively and the pair left with Mr. Skinner driving. Mr. Brooks stated that no threats were made against plaintiff nor were any other statements made about him.

Mickey Stone Skinner (the former Mrs. Earl Gros) testified that she had been Doug Skinner’s secretary and had continued in that occupation after she and her husband separated. She stated that she had a desk, typewriter and stationery at home and did her work there. According to 'her testimony it was a standing joke between her and Doug Skinner that the plaintiff had them under surveillance and they knew of it.

Mrs. Skinner stated that on the day t'he incident occurred she was passing by a large window in her home and noticed plaintiff in the vacant field across from her home. She then stated on direct ex-mination:

“ . . . And I said, hey, there he is again, and I laughed. I said it every afternoon because he was always out there every afternoon. So, I went on in and we started working. And in a minute, Doug, he hadn’t said anything. He got up and he said, I think I’ll go over there and ask him to come over and sit in the yard so he can see better. And he went outside and got in the car and—
Q. Did you go with him ?
A. No, I stayed there.
Q. He had to drive over there?
A. Yes, he drove around the field. You have to go around the block to get there and he laughed—
Q. How far is that?
A. It’s one block straight across that field.
Q. How far would you say that is; can you give an estimate?
A. About 250 yards, I’m not really sure, but that’s all that it is, one block.”
******
“ Q- What was the primary purpose of him leaving and going over there ?
A. I suppose to let Storey know that 'his cover had been blow, because we’d known it for a long time. We might as well let him know, and stop wasting his time.
Q. Did Mr. Skinner mention anything to you about going over there and getting in a fight with this man?
A. No indeed.
Q. After he left, got in the car and left the house, what did you do?
A. I went on out in the front yard to to see what was going to happen.
Q. And what did happen?
A. Well, Doug pulled his car up and he stopped and he got out and he started walking toward Storey and Storey started walking toward him. And they got together. They stood there and they talked a minute. And then Storey swung at Doug. And they grabbed each, other and fell down and that’s all I could see. I couldn’t see any more from where I was. Once they hit the ground I couldn’t see them at all.”
******
“Q. Mrs. Skinner, did you in any way entice or aid or contribute in any way to Mr. Skinner going over there that day?
A. No, I sure didn’t.”

Testifying to Mrs. Skinner’s role in the incident Doug Skinner, on direct examination, stated:

Q. What was your reason and motive for going over there to talk to him ? A. Well, like Mrs. Skinner said awhile ago, it was to blow his cover, to tell him that we knew exactly what all he was doing. We’d been knowing it for months. And jokingly to ask him to come over in the front yard where he could get a real good view and, you know, where he wouldn’t have all that problem.
******
“Q. Mr. Skinner, when you went over into the field and when you left Mrs. Skinner’s house, did you have any intention of getting in a fight?
A. That was the farthest thing from my mind was getting in a fight. Like I said, we was fixing to go to Court. That would have been the worse thing possible.
Q. Did Mickey Gros ever ask you or encourage you to do any violence toward Mr. Storey.
A. No, she did not. We’d known he was out there for four months, and never was one word said.
Q. She never suggested that you remonstrate with him or beat him up in any way?
A. No.
Q. What did you tell her you were going to do?
A. I just said I’ll be back in a minute. I started out the door and she says, what are you going to do. And I said, well, I’m going to go over there and tell him that his cover is blowed and ask him to copie over in the yard where he could see our activities real well instead of way over in the field.
Q. Did she ask to go with you?
A. No, she didn’t. She didn’t say anything. She stayed. When I walked out she kitchen table. was still at the
Q. Did she ask you to do anything?
A. She didn’t ask me to do not one thing.”
“Q. Did you and Mickey ever discuss doing any harm or violence to Mr. Storey ?
A. No, we never discussed anything like that because it wasn’t that important for any kind of violence or anything like that. It was a big joke that he was over there every day and wasn’t accomplishing anything, couldn’t have accomplished anything.
Q. But, you did know that he had you under surveillance ?
A. Yes. ...”

On cross examination Mr. Skinner stated:

“Q. Now, you stated that Mrs. Gros had no part in urging you to get involved with Smokey; is that right ?
A. That’s right.
'Q. On this particular day we are talking about, January 15th, 1973; is that right ?
A. That’s right.
Q. She never urged you to have anything to do with him ?
A. She never urged me to have any kind of violence or anything since I’ve known her.
Q. And yet the two of you got in the car. She was with you that day you went to that filling station asking about him, asking what his name was and something about him.
A. That was four months before when we first got the papers and knew that we were being watched. At that time we did know him; therefore, we was interested in who he was and what he looked like.
Q. You found out at that time?
A. Yes, four months prior to that.
Q. Knew his name.
A. I think we found out his name was Smokey. And shortly after that I found out his name was Herb Storey. He worked for Ron Johnston.
Q. And that was before the incident of January the 15th, 1973?
A. Yes, that was back in October of ’72.”

Mr. Skinner, again on direct examination, testified:

“Q. Mrs. Skinner, this is your third time and I hope the last on the witness stand. On the day of the fight did you tell Doug or suggest to him that he go over and talk to Storey ?
A. No.
Q. Whose idea was it that he go over and talk to him?
A. It was Doug’s.
Q. Did he ask for your permission or approval to go talk to him?
A. No.
Q. Did you ask him to do anything in regards to Storey?
A. No, sir. I didn’t.
Q. Referring not only to the day of the fight, but prior to that, did you ever ask him to take any action toward Storey of any kind?
A. No.
Q. When he left your house, did he say anything about going over to beat him up or anything like that?
A. No, he sure didn’t.
Q. What did he say?
A. He said that he was going to go over and ask him to come in the front yard so he could see better, get a better look.
Q. And I believe you said in prior testimony that it was something of a joke about him being over there, between you?
A. Yes, it was. We laughed about him every day, almost.
Q. And is that the spirit you took it in—
A. Yes, I did.
Q. —when he said he was going to ask him to come get a better look?
A. I thought it was all a big joke. He thought it was all a big joke.
Q. Well, you knew that you had been under surveillance for some time then?
A. Yes.”
* * * * * *
“Q. Now, have you ever without regard to any particular date counseled or advocated any violent action toward Herbert Storey ?
A. No.
Q. Have you ever encouraged anyone to do anything to him ?
A. No.
Q. When you saw there was a fight were you surprised ?
A. I was very surprised.”

The plaintiff’s own testimony with respect to Mrs. Skinner’s involvement in this matter as stated by him appears in the record as follows:

“Q. Now, on the day of the fight, did you see Mickey Gros at all?
A. No.
Q. She was not present at the place where the fight took place?
A. No.
Q. And did you see her or hear anything from her on the day of the fight ?
A. No.
Q. And when was the last time you saw her prior to the fight?
A. In Court.
Q. Prior to the fight, had you ever had any conversation with her ?
A. Not to my knowledge.
Q. She never said anything to you and you never said anything to her ?
A. No.
Q. And then of your own knowledge, you can’t say what her activities were at all on the day of the fight ?
A. No.
Q. But, you do know that she was not present when the incident occurred.
A. She wasn’t with Mr. Skinner in the car when he got out of the car, no.
Q. And you didn’t see her with him on any other place on the day of the fight; did you ?
A. No.”

This was the extent of the testimony offered at trial concerning Mickey Stone Skinner’s involvement in the matter. It is from this evidence that the jury concluded that Mrs. Skinner aided and abetted Doug Skinner in his actions but did not intend the resulting injuries.

The mandate of the Louisiana Constitution is now and has been clear that the appellate courts of this state are to review both the law and the facts in civil cases, whether the trial be one before judge or jury. La.Const. of 1974, Art. 5, § 10, La. Const. of 1921, Art. 7, § 29. It is also clear that the findings of fact by the trial judge or jury shall not be disturbed absent a positive showing that such findings are manifestly erroneous upon the face of the record.

We cannot help but conclude in the present case that it was manifestly erroneous for the jury to find that Mrs. Skinner aided and abetted in Mr. Skinner’s actions. The record before us is, in our opinion, completely devoid of any evidence upon which such a finding could be based. This is not a case where the appellate court is asked to overturn a jury’s finding that one witness was more or less credible than another witness. In the present case, no witness was offered nor evidence tendered which in any way could be held to legally implicate Mrs. Skinner in this matter, and any findings of implication based on the evidence here presented are, in our opinion, manifestly erroneous. See Lambert v. State Farm Mutual Automobile Insurance Co., 184 So.2d 107 (La.App. 4th Cir. 1966); Luria Brothers & Co. v. Capitol Steel, Inc., 225 So.2d 630 (La.App. 1st Cir. 1969). In Mayes v. McKeithen, 213 So.2d 340 (La. App. 1st Cir. 1968) in reversing a jury’s verdict we stated that a plaintiff’s cause of action “ . . . must be established with reasonable certainty and by a preponderance of the evidence. The showing of mere possibility or probability of its existence is insufficient. Thrash v. Continental Casualty Co., et al., supra, La.App., 6 So.2d 75; McGregor v. Saenger-Ehrlich Enterprises, 195 So. 624 (2nd La.App., 1964). Probabilities, surmises, speculations and conjectures cannot be accepted as sufficient grounds to justify a recovery to a plaintiff who is charged with the burden of proof. Williams v. Wolfe, 187 So.2d 763 (1st La.App., 1966); Crier v. Marquette Casualty Co., supra, La.App., 159 So.2d 26; Lambert v. State Farm Mutual Auto. Ins. Co., 184 So. 2d 107 (4th La.App., 1966).”

Since we have concluded that liability on the part of defendant, Mickey Stone Skinner, has not been shown, we need not direct ourselves to the serious question raised by defendant, State Farm, under the exclusionary provisions of its policy with respect to the apparent inconsistency in the jury’s finding that Mrs. Skinner aided and abetted Doug Skinner in the commission of a battery, itself an intentional tort, but did not intend the direct consequences of that action.

With respect to plaintiff’s demand for an increase in damages, we find no abuse of the jury’s discretion. The evidence produced at trial with respect to plaintiff’s injuries include hospital records which indicate that plaintiff had a compound comminuted fracture of the right body of the mandible which was corrected by an open reduction on January 23, 1973. It appears from these records in a postoperative report dated June 6, 1973, that x-rays showed “good healing”. The records further indicate that medical expenses incurred amounted to $737.55. No other medical testimony was offered in support of plaintiff’s claim. Considering the evidence produced we cannot say the jury abused its discretion in its award of $5,000.00.

For the above and foregoing reasons, the judgment of the trial court insofar as it relates to defendants, Mickey Stone Skinner and her insurer, State Farm Mutual Fire Insurance Co., is reversed and the same is hereby entered in favor of these defendants dismissing plaintiff’s claim against them. The judgment of the trial court insofar as it relates to the quantum of $5,000.00 awarded to plaintiff is affirmed. All costs of these proceedings in the trial court are to be borne by defendant, Doug Skinner. All costs incidental to this appeal are to be borne by plaintiff-appellee.

Reversed in part, affirmed in part and rendered.

      . Writs refused, 252 La. 965, 215 So.2d 130 (1968).


author: COVINGTON, Judge:

text:
    J. E. SUMRALL AND SONS, INC. v. WATSON AND COXE CONSTRUCTION COMPANY, INC., et al.
    No. 10565.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 23, 1976.
    Stacey Moak and Samuel R. Cicero, Baton Rouge, for appellant.
    Leon Gary, Jr., Baton Rouge, for ap-pellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

The factual circumstances giving rise to this litigation is set forth properly by the trial judge as follows:

“This suit arises from a lease executed in March of 1968 whereby the plaintiff, J. E. Sumrall & Sons, Inc., leased Lots Number 203 and -204 of Pasadena Subdivision to the defendants, Watson & Coxe Construction Company, Inc. and Warren O. Watson. At the time that the lease was entered into, the two lots formed a parcel of land with approximately 200 feet fronting on Greenwell Springs Road and approximately 185 feet in depth on Althea Drive, and contained a brick veneer residential structure. The lease had a primary term of 20 years and it gave the lessees options for additional terms.
“The plaintiff alleges that the defendants are in default with respect to their obligations under the lease, and it demands payment of the remaining unpaid rentals. The Estate of Warren O. Watson, one of the defendants, has brought a third party demand against its code-fendant, Watson & Coxe Construction Co. on the grounds that Mr. Watson signed as lessee solely as an accommodation to Watson & Coxe, which received all of the benefits of the lease. Watson & Coxe has judicially admitted these allegations, and has obliged itself, in the event that Mr. Watson’s estate is cast in judgment, to indemnify the estate in the amount of any such judgment. Thus, in practical terms, the plaintiff’s suit is directed chiefly at Watson & Coxe Construction Co.
“The plaintiff’s demand is based upon the fact that Watson & Coxe paid the stipulated rent from the time the lease was executed until October 31, 1973, but has not paid any rent since that time. The defendant contends, and all the parties agreed in the pre-trial order, that the defendant gave the plaintiff written notice of its intent to cancel the lease in November of 1973. The defendant bases its alleged right to cancel the lease on a provision found on page 5 of the lease, which reads as follows:
“ ‘If the demised premises or any part thereof shall be taken by or pursuant to governmental authority or through exercise of the right of eminent domain, or if a part only of said premises is taken and the balance of said premises in the opinion of said Lessees is not suitable for the operation of its business, or the business of its assigns, this lease, at the option of the Lessee, shall terminate without further liability on the part of Lessees, or the rent hereunder shall be reduced in proportion to the reduction in the area of the premises, but nothing herein shall be deemed a waiver of the sole right of Lessees to any award for damages to it or to its leasehold interest caused by such taking, whether made separately or as a part of the general award.’
“On March 6, 1970, the State of Louisiana, through the Department of Highways expropriated a portion of the parcel of land that fronted on Greenwell Springs Road and had an average depth of approximately 50 feet. Thus, after the taking by the State, the leased property had dimensions of roughly 200 feet in length and 135 feet in depth. The lessee took the position that the property was no longer suitable for the .operation of its business, and decided to exercise its option to terminate the lease.”

The lease called for an annual rental of $3,900.00, payable $325.00 per month for the first ten years of the primary term of 20 years.

Upon the termination of the lease by the lessees plaintiff-appellant filed suit to compel the defendant-appellees to pay the sum of One Hundred Nineteen Thousand, Two Hundred Twenty-five ($119,225.00) Dollars, plus legal interest, cost and reasonable attorneys fees. The said amount represents $59,225.00 as the balance due under the lease, $30,000.00 for an improvement that defendant was to build within a reasonable time after the lease was confected, and $30,000.00 as the value of a house demolished by the lessor in accordance with the lease provisions. Defendant answered plaintiff’s suit and reconvened for an amount totalling $102,725.00, with $2,725.00 thereof representing overpayment because the talcing by the State of Louisiana equals approximately 25% of the total premises (9,855 square feet of the original 39,600 square feet) and 25% of the rents paid for the fifteen months since the taking would equal $2,725.00, and $100,000.00 thereof was for damages sustained by defendants as a result of malicious prosecution. As to the latter claim the defendants filed an exception of no right of action or no cause of action based on the premise that a cause of action, for malicious prosecution cannot exist until there has been a final determination of the original proceedings in favor of the defendant. The lower court did not specifically rule on this nor did he allude to it in his Written Reasons for Judgment; therefore, we must assume that he referred it to the merits.

After trial, the court rendered judgment rejecting' all of the plaintiff’s demands, dismissed its case, and also dismissed the reconventional demand and the third party demand.

Appellant, J. E. Sumrall & Sons, Inc., brings this appeal, alleging that the lower court committed error in deciding (1) that appellees, Watson & Coxe Construction Company, Inc., had a right to cancel the lease because of its contention that the taking by the State of Louisiana, through the Department of Highways, caused the subject property to be unacceptable to appellee, (2) that the appellees’ failure to construct the building worth $30,000.00 is not com-pensable damage due appellant, (3) not to award appellant any compensation for the demolition of the structure that existed on the leased premises at the inception of the lease, and (4) not to award attorney’s fees.

LSA-C.C. Art. 2697 states:

“If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end [by operation of law]. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.”
LSA-C.C. Art. 1764 states that:
“A. All things that are not forbidden by law, may legally become the subject of, or the motive for contract; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider:
# jfi Jjc
“3. Accidental stipulations, which belong neither to the essence nor the nature of the contract, but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations.
“What belongs to the essence and to the nature of each particular description of contract, is determined by the law defining such contracts; accidental stipulations depend on the will of the parties, regulated by the general rules applying to all contracts.”

The above quoted articles, coupled with the lease provisions that in the event of expropriation of a part of the premises "... and the balance of said premises in the opinion of said lessee is not suitable . the Lessees are given the option to terminate the lease without further liability on the part of lessees, ... or the rent hereunder shall be reduced in proportion to the reduction in the area of the premises, . . . ” is abundantly clear. The lease could be terminated in the factual situation found in this case.

The taking by the State of Louisiana was the apparent evil against which the appellees were guarding and the lease, being freely entered into by all of the parties and not against law or public morals, is binding on appellants. This specification presents no error on the part of the lower court.

The lower court refused to award compensable damages to appellants for ap-pellee’s failure to construct a building worth $30,000.00 on the premises. The lease provided that: “Lessor shall have the right to remove the buildings and improvements now located on the property herein leased for a period of six (6) months from this date. . . . Lessees obligate themselves to erect buildings and improvements on the leased premises, within a reasonable time period to cost no less than Thirty Thousand and No/100 ($30,000.00) Dollars.”

Noting the fact that this agreement was entered into on March 12, 1968, the trial court in his Written Reasons for Judgment held that:

“Thus, the plaintiff’s claim for damages must be governed by a consideration of whether, under the circumstances, the lessee should have built a structure in the time between when the house was demolished in 1972 and when the lease was terminated in November of 1973. By the time the house was demolished, the State had already taken the property for the improvement of the highway, and Mr. Coxe had already had some of his offers to sublease the property refused by some of the major oil companies. The lessee could have terminated the lease then with no obligation to construct improvements having yet accrued. Instead, the lessee continued to pay the full rent and to make a good faith effort to market the property to someone who would construct the improvements called for in the lease. Certainly, under those circumstances, this Court connot (sic) say that the fact that the lessee did not construct improvements with a value of $30,000.00 amounted to a breach of the lease. Under the circumstances with which the lessee was faced, a ‘reasonable time’ had not yet elapsed when the lease was terminated. Therefore, the lessor is not entitled to damages for the lessee’s failure to construct improvements on the property.”

We agree with this conclusion reached by the lower court.

The third error alleged addresses itself to the trial judge’s refusal to award damages for the demolition of the structure that existed at the time the lease was entered into. Again, looking to the court’s Written Reasons for Judgment:

“Likewise the lessor is not entitled to damages for the destruction of the structure that was on the property when the lease was executed. As was noted above, the lessor continued to collect the rent from the tenants of the structure for a year and a half after the lease was signed. And the lessor received the salvage from the house when it was demolished. The destruction of the house was expressly contemplated and provided for in the lease, and the plaintiff is not entitled to damages for its destruction.”

The issues involved herein appear to be issues of fact, and an analytical disposition of the facts and conclusions of the trial judge should not be disturbed in the absence of manifest error; Jayco Sales & Service, Inc. v. Smith, 303 So.2d 554 (La. App. 1st Cir. 1974). We find, under the facts and circumstances of this case, that the record supports the findings of the trial court and that there was no manifest error therein.

The fourth alleged error, i. e., attorney’s fee for plaintiff-appellant, is thereby rendered moot.

Accordingly, the judgment of the lower court is affirmed; all costs are to be paid by appellant.

Affirmed.

      . The area taken was in connection with State Project No. 25T-02-17, Courtland Drive-Sullivan Road (Greenwell Springs Road) and it is graphically depicted on the strip map introduced at the trial by the plaintiff.


author: ELLIS, Judge.

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The ESTATE of Numa Paul HIMBERT et al.
    No. 10524.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writs Refused April 13, 1976.
    William J. Guste, Jr., Atty. Gen., and Willie D. Maynor, Asst. Atty. Gen., Baton Rouge, for appellant.
    Neil H. Mixon, Baton Rouge, for defendants Numa Paul Himbert, Adelheid Schluter Himbert and Jane Himbert Nehr-bass.
    Ralph Brewer, Baton Rouge, for Excep-tors Steven Wayne Ard, Ronald Stanley Ard, Melanie Mae Ard and Philip Fish-burn Ard.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a suit by the State of Louisiana against the heirs of Numa Paul Himbert, seeking to recover $94,840.00 which was allegedly wrongfully obtained by Mr. Him-bert during his tenure as Auditor of the State Department of Highways. Many exceptions were filed by the defendants, including an “Exception of Laches”. All exceptions were overruled except the “Exception of Laches”, which was maintained, and plaintiff’s suit was dismissed. From the judgment of dismissal, plaintiff has appealed.

We are not called on to review the ruling of the district court in overruling the various other exceptions and motions for summary judgment, since such rulings are interlocutory in nature. Further, none of the defendants have attempted to appeal or ask for review thereof by writ.

. In the judgment of dismissal, the trial judge stated that he “referred to the entire record in this proceeding, insofar as a statement of facts is concerned . . . ” From the same source, we find the following facts:

Numa Paul Himbert was Auditor of the Louisiana Department of Highways from January 2, 1942, through February 16, 1965. It is alleged that, during the period from June 1, 1960, to March 1, 1966, he conspired with Ezekiel W. Gravolet, Jr. and Christian Faser, Jr. to devise a scheme to defraud the State of Louisiana for private financial gain.

Under that scheme, Mr. Gravolet, then a State Senator, entered into a contract of employment with the First National Bank of Jefferson Parish to solicit depositors for the Bank. For this service, he was to receive payments not to exceed one per cent of the average monthly balance of such deposits. Thereafter, pursuant to a directive from Mr. Faser, then Executive Secretary to the Governor, Mr. Himbert, in his official capacity, transferred various Highway Department funds to the First National Bank, which were deposited in non-interest bearing accounts. Eventually, these funds totalled $23,000,000.00.

Payments of $491,033.38 were made to Mr. Gravolet, and were deposited in the accounts of three public relations corporations set up by him. From the accounts of these corporations, payments totalling $94,480.00 were made to Mr. and Mrs. Himbert.

The record does not reveal when these matters came to light, but it was some time prior to Mr. Himbert’s death on January 26, 1970. Federal criminal charges were brought against Mr. Faser in 1969, but were dismissed in June, 1970. The Department of Highways entered into a compromise settlement with the First National Bank on April 27, 1972, as a result of which about $200,000.00 was paid to the Department. This suit was filed on February 12,1973.

The Exception of Laches is based on the proposition that the State has delayed for too long a time in bringing this suit, and that, because of the deaths of two of the principal parties, and the passage of time, it is now impossible for any kind of a defense to be prepared by these defendants.

Laches is a common law equitable doctrine which is without any statutory or codal basis in our law. It has, to a limited extent, been jurisprudentially introduced into our law, and that jurisprudence is somewhat confused.

In its application, however, it has never been held to supersede in any way our own codal provisions relative to prescription. It has been stated to be an evidentiary rule, to be applied only after trial on the merits, in weighing the effect of delay on the evidence presented. See Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966) in which it was said:

“Likewise the plea of estoppel based on laches is without substance. Initially, we point out that such a plea, predicated on lapse of time alone, is inapplicable where á person is given a specific time within which to enforce a legal claim (as here). Thus, in Labarre et al. v. Rateau et al., 210 La. 34, 26 So.2d 279 we pointed out that ‘ * * * While delay in enforcing a right is an element of laches, such delay does not of itself constitute laches. The defeating of a claim by lapse of time alone comes within the province of prescription or limitations. * * * ’ ”

See also Succession of Picard, 238 La. 455, 115 So.2d 817, 820 (1959).

Our examination of the record in this case leads us to conclude that the cause of action arising from the facts pleaded is one in quasi-contract. If an obligation exists in this case, it must arise from the enrichment of Mr. Himbert at the expense of his employer, the State of Louisiana. The actions de in rem verso and condictio indebiti have been characterized as actions in quasi contract, subject to the liberative prescription of ten years. Articles 21, 1965, 2292, 2301, 2311, Civil Code; Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Actio de in Rem Verso in Louisiana: Minyard v. Curtis Products, Inc., 43 Tul.L.Rev. 263 (1969).

We therefore hold that, since there is a specific prescriptive period applicable to the cause of action herein, the plea of laches is not available to defendants as a means for dismissal of plaintiff’s suit.

The judgment appealed from is reversed and set aside, and the case is remanded to the trial court for trial on the merits in accordance with law. All costs of this appeal are to be paid by defendants. All other costs shall await the final disposition of this matter on its merits.

Reversed and remanded.


author: WATSON, Judge.

text:
    Leroy CELESTINE, Plaintiff-Appellant, v. HUB CITY MOTORS, INC., et al., Defendants-Appellees.
    No. 5227.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 1976.
    Taylor & Trosclair by Earl B. Taylor, Opelousas, for plaintiff-appellant.
    Voorhies v. Labbé by W. Gerald Gaudet, Lafayette, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Plaintiff, Leroy Celestine, filed this suit to recover damages for personal injuries he sustained in a one-car accident on July 31, 1971, when he drove a Mustang automobile off Louisiana Highway 182 in Sunset, Louisiana. Made defendants were: Hub City Motors, Inc., a Ford dealer, the owner of the automobile involved in the accident and the employer of its driver, Celestine; and Hub City’s liability insurer, Sentry Insurance/A Mutual Company.

By pre-trial agreement and stipulation among the parties, and with the consent of the trial court, only the question of liability was litigated; quantum of damages was .severed for possible future trial in the event that plaintiff prevailed on the question of liability. The trial court concluded that the accident resulted solely‘from the negligence of Leroy Celestine and dismissed his suit. Plaintiff has appealed.

First, we must deal with the serious issue of whether this court may entertain an appeal in a tort claim which was tried only on the issue of liability.

We have reviewed the statutory law, the codal articles and the jurisprudence and we find no provision for piecemeal trial or appeal. On the contrary, we find that the courts of this state, with few exceptions, have refused to entertain appeals where all issues were not tried in the trial court.

We have solicited from counsel citations of authority authorizing the procedure utilized in the trial court. We have been cited to none. The applicable codal provision is LSA-C.C.P. art. 2083, which reads as follows:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The phrase “final judgment” in Article 2083 has been interpreted to exclude judgments in tort cases where only liability and not quantum has been tried. Bettencourtt v. Boyd, 209 So.2d 339 (La.App. 1 Cir., 1968); Jeansonne v. Willie, 188 So.2d 170 (La.App. 4 Cir. 1966).

We recognize that there have been exceptions.

While Danos v. Central National Insurance Co. of Omaha, 211 So.2d 106 (La. App. 1 Cir. 1968), was tried only on the issue of liability, and the dismissal of plaintiff’s suit was affirmed on appeal, the appellate court stated:

“The law reprobates piece-meal trial of cases and we do not mean this case to be a precedent for similar actions in the future.” 211 So.2d 109.

Also, in Powell v. Continental Insurance Company, 212 So.2d 739 (La.App. 1 Cir. 1968), the rule was relaxed and the First Circuit reviewed the appeal, but the court announced that it would never again do so and would remand any future appeals where only the issue of quantum had been tried.

This court in McDonald v. Book, 215 So.2d 394 (La.App. 3 Cir. 1968), entertained an appeal where evidence as to quantum had not been introduced on behalf of plaintiff. However, in that case, the parties prevailing on a reconventional demand had proved up their damages and this court disposed of the entire matter by affirming the judgment on the reconven-tional demand.

Louisiana courts face a dilemma in the problem of separate adjudication of separate issues. The first impression may be that separate trial of liability and quantum in a tort case would necessarily save time for courts, lawyers and litigants (and also save costs of litigation). While there is the possibility of savings in the trial court; there is also the possibility of a multiplicity of appeals, reversals, and new trials. The difficulties, especially as they might be compounded by the appellate process, have been expressed by Justice Albert Tate, Jr. in 30 La.L.R. 299:

“The counterpart to this trial court policy on the appellate level is the appellate court’s refusal to review adjudications of partial trials, remanding for full trial of all issues, even though an af-firmance of the partial judgment might dispose finally of the entire suit upon the issue adjudicated separately. Under the classic policy, an appellate court will remand an appeal upon an adjudication on negligence tried separately from damages below, refusing to review the issue even though all parties are willing for the court to decide thiá issue separately. The twin policies avoid prolonged litigation, multiple trial appearances of witnesses and fragmentation of their testimony overlapping several issues, and multiple adjudications and appeals, with the possibility of multiple reversals and remands.”

Following what we consider to be the traditional Louisiana view, as held in Bettencourtt and Jeansonne, supra, we reaffirm the rule that cases are not to be tried piecemeal in the trial court and that appeals will not be entertained from judgments in such instances. Since we believe that sound judicial administration would be served by clearly stating the rule, McDonald v. Book, supra, is overruled insofar as it is not distinguishable from the instant appeal.

The case is remanded to the trial court for further proceedings. Costs of this appeal are assessed against appellant and all other costs are to await final disposition.

Remanded.

      . Another case involving claims of guest passengers in the Mustang was consolidated with this case for trial and appeal; however, it has now been compromised and dismissed and is not now before the Court.


author: BARNETTE, Judge.

text:
    Bobby GAUTHIER v. Jim SCOTT.
    No. 10562.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 23, 1976.

      James A. Wood, Baton Rouge, for appellant.
    A. L. Carbonette, Baton Rouge, for ap-pellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is a suit for recovery of sums paid by plaintiff, Bobby Gauthier, as an alleged co-debtor in solido with the defendant, Jim Scott, on one promissory note executed by them as co-makers in the principal sum of $4,000 and on a continuing guaranty executed by them as obligors in solido, or co-sureties for an $18,000 debt of a small corporation in which they were mutually interested as business associates.

The trial court found them to be co-debtors in solido on both obligations and that the plaintiff was entitled to contribution of one half of the $4,000 paid on the note and to contribution of one third of the balance of $15,007.05 paid by him on the $18,000 note. Accordingly a judgment in his favor against the defendant in the principal sum of $7,002.35 was rendered. The defendant has appealed suspensively.

The plaintiff and defendant were associated in a business venture operating as a corporation, Lancer’s Belt Company, Inc. During the course of that business it was necessary to obtain loans for financing. A loan of $4,000 was obtained from American Bank and Trust Company. This note was signed by Bobby Gauthier (plaintiff) and Jim Scott (defendant) as co-makers, binding themselves in solido.

A loan of $18,000 was obtained from the same bank, the note for which was signed “Lancers Belt Company, Inc. By Bobby Gauthier.” This note was secured by a “CONTINUING GUARANTY” signed by Jim Scott and Bobby Gauthier. That guaranty contains the following significant provision:

“ *■ * * We do furthermore bind and obligate ourselves, our heirs and assigns, in solido with said debtor, for the payment of the said indebtedness precisely as if the same had been contracted and was due or owing by us in person, hereby agreeing to and binding ourselves, our heirs and assigns, by all terms and conditions contained in any note or notes signed or to be signed by said debtor, making ourselves a party thereto; hereby waiving notice of any such indebtedness and of demand, protest or notice of demand or non-payment and of notice of any act to establish the liability of any party on any commercial or other paper, indebtedness or obligation covered by this guaranty; * * * ”

The $18,000 note was credited with payments which reduced the balance to $15,007.05 when demand was made upon Mr. Gauthier for payment. Gauthier paid this amount plus the $4,000 due and owing on the note signed by him and Mr. Scott. Both notes were endorsed over to Gau-thier, by the Bank, without recourse.

The plaintiff brought this suit for recovery of the full amount paid, $19,007.05, with interest and attorney’s fees or in the alternative for contribution of one half that amount. The judgment in his favor, as stated above was for contribution of one half the $4,000 and for one third of the $15,007.05. The plaintiff did not appeal and has not answered the appeal seeking an increase.

There is no dispute of. fact. The defendant admitted signing the $4,000 note as a co-maker with the plaintiff and admitted signing the continuing guaranty for the purposes alleged.

In his brief filed in this court the appellant assigns as error the judgment awarded “ * * * on a note and a continuing guaranty when neither had been introduced into evidence.” He argues that the trial court should not have considered the specific provisions contained in the continuing guaranty, not filed in evidence, to find an obligation other than a simple surety agreement, which would be governed by Civil Code, Article 3058.

He does not deny that Gauthier and Scott were bound as sureties for the same debtor, Lancer’s Belt Company, Inc., but argues that Gauthier not having paid as a consequence of a suit against him cannot seek contribution. Civil Code Article 3058 provides as follows:

“When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against him.”

The thrust of appellant’s argument is that the trial court was in error in looking to the continuing guaranty, not filed in evidence, to find a basis for not applying the provisions of Article 3058 which limited plaintiff’s right of recovery to a situation where he had paid as a consequence of a suit against him.

We find no merit in defendant-appellant’s argument. The $4,000 note sued and the $18,000 note were attached to the plaintiff’s original petition and filed therewith as “Exhibits One and Two.” The continuing guaranty is attached to the petition and referred to in the pleading but is not identified by exhibit number and not specifically filed as an exhibit.

In plaintiff’s amending and supplemental petition he alleged in paragraph 2 as follows :

“Petitioner and defendant became bound in solido to a mutual creditor, American Bank and Trust Company, domiciled in Baton Rouge, Louisiana, arising out of the execution of a certain promissory note in the principal sum of Four Thousand and No/100 Dollars ($4,000.00), as evidenced by the note accompanying this petition as an exhibit, on or about 7 March 1973, and a continuing guaranty and surety agreement executed in favor of American Bank and Trust Company as security for obligations and debts either owing or accruing thereafter by Lancers Belt Company, Inc., and in particular, on a promissory note executed by the Company in favor of the creditor on or about 29 November 1972, which appears as an exhibit to this petition.”

Again the plaintiff failed to specifically file the attached continuing. guaranty agreement as an “exhibit” with an identifying number, as he did the two notes.

A “PRE-TRIAL ORDER” which was certified to and signed by counsel for plaintiff and defendant and filed in the record contains the following:

“F. LIST OF EXHIBITS
(1) Note One (1) for $18,000.00
(2) Note Two (2) for $4,000.00
(3) Continuing Guaranty Agreement
“G. EXHIBITS STIPULATED AS AUTHENTIC
All of the above are stipulated as authentic.”

We therefore hold that the “Continuing Guaranty” is an exhibit filed in the record and therefore properly before the court for all purposes. LSA-C.C.P. Art. 853. Foster v. Stewart, 161 So.2d 334 (La.App. 1st Cir. 1964). The trial court judge therefore committed no error in giving consideration to all its terms and provisions.

In his written reasons for judgment the judge of the trial court said in part:

“However, while the guaranty is obviously a surety agreement, the benefits of C.C. Art. 3058 are not available to Mr. Scott because the terms of the guaranty bind him in solido with the debtor. The guaranty provides in part that: * * *»

At this point he quoted the significant provisions of the “Continuing Guaranty” which we have quoted above. He then continued as follows:

“C.C. Art. 3045 provides that when a surety binds himself in solido with the debtor, then the relationship is regulated by the principles established for debtors in solido. This principle has been recognized in the recent cases of Wooten v. Wimberly, 272 So.2d 303 (La.Sup.Ct., 1972) and American Bank and Trust Company v. Blue Bird Restaurant & Lounge, Inc., 279 So.2d 720 (La.App., 1st Cir., 1973), affirmed 290 So.2d 302 (La. Sup.Ct., 1974). In the latter case, the Court of Appeal and the Supreme Court held that a guaranty with language identical to that quoted above bound the signatory thereof in solido with the debtor, and the Court of Appeal expressly held that the guarantor was thereby deprived of the benefits that accrue to suretys but not to codebtors in solido. Therefore, Mr. Gauthier and Mr. Scott were codebt-ors in solido with Lancer’s Belt on the $18,000 debt, and when Mr. Gauthier paid the debt, he became entitled to contribution from Mr. Scott and Lancer’s Belt Company, Inc. C.C. Art. 2104.”

Civil Code Article 2104 provides as follows :

“If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
“If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

The court found correctly that since there was no evidence of the insolvency of Lancer’s Belt Company, Inc. the plaintiff was entitled to contribution of only one third of the $15,007.05 paid by him.

As to the $4,000 note paid by the plaintiff, the court correctly held the plaintiff entitled to contribution of one half.

For these reasons the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: ELLIS, Judge:

text:
    In re Stephen BERGER v. DEPARTMENT OF PUBLIC SAFETY.
    No. 10515.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 13, 1976.

      James A. Wood, Baton Rouge, for appellant.
    James C. Dixon, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

On August 21, 1974, Stephen E. Berger entered a plea of guilty to Driving While Intoxicated in the Traffic Court of the City of New Orleans. On August 26, 1974, Stephen E. Berger entered a plea of guilty to Driving While Intoxicated in the 23rd Judicial District Court for the Parish of Ascension. He was not charged as a second offender in the latter case.

On November 8, 1974, Mr. Berger was notified that his driver’s license had been suspended for a period of one year. The reason indicated for the suspension was “Driving While Intoxicated (2nd Offense)”. On December 6, 1974, through counsel, Mr. Berger requested a hearing, which was eventually scheduled for March 4, 1975.

The hearing was held as scheduled by Kirby Bergeron, License Control Officer, and was attended by Mr. Berger and his counsel. On March 6, 1975, Mr. Bergeron rendered a written decision, affirming the suspension of Mr. Berger’s driving privileges. Written notice thereof was forwarded to Mr. Berger on March 14, 1975.

On April 11, 1975, this suit was filed, seeking judicial review of the suspension, and asking that the suspension be vacated. After trial on the merits, the trial court affirmed the suspension and dismissed plaintiff’s suit. From the judgment of dismissal, plaintiff has appealed.

Plaintiff’s contention is that, because he was not represented by counsel in his guilty plea before the New Orleans Traffic Court, he could not be legally convicted as a second offender before the 23rd Judicial District Court. He further argues that, without the benefit of advice of counsel as to all administrative consequences of his guilty plea, a conviction and sentence based thereon cannot form the basis for the suspension of his license under R.S. 32:414. He argues that it is a denial of due process to uphold a suspension of his driving privileges based on uncounseled convictions.

All of the authorities cited in support of this proposition relate to the penal consequences of an uncounseled plea. These cases stand for the proposition that an un-counseled conviction for Driving While Intoxicated cannot form the basis for mandatory or increased imprisonment following a second conviction for the same offense, absent a knowing and intelligent waiver of counsel. State v. Strange, 308 So.2d 795 (La.1975).

However, in Whitaker v. State Department of Public Safety, Drivers License Division, 264 So.2d 725 (La.App. 1 Cir. 1972), we noted that “mandatory suspension of the driver’s license and related motoring privileges is a separate administrative corollary to the licensing statute and is unrelated to the potential criminal conduct arising out of the same factual situation.” See Norman v. Waguespack, 295 So.2d 820 (La.App. 1 Cir. 1974).

We hold that the doctrine of the Strange case' ¡supra, does not extend to administrative proceedings of this type. Plaintiff’s constitutional rights are amply protected by the judicial review provided by R.S. 32:414. The right to drive is a privilege granted by the state, and it may impose such reasonable conditions thereon as it may see fit. The suspension of the driving privileges of those who are serious violators of the traffic laws is such a reasonable condition, imposed for the protection of the driving public.

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

Affirmed.


author: PICKETT, Judge.

text:
    Kathryn Eileen ROBINSON, Plaintiff-Appellee, v. Carolyn May SMITH, Defendant-Appellant.
    No. 10557.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 13, 1976.
    Gerald Arceneaux, Baton Rouge, for defendant-appellant.
    Daniel H. Taylor, Baton Rouge, for plaintiff-appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge.

Howell Burr May died, intestate, domiciled in East Baton'Rouge Parish, Louisiana, on April 26, 1974.

It is contended by Kathryn Eileen Robinson that he died leaving two forced heirs, namely, herself, as an adopted child, and Carolyn May Smith, the legitimate daughter of the marriage of Decedent to Kathryn Bradley May, the said Kathryn Bradley May having preceased Decedent.

On July 12, 1974, the Nineteenth Judicial District Court, East Baton Rouge Parish, Louisiana, signed a Judgment of Possession, recognizing Carolyn May Smith as the sole child and heir of Decedent. This Judgment was based on the ex parte petition, with attachments, all regular on their face, presented to the Court by Carolyn May Smith, alleging herself to be the sole child and heir of Decedent, alleging, among other things, that Decedent never adopted anyone.

One day prior thereto, on July 11, 1974, Kathryn Eileen Smith, having learned of the impending Succession proceeding filed, pursuant to Article 2971 of the Code of Civil Procedure, a “Notice of Opposition” to the filing by Carolyn May Smith of the aforesaid Petition of Possession, alleging, among other things, that she, Kathryn Eileen Robinson, was an adopted child of Decedent, and therefore a co-heir, with Carolyn May Smith, to the estate of her adoptive father, and sought to be recognized as such.

Defendant, Carolyn May Smith, answered this petition of opposition, denying that Decedent was the adoptive father of Kathryn Eileen Robinson, and denies that Kathryn Eileen Robinson is an heir of Decedent.

There was no testimony in this case. All evidence was documentary and was presented on briefs.

From a Judgment in favor of Kathryn Eileen Robinson, rendered on March 7, 1975, and signed on April 17, 1975, recognizing her as the adopted child of Decedent, and following denial of a Motion for a New Trial, Defendant-Appellant appeals.

La.C.C.P., Article 865 provides that “Every pleading shall be so construed as to do substantial justice.” This Court, as did the Trial Court below, will construe the Plaintiff-Appellee’s pleading, termed by her as a “Notice of Opposition”, as a petition to re-open the Succession, as authorized by La.C.C.P., Article 3393, since Plaintiff alleges she is a forced heir of Howell Burr May and her rights as such were not recognized in 'his Succession.

The facts, as established by the documents filed in the record disclose that Decedent, Howell Burr May, was married one time and then on March 26, 1918, to Kathryn Bradley May.

The Succession of Kathryn Bradley May, filed by Howell Burr May, on February 26, 1968, as Number 21,787, Probate Docket I, East Baton Rouge Parish, Louisiana, with Judgment of Possession rendered that same date, recites that his wife, Kathryn Bradley May, died November 21, 1967, intestate, domiciled in East Baton Rouge Parish, Louisiana, and that one child was adopted by Decedent, Kathryn Bradley May, and petitioner, Howell Burr May, namely, Kathryn Eileen Robinson, in 1930, and only one child, namely, Carolyn May Smith, was born of the marriage in 1932. The Judgment of Possession recognized Kathryn Eileen Robinson and Carolyn May Smith as the children and sole heirs of the Decedent, Kathryn Bradley May.

The documentary evidence further establishes that sometime during 1929 Howell Burr May and his wife, Kathryn Bradley May, retained an attorney (now Retired Chief Justice Joe B. Hamiter) to handle an adoption proceeding for them, in Caddo Parish, whereby they were seeking to adopt an infant child, born May 1, 1929, namely Kathryn Eileen May, who is the present Kathryn Eileen Robinson.

Plaintiff-Appellee was unable to produce either the original Act of Adoption, or a copy of same.

The Clerk of Court, Caddo Parish, Louisiana, has been unable to find where this adoption proceeding was .ever filed in his office, nor is there evidence that it is in fact on file any where.

We also note, as a part of the evidence, the sworn petition of Howell Burr May, in the matter of the Succession of his wife, Kathryn Bradley May, Probate Number 21,787, Docket I, Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, in which Mr. May affirmatively declared that he and his wife, in 1930, adopted a child, namely, Kathryn Eileen Robinson, wife of E. David Robinson. This “adopted” child, along with a natural child, Carolyn May Smith, Defendant-Appellant herein, was duly recognized by the Court as an heir of the Decedent, Mrs. May, in the Judgment of Possession, read, signed and filed February 26, 1968.

These same two parties, namely, Kathryn May Robinson and Carolyn May Smith, subsequently, on August 27, 1973, executed an Act of Exchange between them, in which they mutually recognized each other’s rights in certain property they had acquired in the above referred to Succession of Mrs. May, and made designated exchanges of certain real estate.

Among the several documents filed in evidence by Plaintiff-Appellee were two affidavits by the said Honorable Joe B. Hamiter, who declared that in 1929 he, as Attorney for Mr. and Mrs. Howell Burr May, prepared an Act of Adoption, for them, pursuant to the then existing statutory requirements, and that it was properly executed by the said Mr. and Mrs. May, as adoptive parents of the child involved, and that the Mother of the child also came to his office and signed the adoption instrument to permit the adoption of the child, born May 1, 1929, and given the name, “Kathryn Eileen May” in the adoption papers. He said he gave a certified copy of the Act of Adoption to the adoptive parents. This copy was later destroyed by Mr. May because he and his wife hoped that they would never have occasion to tell the child of her adoption. However, at age 13 years she was told of her adoption by her adoptive parents.

The controlling law on adoptions at that time was Act Number 13 of 1928, which provided, in pertinent part, as follows:

“To provide for the filing and recording of acts of adoption. Section 1. Be it enacted by the Legislature of Louisiana, That all acts of adoption shall be filed with the Clerk of Court and Ex-Officio Recorder of the Parish where said Act of Adoption was executed.
Section 2. That the Clerks of Court and Ex-Officio Recorders throughout the State of Louisiana, shall record all acts of adoption in the Conveyance Records and for which recording they shall be entitled to charge as provided for by the existing laws providing for recorder’s fees; provided that failure to so record any act of adoption shall not invalidate the adoption.”

Defendant-Appellant has levelled a two-pronged attack against the claim of Plaintiff-Appellee, namely, first, Defendant-Appellant denies that Plaintiff-Appellee has proved the existence of a lawful Act of Adoption; and, second, that Plaintiff-Ap-pellee has failed to prove that an Act of Adoption was filed and recorded, which she contends must be done to meet the strict compliance requirements of said Act 13 of 1928.

We will first consider the question of the proof of the existence of a lawful Act of Adoption.

In the case of Lyons v. Goodman, La. App., 78 So.2d 424, which was an adoption case including very similar facts and issues, this Court, in a discussion of L.S.A.-C.C. Art. 2279, applied the general rule regarding proof of lost or destroyed instruments, holding:

“The jurisprudence of Louisiana is well settled to the effect that any instrument which has been lost or destroyed may be proved by secondary evidence. The manner of proof varies with the nature and kind of document.”

Considering all of the evidence presented, and with particular emphasis on the affidavits of Retired Chief Justice Joe B. Hamiter, this Court concludes that an Act of Adoption was in fact lawfully prepared and signed, and that in this Act of Adoption Mr. and Mrs. Howell Burr May adopted the child, Kathryn Eileen May, in the year 1929.

With reference to the contention that the Act of Adoption was never filed, and that this is a formal requirement of Act 13 of 1928, note must be taken of that portion of one of the affidavits of Retired Chief Justice Hamiter which declares :

“. A certified copy of the act was given to them.”
Justice Hamiter further declares:
“That to the best of his recollection the adoption was handled and completed in compliance with all formalities of the existing law and jurisprudence and was in fact accomplished.”

The existence of a certified copy would presuppose a filing of the original. However, we were not required to adjudicate on this point in view of the provisions of Act 46 of 1932.

The Legislature of Louisiana, by Act 46 of 1932, superseded notarial adoptions by judicial proceedings, and Section 13 of that statute, in order to cure any irregularities in previous adoptions, provided:

“Section 13. That any and all adoptions heretofore made, be and they are hereby confirmed, approved and validated, and that any action to set aside or annul any act of adoption made prior to the passage of this act shall be prescribed after the lapse of six months from and after the promulgation of this act; but this prescriptive period shall apply solely to actions having the purpose of setting aside and annuling acts of adoption by reason of such adoption not having been effected by an authentic act, but by private act before witnesses and acknowledged, or that all necessary parties did not sign the act of adoption.”

In view of our finding that the evidence establishes that a lawful Act of Adoption was in fact executed, by all interested parties, and the contents thereof established, and proof having been made that said Act of Adoption has been lost or destroyed, we find that any defects or irregularities were cured by the provisions of Article 46 of 1932. This Court, in reaching this conclusion, is following its previous conclusion arrived at in the case of Lyons v. Goodman, 78 So.2d 424 (La.App. 1st Cir. 1955) involving very similar facts and issues. .

Judgment affirmed.

Defendant-Appellant to pay all costs.