author: WATSON, Judge.

text:
    Jack BROOKSHIRE et al., Plaintiffs-Appellees, v. Thomas J. GUIDRY et al., Defendants-Appellants.
    No. 6293.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Thomas D. Brumbaugh, Lafayette, for defendants-appellants.
    Broussard, Broussard & Moresi, Paul G. Moresi, Jr., Abbeville, Deshotels & Desho-tels by O. H. Deshotels, Jr., Kaplan, for plaintiff s-appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

This lawsuit involves a boundary dispute between adjoining landowners in Vermilion Parish. Plaintiffs, Jack, Edna and Charles H. Brookshire, filed a possessory action alleging that their possession up to a visible boundary, a fence, had been disturbed by defendants, Michael James, Thomas J. and Thomas J. Guidry, Jr. Plaintiffs alleged possession of the following described property:

“One certain tract of land containing 161 acres more or less, situated in the Southern portion of Irregular Section 66 and in the Northern portion of Irregular Section 67, Township 12 South, Range 3 East, Vermilion Parish, Louisiana.” (TR. 5). Defendants allegedly tore down the old fence and damaged some trees and shrubs. The Brookshires asked for damages and restoration of their peaceful possession. The Guidrys reconvened, alleging that the boundary had never been properly determined and asking that a surveyor be appointed. The Guidrys alleged ownership of the following described property:

“That certain tract of land, together with all buildings and other improvements thereon, situated in Section 66, Township 12 South, Range 3 East, Louisiana Meridian, Vermilion Parish, Louisiana, containing 85.39 acres, more or less, bounded, now or formerly, North by R. J. Young, South by J. A. Brookshire et al and Dulva Hebert, East by Section Line and Public Road.” (TR. 11).

The Guidrys also filed a supplemental re-conventional demand naming as defendants the numerous owners and lessees, of the minerals under both tracts. Plaintiffs filed a peremptory exception of prescription to the reconventional demand on the basis of possession to a visible boundary for a period in excess of 30 years. The trial court sustained the exception and ordered that a fence erected by defendants in 1973 be removed at defendants’ cost. Defendants, the Guidrys, have appealed.

The trial court made factual findings that plaintiffs, the Brookshires, and their ancestors in title, had had possession to the old fence line, a visible boundary, for a period in excess of 30 years and had fulfilled the requirements of LSA-C.C. art. 852.

There is abundant evidence, although disputed in some aspects, contained in the testimony of the some eighteen witnesses to the effect that a fence existed on the northern boundary of the Brookshire tract for more than thirty years and that the fence ran from the road, which formed the western boundary, up to or almost up to the coulee on the east. Several witnesses described the fence in detail and identified it as being considered the Brookshires’ property line. There is no need to recite this testimony in detail, since it provides a more than reasonable evidentiary basis for the trial court’s findings of fact, which must, therefore, be affirmed. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974) writ denied, 303 So.2d 187.

Thus, the evidence preponderates strongly in favor of the trial judge’s finding that there was a visible boundary evidenced by a fence between the Brookshire and Guidry. property and that there has been actual, uninterrupted possession by the Brookshires and their ancestors in title for 30 years or more of the land to the fence. The boundary established for more than 30 years should not be disturbed and the Brookshires as possessors have acquired the right to the land beyond their title embraced within the visible boundary or fence. William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La., 1977); Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957). LSA-C.C. art. 852. A surveyor has previously been appointed by the trial court and it only remains for the surveyor to survey the ideal boundary between these owners and show the relationship of the old fence to that boundary following which the trial court can render a judgment. The survey will provide record evidence of and confirm the location of the old fence line, which has been established as the boundary by acquisitive prescription.

Here, as in the Wellman case, supra, only one group of litigants provoked the necessity for a survey. Accordingly, the expenses of the survey should be borne by Thomas J. Guidry, et al, defendants-appellants, and not jointly by the parties under LSA-C.C. art. 663.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are taxed against defendants-appellants, Thomas J. Guidry, et al. The matter is remanded to the trial court for survey and judgment according to law.

AFFIRMED AND REMANDED.

“Art. 852. Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

      . LSA-C.C. art. 852:


source: Caselaw Access Project

license: Public Domain

text:
    Johnny Buford RAMBIN v. Jefferson Davis WOOD et al.
    No. 6295.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      John G. Williams, Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for plaintiff-appellant.
    Donald G. Horton, Coushatta, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Johnny Buford Rambin, plaintiff, filed this action in tort against Jefferson Davis Wood, and Wood’s insurer, first named as Travelers Insurance Company, and later correctly identified as Charter Oak Fire Insurance Company, a member company of the Travelers group.

Rambin alleged that on March 2,1973, he was riding a small lawn tractor in the yard of his residence when he was approached by Wood who pushed him, causing plaintiff to fall from the tractor. As a result, Rambin claimed he sustained contusions, three fractured ribs, muscle sprains, and pneumonia while hospitalized for his injuries.

Wood answered, denying liability. Charter Oak filed an exception of no right and no cause of action, which was overruled, and also answered denying coverage and liability.

Charter Oak principally contends that there is no coverage because the liability feature of its policy, as contained in section II, subsection 1, specifies that damages must be caused by an “occurrence” and section (h) page 6, provides:

“ ‘occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured;”

After trial on the merits, the trial court found in favor of plaintiff against Jefferson Davis Wood and awarded $3,500 for personal injuries plus $170 in special damages. The claim against Charter Oak was dismissed for reasons set forth in the opinion of the trial court, as follows:

“Charter Oak Insurance Company had previously issued a homeowners insurance policy to Mr. Wood. This policy contained an exclusionary clause which denied coverage for an occurrence which resulted in injury expected or intended from the standpoint of the insured. The shoving or pushing by Mr. Wood was intended, and although he might not have expected the resulting injuries to Mr. Rambin, the courts have consistently held that this type of exclusion applies and no coverage exists.” (TR. 73).

Plaintiff has appealed, contending that the trial court erred in dismissing his claim as to Charter Oak and that the trial court abused its discretion in awarding insufficient damages.

The latter specification of error can be disposed of summarily since the record reflects that the award of damages is within the much discretion accorded the trial court. LSA-C.C. art. 1934.

The other specification of error presents a much more serious issue. Essentially, the inquiry is whether the serious injuries sustained by plaintiff were expected or intended by Wood and, consequently, whether there is coverage under the Charter Oak policy.

The trial court made a factual finding on this point favorable to plaintiff, holding as quoted above, that Wood intentionally shoved or pushed Rambin but he “might not have expected” the injuries which resulted.

The incident occurred when Rambin was riding a small, 10 h. p. tractor and attempting to open a ditch about which he and the defendant had a dispute. Wood approached Rambin from the rear and either struck or pushed him on the shoulder, causing him to fall off the tractor. As he fell, Rambin turned off the machine but his foot or leg was caught under one of the wheels. Wood then assisted in rolling the tractor off Ram-bin and although the parties each contend that various words were exchanged either

before or after the incident, the pushing or shoving constituted the only physical action of one toward the other.

The evidence reasonably supports the trial judge’s conclusion that the shoving or pushing of the plaintiff by defendant was intentional but that the resulting injuries were not expected or intended.

Under these circumstances, the actions of the defendant can be described as negligent but do not constitute an intentional injury. Bourque v. Duplechin, 331 So.2d 40 (La. App. 3 Cir. 1976), writs denied, 334 So.2d 210 and 230.

Counsel for Charter Oak cite Monk v. Veillon, 312 So.2d 377 (La.App. 3 Cir. 1975), but the instant case is distinguished from Monk, which involved an assault or battery exclusion, because the holding there was that one intends what is substantially certain to follow. In Monk, the insured fired a pistol from about eight feet away at plaintiff. This Court held that the insured reasonably must have intended the result, that is, the bullet striking and injuring plaintiff. 312 So.2d 380.

Charter Oak’s counsel also cite the First Circuit case of Kipp v. Hurdle, 307 So.2d 125 (La.App. 1 Cir. 1975), writ refused. Respectfully, we must disagree with the statement of our brothers (without citation of authority or other support) that:

“Even so, it is presumed that she [the insured] intended the consequences of her aggressive action.” 307 So.2d 127.

Bourque and Monk, but not Kipp, are in accord with the Restatement of Torts 2d, Section 8A which defines intent as follows:

“The word ‘intent’ is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

The Louisiana cases emanating from this circuit are in accord with cases from other jurisdictions dealing with the policy exception here at issue or an exception worded similarly. For example, in Caspersen v. Webber, 298 Minn. 93, 213 N.W.2d 327 (1973), the Supreme Court of Minnesota considered a case in which an irate patron had pushed a hatcheck girl and she fell against a metal rack. The patron admitted being angry and shoving the girl but denied an intent to harm her. In considering a policy which excluded coverage for bodily injury “caused intentionally”, the court held that when the act itself was intended but the resulting injury was not, the exclusion had no application, and found coverage under the policy.

Also see State Farm Fire & Casualty Company v. Muth, 190 Neb. 248, 272, 207 N.W.2d 364 (1973), where the Supreme Court of Nebraska adopted the rule that for a policy exclusion such as the one involved in the instant case to be effective, an injury is either expected or intended only if the insured acted with the specific intent to cause harm to a third party. There the trial court had held that a youth who fired a b. b. gun from a slow-moving automobile, striking a schoolmate did not intend or expect to do bodily injury tó the schoolmate, only intending to scare him. The trial court’s conclusion was found to be reasonably supported by the evidence and the insurance was found to provide coverage.

We believe as did the Nebraska court that the rule adopted and applied in Bourque, Monk and the instant case:

“. . .is the proper one and tends to

promote the fulfillment of the reasonable expectations of the insured and the injured, and at the same time will tend to promote the public policy of excluding coverage where there is a deliberate intention to cause physical harm or where,

. such intention must be attributed as a matter of law because the acts are of such a nature that the injury must necessarily be expected.” 207 N.W.2d 367.

For the reasons assigned, the judgment of the trial court will be amended to give plaintiff judgment against Charter Oak Fire Insurance Company in addition to Jefferson Davis Wood.

It is therefore ordered, adjudged and decreed that the judgment in these proceedings of April 5,1977 be reversed in part and that there be judgment in favor of plaintiff, Johnny Buford Rambin, and against the defendant, Charter Oak Fire Insurance Company, and against Jefferson Davis Wood, jointly and in solido, in the full sum of $3,500 general damages, plus $170 in special damages for a total judgment of $3,670, together with legal interest from date of judicial demand until paid.

It is further ordered, adjudged and decreed that the defendants, Jefferson Davis Wood and Charter Oak Fire Insurance Company are cast jointly and in solido for all costs in the trial court.

All costs on appeal are taxed against Charter Oak Fire Insurance Company.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

      . Wood also appealed but he has not appeared through counsel and has not filed a brief. His appeal will not, therefore, be considered.


author: GUIDRY, Judge.

text:
    Ernest BOWMAN, Plaintiff-Appellant, v. Constance Faye BOWMAN, Defendant-Appellee.
    No. 6305.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Writ Refused May 12, 1978.

      Prank R. Bolton, Jr., Alexandria, for plaintiff-appellant.
    Larvadain & Scott by Charles L. Scott, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   GUIDRY, Judge.

Plaintiff was granted a divorce from defendant by judgment dated September 21, 1976, upon proof that the parties had lived voluntarily separate and apart for a period in excess of two years. LSA-R.S. 9:301. The judgment awarded custody of the one minor child born of the marriage to defendant but made no award of alimony or child support. This judgment had the effect of terminating a previous award of alimony and child support pendente lite in the amount of $200.00 monthly. Thereafter, defendant in a rule alleging her divorce from plaintiff; that she had court awarded custody of the minor child; that both she and her child were in necessitous circumstances; and, that plaintiff was able to support them; sought permanent alimony and child support in , the amount of $400.00 monthly. Upon trial of this rule the trial court rendered judgment fixing the amount of permanent alimony at $150.00 monthly and the amount of child support at $200.00 monthly.

Plaintiff appeals this judgment and assigns as error (1) abuse of the trial court’s discretion in fixing the amount of permanent alimony and child support at a sum greater than that allowed pendente lite without a showing of “changed circumstances”; and, (2) permitting defendant to prove her freedom from fault although her rule contained no averment stating that Mrs. Bowman was without fault in causing the divorce. We find no merit in either of appellant’s contentions.

Alimony pendente lite, both for the wife and minor children, terminates with a judgment of divorce. Therefore, when the wife seeks permanent alimony and child support simultaneous with or following a divorce her burden is not to change a previous award but rather to prove a sound basis for a new award. Consequently, “changed circumstances” are not required to be shown for a larger amount of permanent alimony to be awarded than was awarded for alimony pendente lite. Worley v. Worley, 247 So.2d 254 (La.App. 3rd Cir. 1971); Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir. 1972); Hughes v. Hughes, 303 So.2d 766 (La.App. 1st Cir. 1974).

The original granting of, subsequent change in, or termination of alimony and child support may be tried and disposed of in a summary proceeding. LSA-C.C.P. Article 2592. A summary proceeding is commenced by the filing of a contradictory motion or by a rule to show cause. LSA-C. C.P. Article 2593. Upon the filing of a rule for permanent alimony our law automatically places upon the wife the burden of proving that the divorce was obtained by her or by her husband under the circumstances set forth in sub-paragraphs 2 and 3 of LSA-C.C. Article 160; she has not been at fault; and, she has not sufficient means for her support. Upon proper proof of these three elements the court may allow the divorced wife, out of the property and earnings of the husband, alimony not to exceed one-third of his income. LSA-C.C. Article 160.

Our law does not intend nor does it contemplate that in a summary proceeding for permanent alimony the wife must necessarily allege with exactness and precision the elements which our law clearly requires she must prove before she is entitled to an award of permanent alimony. Accordingly, we conclude that the trial court was eminently correct in allowing proof of the defendant wife’s freedom from fault although her rule contained no averment that she was without fault in causing the divorce.

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

AFFIRMED.


author: FORET, Judge.

text:
    Joe A. JARRED, Plaintiff-Appellant, v. Thelma M. JARRED, Defendant-Appellee.
    No. 6307.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Kramer & Davis by James Davis, Alexandria, for plaintiff-appellant.
    Prank R. Bolton, Jr., Alexandria, Henry H. Lemoine, Jr., Pineville, for defendant-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

This is a suit for partition of the community of acquets and gains between a husband and wife. The district court held that a wife and husband who live separate and apart without a judgment of separation have different rights as regard to their earnings. Specifically, the district court held that the wife’s earnings while she was living separate and apart from her husband, before divorce, were her separate property, but that the husband’s earnings while living separate and apart from his wife, before divorce, fell into the community of acquets and gains.

After the separation in fact, but before the divorce, both Joe Jarred and Thelma Jarred, at various times, paid the house notes and house insurance on the community home. Both parties claim reimbursement from the community for these expenditures. The district court held that the wife was entitled to a 100% credit for money she expended on house payments, paid out of funds earned by her while she was living separate and apart from her husband, based on the fact that her earnings thus earned were her separate property. The district court further held that since the earnings of the husband living separate and apart from his wife were community earnings, the husband was not entitled to credit for monies expended on community debts such as house payments, house insurance, and the like. The district court further held that the wife’s equity in the Federal employees retirement program earned during the marriage was her separate property; however, the trial court awarded to the husband, a credit of $1,402.31, representing his half of the community funds which had been deducted from the wife’s salary and. placed in her retirement fund under the Federal Employees Retirement System.

Joe Jarred and Thelma Jarred were married on September 4, 1948. On December 15, 1972, they commenced living separate and apart. No petition was ever filed by either of them for a separation from bed and board. On March 9,1976, a petition for divorce was filed, and on April 21, 1976, a judgment of divorce was rendered.

During the time in which she was separated in fact from Joe Jarred, Thelma M. Jarred expended from her earnings, the sum of $2,386.75 in payment of community debts (payment of a community loan, house note, and insurance on the family residence). During the same period of time, Joe Jarred made payment on similar community debts in a total amount of $4,826.88.

Defendant-appellee, Thelma M. Jarred, has been an employee of the Federal Clerk of Court’s Office in Alexandria, Louisiana, for the past seventeen years. During her tenure, deductions were made from her paycheck and placed in a retirement system for Federal Employees. From the period beginning August 9, 1961 (her first day of employment), and ending December 31, 1972, deductions in the total amount of $2,804.62 had been made toward the retirement system.

Simply stated, the issues are: (1) were the wife’s earnings while living separate and apart from her husband, her separate property; (2) the constitutionality of Louisiana Civil Code Article 2334 wherein it makes a distinction between the earnings of the wife, in a case such as this, and those of the husband, while living separate and apart; and (3) the classification of the wife’s benefits under the Federal Employees Retirement System, i. e., whether separate or community property.

Louisiana Civil Code Article 2334 provides that the earnings of the wife while living separate and apart from her husband, even though not judicially separated, are her separate funds. Any doubt concerning the interpretation of this article was resolved by the Louisiana Supreme Court in Houghton v. Hall, 177 La. 237, 148 So. 37 (1933).

At 148 So. 42, the Supreme Court said: “It cannot be questioned, with any degree of plausibility, that the earnings of the wife, with the view of protecting her, while in an unfortunate position, against the possible acts of her husband, are, by the act [La.C.C. Art. 2334], made her separate property, when she is living apart from him, although there has been no separation from bed and board decreed by any court.”

In Succession of LeJeune, 221 La. 437, 59 So.2d 446 (1952), the Louisiana Supreme Court reiterated the Houghton rule. Clearly, the trial court in this case was correct in concluding that the earnings of Thelma Jarred, while living separate and apart from her husband, though not judicially separated, were her separate property under LSA-C.C. Art. 2334, and Houghton and its progeny. In fact, the principle is so well established that while Houghton has been extensively cited on other points, it has been very sparsely cited on the issue with which we are here involved.

Joe Jarred next claims that Louisiana Civil Code Article 2334 is violative of the Louisiana Constitution in that it discriminates against the husband by classifying his earnings, while living separate and apart from his wife, to be community property, while those of the wife, under similar circumstances, are classified as her separate property.

The Louisiana jurisprudence is well settled that all laws are presumed to be constitutional, and that a litigant cannot question the constitutionality of a statute unless its unconstitutionality is specially plead and the grounds particularized. Johnson v. Welsh, 334 So.2d 395 (La.1976); Becker v. Allstate Ins. Co., 307 So.2d 101 (La.1975); Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971); City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930). The corollary of this rule is that a litigant who fails to plead and put at issue the unconstitutionality of a statute in a trial court cannot raise the constitutional issue in the appellate court. Johnson v. Welsh, supra; Summerell v. Phillips, supra; Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 (1970); State ex rel. McAvoy v. La. State Board of Medical Examiners, 238 La. 502, 115 So.2d 833 (1959); Southern Enterprises v. Foster, 203 La. 133, 13 So.2d 491 (1943); Greer v. Greer, 346 So.2d 846 (La.App. 1 Cir. 1977); Miller v. Hoyle, 328 So.2d 757 (La.App. 1 Cir. 1976); Barnes v. Dixie Electric Membership Corp., 323 So.2d 247 (La.App. 1 Cir. 1975); Leger v. La. Department of Wildlife & Fisheries, 306 So.2d 391 (La.App. 3 Cir. 1975), writ, denied 310 So.2d 640; Smith v. City of Alexandria, 300 So.2d 561 (La.App. 3 Cir. 1974), writ denied 303 So.2d 186 and 303 So.2d 187; Simon v. Jefferson Davis Parish School Board, 289 So.2d 511 (La.App. 3 Cir. 1974), writ denied, 293 So.2d 178.

Joe Jarred’s pleadings in the trial court did not raise the unconstitutionality of Article 2334. Similarly, at trial, appellant did not attempt to assert the unconstitutionality of this statute. The issue was first raised by appellant in a motion for a new trial, and then only after the trial court indicated in its written reasons for judgment that a constitutional issue might be involved. However, the trial court stated that it was not passing on the constitutional issue because Joe Jarred ha,d not timely raised the issue, and the court could not do so on its own motion.

We are of the opinion that the issue of the unconstitutionality of a statute, when first raised in a motion for new trial, after judgment adverse to the moving party, is not timely raised in the trial court. Accordingly, the issue cannot be considered on appeal, except in certain limited situations none of which are applicable here.

Joe Jarred contends that the trial court erred in holding that the wife’s retirement benefits under the Federal Employees Retirement System were her separate property. No jurisprudence has been cited to this Court, involving a determination of the classification of retirement benefits under the Federal Employees Retirement System. We have carefully examined the cases cited by counsel for both parties, as well as other cases based on our own research, and have found none of these cases to be appropriate to the one at bar.

Our review of this matter convinces us, however, that it is not necessary for this Court to determine whether or not the trial court erred in designating the wife’s retirement benefits as her separate property. Our view of this matter is that in this case, a classification of the wife’s benefits as either separate or community property would end in the same result. If we were to hold that her retirement benefits are her separate property, then, the husband would be entitled to reimbursement of one-half of the amount contributed by the community to the wife’s retirement fund. On the other hand, if we conclude that the retirement benefits are community property, then the husband is entitled to one-half of the value thereof. Inasmuch as the wife has not started drawing her retirement benefits, and the record does not indicate when (or if ever) she will start drawing these retirement benefits, and no evidence has been introduced to indicate otherwise, we are led to the conclusion that the value of the wife’s retirement benefits as of December 15, 1972 (the date on which the parties commenced living separate and apart), is the amount that the community paid into the wife’s retirement system, i. e., $2,804.62. Accordingly, half of that amount, i. e., $1,402.31 is due to the husband under either classification of the wife’s retirement benefits. Therefore, since the result would be the same under either classification, we decline to decide whether or not these retirement benefits are community property or separate property of the wife.

For the foregoing reasons, we affirm the result reached in the trial court judgment.

All costs of this appeal are assessed against plaintiff-appellant, Joe A. Jarred.

AFFIRMED.

      . See Summerell v. Phillips, supra, Page 546, footnote 5.

      . Cf. Langlinais v. David, 289 So.2d 343 (La. App. 3 Cir. 1974); Moon v. Moon, 345 So.2d 168 (La.App. 3 Cir. 1977); Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir. 1975).


author: DOMENGEAUX, Judge.

text:
    Ann MILLIGAN, Plaintiff-Appellee, v. BAYOU VISTA MANOR, INC. and Houston General Insurance Company, Defendants-Appellants.
    No. 6309.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Gold, Little, Simon, Weems & Bruser by Leo Gold and Eugene J. Sues, Alexandria, for defendants-appellants.
    J. Minos Simon and Edward J. Milligan, Jr., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation case. Plaintiff, Ann Milligan, sustained an injury to her back on January 15, 1975, when she was attempting to lift a metal bed at Bayou Vista Manor Nursing Home in Avoyelles Parish while employed as a nurse’s aide.

The Nursing Home’s compensation insurer, Houston General Insurance Company, paid weekly compensation benefits of $58.35 from the time of the accident through February 2, 1977, and medical expenses total-ling $1,850.68. Suit was filed against the employer and the insurer after benefits were terminated, alleging permanent and total disability and requesting penalties and attorney’s fees.

The trial court found plaintiff to be totally and permanently disabled and awarded weekly compensation benefits of $58.35, medical expenses, and penalties and attorney’s fees. Defendants appealed. Plaintiff has answered the appeal requesting an amendment of the judgment to provide for future medical expenses.

Defendants contend on appeal that the reports of three physicians were improperly admitted into evidence and that plaintiff has not established her claim by a preponderance of the evidence. They also contend that the award for penalties and attorney’s fees was improper.

The medical evidence in this case consisted of the testimony of Doctor Carl Jory, the treating physician; reports and a deposition of Doctor Daniel M. Kingsley, an orthopedist; and the reports of Drs. J. R. Rivette and John D. Jackson, neurological surgeons, and of Dr. D. A. Gary, an orthopedist. Defendants argue that the reports of these last three physicians constitute hearsay evidence and should not have been admitted. They also argue that Louisiana Revised Statutes 23:1121 and 1122, cited by plaintiff for the proposition that these reports were properly admitted and constitute prima fa-cie evidence of the facts and opinions contained therein, is not applicable to the present case because the procedural requirements set forth in those statutes were not followed.

There may have been substance to appellants' argument; however, after examining the record, we discovered that although defendants’ counsel objected to the introduction of the reports of Doctors Riv-ette and Gary when they were sought to be introduced by plaintiff’s counsel individually, no objection was made to the introduction of the insurance company’s file in toto as plaintiff’s Exhibit No. 18. The reports from these two physicians were included in the insurance company’s file and, as such, constitute a part of plaintiff’s Exhibit No. 18. Therefore, they are properly in the record.

The report of Doctor Jackson was not included in the insurance company’s file. However, we do not feel that the presence of this report was prejudicial to defendants. Although Doctor Jackson reaches a medical conclusion in the report, the report is in the form of a letter merely requesting who will be responsible for the payment of a full report if it is issued. It does not go into detail and we think it was not important to the ultimate resolution of the case. Furthermore, defendants admit in their supplemental brief that it probably was not a significant factor in the decision of the court.

In any event, there is sufficient evidence in the record to sustain the finding of permanent disability without the reports of these three physicians. It was clearly established that plaintiff had no difficulties with her back before the accident, even though she had been employed as a nurse’s aide for the preceding eight years. Although there was some indication that plaintiff could have had a pre-existing back ailment, this condition did not cause her pain or prevent her from working. It was also established that plaintiff was never able to return to work after the accident because of the pain in her back. The medical evidence not objected to in this case clearly indicates that plaintiff will not be able to return to work as a nurse’s aide. Furthermore, the testimony of Doctor Jory, the treating physician, taken as a whole, indicates that there is a causal connexity between the accident and plaintiff’s condition. We stated in Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22, 24-25 (La.App. 3rd Cir. 1975), writ granted 320 So.2d 201 (La.1975), judgment reinstated 321 So.2d 398 (La.App. 3rd Cir. 1975):

“The disability of a workmen’s compensation claimant ‘is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.’ Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 (La. App. 3rd Cir. 1969). See also Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3rd Cir. 1973); White v. E. A. Caldwell Contractors, Inc., 276 So.2d 762 (La.App. 3rd Cir. 1973); Freeman v. Standard Materials, Inc., 246 So.2d 258 (La.App. 1st Cir. 1971).”

We also stated in Williams v. Liberty Mutual Insurance Company, 327 So.2d 462, 467 (La.App. 3rd Cir. 1976):

“The plaintiff in a workmen’s compensation suit need not prove the exact nature of his disability so long as he can show that he is suffering from such disability to a degree that he is prevented from performing his normal work duties.' Wallace v. Spohrer-Pollard Contractors, 76 So.2d 312 (La.App. 2nd Cir. 1954).”

We therefore find that there was sufficient evidence to support the trial court’s finding of permanent and total disability.

We reject defendant’s argument that the award for penalties and attorney’s fees was erroneous. The defendant insurer had in its possession, reports from Doctor Kingsley dated June 16, 1975, May 6, 1976, and October 22, 1976. Houston General discontinued compensation payments on January 31, 1977, basing the discontinuance on the June 16, 1975 report. It waited approximately one and one-half years from the first report before ceasing payments and over two months from the last report. Although they allege administrative error for the delay, this does not seem plausible.

In any event, penalties and attorney’s fees can be awarded on another basis.

Plaintiff was sent on several occasions to be examined by Doctor Kingsley. Plaintiff resides in Bunkie; Doctor Kingsley has his office in Alexandria. On all but one occasion travelling expenses were forwarded to plaintiff for the visits to Doctor Kingsley. Despite two letters sent by plaintiff’s attorney demanding travel expenses for plaintiff’s last visit, payment was never made. The first demand was made on December 10, 1976. As of the filing of suit on March 2, 1977, payment still was not made.

A claimant’s travel expenses in seeking medical attention form a part of the medical expenses claim and thus is subject to the statutory penalty provisions provided for by La.R.S. 22:658. Norris v. Southern Casualty Insurance Company, 342 So.2d 874 (La.App. 3rd Cir. 1977); writ denied, 344 So.2d 670 (La.1977); Jack v. Fidelity & Casualty Company of New York, 326 So.2d 584 (La.App. 3rd Cir. 1976), writ denied 330 So.2d 295 (La.1976); Walters v. General Accident & Fire Assurance Corporation, 119 So.2d 550 (La.App. 1st Cir. 1960).

There could be no question in this case that the insurer was responsible for travel expenses because they requested the visit to Doctor Kingsley’s office. Non-payment, as shown herein, subjects the insurer to penalties and attorney’s fees.

Plaintiff has answered the appeal requesting an amendment of the judgment to include future medical expenses. Future medical expenses should not be included in an award for workmen’s compensation benefits. There is no liability for medical expenses until they are incurred. The right to claim medical expenses arising in the future is reserved to the plaintiff and need not specifically be reserved in the judgment. Deshotels v. Fidelity & Casualty Company of New York, 324 So.2d 895 (La.App. 3rd Cir. 1976), writ refused 328 So.2d 376 (La.1976); Reed v. Employers Mutual Liability Insurance Company of Wisconsin, 303 So.2d 506 (La.App. 2nd Cir. 1974); Welch v. Clemons Brothers Lumber Co., Inc., 262 So.2d 79 (La.App. 1st Cir. 1972); Manuel v. Jennings Lumber Company, Inc., 248 So.2d 908 (La.App. 3rd Cir. 1971), application denied 259 La. 757, 252 So.2d 454 (1971). We therefore reject plaintiff’s answer to the appeal.

Defendants have pointed out that the trial court held them liable for the medical expenses incurred in connection with plaintiff’s visit to Doctor Jackson. They maintain that this visit was not for evaluation and treatment but was purely in preparation for litigation and, as such, they are not responsible for this expense. We agree. In order to require an employer or insurer to pay a medical expense some form of treatment must occur. Employers and their insurers are not liable for medical expenses incurred in preparation for litigation. Butts v. Insurance Company of North America, 352 So.2d 745 (La.App. 3rd Cir. 1977); Ducote v. Roy O. Martin Industries, Inc., 338 So.2d 1221 (La.App. 3rd Cir. 1976); Caldwell v. Exxon Corporation, 320 So.2d 319 (La.App. 4th Cir. 1975); Langley v. Travelers Insurance Co., 159 So.2d 553 (La.App. 3rd Cir. 1964).

It is apparent that Doctor Jackson was consulted in preparation for litigation and defendants should not be held liable for this expense. The judgment should be amended accordingly.

For the above reasons the judgment of the District Court is amended insofar as it holds defendants liable for the $75.00 medical expense incurred in connection with plaintiff’s visit to Doctor Jackson and that item is deleted from the judgment. In all other respects the judgment of the District Court is affirmed. All costs on appeal are assessed against defendants-appellants.

AFFIRMED AS AMENDED.

CULPEPPER, J., concurs in the result.


text:
    Johnny Calvin YATES, Plaintiff-Defendant in Reconvention-Appellee, v. Jessie V. George YATES, Defendant-Plaintiff in Reconvention-Appellant.
    No. 6313.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Edward A. Kaplan, Alexandria, for appellant.
    Gravel, Roy & Burnes, Richard V. Burnes, Alexandria, for appellee.
    Before CULPEPPER, DOMENGEAUX, and WATSON, JJ.
   DOMENGEAUX, Judge.

Johnny Calvin Yates, plaintiff and defendant in reconvention, also appellee, sued his wife, Jessie V. George Yates, defendant and plaintiff in reconvention, also appellant, for a divorce based upon her alleged adultery on various occasions from November 12, 1976, to March 20, 1977. That suit was filed on March 31, 1977. By supplemental petition of the husband, dated June 22, 1977, additional acts of adultery were alleged through June 9, 1977.

On May 10,1977, the wife, Jessie, answered and filed a reconventional demand praying for, among other things, a divorce under La.R.S. 9:302 on the basis that the parties had not lived together as man and wife since the judgment of separation in her favor dated April 21, 1976.

The husband filed an exception of no cause and no right of action to the wife’s reconventional demand. The trial judge sustained the exception insofar as it concerned the wife’s reconventional demand for divorce under R.S. 9:302, and her demand for attorney fees. He referred the exception to the merits, insofar as it had to do with the wife’s request for alimony under C.C. Art. 160.

The wife has appealed and urges that the trial judge erred in dismissing her recon-ventional demand for divorce and attorney fees.

1. We feel that the trial judge erred in dismissing Mrs. Yates’ reconven-tional demand for a divorce based upon La.R.S. 9:302. The case of Jones v. Floyd, 154 So.2d 604 (La.App. 3rd Cir. 1963) is distinguished simply on the basis that in that case, the husband had an absolute right to a divorce once he proved one year and sixty days non-reconciliation after the judicial separation. As explained in Jones, the wife therein had waived certain rights which she had under La.R.S. 9:302 and her inaction caused her ultimate reconventional demand for divorce on grounds of adultery to be too late. Jones applies only to factual situations and chronologies as found therein. Jones appears to be a jurisprudential exception to Article 1064 of the Louisiana Code of Civil Procedure. The latter article, of course, allows a defendant in the principal action to assert any action which he may have against a plaintiff regardless of connexity between the principal and recon-ventional demands. See Kinchen v. Finchen, 147 So.2d 761 (La.App. 1st Cir. 1962). In the present case, by the time one year passed after Mrs. Yates secured the judicial separation, her husband had already filed His adultery divorce action, but the action was still open and pending when she filed her reconventional demand thereto. The trial judge should have allowed the matter to go to trial on both the principal and reconventional demands. He would have discretion to grant the divorce to either party, depending upon the evidence adduced, and subject, of course, to proper appellate review. See McCaa v. McCaa, 163 So.2d 434 (La.App. 2nd Cir. 1964); Perry v. Perry, 207 So.2d 819 (La.App. 1st Cir. 1968). See also, Thomason v. Thomason, 349 So.2d 928 (La.App. 1st Cir. 1977); Klnchen v. Kinchen, supra.

2. Mrs. Yates, in her reconventional demand, alleged that she was forced to employ an attorney to represent her in these divorce proceedings and that, consequently, she is entitled to an award against her husband for the attorney fees incurred “in these proceedings and the community property involved.” The pleadings on both sides show that the community between the parties was terminated by previous judgment. Under Malone v. Malone, 260 La. 759, 257 So.2d 397 (1972), a husband is not personally responsible for his wife’s attorney fees in these marital cases. The trial judge did not err by sustaining the husband’s exception of no right of action to the wife’s reconventional demand for attorney fees against him. Inasmuch as the record at this stage is not reflective of the status of the community property between the parties we express no opinion herein concerning any rights which either of the parties have for any attorney fees which may be chargeable to said community, and any rights the parties may have generally under the Supreme Court case of Malone v. Malone, supra.

For the above reasons, the judgment of the district court which sustained Mr. Yates’ exception of no right or cause of action as to Mrs. Yates’ reconventional demand for divorce under La.R.S. 9:302 is reversed, and it is now Ordered that it be overruled, and the matter is remanded to the district court for further proceedings not inconsistent with the views expressed herein. Otherwise, the judgment is affirmed.

Costs of this appeal to be assessed equally between the parties. Costs on remand to await final judgment there.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . The parties had been previously judicially separated on April 21, 1976, by judgment in favor of the wife, Jessie.

      . She asked for C.C. Art. 160 alimony of $400.00 per month, for the maintaining of a hospitalization insurance policy, and for attorney fees.


text:
    Purvis HEBERT and wife, Wanda Jane Hebert, Piaintiffs-Appellees, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellant.
    No. 6316.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Writ Refused Feb. 24, 1978.

      Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, for defendant-appellant.
    Domengeaux & Wright, William P. Rutledge, Lafayette, for plaintiffs-appellees.
    Before GUIDRY, FORET and JOHNSON, JJ.
   GUIDRY, Judge.

Wanda Jane Hebert, while performing her duties as a domestic maid and babysitter, sustained injuries as a result of a “slip and fall” incident involving a puddle of dishwashing liquid which had been placed on the kitchen floor by her employer’s two-year-old child. Plaintiffs brought suit in tort against United Services Automobile Association (United Services), the liability insurer of the child’s father, for personal injuries, loss of income and medical expenses occasioned by the accident. United Services prosecutes this appeal from a judgment of the trial court in favor of plaintiffs.

The facts giving rise to this suit are not disputed and may be summarized as follows:

At the time of the accident, Mrs. Hebert was regularly employed in the home of Robert R. Bernard in Kaplan, Louisiana. Her duties included cleaning the house and taking care of the Bernard’s two-year-old child, as Mr. and Mrs. Bernard were both employed outside of their home. During the day Mrs. Hebert was the only adult present with the child.

On the morning of June 23, 1975, while alone with the child at the Bernard residence, Mrs. Hebert answered a telephone call from the child’s grandmother. While conversing over the telephone in the den, she observed the Bernard child squatting on the kitchen floor by the sink, squirting the contents of a bottle of dishwashing liquid onto the floor. She advised Mrs. Bernard of what had transpired, and then walked from the den into the kitchen and took the bottle away from the child. She picked him up and returned directly to the den to continue her telephone conversation.

After the conversation was completed, Mrs. Hebert put the child down and proceeded back into the kitchen in order to obtain some towels from a washing machine to clean up the spilled liquid. After re-entering the kitchen, she slipped and fell in a puddle of dishwashing liquid, located a few feet away from where she had seen the child pouring the liquid on the floor.

After trial before a jury, judgment was rendered by the district court in favor of Purvis Hebert in the sum of $2,737.53 and in favor of Wanda Jane Hebert in the sum of $28,000.00.

In seeking a reversal of the trial court’s judgment, defendant-appellant contends that the decision of the trial court is erroneous in that it constitutes a misapplication of the law to the facts established at trial. More particularly, appellant contends:

(1) There was no direct negligence on the part of the child’s parents.

(2) Any recovery on behalf of plaintiffs is barred because of Mrs. Hebert’s status as the “substitute parent” of the child in the absence of his natural parents.

(3) Plaintiffs are not entitled to recovery under LSA-C.C. Article 2318 as interpreted in Turner v. Bucher, 308 So.2d 270 (La. 1975), because the accident and ensuing injuries were occasioned as a result of Mrs. Hebert’s own fault.

We consider appellant’s contentions in reverse order.

Parental responsibility for tortious acts of their minor children is set forth in LSA-C.C. Article 2318 which provides as follows:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
The same responsibility attaches to the tutors of minors.”

Our Supreme Court, in Turner v. Bucher, supra, held that Article 2318 imposes strict liability on parents for the acts of their minor children if such acts would be delictual except for the child’s lack of capacity to discern the consequences of his act. A parent may exculpate himself from this species of strict liability by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by a fortuitous event. In restricting recovery under this article to victims who are unwarned and unsuspecting, our Supreme Court stated:

“We do not here set the standard of care to which a victim is subject with regard to such a nondiscerning person. Our holding in this case is limited to a situation such as the one before us where the victim is unwarned and unsuspecting of any impending harm from the acts of a child.”

It is not disputed that the act of the Bernard child would be delictual if it were not for his tender age which renders him legally incapable of fault. Thus, in resolving appellant’s contention, we regard the only relevant inquiry to be whether defendant has demonstrated sufficient substandard conduct on the part of Mrs. Hebert as to constitute “fault of the victim”.

This court recently discussed the concept of “fault of the victim” in the similar context of strict liability under LSA-C.C. Article 2321 as interpreted by our Supreme Court in Holland v. Buckley, 305 So.2d 113 (La.1974). We find apropos our discussion of this matter in the case of Parker v. Hanks, 345 So.2d 194 (La.App. 3rd Cir. 1977, writ refused), in which we stated as follows:

“We feel that the concept of fault of the victim in the context of cases falling under Article 2321 as interpreted by Holland v. Buckley, supra, should be given a commonsense application.
******
Whether fault of the victim in cases of this kind is the same as contributory negligence in fault based on negligence cases, remains to be fully developed. The trial court used the language, or terminology of, contributory negligence in holding that the owner had exculpated himself. Until the theoretical concept is worked out more precisely, we see no harm in so designating it. However, we see no need to so do. We simply hold in this case the defendant, Hanks, is exculpated by what we consider to be the fault of the victim, Mrs. Parker.”
Cf. Thibo v. Aetna Insurance Company et al., 347 So.2d 20 (La.App. 3rd Cir. 1977).

In the instant case, the evidence shows that Mrs. Herbert was aware of the presence of the dishwashing liquid on the kitchen floor in that she had actually observed the child in the act of squirting the contents of the bottle onto the floor. Mrs. Hebert did not observe young Bernard with the bottle of dishwashing liquid until after she had been talking on the telephone for approximately three minutes. It is possible that he had possession of the bottle for that length of time. Mrs. Hebert admitted that when she re-entered the kitchen, she had no idea whether he had poured the liquid on other areas of the floor besides in front of the sink. Although Mrs. Hebert claims she fell in a separate puddle from the one that she had observed near the sink, she candidly admitted that she did not examine the kitchen floor for other puddles of liquid. We conclude that Mrs. Hebert’s conduct under the circumstances was substandard and falls within the ambit of the term “fault of the victim”, thus exonerating defendant of any strict liability.

Even if the meaning which we attribute to victim fault in the context of strict liability under Turner v. Bucher, supra,, is not precisely that which was intended by our Supreme Court, in any event, we find the holding of Turner v. Bucher, supra, clearly inapplicable to the instant case because of our finding that plaintiff was warned and suspecting of impending injury.

Because of our holding that the fault of Mrs. Hebert bars plaintiffs’ recovery under a theory of strict liability, we find it unnecessary to reach the other issues presented by appellant. Mrs. Hebert’s negligence will bar plaintiffs’ recovery under any theory.

For the above and foregoing reasons, the judgment of the district court is reversed. It is hereby ordered, adjudged and decreed that there be judgment in favor of defendant-appellant, dismissing the petition of plaintiff s-appellees with prejudice. All costs at the trial level and on appeal are to be borne by plaintiffs-appellees.

REVERSED AND RENDERED.

      . Robert R. Bernard, the father of the child, was not made a defendant in this suit. However, any liability on the part of United Services, his insurer, must necessarily be predicated on a finding of some legal responsibility owed by Mr. Bernard to plaintiffs.


author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    BOARD OF COMMISSIONERS OF LOUISIANA MUNICIPAL POWER COMMISSION, Plaintiff-Appellee, v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS of the State of Louisiana (including particularly the Citizens of the Municipalities of Franklin, Morgan City, Natchitoches and Opelousas, the Creators of the Louisiana Municipal Power Commission) and NonResidents owning Property or Subject to Taxation therein, and all other persons interested in or affected in any way by the Issuance of Electric Revenue Bonds of the Louisiana Municipal Power Commission, Defendants-Appellants.
    No. 6319.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Writ Granted Feb. 24, 1978.

      Aycock, Horne, Caldwell, Coleman & Duncan by Jack C. Caldwell and James R. McClelland, Franklin and Lippman, Hunter & Rawls by Alfred L. Lippman and Nicholas LaRocca, Morgan City, for defendants-appellants.
    Foley, Judell, Beck, Bewley & Landwehr by William Beck, New Orleans, Watson, Murchison, Crews & Arthur by Daniel Murchison and William P. Crews, Jr., Natchi-toches, Dale Hayes, Morgan City, Cox, Osborne and Michaelis, John W. Cox, New Orleans, Salvador Diesi, Richard B. Mills-paugh, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

The defendant taxpayers have appealed from a trial court judgment in favor of plaintiff, the Board of Commissioners of the Louisiana Municipal Power Commission (LAMPCO). The trial court cast LAMPCO for costs, and plaintiff has answered the appeal, asking that the trial court judgment be amended to tax all costs to defendants.

The governing bodies of four Louisiana cities, Morgan City, Franklin, Opelousas and Natchitoches, confected an intergovernmental agreement to create LAMPCO, a corporate political subdivision of the State of Louisiana. LAMPCO proposes to raise 90 million dollars by issuing revenue bonds under LSA-R.S. 33:1321-1337. The proceeds will be used to construct an experimental type of electric generating plant, referred to as a “115 MW synthesis-gas combined cycle” power plant. Payment of the bonds is to be secured by power sales contracts, which LAMPCO has entered into with each of the four member cities. The cities will not directly guarantee the bonds. This action was brought under LSA-R.S. 13:5121-5130 to obtain judicial validation of the bonds and the power sales contracts.

It was stipulated that the bond resolution was not submitted to a referendum of the citizens of the four cities and that the four cities have outstanding bonds secured by pledge of the revenues of their individual utility systems.

The power sales contracts provide that each of the cities shall pay a percentage of LAMPCO’s monthly costs, including debt service on the bonds, and each city will receive an equivalent percentage of the project’s capability, if any. The intergovernmental agreement provides that the cities’ percentages of energy can be adjusted, if one city needs less and another desires more. (P-1). Each city will continue to operate its own electric utility system, which will later be coordinated with LAMP-CO’s system. It is “expected” that the energy generated by LAMPCO during its first years of operation will be in excess of the four cities’ needs, and LAMPCO is to sell any surplus. (P-7, pg. 14). The payments by the cities are termed “monthly power costs” (P-7, pg. 10). These can include maintenance, renewal or replacement of the facility, debt service, all costs of production and any uninsured liability for damages. In addition to the monthly power costs, each city is to pay a ten per cent surcharge. (P-6, pg. 26). LAMPCO will submit a monthly statement to each of the cities, and is to prepare an annual budget of the estimated monthly power costs. The budget is to be reviewed at the end of each quarter and revised if necessary. The four identical contracts each state:

“The obligations of the City to make the payments required . . . payable as
an operating expense of its combined municipal utility system, payable solely from the revenues.and receipts of such combined municipal utility system . shall be made whether or not the project has been completed, is then operable or is operating, and . . . shall not be conditioned upon the performance or nonperformance by LAMPCO. . . . ” (P-7, pg. 11).
and
“. . . non-delivery of Project power and energy on account of Uncontrollable Forces or for any other reason shall not relieve the City from its obligation to make its payments required. . . (P-7, pg. 13).

If it develops that the project is not feasible and it is abandoned, the cities remain liable for payment of the bonds and any deficit. If one city defaults, the others are obligated to pay its share of monthly power costs. Either LAMPCO or the non-defaulting cities or both may sue for specific performance or other remedy against a city in default.

Payments by the member cities commence on January 1, 1981, when a total estimated to be $7,377,300 will be due. The city of Natchitoches will owe 27.4% or about $2,021,380. The net income of the Natchi-toches utility system in 1976 was $1,577,000, debt service on outstanding bonds used $897,433 of this amount. The profit of the system in 1976 was $649,309. W. Ray Scott, former mayor of Natchitoches, testified that $529,000 was transferred from utility profits to the general fund of the city in 1976. The city of Franklin will owe 12.6%, approximately $929,539. Revenues available from the Franklin utility system in 1976 were $83,000. Dr. Julius M. Fernandez, mayor of Franklin, testified that an $83,000 deficit in the Franklin general fund in 1976 was covered by a transfer from utility revenues. Opelousas’ percentage is 27.8% of the total debt service. Its initial payment will be about $2,050,889. Opelousas had not completed its 1976 audit but the 1975 figures show utility profits of $512,000. Joe Powers, mayor of Opelousas, testified that annual deficits in the city’s general account were covered by transfers from utility system profits. The deficit in 1975 was $459,-000. Morgan City is committed for 32.2% of the cost or $2,375,490. Its net utility income in 1976 was $534,014. Joseph Cefa-lu, councilman of Morgan City and former superintendent of its utility system, testified that money was transferred every year from Morgan City’s utility account to its general fund to balance the budget.

There is a dispute about the nature of the bonds LAMPCO proposes to issue. LAMP-CO contends that they are revenue bonds payable from a special fund, the utility receipts of the four cities. LSA-1974 Const. Art. 6, § 37(A). The defendant taxpayers counter that the cities are unconditionally obligated to pay the debt evidenced by the power sales contracts, and the bonds are in reality general obligations, subject to debt limitations, which can only be issued with approval of the electorate. LSA-1974 Const. Art. 6, § 33, § 34.

LAMPCO’s proposal represents a variation on a method of financing public improvements which has been used with varying success in other jurisdictions. See the discussions at 25 George Washington Law Review 377 and 68 Yale Law Journal 234.

The decisive issues are: whether the power sales contracts and proposed bonds are authorized by LSA-R.S. 33:1321-1337, in particular 33:1334, sections A and C; and whether the bonds are in violation of Arti-ele 6, § 37(A) of the Louisiana Constitution of 1974.

LSA-R.S. 33:1334A requires that revenue bonds issued under its authority be payable “. . . solely from the revenues derived from the operation of the public project constructed or acquired with the proceeds of such revenue bonds. . . . ” LSA-R.S. 33:1336 provides in pertinent part that:

“. . . as to a joint commission created and acting pursuant to the authority of R.S. 33:1334, such bonds may be issued without the necessity of securing the approval of the electorate at a referendum.

LAMPCO contends that the cities are authorized to enter into the power sales contracts by the following provision of LSA-R.S. 33:1334C:

“. . . the municipalities may contract for services furnished by any joint facility constructed by the commission and the municipalities . may obligate themselves to make payments for such term, not exceeding forty years, and in such manner as may be provided in such contracts. . . . ”

However, this argument overlooks the preceding language in 33:1334C, which states that a municipality “. . . shall not in

any event be liable for the payment of the principal or interest on any revenue bonds of the commission except as provided in Subsection A of this Section . . . .”

The municipalities here are not contracting for services furnished but are unconditionally promising to pay LAMPCO regardless of whether LAMPCO performs its contractual obligation to furnish power. The revenues which LAMPCO will receive from the power sales contracts will not be derived solely from the operation of the public project but are to be paid with the income from the utility systems of the cities. The language of LSA-R.S. 33:1334A, supra, indicates that only a self-supporting, self-liquidating project falls within the purview of the statute. LAMPCO’s facility is to be financed by the four cities. Only by ignoring the true nature of the cities’ obligation can the project be regarded as self-supporting. See the discussion in Tucson Transit Authority, Inc. v. Nelson, 107 Ariz. 246, 485 P.2d 816 (1971).

The power sales contracts and the bonds which LAMPCO proposes to issue are not authorized by LSA-R.S. 33:1321-1337. The power sales contracts are not contracts for services, and the bonds are not true revenue bonds, which can be retired with the income from the facility to be constructed with their proceeds.

The proposed bonds are also unconstitutional under the Louisiana Constitution of 1974.

The provision in the power sales contracts that payments are to be made only from utility revenues is deceptive. The present utility revenues are inadequate for that purpose, and the member cities must make up the deficit. Each member city will be liable not only for its own share but that of any defaulter. The obligations undertaken by the cities in the power sales contracts constitute a debt which can be enforced by judgment against a member city’s entire revenues and assets. The utility revenues of the member cities have been used to supplement the general revenues and now will be unavailable for that purpose. See City of Trinidad v. Haxby, 136 Colo. 168, 315 P.2d 204 (1957). The four cities have an unconditional obligation to pay the monthly power costs and surcharges provided in the power sales contracts. The exact amount of the payments is unknown, since they include not only debt service but the cost of maintenance, replacement, renewal and production. Clearly, the amount payable from the cities to LAMPCO can become “. . .a charge upon the other income and revenues of the political subdivision” in violation of LSA-Const. 1974, Art. 6, § 37(A).

The court’s analysis in Board of Supervisors of Fairfax County v. Massey, 210 Va. 253, 169 S.E.2d 556 (1969) is pertinent:

“The obligations of the County and City to underwrite and guarantee an unknown ‘operating expense’ deficit of the transit system are fixed and absolute and constitute a present debt within the meaning of the constitutional limitations on County and City debt or indebtedness.
“There are no facts in the record, . to show that the County’s obligation under the Agreement can be paid out of current revenues or that there has been an election by the people of the County authorizing the obligation to be incurred.” 169 S.E.2d 561.

The obligations of LAMPCO’s member cities are potential general obligations. There is no showing that the special fund of utility revenues will be adequate. Should it prove insufficient, the cities would be required to maintain the special fund out of their general funds. City of Redondo Beach v. Taxpayers, Property Owners, etc., 54 Cal.2d 126, 5 Cal.Rptr. 10, 352 P.2d 170 (1960) points out that an unconditional promise to make certain payments, which must be raised from other sources if the utility revenues constituting the special fund are inadequate, constitutes a potential drain on a city’s general revenues, and hence must be approved by the voters. See Fjeldsted v. Ogden City, 83 Utah 273, 28 P.2d 144 (1933) and Scroggs v. Kansas City, 499 S.W.2d 500 (Mo., 1973).

Counsel for LAMPCO cite numerous cases in support of the proposed bond issuance and re-payment scheme. These include: State ex rel. Mitchell v. City of Sikeston, 555 S.W.2d 281 (Mo., 1977); Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969); McCann v. Mayor and Councilmen of Morgan City, 173 La. 1063, 139 So. 481 (1932); Police Jury v. All Taxpayers, etc., 278 So.2d 474 (La., 1973); Frank v. City of Cody, Wyo., 572 P.2d 1106 (Wyo., 1977); and Thompson v. Municipal Elec. Authority of Georgia, 238 Ga. 19, 231 S.E.2d 720 (1976). However, none of these cases are decisive as to the LAMPCO proposal.

State ex rel. Mitchell v. City of Sikeston, supra, considered a project very similar to LAMPCO’s. The power sales contracts required the participating municipalities to pay the contract price regardless of whether or not power was available from the project. The Supreme Court of Missouri held that the financing arrangements were constitutional, stating that:

“The revenue bonds proposed by Sikeston are to be paid solely out of the revenues generated from the sale of electricity and not from money raised by taxation.” 555 S.W.2d 291.
and
“. . . the purchasing municipalities are obligated to make payments solely from the revenues of their electric systems, which places this situation within the parameters of the ‘special fund’ doctrine.” 555 S.W.2d 292.

However, there was an election in which the voters of Sikeston approved the issuance of the bonds. Such an election is a prerequisite to a general obligation bond in many jurisdictions, including Louisiana.

Arata, supra, dealt with a particular constitutional amendment, approved by the electorate, which authorized construction of the Louisiana Superdome. The lease payments considered in Arata were an unconditional obligation analogous to that created by these power sales contracts. Arata indicated that the lease payments did not necessarily involve a pledge of the state’s full faith and credit but found the payments constitutionally authorized even if such a pledge existed. Arata is not decisive on the point at issue here, since it involved a specific constitutional amendment which was overwhelmingly approved by the citizens of the state.

McCann, supra, dealt with statutory language similar but not identical to that in the instant case and held that Morgan City could issue bonds to provide a combined water and power plant, secured by pledge of the combined utilities’ revenues and a mortgage on its lands, buildings and equipment. The bonds had been approved by the voters.

Police Jury v. All Taxpayers, etc., supra, held that special obligation industrial revenue bonds, which only constitute a charge on the particular property encumbered, can be issued without an election. The Police Jury case discusses the distinction between special and general obligation bonds, which is significant here, and points out that a general obligation bond is one which:

“. . . subjects the property and income of the taxing subdivision to levy in satisfaction of the obligation imposed thereby.” 278 So.2d 479.

The opinion in Cody, supra, states that “payments due for electricity sold to each municipality is payable only from revenues derived from the retail sale of electricity to the customers of the municipal distribution system.” Here, payments by the member cities are not related to the power purchased.

Thompson, supra, is not clear as to the exact nature of the participating cities’ obligations, although the Georgia Supreme Court does appear to validate a contract and bond plan similar to the LAMPCO proposal. The LAMPCO bonds and power sales contracts must be judged under the applicable Louisiana statutes and the Louisiana Constitution, which may differ from those of Georgia.

The proposed facility may be an economical and desirable solution to member cities’ energy problems, but the power sales contracts and the proposed bonds are not authorized by LSA-R.S. 33:1321-1337 and are unconstitutional under LSA-1974 Const. Art. 6, § 37(A).

For the foregoing reasons, the judgment of the trial court herein is reversed. It is ordered, adjudged and decreed that there be judgment in favor of defendants, All Taxpayers, etc., and against plaintiff, Board of Commissioners of Louisiana Municipal Power Commission, dismissing the plaintiff’s demands as contained in the Motion for Judgment filed in these proceedings, and declaring the power sales contracts and the proposed bonds to be null and void as not authorized by the Louisiana Revised Statutes and in violation of the Louisiana Constitution. All costs of these proceedings are assessed against plaintiff-appellee, the Louisiana Municipal Power Commission.

REVERSED.

DOMENGEAUX, J., concurs in the result reached and assigns brief reasons.

FORET, J., concurs in the result reached for the reasons argued by DOMENGEAUX, J.

DOMENGEAUX, Judge,

concurring.

I concur in the result reached but do not agree that under the LAMPCO arrangement, the obligations of the member cities are “potential general obligations.”

It is my opinion that this joint venture by the member cities would be legal and constitutional if the bonds would be payable solely from the revenues derived from the LAMPCO project. The contractual obligation of the cities to make the required payments from the revenues of its present utilities systems is violative of La.R.S. 33:1334(A) and (C).

      . 402 defendants have made an appearance.

      . The City of Thibodaux, an original participant, withdrew from LAMPCO.

      . The “Texaco Synthesis Gas Generation (TSGG) Process”, which produces gas from “high-sulphur vacuum bottle residue” is to be used initially with future modification to use a process being developed, the “Texaco Coal Ga-sification Process”, which is to utilize 50% coal and 50% oil slurry as a power source. (P-19, pg. 1). Other possible future fuels are “refinery coke and lignite, in slurry form.” (P-19, Pg- 2).

      . LSA-1974 Const. Art. 6, § 37(A):
      “Section 37. (A) Authorization. The legislature by law may authorize political subdivisions to issue bonds or other debt obligations to construct, acquire, extend, or improve any revenue-producing public utility or work of public improvement. The bonds or other debt obligations may-be secured by mortgage on the lands, buildings, machinery, and equipment or by the pledge of the income and revenues of the public utility or work of public improvement. They shall not be a charge upon the other income and revenues of the political subdivision.”

      . LSA-1974 Const. Art. 6, § 33:
      “Section 33. (A) Authorization. Subject to approval by the State Bond Commission or its successor, general obligation bonds may be issued only after authorization by a majority of the electors voting on the proposition at an election in the political subdivision issuing the bonds. Bonds to refund outstanding indebtedness at the same or at a lower effective rate of interest, even though payable solely from ad valorem taxes, need not be authorized at an election if the indebtedness refunded is paid or cancelled at the time of the delivery of the refunding bonds, or if money, or securities made eligible for such purpose by law, are deposited in escrow in an adequate amount, with interest, to be utilized solely to retire the refunded indebtedness or bonds and to pay interest thereon and redemption premiums, if any, to the time of retirement.
      (B) Full Faith and Credit. The full faith and credit of a political subdivision is hereby pledged to the payment of general obligation bonds issued by it under this constitution or the statute or proceedings pursuant to which they are issued. The governing authority of the issuing political subdivision shall levy and collect or cause to be levied and collected on all taxable property in the political subdivision ad valorem taxes sufficient to pay principal and interest and redemption premiums, if any, on such bonds as they mature.”

      . LSA-1974 Const. Art. 6, § 34:
      “Section 34. The legislature by law shall fix the limitation on bonded indebtedness payable solely from ad valorem taxes levied by political subdivisions.”

      . LSA-R.S. 33:1334A:
      “A. Any joint commission created by any parishes or municipalities as an agency and instrumentality of such parishes and municipalities under the provisions of this Part shall have the power, if provided in the agreement entered into between such parishes and municipalities, to issue in its corporate name, any revenue bonds of such commission to finance the cost of the construction or acquisition or improvement of such public projects or improvements, including but not limited to, the public purposes described in R.S. 33:1324, which bonds may be the joint obligation, several obligations, or joint and several obligations of such parishes and municipalities, payable, however, solely from the revenues derived from the operation of the public project constructed or acquired with the proceeds of such revenue bonds. Title to such project shall vest in the parties to said agreement in the proportion or maimer set forth in such agreement. Notwithstanding any other provision of Louisiana law relative to the right of partition available to owners of property or portions of property, the right of partition shall not be available to any party with respect to any property acquired or held subject to the terms of said agreement; however, the agreement may provide for the sale, lease, or other disposition of such property on such terms and conditions as may be set forth in the agreement.”

      . LSA-R.S. 33:1334C:
      “C. The municipality or the parish shall not in any event be liable for the payment of the principal or interest on any revenue bonds of the commission except as provided in Subsection A of this Section and, in addition, the municipalities or the parishes may contract for services furnished by any joint facility constructed by the commission and the municipalities and parishes may obligate themselves to make payments for such term, not exceeding forty years, and in such manner as may be provided in such contracts. None of the bonds of the commission shall be construed to constitute an indebtedness of the municipality or parish for debt limit or other purposes within the meaning of any constitutional or statutory provisions whatsoever.”

      . LSA-R.S. 33:1336:
      “Any municipality and/or joint commission entering into a Contract pursuant to the provisions of R.S. 33:1335 may appropriate such sums as are necessary to fulfill its obligations under the terms of such Contract, and may incur debt and issue revenue bonds for the purpose of providing the municipality and/or joint commission’s share of the cost of the construction and acquisition of the joint electric power generation and transmission facilities authorized under the provisions of R.S. 33:1335. Said bonds may be issued by any municipality and/or joint commission substantially in compliance with the procedures established by Subpart C, Part 1, Chapter 10, Title 33 of the Louisiana Revised Statutes of 1950, but as to a joint commission created and acting pursuant to the authority of R.S. 33:1334, such bonds may be issued without the necessity of securing the approval of the electorate at a referendum. All properties or interest in properties at any time owned by a municipality and/or joint commission, and all bonds issued by a municipality and/or joint commission under the authority of this Section and the income therefrom shall be exempt from all taxation in the state of Louisiana. Also, for the purpose of R.S. 51:702(2) and any amendment thereto or substitution therefor, bonds issued by a municipality and/or joint commission hereunder shall be determined to be securities issued by a public instrumentality of a political subdivision of the state of Louisiana. The provisions of R.S. 33:1334(E) shall be applicable to bonds issued under this Section.”

      . “The proposition to authorize the bonds was passed by the voters of Sikeston at the general election of November 2, 1976.” 555 S.W.2d 283.


text:
    Mrs. Mona SEWELL, Plaintiff-Appellee, v. ARGONAUT SOUTHWEST INSURANCE COMPANY, Defendant-Appellant.
    No. 6324.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Writ Granted March 17,1978.
    Chatham A. Reed, Shreveport, for defendant-appellant.
    Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

This case involves suit upon a petition by Mona Sewell, plaintiff-appellee, against Argonaut-Southwest Insurance Company, defendant-appellant, seeking payment of medical expenses which have arisen, or will arise, as a result of an accident in course and scope of employment allegedly occurring on December 26,1973. Plaintiff-appel-lee, further, sought penalties and attorney fees for arbitrary and capricious refusal of Argonaut to pay these expenses. From a judgment in favor of plaintiff awarding her the sum of $1,266.30 for payment of medical expenses, and condemning defendant to pay to plaintiff a penalty of 12% of the “total medical expenses to be paid hereunder in accordance with the provisions of LSA-R.S. 23:1201.2” and attorney’s fees in the amount of $3,000.00, defendant Argonaut has perfected this appeal.

The main issue presented is whether or not the trial court erred in denying defendant’s peremptory exception of res judi-cata.

As stated above, this accident occurred on December 26,1973. On September 26,1975, plaintiff filed suit against Argonaut, in Civil Docket Number 41,575 of the Tenth Judicial District Court, Natchitoches Parish, Louisiana, for weekly compensation benefits and payment of medical expenses incurred as a result of the accident. Trial of the matter was had on split dates, December 16, 1975, and February 2, 1976. The trial court rendered judgment in favor of plaintiff, awarding her compensation benefits for total and permanent disability not in excess of five hundred weeks. However, no mention of an award for medical expenses was made in the judgment. Indeed, there was no evidence introduced at trial to show the amount of medical expenses incurred, either up to the time of the filing of the suit, or up to the time of the trial of the matter. The trial court decision in favor of the plaintiff was appealed by Argonaut to this Court. No answer to the appeal was made by Mrs. Sewell, and therefore our affirmation of the trial court judgment made no mention of the failure of the trial court to award medical expenses. Presumably, as far as we knew, there were no outstanding medical expenses, inasmuch as no answer to the appeal had been filed by plaintiff to seek an amendment of the trial court judgment. Sewell v. Argonaut Southwest Ins. Co., 338 So.2d 1208 (La.App. 3 Cir. 1976).

It later developed that $1,266.30 of medical expenses had not been paid by Argonaut. The following unpaid medical expenses were stipulated in the case presently before us:

Drs. Cook and Campbell_$164.00
Natchitoches Parish Hospital. 907.30
Dr. H. K. Faludi_195.00

At trial of the case presently before us, it was stipulated that “. . . all the medical expenses herein sued for by the plaintiff, Mona Sewell, were incurred because of and as a result of her injury at the Natchitoches Parish Hospital on December 23, 1973”.

After repeated amicable demand by plaintiff, Argonaut refused to pay these medical expenses. Consequently, on February 14,1977, plaintiff instituted the present suit, and was awarded judgment as herein-above mentioned.

It is admitted by all counsel that of the amount of $1,266.30 medical expenses sued for by plaintiff, all but $70.00 thereof were for medical expenses incurred prior to September 26, 1975, when plaintiff’s first suit was filed. Of these claimed medical expenses, $70.00 thereof were incurred after September 26, 1975. Therefore, Argonaut admits that it owes thé amount of $70.00 of medical expenses to the plaintiff, for the reason that its plea of res judicata would not apply to that amount claimed.

Although the record in plaintiff’s first suit, as well as that in her second suit, indicates arbitrariness and capriciousness on the part of Argonaut throughout both of these suits, we are of the opinion that defendant’s plea of res judicata as to plaintiff’s demand for medical expenses, with the exception of the $70.00 hereinabove mentioned, is well founded.

The exact factual situation presented herein was before our brethren in the Second Circuit Court of Appeal in Reed v. Employers Mutual Liability Insurance Co. of Wisconsin, 303 So.2d 506 (La.App. 2 Cir. 1974). In Reed, as in this case, although medical expenses had been prayed for in the plaintiffs original suit, the judgment rendered was silent as to medical expenses. Reed concluded, and we agree, that generally the absence of an award within a judgment is tantamount to a rejection of the demand seeking that award. Consequently, Reed held that a plea of res judicata was well founded in a second suit by plaintiff, wherein medical expenses incurred prior to the filing of the first suit were claimed. We quote Reed at page 509:

In Villars v. Faivre, 36 La.Ann. 398, 400 (1884) the Supreme Court set forth a careful formulation of its requirements:

“Our jurisprudence has rested on a solid foundation, the rule that all the issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation. * * *” (Em-

phasis added).

See Bamburg v. Nelson, 313 So.2d 872, (La.App. 2 Cir. 1975), writ, refused (La.1975), 318 So.2d 57, and cases cited therein.

The facts of Reed are so similar to the case before us that a recitation of said facts therein are appropriate. Plaintiff Reed originally filed suit for weekly workmen’s compensation benefits and accrued medical expenses of $2,189.68. The district court, in the first suit, rendered judgment on May 11, 1972, awarding Reed compensation for total and permanent disability. However, the judgment was silent as to medical expenses. Defendant appealed, but Reed failed to appeal or answer the appeal. The Second Circuit in Reed v. Mullin Wood Company, Inc., 274 So.2d 845 (La.App. 2 Cir. 1972), affirmed the lower court’s ruling as to weekly compensation benefits. After the first hearing, the judgment was amended to include $2,189.68 accrued medical expenses. Apparently the Second Circuit was initially persuaded by Reed’s argument, supported by a letter from the trial judge, that the failure to award medical expenses by the trial court was due to oversight. On rehearing, however, it was determined by the Second Circuit that it was without authority to make such an amendment because Reed had neither appealed nor answered the opposing party’s appeal. Reed was denied a rehearing ánd both parties appealed to the Louisiana Supreme Court for writs which were denied April 12, 1973. On February 22, 1973, Reed had instituted another suit praying for accrued medical expenses and future medical expenses. Defendant filed peremptory exceptions of res judicata and prescription. The trial court sustained the exception of res judicata. Reed appealed from the ruling, and the Second Circuit, in Reed v. Employer’s Mutual Liability Insurance Company of Wisconsin, supra, sustained defendant’s exception of res judicata on that portion of the medical expenses claimed which accrued prior to the date of the first suit, but overruled the plea of res judicata as to those medical expenses which had accrued after plaintiff had filed his first suit.

The term “res judicata” means “thing adjudged”. According to Article 2286 of the Louisiana Civil Code, the essential elements of a plea of res judicata are:

(1) the thing demanded must be the same;
(2) the demand must be founded on the same cause of action;
(3) the demand must be between the same parties, and formed by them against each other in the same quality.

Argonaut argues that the doctrine of res judicata should have prevented appellee Se-well from instituting her second suit. It makes that argument on the basis that the object of the demand is identical in both suits: plaintiff sought payment of medical expenses which were incurred as a result of the December 26, 1973 accident; that accident was the cause of action upon which both suits were grounded; and in both suits, Mrs. Sewell was the employee and Argonaut was the insurer. We agree with Argonaut’s contention that the plea of res judicata is applicable herein to bar plaintiff’s recovery of the amount which she claims, with the exception of the amount of $70.00, and plaintiff’s demand for statutory penalties and attorney’s fees in connection therewith for arbitrary and capricious refusal to pay.

Plaintiff contends that this case is distinguishable from the Reed case because in the Reed case an offer of evidence of medical expenses had been made, whereas in the case at bar no evidence whatsoever was presented as to the amount of medical expenses. We find no merit in that argument. It was obvious from the record that plaintiff had received rather extensive medical treatment from the date of her injury up until the time that plaintiff’s first suit was filed. Plaintiff simply failed to prove up her claim for these expenses.

As we stated above, Argonaut has shown arbitrariness and capriciousness throughout the history of plaintiff’s claim. As a matter of fact, when this matter was first before us in plaintiff’s first suit, we awarded her penalties and attorney fees. Argonaut’s failure to pay at least the $70.00 of medical expenses which it admits it owes is likewise due to its arbitrariness and capriciousness, no good reason having been given for its refusal to pay same. The trial court herein had awarded the amount of $3,000.00 as attorney fees. We deem this to be excessive. We are of the opinion that the amount of $750.00 for attorney fees would be adequate.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it failed to sustain Argonaut’s exception of res judicata, on the amount of $1,196.30, and it is affirmed by awarding judgment for plaintiff in the amount of Seventy ($70.00) Dollars, plus the penalty of 12% under the provisions of LSA-R.S. 23:1201.2; the judgment of the trial court is amended by reducing the amount of attorney fees awarded from $3,000 to $750.

All costs of these proceedings are assessed against defendant, Argonaut Southwest Insurance Company.

REVERSED IN PART, AFFIRMED IN PART AS AMENDED, AND RENDERED.

      . It is noteworthy that plaintiff was injured while in the employ of Natchitoches Parish Hospital, and accordingly the amount of medical expense is owed by plaintiff to her own employer.

      . Apparently a typographical error; should be December 26.


author: SCHOTT, Judge.

text:
    In re Interdiction of Mrs. Nolia E. Langenbecker, widow of Alvin P. LICHTENTAG.
    Nos. 8394, 9067.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      James S. Quinlivan, Jr., Jefferson, and Gerard R. Kehoe, River Ridge, for Mrs. Edwina Dupuy.
    Barry F. Viosca, New Orleans, for plaintiff-appellant (Robert Alexander Katz).
    Norman W. Prendergast, New Orleans, Special Curator for the Interdict, for curator-appellant (Special Curator for the Interdict).
    Before GULOTTA, SCHOTT and WICKER, JJ.
   SCHOTT, Judge.

These consolidated cases involve a claim by the surviving spouse for the marital portion as provided by LSA-C.C. Art. 2382.

Decedent died on December 14,1975, having had no children. He and his surviving spouse had entered into a pre-nuptial marriage contract prior to their marriage in 1941 so that there was no community property. Decedent, in his last will and testament, bequeathed to the widow the use and habitation of the family home in New Orleans, ownership of the contents thereof along with the automobiles and an income from a trust in the amount of $1300 per month. The net value of decedent’s estate is approximately $1,500,000.

In May, 1976, the widow was interdicted and her property was inventoried at about $41,000. In October, 1976, her curatrix filed a petition for authority to renounce the succession of the decedent and to demand the marital portion under Art. 2382. This proceeding was conducted contradictorily with a special curator for the interdict, and on November 5, 1976, the trial court granted the relief sought by the curatrix. Pursuant thereto on November 9, 1976, the curatrix made a formal renunciation of the succession by act before a notary public in which he specifically reserved her right to claim the marital portion. From the judgment the special curator had taken an appeal.

In February, 1977, the executor filed a petition for a declaratory judgment, contesting the validity of the renunciation with the reservation of the right to claim the marital portion and raising the issues that if the interdict is entitled to the marital portion it should be reduced by the value of the legacy and by the value of the property owned by her at the time of her husband’s death. The curatrix filed a reconventional demand asking for a decree that the renunciation was valid so that interdict was entitled to the marital portion without reduction by the amount of the legacy or by the value of the property owned by the interdict at the time of her husband’s death. The trial court in June, 1977, decreed that the act of renunciation was a valid renunciation, the right to claim the marital portion was reserved to the surviving spouse, the marital portion was not reduced by the amount of the legacy renounced, and the marital portion was reduced by the value of the separate property owned by the surviving spouse at the time of his death. From this judgment, the executor has taken an appeal but the curatrix has not appealed or answered the appeal.

In reasons for judgment the trial judge framed the issues and disposed of them properly. We quote from those reasons and make them a part of this opinion:

“The executor for the estate contends that the attempted renunciation of the legacy by the surviving spouse was invalid as either a partial or conditional renunciation of the succession. In the act of renunciation by the curatrix of the surviving spouse, the succession was expressly and formally renounced, while reserving ‘all rights of the said interdict to the marital one-fourth as provided for in C.O. [C.C.] 2382.’ Every heir or legatee of a succession has an absolute right to accept or renounce the succession. C.C. 977. However, the Code further provides that a succession cannot be accepted or renounced in part (C.C. 986), nor can a renunciation be made conditionally (C.C. 1016). This is clear, so the question becomes whether an assertion of rights under C.C. 2382 is an acceptance or renunciation of a succession.
“The marital portion provided for in C.C. 2382 is not a bequest or inheritance. Succession of Henry, 287 So.2d 214 (3d Cir. 1973). Rather, it is considered as one of the civil effects flowing from marriage. Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891). It appears in the Code not under Title I, Book III — of Successions, but under Title VI, Book III — Of The Marriage Contract, and of the Respective Rights of the Parties in Relation to Their Property. Thus, although the marital portion may be an ‘interest’ in the succession, it is not a legacy which must be accepted or renounced with the succession, and the renunciation here cannot be considered a ‘partial’ renunciation. Neither can the renunciation be considered conditional because the renunciation of the legacy was complete and not contingent upon a determination that the surviving spouse is entitled to the marital portion. Should it be determined that decedent did not ‘die rich’ and/or that surviving spouse is not in ‘necessitous circumstances,’ there is no right to a revival of the legacy provided for in the testament.
“C.C. 2382 provides that ‘he is bound to include in this portion what has been left to him as a legacy by the husband or wife who died first.’ It has been held from a reading of this provision that ‘it is contemplated that one will accept his bequests and later deduct these in making up the one-fourth portion.’ Succession of Henry, 287 So.2d 214 (3rd Cir. 1973). From this, the executor argues that necessarily the value of the legacy to the surviving spouse must be deducted in computing any marital one-fourth. This would clearly be the case if the legacy here had been accepted. But since the legacy was renounced, it is considered as never having been received, C.C. 946. Never having been a legatee, there is no legacy to be included in computing the material portion. The result would be different if the marital portion were considered to be a succession right, but it is a marital right which must be considered independently.”

In this court the executor has renewed his contention that the surviving spouse’s claim to the marital portion is an inheritance so that the renunciation of the succession without renunciation of her claim to the marital portion constitutes a conditional renunciation and is thereby stricken with invalidity, C.C. Arts. 986, 1016. He relies on Succession of Piffet, 39 La.Ann. 556, 2 So. 210 (1887). While we agree with the executor that the language of the Supreme Court in that cited case treated the marital portion as an inheritance we have concluded that that language has been repudiated by the Supreme Court in later decisions, and as found by the trial judge the claim for the marital portion is not a bequest or an inheritance but is rather one of the civil effects flowing from marriage. Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891), Succession of Justus, 44 La.Ann. 721, 11 So. 95 (1892), Succession of Bancker, 154 La. 77, 97 So. 321 (1923), Malone v. Cannon, 215 La. 939, 41 So.2d 837 (1949).

Furthermore, we agree with the trial court that the language of Art. 2382 providing for a reduction from the marital portion of the amount of any legacy left to the surviving spouse has no application to this case where the legacy was renounced, since it is considered as having never been received under these circumstances. C.C. Art. 946.

We have concluded that both judgments appealed from are affirmed with all costs, including the cost of this appeal to be paid by the executor.

AFFIRMED.

      . Because of the issue of the reduction of the marital portion by the amount of the surviving spouse’s property was decided in the executor’s favor that issue is not before us on appeal. C.C.P. Art. 2133.