author: MARCUS, Justice. CALOGERO, Justice, SUMMERS, Justice

text:
    Vertie L. HOLLIDAY v. Andrew S. HOLLIDAY.
    No. 60298.
    Supreme Court of Louisiana.
    April 10, 1978.
    Dissenting Opinion May 31, 1978.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-applicant.
    Russell E. Gahagan, Gahagan & Gahagan, Natchitoches, for defendant-respondent.
   MARCUS, Justice.

On April 26, 1963, plaintiff, Vertie Eagles, née Leeper, and defendant, Andrew S. Holliday, entered into an antenuptial agreement in which they stipulated that there would be no community of acquets and gains during the existence of their contemplated marriage, choosing instead to remain separate in property. The parties further agreed that plaintiff waived and relinquished “any and all rights or claims which she might have to claim or collect sustenance, alimony, support, maintenance or funds for any reason from the said Andrew Sampson Holliday ... in the event a judicial separation or divorce is obtained by either of the parties hereto.” Thereafter, on May 2, 1963, the parties were married.

On June 25, 1976, plaintiff instituted this action against defendant seeking a separation from bed and board on the ground of cruel treatment and custody of the minor children of the marriage. Additionally, plaintiff sought alimony pendente lite in the sum of $800 per month and child support in like amount. Defendant filed an answer denying the allegations of plaintiff’s petition and pleading as a bar to plaintiff’s right to alimony pendente lite the antenuptial agreement executed by the parties. He further reconvened seeking a separation in his favor on the ground of cruel treatment and custody of the minor children of the marriage. After trial on the merits, judgment was rendered in favor of plaintiff awarding her a separation from bed and board and rejecting defendant’s reconventional demand. Defendant was ordered to pay to plaintiff alimony pendente lite in the sum of $400 per month and child support for a minor child of the marriage in the amount of $50 per week.

Defendant appealed only that portion of the district court’s judgment which awarded to plaintiff alimony pendente lite. The court of appeal concluded that the provision of the antenuptial agreement in which plaintiff waived her right to alimony pen-dente lite in the event of a judicial separation was a valid and binding agreement and was not against public policy. Hence, it barred plaintiff’s right to alimony pendente lite. Accordingly, the court amended the lower court’s judgment so as to delete therefrom the award of alimony pendente lite to plaintiff. We granted plaintiff’s applicatión for certiorari to review the correctness of this decision.

With respect to antenuptial agreements, La.Civil Code art. 2325 provides:

In relation to property, the law only regulates the conjugal association, in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals, and under the modifications hereafter prescribed.

Pursuant to this provision, an antenuptial agreement is valid provided that it is not contrary to good morals or to public policy.

The sole issue presented for our determination is whether the provision of the ante-nuptial agreement in which plaintiff waived her right to alimony pendente lite in the event of a judicial separation from bed and board is null and void as against public policy.

Although, under La.Civil Code art. 86, marriage is designated as a civil contract, it is more than a contract. The law prescribes the manner of contracting and celebrating marriages, the legal effects and consequences of marriage, and the manner in which marriages may be dissolved. La. Civil Code art. 87. Hence, marriage is a relationship established according to law and it is the policy of the state to maintain it. In the public interest, the state has deemed it essential that certain rights and duties should attach to this relationship among which is the husband’s obligation to support his wife during the existence of the marriage. With regard to this duty, La. Civil Code arts. 119 and 120 provide:

Art. 119:
The husband and wife owe to each other mutually, fidelity, support and assistance.
Art. 120:
The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition. (Emphasis added.)

Although a judgment of separation from bed and board terminates the spouses’ conjugal cohabitation and their community of acquets and gains, where one exists, it does not dissolve the marriage itself nor does it extinguish the obligation of fidelity and duty of support and assistance provided for in La.Civil Code arts. 119 and 120 which terminate only upon dissolution of the marriage by death or divorce. Boucvalt v. Boucvalt, 235 La. 421, 104 So.2d 157 (1958); Hillard v. Hillard, 225 La. 507, 73 So.2d 442 (1954); Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950). La.Civil Code art. 148 is the authority for the courts to allow alimony pendente lite. The right of the wife to seek alimony pendente lite does not depend at all upon the merits of the suit for separation from bed and board, or for divorce, or upon the actual or prospective outcome of the suit. The reason for this is that an order to pay alimony pendente lite is merely an enforcement of the obligation of the husband to support his wife as it exists under La.Civil Code art. 120, which continues during the pendency of a suit for separation from bed and board or for divorce and does not terminate until the marriage is dissolved either by death or by divorce. Murphy v. Murphy, 229 La. 849, 87 So.2d 4 (1956); Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956); Hillard v. Hillard, supra; Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952).

It is the public policy of this state as expressed in the provisions of La.Civil Code arts. 119, 120 and 148 that a husband should support and assist his wife during the existence of the marriage. It is against the public interest to permit the parties to enter into an antenuptial agreement relieving him of this duty imposed by law. The policy involved is that conditions which affect entitlement to alimony pendente lite cannot be accurately foreseen at the time antenuptial agreements are entered, and the public interest in enforcement of the legal obligation to support overrides the premarital anticipatory waiver of alimony.

We, therefore, conclude that the provision of the antenuptial agreement in which plaintiff-wife waived her right to alimony pendente lite in the event of a judicial separation from bed and board is null and void as against public policy. Hence, the court of appeal erred in recognizing the validity of the waiver as a bar to plaintiff’s right to alimony pendente lite.

Since we are unable to ascertain from the record before us whether defendant raised in the alternative the issue of the excessiveness of the alimony award in his appeal to the court of appeal, we must remand the case to that court for further proceedings.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to that court for further proceedings consistent with the views herein expressed. The costs in this court are assessed against defendant, Andrew S. Hol-liday.

CALOGERO, J., dissents and assigns reasons.

SUMMERS, J., dissents and will assign reasons.

CALOGERO, Justice,

dissenting.

I would affirm the judgment of the Court of Appeal. As correctly stated by the majority the precise legal issue presented here is whether a waiver of alimony pendente lite by a wife in a prenuptial contract is an agreement against public policy and thereby null and void.

Initially two pertinent factors should be emphasized:

a) the contract under consideration was entered into prior to marriage, i. e. before the parties were contractually incapacitated by their marital status; and
(b) the only alimony at issue is alimony pendente lite under La.Civil Code article 148.

As there is no question of the capacity of the parties to enter this contract our attention is focused on the contract’s subject matter. Article 2325 of the Civil Code provides that the parties are free to stipulate as they please in antenuptial contracts as long as their stipulations are not against good morals or certain express prohibitions. The stipulations expressly prohibited by our Civil Code do not include that found in the present contract. The Court of Appeal in its discussion of those provisions which are specifically prohibited in antenuptial contracts, stated:

“LSA-C.C. Article 2326 provides that an antenuptial contract cannot alter the order of inheritance by the children or posterity of the parties. Article 2327 provides that such a contract cannot derogate from the power of the husband over his wife and children. Article 2392 expressly. provides that the parties may stipulate that there shall be no community of acquets and gains. Article 2395 provides that where the parties agree that they shall be separate in property, each contributes to the expenses of the marriage in the manner agreed to in their contract, or, if there be no agreement in the contract, the wife contributes one-half of the expenses of the marriage.”

Therefore, if the agreement waiving alimony pendente lite is null and void it can only be so if it is “contrary to good morals” or if it is an attempt to “derogate from the force of laws made for the preservation of public order or good morals.” But if a stipulation is neither expressly or impliedly prohibited nor contrary to the public good then a party may renounce those rights which the law has established in his (or her) favor.

In support of relator’s contention that the contractual stipulation in question is against public order, public good and/or good morals, relator in brief relies upon Civil Code Article 119 which provides:

“The husband and wife owe to each other mutually, fidelity, support and assistance.”

Relator additionally cites the appellate court decision in Favrot v. Barnes, 332 So.2d 873 (La.App. 4th Cir. 1976) wherein the court questioned the ability of spouses to “repeal or amend” the mutual marital obligations established by Article 119.

I disagree with relator’s contentions and the majority’s resolution of the issue. Alimony pendente lite is not one of the “mutual” duties of support contemplated by Civil Code Article 119. Nor is alimony pendente lite the type of support which under Article 120 a husband owes to a wife who lives with him “wherever he chooses to reside.” Prompting my conclusion in this regard is Williams v. Williams, 331 So.2d 438 (La.1976). In that case a divided court, with Justice Marcus writing for the majority, found Article 148 to be constitutional notwithstanding denial of equal protection contentions stemming from Article 148’s providing alimony pendente lite for the wife and not the husband. The reasoning behind the decision in Williams was that alimony pendente lite was intended to protect the wife during a period when she has no control over community property due to the husband’s status as head and master. Since alimony pendente lite is not reciprocal, it should be evident that it is not embodied in Article 119’s obligation of “mutual” support.

Neither am I persuaded by relator’s contention and the majority’s inference that alimony pendente lite is, in the public interest, essential to avoid a wife’s becoming a social burden and/or ward of the state. This attitude is a demeaning one which is inconsistent with the realities of the day. It is simply not correct to assume that all, or most, women are incapable of financial independence but must, instead, be wholly dependent upon either their husbands or the state.

Furthermore, in this case, as in almost all marriages where the spouses have entered into an antenuptial agreement, there is no community of acquets and gains. The wife thus has the same control over her property between separation and divorce as she had prior to separation and prior to marriage. An antenuptial waiver by the wife of alimony pendente lite would make the wife no more of a burden on the state than she was prior to marriage. I therefore view alimony pendente lite as a right which is provided for the benefit of the individual and not for the protection of public order and good morals.

Of paramount importance in what would be my resolution to this legal issue is the freedom of parties to contract, which is essential to both our society and system of government. Planiol states in Chapter III of his Treatise on the Civil Law, entitled “Of the Freedom of Juridical Acts,” section 288:

“Here is an outstanding rule of law which is nowhere written in formal terms. Its existence is, however, certain. It runs: all that is not prohibited by law is permitted. Freedom is the rule. Private will is autonomous, with due regard to the limits fixed by law.”

In our jurisprudence the issue appears to be res nova. No prior case until now has conclusively resolved the issue although it has been raised on several occasions.

Respondent urges reliance upon the case of Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967) for the result which I espouse here. He contends that that case held a waiver of alimony pendente lite by a wife to be substantively valid. I would find it unnecessary to rely on that decision but would conclude for the reasons I have expressed hereinabove that the waiver of alimony pendente lite by relator-wife was a valid and enforceable element of the ante-nuptial agreement between Vertie and Andrew Holliday.

Therefore, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by Mr. Justice CALOGERO.

      . 346 So.2d 1382 (La.App. 3d Cir. 1977).

      . 350 So.2d 678 (La.1977).

      3. See also La.Civil Code arts. 11, 1892, 1895 and 2031.

      . La.Civil Code art. 148 provides:
      If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.

      . The great weight of authority is in general accord. Williams v. Williams, 29 Ariz. 538, 243 P. 402 (1926); Eule v. Eule, 24 Ill.App.3d 83, 320 N.E.2d 506 (1974); In re Marriage of Gudenkauf, 204 N.W.2d 586 (Iowa 1973); Norris v. Norris, 174 N.W.2d 368 (Iowa 1970); Cohn v. Cohn, 209 Md. 470, 121 A.2d 704 (1956); Motley v. Motley, 255 N.C. 190, 120 S.E.2d 422 (1961); Caldwell v. Caldwell, 5 Wis.2d 146, 92 N.W.2d 356 (1958).

      .We express no opinion at this time regarding the validity of the clause in respect to its attempt to waive permanent alimony. This issue is not before us.

      . The general incapacity to contract between spouses is provided in C.C. art. 1790. It provides:
      “Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.” The exception to this general incapacity is
      provided by C.C. art. 2446. It provides:
      “A contract sale, between husband and wife, can take place only in the three following cases:
      1.When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”

      . 346 So.2d at 1384.

      . C.C. art. 1790.

      . Civil Code Article 11 provides in pertinent part:
      “Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.”
      Other Civil Code articles relative to prohibited conditions are:
      Art. 12. “Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed."
      Art. 19. “When to prevent fraud, or from any other motives of public good, the law declares certain acts void, its provisions are not to be dispensed with on the ground that the particular act in question has been proved not to be fraudulent, or not to be contrary to the public good.”
      Article 1892. “That is considered as morally impossible, which is forbidden by law, or contrary to morals. All contracts having such an object are void.”
      Art. 1895. “The cause is unlawful, when it is forbidden by law, when it is contra bonos mores (contrary to moral conduct) or to public order.”
      Art. 2031. “Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.”

      . C.C. art. 11 concludes:
      “But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”

      . In Sheard v. Green, 219 La. 199, 52 So.2d 714 (1951) and Russo v. Russo, 280 La. 17, 22 So.2d 671 (1945) this Court was confronted with contracts containing similar waivers of alimony. The character of such, however, was neither expressly or impliedly decided in those cases as various reasons prevented the Court from reaching the issue. See dissent by Judge Landry in the First Circuit’s decision in Nelson v. Walker, 189 So.2d 54 (La.App. 1st Cir. 1966).

      . While the language of the Court in Nelson touched on considerations of public order and seemingly held the waiver of alimony pendente lite substantively valid, a study of the decision indicates that the language was in reference to the character of the nullity (absolute or relative) affecting the interspousal contract entered into during the marriage, a period of contractual incapacity for the parties. Any discussion of the substantive validity of a waiver of alimony pendente lite was not central to the holding .but was obiter dictum.


source: Caselaw Access Project

author: TATE, Justice. SUMMERS, Justice

license: Public Domain

text:
    LOUISIANA POWER & LIGHT CO., Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION et al., Defendant and Intervenor-Appellees.
    No. 60851.
    Supreme Court of Louisiana.
    April 10, 1978.
    Dissenting Opinion On Denial of Rehearing May 19, 1978.

      Stanwood R. Duval, Jr., James M. Fun-derburk, Duval, Arceneaux, Lewis & Fun-derburk, Houma, for defendants-appellees.
    Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff-appellant.
   TATE, Justice.

The issue before us concerns whether either or both of two competing utilities erected “pre-emptive” lines in violation of La.R.S. 45:123 (1970).

Upon complaint of the South Louisiana Electric Cooperative Association (“SLE-CA”), the Louisiana Public Service Commission determined that the Louisiana Power & Light Company (“Louisiana Power”) had, in violation of the cited statute, constructed a transmission line within 300 feet of an electrical transmission line serviced by SLECA. After remand of a first appeal to this court, 324 So.2d 430 (La.1975), the Commission likewise dismissed Louisiana Power’s reconventional demand; this, similarly, had sought a determination that SLECA’s construction of a transmission line paralleling Louisiana Power’s was likewise an illegal pre-emptive line.

Louisiana Power sought judicial review of these determinations of the Commission. La.Const. of 1974, Art. 4, Section 21(E). SLECA intervened in the district court proceedings. That court affirmed the Commission’s determinations, and Louisiana Power appeals.

(1)

Preliminarily, we note that La.R.S. 45:123 prohibits (with exceptions not here material) any electric public utility from constructing a transmission or distribution line to any point of connection within 300 feet of an electrical transmission line of another public utility. The statute deems as thereby prohibited any line “originally constructed for the principal purpose of pre-empting territory.”

The statute has been upheld as a valid regulation of duplication of utility electric service facilities, thereby intended to minimize the greater cost of electricity to consumers resulting from unnecessary duplica-tive electric plant facilities. The courts have further held that the constitutional regulatory power of the Commission, in ef-fectuation of the statutory policy, includes within its scope orders to dismantle lines found to be pre-emptive or (as in this case) restricting their use to purposes not involving distribution of electricity to customers along the pre-emptive line.

See: Central Louisiana Electric Co. v. Louisiana Public Service Comm’n, 344 So.2d 1046 (La.1977); Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 322 So.2d 133 (La.1975); South Louisiana Electric Co-operative Ass’n v. Louisiana Public Service Comm’n, 309 So.2d 287 (La.1975). See also: Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 343 So.2d 1040 (La.1977); Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 324 So.2d 427 (La.1975); Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 322 So.2d 133 (La.1975).

(2)

On its appeal, Louisiana Power does not contest these principles. Rather, as we understand its arguments, Louisiana Power contests only the Commission determinations (a) that Louisiana Power’s line was pre-emptive in purpose and therefore within the statutory prohibition and (b) that SLECA’s line was not constructed for the principal purpose of pre-empting territory and, consequently, was “a line constructed and operated for the transmission and/or distribution of electricity”, La.R.S. 45:123, within the meaning and protection of that statute.

Louisiana Power essentially contends that the Commission’s determinations and its findings of fact are arbitrary and unreasonable and made without substantial evidence to support them.

(3)

In Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 343 So.2d 1040, 1044 (La.1977), we once again reiterated the principles that apply to judicial review of a commission order, as follows:

The orders of the commission are entitled to great weight and are not to be overturned on judicial review, unless shown to be arbitrary, capricious, or abusive of the commission’s authority. Louisiana Oilfield Carriers Ass'n, Inc. v. Louisiana Public Service Commission, 281 So.2d 698 (La.1973) and many decisions therein cited. As there noted, a person attacking a commission order bears the burden of demonstrating that it is defective, since the order is presumed to be valid. See also Monochem, Inc. v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969).

Further, while a ruling of the commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence and to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. Truck Service, Inc. v. Louisiana Public Service Comm’n, 263 La. 588, 268 So.2d 666 (1972). As reiterated in Rubion Transfer and Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880, 884 (1960): “ ‘ * * * Whenever the Public Service Commission, in the issuing of an order, has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling.’ ”

(4)

Reviewed in the light of these principles, the Commission’s findings of fact and its determinations will not be disturbed.

Prior to the controversy, Louisiana Power had transmission lines along the Little Bayou Black Road, a state highway. SLECA had transmission lines along the (main) Bayou Black state highway. At the point in controversy, the SLECA installations were some three miles south of and parallel to Louisiana Power’s.

The Bayou Black and the Little Bayou Black state highways were connected at the point by Savanne Road, which had been constructed by the parish in 1972. The lands along this road were undeveloped; however, Conrad Lirette, one of the two landowners, was planning to open a subdivision. He had for several years discussed with SLECA his intention for that utility to furnish the electric service. About three days before Louisiana Power commenced its line, he applied to SLECA for a transmission line to service a site in his proposed subdivision.

Louisiana Power had been negotiating unsuccessfully with Southdown Sugar, another landowner, for a power-line right of way along the northern part of the Savanne Road. Abandoning these attempts to secure a right of way, on May 21, 1973 (three days after the Lirette request) Louisiana Power within four days quickly constructed on the police jury road right of way the 3.1 line here in question.

The line commenced from the Louisiana Power lines on the Little Bayou Black and terminated at its southerly end (near Bayou Black) at a point 156 feet from an existing SLECA transmission outlet.

The line terminated at a street light installed by Louisiana Power upon its completion. A police juror had allegedly requested installation of the light the day the construction of the line was completed; however, the date of his request is shown to be May 25. Immediately prior to SLECA’s complaint before the commission, Louisiana Power relocated the streetlight northerly to a point some 350 feet from the SLECA line.

Substantial evidence thus supports the commission’s determination that Louisiana Power’s 3.1 mile line was principally built to pre-empt territory, in violation of La.R.S. 45:123, rather than having been constructed as a bona fide transmission line. Louisiana Power’s hurried construction of the line, after its unsuccessful attempts to obtain a right of way, occurred after the landowner Lirette had formally applied for SLECA service. ' The entire southerly end of this line was built to service only one street light, for which Louisiana Power solicited an application from the police juror almost simultaneously with, if not subsequent to, the construction of the line. Testimony in the record further indicates that the usual practice is for police jurors to request installation of such services; not for the power company to seek an application for such an installation, and to build at $16,000 cost a line for the sole purpose of servicing street lights.

Nor do we find impressive, in view of the commission’s rejection of them, Louisiana Power’s other non-pre-emptive justifications for the sudden construction of the line in 1973: (a) a 1970 permission by the police jury to Louisiana Power to construct ten streetlights on the Ward 2 (northerly) part of the line, which Louisiana Power did not act upon until it suddenly constructed its line in 1973, not only in Ward 2 but into Ward 9 in which the Lirette property was located; (b) Louisiana Power’s plans since 1970 to build a loop or feeder line down Savanne Road to connect its Little Bayou Black lines with other lines it maintained at some distance from the Bayou Black (southerly) end of the Savanne Road line.

Likewise, having found the Louisiana Power line to be prohibited as a construction primarily for the purpose of preempting the service to the territory, we find no difficulty in affirming the commission’s determination that the SLECA line to the Lirette property (some 7,000 feet along Savanne Road) was constructed for proper transmission purposes. Prior to construction of the Louisiana Power line, Lirette had entered into discussions with SLECA for it to service the subdivision he planned off Savanne Road and had granted SLECA a right of way for that purpose. Three days before Louisiana Power constructed its line, in fact, Lirette had applied in writing to SLECA for it to furnish services to a watchman’s light and a meter for his projected subdivision. Under the evidence, we cannot find arbitrary the commission’s acceptance of such testimony as proving good faith construction by SLECA of its transmission line to the Lirette property.

Decree

For the reasons assigned, we affirm the Commission’s orders and determinations. All costs are assessed against the plaintiff-appellant.

AFFIRMED.

SANDERS, C. J., dissents.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

By its petition dated June 27, 1973 South Louisiana Electric Cooperative Association (SLECA) complained to the Public Service Commission that Louisiana Power & Light Company (LP&L) had constructed an electric transmission or distribution line for approximately 3 miles along Savanne Road in Terrebonne Parish for the purpose of preempting territory contrary to the provisions of Section 123 of Title 45 of the Revised Statutes. By that line, it was alleged, LP&L was servicing a street light within 300 feet of SLECA’s existing lines. SLE-CA asked that LP&L be restrained from providing any electric service with that line and that the line be removed.

LP&L answered resisting SLECA’s claim and reconvened alleging that it had constructed its line under a parish-wide franchise in anticipation of the development along the newly constructed Savanne Road and to service street lights there. Upon completion of LP&L’s line SLECA constructed an electric line parallel to LP&L’s existing line a distance of 1.3 miles. SLE-CA’s line is alleged to be a duplication of LP&L’s line, and an attempt to preempt territory contrary to Section 123 of Title 45. LP&L prayed that SLECA’s line be dismantled.

A hearing was held before the Commission on October 24, 1973 and the Commission issued its Order No. U-12359 on May 3, 1974, finding that the line constructed by LP&L did not meet the criteria of an “electric line” as defined by Section 123, that being, “a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.” The Commission also found that the only customer connected by LP&L to its line was a street light within 300 feet of SLECA’s line and there were no other prospective customers en route.

One member of the then three member Commission dissented, saying “both constructions violate the principle of plant economy and should be dismantled to avoid the allocation of territory based on an improper act and expenditure.”

LP&L appealed to the District Court, the Commission filed its denial, and SLECA intervened in support of the Commission. After hearing additional evidence from LP&L to the effect that its line was required as a loop or tie line between its substations in the surrounding areas, the District Judge remanded the case to the Commission in light of the additional evidence.

Upon reconsideration the Commission issued its Order No. U-12359-A. In light of the additional testimony it concluded that it would serve no useful purpose to order LP&L to dismantle its line. It ordered, therefore, that the line be designated as a part of a loop feed but that it not be used to provide service to any customer. The Commission’s Order No. U-12359A was upheld by the District Court.

LP&L then appealed to this Court. Finding that the Commission did not pass directly upon LP&L’s reconventional demand, which contained substantially the same allegations against SLECA, this Court remanded the case to the Commission to rule on LP&L’s reconventional demand. Louisiana Power & Light Co. v. Louisiana Public Service Comm., 324 So.2d 430 (La.1976). On remand, by its order of August 24, 1976, the Commission rejected LP&L’s reconventional demand seeking the dismantling of SLE-CA’s line; whereupon, the case was again submitted to the District Court and that court again rendered judgment affirming the Commission’s Order No. 12359-A. LP&L’s appeal is now before this Court.

Two specifications of error are relied upon by LP&L: 1) The Commission’s orders contain findings of fact that are arbitrary and unreasonable and made without substantial evidence; and 2) the orders grant SLECA an exclusive territory in an area that it never before served and are arbitrary, capricious and unlawful.

Approximately five miles west of the city of Houma in Terrebonne Parish, Little Bayou Black and Big Bayou Black run parallel to each other flowing roughly in a southeasterly direction. At a point which is pertinent here the two streams are three miles apart. Highway No. 311 runs along the bank of Little Bayou Black and U.S. Highway 90 runs along the banks of Big Bayou Black in this vicinity. About five miles to the north, Bayou Terrebonne runs roughly parallel to Little Bayou Black.

For many years LP&L has maintained an electric transmission and distribution facility terminating at its Terrebonne Substation, the lines being parallel to and about two miles north of Bayou Terrebonne. SLECA has maintained a similar line to the south along the banks of Big Bayou Black.

During the year 1967 the parish of Terre-bonne completed construction of the southern 3-mile section of Savanne Road from a point on Little Bayou Black southerly to U.S. Highway 90 along the banks of Big Bayou Black. The road ran in a north-south direction. The segment of Savanne Road to the north, between Little Bayou Black and Bayou Terrebonne, is approximately 2.5 miles long.

In 1970 LP&L planned a loop-feed line along Savanne Road from its facility north of Bayou Terrebonne to its lines south of Big Bayou Black located south and west of the southern terminus of Savanne Road. Under accepted practices in the industry the loop-feed line was to be constructed in sections. At the same time this planning contemplated servicing future customers along Savanne Road with this same line as development occurred.

By a letter of September 8, 1970 the Police Jury of the Parish authorized the installation of ten street lights along Sa-vanne Road in Road Lighting District No. 2. This district included the north half of the 3-mile section of Savanne Road between Little Bayou Black and Big Bayou Black.

In stages thereafter LP&L extended its planned loop-feed and distribution line southward along Savanne Road from its facility north of Bayou Terrebonne. The first segment, completed in 1971, ran to Bayou Terrebonne; the second and third segments ran between Bayou Terrebonne and Little Bayou Black and were completed in 1972 and 1973; the final section was the 3-mile contested section completed on May 25,1973. This ran from Little Bayou Black on the north to Big Bayou Black on the south.

Insofar as the contested 3-mile section of the LP&L line is concerned, the evidence is to the effect that an effort was made from time to time beginning in 1970 without success to obtain rights of way from South-down Land Company, the owners of the land abutting Savanne Road in Lighting District No. 2. Southdown’s position was that such a line was unnecessary because the land along Savanne Road contained no habitations or commercial structures, it being crop and woodland. Moreover, they were not prepared to subdivide or develop their property in that location, one reason being they owned 10,000 acres between the city of Houma and Savanne Road which should be developed before the property at Savanne Road was opened. When an electric line right of way could not be obtained adjoining the road, LP&L offered to pay Southdown for a right of way within that which Southdown had granted for the construction of Savanne Road. This, too, was unsuccessful, Southdown contending that no electric line installation could be placed within the road right of way because it was exclusively for road purposes.

Faced with this obstacle, LP&L decided to proceed with the construction under the franchise rights it had acquired from the Police Jury. That ordinance granted unto LP&L

“. . . the right, power and authority to construct, maintain and operate in, over and through the Parish of Terre-bonne, and in, over, under and along all public roads, streets and alleys therein not within the limits of any incorporated city, town or village, lines or poles, wires, conductors, conduits and cables for the transmission of electric current for heat, light, power and other purposes, in said Parish . . ..”

When construction began on May 21,1973 Southdown protested and promptly filed a suit against LP&L for trespass. At the time of these hearings the suit was still pending.

In constructing the controverted 3-mile section LP&L installed ten street lights within Road Lighting District No. 2. An authorization of the Police Jury permitted one additional street light at the southern terminus of the 3-mile line. The construction was completed on May 25, 1973.

Conrad Lirette owns the land bordering Savanne Road along its southern 1.5 miles, south of Southdown and south of Road Lighting District No. 2. He testified he gave SLECA a right of way for the installation of a line approximately seven years prior to 1973, or during the year 1966, and again on May 18, 1973. No copy of the earlier right of way was introduced in evidence. He had never given LP&L the right to construct electric lines across his property, nor had he requested service from LP&L, although he had requested service from SLECA. The early request was made with the condition that he was not in a hurry because he had another subdivision to develop before developing the property along Savanne Road. During May 1973 he requested service for one night watchman light on his property when he found out that LP&L was constructing its line, SLE-CA having advised him that they intended to construct a line along Savanne Road, and that they had a permit to do so. No such permit is in evidence.

On May 26, the day after LP&L completed its line, SLECA began the construction of a line from its facilities along Big Bayou Black northerly along Savanne Road for a distance of 1.4 miles terminating at the south line of Road Lighting District No. 2. This line is parallel to and within 10 to 22 feet of LP&L’s line. A connection was then made to one night watchman light on Lirette’s property, Lirette intending to later make a connection to a pump.

On June 27, 1973 SLECA filed its complaint with the Commission alleging that a LP&L street light was within 300 feet of its facilities along Big Bayou Black and that LP&L’s line along the southern three miles of Savanne Road, between Little and Big Bayou Black, were wasteful and a duplication of electric facilities constituting a flagrant attempt to duplicate facilities, all in violation of Section 123 of Title 45 of the Revised Statutes. LP&L answered, denying the charges and reconvening with like charges against SLECA.

Upon learning that the street light at the southern terminus of its 3-mile section of line along Savanne Road was within 300 feet of SLECA’s facilities along Big Bayou Black, LP&L promptly removed that light and its poles to a point more than 300 feet from SLECA’s facilities.

As the situation now stands, the lines of LP&L and SLECA parallel each other for a distance of 1.5 miles. LP&L’s line serves eleven street lights. LP&L’s line is also an essential link of an ongoing project to establish a loop-feed line. Such a line would provide service in the event of a breakdown along its principal lines serving a large segment of Terrebonne Parish and adjoining areas. SLECA’s line serves one night watchman light. There is obviously a wasteful duplication of facilities and the parallel lines should not be permitted.

On the whole record the most reliable evidence favors LP&L’s retention of their 3-mile line between Little Bayou Black and Big Bayou Black; it is a segment of a proposed loop-feed line, while the only present justification for SLECA’s line appears to be Lirette’s night watchman light — hardly a service which would warrant this duplication. Only a compounding of waste would result from a dismantling of both lines. And an order to dismantle or limit the service of LP&L’s line would certainly be arbitrary and capricious if SLE-CA’s line were permitted to remain as the Commissioner’s order provides. And, since it is there for a legitimate purpose, there is no point in denying LP&L the right to service with that line when there is no other line there with good reason.

I find, and the record demonstrates, it was obviously error for the Commissioner to find that only one street light was placed for Road Lighting District No. 2, and that within 300 feet of SLECA’s line. Eleven such street lights were installed along LP&L’s line at the written requests of the proper authorities — one at the southern extremity of its line at the request of the Police Jury and 10 within Road Lighting District No. 2, at its written request.

While LP&L’s placement of this 3-mile line along Savanne Road would not be justified to serve street lights in this uninhabited crop and woodland area, it is fully justified by the step-by-step practice of establishing loop-feed lines, a practice in keeping with economic and budgetary considerations. The line was not, therefore, “for the principal purpose of preempting territory.”

On the other hand there is no justification whatever in this record for permitting the SLECA line to remain, a line begun and completed after the completion of LP&L’s line, a line occupying a territory SLECA had never served before, a line servicing one light bulb, and a line constructed, in my view, solely to obstruct and deny LP&L’s legitimate and justified extension.

SLECA’s contention that the loop-feed line was an afterthought on LP&L’s part is unfounded. To the contrary in its initial pleading, by the testimony of its principal witness at the Commission hearing and in an affidavit requested by the Commissioner, LP&L claimed the line’s dual purpose as a loop-feed and distribution line in the very beginning. Failure of the Commission to recognize this purpose was the reason for the additional evidence on the subject in the District Court. Persuaded by this additional evidence the Commission did recognize the validity of the line’s function as a link in an ongoing project to connect LP&L’s principal lines.

These facts require that this Court find the determination of the Commission to be contrary to the evidence, and that no legitimate regulatory function is served by its action. Section 123 does not confer upon the Commission the power to grant to SLE-CA what amounts to an exclusive franchise over the area in question under these circumstances.

I would reverse the Commission order as arbitrary and capricious. The order finds no support in the record.

      . One commissioner of the (then) three-member Commission dissented, saying "both constructions violate the principle of plant economy and should be dismantled to avoid the allocation of territory based on an improper act and expenditure.” The Commission eventually did not require Louisiana Power to dismantle its line; instead it limited its use to that of a loop feed or tie line between its substations in the region.

      . Southdown immediately filed a suit against Louisiana Power for trespass, since it had granted the police jury a servitude limited to road purposes.

      . In the original commission hearing, Louisiana Power did not assert this last ground as a non-pre-emptive justification. When it produced evidence to this effect at the first judicial review of the commission order, on remand the commission deleted its initial order that the line be dismantled; instead, it permitted the line’s continuation as a loop or feed line.

      . La.R.S. 45:123:
      “No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by; or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an unserved point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.
      “As used in this section, an ‘electric line’ is a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.
      “The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority -of municipalities with respect to franchises.”


author: PER CURIAM.

text:
    ASHLAND EXPLORATION, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 62118.
    Supreme Court of Louisiana.
    May 12, 1978.
    Liskow & Lewis, John M. Wilson, New Orleans, Snellings, Breard, Sartor, Shafto & Inabnett, D. R. Sartor, Jr., Monroe, for plaintiff-appellee.
    Marshal] B. Brinkley, Gen. Counsel, Baton Rouge, for defendants-appellants.
   PER CURIAM.

The motion to dismiss the appeal is granted.


text:
    SOUTHERN BUILDERS, INC. v. CARLA CHARCOAL, INC.
    No. 62134.
    Supreme Court of Louisiana.
    May 2, 1978.
   In re: Envirotéch, Inc. applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 357 So.2d 638.

Writ denied.


text:
    Patrick GUILLORY v. LOUISIANA INSURANCE RATING COMMISSION.
    No. 62065.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Patrick Guillory applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 599.

Writ denied.


text:
    APEX OIL COMPANY and Petroleum Fuel and Terminal Company v. CITY OF PORT ALLEN.
    No. 62027.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Apex Oil Co. & Petroleum Fuel & Terminal Co. and Greater Baton Rouge Port Commission applying for certiorari, or writ of review, to the Court of Appeal. First Circuit Parish of West Baton Rouge. 357 So.2d 624.

Writ denied.


text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.
    No. 62011.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Joseph N. Traigle, Collector of Revenue, State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 610.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Ulas M. WILLIAMS v. SOUTHERN BUILDERS, INC. and American Insurance Co.
    No. 61980.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Ulas M. Williams, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 579.

Denied.


text:
    LOUISIANA POWER AND LIGHT CO. v. John W. MECOM.
    No. 61964.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: John W. Mecom, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche.

Denied.

SUMMERS and TATE, JJ., would grant.


text:
    STATE of Louisiana v. Nelson BEATTY.
    No. 62191.
    Supreme Court of Louisiana.
    May 9, 1978.
   In re: Nelson Beatty, applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Orleans.

Writ denied. The relator has not sought to enforce the order by application to the Magistrate.


text:
    PLAQUEMINES MATERIALS INC. v. Larry K. BESS.
    No. 62085.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Larry K. Bess applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Paul GOODBEIR.
    No. 62141.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Paul Goodbeir applying for writ of mandamus. Parish of St. Mary.

Writ granted in part. Application transferred to trial court for a ruling.


text:
    Garvin L. LEFORT v. Alwynn J. CRONVICH, Sheriff of Jefferson Parish.
    No. 61860.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Garvin L. Lefort applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Not considered. Not timely.


text:
    STATE of Louisiana v. Nolan A. SCHOUEST.
    No. 61910.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Nolan A. Schouest, applying for writ of certiorari. Parish of Lafourche.

Denied. Moot. The Court is informed applicant has been given the transcript.


text:
    STATE of Louisiana ex rel. James N. McCoy v. Frank BLACKBURN.
    No. 61998.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: James N. McCoy applying for writ of habeas corpus and remedial writs. Parish of Orleans.

Denied.


text:
    CUMIS INSURANCE SOCIETY, INC. v. Ray GUIFFRIA.
    No. 62073.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Ray Guiffria applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa.

Denied.


text:
    Margie Delatte Riche LANGLOIS v. Elmo J. LANGLOIS.
    No. 62083.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Margie Delatte Riche Langlois applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Louise POITEVENT.
    No. 62094.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Louise Poitevent, applying for writs of review, prohibition and/or mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Ronald GOINS.
    No. 62098.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Ronald Goins, applying for writ of certiorari, and review, prohibition, mandamus and stay order. Parish of Lafayette.

Denied.


text:
    STATE of Louisiana ex rel. Richard PASS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62099.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Richard Pass applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Robert W. STEILBERG.
    No. 62121.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Robert W. Steilberg, applying for writs of certiorari, prohibition and mandamus. Jefferson Parish.

Writ denied. Adequate remedy for review in the event of conviction.


text:
    Charles TOMPKINS v. Karl SCHEMPT et al.
    No. 62128.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Charles Tompkins, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen.

Denied.


text:
    STATE of Louisiana v. Roy N. TORIBIO.
    No. 62129.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Roy N. Toribio, applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish.

Writ denied. Adequate remedy in event of conviction by review.


text:
    Herbert J. VERRETT v. CHOTIN TRANSPORTATION, INC.
    No. 62137.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Chotin Transportation, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Cameron.

Denied.


text:
    Rodney FONTENOT and Gregory K. Fontenot v. Margaret K. PETMECKY et al.
    No. 62138.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Rodney Fontenot and Gregory K. Fontenot applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen.

Writ denied.


text:
    Herman CRAFT v. STATE of Louisiana DEPT. OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIV.
    No. 62139.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Herman Craft, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Concordia.

Denied.


text:
    Allen J. LEJEUNE v. CITY OF EUNICE et al.
    No. 62143.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Allen J. LeJeune, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry.

Writ denied.


text:
    STATE of Louisiana v. Christopher RAMBIN.
    No. 62153.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Christopher Rambin applying for writ of certiorari. Parish of Caddo.

Writ denied.


text:
    T. D. SPILLER, Jr. v. Peggy Mattingly HERPEL, Individually and as Testamentary Executrix of the Succession of Ama Spiller Mattingly.
    No. 62080.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: T. D. Spiller, Jr. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 357 So.2d 572.

Denied.


text:
    STATE of Louisiana v. Robert M. FLETCHER.
    No. 61973.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Robert M. Fletcher, applying for writs of review, mandamus and certiorari. Parish of East Baton Rouge.

Motion to consider application on merits granted. After consideration, the writ is denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. Freddie ROBERTS.
    No. 62145.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Freddie Roberts applying for writs of certiorari and review. Parish of Caddo.

Denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Rufus Joseph HENRY.
    No. 62140.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Rufus Joseph Henry applying for writ of review. Parish of St. Mary.

Denied.

DIXON and CALOGERO, JJ., would grant the writ

TATE and MARCUS, JJ., will reconsider their view if the practice continues.


text:
    STATE of Louisiana v. Mark E. FLYNN.
    No. 62122.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: State of Louisiana through the District Attorney, Leonard E. Yokum, applying for writ of certiorari. Parish of Tangipahoa.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana v. Sylvester JONES, a/k/a Charles Williams.
    No. 62112.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition. Parish of Orleans.

Writ Denied: No abuse of the trial court’s factual discretion.

SANDERS, C. J., and SUMMERS, J., would grant the writ.


text:
    Betty WHITENER v. Durwood CLARK et al.
    No. 62097.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Durwood Clark and Great American Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 356 So.2d 1094.

Writ denied.

SANDERS, C. J., and MARCUS, J., would grant as to Assignment' # 1 only.


author: TATE, J.,

text:
    STATE of Louisiana v. Richard SAULSBERRY.
    No. 62090.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, Parish of Orleans, applying for writs of certiorari, mandamus and prohibition.

Denied.

SANDERS, C. J., and SUMMERS, J., would grant the writ.

TATE, J.,

concurs. While the fingerprint record in my opinion is a business record, the State did not authenticate its admission by testimony from the custodian or a witness with authority from the custodian.


text:
    Stafford RICHE v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 62079.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Stafford Riche applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 356 So.2d 101.

Writ denied.

SUMMERS, J., is of the opinion that the writ should be granted.


text:
    INTERNATIONAL CITY BANK AND TRUST COMPANY v. The ROUND TABLE OF LOUISIANA, INC. (Brooks Read and Associates, Inc.)
    No. 62076.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Brooks Read and Associates, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 356 So.2d 99.

Writ denied.

DIXON, J., concurs in the result because executory process is not involved.


text:
    Mrs. Clarissa BROUSSARD v. The STATE of Louisiana, Through the DIVISION OF HOSPITALS, et al.
    No. 62075.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Mrs. Clarissa Broussard applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 356 So.2d 94.

Denied.

DIXON, J., would grant the writ.


text:
    John Edward BILLEDEAUX v. O. J. ADAMS and Charter Oaks Insurance Company.
    No. 62136.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: John Edward Billedeaux, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 355 So.2d 1345.

Granted. Case remanded to Court of Appeal to consider award of special damages to plaintiff, in view of the fact that the intervention was not before the Court of Appeal, without prejudice to any right of the intervention’s claim to be recognized.


text:
    John Edward BILLEDEAUX v. O. J. ADAMS.
    No. 62067.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: O: J. Adams and Charter Oaks Fire Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 355 So.2d 1345.

Writ denied.


text:
    PRENTICE OIL AND GAS CO. v. Vernon L. CALDWELL, Jr., and Shell Oil Company.
    No. 62081.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Prentice Oil and Gas Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 355 So.2d 1327.

Writ denied.


text:
    James P. COUSINS v. The LUMMUS COMPANY and the Travelers Insurance Co.
    No. 62001.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: James P. Cousins, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 355 So.2d 629.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Ernest BOWMAN v. Constance Faye BOWMAN.
    No. 62146.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Ernest Bowman, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 355 So.2d 564.

Writ denied.


text:
    Warren L. BUTLER v. MFA MUTUAL INSURANCE CO. et al.
    No. 62148.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Government Employees Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 356 So.2d 1129.

Writ denied.


text:
    Frank W. BRUNER Jr. v. Mavis Smith BRUNER. Mavis Smith BRUNER v. Frank W. BRUNER, Jr.
    No. 62147.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Mavis Smith Bruner, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 356 So.2d 1101.

Granted.

It is ordered that the writ of review issue; that the Court of'Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Betty WHITENER v. Burwood CLARK et al.
    No. 62170.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Betty Whitener, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 356 So.2d 1094.

Writ denied.


text:
    George BENHAM, d/b/a “Four Keys” v. Frank GUILBEAUX.
    No. 62131.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Frank Guilbeaux, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 356 So.2d 1062. >

Denied.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. NAT. ADVERTISING CO., Lamar Advertising Co. of Louisiana, Inc., Industrial Outdoor Displays, White Advertising Co.
    No. 62110.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: National Advertising Co., Lamar Advertising Co. of Louisiana, Inc., Industrial Outdoor Displays, White Advertising Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu.

Writ denied.


text:
    Warren J. DIXON v. Ira J. SHOCKLEY et al.
    No. 62077.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Warren J. Dixon applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 356 So.2d 96.

Writ denied. The result is correct.


text:
    Stephen DANOS et al. v. Charlene RICHOUX et al.
    No. 62072.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Stephen Danos, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 356 So.2d 90.

Writ denied.


text:
    Toinette W. CAPPELL et al. v. Ronald DUPLECHAIN et al.
    No. 62135.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Ronald Duplechain and Steve Du-plechain, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen. 356 So.2d 77.

Denied.


text:
    Richard SANDERS et ux. v. Matthew H. BLUNT et al.
    No. 62034.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Richard Sanders and Lena J. Sanders, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 620.

Denied.

TATE, DIXON and DENNIS, JJ., would grant the writ.


text:
    Leon S. HAAS, Jr., et al. v. BATON ROUGE GENERAL HOSPITAL.
    No. 62084.
    Supreme Court of Louisiana.
    May 12, 1978.
   In re: Leon S. Haas, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 605.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Roy GONZALES v. Theresa CREDEUR.
    No. 62113.
    Supreme Court of Louisiana.
    May 15, 1978.
   In re: Theresa Credeur, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


author: DIXON, J.,

text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 62074.
    Supreme Court of Louisiana.
    May 15, 1978.
   In re: Gerald Hatcher applying for supervisory writs. Orleans Parish.

Writ denied. Appropriate remedy is by appeal. Review of trial transcript is necessary in order to resolve the Prieur issue in absence of stipulation as to issues at trial.

DIXON, J.,

would grant. The trial judge is correct in his assessment of the wasted effort in deciding this issue on appeal.


text:
    STATE of Louisiana v. Richard G. NAAS.
    No. 62245.
    Supreme Court of Louisiana.
    May 16, 1978.
   In re: Richard G. Naas applying for writs of certiorari, prohibition and mandamus. Ouachita Parish.

Granted. Bond reduced to $100,000.00.

SANDERS, C. J., dissents from the reduction of bond.

SUMMERS, J., dissents from the reduction of applicant’s bond.


text:
    Samuel J. TRUELOVE v. BLUE CROSS OF LOUISIANA and Louisiana Health Service and Indemnity Co.
    No. 62177.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Blue Cross of Louisiana and Louisiana Health Service and Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 356 So.2d 1113.

Writ denied.

MARCUS, J., would grant a writ.


text:
    Joan Capdevielle, wife of Curtis R. BOISFONTAINE v. Curtis R. BOISFONTAINE.
    No. 62175.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Curtis R. Boisfontaine applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 90.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Joan Capdevielle, wife of Curtis R. BOISFONTAINE v. Curtis R. BOISFONTAINE.
    No. 62161.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Joan Capdevielle, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 90.

Writ denied.

DIXON, J., would grant the writ.


text:
    Alton RACHAL v. HIGHLANDS INSURANCE CO. et al.
    No. 62115.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Donald Rachal and Highlands Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 355 So.2d 1355.

Writ denied.

SANDERS, C. J., SUMMERS and MARCUS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Douglas St. ROMAIN et al.
    No. 62176.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: State of Louisiana, through the District Attorney, Harry Connick, applying for writ of certiorari. Parish of Orleans.

Writ denied.

SANDERS, C. J., and DIXON, J., would grant the writ.


text:
    TRANSOCEAN CONTRACTORS, INC. v. BRUCE BOAT RENTAL, INC.
    No. 62156.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Transocean Contractors, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne.

Writ denied.

DIXON, J., would grant the writ.


author: TATE, DIXON and MARCUS, JJ.,

text:
    STATE of Louisiana v. Hubert E. LOGAN.
    No. 62066.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Hubert E. Logan applying for writs of certiorari, prohibition, review, mandamus and stay order. Parish of DeSoto.

Writ denied.

TATE, DIXON and MARCUS, JJ.,

concur. The express waiver of counsel by an accused should be recorded contemporaneously so as to be available for transcription if as here the waiver is contested. However, in view of the trial court’s statement to this court corroborating the minute entry, as well as other indicia, we concur.


text:
    STATE of Louisiana v. Ray T. WOODALL, Jr.
    No. 62044.
    Supreme Court of Louisiana.
    May 19, 1978.
   In re: Ray T. Woodall, Jr., applying for writ of review. Parish of Orleans.

Writ granted. Motion for new trial remanded for hearing. La.C.Cr.P. arts. 851(3), 853.

SANDERS, C. J., and SUMMERS, J., dissent.


author: LANDRY, Judge.

text:
    Mabel R. GRIFFIN v. Timothy J. ARMOND et al.
    No. 11767.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Thomas L. Mahfouz, Lippman, Hunter & Rawls, Morgan City, for plaintiffs.
    D. Mark Bienvenu, Voorhies & Labbé, Lafayette, for Timothy Armond & Belle-fonte Ins. Co.
    J. Louis Gibbens, Caffery, Duhe, Oubre & Gibbens, New Iberia, for Travelers Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

The Travelers Insurance Company (Appellant), liability insurer of plaintiff Mabel R. Griffin (Appellee), appeals from summary judgment declaring invalid and unenforceable, as violative of public policy, an exclusionary clause in the uninsured motorist coverage provision of the policy, which denies uninsured motorist coverage to Ap-pellee’s minor son, Brian Griffin, a named insured. We affirm.

The policy, the deposition of Appellee and admissions of the parties reflect no dispute as to the following facts: Appellee is the divorced wife of Elmer Griffin, Sr., and has custody of the minor, Brian Griffin, issue of the marriage between these parties. On September 11, 1975, Appellant insured Ap-pellee’s Plymouth automobile for a period of one year. The policy named as insured all residents of Appellee’s household. On August 4, 1976, while residing with his mother, Brian Griffin was injured when, while riding a motorcycle owned by his father, he was involved in a collision with a vehicle owned and driven by defendant Timothy J. Armond, the insured of Belle-fonte Insurance Company (Bellefonte). Appellee’s petition prays for damages aggregating $95,000.00 for the injuries to her son. Bellefonte’s policy is in limits of $10,000.00 per person. The uninsured motorist provision of Appellee’s policy stipulates coverage of $10,000.00. The motorcy-ele Brian Griffin was riding was owned by Brian’s father and was not insured under Appellant’s policy.

In denying coverage and asserting its own motion for summary judgment declaring no coverage herein, Appellant relies exclusively upon the following policy provision:

“Exclusions
This policy does not apply under Part HI;
a. To bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or a relative, or through being struck by such a vehicle.”

Appellant concedes that the motorcycle is a highway vehicle within the meaning of the term as included in its policy definitions. Simply stated, Appellant contends no coverage is afforded under the uninsured motorist provision of its policy because the motorcycle is not insured under Appellant’s policy.

The trial court held the exclusion invalid because it is in contravention of public policy as provided by LA-R.S. 22:1406(D)(1)(a), which pertinently states:

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

In Rushing v. Allstate Insurance Company, 216 So.2d 875 (La.App.1968), we held valid an exclusion clause similar to the one involved herein. In Rushing, the party claiming coverage was riding in a vehicle not insured under the policy which provided uninsured motorist coverage.

After Rushing, the Supreme Court, in 1968, decided Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580. Although the pivotal issue in Booth was whether the suit was in tort or contract for purposes of determining prescription, the Supreme Court noted unequivocally that La.R.S. 22:1406(D)(1)(a) was intended to afford uninsured motorist protection to an insured regardless of whether the vehicle in which the insured was riding was insured under the policy issued by the insurer.

Following Booth, the Third Circuit rendered Elledge v. Warren, 263 So.2d 912 (La.App.1972), which held that an exclusionary clause of the nature involved herein was void for violation of La.R.S. 22:1406(D)(1)(a). Elledge, on authority of Booth, held that the intent of the pertinent statute is to afford protection to an insured who becomes the innocent victim of the negligence of an uninsured or underinsured motorist.

Following Booth and Elledge, this court decided Thomas v. Nelson, 295 So.2d 847 (La.App.1974). In Thomas, we noted our decision in Rushing. We held, however, on authority of Booth and Elledge, that a clause similar to the one relied upon by Appellant was invalid and unenforceable. We so held upon finding that enforcement of such a provision would violate the public policy expressed by the legislature in La. R.S. 22:1406(D)(1)(a) as that statute had been interpreted by the Supreme Court in Booth.

In Brister v. American Indemnity Company, 313 So.2d 335 (La.App.1975), we were called upon to decide whether a father could invoke an uninsured motorist clause in his policy in an action for damages for injuries sustained by his minor son while riding an uninsured motorcycle belonging to the father. Contrary to Appellant’s contention, Brister does not indicate our return to the rule announced in Rushing. In Bris-ter, we noted that our Thomas decision was based on the Elledge rationale that such an exclusion is contrary to public policy. In Brister, we did not reach the issue of validity of the exclusionary clause because we found the exclusion applied to automobiles and that a motorcycle is not an automobile. In this case, there is no such issue. The sole question here is the validity vel non of the exclusion clause.

Upon further consideration of the question, we are convinced that the pronouncements of the Supreme Court in Booth indicate the clear intent of that tribunal to interpret La.R.S. 22:1406(D)(1)(a) to state a public policy which no insurer may contravene. We hold the intent of the statute to be to provide protection to an insured who becomes the innocent victim of the negligence of an uninsured or underin-sured motorist, even though the insured may be riding in a vehicle which is not insured under his own insurer’s policy. We note that the Third Circuit has again so held in Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App.1976).

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Lynden Butler CLAY v. Louis H. CLAY, Jr.
    No. 11768.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      Max Nathan, Jr., for plaintiff-appellee.
    Roger I. Dallam, Gretna, for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant Louis H. Clay, Jr. (Appellant), appeals from judgment in favor of his major daughter Lynden Butler Clay (Appel-lee), decreeing Appellant liable for Appel-lee’s past and future college expenses pursuant to a community settlement agreement between Appellant and his former wife, Lynden Howell Clay (mother of Ap-pellee), which agreement was approved and ratified by Appellant and his former spouse and made part of a Nevada divorce decree obtained by Appellant. We affirm.

Appellant asserts the following defenses: (1) The agreements in question were not final but merely proposed agreements dependent upon conditions which were never fulfilled; (2) Appellee was not a party to the Nevada proceedings and is therefore without interest to assert any rights thereunder; (3) Assuming Appellee has an interest to assert, Appellee has failed to show the Nevada decree is entitled to full faith and credit and also has failed to invoke the proper procedure to have the decree recognized as enforceable in this state; (4) Ap-pellee has no rights as beneficiary of a stipulation pour autrui under the agreements which were proposed only, no final agreement having ever been reached by Appellant and his former spouse; and, (5) Assuming Appellee may sue on the agreements as beneficiary of a stipulation pour autrui, Appellee has failed to prove her claim to the degree of certainty required by law.

On September 24, 1973, Appellant filed suit for divorce against his then wife Lyn-den Howell Clay, in Clark County, Nevada. The petition alleges Appellant’s bona fide residence in Nevada for more than six weeks prior to institution of suit. It also recites that there are four children of the marriage including Lynden Butler Clay, Appellee herein, who is recited to be 18 years of age. It is further averred that all property rights have been settled between the parties by virtue of an Interim Separation Agreement and Proposed Final Community Property Settlement Agreement between the parties, dated August 10, 1973, copies of which are attached to Appellant’s petition for divorce. The petition expressly recites that the agreements settle all property rights of the parties including maintenance and support of the wife and care, custody and support of the children. Appellant acknowledged that the agreements were fair, just and equitable and requested that they be allowed, confirmed, ratified and approved by the court. The Interim Agreement was signed by both parties under private signature and duly acknowledged by each before a Notary Public in New Orleans, Louisiana. The Proposed Final Community Property Settlement is written, undated and unsigned but is initialed by both parties.

On September 24, 1973, pursuant to Appellant’s petition and annexed documents, the Nevada Court rendered judgment in favor of Appellant granting an absolute divorce between the parties. The judgment also approved the agreements between the parties, ordered that said agreements survive the decree and declared each party obligated to comply with the terms of the agreements.

The Interim Agreement provided for interim alimony, custody of the children and visitation rights for Appellant. It also stated that it would remain effective for one year or until the date of sale of certain Louisiana property (apparently the family home), whichever event came first. It further recited that the parties would enter into a final agreement.

The Proposed Final Agreement obligates Appellant to: Transfer the family home to his former wife; pay alimony for those children living with their mother; pay medical bills incurred by the children; and pay educational costs for all four children. In consideration, Mrs. Clay agreed to relinquish all her rights in the remaining community property.

Following the divorce, Appellee entered college and Appellant paid all of her college expenses until July, 1975, at which time Appellant discontinued his support.

The trial court held Appellee was entitled to sue under the Nevada decree which he found entitled to full faith and credit in this state. The trial court rejected Appellant’s contentions that Appellee could not sue on the Nevada judgment in her own name and that Appellee failed to lay the proper foundation for recognition and enforcement of the judgment in this state, and awarded Appellee judgment in the sum of $7,440.29 for educational expenses incurred by Appel-lee since educational support was discontinued by Appellant. Lastly, the trial court ordered Appellant to pay for Appellee’s future tuition, books, incidental educational expenses plus a monthly allowance of $150.00.

For reasons hereinafter set forth, we find the agreements in question contain a contractual stipulation pour autrui in favor of Appellee which Appellee is entitled to enforce in her own right. We also find Appel-lee’s rights to be totally independent of the Nevada decree for which reason we are not called upon to determine the numerous issues raised by Appellant concerning the rights of Appellee under the Nevada judgment.

We find no merit in Appellant’s contention that the Proposed Final Agreement never came into existence because its contingent terms were never fulfilled. The record is clear that the agreement was entered into in contemplation of the divorce and that it has been lived up to and executed by the parties thereto. The record leaves no doubt that since rendition of the Nevada divorce, Appellant and his former wife have both considered the agreements final and binding. Both have lived up to the terms of the instruments. In compliance therewith, Appellant has paid alimony to his children as stipulated. Appellant has paid and continues to pay college expenses of another daughter. For a period of about 2 years Appellant paid Appellee’s expenses, although he testified he did so purely on a voluntary basis. There is nothing of record to indicate that either Appellant or his former spouse consider that there is anything further to be determined as regards settlement of the community previously existing between them. Appellant has never requested his former wife to execute any further agreement to settle their community affairs. The averments in Appellant’s Nevada petition in no way suggest the necessity of further agreement concerning the community. While Appellant’s position in the Nevada proceedings does not necessarily preclude his taking a contrary position herein, the former position is relevant in determining Appellant’s intent to be finally bound by the agreements. Considering the record in its entirety, we unhesitatingly conclude that the parties have mutually ratified the agreements by their actions subsequent to their divorce.

It is conceded that the validity of the agreements must be determined in the light of Louisiana law. Such agreements between husband and wife are nullities under our law in that they violate the provisions of La.C.C. Articles 1790 and 2329, which prohibit alteration of the matrimonial regime during marriage. Nevertheless, our jurisprudence holds that such agreements, although null, may be ratified by the parties subsequent to divorce. Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967); Fisher v. Fisher, 261 So.2d 85 (La.App. 3rd Cir. 1972).

We find that the ratified contractual agreements contain a stipulation pour au-trui in favor of Appellee pursuant to La. C.C. Articles 1890 and 1902, upon which Appellee may sue in her own right.

In proof of her claim, Appellee introduced check stubs showing payment of tuition, books, sorority dues and payment for room and board in the home of her grandmother. She also produced a few receipts. Appellant vigorously attacks such proof for lack of receipts and also for failure of Ap-pellee to produce her grandmother as a witness to verify the sum of $85.00 monthly allegedly paid the grandmother for room and board. Appellee also introduced evidence to show depletion of a savings account between the time her support payments were discontinued and the date of trial, said withdrawals aggregating approximately $4,000.00. Appellee also established that she was compelled to accept part time employment to continue her college education. In its discretion, the trial court awarded Appellee $7,440.29 for past due support, including the sum of $150.00 monthly as an allowance and ordered continued payment of said allowance in addition to Appellee’s future expenses for books, tuition, room and board. We find ample evidence of record to support his finding and affirm the amounts awarded.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: SARTAIN, Judge.

text:
    Kenneth C. COWART and Mrs. Kenneth C. Cowart, Plaintiffs-Appellees, v. Jesse L. MARTIN, Defendant-Appellant.
    No. 11755.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    James E. Kuhn, Denham Springs, for plaintiff s-appellees.
    J. Lynn Ponder, Amite, for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Defendant, Jesse L. Martin, brings this appeal from a judgment rendered in the trial court against him in favor of plaintiffs, Kenneth C. and Toñita M. Cowart, based upon a breach of contract. The record before us is barren of either a transcript of the testimony or written reasons by the trial judge. However, in brief, plaintiffs assert that the judgment now sought to be appealed is based upon a compromise between the parties resulting in a consent judgment by stipulation. We agree and dismiss defendant’s appeal.

C.C.P. Art. 2085 provides in pertinent part that “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court . . . ” Further, the lack of a right of appeal may be raised at any time. C.C.P. Art. 2162; Cotton v. Wright, 214 La. 169, 36 So.2d 713 (1948).

Plaintiffs assert in brief and in oral argument that on the date this matter was set for trial on the merits, the parties entered into a compromise and by stipulation consented to the judgment that was rendered. The minutes of the court of that date so reflect. The judgment itself is signed by counsel for both parties.

Further, we particularly note that defendant's present counsel does not contradict, either in brief or oral argument, the contention of plaintiffs’ counsel relating to the compromise.

Under these circumstances, we are satisfied that the judgment now sought to be appealed was a consent judgment which is not appealable. C.C.P. Art. 2085.

For these reasons, appellant’s appeal is dismissed at his cost.

APPEAL DISMISSED.

      . Defendant obtained different counsel in the interim period between the date of the judgment and the order of appeal.


text:
    Mary L. BERNARD, Plaintiff-Appellant, v. L.H.H.R.A.-SOUTHWEST CHARITY HOSPITAL OF LAFAYETTE, Defendant-Appellee.
    No. 11756.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      Floyd J. Falcon, Jr., Baton Rouge, for plaintiff-appellant Mary L. Bernard.
    Sidney W. Hall, Baton Rouge, for defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Mary Louise Bernard, brought this action before the Louisiana Civil Service Commission, alleging that she had been discriminated against on the basis of her sex and race. The Commission ruled that she had failed to sustain her burden of showing discrimination. Ms. Bernard thereupon timely perfected this appeal.

Plaintiff’s appellate brief is exclusively directed to the contention that she has been discriminated against within the meaning of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. However, Title VII actions have been held to be a remedy entirely distinct from that afforded by state civil service appeals. Therefore, the federal cases on what constitutes Title VII discrimination cited by appellant are not authoritative in this action, although they might be considered persuasive in construing the meaning of discrimination under our Constitution and civil service rules. Brown v. L.H.H.R.A., 346 So.2d 758 (La.App. 1st Cir. 1977). In any event, plaintiff cannot rely on Title VII until she has first filed a charge with the Equal Employment Opportunity Commission and given it the opportunity to attempt to obtain voluntary compliance with the statute. Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267 (4th Cir. 1967), cert. denied 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968). Ms. Bernard has not filed such a charge.

Under Louisiana law in a proceeding before the Civil Service Commission the employee has the burden of proving discrimination. La.Const. (1974) Art. 10, § 8(B). On appeal plaintiff, a black female, alleges discrimination on the basis of sex, race and the fact that she had taken several prior appeals to the Commission.

The facts show that Ms. Bernard is a Custodial Worker II at Southwest Charity Hospital in Lafayette, Louisiana. She has worked at the hospital for over twenty-five years and has consistently received merit pay raises.

In May of 1975, Ms. Viola Blanchard retired from her position of Custodial Supervisor I with the hospital. The vacant position was reallocated to Housekeeper I. Ms. Bernard, desiring to be promoted to replace Ms. Blanchard, submitted an application to the personnel officer at the hospital in May of 1976. This application, which mistakenly designated the position desired as Housekeeper Supervisor, a non-existent position, was not forwarded to the Department of Civil Service until September. The application was rejected and returned to Ms. Bernard, apparently because of the improper job designation.

On November 8, 1976, plaintiff submitted an application for Housekeeper I. The Department of Civil Service found that she was unqualified for this position. Thereupon, on November 16, 1976, Earl Cormier, a Clerk III in the hospital, received his requested demotion and was assigned the position of Housekeeper I. The position of Housekeeper I requires “High school graduation plus one year of paid experience above the routine custodial worker level in the care, cleaning, and servicing of living quarters or wards or other equally responsible work, in a hotel, hospital, institution or related facility.” It is undisputed that Ms. Bernard has not had any experience above “the routine custodial worker level.” She, however, argues that Mr. Cormier has also not had such experience and that, therefore, this requirement is not an absolute prerequisite for the position. Mr. Cormier had had no experience in custodial work as either a worker or as a supervisor. But his work as a Clerk III, in which he had had supervisory responsibility in the absence of his immediate supervisor, was found by the ■Department of Civil Service to fall within the permitted substitution for “other equally responsible work.” Plaintiff offered no evidence to show that Clerk III is not equal in responsibility to Custodial Supervisor I. We therefore feel constrained not to disturb the finding of the Department that Earl Cormier was qualified for this position.

Plaintiff asserts that she would have had the requisite experience but for past discrimination. Her only evidence in this regard was a showing that there were no black females in the hospital in supervisory positions. Although in Title VII cases statistical evidence such as this may be sufficient to establish a prima facie case of employment discrimination, U. S. v. United States Steel Corp., 520 F.2d 1043 (5th Cir. 1975), we do not believe that such evidence is sufficient to meet the plaintiff’s burden of proof under Louisiana law.

We find that the reallocation of the vacant position from Custodial Supervisor I (for which plaintiff was certainly qualified) to Housekeeper I was not done for any impermissible reasons. It was done so that a supervisor could be prepared in staff to move up to the position of Housekeeper II which was soon to become vacant by retirement. We agree with the finding of the Commission that the reallocation was not done in an attempt to prevent plaintiff from obtaining the position. Ms. Bernard asserts that the fact that her first application was not forwarded for four months and that she was not counseled by the personnel officer as to the correct job description showed discrimination. The personnel officer testified that she did not alert Ms. Bernard to the mistake on Ms. Bernard’s application because she was confused as to the job for which plaintiff was applying. We do not feel that these actions constitute discrimination. However, even had Ms. Bernard been counseled as to the correct job designation and her application forwarded more quickly, she still would have been unqualified for the position.

We have likewise failed to find any evidence that Ms. Bernard’s prior appeals had any effect upon her failing to secure the desired promotion.

We therefore agree with the Commission’s determination that plaintiff has failed to prove discrimination. Ms. Bernard is not entitled to be promoted to the position of Housekeeper I because she is unqualified for that position.

The judgment below is affirmed at appellant’s cost.

AFFIRMED.


text:
    Randall Rex BARNES, Plaintiff-Appellant, v. SUN OIL COMPANY et al., Defendants-Appellees. Cindy BREAUX, Plaintiff-Appellant, v. SUN OIL COMPANY et al., Defendants-Appellees. Brenda HOWARD, Plaintiff-Appellant, v. SUN OIL COMPANY et al., Defendants-Appellees. Joe B. FINCHER, Plaintiff-Appellant, v. SUN OIL COMPANY et al., Defendants-Appellees.
    Nos. 11763-11766.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Writs Granted March 31, 1978.

      James M. Funderburk, Duval, Arceneaux, Lewis & Funderburk, Houma, for plaintiffs-appellants in Nos. 11763 and 11766.
    James B. Supple, Franklin, for plaintiffs-appellants in Nos. 11764 and 11765.
    Michael J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendant-appellee in Nos. 11763 to 11766.
    Nicholas Gachassin, Jr., Lafayette, for in-tervenor U. S. Fidelity & Guaranty Co. in No. 11766.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

These four cases arise out of an oil field accident which occurred on February 6, 1976, causing injury to the four plaintiffs.

Plaintiffs were employed by Weco Welders, Inc., which had a contract to perform maintenance, repair, and related services at Sun Oil Company’s Sweet Bay Lake oil and gas production facility. At the time of the accident plaintiffs were engaged in the repair of a gas flow line. Sun Oil moved for summary judgment in each suit on the grounds that it was the statutory employer of plaintiffs under the Louisiana Workmen’s Compensation Law and that, therefore, plaintiffs’ only action against it would be for the workmen’s compensation benefits. The trial judge granted the motions. The causes were then consolidated for appeal. We affirm.

Plaintiffs assert that defendant’s affiants did not testify from their own personal knowledge and that, therefore, the affidavits are incompetent. They further assert that even if the affidavits are competent a genuine issue of material fact remains. We reject both of these arguments.

In support of the argument that the affidavits were not made upon personal knowledge, reliance is placed upon Ortego v. Howard Trucking and Construction Co., 345 So.2d 1259 (La.App. 1st Cir. 1977). In that case, which also involved an attempt by an oil company to escape tort liability for an oil field accident, it was held that the statement that the affiant was assistant district supervisor (materials and supplies) for Texaco, Inc., was insufficient to show affirmatively that the affiant was competent to testify that Texaco was in the general oil field business including roustabout-ing and transporting pipe. In the instant eases, Nelson Sapp declared in his affidavits that he was production manager of the production facility where the accident occurred. We believe that a person in such a production position, as opposed to someone in materials and supplies, is competent to testify that Sun Oil is engaged in the production of oil and gas. We likewise find that Sapp was competent to testify that maintenance of wells was an essential and integral part of the business of producing oil and gas and that Sun Oil had contracted for Weco to maintain its wells. We therefore find that the affidavits of Sapp are sufficient to support the granting of the motion for summary judgment. Doucet v. W. H. C., Inc., 212 So.2d 267 (La.App. 3rd Cir. 1968).

Further, the depositions on file in these four cases clearly show, as we will point out, that Sun Oil employees were supervising the work of plaintiffs at Sun Oil’s production facility. This is sufficient to put Sun Oil in the business of operating oil wells and therefore immune from tort liability for work-related injuries of the employees of any company which it engages to do such work. Stelly v. Waggoner Estates, 355 So.2d 12 (La.App. 1st Cir. 1977).

Mr. Joe B. Fincher, one of the plaintiffs, in his second deposition, stated:

“Q. Did Sun Oil Company, or any of its employees such as the pumper and so forth, control the details or methods over the way you went about doing your work, and when I say ‘you’, I mean you and your crew?
A. Not necessarily, I mean they were just telling me what was messed up and needed to be done, and then I did it, and mostly the way I felt it should be done.”
"Q. You said Mr. Gamble [a supervisor for Sun Oil] told you to repair the flow line, and to cut the one inch, the gas left line, so that you could go ahead and repair the flow line?
A. Yes, sir.”

In an earlier deposition Fincher had stated, in reference to what he had done following the accident, as follows:

“Q. And then you went back to work fixing the line?
A. That’s right.
Q. Did anyone work with you for the rest of that day?
A. Yes, Jimmy Gamble came over there and helped us on the line to finish it up. He didn’t stay all the time, but he did help us finish the line. ...”

In his deposition Jimmy Lee Gamble testified that he acted as lease operator and roustabouted for Sun Oil at its production facility at Sweet Bay Lake. Brenda Howard, another plaintiff, testified that “Gamble would tell Joe Fincher what he wanted and Joe’d come tell us.” In her deposition Cindy Breaux testified likewise.

“Q. Did Sun Oil employees give you your orders directly, or did they go through Joe Fincher?
A. Sometimes they did, and sometimes they went through Joe Fincher. It just depends. Gamble might walk by and say, T want my office cleaned.’ Well, we did it, you know.”

As we have stated, we find that the affidavit and depositions on file in these cases are sufficient to support the judgment of the trial court granting defendant’s motion for summary judgment. We therefore affirm the judgment at appellants’ cost.

AFFIRMED.

      . R.S. 23:1061 provides:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him . . . .”