author: MORRIS, Judge. DOMENGEAUX, Judge

text:
    Gloria Ann GUILOTT, Plaintiff-Appellee, v. Clyde E. GUILOTT, Defendant-Appellant.
    No. 5109.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 22, 1976.
    Rehearing Denied March 4, 1976.
    Writ Refused April 23, 1976.

      McLeod & Dow by William L. McLeod, Jr., Lake Charles, for defendant-appellant.
    W. Ellis Bond, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, MILLER, DO-MENGEAUX, WATSON and MORRIS, JJ-
   MORRIS, Judge.

On October 30, 1972, the plaintiff-appel-lee, Gloria Ann Guilott, obtained a judgment in her favor against her husband, Clyde E. Guilott, Defendant-appellant, decreeing a separation from bed and board. No appeal was taken from this judgment. The petition in that suit was filed May 1, 1972, and, therefore, the community of ac-quets and gains existing between the parties was dissolved as of that date under the provisions of LSA-C.C. Art. 155, which makes the judgment of separation retroactive to the date on which the petition for same was filed.

The separation decree having become final, Mrs. Guilott on January 16, 1973 filed a suit for partition of the community of acquets and gains formerly existing with her husband. From a judgment ordering a partition of the community and restitution of certain paraphernal effects belonging to the plaintiff, and the fruits thereof, the defendant, Clyde E. Guilott, has appealed.

The record reveals that the parties were married in 1949 and were domiciled in Cal-casieu Parish, Louisiana. In 1956 Mrs. Guilott received from her father, Robert Barber, an alleged donation consisting of an interest in the partnership, Barber Brothers Company of Baton Rouge, Louisiana, a construction firm. Over the years Mrs. Guilott received cash distributions from the partnership as follows:

1957 $ 13,459.12
1958 $ 12,500.00
1959 $ 28,642.47
1960 $ 17,105.78
1961 $ 15,036.12
1962 $ 30,935.61
1963 $ 7,644.44
1964 $ 536.62
1965 $ 2,021.16
1966-1968 - $ 0
1969 $ 7,500.00
1970 $ 33,342.90
Total - $168,724.22

In 1965 the partnership of Barber Brothers Company allegedly made an additional cash distribution to the partners. With this cash distribution the partners, including Mrs. Guilott, purchased stock in a corporation, Barber Brothers Contracting Company, Inc. in a simultaneous transaction in the same proportions that the partnership was owned. However, the existence of the partnership continued until June 30, 1970. On January 31, 1969, Mrs. Guilott sold her stock back to the corporation for the sum of $156,243.76, of which amount the sum of $39,060.94 was paid at the time of the sale and the same amount paid on January 2, 1970, February 1, 1971 and on January 28, 1972. Besides the principal installments on the stock sale, Mrs. Guilott received $9,244.43 in interest on the credit portion of the sale, making a total of $165,488.19 received in principal and interest on the stock transaction.

Mrs. Guilott also claims in the proceeding restitution of direct donations made to her in 1961 and 1962 by her father, Robert Barber, in the total sum of $57,785.98, which she claims were used for the benefit of the community.

In summary, Mrs. Guilott claims the following paraphernal funds or fruits thereof, to-wit:

Cash distributions of partnership 1957-1970 (above itemized) 168,724.22
Principal from sale of corporate stock 156,243.76
Interest on sale of corporate stock 9,244.43
Fair market value of municipal bonds 69,063.60
Direct donations from Robert Barber 57,785.98
Total $461,061.99

These separate funds and earnings thereof were deposited in various accounts maintained by Mrs. Guilott. At the trial counsel for the parties entered into the following stipulation:

“I’ll [agreed to by both counsel] stipulate on behalf of the plaintiff that all the funds received by her (Mrs. Guilott) as her separate property were commingled and converted to community assets during the course of the marriage prior to its termination.” Explanatory words in brackets supplied.

This stipulation has the effect of a judicial admission or confession and both the parties and the court are bound thereby. LSA-C.C. Art. 2291; Placid Oil Company v. A. M. Dupont Corporation, 244 La. 1075, 156 So.2d 444 (1963).

Based upon this stipulation and other evidence the trial court held that the following were community assets:

(1) The items listed.in the inventory in this proceeding.
(2) The Ann Guilott Trust in the Lakeside National Bank, Account No. 1017.
(a) Balance as of May 1, 1972, $161,203.34;
(b) Accumulated interest, dividends and net gains therefrom from May 1, 1972, to January 17, 1974, $25,357.81.
(Counsel for both parties used the date of January 17, 1974, as the pertinent date for the calculation of increase in this account.)
(3) Promissory note of Richard T. Cooley for the sale of the Contraband Place property in the principal sum of May 1, 1972, of $12,893.43.
(4) The business known as AAA Drive-In Cleaners, (exclusive of the immovable property.)
(5) The Clyde E. Guilott Trust in the Lakeside National Bank, Account No. 1074.
(a) Balance as of May 1, 1972, $30,780.45;
(b) Accumulated dividends, interest, and gains therefrom from May 1, 1972, until January 21, 1974, $2,644.27.
(Counsel for both parties used the date of January 17, 1974, as the pertinent date for the calculation of increase in this account.)
(6) Account of Ann Guilott in the Mc-Neese Branch of the Lakeside National Bank, $12,216.16.
(7) Account of Ann Guilott in the Fidelity National Bank of Baton Rouge, Louisiana, in the sum of $2,772.93.
(8) The Life Insurance Company of Virginia Policy # 755590 on the life of Clyde Guilott, cash surrender value $820.72.
(9) The Life Insurance Company of Virginia policy # 754128 on the life of Clyde Guilott, cash surrender value $375.93.
(10) Cash surrender value of the Continental Service Insurance Company Policy on the life of Clyde Guilott (the amount of the cash surrender value was not furnished to the court.)
(11) Coin collection.
(12) Municipal bonds.
(a) Iberia Parish Consolidated School District No. 13
(b) Calcasieu Parish Gravity Drainage District No. 4
(c) St. Bernard Parish School Board No. 1
(d)State of Louisiana, State Bond and Building Commission, Series AA
(13)The sum of $500.00 per month received as rent by Clyde Guilott from AAA Drive-In Cleaners for the rent of the community owned building on Prien Lake Road for the period from May 1, 1972, and continuing to the date of the partition of the community property.

The trial court then ordered that the community assets be partitioned by licitation, with the exception of those items that are cash assets, and any items other than cash items to be retained by the respective parties as debits against their community interest. The judgment also recognized the parties as owners of an undivided one-half interest each in and to the proceeds of a expropriation proceeding then pending.

The court then ordered the debiting of each parties’ community interest with the assets of which each was in possession. Mrs. Guilott’s community interest was debited with the following items :

(1) The Ann Guilott Trust in the Lakeside National Bank, Account No. 1017,
(a) Balance as of May 1, 1972, $161,-203.34.
(b) Accumulated interest, dividends and net gains therefrom from May 1, 1972, to January 17, 1974, $25,357.81.
(2) Ann Guilott checking account in the McNeese Branch of the Lakeside National Bank, $12,216.16.
(3) The account of Ann Guilott in the Fidelity National Bank of Baton Rouge, Louisiana, $2,772.93.
(4) Proceeds derived from sale of Municipal Bonds of the Iberia Parish School District No. 13, and of the State of Louisiana, State Bond and Building Commission, Series AA, in the amount of $25,000.00.

Mr. Guilott’s community interest was debited with the following items in- his possession:

(1) The Clyde Guilott Trust in the Lakeside National Bank, Account No. 1074.
(a) Balance as of May 1, 1972, $30,-780.45.
(h) Accumulated interest, dividends and net gains therefrom from May 1, 1972, to January 17, 1974, $2,644.27.
(2) Cash surrender value of Life Insurance Company of Virginia Policy #755590, $820.72.
(3) Cash surrender value of the Continental Service Insurance Policy on the life of Clyde Guilott. ¡
(4) Cash surrender value of Life Insurance Company of Virginia Policy #754128, $375.93.
(5) The sum of $500.00 per month received as rent by Clyde Guilott from AAA Drive-In Cleaners for the rent of the community owned building on Prien Lake Road for the period from May 1, 1972, and continuing to the date of the partition'of the community property.

The trial court further ordered restitution by the husband of the entire amount of the wife’s separate funds, and fruits therefrom, in the sum of $461,061.99 holding that both the paraphernal effects and the fruits thereof were subject to restitution, and that it was, therefore, unnecessary to attempt to make a distinction between principal amounts and the income thereof. We disagree.

Defendant-appellant’s specification of errors is mainly directed at the restitution of separate funds of the wife, and the fruits thereof, ordered by the court. The only error complained of that does not relate to restitution is the claim of rent from Mrs. Guilott for her occupancy of the family community home from the date of filing the separation suit. The trial court was correct in disallowing this claim. The parties are owners in indivisión of this property, and a co-owner out of possession does not have a right of action against his co-owner for the latter’s personal occupancy, use and enjoyment of the common property, but enjoys only the remedy of partition to protect his interest. Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955).

In ordering restitution of the fruits of the separate property of the wife, the trial court relied upon the following statement made in Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (1957), to-wit:

“Under our law the wife, unlike the husband, has the absolute right to restitution for her paraphernal effects and their fruits, either delivered to her husband or delivered for use to the community, save in instances governed by Article 2389 of the Civil Code, which is not applicable here.” (Emphasis Supplied) 99 So.2d at p. 360.

Although this broad statement would seem to be decisive on the question of restitution of fruits, it must be considered in the light of what was actually decided and the law in effect during the time that income was accruing to the separate estate.

Prior to August 1, 1944, LSA-C.C. Art. 2386 provided as follows:

“When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil, or the result of labor, belong to the conjugal partnership, if there exists a community of gains. If there do not, each party enjoys, as he chooses, that which comes to his hands; but the fruits and revenues, which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.”

By Act No. 286 of 1944, effective August 1, 1944, this article was amended to read as follows:

“The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of ac-quets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.
“If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.”

The 1944 amendment provided a definite manner in which the wife might retain the separate administration of her property, and thus claim the revenues therefrom as her separate property. The amendment did not give the wife any new rights, but provided an irrefutable and conclusive manner for the wife to establish the separate administration of her property. Where formerly the wife, in order to establish her separate administration, was required to prove a negative — that is, that her property was not administered by her husband or that it was not administered by the husband and wife indifferently, now she may establish her separate administration simply by proof that she has executed and filed the written instrument provided for in the amended Article 2386. The method of proving or establishing the separate administration of the wife’s property was the only change made by the 1944 amendment.

The Slater Case, supra, dealt with fruits of the wife’s separate property received both before and after the 1944 amendment. The wife had been administering her separate property, either directly or through her husband as agent, but she failed in 1944 to execute the affidavit required by the 1944 amendment. Her acts of administration, though sufficient prior to August 1, 1944 to maintain the separate character of the fruits, were not sufficient thereafter to so maintain the fruits in her separate estate. Therefore, the court held:

“Accordingly, in the case at bar, defendants [the wife’s heirs] are entitled under their reconventional demand to offset against any monies finally held to be due by them to plaintiffs [the husband’s heirs] the total of all paraphernal funds of Mrs. Bynum deposited in her bank account between the periods December 24, 1940 until August 1, 1944, when all income thereafter derived from her paraphernal property fell into the community.” 99 So.2d at p. 360. (Explanatory words in brackets supplied)

Thus, in spite of the broad language first hereinabove quoted, the court actually only ordered restitution of separate income received prior to August 1, 1944. After that date, however, she was not, as a matter of law, administering her separate property, because she had not complied with the requirement instituted by the amended Article 2386, and the fruits belonged to the community.

The right to restitution of fruits 'of the separate and paraphernal property is contained in LSA-C.C. Art. 2391 which reads as follows:

“The wife has, even during marriage, a right of action against her husband for the restitution of her paraphernal effects and their fruits, as above expressed.” (Emphasis supplied)

The only provision “above expressed” for restitution of fruits is LSA-C.C. Art. 2388 which provides as follows:

“The husband, who administers the paraphernal property of his wife, notwithstanding her formal opposition, is accountable to her for all the fruits, as well as those existing as those which have been consumed.” (Emphasis supplied)

There is no evidence in the present matter of any opposition from Mrs. Guilott, formal or otherwise, to the administration by her husband, and Art. 2388, therefore, is not applicable.

Other articles of the Civil Code convince us that there is no absolute right to restitution of fruits. LSA-C.C. Art. 2396 provides that a wife who is separate in property and has left the enjoyment of her property to her husband, the husband is answerable for the fruits when demanded or at the dissolution. of the marriage. Even this article, however, specifically states that: “He is not accountable for the fruits which have been previously consumed.” It would appear inconsistent that in cases where the wife and husband are separate in property by marriage contract the husband would have to account only for existing fruits, yet in the event there is a community estate, he would have to account for all fruits received by the community in its entire existence — both those existing and those consumed. Furthermore LSA-C.C. Art. 2407 provides:

“The fruits hanging by the roots on the lands belonging separately to either the husband or the wife, at the time of the dissolution of the marriage, are equally divided between the husband and the wife or their heirs. It is the same with respect to the young of cattle yet in gestation.
“The fruits of the paraphernal effects of which the wife reserved to herself the enjoyment, are excepted from the rule contained in this article.”

A division of such fruits as provided in this article conflicts with the absolute restitution of all fruits claimed by plaintiff-appellee.

LSA-C.C. Art. 2386 itself provides the most convincing argument against absolute restitution of fruits, both existing and consumed, for it states in the last sentence that

“ . . . the fruits and revenues which are existing at the dissolution of the marriage belong to the owner of the things which produce them.”

If the wife were entitled to unlimited restitution, even of those fruits consumed, as plaintiff-appellee argues and as the trial court held, this sentence would be meaningless. There would be no point in this article providing for the ownership of fruits and revenues existing at the time of dissolution if the wife was entitled to full restitution anyway.

Finally, since the fruits of the wife’s separate property administered by the husband fall into the community, such fruits become community property and to require restitution would, in effect, be requiring restitution of community property itself.

In Falconer v. Falconer, 167 La. 595, 120 So. 19 (1929) the court specifically recognized the community character of fruits of the wife’s paraphernal property and denied a claim for restitution. In that case the wife had sued her husband to be restored to the administration of her paraphernal property. Coupled with this demand was a claim on a quantum meruit basis for rents and revenues received by the community during the husband’s administration. The appellate court held that the trial court should have rejected this demand outright, as the plain provisions of the Civil Code declare that,

“ . . . when the paraphernal property of the wife is administered by the husband, or by him and the wife indifferently, the fruits and profits belong to the community of acquets and gains. C.C. [Arts.] 2386 and 2402.
“The wife therefore could have no personal action against her husband for an account of such revenues and profits.” 120 So. at p. 20.

This case was followed in Peters v. Norris, 191 La. 436, 185 So. 461 (1938) which only decreed restitution of the wife’s capital delivered to her husband. See also Isaacson v. Mentz, 33 La.Ann. 595 (1881).

Our conclusion that the Civil Code articles themselves do not subject the fruits of the wife’s paraphernal property to restitution at the dissolution of the marriage is bolstered by these cases. Restitution of fruits received by the community during the entire existence of the marriage would, in many cases, as it does in the present oñe, involve large sums going back over a number of years. It would be a perversion of the articles of the Civil Code clearly designating such fruits as community property, and bring about a result never intended when the codal article was first adopted to make “fruits” community property. Such construction would herald a new concept into the civil law — the restitution to the wife of community property itself. The articles of the civil code and the above cases decree a different result, and we reject the idea of absolute restitution.

In addition to the restitution of fruits of her separate property, the trial court granted restitution of the capital of plaintiff-appellee’s paraphernal estate. Para-phernal capital allegedly consists of (1) direct donations received from her father, Robert Barber in 1961 and 1962 and used in the construction of the family home, (2) receipts from the sale of municipal or parochial bonds alleged to belong to her separate estate, and (3) principal received from the sale of her alleged separate stock in Barber Brothers Contracting Company, Inc. There is also the question of the character — community or separate — of two parochial bonds which have not matured or been sold. These are the bonds of Calca-sieu Parish Cravity Drainage District No. 4 and the St. Bernard Parish School Bond No. 1.

As previously noted, at the commencement of the trial counsel entered into a stipulation regarding the commingling of funds which simply provides that all separate funds of the wife were commingled and converted to community assets. The doctrine of commingled funds was succinctly set forth in Paxton v. Bramlette, 228 So.2d 161 (La.App. 3rd Cir. 1969) [Writ refused 255 La. 241, 230 So.2d 92 (1970) ] in the following statement:

“Our jurisprudence is established that when' large sums of community funds are commingled indiscriminately with separate funds, to the extent that the separate funds are no longer capable of identification, all of the commingled funds become community property. Succession of Land, 212 La. 103, 31 So.2d 609; Magnolia Petroleum Co. v. Crigler, 12 So.2d 511 (La.App.); Bruynickx v. Woodward, 217 La. 736, 47 So.2d 478; Slater v. Culpepper, 233 La. 1071, 99 So. 2d 348.
“However, where the amount of community money is small in comparison with the separate funds with which it is commingled, the entire funds do not become community property. Odom v. Odom, 121 So.2d 8 (La.App.); Giamanco v. Giamanco, 131 So.2d 159 (La.App. 3rd Cir. 1961); Slater v. Culpepper, supra; Succession of Sonnier, 208 So.2d 562 (La.App.).
“There is also jurisprudence holding that the mere mixing of separate and community funds in the same account does not of itself convert the entire account into community property, where the separate funds can be traced with sufficient certainty to establish their identity. Bets v. Riviere, 211 La. 43, 29 So.2d 465; Graves v. United States Rubber Company, 237 La. 505, 111 So.2d 752.”
228 So.2d at p. 165.

Thus it is only when the separate and commingled funds are significant in amount and are not traceable or identifiable that restitution is denied. The stipulation entered into by counsel is not specific on this essential point. One might interpret the stipulation to mean that separate funds were not traceable, thus cutting off restitution. On the other hand the stipulation might be interpreted to mean that the commingled funds were nevertheless identifiable, and still subject to restitution. We cannot determine from the record, however, what was intended by this brief and incomplete stipulation, .

Furthermore, the stipulation was treated as an admission of delivery of the wife’s paraphernal funds to the husband. Although delivery is a prerequisite for restitution of separate capital, Succession of Rieger, 37 La.Ann. 104 (1885); Peters v. Norris, supra; Succession of Smith, 232 So.2d 569 (La.App. 4th Cir. 1970); Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968); Gregory v. Gregory, 223 So.2d 238 (La.App. 3rd Cir. 1969); Gouaux v. Gouaux, 211 So.2d 97 (La.App. 1st Cir. 1968); Succession of Slavich, 232 So.2d 846 (La.App. 4th Cir. 1970), it is not clear that this was the effect intended by the parties in making this stipulation. Surely the husband, defendant-appellant, did not intend to make this admission, yet one interpretation could give the stipulation that effect.

The burden rested upon plaintiff-appellee to establish the separate character of her funds and identify same. Bachino v. Martin, 35 La.Ann. 571 (1883); Ory Brothers v. Muller, 14 La.App. 35, 128 So. 903 (La.App.Orl.1930); R.D.M. Corporation v. Patterson, 255 La. 301, 230 So.2d 820 (1870); Succession of Broussard, 306 So.2d 399 (La.App. 3rd Cir. 1975); Magnolia Petroleum Company v. Crigler, 12 So.2d 511 (La.App. 2nd Cir. 1942); LSA-C.C. Arts. 2334 and 2405. The manner in which this trial was conducted, and the speculation with regard to the meaning of the stipulation of counsel, makes it impossible to determine whether she has sustained that burden.

Even commingled and non-traceable paraphernal funds (capital) are subject to restitution under certain circumstances where the benefit to the community is established with reasonable certainty. See Denegre v. Denegre, 30 La.Ann. 274 (1878), Succession of Bell, 194 La. 274, 193 So. 645 (1940); Succession of Videau, 197 So.2d 655 (La.App. 4th Cir. 1967) [Writ Refused 250 La. 920, 199 So.2d 922 (1967) with the statement: “We find no error of law in the two assignments of error presented for our consideration.”] Succession of Russo, 246 So.2d 26 (La.App. 4th Cir. 1971) [Writ Refused 258 La. 760, 247 So.2d 861 (1971) with the statement: “The majority and concurring opinion correctly dispose of the issue presented by this application.”] As so much reliance was placed by both parties upon the stipulation, we cannot determine from the record whether even the requirements of this line of cases have been satisfied.

It is obvious that the stipulation was the foundation of the whole trial, and caused both parties to omit presenting much essential evidence. The confusion may have resulted, in part, from a misinterpretation of Slater v. Culpepper, supra, but regardless of the cause, we find the record so incomplete that proper adjudication of the remaining issues is impossible. It would be grossly unfair to indulge in a guessing game as to the intent of the parties in order to determine what has or has not been proved when so much is lacking in the record. The record itself furnishes no clues for interpreting the action of the parties.

LSA-C.C.P. Art. 2164 provides that an appellate court may render any judgment which is just, legal and proper. Although the law favors prompt disposition of cases and the avoidance of protracted litigation, under this article an appellate court is empowered to remand a case for a new trial or for introduction of additional evidence to prevent a miscarriage of justice. Bidwell v. Binnings Construction Company, Inc., 228 So.2d 240 (La.App. 1st Cir. 1969). See also Herbert v. Travelers Indemnity Company, 255 La. 645, 232 So. 2d 463 (1970).

We have minutely examined the merits of this case and find the inexactness of the record, the lack of clarity of the stipulation, and other errors to be of such magnitude that we are unable to pronounce judgment according to conscience and the requirements of justice. See Bruney v. Bru-ney, 230 La. 30, 87 So.2d 718 (1956); See also former Art. 906 of the Louisiana Code of Practice, the Official Revision Comments, Section (c) to LSA-C.C.P. Art. 2164; Savin v. Savin, 216 La. 71, 43 So.2d 221 (1959). The stipulation itself, which is subject to different interpretations, depending on the party relying on same, prevented the reception of evidence which this court needs to properly adjudicate the remaining issues. To prevent a miscarriage of justice, therefore, we feel constrained to remand for a new trial, and the confusing stipulation of counsel regarding commingled funds should be disregarded unless the parties can agree upon its exact meaning and effect.

For the foregoing reasons, this case is reversed insofar as it decrees the restitution of fruits of the separate property, and is remanded for a new trial, in accordance with the authorities herein cited, on all issues except the wife’s right to restitution of fruits of her separate estate. Costs in the trial court and on this appeal to be assessed against the mass of the community.

Reversed in part and remanded.

DOMENGEAUX, J., concurs in part and dissents in part and assigns written reasons. .

DOMENGEAUX, Judge

(concurring in part and dissenting in part).

I concur in the result reached by the majority in remanding this case for the purpose of clarification of the issues of para-phernality, delivery, and traceability of the wife’s property. I further agree that Mr. Guilott is not entitled to rental payments from his wife’s occupancy of the family home.

However, I am compelled to disagree with the definitive pronouncement by my brothers of the majority concerning Mrs. Guilott’s right to restitution for the fruits of her paraphernal property.

I feel that the case of Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (1957) is controlling on the issue. As the majority has pointed out, Slater is itself fraught with contradictions. In that case the broad statement is made that:

“Under our law the wife, unlike the husband has the absolute right to restitution for her paraphernal effects and their fruits, either delivered to her husband or delivered for use to the community, save in instances governed by Article 2389 of the Civil Code, which is not applicable here.” (Emphasis added.)

On the other hand Slater interprets the amendment to Civil Code Article 2386 in such a fashion so as to deny the wife’s claim for restitution of her paraphernal fruits delivered to the community after the effective date (August 1, 1944) of the amendment to that codal provision. Obviously Slater has caused a great deal of confusion, and I feel that its language provides for alternate interpretations.

I believe that the purpose of the amendment to Civil Code Article 2386 was to provide a device by which the wife could prevent the fruits of her paraphernal property from ever falling into the community. I do not feel that a wife’s failure to execute the required affidavit results in her loss of these fruits forever. I submit that absent an execution of the “2386 affidavit” the wife must prove the nature of her par-aphernal funds and show that they were delivered to and used by the community. Thus the wife should not be denied the ultimate restitution for the fruits of her separate property employed by the community if the affidavit is lacking, but her burden becomes considerably greater.

Civil Code Article 2391 provides:

“Art. 2391. Wife’s action for restitution of paraphernal effects
The wife has, even during marriage, a right of action against her husband for the restitution of her paraphernal effects and their fruits, as above expressed.”

This Article remains in its original form from the Code of 1825. The legislature failed to amend Article 2391 at the time it amended Article 2386 in 1944. I feel that the legislature clearly expressed its intent in choosing not to amend Article 2391, thus tacitly establishing the rationale upon which I base my interpretation. I am in disagreement with the cited Law Review Article in 31 La.L.Rev. 252 which states that Article 2391 is only applicable to restitution claimed by the wife during marriage. I believe that C.C. 2391 clearly establishes the principle that the wife possesses the right to restitution for the fruits of her paraphernal property upon dissolution of the community as well as during its existence.

It is my opinion that the issue presented by this appeal concerning the wife’s right to restitution for the fruits of her para-phernal property involves an area of the law which is uncertain and in need of clarification. While I am cognizant of the logical and scholarly argument presented by the majority, I would suggest that this case presents an opportunity to our Supreme Court to consider the matter and rule definitively on the issue presented.

For the above and foregoing reasons I respectfully concur in part and dissent in part.

      . These distributions were made after the formation of the corporation hereinafter mentioned.

      . Two bonds, namely the Iberia Parish School District No. 13 and State of Louisiana, State Bond and Building Commission, Series AA, in the total amount of $25,000 were cashed by Mrs. Guilott after May 1,1972.

      . This is the restitution figure given in the Reasons for Judgment. The trial court also ordered in the Reasons .for Judgment restitution of $27.16 in taxes paid by Mrs. Guilott and $416.00 for house insurance premiums paid by Mrs. Guilott. In the judgment itself, however, these figures were combined ($461,-061.99 -f $27.16 -j- $416.00) and restitution of $461,506.15 ordered. There was a mistake in addition, however, as the total of these sums is $461,505.15.

      . In a law review article appearing in 31 La. L.B.. 252, Prof. Pascal at p. 254 states that Art. 2391 O.O. is to be applied only to restitution claimed by the wife during the marriage. It is not applicable to restitution claimed upon dissolution of the marriage.

      . It should be noted that the early predecessors of LSA-C.C. Art. 2386 — Art. 60 of the Civil Code of 1808 and Art. 1578 of the Code Napoleon of 1804 — did not provide that fruits of the wife’s paraphernal property became community property when administered by the husband, although the articles did provide for restitution of existing fruits, excepting those which had been consumed from the obligation of restitution. In the Civil Code of 1825 a different concept of “fruits” was adopted, as Art. 2363 of that code [the parent of Art. 2386 of the Civil Code of 1870] provided for the first time that fruits of the wife’s para-phernal property administered by the husband fell into the community. The accountability of both the marriage partners at the dissolution of the marriage for existing fruits was retained, just as it is in the present Art. 2386, but more importantly, specific provision was made designating “fruits” as community property.

      . The text of C.C. Art. 2386 before and after the 1944 amendment is to be found in the body of the majority opinion.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Delores, wife of/and John BRUNO, Jr. v. Dr. Thomas E. CLEMENTS and XYZ Insurance Company.
    No. 7256.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Michael D. Cucullu, New Orleans, for plainti f f s-appellants.
    Richard S. McBride, Jr. and Ronald F. Fontano, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This suit involves the issue of medical malpractice on the part of Dr. Thomas E. Clements, defendant. Plaintiffs’ suit was dismissed and they have appealed. We affirm.

The plaintiffs contend that Mrs. Bruno was suffering from the onset of acute appendicitis when she visited Dr. Clements’ office on June 15, 1971. Dr. Clements examined her, diagnosed her problem as gastritis and prescribed certain appropriate medicines. Later that same night Mrs. Bruno became very ill and was taken to the hospital. At the hospital her ailment was diagnosed as a possible acute abdomen, and surgery the following day proved that her appendix had ruptured. It is asserted that a proper diagnosis would have prevented the severe complications which may be expected once an appendix ruptures and which she suffered. As a result Mrs. Bruno underwent several more operations plus an extended hospital stay before she recovered.

Plaintiffs raise two issues as to the negligence of Dr. Clements. First, he performed an improper examination on the plaintiff. Secondly, assuming his examination was proper, he failed to diagnose appendicitis or acute abdomen when he should have.

I. THE EXAMINATION

Mrs. Bruno testified she had a vague pain in her stomach around the navel and decided to visit Dr. Clements. After waiting several hours in his office she was led to an examination room and left there alone. Dr. Clements came into the room alone and asked her her complaint. When she told him she had a pain in the stomach he pressed on her abdomen while she was seated and fully clothed. All state that the only proper type of examination of a patient with stomach pains is to place them in a supine position and palpate on the bare abdomen.

As opposed to this is the testimony of Dr. Clements and his assistants. None remember Mrs. Bruno directly. However, her name is listed on their records and thus they do recall her visit through these documents. Dr. Clements testified that he never examines any patient suffering from stomach pains without putting them on the examining table and having them disrobe. He also never examines a disrobed female patient without one of his female assistants present in the room. The doctor admits that he examined Mrs. Bruno and that he prescribed all the medicines she says he did. He denied that he gave her a shot of anything because his records do not show that he did. He further stated that he told her, as he does all his patients, to return or call him if the medicine was not effective or her condition worsened. His nurse and his receptionist assistant corroborate him.

As shown, Mrs. Bruno’s and Dr. Clements’ testimony as to the examination procedure he used differ greatly. The issue becomes one of credibility. Obviously, the trial court believed Dr. Clements and his witnesses, and the record supports that conclusion.

II. THE DIAGNOSIS

The next question causes slightly more difficulty. Did Dr. Clements fall below the prevailing community medical standards in failing to diagnose acute abdomen in Mrs. Bruno? At this point perhaps a brief resume on Dr. Clements may be helpful. He is 74 years of age and has been practicing medicine since 1926. He has been a well respected surgeon and professor of anatomy in New Orleans for many years. Due to advancing age he has stopped all surgery and teaching, and now confines his present practice to general medicine. In the event a patient requires surgery or tests that he is unable to perform he has a procedure whereby he refers those patients to local specialists or hospitals. He has restricted his practice to the point where he only sees approximately 30 patients a day.

The problem in this case deals with the time lapse between Dr. Clements’ examination and Mrs. Bruno’s appendix rupture, the lack of procedures (diagnostic) utilized by Dr. Clements and the difficulty or ease of diagnosing appendicitis.

Dr. Clements examined Mrs. Bruno at approximately noon on June 15, 1971 and Mrs. Bruno was operated on at approximately noon on June 16, 1971 at which time her appendix had already ruptured. The expert medical testimony was almost unanimously in agreement about certain aspects of the diagnosis of appendicitis or acute surgical abdomen. First and foremost, all doctors agreed that the diagnosis can be very difficult and that even the best surgeons and diagnosticians can and have missed the diagnosis. Secondly, all doctors agreed that the diagnosis cannot be made without a finding of rigidity or rebound tenderness in the lower right quadrant of the abdomen following palpation. Thirdly, all doctors agreed that symptoms similar to those manifested by appendicitis are common signs in a myriad of other diseases. Fourthly, all doctors agreed that with the exception of rigidity or rebound tenderness in the lower right quadrant of the abdomen, there is no other symptom or combination of symptoms upon which to definitely diagnose appendicitis.

The facts show that Dr. Clements found no rigidity or rebound tenderness in the lower right abdomen of Mrs. Bruno. This is corroborated by the fact that most of the doctors questioned stated that when the pain localizes in the lower right quadrant it becomes very intense to the individual. Mrs. Bruno testified that her pain was a “ . . . stomach ache . . . ” and hurt her in the area of the navel. One doctor gave the opinion that if Mrs. Bruno were suffering the onset of acute appendicitis when she was in Dr. Clements’ office it would be most unlikely that she could have sat still waiting for two hours.

Most doctors agreed that the time period between the genesis of appendicitis and the subsequent rupture can vary greatly. It is for this reason that once a diagnosis of appendicitis is made most doctors prefer to operate as soon as possible. Mrs. Bruno entered Charity Hospital at approximately-7:00 P.M. on June IS, 1971 and after an examination the doctors there failed to make a definite diagnosis of appendicitis. Mrs. Bruno was operated on the following day for acute surgical abdomen, however, the operating surgeon testified that appendicitis was only one of the things they thought they might encounter during the operation. Basically, the operation on June 16, 1971 was exploratory surgery since no definite diagnosis had been made. Finally, the facts show that the operating surgeon found Mrs. Bruno’s appendix in an unusual location and it was his opinion, corroborated by other doctors, that this location could have made the diagnosis more difficult.

The general duty of care owed by physicians to their patients is best expressed in the Supreme Court case of Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (S.Ct.1953):

“[1] A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.” (Citations omitted.)

As the record clearly indicates, Dr. Clements met this duty of care. A diagnosis of gastritis is not uncommon given symptoms revealing a stomach ache in the navel area. Some of the symptoms of appendicitis are also common to a number of other afflictions. Unless the classical textbook symptoms are found, it is frequently necessary to continue observation of the patient or be notified that the patient has a change in condition. This fact coupled with the fact that Mrs. Bruno failed to inform Dr. Clements of her worsened condition evidence to us no breach of duty.

Plaintiffs attempt to show negligence on Dr. Clement’s part because he failed to take a white blood cell count and failed to do a rectal examination. While the medical testimony differed slightly it remains clear that these two procedures are of little import. A rise in the .white blood cell count sometimes accompanies the onset of acute appendicitis. However, when Mrs. Bruno arrived at Charity Hospital and had this procedure done it resulted in a normal count. All doctors testified that a rectal examination is unreliable as a procedure to discover if appendicitis exists. It can only serve as a confirmatory symptom procedure. Most of the medical experts polled, including Dr. Clements, related that the rectal examination was a particularly unreliable procedure when used on women.

For the foregoing reasons the judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

Affirmed.


author: DOMENGEAUX, Judge.

text:
    Covey W. INGRAM, Plaintiff-Appellee, v. Joe FREEMAN et al., Defendants-Appellants.
    No. 5308.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearings Denied March 4, 1976.
    Writs Refused April 7, 1976.
    Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Gahagan & Gahagan by Russell E. Gahagan, Natchitoches, for defendants-appellants.
    Edwin Dunahoe, Natchitoches, Henry A. Politz, Shreveport, for plaintiff-appellee.
    Before CULPEPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is an action to annul a sale as being a simulation. Plaintiff-appellee, Covey Ingram, obtained an award for personal injuries inflicted upon him by the defendant-appellant, Joe Freeman. In the same suit the plaintiff also obtained a judgment annulling the transfer of property by defendant Freeman to his sister and co-defendant, Pearl Freeman Jones. From this latter judgment annulling the sale of the property between them, Pearl Freeman Jones and Joe Freeman have appealed. Plaintiff has answered the appeal seeking a judgment holding Pearl Freeman Jones liable in solido with her brother, Joe Freeman, for the amount of the injuries caused to plaintiff by the latter.

On August 12, 1970, Joe Freeman and his minor son, Donnie Joe Freeman, brutally and severely beat the plaintiff in a thirty minute attack near Robeline, Natchi-toches Parish, Louisiana. The beating was so extensive that his family physician of thirteen years-was unable to recognize him while rendering initial treatment at the emergency room of the Natchitoches Parish Hospital.

The following day Joe Freeman and his sister, Pearl Freeman Jones, consulted an attorney in the City of Natchitoches and had him prepare a document whereby the former executed a mortgage from himself to a future holder for the sum of $15,000.-00. This mortgage encompassed a certain 80 acre tract of land in Natchitoches Parish, including all buildings and improvements thereon. This acreage constituted essentially all of Joe Freeman’s property. The act of mortgage made reference to a promissory note in the amount of $15,000.-00, payable to the maker (Freeman) and endorsed by him in blank. This note was allegedly given to Pearl Freeman Jones for future advances.

On August 27, 1970, the note was surrendered to the Clerk of Court in Natchi-toches Parish and the mortgage on the abovementioned property was cancelled. On that day the defendant appeared before the same attorney and executed an act of sale by which the formerly mortgaged property (with the addition of all furniture and fixtures located in the house situated on the premises and all farm equipment located “on the place” including a tractor, disc, buster, and plows) was sold to Pearl Freeman Jones by her brother for the consideration of $15,000.00 “Cash in hand paid, the receipt of which is hereby acknowledged”.

Several months thereafter plaintiff filed suit for damages resulting from the beating and further sought to annul the sale of this property between the defendants. Subsequently the District Court rendered judgment in plaintiff’s behalf against Joe Freeman and Donnie J. Freeman in solido for $37,917.75. That portion of the judgment has not been appealed.

We are presented with two major issues for determination by this appeal:

1. Was the sale of the abovementioned property from Joe Freeman to Pearl Freeman Jones a simulation?

2. If said sale was a simulation, is Pearl Freeman Jones liable in solido for the total amount of the judgment originally rendered against Joe Freeman?

There are two manners in which a presumption of simulation arises. The first is based upon Civil Code Article 2480 which reads:

“Art. 2480. Retention of possession by seller, presumption of simulation
In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usu-fruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

See Radovich v. Jenkins, 123 La. 355, 48 So. 988 (La.1909); Harper v. Rosenblath, 227 La. 507, 79 So.2d 863 (La.1955); Dare v. Myrick, 226 La. 732, 168 So.2d 845 (La.App. 2nd Cir. 1964); Beatty v. Beatty, 186 So.2d 855 (La.App. 1st Cir. 1966); and Succession of Elrod, 218 So.2d 83 (La.App. 4th Cir. 1969).

The second basis for a presumption of simulation arises when the party asserting the simulation produces evidence which creates a highly reasonable doubt or suspicion concerning the honesty or validity of the transaction. Such a showing establishes a prima facie case of simulation and the burden is thereby shifted to the defendants to demonstrate the validity of the transaction under attack. Smith v. Smith, 239 La. 688, 119 So.2d 827 (La.1960); Teche Concrete, Inc. v. Moity, 168 So.2d 347 (La.App. 3rd Cir. 1964), writ refused 247 La. 251, 170 So.2d 509; Dare v. Myrick, supra; Laborde v. Dauzat, 158 So.2d 637 (La.App. 3rd Cir. 1963), writ refused 245 La. 731, 160 So.2d 595; Landry v. Landry, 140 So.2d 706 (La.App. 3rd Cir. 1962); Howard v. Howard, 96 So.2d 345 (La.App. 2nd Cir. 1957).

An analysis of the facts relevant to this litigation indicates the existence of a sufficient basis for invoking either of the abovementioned presumptions of simulation, thus shifting the burden of proof to the party claiming the validity of the transaction.

Civil Code Article 2480 speaks of retention of possession by a “precarious title”. Article 3556 (25) defines precarious possession as follows:

“25. Precarious. — That possession is called precarious, which one enjoys by the leave of another, and during his pleasure.
The title which excludes the ownership, such as a lease, is also called pre-cariotis."

The very day of the sale, August 27, 1970, Joe Freeman and Pearl Freeman Jones entered into a lease agreement whereby the former was to lease the property transferred in the sale from his sister for a period of one year at a rate of $25.00 per month. The lessee retained an option to renew the lease for an additional one year period provided that written notice was given to the lessor within thirty days of the termination of the original lease. The lease was prepared by the same attorney and notary who drew up the mortgage and sale involving said property. In fact, the “vendor-lessee”, Joe Freeman, never surrendered the property to his sister. Clearly Mr. Freeman continued his occupancy by virtue of the purported lease in such a fashion as to raise the presumption of a simulation as described in Article 2480.

The circumstances surrounding the “sale” were also of such a nature as to raise a reasonable doubt as to the honesty of the parties. The consideration for the sale was allegedly made in two ways. First, a cancelled check for the amount of $5,000.00 was introduced into evidence. The check is drawn on the City Bank and Trust Company of Natchitoches, Louisiana, dated April 11, 1963, and shows Joe Freeman as the payee and J. L. Jones as the drawer. This check was allegedly a loan made by J. L. Jones, the brother-in-law of Joe Freeman and husband of Pearl Freeman Jones. However, there was no evidence of the loan such as a note or mortgage. The parties to the sale testified that $5,000.00 of the consideration for the sale was made by cancelling the seven year old debt for that same amount owed by Joe Freeman to his sister and her husband. However, although the $5,000.00 check was drawn by Mr. Jones and apparently was a loan made by the community, the property was purchased by Mrs. Jones, alone, as her separate and paraphernal property.

The balance of $10,000.00 due to Joe Freeman was allegedly paid in cash which was carried in a paper bag. The attorney and notary testified that a paper bag was brought into his office and placed on a corner of his desk but that it was never opened and that he never saw the actual exchange of the money. Although two of the defendants’ other sisters testified that they actually saw the transfer and counting of the money after the parties to the transaction left the attorney’s office, the trial judge dismissed their testimony in its entirety. As the trial judge stated:

“Taking into consideration the timing of the beating of the plaintiff, the mortgage, the deed, and after rejecting in full the testimony of Mr. Freeman and his sisters, the Court holds that the deed of August 27, 1970 recorded in Conveyance Book 293 at Page 269 of the records of Natchitoches Parish is a pure simulation.”

Thus-, obviously, the trial judge felt that the circumstances surrounding this conveyance of property from brother to sister raised substantial doubt in his mind as to the motive and purpose of the transaction. With the trial judge’s factual finding, we are in agreement. Therefore the presumption of simulation is also invoked by the factual context surrounding the alleged sale of the property in question.

At this point it becomes incumbent upon defendants to prove the validity of the sale.

In support of the defendants’ assertion of an honest motive for their entry into the contract of sale involving this property those parties presented evidence which was obviously less than convincing to the trial judge. The alleged account of the payment of the sale price was patently suspicious. The defendants failed to support their contention that the alleged $5,000.00 loan ever took place. As we previously stated, there was neither a note, a mortgage, a co-signor, nor any other evidence which would indicate an indebtedness for such an amount.

Likewise the testimony concerning the transfer of the $10,000.00 in cash in a brown paper bag is difficult to accept. Joe Freeman was unable to satisfactorily account for the $10,000.00 which he claims to have received for the property. He testified that he gave it to a girlfriend in New Mexico for use in the remodeling of her house. However, this girlfriend was never produced nor was she even identified by name. There were no bank statements indicating deposits a.nd withdrawals to support this claim of receipt of the funds. Neither were there receipts or other evidence to show the alleged work was performed on the house in New Mexico.

Also questionable was Joe Freeman’s alleged motive for selling the property. This defendant claimed that his only desire was to dispose of his land, take the money, and leave the area, to perhaps work or settle in another part of the country. However, it was established at trial, that another individual had previously been negotiating for the same property but minus the farming equipment and household items and was offering a price of approximately $25,000.00. If Joe Freeman was interested in selling the property and leaving, surely he would have sold it to the highest bidder. Defendant’s credibility is further weakened by the fact that he entered into a year’s lease of the property on the same day of the sale. This act certainly belies his intention to obtain his money and leave.

At the trial, an individual, Charles Stra-han, testified that he leased the property from Mrs. Jones for pasture land and that he paid her the sum of $200.00 per year. However, this payment was also supposedly made in cash, there were no receipts for the payment, and Mrs. Jones never reported any rental income from Mr. Strahan on her income tax forms for the years in which the lease was to have been in effect. Joe Freeman claimed that he leased only the house on the property and the rest was possessed by Mr. Strahan. The defendants introduced a year’s worth of monthly rental receipts for $25.00 supposedly evidencing' rental payments from Joe Freeman to Pearl Freeman Jones. However, these alleged payments were claimed to have been made in cash, and there is no evidence outside the testimony of the parties to support the claim for the rental compensation.

Mrs. Jones also failed to declare any rental income from the “lease” to her brother. In fact a study of Mrs. Jones’ tax returns for the years 1970, 1971, 1972, and 1973 indicates that she declared no income from rental property whatsoever. If, in actuality, she had leased this 80 acre tract to her brother and Mr. Strahan, Mrs. Jones should have reported rental income of $300.00 for two of the years, and $500.-00 for the other two years. The lease agreement between Mrs. Jones and Mr. Strahan was purportedly an oral one, and again there was no proof of the contract outside the testimony of the parties. There was also no indication that the lease agreement between the two defendants had ever been extended beyond the original one year period, although Joe Freeman continued to reside on the property after the original “lease” terminated in August of 1971.

In support of Mrs. Jones’ claim of valid ownership of the property, she introduced the property tax receipts for the four year period commencing in 1970. However, these receipts are hardly conclusive evidence of ownership. Since Mrs. Jones was listed as owner of the property in question as a matter of record, it is only normal procedure that she would be billed by the Sheriff for the taxes due on the property. There was no evidence introduced to show how or by whom the taxes were actually paid. Mrs. Jones also introduced an insurance policy covering the dwelling and contents located on the tract of land in which she is liste'd as the policyholder. In light of the aforementioned evidence, the existence of the insurance policy is insufficient to establish Mrs. Jones’ ownership of the property.

Since there was no substantial documentary evidence to support a valid motive for the “sale”, the outcome of this litigation rests ultimately on the credibility of the witnesses and the circumstances surrounding the conveyance. The factual context of the transaction is certainly suggestive of an improper motive for the transfer of the property. As to the credibility of the witnesses, the trial judge stated:

“The Court accepts fully and without reservation the testimony of the plaintiff’s witnesses. The testimony of Joe Freeman, Mrs. Pearl Freeman Jones, Charles Strahan, Mrs. Effie Neubine and Mrs. Cammie Moses [sisters of the defendants] individually and collectively is rejected as being untruthful, unreliable and untrustworthy. The Court does not believe that there was $10,000.00 in cash in the unopened paper sack on the attorney’s desk at the time the deed was passed and finds that the check of April 11, 1963 had nothing whatsoever to do with the deed of August 27, 1970.
The Court had opportunity on January 30, 1973 and on June 12, 1975 to observe the testimony, demeanor and actions of the defendant as he testified and participated in the trials.” (Brackets added)

Bearing in mind that the burden of proof is shifted to the defendants by the presumptions discussed hereinabove, and after considering all the evidence pertinent to this litigation, we conclude that the trial judge had a reasonable basis for finding that the sale of the tract of land from defendant Freeman to defendant Jones was a simulation, and we agree with his ruling annulling said transaction.

We must now consider, whether by becoming a party to the simulated sale, Mrs. Pearl Freeman Jones should be held liable in solido with Joe Freeman for the total amount of the judgment resulting from the personal injuries inflicted upon the plaintiff by the latter.

Plaintiff contends that by conspiring with her brother to shield the property in question, Pearl Freeman Jones incurred liability in solido with him for the judgment of $37,917.75 originally rendered against the latter. Plaintiff bases his theory of liability on Civil Code Article 2324 which reads:

“Art. 2324. Liability for assisting or encouraging wrongful act
He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

In the alternative plaintiff asserts Mrs. Jones’ liability under Civil Code Article 2315, the pertinent part of which reads:

“Art. 2315. Liability for acts causing damage; survival of action
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

However, the above cited Codal provisions both require the existence of damage before the liability of a tortfeasor ensues. A conspiracy alone is not civilly actionable, and there must be some showing of harm to the claimant before recovery will be allowed. See Cogswell v. Board of Levee Commissioners of Orleans Levee District, 213 La. 817, 35 So.2d 743 (La.1948); Louisiana v. McIlhenny, 201 La. 78, 9 So.2d 467 (La.1942); Tabb v. Norred, 277 So.2d 223 (La.App. 3rd Cir. 1973), writ denied 279 So.2d 694.

In the instant case Mrs. Jones’ participation in the simulated sale of her brother’s property was an act separate and apart from the original tort committed upon the plaintiff. Therefore Mrs. Jones can in no way be said to have conspired in the commission of that original tortious act. Her only liability might possibly lie in the value of the property “sold” if that property had then been disposed of to plaintiff’s detriment. However, the District Court declared Joe Freeman to be the owner of said property, thus placing it within the reach of the plaintiff as judgment creditor. Under the facts and circumstances of this litigation we conclude that Mrs. Jones is not liable to plaintiff under the tort theories expressed in C.C. Articles 2324 and 2315.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed against the defendants-appellants.

Affirmed.

      . According to the terms of this “lease” Joe Freeman was to rent only the house located on the property and not the bulk of the acreage itself. However, there is difficulty in ascertaining exactly what portion of the property Freeman actually possessed since even prior to the “sale” his use of tire property was limited primarily to the house and immediate land.


author: SAMUEL, Judge.

text:
    In the Matter of ADOPTION OF Jason Edward McARTHUR.
    No. 7500.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      James G. Derbes, New Orleans, for appellant.
    Beryl E. Wolfson, New Orleans, for ap-pellees.
    Before SAMUEL, GULOTTA and STOULIG, JJ.
   SAMUEL, Judge.

This is a suspensive appeal from a judgment of adoption. The only matter before us at this time is an appellee motion to dismiss that appeal. The motion is based on the fact that the appellant failed to pay to the clerk of the trial court all costs of preparing the record on appeal on or before three days prior to the return day or extended return day as required by C.C.P. Art. 2126.

The facts are not in dispute. The extended return day of the appeal was November 24, 1975. The record was lodged in this court on November 19, 1975. Payment for the transcript was not made timely, i. e., it was not made on or before the expiration of the three days prior to that extended return day, although such payment was made at a subsequent date. The motion to dismiss the appeal was filed on January 7, 1976.

It would appear that we would be required to dismiss the motion for the reason stated in Desselle v. Petrossi, La.App., 203 So.2d 567, 568:

“. . . while the clerk is not required to lodge the record with the appellate court unless the costs and fees are paid, nevertheless, if the clerk does timely file the record in the appellate court, together with the payment of the appellate court’s filing fee, then the question of the appellant’s failure to comply with Article 2126 of the Code of Civil Procedure becomes moot, since the purpose of the article is simply to assist the clerk of the lower court to receive such- fees and costs in time to file the record in the appellate court by the return day.”

However, we do not reach that question. As provided by C.C.P. Art. 2161, a motion to dismiss an appeal because of any irregularity, error or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the day on which the record on appeal is lodged in the appellate court, whichever is later. This appeal is sought to be dismissed solely because of an alleged irregularity, error or defect imputable to the appellant. As the motion was not filed until January 7, 1976, more than a month after both the extended return day and the day on which the record was lodged in this court, the motion was untimely filed and cannot be considered.

For the reasons assigned, the motion to dismiss is denied.

Motion denied.

      . In re Roberts, La.App., 257 So.2d 473; White v. White, La.App., 227 So.2d 760; Coastal Transmission Corporation v. Lejeune, La.App., 144 So.2d 759.


author: CULPEPPER, Judge. HOOD, Judge

text:
    Aljane Domingue BROUSSARD, Plaintiff and Appellant, v. Dudley BROUSSARD, Defendant and Appellee.
    No. 5167.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1976.
    Rehearing Denied March 4, 1976.
    Writs Granted April 23, 1976.
    Edwards, Stefanski & Barousse, by Homer E. Barousse, Jr., Crowley, for plaintiff-appellant.
    Shelton & Cline, by Thomas Robert Shelton, Rayne, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Mrs. Aljane Domingue Broussard instituted an action against her former husband, Dudley L. Broussard, seeking to partition the community which theretofore existed between them. An inventory purporting to list the community property was made in connection with that proceeding. That inventory listed as community property, among other items, two savings certificates issued by Acadia Savings and Loan Association. Mr. Broussard filed an objection to that inventory, alleging as one objection that both of the above savings certificates belong to his separate estate, and praying that the funds represented by those certificates be decreed to be his separate property.

After trial, judgment was rendered by the trial court decreeing that the two savings certificates above mentioned belong to the separate estate of the defendant husband. Mrs. Broussard appealed.

The principal issue is whether the two savings certificates at issue here belong to the community or to the separate estate of the defendant husband.

The facts are that Dudley Broussard was injured in an offshore accident on October 20, 1967. He was not married at that time. He asserted a claim for his injuries under the Jones Act and Maritime Tort Law. That claim was pending at the time he married plaintiff on July 4, 1969. He settled the claim on April 19, 1971, receiving the net sum of $51,000 as his part of the settlement.

On April 19, 1971, Mr. and Mrs. Brous-sard went to the Bank of Commerce and Trust Company, in Crowley, and purchased two “Certificates of Deposit”, each for the sum of $22,500. One of those certificates was issued to “Dudley L. Broussard and Aljane D. Broussard.” The other was issued to “Aljane D. Broussard and Dudley L. Broussard.”

The evidence shows that $45,000 of the proceeds which Mr. Broussard received in the above settlement were used to pay the purchase price for these two certificates of deposit. The remainder of those proceeds, amounting to about $6,000, was used by the parties to “pay bills.”

About six months later, on October 19, 1971, Mr. and Mrs. Broussard cashed in the above certificates of deposit and withdrew all the funds represented by them. On the next day, October 20, 1971, Mr. and Mrs. Broussard purchased the two “Savings Certificates” which are at issue here, both of which were issued by Acadia Savings and Loan Association. Each of those certificates is dated October 20, 1971, and each certifies that the holders own “200 shares”, or a savings certificate of $20,000. One of those savings certificates is identified as Certificate No. 4218, Account No. 8487, and it was issued to “Dudley L. Broussard and Aljane D. Broussard.” The other savings certificate is identified as Certificate No. 4219, Account No. 8488, and it was issued to “Aljane D. Broussard and Dudley L. Broussard.”

The evidence shows that the parties received at least $45,000 from the Bank of Commerce and Trust Company when they cashed in the two certificates of deposit issued by that bank, and that they used $40,000 of that amount the next day to purchase the two above described savings certificates issued by Acadia Savings and Loan Association. They retained the balance of the proceeds received from the bank, amounting to approximately $5,000, and the record does not show whether or for what purpose that balance may have been spent.

A suit for separation was filed by Mrs. Broussard on March 14, 1973. Mr. Brous-sard reconvened for a divorce, and judgment ultimately was rendered on June 26, 1973, decreeing an absolute divorce between the parties. Following that decree, Mrs. Broussard instituted this action to partition the community. A Notary Public was appointed to make an inventory of the assets which belonged to the community. The inventory listed as community property the two above described savings certificates issued by Acadia Savings and Loan Association.

As already noted, defendant objected to the inventory, claiming that the savings certificates belong to his separate estate.

The trial judge, in holding that the savings certificates were defendant’s separate property, reasoned that since the cause of action for Mr. Broussard’s injuries arose before his marriage to plaintiff, that cause of action belonged to defendant’s separate estate, and that all of the money which he received as settlement of his claim thus was his separate property. He concluded that the above savings certificates belong to Mr. Broussard’s separate estate, even though they were acquired during the existence of the second community, since they were purchased with defendant’s separate funds. The trial judge relied on Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (1971), as authority for that decision.

It is not clear from the opinion rendered in Chambers v. Chambers, supra, what the court actually held. A reasonable interpretation of that case, however, supports the conclusion reached by the trial judge in the instant suit, at least insofar as he .held that the funds received by defendant Broussard in settlement of his personal injury claim belong to his separate estate.

After judgment was rendered by the trial court in the present suit, however, Chambers was modified or reversed by our Supreme Court in the recent case of West v. Ortego, La., 325 So.2d 242 (No. 56,232, Decided December 8, 1975).

In West, supra, the husband sustained a disabling injury during the marriage. Ten days after the accident occurred, his wife filed suit for a separation, and thereafter judgment was rendered decreeing a separation between the parties. The wife then sued to enjoin the husband from settling his claim for workmen’s compensation benefits on the ground that any benefits he might receive would belong to the community and that she was entitled to one-half of the amount of the settlement. The trial court held that the wife was entitled to share only in those benefits which accrued before the dissolution of the community, and that the benefits accruing after the dissolution of the community belong to the husband’s separate estate. We affirmed the judgment of the trial court (La.App., 309 So.2d 883), and the Supreme Court, on review, affirmed that judgment. (325 So. 2d 242; No. 56,232). The Supreme Court said:

“Applying the foregoing principles, we conclude that where a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.
* * *
“To the extent that Chambers v. Chambers, supra, is in conflict with this option, it is overruled.”

Although the claim in West was for workmen’s compensation benefits, the court made it clear that the same rule would apply if the claim had been for damages.

We note, also, that the accident in West occurred during the existence of the community, and that the proposed settlement, if permitted by the court, would be made after the community was dissolved. The circumstances presented in the instant suit are slightly different, in that here the accident occurred while the injured defendant was single, and the settlement was effected after he married and while the second community was in existence. In our opinion, however, the ruling in West should be applied in the present suit, despite this difference in facts.

We ultimately conclude that in order to avoid the possibility of a serious injustice to one of the parties this case must be remanded. At the time the case was pleaded, tried and decided in the district court, the ■ Chambers case was controlling. Under Chambers, all of the settlement funds fell into Mr. Broussard’s separate estate, since his cause of action therefor occurred before the marriage. After this case was argued and submitted on appeal, on September 9, 1975, the Chambers case was overruled by West v. Ortego, supra. Under the new rule of West, the settlement funds must be apportioned to the separate estate of the husband and to the community in proportion to the damages suffered by each.

This change in the law raises an entirely new factual issue, i. e., the apportionment of damages between the separate estate of the husband and the community estate. Through no fault of the parties nor of their counsel, nor of the district judge, this issue was not considered in the trial court. A determination of this question of fact could materially affect the outcome of this case under the new law propounded in West.

We conclude this case should be remanded to the district court for such additional pleadings and for the introduction of such additional evidence as either party or the trial court may consider necessary for a decision under the new rule established in West. We have full discretion under LSA-C.C.P. Article 2164 to remand a case to prevent the possibility of a serious injustice.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for the filing of such additional pleadings and the introduction of such additional evidence by both parties as is necessary for a proper decision under the new rule established in West v. Ortego, supra, and for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed equally against the plaintiff and the defendant. The assessment of costs in the district court must await a final determination there.

Reversed and remanded.

HOOD, Judge

(concurring).

In my opinion, the pleadings heretofore filed and the evidence produced in the instant suit are adequate to fully and finally dispose of all issues presented, despite the change in the law effected by the decision rendered in West v. Ortego, 325 So.2d 242 (No. 56,232, Decided December 8, 1975). For that reason, I believe that nothing will be accomplished by remanding the case for additional pleadings and evidence, and that that action will constitute an unnecessary waste of time, effort and expense in disposing of the case.

I nevertheless have decided to yield to the opinion of the majority that the case be remanded, because it is apparent that a remand will be granted anyway, despite my differing views, and the remand does not compel the parties to incur the additional expense of producing more evidence. It merely gives them an opportunity to present additional evidence if they or the trial court consider such evidence to be necessary for a decision under the new rule.

I make it clear, however, that in agreeing to remand the case I do not suggest to either party or to the trial court that any additional pleadings or evidence are necessary for a full and final disposition of this case.


author: PER CURIAM.

text:
    Louise Maucele FAMULARO and Anna Maucele Bonneval v. AUTOMOBILE CLUB INSURANCE COMPANY.
    No. 7510.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Mary B. Petruccelli, Edgar N. Quillin, Arabi, for plaintiffs-appellees.
    Frank J. Varela, New Orleans, for defendant-appellant.
    ' Before GULOTTA, BOUTALL and BEER, JJ.
   PER CURIAM.

Based upon a primary review of the record in these proceedings, we issued an ex parte order to appellant, Automobile Club Insurance Company to show cause, by brief only, why the appeal should not be dismissed for lack of jurisdiction. Thereafter, in response to our order, counsel for Automobile Club Insurance Company did file an extensive brief. We also received a brief from counsel for appellees. Both have been carefully considered.

We have concluded that the issue which is presented to us for adjudication should properly have come before us in the form of an application to us to exercise our supervisory jurisdiction instead of by conventional appeal.

However, that is more a matter of' form than substance and judicial economy requires that, at any event, we deal with the issue that is raised regardless of the form by which it attracts our appellate scrutiny. Accordingly, we now treat the matter as though it were before us in the exercise of our supervisory jurisdiction:

In order to reach the conclusions noted above, it became necessary for us to closely examine the entire record in these proceedings so that we are now familiar with both the substantive and procedural issues existent in this litigation.

Having considered the entire record we reach the conclusion that the trial court did not so abuse its discretion as to require that we exercise our supervisory jurisdiction. The trial court gave consideration to the vigorous contentions of counsel' for both parties regarding the right to have this matter tried by jury. The interlocutory decree that has been rendered does not, in our view, form a basis for concluding that irreparable injury or damage will result therefrom. In so concluding we do not necessarily determine that such an interlocutory decree could not even be the cause of irreparable harm. Indeed, there may be instances where such a conclusion might be required. But in this particular case we do not find an abuse of the wide latitude of discretion which is available to the trial court in resolving interlocutory issues. Accordingly, this appeal, being treated in the same manner as though it had come before us seeking the exercise of our supervisory jurisdiction, is dismissed. Each party is to bear its own costs.

Appeal dismissed.


author: SCHOTT, Judge.

text:
    Ronald A. PRATTINI et al. v. Lawrence WHORTON, Jr. and New Orleans Public Service, Inc.
    No. 7164.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      A. R. Christovich, Sr., and A. R. Chris-tovich, Jr., New Orleans, for Public Service, Inc., defendant-appellant.
    Tonry, Mumphrey & Dragon, Richard A. Tonry, Chalmette, for plaintiffs-appellees.
    Blake G. Arata, City Atty. and Wayne G. Cresap, Asst. City Atty., for defendant-appellant City of New Orleans.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

At about 8:00 PM on December 16, 1971, Mrs. Helen Prattini and her daughter, Rhonda, were in the family automobile stopped in a line of traffic on Canal Street, facing north just beyond the intersection with Royal Street, when their automobile was struck by a bus owned by New Orleans Public Service, Inc. and operated by its employee, Lawrence Whorton, Jr. This suit was filed for damages sustained by the Prattinis in this accident.

When the bus reached Canal Street from Royal, Whorton was to make a right turn on Canal Street but was confronted by much traffic congestion in his path, including the plaintiff’s automobile. The intersection was controlled by an electric semaphore signal, but there was also on duty directing traffic a policeman of the New Orleans Police Department. While Whorton was stopped, waiting for traffic to clear and the light to change, this policeman directed him to make the turn. He began to do so and after making a wide turn, utilizing the left lane of Canal Street facing the plaintiff’s automobile to the right of his bus, he again stopped fearing that the bus might collide with plaintiff’s automobile if he continued with his turn. Nevertheless the police officer repeatedly directed him to proceed notwithstanding Whorton’s motion to the policeman that plaintiff’s car was in his path. Whorton finally obeyed what he termed the policeman’s “hard demand” for him to move the bus and the bus ran into plaintiff’s automobile with the left rear of the automobile being struck by the right side of the bus about two feet from its front.

Plaintiffs’ original petition, filed only against the bus driver and owner, had been amended to make the City of New Orleans a defendant based upon the negligence of the policeman. The trial judge awarded judgment to plaintiffs against both New Orleans Public Service and the City and both of these defendants have appealed.

Whorton saw or should have seen that plaintiffs’ automobile was in his path. We know of no authority to support NOP-SI’s contention that it was relieved of liability for plaintiffs’ damages under these circumstances because Whorton was told by the policeman to move. The cases relied upon by NOPSI, Sutton v. Travelers Ins. Co., 167 So.2d 517 (La.App. 4th Cir. 1964) and Marquis v. Hartford Accident & Indemnity Co., 40 So.2d 534 (La.App. Orl. 1949), are inapposite. Neither case involved the liability of a defendant who ran into a plaintiff who was seen or should have been seen by defendant on the excuse that he was directed to do so by the policeman. We subscribe to the following approach on this point in Joynes v. Toye Bros. Auto & Taxicab Co., 11 La.App. 124, 119 So. 446 (Orl.1928):

“It is evident that the accident happened through the negligence of the cab’s chauffeur. Whether he was ordered by the traffic officer to back, or whether he backed up spontaneously, is immaterial. If he did either negligently he is liable. He cannot lay the blame, which at least he shared, upon the officer. No one can set up as an excuse that he was told to commit an illegal act. . . . ”

As to the City of New Orleans, Whor-ton’s testimony was supported by that of a disinterested witness to the effect that this policeman completely disregarded the fact that plaintiff’s automobile would be struck by the bus and nevertheless insisted that the bus driver proceeded with the inevitable result that the collision occurred. To determine the City’s liability we apply the cause-in-fact, duty-risk, and negligence formula of Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821.

As to cause-in-fact, we note that but for the policeman’s overauthoritative and unreasonable behavior the collision would not have occurred. Plaintiff’s damage was caused by a combination of Whorton’s unreasonable conduct in the operation of the bus and the police officer’s repeated, emphatic directions while exercising authority over motorists on city streets. In the absence of the policeman’s directions Whor-ton apparently would not have been goaded into proceeding against his better judgment. Although the accident would not have occurred if Whorton had not acted imprudently in following directions, the policeman must be accountable to some extent for the consequences. Thus, his conduct was a cause-in-fact of the accident.

As to duty-risk, the policeman occupied an official position and was under a responsibility to direct traffic. This duty required him to maintain due regard for the safety of all who would be affected by the discharge of such responsibility. An obvious risk created by a breach of this latter duty would be that damage might be caused to motorists if his directions were improperly or imprudently given. Thus, our policeman’s breach of a duty created the very risk that the duty was designed to prevent, namely, injury to innocent motorists because of improper or imprudent behavior in directing traffic.

As to negligence, the policeman unreasonably exercised his authority and failed to see and consider the position of plaintiffs’ automobile before he demanded that Whorton proceed in the bus. A reasonably prudent person would not have acted this way under the circumstances.

In its brief to this Court the City has devoted much argument to demonstrate the liability of Public Service but has not cited any authority which would indicate an absence of liability on its own part based upon the concurrent negligence of its employee, the policeman, with the negligence of the bus driver. Since we have concluded that the policeman was liable it follows that the City is vicariously liable along with Public Service.

Püblic Service has also complained that the awards of $3,000 to Mrs. Prattini for personal injury and pain and suffering and of $11,000 to Ronald Prattini, as administrator of his minor daughter Rhonda for a knee injury with attendant scars and disfigurement, pain and suffering are excessive.

On the day after the accident Mrs. Prattini was examined by Dr. Eugene J. Dabezies, an orthopedic surgeon, who diagnosed her injury to be a moderately severe acute cervical strain for which he prescribed muscle relaxants and analgesics. He further examined her on January 3, 13 and 24 and March 24, 1972. He found an absence of spasm as of January 24 but continued tenderness of the right trapezius muscle and she complained to him of headaches throughout this period. On March 2/, 1973, she returned to his office with the complaint of headaches but at that time there was no spasm, no tenderness and a full range of motion. The doctor had no explanation for the headaches at this time. Mrs. Prattini testified that she suffered with neck pains for three months and headaches for more than a year and that the neck pain prevented her from performing her household duties. We find no abuse of the trial court’s discretion in his award of $3,000 for these injuries.

Rhonda Prattini, 13 years of age at the time of the accident, struck her knee on the dashboard as a result of the collision. On the following day she too was examined by Dr. Dabezies who found the knee swollen and tender in an area where the girl had a pre-existing prominence of the tibial tubercle. He prescribed a mild analgesic and restricted her activities because he believed there was some hemorrhage from the bruise which might generate extra bone formation within the tendon and become quite painful. On January 3 he again examined the girl and because of her complaints of pain and tenderness he found on examination he prescribed a drug intended to retard or stop the inflamatory process in her knee, and again cautioned her to restrict her activities. When he found that she was still suffering with this problem on January 24 he continued her on medication and took her off of all athletic activity. On March 24 he found that she still had tenderness and prescribed limited use of the knee. The girl was seen by Dr. G. Gernon Brown and by Dr. Rufus H. Allredge on May IS and August 30, 1972, respectively, and on each occasion she was found to have pain in the knee with the expectation that such pain would subside in time. Dr. Dabezies again saw Rhonda on November S, 1974, when she was still complaining of pain, particularly on kneeling when the pain was severe. X-ray examination revealed the presence of extra bone formation in the knee which prompted the doctor to recommend surgery for the removal of the extra bone. She was hospitalized for four days in December, 1974, when the surgery was accomplished. She was put on crutches until January 14, and she was left with a two inch permanent scar on the knee together with a 5% to 10% residual disability. Dr. Dabezies allowed that in the absence of a trauma the preexisting condition of Rhonda’s knee could have led to the formation of the extra bony fragment in her tendon and eventual pain requiring surgical intervention, but he expressed the firm opinion that these complications were probably caused by the trauma in the accident. We cannot say that the trial judge abused his discretion in setting the award of $11,000 to Rhonda for her injury.

Accordingly, the judgment appealed from is affirmed at defendants’ cost.

Affirmed.