author: DENNIS, Justice.

text:
    Aljane Domingue BROUSSARD v. Dudley BROUSSARD.
    Nos. 57807, 57811.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Homer Ed Barousse, Jr., Edwards, Ste-fanski & Barousse, Crowley, for plaintiff-applicant in No. 57807 and for plaintiff-respondent in No. 57811.
    Thomas Robert Shelton, Lafayette, for defendant-applicant in No. 57811 and for defendant-respondent in No. 57807.
   DENNIS, Justice.

This case raises the question of whether a husband’s recovery during marriage of personal injury damages resulting from a premarital accident is his separate property. Dudley Broussard asserted a claim under the Jones Act, 46 U.S.C. 688, for an injury he received on October 20, 1967. While the matter was pending he and Aljane Do-mingue were married on July 4, 1969. Mr. Broussard settled his claim for $51,000 on April 19, 1971, and on the same day he purchased from a bank two “Certificates of Deposit” issued in both their names for the sum of $22,500 each. The remainder of the settlement money was used to pay family bills.

About six months later, in order to obtain a higher rate of interest, Mr. and Mrs. Broussard cashed in the certificates of deposit and purchased from a savings and loan association two $20,000 savings certificates representing “200 shares” in the association in the names of Dudley L. Broussard and Aljane D. Broussard.

By judgment dated June 26, 1973, Mr. Broussard obtained a divorce from Mrs. Broussard. Subsequently, Mrs. Broussard instituted this action for partition of the community. A notary public appointed to inventory the assets of the community listed as community property the two savings certificates issued by the savings and loan association. Mr. Broussard objected to the inventory, claiming that the savings certificates belong to his separate estate.

The trial court ruled in Mr. Broussard’s favor, relying upon Chambers v. Chambers, 259 La. 246, 249 So.2d 896, 907 (1971), which indicated that “the time the husband’s cause of action arises determines the community or separate nature of the cause of action and the community or separate nature of the funds obtained when the suits on the cause of action were settled.” Because Mr. Broussard’s cause of action arose prior to his 1969 marriage, the court concluded that it was property brought into the marriage and that the settlement money was therefore separate in nature, citing Louisiana Code of Civil Procedure Article 426 and Louisiana Civil Code Article 2334. Aljane Broussard appealed to the Third Circuit Court of Appeal.

While the appeal was pending this Court overruled Chambers in West v. Ortego, 325 So.2d 242 (La.1975). The court of appeal remanded the instant case to the trial court for apportionment of damages under the principles of West. We granted writs to determine if a remand of this case is required.

In West a judicially separated wife claimed half of the workmen’s compensation settlement received by her husband after dissolution of the community for an accident he suffered during the existence of the community. We held, however, that the workmen’s compensation benefits were the husband’s separate property to the extent they were paid to compensate him for post dissolution loss of earnings. This result was achieved with difficulty because the relevant provisions of the civil code can be read to imply a contrary solution.

Louisiana Civil Code Article 2334, in pertinent part, provides:

“The property of married persons is divided into separate and common property.
“Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.
u * * *
“Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
“Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. * * * ”

Louisiana Civil Code Article 2402 provides:

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.’ ”

The West majority recognized that the negative implication of these codal provisions is that the proceeds from enforcement or settlement of a husband’s action for damages resulting from an accident sustained during cohabitation with his wife are community property. Nevertheless, to avoid unfairly depriving the husband of funds destined to recompense for his diminished earning capacity from which he would suffer perhaps many years after dissolution of the community, and to prevent an unjust enrichment of the wife with gains having no relationship to her industry and labor or enhancement of the community, this Court concluded that the inference which may be drawn from the code articles should not govern. We reasoned that monies acquired after dissolution of the marriage from settlement of the cause of action might be viewed as “a species of thing different from a cause of action,” which would consequently fall into the separate estate by virtue of the time of its receipt. 325 So.2d at 248. In the absence of express statutory language to the contrary, we chose to decide the case in accordance with the underlying principles upon which our community system is based, natural law and reason. See, West v. Ortego, id. at 248; La.C.C. art. 21.

In the instant case, because Brous-sard’s settlement included compensation for loss of future earnings, the court of appeal reasoned that West requires allocation to the community of that portion of the funds representing compensation for his loss of earning capacity during the time he lived in matrimony with Aljane Broussard. The logic of this extension of the West holding cannot be denied, and perhaps should be considered in revision of the Civil Code justifiably recommended by scholars to correct the problems encountered in the West case and others perhaps created thereby. See, Pascal, Updating Louisiana’s Community of Gains, 49 Tul.L.Rev. 555 (1975); Pascal, Work of Appellate Courts, 32 La.L.Rev. 219 (1972); Note, 36 La.L.Rev. 1029 (1976); Compare, W. Reppy, Jr. & W. DeFuniak, Community Property in the United States, 170 et seq. (1975); W. DeFuniak & M. Vaughn, Principles of Community Property, § 82 (2d ed. 1971).

The present litigation, however, does not call for judicial improvisation, as did the facts in West and Chambers, because here the code is not so silent nor the demands of equity so strong. Separate property is that which either party brings into the marriage, La.C.C. art. 2334, and it is not disputed that Broussard brought his Jones Act cause of action into the marriage. Louisiana Code of Civil Procedure Article 426 establishes that a cause of action is property, and the more traditional view seems to be that the enforcement or settlement of a cause does not change its character as separate or community property. See, W. DeFuniak & M. Vaughn, Principles of Community Property, at 199 and cases cited at fn. 25; See, Note, 36 La.L.Rev. at 1036, fn. 41. Of course, the majority opinion in West does suggest a departure from this concept, but only because it was found there to be at cross purposes with the underlying principles of the codal community system. Here the traditional view, the codal principles and the force of equity are in harmony. None of Broussard’s personal injury settlement money can be said to constitute “the produce of the reciprocal industry and labor of both husband and wife,” La.C.C. art. 2402, because at the time of the accident Mrs. Broussard had contributed nothing to the non-existent community and had no influence upon her future husband’s projected earning capacity. Since the code classifies as separate property actions for damages resulting from injuries to a husband, living separate from his wife by reason of her fault, La.C.C. art. 2334, it seems clearly intended that an unmarried man would be entitled also to treat such an action for damages as his separate property.

Accordingly, the holding in West is inap-posite here because it was founded upon equitable considerations which are pertinent only where there is either no express law or inferences to be drawn from it are in conflict with the fundamental principles of the community property system. An action for damages resulting from offenses and quasi offenses suffered by a single man is clearly his separate property. La.C.C.P. art. 426; La.C.C. art. 2334. This proposition presents no threat to or conflict with the values protected by the community property system. Consequently, there is no basis for casting the recovery of a person who is injured while unmarried into a later established community, because the dichotomy which West recognized between an action for damages and the recovery is rooted in exigencies which do not bear upon this case.

Mrs. Broussard contends, however, that regardless of the original character of the settlement money, when her husband purchased certificates of deposit and later savings certificates in both their names, he donated the money to the community. In essence, she claims that the purchase in their names was a constructive delivery to her of one-half the cash, sufficient to effect a donation of one-half ownership in the funds. Alternatively, she argues that the purchase should be construed as a donation, regardless of the failure to comply with the formalities of law, because it qualifies as such under our decision in Primeaux v. Libersat, 322 So.2d 147 (La.1975). We cannot agree.

A donation inter vivos is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it. La.C.C. art. 1468. Louisiana Civil Code Articles 1536,1538 and 1539 regulate the donation of incorporeals and movable property:

“Art. 1536. An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”
“Art. 1538. A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed.
“Such an act ought to contain a detailed estimate of the effects given.”
“Art. 1539. The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

There was no actual delivery of the cash to Mrs. Broussard. The purchases of certificates in the names of both spouses, without an actual withdrawal and delivery of funds to Mrs. Broussard, did not effect a manual gift or a donation to her. Rather, the purchases were analogous to a deposit in a joint savings account, which in and of itself, will not transfer ownership of the funds. Succession of Dykes, 258 So.2d 606 (La.App. 1st Cir. 1972); Dawson v. Capital Bank & Trust Co. of Baton Rouge, 261 So.2d 727 (La.App. 1st Cir. 1972). See also, Basco v. Central Bank & Trust Co., 231 So.2d 425 (La.App. 3d Cir. 1970); Owens v. Owens, 259 So.2d 454 (La.App. 3d Cir. 1972). Furthermore, an account on deposit is an incorporeal right, La.C.C. arts. 460, 474, which may only be donated by a notarial act in compliance with Article 1536. Vercher v. Roy, 171 La. 524, 131 So. 658 (1930); Northcott v. Livingood, 10 So.2d 401 (La.App. 2d Cir. 1942); Basco v. Central Bank & Trust Co., supra; Owens v. Owens, supra.

We recently held in Prime aux v. Libersat, supra, that, under the Uniform Stock Transfer Act, La.R.S. 12:621^43, no notarial act under Civil Code Article 1536 was required in order to validate as a donation the father’s furnishing of the consideration to a corporation for it to issue its stock to his son. We buttressed that opinion with a dictum discussion of French commentators who have noted that the French Civil Code Article 931 (the counterpart of our Article 1536) “requires the notarial form only if a special instrument is drafted to declare the donation.” 3 M. Planiol, Treatise on the Civil Law (La.St.L. Inst, transl. 1959), No. 2533.

Planiol states that “it is often possible to make a donation, that means to cause someone to acquire a property value gratuitously, without drafting such a special instrument.” 3 M. Planiol, Treatise on the Civil Law (La.St.L. Inst, transí. 1959), No. 2533. For example:

“In cases of purchase in the name of another person, the object of the donation is not the acquired property, but the cash paid for it. It is an equivalent of an indirect manual gift, relieving the nominal purchaser from the payment of the price. One could say that this is a payment made cum animo donandi.” Pla-niol, No. 2545.

Mrs. Broussard’s reliance upon the holding and dicta in Prime aux is misplaced for several reasons. Although past decisions have held that the Uniform Stock Transfer Act is applicable to savings and loan association stock, Succession of McGuire, 151 La. 514, 92 So. 40 (1922); Menard v. Muhs, 196 So.2d 536 (La.App. 4th Cir. 1967); LeBlanc v. Volker, 198 So. 398 (La.Orl.App.1940); this conclusion now appears doubtful because of the specific provisions governing transfers of shares or savings accounts enacted by Act No. 234 of 1970. See, La.R.S. 6:744. Furthermore, in Primeaux, we accepted as correct the trial court’s determination that it was the father’s donative intent to have the stock in the family-held corporations issued to the son as his separate property. Thus, even in a case where compliance with the stock transfer legislation may substitute for the codal formalities of a donation, the substantive requirements of a divestment and do-native intent must be fulfilled in order to effect a valid donation. In this the French writers concur, as Planiol observes:

“All informal donation, no matter what type (manual gifts, indirect donations, disguised donations), are subject to the basic rules governing ordinary donations, especially with regard to capability, suc-cessory collation, reduction in case of interference with the reserved share, etc. They are merely exempted from the external formalities imposed on inter vivos donations. But because they appear under a different form, a party who wants to apply to them the rules governing donations must first establish the actual character of the transaction. Such proof can as a rule, be made by all types of evidence.” Planiol, No. 2555.

We find no error in the trial court’s view that the evidence does not disclose an intention by Mr. Broussard to make a donation to Mrs. Broussard. He testified at trial that his sole reason for placing the certificates of deposit and savings certificates in the names of both parties was so that the funds would be insured up to $40,000. He was informed by both depositaries that an individual’s account would be federally insured up to $20,000, but that a joint deposit would be doubly protected. The certificates were purchased in the names of both spouses and Mr. Broussard did not divest himself of the right to withdraw the funds. Under these circumstances, we cannot infer an intent to donate from a transaction which did not comply with the codal requirements for a donation.

We agree with the trial court, however, that while the savings certificates belong to the separate estate of Mr. Brous-sard, any interest accrued on the accounts during the existence of the community is community property. La.C.C. art. 2402.

The decision of the court of appeal is reversed, and the judgment of the trial court is reinstated.


source: Caselaw Access Project

author: TATE, Justice. SUMMERS, Justice

license: Public Domain

text:
    John L. HOPPE et al., Plaintiffs-Appellants-Relators, v. CITY OF SHREVEPORT et al., Defendants-Appellees-Respondents.
    No. 57849.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Hugh T. Ward, Peters, Ward & Miller, Shreveport, for plaintiff-applicant.
    John Gallagher, Roland J. Achee, Neil Dixon, James R. Malsch, Shreveport, for defendants-respondents.
   TATE, Justice.

The basic issue is whether, in a civil service system based upon promotion on the basis of seniority and examination, employees may nevertheless be appointed to newly created supervisory positions without examination and despite lack of seniority.

The court of appeal held, 327 So.2d 548 (La.App.2d Cir. 1976), that by virtue of Art. 14, Section 15.1, subsection 16, La. Constitution of 1921, seniority and examination requirements did not apply to appointments to newly created positions, relying upon In re Kelly, 224 La. 574, 70 So.2d 130 (1954). We granted certiorari, 332 So.2d 217 (1976), because we doubted the correctness of that conclusion.

I.

This litigation arises under the municipal fire and police civil service system. It was first created by Act 102 of 1944, La.R.S. 33:2471-508 (1950), and later constitutional-ized almost verbatim as Section 15.1 (subsections 1 through 39) of Article XIV, Louisiana Constitution of 1921 (pursuant to constitutional amendment submitted by Act 631 of 1956).

These provisions were continued as statutory law by the 1974 constitution (Article 10, Section 18), which created and established the municipal fire and police civil service system, Section 16, and provided that, Section 17, “Permanent appointments and promotions in municipal fire and police civil service shall be made only after certification by the applicable municipal fire and police civil service board under a general system based upon merit, efficiency, fitness, and length of service” as provided by the previous constitutional provision, Article XIV, Section 15.1, Louisiana Constitution of 1921.

II.

The facts show, insofar as pertinent to our decision:

In April, 1972, the elected Public Safety Commissioner of the City of Shreveport designated three majors (the 1st, 3d, and 4th ranking) as assistant police chiefs. These were new classifications for the Shreveport Police Department.

Subsequently, in November 1972 (after protests against the illegality of these appointments), the Municipal Fire and Police Civil Service Board formally created new classifications (one class of Assistant Chief, two positions, and one class of Assistant Chief for Administration, one position). It then certified to these positions the three appointees who were filling the positions, without examination and without regard to seniority.

Several plaintiffs then filed suit to vacate these appointments as illegal and to require testing, certification, and appointment of employees to these new positions in accordance with Article 14, Section 15.1. These plaintiffs included the second-ranking major, who had been passed over by the appointments.

As the court of appeal correctly held, the municipal fire and police civil service system created by that provision “has a basic premise that positions within the classified service should be filled on the basis of testing and seniority, i. e., when a group of candidates have demonstrated their qualification for a particular position by passing a test, the position should be offered first to the eligible candidate with the greatest seniority.” 327 So.2d 549.

III.

The civil service board and the previous courts held that the blanketing in of the incumbents previously appointed to the new positions is authorized by Subsection 16 of Article 14, Section 15.1. This provision in part provides: “When any position is first allocated hereunder, . . . the employee [in] the position may continue to serve therein, with the status ... he would have had . . . if he had been originally appointed by examination and certification * *

The language quoted is susceptible to the interpretation followed. Nevertheless, we reach a different interpretation: The provision should be read in context with Article XIV, Section 15.1 as a whole and with the preceding Subsections 13, 14, and 15, as well as in its context within Subsection 16 (quoted in full in footnote 1).

Section 15.1 provides that, after civil-service boards adopt a classification plan (Subsection 13, see footnote 2) and allocate each position in the classified service to its appropriate class within the classification plan (Subsections 14 and 15, see footnote 2), then incumbents serving in these positions (when allocated to their appropriate class) will continue to serve in them (Subsection 16, see footnote 1). Furthermore, whenever the duties of a position are so changed that the position in effect belongs within a different class than that to which originally allocated, the change operates to abolish the position and to create a new position of a different class (Subsection 14, second paragraph, see footnote 2), to which it is reallocated (Subsection 16, second paragraph, see footnotes 1 and 4), without loss of status by the incumbent.

In context, Subsection 16 thus provides that an employee already serving in a position (either at the time the civil-service system comes into effect, or by virtue of a permanent appointment to it under the civil-service system) shall continue to serve in it, after it is allocated or reallocated, as if he had originally been appointed to the newly classified position after proper examination and certification to it. In context, this continuance of civil-service status as a permanent appointment to the newly classified position, without re-examination or re-certification by the board, occurs only in connection with (1) the allocation under Subsections 13 and 14 of pre-existing positions initially to their proper class, or (2) the reallocation of pre-existing positions to their proper class.

To summarize: In the context of its statutory setting, Subsection 16 does not permit the creation of entirely new positions in an existing civil service system, and then filling them by political appointment without examination and without regard to seniority in service. Subsection 16, in the context of the preceding Subsections 13-15, merely permits the “allocation” or “reallocation” of pre-existing permanent positions without examination or certification; it does not authorize the creation of new positions to be available for political appointment without compliance with civil-service requirements.

Thus, the apparent intent of Subsection 16 is (1) to blanket in all employees at the time a civil service system becomes effective (when its pre-existing positions are first allocated to a class), and (2) thereafter, similarly, to prevent loss of status to those permanent employees if the positions to which they have previously been permanently appointed are allocated or reallocated.

We are re-enforced in this interpretation by considering the provisions of Section 15.1 as a whole. Stringent provisions limit filling vacancies (Subsection 17), demotions (18), transfers (19), layoffs and re-instatements (20, 29), abolition of positions (28), testing for eligibility (22), admission to promotional or competitive tests (23), and certification and appointment (24). The object of these provisions is both to assure initial appointment on the basis of examinations, and thereafter to assure promotions to classified permanent employees on the basis of both seniority and examinations (including confirmation by a working test (Subsection 25) following initial certification to a classified position).

Likewise, Subsection 26 stringently limits temporary or provisional appointments in duration and prevents such appointees from acquiring permanent status. This further manifests the statutory intent that permanent status be acquired only through examination, and that promotion to another classified position be permitted only in accordance with the statutory scheme upon certification on the basis of examination plus seniority qualifications.

The civil service system created by Section 15.1 is based upon permanent appointment or promotion only after certification for eligibility based on testing and length of service. In context, Subsection 16 does not provide a method of evading this basis for permanent appointments or promotions by permitting blanketing in political appointees to newly-created positions; it simply protects permanent employees in pre-exist-ing positions from adverse loss of status when their positions are initially allocated or are subsequently reallocated to a classification within the civil service system.

We conclude, therefore, that when (as here) an entirely new position is created and then initially allocated within the classified service, no permanent appointment may be made to it except in accordance with the examination and certification procedures set forth by Section 15.1.

The present appointments were made (without examination or certification) to then non-existing positions, i. e., positions not included within the classifications of the civil-service system at the time of the appointments. For the reasons noted, these appointments did not confer upon these appointees any status to continue as permanent employees in these positions when, thereafter, the positions were formally created and allocated within the police civil service system.

Accordingly, the present appointments to these three new positions must be vacated. Permanent appointments to them may be made only upon certification after examination in accordance with the procedures provided by Section 15.1.

IV.

The defendants argue, however, that this court in In re Kelly, 224 La. 574, 70 So.2d 130 (1954), has interpreted Subsection 16 so as to permit the blanketing in, without examination or certification, of appointees who had previously received temporary appointments similar to the present. The language and reasoning of the decision is, indeed, supportive of the defendants’ contentions.

However, under the facts of that case, with regard to the new positions, even prior to the temporary appointments, “the services attendant to those positions were actually performed by various officers (the respondents herein)”, despite their formal classification in other categories. 224 La. 574, 70 So.2d 131. In upholding their blanketing in, we held, 70 So.2d 133: “The basis for the exceptions in the municipal fire and police civil service law is that an officer, who is satisfactorily performing the duties of a [pre-existing] position, which should be but is not yet [properly] classified, needs no examination to determine his qualifications for the job.”

In the present case, unlike Kelly, the appointee officers were “appointed” by the political authorities to entirely new positions, with broadened responsibility and' greater pay, than that which, prior to the appointments, they had been performing by virtue of their permanent appointment to a previously existing classification of the civil service system. Tr. 59-65. In the present case, we are concerned with creation of an entirely new supervisory position, not as in Kelly with only a proper classification or allocation of a permanent position performing the same services as now properly allocated.

Kelly may thus be distinguished insofar as applicable to the present ease. Arguably, it is also distinguishable under its facts as involving only a delayed completion of an initial classification plan, rather than (as in the present instance) a re-organization of a previously adopted classification plan and the creation of new administrative provisions in connection therewith.

V.

The remaining arguments of some of the plaintiffs-relators deal with the alleged lack of proper notice before creation of the new classifications, and with the alleged lack of hearing given one of them (Lt. Templin). For the reasons assigned by the court of appeal, 327 So.2d 551, we find no merit to them.

Decree

Accordingly, we affirm the determination of the court of appeal that the three new positions were properly created; but we reverse its decree insofar as it held that the three officers temporarily filling these positions prior to their creation could continue to serve in them permanently without examination or certification as required by Article XIV, Section 15.1. These certifications or “allocations” by the defendant board are vacated, and the defendants are ordered to proceed with testing, certification, and permanent appointment of classified employees to these positions in accordance with law and consistent with the views expressed by this decision.

AFFIRMED IN PART; REVERSED IN PART.

SUMMERS, J., dissents for reasons assigned.

DIXON, J., recused.

SUMMERS, Justice

(dissenting).

John L. Hoppe, John F. Templin and Shreveport Police Local Union No. 646, SEIU-NUPO, AFL-CIO, an unincorporated labor association of Shreveport, brought this suit against the City of Shreveport, Public Safety Commissioner George W. D’Artois and the Municipal Fire and Police Civil Service Board of Shreveport.

Insofar as pertinent here, the Municipal Fire and Police Civil Service Law, Section 15.1 of Article XIV of the Constitution of 1921, is part of the government of the City of Shreveport. The law provides a system of civil service for/municipalities with populations of 13,000 ti> 250,000. The constitutional provision in its entirety has been retained and continued in force and effect as statutes by Section 18 of Article X of the Constitution of 1974.

In their petition plaintiffs complain that during the first part of April 1972 Commissioner D’Artois promoted three police majors to Assistant Police Chief. Hoppe, the second senior major in the Police Department, was not included in these promotions. Until the creation of the classification of “assistant police chief” the rank of major was the highest in the classified service of the Shreveport Police Department. In addition to Hoppe’s opposition, the action was protested by plaintiff Templin on behalf of the Union. However, in September 1972 the Board initiated the procedure to create the classification of Assistant Police Chief. Notwithstanding these objections, the Board created the classification and proceeded to confirm the three officers who had been temporarily appointed by the Commissioner, thereby depriving Hoppe of the preference to appointment to which his seniority entitled him under the civil service law.

Plaintiffs asked for recission of the appointments of the officers confirmed by the Board and for an injunction to prevent implementation of these positions. At the same time, plaintiffs appealed to the district court for review of the actions taken and decisions rendered by the Board. The cases were consolidated. After trial, the district court dismissed plaintiffs’ suit for injunction and also affirmed the Board’s action. On appeal the Second Circuit affirmed. 327 So.2d 548. Certiorari was granted on plaintiffs’ application. 332 So.2d 217.

Because of the growth of the police department, the city’s auditor recommended a broader base for carrying out the Commissioner’s responsibilities. Additional positions of Assistant Chief of Police under a new classification were suggested. Accordingly, in April 1972 the Commissioner temporarily appointed Majors McDowell, Lani-gan and Cash to positions of Assistant Chief because they were then performing the duties of that position and bearing the commensurate responsibility. At the same time, the Commissioner requested that the Board create the new classification of Assistant Chief of Police and asked that McDowell, Lanigan and Cash be confirmed into these positions. In the meantime, these officers received an increase in pay and the titles to those positions under the temporary appointments.

After the Commissioner’s request, on April 23, 1972 Templin wrote to the Board opposing the appointments and requested a hearing on the proposed classifications. His concern was that these appointments, made without regard to Hoppe’s seniority, deprived Hoppe of an appointment to which he was entitled. Templin also believed that these actions had an effect upon the status of all police officers. Moreover, he claimed the appointments were made contrary to the procedure prescribed by the civil service law. La.Const. art. XIV, § 15.1, para. 24(c).

Based upon the Commissioner’s request, the Board in Shreveport requested that the State Examiner in Baton Rouge prepare the classification specifications. These were received by the Board in Shreveport on April 27, 1972, and a Board meeting was called for the next week. A quorum of the Board could not be assembled, however, until June 7. The classification specifications were discussed in detail at that time. Delays in processing the Commissioner’s request were encountered, because board members had to be replaced by election. More delays were experienced because of a contest in the election, coupled with the fact that it was the concensus of the available Board members that the full membership should consider the request.

Finally, the full Board met on September 14, at which time Templin was present and was heard. At this meeting the classification specifications were adopted by the Board and posted the next day for thirty days with notice of a public hearing to be held on October 18, 1972. At the October 18 hearings alternate classifications were proposed by interested participants. These were taken under advisement by the Board. Temp-lin was again present and participated in this hearing. The hearing was adjourned, and the matter taken under advisement. The Board’s final meeting on the matter was held on November 3, 1972. At this meeting the Board announced that two classifications were adopted, one for Assistant Chief for Administration and one for Assistant Chief. McDowell, Lanigan and Cash were confirmed in these positions, McDowell and Lanigan as Assistant Chiefs and Cash as Assistant Chief for Administration. Templin was not notified of this last meeting and did not attend. The adopted classification was then given broad circulation among the police and included in the individual officers’ manuals.

Plaintiffs’ challenge to the action of the Board in allocating these three positions and confirming Majors McDowell, Lanigan and Cash, and the Board’s alleged failure to comply with the procedures prescribed in adopting those classifications is not well-founded.

I.

The central issue involves an interpretation of Section 15.1(16) of Article XIV of the Constitution of 1921, which reads:

“Every person employed in the municipal fire and police services for a continuous period of at least six calendar months immediately preceding the date that this Section takes effect in the municipality, who was regularly and permanently appointed to a position coming under the classified service, shall be inducted into and bound under the classified service, the provisions of this Section, and the rules adopted hereunder.
“When any position is first allocated hereunder, or is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class, the employee and [sic, in] the position may continue to serve therein, with the status and all the rights and privileges he would have had under this Section if he had been originally appointed by examination and certification hereunder to a position of the class to which the position has been allocated or reallocated. Such employee however may be transferred without further tests of fitness or certification to any position of the class to which the position was previously allocated while held by the employee.
“Any employee who feels himself aggrieved because of any allocation or change in classification affecting his position shall, upon his request, be heard thereon by the board; and the board shall hear and decide the complaint in any manner deemed proper.” (emphasis added).

The emphasized portion of the second paragraph quoted above provides that when any position is first allocated the employee in that position may continue to serve in that position, with the status and all the rights and privileges he would have had under the Municipal Fire and Police Civil Service Law if he had been originally appointed by examination or certification to a position of the class to which the position has been allocated or reallocated. This much is a plain statement of the rule governing this case. It remains to be determined whether the three appointees, McDowell, Lanigan and Cash, were, as the foregoing provision requires, “in the position” when the positions were “first allocated”.

The order in which the events occurred makes the first allocation effective November 3, 1972, the date the Board approved the classifications and confirmed the appointees in the positions of Assistant Chief for Administration and Assistant Chief.

The only evidence bearing upon the duties and responsibilities of McDowell, Lanigan and Cash, at the time of their appointment and subsequent confirmation when the positions were first allocated on November 3, 1972, is the testimony of the Commissioner. He said that Major McDowell had been in charge of Special Services for ten years preceding his appointment on April 15, 1972. A broad range of duties were assigned to him including custody and supervision of records, administrative duties connected with purchases, and other administrative duties concerning the Department of Public Safety, not limited to the Police Department. In that capacity he had authority to command uniformed policemen when needed for parades and other functions involving a large concentration of people. He was also assigned the task of overseeing personnel and police training.

Lanigan had, for many years, been regarded by the police and the public as the supervisor of all major investigations of crime. He was regarded as a very capable investigator and especially qualified in this field.

Cash, as Assistant Chief for Administration, had been assigned for a long time to those operations of the Department involving payroll records, purchases for the garage, jail and the general administrative requirements of fiscal control. The duties assigned to McDowell, Lanigan and Cash were of a specialized nature which other policemen were not qualified to perform. Plaintiff Hoppe, on the other hand, had never performed duties or been assigned responsibilities even remotely related to those of McDowell, Lanigan and Cash.

The Commissioner testified that the practice adopted in this case of temporary appointments and subsequent confirmation after Board approval and allocation of the positions was the same employed previously for Superintendent of Jails and the Assistant Superintendent of Jails.

After the classifications of the positions were approved by the Board, a new table of organization was established. Thereby the duties of the appointees were specifically set out, even though they continued to perform the duties they had performed prior to their confirmation. The table of organization detailing duties and responsibilities of the employees holding these positions was principally designed to make those duties and responsibilities official. While in some instances responsibilities of the appointees may have been broader under the new table of organization, the differences were inconsequential. After confirmation, they continued to discharge most of the duties and responsibilities assigned to them prior to their confirmation.

, On these facts the evidence preponderates that the appointees were “in the positions” when the positions were first allocated. As the trial judge found, “Those changes made in the duties actually performed were not actually new duties, but were by way of refinements in job descriptions of the classifications of the positions initially submitted, these refinements being made made after suggestions by the police officers attending the Board meetings.” The Court of Appeal agreed. On these findings, these appointees are entitled to serve as if they had been originally appointed by examination and certification. Hoppe cannot complain that he was denied seniority rights. Section 15.1(16) does not consider seniority relevant under these facts.

An identical situation was involved in In Re Kelly, 224 La. 574, 70 So.2d 130 (1954), where the Court interpreted La.Rev.Stat. 33:2486, which was later incorporated verbatim into the Constitution by an amendment in 1952, thereby becoming the provision considered in the instant case. In In Re Kelly the Court recognized the only issue on the merits to be whether the City of Monroe, as the appointing authority, and the Civil Service Board were vested with power to allocate and induct the respondents into positions which had not been theretofore allocated as part of the classification plan.

In deciding the question the Court held: “A careful consideration of the entire statute and the constitutional provisions respecting civil service satisfies us that the proposition advanced by relators is not well founded and that the Civil Service Board and the trial judge were correct in ruling that the respondents were entitled to hold the positions allocated to them in the classified service, despite the fact that they had not been originally appointed thereto by examination and certification.” 224 La. at 582, 70 So.2d at 133.

The decision recognized that the action of the City of Monroe and the Civil Service Board was “strictly within the letter of the law” because the statute declared in explicit terms that, when any position is initially allocated under the Act, the employee holding it may continue to serve with the same status as he would have if he had been originally appointed by examination and certification.

In addition, the Court in In Re Kelly was of the opinion that the action of the City and Board was within the “spirit of the law”. The lawmakers did not intend, the Court said, that initial allocation of positions under a police and fireman civil service system should be filled on a competitive basis when the duties of the position were already being performed by a member of the force.

The In Re Kelly decision is dispositive of the issue in the instant case.

II.

Plaintiffs claim that the temporary appointments made in April 1972 could not exceed ninety days, and for that reason they had expired prior to November 3, 1972 when the positions were allocated. For this reason, McDowell, Lanigan and Cash were not “in the positions” at the time they were allocated, because the Commissioner had not reappointed them at the expiration of ninety days. This contention is based upon Section 15.1(26) of Article XIV of the Constitution of 1921 which authorizes temporary appointments 1) when a vacancy is to be filled and the Board is unable to certify names eligible for appointment; 2) during war time; 3) where they are provisional within a specified period after the effective date of the Act; and 4) in emergencies.

While these authorizations for temporary appointments do not specifically apply to the facts in this case, the appointments in question are implicitly authorized by Section 15.1(16) of Article XIV. If it were otherwise, employees in positions allocated for the first time could not be confirmed as the second paragraph of the quoted section plainly contemplates. It was with this understanding that the Court decided In Re Kelly. The critical fact permitting the application of Section 15.1(16) is that the employee be “in the position”. Whether the initial appointment is de facto or de jure is not determinative. The Section does not refer to any other status of the employee than that he be “in the position” when it is allocated.

III.

Plaintiffs urge that the administrative requirements were not met by the Board in adopting the new positions of assistant chiefs. This contention was made based on the fact that the ultimate decision of the Board did not create the positions exactly as proposed in the classification referred to in the notice posted thirty days before the public hearing.

The Board’s action was taken on the basis of the June 7 preliminary review of the classifications for the positions; on September 15 the classifications were again revised after hearing interested parties; as then drafted, the classifications were posted and the public notified of the October 18 hearing. Other proposals were again considered, and, finally, on November 3, with the accumulated data and proposals, the Board issued its ruling allocating the positions and confirming the three officers.

If the Board were not able to vary, even in the slightest, from the classifications referred to in the public notice preceding the October 18 hearing, there would be little purpose in a hearing for considering additional objections, facts or alternate proposals. Such was the object of the October 18 hearing. The revisions ultimately adopted were part of the decision-making process, and the resultant refinements were not such a departure from the posted classification that interested parties were prejudiced or deprived of an opportunity to be heard. The procedure adopted by the Board is authorized by Section 15.1(8) of Article XIV of the Constitution which provides that “A board may adopt any rule, either in its proposed or revised form, after holding a public hearing . . (emphasis added).

IV.

Officer Templin asserts that he was denied a hearing on his objections because he was not notified of the November 3 meeting of the Board when the decision was rendered. As the narrative of facts in the beginning of this opinion shows, Templin was notified and attended all Board meetings and was heard on each occasion. The November 3 meeting of the Board at which its decision was rendered did not require notice to the public or to Templin since hearings on the questions before the Board had previously been held.

For the reasons assigned, I cannot agree with the majority opinion or the result reached there.

      . Subsection 16 provides in full:

        “Status of Incumbent of Position When Allocated. Every person employed in the municipal fire and police services for a continuous period of at least six calendar months immediately preceding the date that this Section takes effect in the municipality, who was regularly and permanently appointed to a position coming under the classified service, shall be inducted into and bound under the classified service, the provisions of this Section, and the rules adopted hereunder.

        “When any position is first allocated hereunder, or is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class, the employee in the position may continue to serve therein, with the status, and all the rights and privileges he would have had under this Section if he had been originally appointed by examination and certification hereunder to a position of the class to which the position has been allocated or reallocated. Such employee however may be transferred without further tests of fitness or certification to any position of the class to which the position was previously allocated while held by the employee.
      “Any employee who feels himself aggrieved because of any allocation or change in classification affecting his position shall, upon his request, be heard thereon by the board; and the board shall hear and decide the complaint in any manner deemed proper.” (Italics ours.)

      . These Subsections respectively provide:

        “13. Classification plan. Each board, as soon as practicable (not to exceed a period of eighteen months) after this Section takes effect in the municipality, shall adopt a classification plan for the fire and police services of the municipality. Each classification plan shall consist of classes to be designated either by standard titles, ranks, or a combination thereof, for all positions included in the classified service for each of the fire and police services. The classification plan may be divided into groups of classes. The various classes of positions shall be arranged in each classification plan so as to show the principal and natural lines of promotion and demotion. The classification plan shall be adopted as rules of the board, in the manner provided by this Section for the adoption of rules. Rules creating the classification plan, future classifications, abolition of any classification, any amendment thereto, or revision thereof shall be adopted by a board only after consultation with the appointing authority, and the state examiner. The original classification plan to be established when this Section takes effect in a municipality shall be prepared, after consultation with the appointing authority, and submitted to the board for its approval and adoption, by the state examiner. The board may amend or revise the classification plans before adopting them. The state examiner shall advise and assist the board in all future classifications when requested to do so.

        “14. Allocation of Positions to Classes. The board, or chairman thereof subject to the subsequent approval of the board, as soon as practicable (not exceeding forty-five days) after the adoption of a classification plan, after consultation with the appointing authorities concerned, shall allocate each position in the classified service to its appropriate class; and thereafter shall likewise allocate each new position created in the service, and, when for the benefit of the service, reallocate positions from class to class.
      “Whenever the duties of a position are so changed by the appointing authority that the position in effect becomes one of a different class from that to which it is allocated, the change shall operate to abolish the position and to create a new position of the different class.
      “Whenever the board finds any change in the duties of any position in the classified service was brought about by the appointing authority to effect a reduction in the classification of any employee because of political, religious, or discriminatory reasons, or without just cause, it shall refuse to recognize any such action, and shall order the appointing authority to continue the employee in the position and class with all rights and privileges.

        “15. Use of Class Titles. The title of each class shall be the official title of every position allocated to the class, for all purposes having to do with the position as such, and shall be used to the exclusion of all other titles on all pay rolls, budget estimates, and official records and reports pertaining to the position, except that an abbreviation or code symbol by the board may be used to designate a position of a class. Any other title satisfactory to the appointing authority may be used in official correspondence and in any other connection not having to do with the personnel processes covered by this Section. No employee shall be appointed, employed, or paid under any title other than that of the class to which the position occupied by him is allocated.”

      . Subsection 16: “ * * * When any position is first allocated hereunder [i. e., under Sections 13, 14, 15] * * *.”

      . Subsection 16: “ * * * When any position . . . is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class

      . Even under its facts, however, we think Kelly erred if it inferred that Subsection 16 might permit a promotion in rank and pay, without examination or certification, to a member of the classified service simply because in fact, during the course of his permanent appointment to a lesser position, he has performed duties later determined properly allocable to a higher classification.


author: SUMMERS, Justice.

text:
    SUCCESSION of Walter P. ROCK, Jr. v. ALLSTATE LIFE INSURANCE COMPANY.
    No. 58002.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Allen A. McElroy, Jr., McElroy & Ramsey, Berwick, for plaintiff-applicant.
    Christopher E. Lawler, Porteous, Toleda-no, Hainkel & Johnson, New Orleans, for defendant-respondent.
   SUMMERS, Justice.

Certiorari was granted to review the validity of a default judgment obtained on behalf of the Succession of Walter P. Rock, Jr., by the administratrix. La., 332 So.2d 860. A number of representations of fact, which cannot be considered, were made by counsel for the parties in brief and at oral argument. This review must be confined to the record before us.

The petition filed on behalf of the succession on March 10, 1975 alleges that defendant Allstate Life Insurance Company is a foreign insurance company authorized to do business in this State and has appointed the Secretary of State as its agent for service of process. At all times relevant to this proceeding, the petition alleges, Allstate had in full force and effect a group life insurance policy issued in the name of Pe-trolane Incorporated insuring the life of Petrolane’s employees for accidental death.

According to the petition, Walter P. Rock, Jr., who died in St. Mary Parish on June 15,1974 as a result of an accident, was at that time an employee of Petrolane. Rock was, therefore, insured under Allstate’s group life insurance policy. The policy provided $10,000 in benefits for accidental death. Allstate has refused payment under the policy, which named as beneficiary Tammie Rock as wife of decedent. However, decedent was never married and there is no such person known as Tammie Rock; therefore, the correct beneficiary is the petitioner, decedent’s succession. An allegation that Allstate owes interest as penalties follows.

The petition prays for judgment in favor of petitioner and against Allstate in the sum of $10,000, penalty interest at the rate of six percent from date of proof of death, legal interest on all amounts from date of judicial demand, costs and general and equitable relief.

Attached to and made a part of the petition is a certified copy of decedent’s death certificate which shows a history of butane gas inhalation. Death was accidental, according to the certificate, and resulted from gas inhalation on June 15, 1974 in St. Mary Parish. The petition is verified by the affidavit of the administratrix of the succession, decedent’s sister. It declares that decedent was never married and no one by the name of Tammie Rock was known to her.

Interrogatories attached to the petition asked that Allstate answer in writing, under oath, giving the names of eyewitnesses to decedent’s death, facts relevant to the issues, date proof of death was received, and names of persons from whom Allstate had obtained statements with details. The interrogatories also sought information, photos and documents, etc., obtained by Allstate bearing upon the facts surrounding decedent’s death.

On. the same day the petition was filed, citation accompanied by a copy of the petition and interrogatories issued from the clerk’s office in St. Mary Parish to the Sheriff of East Baton Rouge Parish for service on Allstate by and through the Secretary of State. The sheriff returned a copy of the citation to the clerk with his certificate that he had accomplished personal service on the Secretary of State on March 13, 1975. The sheriff’s return was received in the clerk’s office on March 14.

Minutes of court record that a preliminary default was entered on April 1, 1975. Thereafter, on April 10, plaintiff’s attorney filed a request for admission of facts addressed to Allstate. Therein he requested admission, within fifteen days, of the existence of the life and accidental death policy affecting Petrolane employees on June 15, 1974, bearing No. 64003413L; and whether Rock was an employee of Petrolane and covered by the policy providing benefits of $10,000 for Rock’s accidental loss of life.

Admissions were also requested that Rock died of accidental injury covered by the policy and that Allstate had failed to pay the $10,000 owed to Rock’s succession. It was also requested that Allstate admit that Rock’s succession was the proper beneficiary under the policy and that Allstate had received notification of his death prior to July 1, 1974. The request for admissions was served on the Secretary of State by the Sheriff of East Baton Rouge Parish, who filed a return that the service was made on April 15, 1975.

Then on May 1, 1975, on motion of plaintiff’s attorney in open court, the case was set for confirmation of default, was taken up in its turn, and evidence was adduced. The court considering the preliminary default entered on April 1,1975, after hearing the pleadings, evidence and arguments of counsel, rendered judgment in favor of the Succession of Walter P. Rock, Jr., and against Allstate in the sum of $10,000, together with six percent interest thereon from July 1, 1974 until paid, and for costs.

A notice of judgment was served on Allstate on May 12 in the same manner service had been made of the petition, interrogatories and request for admission of facts.

Allstate filed its petition for a devolutive appeal on July 14,1975 from the final judgment of May 1, 1975, which the trial judge made returnable to the First Circuit on September 15, 1975. On that appeal the First Circuit annulled, reversed and set aside the judgment, and dismissed plaintiff’s demand, without prejudice, casting plaintiff for costs. 329 So.2d 862.

I

The statute relied upon for service in the instant case reads as follows:

“Every foreign or alien insurer shall appoint the secretary of state to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer. Such appointment shall continue in force so long as any contract or other liability of such insurer in this state shall remain outstanding. Whenever such process shall be served upon the secretary of state he shall forthwith forward a copy of the process by prepaid registered mail to the person designated for the purpose by the insurer.” La.Rev. Stat. 22:985.

Allstate contends that the foregoing statute, authorizing service on foreign insurers through the Secretary of State, requires that the record contain proof that the insurer has received notice of the suit by registered mail from the Secretary of State. This is necessary, according to the argument, in order that jurisdiction over the person of the defendant may be obtained. To support this position Allstate refers to Louisiana’s Nonresident Motorist Statute. La.Rev.Stat. 13:3474-75. That enactment prescribes that the acceptance by nonresidents of the privilege of operating motor vehicles on the public highways of Louisiana shall be “deemed” equivalent to an appointment of the Secretary of State to be his true and lawful attorney for service of process, “provided that notice[s] of such service . . . are forthwith sent by registered mail by the plaintiff to the defendant . . . [and are] filed in the proceedings before judgment can be entered against said defendant. . . . ”

To fail to require a showing that the Secretary of State has mailed a copy of the petition or other documents served upon him to the defendant insurer, Allstate argues, would be to disregard and fail to carry out the obvious intent of the last sentence of Section 985, which requires that “Whenever such process shall be served upon the secretary of state he shall forthwith forward a copy of the process by prepaid registered mail to the person designated for the purpose by the insurer.”

The two statutes are distinguishable. The Nonresident Motorist Statute makes a specific requirement that the Secretary forward evidence of service to defendant and that evidence of this be “filed in the proceedings”. By the terms of this statute the nonresident is “deemed” to have appointed the Secretary of State to be his true and lawful attorney for service of process. A nonresident motorist can be anyone; the statute does not confine its effect to foreign insurers.

On the other hand, Section 985 does not require that evidence of citation be sent by registered mail to the defendant and “be filed in the proceedings”. This distinction is significant for the reasons assigned hereafter. Furthermore, this section applies only to foreign insurers who are required by the statute to appoint the Secretary of State as its true and lawful attorney for service of process. Under these circumstances the insurer is fully aware of the appointment and is charged with the responsibility for actions of the Secretary of State. The statute also declares that service on the Secretary of State “shall constitute” service on such insurer.

As we construe the statute, although it imposes a duty on the Secretary of State to forward a copy of the process by registered mail to the insurer, that requirement, after service, is a duty to be performed by the Secretary of State on behalf of the foreign insurer. As the lawful attorney acting for the insurer the Secretary of State has received a valid service of process; and his failure, if such be the case, to forward a copy of the process to the insurer is chargeable to the insurer to whom he owed the duty. Whatever may be the omission or default of the Secretary of State, after a party had done all that is required of him to obtain legal service, the omission or default, if any there be, is chargeable to the party whom he represents. National Surety Co. v. Bell, 121 Okl. 48, 247 P. 343 (1926); Geo. O. Richardson Machinery Co. v. Scott, 122 Okl. 125, 251 P. 482 (1926), cert. dismd., 276 U.S. 128, 48 S.Ct. 264, 72 L.Ed. 497; 20 A.L.R.2d 896, § 6.

It is noted, moreover, that it is not claimed that the Secretary of State did not in fact comply with the duty to forward a copy of the process to Allstate; Allstate only asserts that no evidence of this fact appears in the record. And the likelihood of this omission is highly improbable, considering that this record reflects that the Secretary of State was served on three separate occasions—the petition and interrogatories on March 13, 1975; the request for admission of facts on April 15, 1975; and the notice of judgment on May 12, 1975. The latter notice provided an additional period of seven days after service to apply for a new trial. La.Code Civ.Pro. arts. 1913 and 1974. All of these notices were sufficient to apprise Allstate of plaintiffs claim.

The Court of Appeal correctly held that “. . . service is complete when made on the Secretary of State irrespective of whether that official performs the ministerial task of forwarding notice to the insurer concerned.”

II

Allstate contends that the right asserted by the plaintiff is predicated upon a contract of insurance that the law requires to be in writing. From this premise Allstate argues that legal proof of the rights contained in such a contract in a confirmation of a default judgment is insufficient absent the introduction of the contract itself.

There is no requirement that a party confirming a default must have the testimony reduced to writing or that a note be made of the evidence introduced; and when a judgment has been rendered and no note of evidence has been made, it is incumbent on the party desiring to appeal to secure a narrative in accordance with Article 2130 and 2131 of the Code of Civil Procedure. This was not done. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972); Succession of Moore, 42 La.Ann. 332, 7 So. 561 (1890); Francois v. Cloud, 149 So.2d 678 (La.App.1963).

In order to obtain reversal of a default judgment appealed from, or to obtain a remand, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. When the judgment recites, as it does here, that plaintiff has produced due proof in support of its demand and that the law and evidence favor plaintiff and are against defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Ascension Builders, Inc. v. Jumonville, supra; Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970); Massey v. Consumer’s Ice Co. of Shreveport, 223 La. 731, 66 So.2d 789 (1953); Nugent v. Stark, 34 La.Ann. 628 (1882).

This presumption, that the judgment is well-founded and based on competent evidence, which exists when there is no note of evidence of parole testimony, is a fair and reasonable one conducive to the efficient administration of justice and should be given much weight. It has long been recognized in our law. Ascension Builders, Inc. v. Jumonville, supra; Escurieux v. Chapduc, 4 Rob. 323 (La.1843); Hubbell v. Clannon, 13 La. 494 (1839).

He who seeks to have a default judgment against him set aside must allege and prove that he had good reasons for his nonappearance and failure to timely plead. DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951).

Allstate relies upon Ascension Builders, Inc. v. Jumonville, supra, to support the claim that this default judgment must be set aside because the contract of insurance is not part of the record. There the party cast timely filed a motion for a new trial in which the issue of the contract’s absence from the record was raised. Here the time for applying for a new trial has expired, and this case was appealed. The matter in this posture must therefore be decided on the record.

All of the salient contract provisions upon which plaintiff’s suit is based are part of the request for admissions. The requirement that the contract be made part of the record to support this default judgment is supplied by the admission of facts resulting from Allstate’s failure to deny the matters of which an admission was requested. Article 1496 of the Code of Civil Procedure governs this situation:

“After commencement of an action a party may serve without leave of court upon any other party a written request for the admission by the latter of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth in the request. Copies of the documents shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than fifteen days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either:
(1) An affidavit denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or
(2) Written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.
If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party deny only a part or a qualification of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder.
Any admission made by a party pursuant to such request is for the purpose of the pending action only and neither constitutes an admission by him for any other purpose nor may be used against him in any other proceeding.”

The terms and condition of the contract forming the basis of the cause of action were not admitted in Ascension Builders, Inc. v. Jumonville as they were in the instant case. This difference distinguished these cases.

III

Allstate seeks to avoid the effect of these admissions by its claim that the confirmation of default was entered before fifteen days after service of the request for admissions on the Secretary of State. The contention is incorrect. The service was made on April 15,1975 and the default was confirmed and judgment entered on May 1, 1975, not “less than fifteen days after service” as Article 1496 requires. The further argument that plaintiff requested that Allstate admit the truth of the facts “within fifteen (15) days after service”, instead of “not less than fifteen days after service” as Article 1496 requires, is a technicality which has no prejudicial effect so long as the facts are not considered admitted until “fifteen days after service”.

IV

Allstate also asserts that this Court held in Voisin v. Luke, 249 La. 796, 191 So.2d 503 (1966), that Article 1496 was not intended to be used to establish a controversial issue which constituted the crux of the matter in litigation. The case must be analyzed in its factual context. There the plaintiffs petition for possessory action set forth that he had been in possession of certain land for more than a year, and defendant, by executing a mineral lease affecting the property, slandered his title. Prior to answer, plaintiff filed a request for admission of facts under Article 1496 whereby he sought to have defendants admit the salient facts of his cause of action.

Within fifteen days after this request, defendants filed exceptions of no cause and no right of action, properly verified, in which they denied the salient facts alleged in plaintiff’s petition. At the trial of these exceptions they were referred to the merits. Plaintiffs were permitted to prove that the request for admissions had been mailed more than fifteen days prior to the hearing, while defendants contended that the exceptions were a full and complete answer to the request. The judge nevertheless allowed defense counsel fifteen days in which to file an answer.

Later, defendants further answered the request denying the facts of which admission was requested. This answer was not allowed because not timely filed. Defendant then replied to plaintiff’s motion for a summary judgment and again denied the facts of plaintiff’s petition and filed affidavits and documents refuting those allegations. Nevertheless the trial judge granted the motion for summary judgment. The effect of this was to consider as admitted the facts in the request for admissions. Thus all important factual issues were resolved against defendant.

In reversing this judgment this Court said:

“We therefore conclude the trial judge erroneously granted a summary judgment in this case for, at the time the judgment was rendered, there were before the court timely filed, verified, and untried exceptions of no cause and no right of action in which defendants spe dally denied plaintiffs and their ancestors in title had ever been in possession of the property in any manner, and also, that they had had possession for one year prior to the institution of the suit; the answer to the request for admissions, filed within the 15 days allowed by the trial judge, in which defendants categorically denied each and every fact sought to be admitted; the answer to the petition generally denying all of plaintiffs’ allegations; and the answer to the motion for a summary judgment in which they again denied plaintiffs’ possession and insisted upon a prior hearing of the exceptions, to which answer were attached verified affidavits by numerous persons asserting defendants had been in possession of the property for more than 30 years prior to the institution of the action.”

Obviously the Voisin Case does not support Allstate’s position. There the verified exceptions were considered by this Court to be appropriate answers to the request for admission of facts. The issues in that case were vigorously and consistently controverted. In the case at bar there is nothing in the record on Allstate’s behalf except the petition and order of appeal. There is, insofar as this record is concerned, no controversy between the parties to the suit.

The language of Article 1496 is clear and unequivocal. “Each of the matters of which an admission is requested shall be deemed admitted unless . . . the party to whom the request is directed serves upon the party requesting the admission” an affidavit denying the request or objects on the grounds of privilege, relevancy or propriety. None of the conditions have been fulfilled which would prevent admission of the facts. The admissions are therefore facts of record which courts must recognize.

V

Allstate’s final contention, in brief, is that a manifest injustice will result if this Court upholds the default judgment and allows plaintiff to recover on this false claim. Decedent was not covered by the accidental death provisions of the group policy at the time of his death, it is represented in brief, for he had quit his job 23 days previously.

In DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951), this Court approved the ruling of the Court of Appeal, First Circuit, in Cutrer v. Cutrer, 169 So. 807. It is to the effect that when the trial judge has refused the defendant a new trial in a default judgment case, the appellate court should not disturb that ruling, regardless of the fact that the defendant may urge in his motion that he has a valid defense to the merits, unless the defendant has shown a good excuse to the trial judge for his failure to appear and defend the suit. This showing cannot be made in brief to this court.

Further, as was said in Raphiel v. Louisiana Ry. & Nav. Co., 155 La. 590, 99 So. 459 (1924), “No court may legally set aside and avoid a judgment by default, confirmed in strict conformity with all the requirements of law, in order to afford defendant an opportunity to offer a defense solely on the alleged ground that such action would be in furtherance of justice.”

For the reasons assigned, the judgment of the Court of Appeal is reversed and set aside, and the judgment of the trial court is reinstated and confirmed.

       As pointed out above in Footnote No. 4, the Code of Civil Procedure makes no provision for any specific form to be followed in the filing of an answer to the request for admission, it being sufficient if only by affidavit in which all of the matters sought to be admitted are specifically denied.”