text:
    Mary Rebecca HEMPHILL, Rose Billiot and Milton Billiot, Plaintiffs-Appellants, v. Elaine STRAIN, Travelers Insurance, Patty Loyd, and State Farm, Defendants-Appellees.
    No. 12571.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writ Refused June 11, 1979.

      Bernard S. Smith, Covington, for plaintiffs-appellants.
    France W. Watts, III, Franklinton, for defendants-appellees Elaine Strain and Travelers Ins. Co.

      Dale E. Branch, Bogalusa, for defendant-appellee State Farm.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   EDWARDS, Judge.

Plaintiff, Mary Rebecca Hemphill, and intervenors, Rose Hemphill Billiot and her husband, appeal a judgment of the trial court which dismissed this suit for personal injuries against defendants, Elaine Strain and Travelers Insurance Company.

BACKGROUND

Hemphill and her daughter, Billiot, were guest passengers in a pick-up truck driven by defendant, Strain, which was involved in an accident on July 21, 1975, with a vehicle driven by Patty Loyd. This suit was filed as a result of the accident against Strain and Loyd, and their insurers, Travelers and State Farm Mutual Automobile Insurance Company, respectively.

Prior to the institution of this suit, both Hemphill and Billiot settled their claims against State Farm and signed unrestricted releases in favor of State Farm and Loyd, without reserving their rights against Strain or Travelers. Based on these releases, all the defendants filed motions for summary judgment and peremptory exceptions urging res judicata. After a hearing, the trial judge granted the motions for summary judgment, maintained the exceptions and .dismissed the suit. Plaintiff and interve-nors appealed. Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir. 1976), application denied, 343 So.2d 1072 (La.1977).

On this previous appeal, we affirmed, the dismissal of their suit against Loyd and State Farm on the exception of res judicata founded on the signed releases. However, we reversed the trial court’s dismissal of the suit against Strain and Travelers, and remanded this portion of the suit for trial, stating at p. 1190:

“Finally appellants contend that the trial court erred in maintaining the exception of res judicata as to Travelers Insurance Company and Elaine Strain. The unrestricted release of one joint tortfeasor without reservation of rights against the others discharges all tort-feasors from liability. LSA-C.C. art. 2203; Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). There was no evidence adduced at the hearing on the question of liability. The allegations of negligence and solidary liability in plaintiff’s petition are made for the purpose of permitting the court to ascertain which defendant was negligent. Such allegations are not tantamount to a judicial confession, 'and they are insufficient to establish the solidarity of obligations without proof. Naquin v. Baton Rouge Coca-Cola Bottling Company, 182 So.2d 691 (La.App. 1st Cir. 1966). If on trial of the case it should appear that Loyd was not guilty of any negligence proximately causing or contributing to the accident, solidary obligation will not have been established. The burden of proof will be on those claiming to be released with Loyd and State Farm to establish that Loyd was at least a joint tort-feasor (see Na-quin, supra).”

On remand, plaintiff and intervenors amended their pleadings, with' leave of court, to allege that the accident was due solely to the negligence of Strain.

Defendants answered, contending that Loyd and Strain were joint tort-feasors, and urged again the peremptory exception of res judicata.

The evidence on the issue of liability consisted of the testimony of Billiot and Strain, and the deposition of Hemphill. Billiot and Hemphill testified that Strain was following another vehicle too closely. They stated that the preceding vehicle made a left turn, that Strain slammed on her brakes and that they were thrown against the dashboard, causing their injuries. Additionally, both testified that they felt Loyd’s vehicle hit the truck they were in, but that this impact was very minor and did not cause any injury.

On the other hand, Strain testified that she came to a complete, gradual stop behind the turning vehicle. Her testimony was that she did not slam on her brakes suddenly, but rather that she applied her brakes normally. She stated that she did not see either of her passengers thrown into the dash as a result of her braking action. Additionally, she stated that her truck, after it came to a complete stop, was struck from the rear by Loyd’s vehicle, and that she felt the impact of this collision.

The trial judge in his reasons for judgment found that “there is little or no evidence in this record that the braking action of Elaine Strain was so sudden as to cause the injuries complained of and the evidence is clear that the vehicle being driven by Patty Loyd bumped the Strain vehicle.” The trial judge nonetheless concluded that both Strain and Loyd were negligent, that they were joint tort-feasors and that they were solidarily liable with respect to the injuries, if any, sustained by Hemphill and Billiot. Consequently, the trial judge held that the signed releases in favor of Loyd and State Farm also effectively released Strain and Travelers from any liability in this matter, and dismissed the suit.

SPECIFICATION OF ERRORS

Appellants contend that the trial court erred in seven respects which, for purposes of review, fall into three categories: 1) error in considering the issue of res judicata when no exception was before the court; 2) error in ruling adversely to appellants on certain evidentiary questions which arose during trial; and 3) error in holding that Strain and Loyd were joint tort-feasors.

I

Initially, appellants contend that there was no exception of res judicata pending at the time of trial and that the trial court erred in considering this issue.

This contention is untenable. After this case was remanded, defendants, in response to appellants’ amended petition, filed a pleading styled “Answer and Exceptions to First Amending and Supplementing Petition” wherein defendants specifically pleaded the exception of res judicata.

Appellants urge that we disregard this pleading since, they argue, leave of court was needed to file the pleading and was never obtained.

We do not agree. Leave of court is not required to file an answer to an amended petition and, in any event, is not necessary for filing a peremptory exception. LSA-C.C.P. arts. 1151 and 1152.

II

Appellants complain of four evidentiary errors allegedly committed by the trial court.

First, appellants contend that the trial court erred in admitting, over objection, Strain’s testimony concerning Loyd’s acknowledgment that she was at fault under the res gestae exception to the hearsay rule. In essence, appellants argue that no foundation was laid regarding the lapse of time between the accident and Loyd’s statement.

“ ‘Res gestae’ declarations are admitted as an exception to the hearsay rule on the theory that spontaneous and impulsive statements, made at substantially the same time as the occurrence, without time for deliberation and fabrication, are truthful. A basic requirement of the res gestae rule is that the declaration be spontaneous and impulsive and made at substantially the same time as the occurrence.” Manuel v. American Employers Ins. Co., 212 So.2d 527, 529 (La.App. 3rd Cir. 1968).

Strain test'fied that she got out of her vehicle immediately after the collision and walked back to talk to Loyd. She stated that Loyd stated in this conversation that she (Loyd) was at fault.

We believe that a proper foundation was provided regarding the time sequence of the statement and the accident, and that the trial court was correct in allowing this testimony as a part of the res gestae.

Next, appellants complain that the trial court allowed Strain to testify that she had made a settlement with State Farm.

We agree with appellants that this testimony is irrelevant on the issue of liability, however, we do not find that appellants have in any way been prejudiced by this testimony.

Third, appellants argue that they should have been allowed to present a rebuttal witness to show Strain’s alleged habits of speeding and following other vehicles too closely.

We need not, and do not, reach this contention inasmuch as it is a moot issue in view of the trial court’s holding that Strain was negligent.

Finally, appellants contend that defendant’s failure to call Loyd and the officer who investigated the accident, both listed as witnesses on the pre-trial order, raises a presumption that their testimony would be unfavorable to defendants. Appellants argue that the trial court erred in not applying this presumption.

Such a presumption is available in this state. Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir. 1979) and cases cited therein. However, the presumption does not apply when the witness is equally available to both parties. Hankel v. Hartford Fire Ins. Co., 366 So.2d 1031 (La.App. 1st Cir. 1978).

In the instant case, the officer who was not called was equally available, and in the case of Loyd, who had moved out of state, equally unavailable to both parties. Accordingly, the presumption was not appropriate and was correctly denied.

Ill

Appellants assert that the trial court erred in holding that Strain and Loyd were joint tort-feasors and therefore solidarily liable. They argue that Strain alone was negligent in causing their injuries.

The trial court discounted appellants’ testimony that Strain slammed on her brakes and that the collision with Loyd was of no moment in causing their injuries, and accepted Strain’s testimony that she applied her brakes normally, came to a gradual stop and was rear-ended by Loyd. Based on this evidence, the trial court found that both Strain and Loyd were negligent, and that their combined negligence caused appellants’ injuries.

We find that there is ample evidence in the record to support the trial court’s holding of negligence. There is no error.

Accordingly, the trial court was correct in dismissing this suit under LSA-C.C. art. 2203 based on the signed releases.

For the above reasons, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Daniel E. LAZAUSKAS, Plaintiff and Appellant, v. LOUISIANA OFFSHORE CATERERS, INC., Defendant and Appellee.
    No. 12586.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writs Refused June 11, 1979.

      Michael J. Samanie, Houma, for plaintiff and appellant.
    Bruce A. North, New Orleans, for defendant and appellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   EDWARDS, Judge.

Plaintiff, Daniel E. Lazauskas, brought this suit to recover from the defendant, Louisiana Offshore Caterers, Inc., the sum of $11.01 as wages allegedly due for three hours work, together with penalties and attorney’s fees under LSA-R.S. 23:631 and 632. The trial court found that plaintiff failed to meet his burden of proving that wages were due and dismissed the suit. Plaintiff appealed.

Plaintiff was employed by defendant as a galley hand during November, 1977, and was assigned to an offshore rig. Plaintiff was paid $2.45 per hour for a forty-hour week and $3.67 per hour for overtime. Plaintiff worked on the rig from November 16, 1977, until November 23, 1977, when he left the rig and, thereafter, terminated his employment with defendant.

The present wage dispute centers on plaintiff’s claim that he actually worked a total of 105 hours during this period although he was paid for only 102 hours. The discrepancy, amounting to three hours of overtime, is attributable to the hours worked on November 17, 1977, inasmuch as plaintiff reported 24 hours but was paid for 21 hours.

Plaintiff testified that when he arrived on the rig on November 16, 1977, the catering staff was at half strength (two workers as opposed to four) and that he was required by the supervisor on the rig, a tool-pusher named Blackwell, to work double 12-hour shifts until additional personnel reached the rig. Additionally, plaintiff testified that he in fact worked 24 hours for the pay period of November 17, 1977. He stated that he was constantly at work during the entire 24-hour period except for a few short breaks, amounting to less than one hour, to shower, freshen up, eat, or get coffee. He testified, unequivocally, that he did not sleep during this time, and that he was required to, and did in fact, work the number of hours reported.

Defendant did not offer any evidence to contradict plaintiff’s testimony that he had worked 24 hours on November 17, 1977. James Fontenot, defendant’s director of personnel, testified that he did not know how many hours plaintiff had actually worked. However, Fontenot testified that he decided that plaintiff was only entitled to pay for 21 hours. He based this determination on his personal estimation of the time plaintiff would have spent attending to personal needs (hygiene, nutrition, et cet-era) during a 24-hour work period. Fonten-ot stated that the estimate for these “breaks” was three hours, which time was subtracted from the hours reported by plaintiff.

Jack Ulery, defendant’s other employee who was on the rig on November 16-17, 1977, substantiated plaintiff’s claim that he was on duty for 24 hours. Ulery noted, without giving any time estimate, that plaintiff took breaks during this period, adding “even on a regular shift, you take breaks” (transcript, page 98).

We conclude, without recounting further the testimony in the record that plaintiff proved his claim for the disputed wages in this case and that the trial court erred in dismissing the suit. The evidence is overwhelmingly to the effect that plaintiff worked 24 hours on November 17, 1977. The only basis for reducing the number of hours is defendant’s unsubstantiated estimate of the time taken on breaks.

On the issues of penalties and attorney’s fees, LSA-R.S. 23:631 and 632 provide: Section 631.

“A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
“B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
“C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.”
Section 632.
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

The penalty provision of the above statutes will not be applied if the employer had some equitable defense. Miletello v. Noble Drilling Corporation, 316 So.2d 505 (La.App. 2nd Cir. 1975); Martin v. Burns, 267 So.2d 913 (La.App. 1st Cir. 1972). Thus, where there is a bona fide dispute over the amount of wages due, the courts will not consider the failure to pay as an arbitrary refusal, and generally will refuse to award penalties. Otwell v. Howard Lumber & Supply Company, Inc., 283 So.2d 826 (La. App. 2nd Cir. 1973).

The record in the instant case demonstrates that there existed such a bona fide dispute concerning the time spent by plaintiff on breaks. We do not find any evidence to show that defendant was in bad faith or that it acted arbitrarily. We believe that the present facts do not warrant the imposition of penalties.

Attorney’s fees, however, are not conditioned on the lack of good faith or the existence vel non of another equitable defense. Rather, they are awarded to the successful plaintiff in a well-founded suit. Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978).

We believe that a reasonable fee, in view of the preparation required of counsel and the amount in dispute, is an attorney’s fee in the sum of $250.

For the reasons assigned, the judgment of the trial court is reversed and judgment is rendered in favor of plaintiff against the defendant in the sum of $11.01 plus attorney’s fees of $250. Costs are assessed against the defendant.

REVERSED AND RENDERED.


author: SARTAIN, Judge.

text:
    Clarence S. COLEMAN, Plaintiff-Appellee, v. The KROGER COMPANY, Defendant-Appellant.
    No. 12564.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      Ralph W. Brewer, Michael W. McKay, Baton Rouge, of counsel, for plaintiff-appel-lee Clarence S. Coleman.
    A. S. Easterly, III, Baton Rouge, of counsel, for defendant-appellant The Kroger Co.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

      Serving an appointment by the La.Sup.Ct.

   SARTAIN, Judge.

Plaintiff-appellee Clarence S. Coleman brought suit against The Kroger Company (Kroger) for damages arising out of his arrest and prosecution alleged to be the result of accusations made by Kroger employees acting within the course and scope of their employment. The jury found in favor of plaintiff; Kroger appeals.

Coleman was arrested on August 22, 1975, around 3:00 o’clock p. m. for theft of property belonging to Kroger. The property involved was five or six shopping carts and several hundred metal kick plates designed to attach to the bottom of the shelves in a Kroger grocery store. Coleman was subsequently tried for theft and acquitted.

According to the witnesses for Kroger, the facts leading up to Coleman’s arrest were as follows. Four Kroger employees, Roger McDaniels, Marshal L. Wheat, Charles Buckely, and Robert Everingham, all of whom testified at trial, were traveling in a car on Acadian Thruway in Baton Rouge, having just left the Kroger grocery store located in the shopping center at the corner of Acadian and Perkins Road. One of the employees spotted plaintiff’s truck carrying several shopping carts, which he was able to identify as Kroger’s from the blue plastic signs on the handles. The truck was coming from an alley behind the Kroger store. Wheat, the driver of the car, pulled off the road near a stop light and waited for plaintiff to approach. When plaintiff stopped at the light, Wheat went up to the truck, identified himself as a Kroger employee, and asked plaintiff to return the Kroger property that he was carrying. Plaintiff responded that he had found the carts in the alley or in the ditch behind the store.

When the light changed, plaintiff continued along Acadian for about a block until he was able to pull into a parking lot. The four Kroger employees followed plaintiff into the parking lot thinking he was going to turn around and return to the Kroger store. Instead, after a short delay, he proceeded to travel north on Acadian away from the store. Again the Kroger employees followed him, this time for several blocks. Plaintiff at no time travelled at an excessive speed or made other evasive maneuvers.

When plaintiff apparently realized that he was being followed by the driver that had spoken to him earlier, he pulled off the road. As McDaniels approached, plaintiff asked why he was being followed, and McDaniels answered that he was carrying Kroger property and they wanted it returned. At that, plaintiff replied that they could have it and began throwing the carts out of the truck into the street. According to Wheat, plaintiff explained his actions by saying he thought the items had been discarded as trash. McDaniels went into a nearby office and called the police. A short time later a passing police car was flagged down. The police officer was told that plaintiff had taken Kroger property and was throwing it out of his truck. Plaintiff was arrested and subsequently spent ten hours in jail before being released on bond.

According to Wheat, broken shopping" carts are often put in the alley behind the store to await repairs which are made at regular intervals. McDaniel explained that the metal kick plates plaintiff picked up had been removed from the shelves and stacked on wooden pallets in the alley so that the plates and the floor under the shelves could be cleaned before they were replaced.

Plaintiff Coleman substantially agrees with the narration of the incident as related by the Kroger employees, but his version differs in a few significant details. Plaintiff explained that on the day of his arrest he was in his pickup truck looking for scrap metal and trash in the Southdowns neighborhood, the commercial and residential area where the Kroger store was located. His truck had his name, occupation, address and phone number printed on the side. He testified that he found the metal kick plates in the large trash container behind Kroger’s and that he picked up the shopping carts at various points along the streets in the Southdowns area. When Wheat approached him at the stop light and asked him to return the shopping carts,-plaintiff was puzzled as to what he meant since he had picked the carts up in various locations. Seeking further explanation, he pulled into the next parking lot but since he did not see the Kroger employees follow him, he dismissed Wheat’s request as a prank and continued on his way. When he later saw Wheat behind him, he stopped to find out what he wanted, and at this point he was admittedly aggravated. Only then did he notice for the first time that the shopping carts had Kroger labels. He thereupon began removing the items from his truck and told the Kroger employees they could have them but he was not going to return them.

One of plaintiff’s witnesses was the arresting officer, Jerry McLin. He testified that he made the arrest on the information given him by McDaniels. McLin explained that he was told by McDaniels that McDan-iels had seen plaintiff leaving the Kroger parking lot and had stopped him on the lot and requested that he return the carts. According to McLin, McDaniels said that although plaintiff then agreed to return the Kroger property, he instead drove away as soon as McDaniels turned his back. McDaniels denied that he had ever made such a statement.

Plaintiff’s action is one for malicious prosecution. Such an action will lie only where there is concurrence of the following elements: (1) commencement or continuation of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause; (5) the presence of malice; and (6) damages. Johnson v. Pearce, 313 So.2d 812 (La.1975); Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Insurance, 195 La. 347, 196 So. 554 (1940); Fontenot v. West Bros of Eunice, Inc., 343 So.2d 446 (La.App. 3d Cir. 1977).

The only elements contested on this appeal are malice and lack of probable cause. Appellant Kroger maintains that the jury committed manifest error in concluding that these two elements were proved and urges us to reverse on the authority of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Cf. Motichek v. Clovis-Hendry, Inc., 280 So.2d 225 (La.App. 1st Cir. 1968), writ denied 282 So.2d 522 (La.1973).

Plaintiff argues that the jury properly found malice in McDaniel’s statement to the arresting officer, a statement which allegedly contained inaccuracies designed to make plaintiff appear guilty. However, even if we accept the finding of malice, we must reverse because we conclude that the jury committed manifest error in finding a lack of probable cause on the part of the four Kroger employees who instigated the arrest.

The probable cause element in a malicious prosecution suit requires both an honest and a reasonable belief in the guilt of the prosecuted party. Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901); Lees v. Smith, 363 So.2d 974 (La.App. 3d Cir. 1978); Whittington v. Gibson Discount Center, 296 So.2d 375 (La. App. 2d Cir. 1974); Cormier v. Blake, 198 So.2d 139 (La.App. 3d Cir. 1967); Buisson v. Prestia, 45 So.2d 531 (La.App.Orl.Cir.1950). The determination of probable cause depends upon the particular facts of each case because the court must decide whether the circumstances were such as to create the belief in a reasonable mind that the plaintiff was guilty of the crime charged. Motichek v. Clovis-Hendry, Inc., 280 So.2d 225 (La.App. 1st Cir. 1968).

We note that there is but scant evidence on the role of Kroger personnel in the prosecution of plaintiff following his arrest. There is no testimony from which the finder of fact could determine that Kroger employees continued to press for plaintiff’s prosecution after the initial arrest, and indeed this is not even alleged in plaintiff’s petition. Therefore we are restricted to the issue of whether the Kroger employees had probable cause at that point when the arrest was instigated.

Admittedly there were circumstances which pointed toward plaintiff’s innocence. For example, plaintiff made no attempt to conceal the carts even though it was mid-afternoon; plaintiff’s name and address were displayed on the truck; and plaintiff never tried to elude the Kroger employees. However, these factors were not of sufficient probative value to overcome the indication of guilt arising from the fact that plaintiff was indeed carrying property belonging to Kroger which some of the employees knew had not been discarded as junk. Plaintiff’s failure to return the property when first requested to do so, although understandable from his point of view, appeared to the Kroger employees to be a confirmation of his guilt. We see no evidence that would indicate that their belief in plaintiff’s guilt was not both honest and reasonable under the circumstances.

In reversing the jury’s findings, we are mindful of the strong presumption in their favor (Canter v. Koehring Co., 283 So.2d 716 (La.1973)) but we also take note of the disfavor in which malicious prosecution actions have traditionally been held by the courts. See Johnson v. Pearce, 313 So.2d 812 (La.1975); Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Insurance, 195 La. 347, 196 So. 554 (1940); Lees v. Smith, supra; Motichek v. Clovis-Hendry, Inc., supra. The Supreme Court has repeatedly maintained that, “ ‘Actions of this sort have never been favored, and, in order to sustain them, a clear case must be established, where the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent ’.” Sandoz v. Veazie, 106 La. 202, 30 So. 767, 774 (1901) quoting from Staub v. Van Benthuysen, 36 La.Ann. 467, 470 (1884).

For the foregoing reasons, we reverse the judgment of the lower court and render judgment in favor of defendant and against plaintiff at plaintiff’s cost.

REVERSED.


text:
    Herman GIVENS, Plaintiff-Appellant, v. R. Scott HELD et al., Defendant-Appellee.
    No. 12568.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writ Refused June 11, 1979.

      Joseph P. Brantley, IV, Baton Rouge, for plaintiff-appellant Herman Givens.
    Boris F. Navrital, Baton Rouge, for inter-venor-appellant Casualty Reciprocal Exchange.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee American International Insurance Co.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

Herman Givens appeals the dismissal of his claim against R. Scott Held and his liability insurer for damages arising out of a rear-end collision. The trial court found that plaintiff’s negligence was the sole and proximate cause of the accident. Joining with plaintiff Givens in this appeal is inter-venor, Casualty Reciprocal Exchange, which seeks reimbursement of workmen’s compensation payments made to Givens.

The accident occurred on July 14,1976, at approximately 11:40 a. m. at the intersection of Florida Boulevard and North 13th Street in Baton Rouge. At this location, Florida Boulevard, the favored street, is a four-lane thoroughfare running east-west. Defendant Held was traveling west on Florida in. the inside lane. Plaintiff, going south on North 13th Street, was attempting to cross Florida and continue on 13th Street. However, because 13th Street on the south side of Florida is offset at least thirty feet to the west, a driver proceeding south on 13th Street is required to make a right turn onto Florida and then a left turn onto 13th Street. Plaintiff, driving a pickup truck, stopped at the stop sign on the north side of Florida and then entered Florida. He was hit in the rear by Held’s van while stopped in the inside westbound lane waiting to make a left turn onto 13th Street. A light rain was falling at the time of the accident, but both drivers testified visibility was good.

Plaintiff and defendant Held agree on the above facts, but otherwise give radically different versions of how the accident occurred.

Plaintiff testified that when he stopped at the stop sign before entering the intersection he looked in both directions and ascertained that he could safely proceed. He emphatically stated that he had a clear, unobstructed view to his left and saw absolutely no westbound traffic on Florida. According to plaintiff, he had been stopped in the inside westbound lane of Florida waiting for the eastbound traffic to clear for some ten to fifteen seconds before he was hit. He testified that he had on his headlights and his left blinkers and that at least five cars had come around him on his right after he had stopped.

Held, on the other hand, maintained that plaintiff pulled out immediately in front of him and stopped suddenly, giving Held no opportunity to avoid the collision. Held testified that when he first saw plaintiff stopped at the stop sign on 13th Street, he (Held) was only five to six car lengths away. He estimated that he was traveling between twenty-five and thirty miles per hour. Held stated that he saw plaintiff enter Florida and move into his lane and, in response, he eased up on his accelerator. He did not brake until the rapid decrease in the distance between the two vehicles indicated to him that plaintiff was stopping. At that point traffic to his right and left prevented any swerving maneuvers. Held did not recall having seen plaintiff’s signal, nor did he remember having on his own headlights. In explanation of his delay in braking, Held stated that when plaintiff pulled out he assumed plaintiff intended to join the flow of traffic and continue west on Florida. He further explained that the speed and spacing of the two vehicles at the point at which plaintiff entered his lane was such that it would not have been necessary for him to brake had plaintiff moved forward with the flow of traffic instead of stopping. The testimony of Mrs. Held, a passenger in the van, was in accord with that of her husband.

Plaintiff relies heavily upon the testimony of his expert witness, Colonel Joseph Andre. At plaintiff’s direction, Andre conducted skid tests to determine the drag factor of a vehicle similar to Held’s van on the wet surface of Florida Boulevard at the intersection with North 13th Street. From that he was able to fix the stopping distance at various speeds. He calculated that at twenty-five miles per hour the van would be able to stop in 2.78 seconds and at 63 feet, including reaction time and distance. At thirty-five miles per hour, the total stopping distance would be one hundred eleven feet and the stopping and reaction time 3.60 seconds.

According to Andre, the average length of a standard size automobile is eighteen and one-half feet. Therefore, Held’s estimate that he was approximately five to six car lengths in distance from plaintiff when he saw plaintiff stopped on North 13th Street would translate into 92.5 to 111 feet.

Andre also conducted a test to determine the time it takes for a pickup truck similar to the one plaintiff was driving to move from the stop sign on North 13th Street to a stop at the point on Florida where the collision occurred. Andre timed plaintiff as he drove the distance four different times. The times varied from 7.0 to 8.2 seconds. This distance was measured by Andre as 83 feet. Additionally, Andre calculated that in 7 seconds Held, traveling at 25 miles per hour, would cover 257 feet and, at the speed of 35 miles per hour, would move 360 feet.

Plaintiff argues that Andre’s testimony proves that the accident did not happen as testified to by Held. In the seven seconds that according to Andre’s measurement was the minimum time it took plaintiff to get into the position in which he was hit, Held, moving at 25 miles per hour, would have traveled 116 feet beyond the point of collision (fixed by the investigating officer at 30 feet west of the west edge of North 13th Street) if in fact Held had been only six car lengths from plaintiff when plaintiff was stopped on 13th Street. Held would have reached the point of collision 3.2 seconds before plaintiff. Any contact that might have occurred between the two vehicles would have been at an angle and not a direct hit into the rear as actually happened.

Assuming the accuracy of Andre’s measurements, we would agree that defendant Held’s estimate of distance appears to have been inaccurate. However, a rejection of this part of Held’s testimony does not necessarily result in a determination that plaintiff was free from negligence.

Indeed, the trial court’s written reasons for judgment make it clear that that court’s finding of negligence on the part of plaintiff was not based on Held’s testimony on the initial distance between him and plaintiff. The trial judge stated that he was “unable to conclude exactly how far the defendant vehicle was from the point of impact when plaintiff left the stop sign,” but he acknowledged that the calculations of plaintiff’s expert would locate Held 257 to 360 feet east of the point of collision when plaintiff began to traverse the intersection. The trial judge concluded that even though Held might have had sufficient time and distance in which to stop prior to impact, he nevertheless acted reasonably under the circumstances in not braking until plaintiff unexpectedly stopped. We believe that the lower court was correct when it said:

“To require the defendant to react immediately when the plaintiff left the stop sign places an unreasonable burden on him. Defendant was on a four-lane heavily traveled street. He could reasonably assume that when plaintiff left the stop sign he would stay in the right lane; or that he would accelerate into the flow of traffic in his lane. Plaintiff’s maneuver was the least reasonable for defendant to anticipate, pulling into the left lane and stopping suddenly.”

In a case such as this in which two adverse parties testify to directly contradictory versions of the facts, the trial court’s assessment of credibility is a major factor in the resolution of the conflict and is entitled to. great weight. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Echizenya v. Armenio, 354 So.2d 682 (La.App. 4th Cir. 1978).

It is clear that the trial court did not believe plaintiff’s testimony that he had been stopped for ten to fifteen seconds pri- or to being hit. Nor did it accept plaintiff’s statement that there was no westbound traffic in view when he entered Florida. The lower court found more credible Held’s assertion that he was within such proximity of plaintiff as to have been easily seen and that when plaintiff pulled into his lane directly in front of him and stopped, he (Held) had no opportunity to avoid the accident. Held’s apparent underestimation of his initial distance from plaintiff did not warrant wholesale rejection of his testimony. We too conclude that plaintiff’s actions were negligent.

Approving the lower court’s findings of fact and conclusions of law, we accordingly affirm. Costs are to be borne by plaintiff.

AFFIRMED.


text:
    Raiford L. WELLS, Plaintiff-Appellant, v. Thomas M. LOCKWOOD, Administrator, Office of Employment Security, and Stupp Corporation, Defendants-Appellees.
    No. 12578.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      Kenneth R. Williams, Baker, for plaintiff-appellant.
    James H. Hynes, Baton Rouge, for defendant-appellee Stupp Corp.
    James A. McGraw, Baton Rouge, for defendant-appellee Employment Security.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

This is an appeal from a district court judgment affirming the denial of unemployment compensation benefits to claimant-appellant Raiford L. Wells by the Board of Review of the Louisiana Department of Employment Security.

The testimony and other evidence taken at the administrative hearing before the Appeals referee reveal that Wells voluntarily retired from his job as bevel operator for Stupp Corporation on February 2, 1978. Wells, sixty-two at the time of retirement, had worked for Stupp Corporation for twenty-three years and four months and had become eligible for retirement in November 1977. According to Wells’ testimony and a statement from fellow employees, he retired because his physical condition was such that he felt he could no longer perform the heavy labor required of a bevel operator and no light work was available.

It is undisputed that claimant’s former work was of a strenuous character often requiring the moving of heavy objects. Wells testified that according to his physician he was a diabetic and had an enlarged esophagus vein. He did not say when these conditions first appeared nor specifically how they affected his ability to work. Wells admits that he was not advised to retire by his physician, who was aware of the strenuous nature of claimant’s work. According to Wells, his doctor, when asked about the advisability of retirement, told Wells to continue to work as long as he felt able. After retirement when Wells visited his doctor and told him of his retirement and his reasons therefor, his doctor advised him to do only light work in the future. There is no expert medical evidence in the record on Wells’ health nor on the effect heavy physical labor had or would have on his condition. There is only a hearsay statement that after retirement the doctor recommended light work and told Wells that further heavy work would be injurious to his health.

Claimant’s application for unemployment compensation benefits was rejected on the basis that he was disqualified because he voluntarily quit work without good cause connected with his employment. This decision was upheld by the Appeals referee, the Board of Review, and the district court.

The scope of our review is limited by La.R.S. 23:1634 to questions of law, if the findings of fact of the Board of Review are supported by sufficient evidence and do not involve fraud. In the present appeal, the factual findings of the administrative board are not seriously disputed. The question before us is whether under the facts stated above, claimant Wells is disqualified under La.R.S. 23:1601(1), which provides, “An individual shall be disqualified for benefits: (1)If the administrator finds that he has left his employment without good cause connected with his employment. . . ." More specifically, the dispute in this case is centered on whether claimant’s cause for leaving was job-connected.

In Neal v. Administrator, Div. of Employment Security, Dept. of Labor, 197 So.2d 393 (La.App. 2d Cir. 1967), benefits were denied to a claimant who resigned his position because of pain and inability to perform his duties due to spinal arthritis. The court in that case found that the claimant’s condition had not been caused, worsened, or aggravated by his employment and therefore his reason for leaving was not job-connected. We reach the same conclusion in the instant case. Also see, Simon v. Administrator of Employment Security, 281 So.2d 165 (La.App. 4th Cir. 1973); Gladson v. Brown, 134 So.2d 660 (La.App. 3d Cir. 1961).

Wells retired because of his physical condition, but it has not been proved that his condition was brought about, worsened or aggravated by his employment. The most telling evidence is that his doctor did not advise him to discontinue his work, which he surely would have done had he thought claimant’s health problems were caused or aggravated by his job. Only after Wells’ physical condition had declined to the point where he could no longer do strenuous labor did his doctor recommend that he restrict himself to light work. This does not indicate that Wells’ poor health was connected with his job. The more obvious deduction is that aging and the natural progress of Wells’ two ailments caused the decline in his ability to do heavy labor.

We do not believe that the unemployment compensation statute was intended to award benefits to a worker who quits because he no longer has the physical strength to perform hard physical labor under customary conditions when his inability is due to a non-job-related condition. Indeed, such coverage is expressly excluded by requiring that the cause be employment-connected.

The cases of Harris v. Woodcrest Mobile Homes, 359 So.2d 243 (La.App. 2d Cir. 1978), and Spruell v. Administrator, Div. of Employment Security, Dept. of Labor, 158 So.2d 364 (La.App. 2d Cir. 1963), relied on by Wells can be distinguished in that, unlike the situation in the present case, the health problems of the claimants therein— an allergic reaction and a respiratory infection, respectively — were directly caused by conditions at their places of employment.

For the above reasons, the judgment of the lower court is affirmed.

      . Appellees contest the competency of some of the evidence taken at the administrative hearing. See Dunigan v. Administrator of Dept. of Employment Security, 351 So.2d 807 (La.App. 1st Cir. 1977). We did not find it necessary to reach this issue in our disposition of this appeal.


text:
    Glenda Breeland LITTLE, Plaintiff-Appellee, v. Jackie E. LITTLE, Defendant-Appellant.
    No. 12581.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      Leu Ann Lester, Denham Springs, for plaintiff-appellee.
    Lennie F. Perez, Baton Rouge, for defendant-appellant.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

The issue presented on this appeal concerns the use of a summary proceeding to obtain personal property.

The facts are not in dispute and are summarized as follows: The parties were divorced on July 26, 1977. Mrs. Little’s divorce petition alleged the existence of community assets but asserted that their distribution had been agreed to between the parties. No evidence of such agreement was put into the record at that time. The. divorce judgment made no mention of a community property settlement.

On January 5, 1978, Mrs. Little, by way of motion to show cause, moved the court to award her child support and, additionally, asked that Mr. Little be ordered to return to her a set of china, claimed to be her separate property, which he allegedly took after the rendition of the divorce judgment.

Mr. Little timely objected to the use of the summary procedure to determine the ownership of the set of china. C.C.P. arts. 926(3), 2593. The trial court awarded her child support and overruled Mr. Little’s exception and entered judgment ordering the return of the china. Mr. Little does not object to that portion of the judgment relating to child support and limits his appeal only to the decree requiring him to return the china.

Summary proceedings may be used over timely objection only in those cases expressly authorized by law. C.C.P. art. 2592; State Through Dept. of Highways v. Lamar Advertising Co. of La., Inc., 279 So.2d 671 (La.1973); Gary v. Brenholz, 120 La. 1028, 46 So. 12 (1908).

We have found no statutory authorization for use of a summary proceeding in the present case. The dispute over the china did not arise as an incidental question in the course of litigation (C.C.P. art. 2592(1)) as the divorce judgment was final before the matter developed. Scott v. Scott, 331 So.2d 523 (La.App. 2d Cir. 1976); Rayborn v. Rayborn, 246 So.2d 400 (La.App. 1st Cir. 1971). The trial court opined that summary procedure was proper since it was being used to compel compliance with the community property settlement. We note, however, that the divorce judgment makes no mention of property distribution and that there has been no court-approved property settlement. The first time property ownership and divisions were put at issue was in the rule to show cause. The present case cannot be analogized to the cases allowing the use of summary proceeding to settle questions related to writs of fieri facias, e. g., Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3d Cir. 1969).

A partition of community property may be asked for as incidental relief in a suit for divorce (C.C.P. Art. 82), but it must be requested in the petition and handled in an ordinary proceeding. Thibodeaux v. Duos, 343 So.2d 441 (La.App. 3d Cir. 1977).

For the above reasons, the judgment of the lower court overruling appellant’s dilatory exception of unauthorized use of summary proceeding is reversed and set aside and judgment is rendered herein sustaining the same and striking from the judgment of the district court that portion thereof that orders Jackie E. Little to return the set of Noritake china to Glenda Breeland Little.

All costs of these proceedings are to be borne equally between the parties.

REVERSED IN PART AND RENDERED.

      . Art. 2592. Use of summary proceedings Summary proceedings may be used for trial or disposition of the following matters only:
      (1) An incidental question arising in the course of litigation.
      (2) An application for a new trial.
      (3) An issue which may be raised properly by an exception, contradictory motion, or rule to show cause.
      (4) An action against the surety on a judicial bond after judgment has been obtained against the principal, or against both principal and surety when a summary proceeding against the principal is permitted.
      (5) The homologation of a judicial partition, of a tableau of distribution or account filed by a legal representative, or of a report submitted by an auditor, accountant, or other expert appointed by the court; and an opposition to any of the foregoing, to the appointment of a legal representative, or to a petition for authority filed by a legal representative.
      (6) A habeas corpus, mandamus, or quo war-ranto proceeding.
      (7) The determination of the rank of mortgages, liens and privileges on property sold judicially, and of the order of distribution of the proceeds thereof.
      (8) The original granting of, subsequent change in, or termination of, child custody, alimony, child support in behalf of minor children, and support between ascendants and descendants; and
      (9) All other matters in which the law permits summary proceedings to be used.

      . Art. 82. Action to partition community property
      Except as otherwise provided in the second paragraph of this article, an action to partition community property shall be brought either as an incident of the action which would result in a dissolution of the community, or as a separate action in the parish where the judgment dissolving the community was rendered.
      If the community owns immovable property, the action to partition the community property, movable and immovable, may be brought in the parish where any of the immovable property is situated.


author: ELLIS, Judge:

text:
    A. J. GUIDRY and Jane Guidry, his wife, changed to A. J. Guidry, as survivor of Jane Guidry and on behalf, and A. J. Guidry on his own behalf, Plaintiffs and Appellants, v. Eugene THERIOT, M.D. and Commercial Union Insurance Company, added as party Defendant Continental Casualty Company on 3/28/78, Defendants and Appellees.
    No. 12596.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writs Granted June 11, 1979.

      Edward J. Castaing, Jr., New Orleans, for plaintiffs and appellants.
    Ralph L. Kaskell, Jr., New Orleans, Charles J. LeBlanc, Thibodaux, for defendants and appellees.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

This suit was originally filed on February 20, 1974, by A. J. Guidry and Jane Guidry, his wife, for damages for personal injuries suffered by Mrs. Guidry as a result of alleged malpractice by defendant, Dr. Eugene Theriot. Mrs. Guidry died on July 9, 1974.

On March 28, 1978, Mr. Guidry filed a supplemental petition, alleging that the death of his wife was due to the negligence and malpractice of Dr. Theriot, and asking to be substituted for his wife as a party plaintiff, as her survivor. In addition, Mr. Guidry alleged a cause of action, and asked damages, for the wrongful death of his wife. Dr. Theriot’s insurer, Continental Casualty Company, was added as a party defendant.

On March 31, 1978, the three children of Mr. and Mrs. Guidry, Blake P. Guidry, Brad J. Guidry and Betsy Guidry Lennep, were added as parties plaintiff both in the survivor action and in the wrongful death action.

The defendants filed peremptory exceptions of peremption and no cause of action, alleging that the wrongful death action could no longer be urged because it was filed more than one year after the death of Mrs. Guidry. After a hearing on the exceptions, judgment was rendered, dismissing all demands of the three children. The exceptions were overruled as to Mr. Guidry. From the judgment dismissing their case, Blake P. Guidry, Brad J. Guidry, and Betsy Guidry Lennep have appealed. Dr. Theriot and Continental have answered the appeal, asking that their exceptions be maintained as to all demands by A. J. Guidry, except his claim for special damages.

Defendants’ answer is without effect. They seek thereby to have the judgment modified as to A. J. Guidry, who is not an appellant. Under Article 2133 of the Code of Civil Procedure, an appellee can have the judgment modified only as to an appellant, or an adverse party in an incidental action, by filing an answer to the appeal. A. J. Guidry fits neither of these categories.

Article 2315 of the Civil Code reads as follows:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
“The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse. “The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not. “As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

Our courts have interpreted the foregoing article as creating two separate and distinct causes of action: one for the damages which the victim could have recovered had he lived; and the other, for damages suffered by the survivors as a result of the wrongful death of the victim. Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1976); King v. Cancienne, 316 So.2d 366 (La.1975); Whittington v. Hopfensitz, 321 So.2d 836 (La.App. 1st Cir. 1975).

With respect to the first of these actions, commonly called the survival action, it must be brought by the survivors within one year of the death of the victim, if the victim has not filed suit, and died within one year of the accident. However, if the victim timely filed suit for his injuries prior to his death, the one year period provided by Article 2315 no longer applies, and the survivors may be substituted as parties plaintiff for the deceased victim at any time, subject only to the five year abandonment rule of Article 561 of the Code of Civil Procedure. Article 2315, Civil Code; Article 801, Code of Civil Procedure; J. Wilton Jones Co. v. Liberty Mutual Insurance Co., 248 So.2d 878 (La.App. 4th Cir. 1970); Whittington v. Hopfensitz, supra.

Mrs. Guidry died on July 9, 1974, and her three children were substituted as parties plaintiff on March 31, 1978, well within the five year abandonment limitation. The survival portion of the action should not have been dismissed as to the children.

The wrongful death action was brought by the three children in the same pleading in which they were substituted as parties plaintiff on March 31, 1978, well over a year after the death of their mother. The wrongful death action is personal to the survivor, is not connected with the survival action, and is a separate cause of action therefrom. This court has held that the wrongful death action prescribes in one year, under Article 3536 of the Civil Code. McClendon v. State, Through Dept. Of Corrections, 357 So.2d 1218 (La.App. 1st Cir. 1978). The wrongful death action in this case is clearly prescribed on the face of the pleadings.

The judgment appealed from is therefore reversed insofar as it dismissed Blake P. Guidry, Brad J. Guidry and Betsy Guidry Lennep as parties plaintiff in the survival action; affirmed insofar as it dismisses their wrongful death action; and remanded for further proceedings according to law. All costs of this appeal shall be equally shared by the parties hereto. All other costs shall await the final determination of the case on its merits.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.


text:
    Geraldine Gordon THOMPSON, Plaintiff and Appellant, v. William Eugene THOMPSON, Defendant and Appellee.
    No. 12603.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Curtis M. Baham, Jr., Hammond, for Geraldine Gordon Thompson.
    Ernest G. Drake, Jr., Ponchatoula, for William Eugene Thompson.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

Geraldine Gordon Thompson and William Eugene Thompson separated from each other on October 7, 1974. At that time, they were the owners of a house and an acre of land in Tangipahoa Parish. On October 15, 1974, Mr. Thompson sold the property to Marion Eugene Thompson, his father, the consideration recited being the assumption of first and second mortgages bearing against the property. The act of sale was filed for record on October 17, 1974.

On October 15,1974, Mrs. Thompson filed a suit for separation from bed and board against Mr. Thompson, and obtained a restraining order, preventing him from alienating the community property. The suit and the order were served on him on October 17, 1974. This suit to set aside the sale of October 15th was filed on October 30, 1974. Shortly thereafter, Mr. and Mrs. Thompson reconciled. The reconciliation was short-lived, however, and the parties were divorced in a subsequent proceeding.

This case was eventually tried on its merits on June 30, 1978, and judgment was thereafter rendered in favor of defendants, dismissing plaintiff’s suit, and she has appealed.

Plaintiff urges two basic grounds for the nullity of the sale. First she contends that it was fraudulently made in violation of the prohibition contained in Article 150 of the Civil Code; and second, it is argued that the transfer to the elder Mr. Thompson was a simulation.

Article 150 of the Civil Code provides: “From the day on which the action of separation shall be brought, it shall not be lawful for the husband to contract any debt on account of the community, nor to dispose of the immovables belonging to the same, and any alienation by him made after that time, shall be null, if it be proved that such alienation was made with the fraudulent view of injuring the rights of the wife.”

It is not disputed that, at the time of the sale to the father, Mr. Thompson had the right to alienate the immovable property of the community. Civil Code, Article 2404. It is also settled that Mrs. Thompson is not a “third person” with respect to sale of community property, so that it is not important that the sale was registered subsequent to the filing of the separation suit. Provenzano v. Glaesser, 122 La. 378, 47 So. 688 (1908); Porterfield v. Parker, 189 La. 720, 180 So. 498 (1938); Smith v. Routon, 181 So. 684 (La.App.2nd Cir. 1938).

We further find that the filing of the suit can have no effect on the validity of the sale because the subsequent reconciliation of the parties had the effect of extinguishing the action. Article 152, Civil Code. Finally, we find no evidence that the sale was made with “the fraudulent view of injuring the rights of the wife.”

Plaintiff bases her claim that' the sale was a simulation on certain testimony of her former husband in an alimony rule held prior to their reconciliation. At that time, which was after the sale to his father, Mr. Thompson testified that he was paying the house note and a second mortgage note; that he considered these payments a community obligation; that he had to pay for the house; and that he considered it his home.

In this suit, William Eugene Thompson explained that, after the sale, he had agreed to pay the first and second mortgage notes in lieu of rent, and that the house was his home, although he no longer owned it. After the reconciliation, the parties continued to live in the house and pay the notes until they finally separated. Thereafter, they both moved out, and Marion Eugene Thompson, the father, rented the house to other persons. Mr. Marion Thompson testified that after he agreed to take title to the house, he contacted the homestead association to see if the transfer was all right. The homestead agreed, and the transfer then took place. He further testified that he could not afford to pay the notes without some rental, and that his son agreed to pay the notes in lieu of rent. When his son moved out he rented the house to other persons, and paid the notes himself. He exhibited a receipt showing that he had paid off the second mortgage in full. He testified that he was the owner of the property.

A simulated sale has been said to be “one which has no substance at all, or is purely fictitious and a sham, an act of mere pretense without reality.” Spiers v. Davidson, 233 La. 239, 96 So.2d 502 (1957).

In this case, although Mr. William Thompson’s testimony, and his subsequent remaining in possession of the property and payment of the mortgage installments cast suspicion on the validity of the transfer to his father, the subsequent actions of the Thompsons make it clear that no simulation was intended, and that a genuine transfer of title to Marion Thompson took place.

The judgment appealed from is therefore affirmed, at plaintiffs cost.

AFFIRMED.


author: ELLIS, Judge.

text:
    Floyd FANGUY, Plaintiff and Appellant, v. Jimmy DUTHU and Danny Duthu, Defendants and Appellees (two cases).
    Nos. 12609, 12610.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Gordon Hackman, Boutte, for plaintiff and appellant.
    Cleveland J. Marcel, Jr., Houma, for defendants and appellees.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge.

Plaintiff, Floyd Fanguy, alleges that he was injured on February 16, 1976. He brought these two suits, No. 12609 for workmen’s compensation benefits and No. 12610 for damages for personal injuries. In both cases, Jimmy Duthu and Danny Duthu were named as defendants. These cases were consolidated in the trial court.

In case No. 12609, defendant filed a peremptory exception of failure to join an indispensable party. No further action has been taken in that case, the exception not having been heard and no judgment having been rendered therein. It is not, therefore, before us, despite the order of consolidation.

In case No. 12610, the tort suit, the defendants filed peremptory exceptions of no right of action, no cause of action and failure to join an indispensable party. The first exceptions are based on the allegations that plaintiff was injured in the performance of his work as a washer supervisor at Gold Crest Cleaners, Inc., and that his only remedy is under the Workmen’s Compensation statutes. The exception of failure to join an indispensable party is based on the allegation of employment by Gold Crest, and a further allegation that plaintiff was not in the employ of Jimmy and Danny Duthu.

Shortly thereafter, plaintiff filed an amended petition, naming “Gold Crest Cleaners” as party defendant. On October 13, 1978, a hearing was held on the exceptions of no right and no cause of action, after which the exceptions were maintained, and a judgment signed, dismissing No. 12610. From that judgment plaintiff has appealed.

Of course, the exception of no right of action should have been overruled, since plaintiff obviously has the capacity to bring a suit for his own personal injuries.

For purposes of the exception of no cause of action, no evidence may be received, and all well pleaded allegations of the petition are taken as true. Article 931, Code of Civil Procedure. Plaintiff has alleged in his petition that he injured his right arm on February 16, 1976, because of the negligence of Jimmy and Danny Duthu in a number of respects which are detailed in the petition, and asks for damages arising therefrom. These allegations, taken as true, set forth a cause of action.

However, plaintiff further alleged that Jimmy and Danny Duthu were his employers. This allegation, taken as true, would limit the cause of action against those defendants to one in workmen’s compensation rather than tort. R.S. 23:1032 and 1101.

It may be that the foregoing fatal defect in plaintiffs petition could be removed by amendment. Plaintiff was not afforded this opportunity, as required by Article 934 of the Code of Civil Procedure.

The judgment appealed from is therefore reversed and set aside; plaintiff is granted 15 days from the effective date of this judgment within which to amend his petition to state a cause of action; and the case is remanded to the trial court for further proceedings in accordance with law. Defendant shall pay all costs of this appeal, with all other costs to await final disposition of the case on its merits.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    John E. MORGAN, Individually and as Administrator of the Estate of his Minor Children, Douglas Morgan, Eric Morgan, and Wayne Morgan v. SOUTHWOOD ACADEMY and South Tangi Educational System.
    No. 12588.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      Max Mercer, Slidell, for plaintiff-appellant.
    Maurice Robinson, Hammond, for defendant-appellee.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is a suit by John E. Morgan, individually and as administrator of the estate of his minor children, Douglas Morgan, Eric Morgan, and Wayne Morgan, against Southwood Academy and South Tangi Educational System seeking an injunction enjoining the defendants from interfering with the attendance of the minor children at Southwood Academy and South Tangi Educational System; ordering the defendants to allow the minors to attend the defendant’s school system immediately; and enjoining South Tangi Educational System from interfering with plaintiff’s, John E. Morgan, rights and interests in the defendant corporation. From a judgment maintaining an exception of no right and no cause of action and dismissing plaintiff’s suit, plaintiff has appealed.

Plaintiff’s petition entitled “Petition for Injunctive Relief” reads in full as follows:

“PETITION FOR INJUCTIVE [sic] RELIEF”
“The petition of JOHN E. MORGAN, domiciled in Tangipahoa Parish, State of Louisiana, individually and appearing herein as the administrator of the estate of his minor children, respectfully says this:
I.
“Plaintiff is the father of DOUGLAS, ERIC and WAYNE MORGAN, who are the unemancipated minor children and legitimate issue of the marriage of petitioner and ARLENE STRAHAN.
II.
“Defendant, SOUTHWOOD ACADEMY, is a privite [sic] school located in Tangipa-hoa Parish at Yokum Road, Hammond, Louisiana.
III.
“Defendant, SOUTH TANGI EDUCATIONAL SYSTEM, is a domestic nonprofit corporation that owns and adminsters [sic] SOUTHWOOD ACADEMY.
IV.
“Plaintiff, JOHN E. MORGAN’S [sic] children, have been students in no other school than SOUTHWOOD ACADEMNY [sic] since the school year commencing in 1974, his daughter, KIM, being an alumna who graduated in 1978.
V.
“Plaintiff JOHN E. MORGAN’S other three (3) children for whom he is suing to enforce their rights, were all students in good standing at SOUTHWOOD ACADEMY for the school year 1977-1978. ERIC, DOUGLAS, and WAYNE, each successfully completed the prescribed courses for his respective grade level and were passed to the next grade for the school year 1978-1979.
VI.
“During the summer break, however, ERIC, DOUGLAS and WAYNE MORGAN, represented herein by their father, learned that they were no longer students at SOUTHWOOD ACADEMY, and would not be allowed to continue their schooling for the impending 1978-1979 school year.
VII.
“On June 13, 1978, suddenly and without any notice or warning whatsoever, plaintiff, JOHN E. MORGAN, was informed by a letter from the Chairman that membership privileges in the SOUTH TANGI EDUCATIONAL SYSTEM and SOUTHWOOD ACADEMY ‘. . . are hereby revoked’.
VIII.
“Revocation of plaintiff JOHN E. MORGAN’S membership in SOUTH TANGIE [sic] EDUCATIONAL SYSTEM allegedly is being attempted ‘As a result of serious infractions of our rules and policies as provided in the Charter and By-laws which govern us’ and ‘was made principally as a result of the action of MRS. MORGAN on May 30, 1978.’
IX.
“Plaintiff JOHN E. MORGAN is part owner of the nonprofit corporation and as [sic] a real ownership right therein as evidenced by the certificate of membership which he purchased.
X.
“ERIC, DOUGALS [sic] and WAYNE MORGAN were arbitrarily and capriciously dismissed as students and refused the right to return to school at SOUTHWOOD ACA-DANY [sic] and SOUTH TANGI EDUCATIONAL SYSTEM without any probable cause. •
XI.
“The defendants acted without any color of due process when they autocratically and as if by whim took board action to forbid them attending school, all without any warning or notice of any rule violation or infraction of any sort.
XII.
“Plaintiff learned after the attempted taking of his corporate rights and the attempted revocation of his children’s school rights, that his wife had an argument with a teacher on May 30, 1978 over a lost book fine.
XIII.
“Plaintiff shows that the fine was paid and the school refused to give the report cards until apologies were made by his wife.
XIV.
“Apologies having been refused, they, the teacher and assistant headmaster, asked for the Morgan children’s expulsion and succeeded, all actions without knowledge of plaintiff or his children.
XV.
“The By-Laws of the defendant corporation provide:
‘Any able student who satisfies the Board of his intellectual, moral and personal qualifications by examination and interview, shall be admitted and permitted to remain enrolled as long as his progress and conduct are in accord with the best interest of the school.’
And, plaintiff shows that ERIC, DOUGLAS and WAYNE MORGAN have progressed and conducted themselves in accordance with the best interest of the school.
XVI.
“ERIC, DOUGLAS, and WAYNE MORGAN recived [sic] no warning of possible consequence of their mother’s actions, nor did plaintiff herein, neither were they or the plaintiff given a hearing prior to the action of the Board or even a notice of the hearing prior to being expelled as students of SOUTHWOOD ACADEMY, and hence, were denied due process of law in violation of the Louisiana Constitution of 1974, Article I, Section 2.
XVII.
“Further, the action is illegal and not founded upon any legal right in that the Board attempted to take away plaintiff’s corporate right in the corporation without due process of law in violation of the Louisiana Constitution of 1974, Artilcle [sic] I, Section 2.
XVIII.
“ERIC, DOUGLAS and WAYNE MORGAN and plaintiff, JOHN E. MORGAN, individually, have suffered irreparable injury and loss, and will continue to so suffer.
XIX.
“In order to protect plaintiff’s interests and rights, and those of ERIC, DOUGLAS and WAYNE, it is necessary that this Court permanently restrain and enjoin the defendants, its agents, agents and all other persons from interferring [sic] with the MORGAN childrens [sic] attendance at SOUTHWOOD ACADEMY and ordering that they be allowed to enter and attend school immediately, and enjoining and restraining the interferanee [sic] with plaintiff, JOHN E. MORGAN’S rights and interest in and to the SOUTH TANGI EDUCATIONAL SYSTEM.
XX.
“Plaintiff fears the continued and immediate irreparable injury to himself and his children and it is necessary that this court issue a preliminary injunction in the form and substance of the permanent injunction mentioned above.
“WHEREFORE, plaintiff prays that this Court issue a preliminary injuction [sic], and in due course a permanent injuction [sic] enjoining the defendants from inter-ferring [sic] with ERIC, DOUGLAS and WAYNE MORGAN’S attendance at SOUTHWOOD ACADEMY and SOUTH TANGI EDUCATIONAL SYSTEM; and ordering defendants to allow ERIC, DOUGLAS and WAYNE MORGAN to enter and attend school immediately; and enjoining SOUTH TANGI EDUCATIONAL SYSTEM from interferring [sic] with plaintiff, JOHN E. MORGAN’S rights and interest in the corporation; and that defendants be ordered to show cause why the preliminary injunction should not be issued as prayed for herein.”

In support of its exceptions, defendants argue that the corporation’s by-laws and charter do not guarantee the right of enrollment; that the Board of Trustees gave plaintiff every opportunity to be heard; that the mere allegation of irreparable injury without the recitation of facts to substantiate the claim is insufficient citing La. C.C.P. art. 3601; and that the trial judge was correct in relying on Flint v. St. Augustine High School, 323 So.2d 229 (La.App. 4th Cir. 1975), writ refused, 325 So.2d 271 (La.1976).

Initially, this court must distinguish between the exception of no right of action and the exception of no cause of action. The no right of action exception questions the interests the plaintiff has in the subject matter of the litigation. As stated by this court in Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212, 1214 (La.App. 1st Cir. 1977):

“[T]he objection of no right of action raises the question of whether a remedy afforded by the law can be invoked by a particular plaintiff. It relates specifically to the person of the plaintiff.”

A no cause of action exception involves the remedy sought by the plaintiff. The issue to be decided on the exception of no cause of action is whether the petition of the plaintiff alleges sufficient facts to afford to the plaintiff the remedy sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), Pettus v. Atchafalaya Wildlife Protective Society, 351 So.2d 790 (La.App. 1st Cir. 1977).

NO RIGHT OF ACTION

In support of the exception of no right of action, defendant introduced the corporation’s by-laws and charter asserting that the plaintiff has no right to compel the enrollment of his minor children in defendant’s private school. Irrespective of what the corporate by-laws and charter may provide as to any guarantees of enrollment, there is no question in the opinion of this court that plaintiff, John E. Morgan, as a member of the defendant corporation has an interest in the subject of this proceeding, and thus has a right of action.

Further, as to the rights of the plaintiff’s minor children, this court recognizes that a child has an interest in attending certain educational institutions. In Flint v. St. Augustine High School, supra, at 233, the trial court recognized that “[t]he school has an outstanding reputation, hard-earned and richly deserved. But these same considerations lend weight to plaintiffs’ contention that judicial review should be available to them. The right to graduate from a particular high school has a value directly related to the standing of the school.” Although the Fourth Circuit reversed the trial court’s decision, and held that the expelled students received the necessary minimum safeguards of due process; we find that the minor children of John E. Morgan have sufficient interest in the proceedings and thus they have a right of action.

NO CAUSE OF ACTION

In order to maintain the exception of no cause of action, this court must accept the facts as pleaded in plaintiff’s petition as true. No other evidence can be admitted by either party to support or defeat the exception. Dunaway Realty Co., Inc. v. Pulliam, 364 So.2d 198 (La.App. 1st Cir. 1978). In reviewing the petition with all doubts being resolved in favor of plaintiff-appellee, this court finds that the facts presented are insufficient to state a cause of action for injunctive relief. The petition taken as true factually establishes that John E. Morgan purchased a membership certificate in defendant’s corporation, that the minor children attended defendant’s Academy, and that they were barred admission to the Academy for the academic school year, 1978-1979. As a result of the minor children being unable to attend defendant’s Academy, plaintiff concludes that the children have and will continue to suffer irreparable injury and loss.

This court in Price v. State, Department of Public Safety, License Control and Driver Improvement Division, 325 So.2d 759 (La. App. 1st Cir. 1976) stated that “[i]n order to obtain a preliminary injunction, a plaintiff must make a prima facie showing that he would prevail on the merits of the case, and that he will suffer irreparable injury unless the injunction issues. Articles 3601 and 3609, Code of Civil Procedure.”

A petition for injunctive relief should contain allegations of facts entitling the plaintiff to the relief sought. State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La.App. 4th Cir. 1975). In Zibilich v. Rouseo, 157 La. 936, 103 So. 269, 271 (1925) our Supreme Court stated:

“[T]he pleader, in setting forth his grounds for relief by injunction, should allege ultimate facts, justifying the issuance of the writ instead of alleging mere conclusions of law; for the alleging of mere conclusions of law does not meet the requirements of pleading. [Citation omitted]”

The allegation that the children of the plaintiff have and continue to suffer irreparable injury and loss is a mere conclusion of law, and no facts are alleged in the petition to substantiate this conclusion. However, La.C.C.P. art. 934 provides:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

To grant plaintiff the opportunity to allege sufficient facts, the court must remand this case to permit the plaintiff sufficient time to amend his petition.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed and remanded, and IT IS HEREBY ORDERED, ADJUDGED and DECREED that plaintiff be allowed ten days from rendition of this judgment to submit an amended petition; all costs of this appeal to be shared equally by appellant and appellee.

REVERSED AND REMANDED.


text:
    WRIGHT INSURANCE AGENCY, INC. v. Rodie G. SCOTT.
    No. 12600.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Martin G. Schroeder, Jr., Baton Rouge, of counsel for plaintiff-appellant Wright Insurance Agency, Inc.
    Michael O. Hesse, Baton Rouge, of counsel for defendant-appellee Rodie G. Scott.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

Plaintiff, Wright Insurance Agency, Inc., filed a petition for foreclosure via ordinaria based on defendant’s promissory note and an act of mortgage. Defendant, Mrs. Rodie G. Scott, answered the petition asserting the affirmative defense of usury. From a judgment in favor of defendant, plaintiff has appealed, and defendant has answered the appeal.

On March 7, 1961, defendant executed a promissory note and mortgage in the amount of $4,008.51, bearing interest at the rate of 8% per annum from date, and payable in monthly installments of $65.00. During the course of this loan, plaintiff paid for insurance and a repair bill which were charged against the outstanding principal balance. Throughout the course of repayment, defendant was late in making some payments. When a late payment was made, a penalty or late charge ranging from $2.00 to $5.00 was assessed. These charges were never credited to either principal or interest. On May 4, 1973, plaintiff filed suit to collect a principal balance of $4,874.00, plus 8% per annum interest from December 2, 1972, and attorney’s fees.

The trial judge held the penalty or late charges constituted usury, thus forfeiting all interest on the note. La.R.S. 9:3501. After crediting the principal due with all interest paid, the trial court rendered judgment in favor of plaintiff for $1,080.07 with legal interest thereon from May 4, 1973, plus attorney’s fees and all costs.

In appealing, plaintiff contends the trial judge erred in holding that the note was usurious, and that the defendant had not carried her burden of proof. Defendant has answered the appeal contending that no interest should be due on the judgment rendered.

Plaintiff argues that usury is determinable from the face of the instrument, and the promissory note in this case is not usurious on its face citing Grunewald v. Bartholomew, 269 So.2d 274 (La.App. 4th Cir. 1972), Paulat v. Pirello, 345 So.2d 527 (La.App. 1st Cir. 1977). We disagree. In Paulat v. Pirello, 353 So.2d 1307, 1310 (La.1977) the Supreme Court said:

“Grünewald under its facts is a correct statement of principle. It does not, however, purport to legitimize, as non-usurious, payments exacted after execution of a note not usurious on its face, when such subsequent payments in fact and by agreement of the parties constitute usurious interest.”

We agree that the penalty or late charges assessed constituted usury, Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973), Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973), thus resulting “in the forfeiture of the entire interest so contracted.” La.R.S. 9:3501.

Further, plaintiff asserts that each penalty assessment was a separate agreement and thus, only the penalty charges are forfeited since the note contains no usurious interest, citing Paulat v. Pirello, 353 So.2d 1307 (La.1977). We distinguish this decision in that the usurious interest was not in the form of penalty charges. The implied agreement between the Wright Agency and defendant for the payment of penalty charges by its nature will not terminate until the debt is extinguished.

We disagree with plaintiff’s contention that the defendant failed to carry her burden of proof as to usury. Defendant’s answer clearly pleads the affirmative defense of usury, and we are convinced by the record that she established that penalty charges were assessed which were neither credited to principal nor interest.

As to defendant’s answer to the appeal that the trial judge erred in awarding legal interest, we disagree. La.R.S. 9:3501 only mentions interest contracted for, and being a penal statute, must be strictly construed.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


text:
    Donnie D. MIRE v. ORMET CORPORATION.
    No. 12605.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writ Refused June 11, 1979.
    E. Wade Shows, Adcock & Dupree, Baton Rouge, for plaintiff and appellant.
    Leonard Kilgore and William R. D’Ar-mond, Sanders, Downing, Kean & Cazedes-sus, Baton Rouge, for defendant and appel-lee.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is a suit by Donnie D. Mire seeking judicial review of a refusal by the Ormet Corporation to grant plaintiff a disability pension under a private pension plan. From a judgment maintaining defendant’s peremptory exception of prescription, plaintiff has appealed. Defendant has answered the appeal as to the denial of its declinatory exception of lack of jurisdiction over the subject matter.

Mr. Mire worked for Ormet Corporation, defendant-appellee, as a “press floor crane-man” in excess of ten years. On October 29, 1973 appellant left his employment on sick leave. Appellant remained on sick leave until October 9, 1975 when he applied for a disability pension.

Mr. Mire’s application for disability pension benefits was denied on December 11, 1975.' Under Section VII-Appeal Procedure, of the Ormet Pension Plan, the United Steel Workers of America, Local Union 14465 of which Mire is a member, challenged the denial of Mire’s application and selected their physician on December 22, 1975. In compliance with Section VII, the union’s physician and the corporation’s physician selected a third neutral physician, Dr. David Wall. On February 20, 1976 Dr. Wall rendered an extensive report to the medical department of Ormet Corporation. Apparently based on that report, Mire’s appeal of the denial of his application for disability pension benefits was denied. The letter denying the appeal is dated March 26, 1976. Appellant filed suit March 23, 1978.

EXCEPTION OF PRESCRIPTION

In support of its exception defendant argues that a disability pension is within the meaning of the term wages for purposes of La.C.C. art. 3534 which in part provides:

“The following actions are prescribed by one year:
******
‘That of workmen, laborers and servants for the payment of their wages. *

In contending that a disability pension should be treated as wages defendant argues that a pension, like hourly wages, is not a gratuity but is earned income, T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975); a pension is commonly regarded as deferred wages, Daniel v. International Brotherhood of Teamsters, Etc., 410 F.Supp. 541 (N.D.Ill.1976) affirmed 561 F.2d 1223 (7th Cir. 1977); payments due in pregnancy-related absences are benefits under health and temporary disability insurance or sick leave plans, and both sides agreed La.C.C. art. 3534 applied, Wilhite v. South Central Bell Tel. & Tel. Co., 426 F.Supp. 61 (E.D.La.1976); claim for overtime compensation and liquidated damages under the Federal Wage and Hour law was a claim for wages barred by one year prescriptive period of La.C.C. art. 3534, Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 31 So.2d 797 (1947); and that article 3534 applies to claims for “change of clothes time” under the Federal Wage and Hour law, Hitzman v. Ethyl Corporation, 42 So.2d 155 (La.App. 1st Cir. 1949). Additionally, defendant cites Stell v. Caylor, 223 So.2d 423 (La.App. 3rd Cir. 1969) writ refused 254 La. 778, 226 So.2d 770 (1969) where in construing La.R.S. 23:631 the court said “the term ‘wages’ has been interpreted to include all types of remuneration for personal services, such as salaries, commissions, bonuses, expense allowances for which the employee does not have to account, paid vacations, etc.” See also St. Paul Fire & Marine Insurance Co. v. Richard, 208 So.2d 35 (La.App. 3rd Cir. 1967) writ denied 252 La. 171, 210 So.2d 54 (1968) where the court said that wages do not have to be paid in cash, and American Sugar Company v. Doy-al, 237 So.2d 415 (La.App. 4th Cir. 1970) holding that wages are “all remuneration for services.”

The gravamen of plaintiff’s argument is that the provisions of the present Civil Code article 3534 dealing with wages can be traced back as far as the Code Napoleon of 1804, and thus it is unrealistic to contend that the redactors of our code intended wages to include disability pensions or benefits.

We are ever mindful that statutes of prescription must be strictly construed. Guillot v. Guillot, 346 So.2d 813 (La.App. 1st Cir. 1977).

Excepting for Wilhite v. South Central Bell Tel. & Tel. Co., supra, and Johnson v. Anderson-Dunham Concrete Co., Inc., supra, the cases cited by defendant do not construe La.C.C. art. 3534 so as to enlarge the normal meaning and understanding of the term wages. Without the constraints of the strict construction rules applicable to prescription, the term wages can be easily broadened so as to encompass more than mere salary.

In the Wilhite ease overtime compensation does not strain ones imagination as to whether this should be considered as a wage. There is an understandable relationship between the number of hours an individual works and the amount he is paid. The same is true in Johnson v. Anderson, supra, where the employer required employees to report to work early so as to change clothes. This extra time benefited the employer, and not the employee.

The theory of stricti juris would require that if there is any doubt as to whether disability benefits are to be included within the term wages as found in La.C.C. art. 3534, such doubt must be resolved in favor of plaintiff. Needless to say, this court has grave reservations as to whether disability benefits were ever intended to be included within the term wages as found in article 3534, and thus we find this article not applicable. The general prescriptive article governing contracts is La.C.C. art. 3544, which provides a ten year period.

EXCEPTION OF JURISDICTION

La.C.C.P. art. 1 provides:

“Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.”

La.C.C.P. art. 2 provides:

“Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.”

Defendant in answering the appeal and reasserting its exception of jurisdiction over the subject matter argues that by contract the parties agreed to an appeal procedure, which was utilized, and thus the courts of this state do not have jurisdiction. The defendant further argues that in the absence of fraud or bad faith, such grants of discretionary authority are effective and binding upon persons claiming benefits and the decision of the designated authority is not reviewable, citing Menke v. Thompson, 140 F.2d 786 (8th Cir. 1944) and 60 Am. Jur.2d “Pension and Retirement Funds” § 77 (1972). We generally agree with this statement; however, we feel that defendant has relied upon the wrong exception. Taking the defendant’s exception to its ultimate end, this court would not have jurisdiction over the subject matter to even entertain suits where fraud or bad faith is alleged. Further, we are of the opinion that absent legislative authority, it is against the public policy of this state for such contractual provisions to be so interpreted as to deny access to the courts.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed insofar as it overruled the exception of lack of subject matter jurisdiction, and it is reversed insofar as it maintained the exception of prescription; and this case is remanded to the trial court for further proceedings not inconsistent with the views expressed herein. All costs of this proceeding are to be paid by defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: BAILES, Judge.

text:
    Francis J. TOUPS v. Dovie CUROLE, wife of Francis J. Toups.
    No. 12591.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    John T. Bourgeois, Thibodaux, for petitioner and appellant.
    Steven B. Mayer, Houma, for defendant and appellee.

      Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

This appeal involves the correctness of the quantum of the award of child support the plaintiff-father was ordered to pay for support of his child, Francis J. Toups, Jr., issue of the marriage between the parties. In the divorce judgment dissolving the parties’ marriage no alimony was awarded to the defendant.

That portion of the judgment about which this appeal is involved is, as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above child support award is divided as follows: One Hundred Seventy-five and No/100 ($175.00) Dollars is for the support of the child and One Hundred and No/100 ($100.00) Dollars is for the care of said child.”

Simply stated the issue is: Within the context of the facts herein, is a father obliged to pay the defendant-mother for the daily care of their child.

The record is barren of any notes of evidence, save and except two exhibits in the record one of which appears to be an itemization of the defendant’s total household expenses and the other is an itemization of the total living expenses attributable to the child of the parties.

Apparently there are four persons living in the defendant-mother’s home. These include the defendant-mother, two children of her first marriage and the child, Francis Toups, Jr., whose age at this time appears to be five years. The ages of the other two children of a prior marriage are not shown.

It is not disputed that the monthly living expenses of this household is $555, of which amount $178 is attributable to the child, Francis Toups, Jr.

LSA-C.C. Article 227 provides:

“Fathers and mothers, by the very act of marrying contract together the obligation of supporting maintaining, and educating their children.”

By the trial court’s reasons for judgment it is clear that the mother is not remaining away from employment for the purpose of caring for the child. The trial court stated:

U % * *
“In this respect the evidence reflects that the plaintiff father’s monthly net income is $950.00 and his monthly expenses are $581.00. On the other hand, the sole income of the defendant mother is $100 per month which sum was awarded as child support in a previous judgment for the two children by her first marriage. Her monthly expenses for the support of the minor, Francis Toups, Jr., total $178.00 and the expenses she would ordinarily incurr (sic) for the day care of the child if she worked would total $200 per month. However, she has not been gainfully employed since she was first married. All of her time is spent in providing for the daily care of her children.
“The defendant is 34 years of age; she has an eighth grade education; she lives four and one-half miles from the nearest town where there are no job opportunities; and she does not own an automobile. Since the income with which she must provide for the minor child is non-existent and since her ability to earn is very limited the court finds that the bulk of the child’s financial support should be born by the father.
“The court further considers the service that she renders in the daily care of the minor child to be an added expense for which she has not been compensated. If she would find employment the income earned thereby would be minimal and most of it would be expended for the cost of day care or baby-sitting. Any such employment would therefore not be gainful employment.
<< * * »

It is clear that the father is paying the full monetary support of his child. We find no error in this award and the father makes no complaint of this determination. We find, however, that the trial court abused its much discretion in condemning the father to pay the mother for her daily care of their child. Herein the custodial mother is not entitled to be compensated by the father as this is her contribution of the father and mother’s mutual obligation which they contracted together in their marriage.

The day to day care, guidance and supervision of the child, including the preparation of meals, washing, ironing and mending of clothes and the performance of myriad other things required of a custodial parent is the defendant-mother’s contribution to the mutual obligation óf support. The father is paying for the total monetary support of the child. See Ducote v. Ducote, 339 So.2d 835 (La.1976).

For the foregoing reasons, the judgment appealed is amended by decreasing the award for the support of Francis J. Toups, Jr., to $175 per month. Cost of this appeal to be paid by plaintiff-appellant.

AMENDED AND AFFIRMED.