author: JONES, Justice.

text:
    Dan ALBRITTON, Plaintiff-Appellee, v. William R. McDONALD et al. d/b/a McDonald Quarter Horse Farm, Defendants-Appellants.
    No. 13617.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc, Nov. 14, 1978.

    Writ Refused Jan. 12, 1979.

      Goff, Goff & Levy by Robert W. Levy, Ruston, for Dan Albritton, plaintiff-appel-lee.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for William R. McDonald et al., d/b/a McDonald Quarter Horse Farm, defendants-appellants.
    Before PRICE, MARVIN and JONES, JJ.

       Price, J., dissents from refusal to grant rehearing on question of venue.

   JONES, Justice.

Defendant seller of a quarter horse appeals from a judgment awarding damages to the plaintiff buyer arising out of the seller’s intentional or negligent .failure to inform the buyer that the quarter horse was infected with swamp fever. The buyer answers, contending that he should have been allowed his attorney fees and damages for mental anguish and for loss of anticipated profits. We amend to allow attorney fees and affirm.

Swamp fever is the popular name for equine infectious anemia, an incurable disease which seriously affects the worth of any horse. Opinion evidence in this case conflicts as to whether or not a horse with the chronic, least serious, form of swamp fever should be used even for breeding purposes employing artificial insemination.

The seller asserts three assignments of error, all of which are factual:

Was the horse (Mim’s Lady) infected when sold?

Was the seller aware of the infection?

Did Mim’s Lady infect two other horses which were pastured by the buyer for several weeks with the horse purchased from defendant?

The lower court found that the seller’s veterinarian tested Mim’s Lady (then known as King’s Mim Mare) eight months before the sale to the buyer and that the veterinarian informed the seller of the positive test. The lower court also noted the veterinarian’s testimony that he was requested by the seller to destroy the test results and not to attend the sale. The seller admitted that he had at least two conversations with the veterinarian about the positive test results.

When swamp fever symptoms appeared several weeks after the purchase of Mim’s Lady, she and two horses with which she was pastured were tested positive by plaintiff’s veterinarian. The lower court found that it was more probable than not that the other two horses were infected by Mim’s Lady.

The record supports the lower court’s factual findings and we adopt them as detailed below and summarized here. Judgment below ($1,985) was for the amounts plaintiff paid for the three horses and included $750 as the cost of quarantining and treating the animals before their disposal. We find no abuse of discretion in the lower court’s findings or award.

Appellee’s Answer to Appeal

Plaintiff complains on appeal that the lower court should have allowed him additional damages for his business loss (reasonably anticipated breeding production) and for his personal mental anguish and anxiety arising from his concern for the health of his other horses. The lower court found proof of these elements of damage “too speculative” and declined to award any damages. While there is some evidence of plaintiff’s anxiety, this is essentially a factual evaluation best made by the trier of fact and we find no abuse of discretion.

Plaintiff also complains on appeal that he should have been allowed attorney fees because the facts upon which plaintiff’s recovery is based smack not only of tort, but redhibition as well. C.C. Art. 2545. Venue, or its absence, compounds this issue.

Defendant was domiciled in Jackson Parish. The sale occurred in Ouachita Parish. Plaintiff put the horse in his pasture in Union Parish where the damage was sustained and where plaintiff was domiciled. Plaintiff’s original pleadings sufficiently alleged the factual basis and properly prayed for attorney fees.

After defendant filed several exceptions, the trial court ordered plaintiff to delete from his petition any reference to the remedy of redhibition. We denied plaintiff’s application for supervisory writs. Docket No. 13,021, June 1, 1976.

Venue means the parish where an action may properly be brought. C.C.P. 41. The word action in the Code of Civil Procedure means the action which is or which may be instituted by a party as opposed to the party’s right to institute the action. See Comments, particularly par. (a), under C.C.P. 421.

Defendant’s intentional or unintentional failure to declare to plaintiff the vice which defendant knew existed in the horse at the time of the sale to plaintiff is the ground which gives plaintiff the right to institute the action. See Mitchell v. Bertolla, 340 So.2d 287, 291 (La.1976). Recovery could be allowed under either or both, the theory of tort (C.C. Art. 2315) and the theory of redhibition (C.C. Art. 2545), upon allegations and proof of sufficient facts. It is not necessary to plead a theory of recovery. Fact pleading alone is sufficient. Royal Furniture Co. of Baton Rouge v. Benton, 260 La. 527, 256 So.2d 614 (1972); Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618 (La.App. 2d Cir. 1975).

The general rule of venue (where an action may properly be brought) in C.C.P. 42 is that an action against an individual shall be brought in the parish of his domicile. This general rule is subject to certain exceptions. C.C.P. 43. An action for an offense (intentional tort) or for a quasi-offense (unintentional tort) may be brought in the parish where the damages were sustained. C.C.P. 74. If there is a conflict between the venue provided by Art. 42 (defendant’s domicile) and Art. 74 (parish where damage sustained), the plaintiff may bring the action in either parish having venue. C.C.P. 45.

In Smith v. Baton Rouge Bank & Trust Co., 286 So.2d 394 (La.App. 4th Cir. 1973), plaintiffs alleged certain facts and prayed for an injunction against execution of a judgment rendered in favor of the bank by the Orleans court and for a money judgment against the bank because the bank was unjustly enriched by the transaction between itself and plaintiff. The bank filed an exception of improper venue, contending it should have been sued at its parish domicile. The Orleans court had venue as to the injunctive relief but presumably would not have had venue as to the unjust enrichment relief. The Fourth Circuit properly noted that it was not presented with an improper cumulation of unrelated actions where venue existed in one but not in the other and that its case was one in which the claim for unjust enrichment is based on the same factual allegations that serve as a basis for the injunction. 286 So.2d 396. Our situation is similar.

We agree with the holding in Smith that where a plaintiff has the right to institute an action on two or more claims arising out of one factual circumstance and that where venue is proper as to one claim, the disposition of which would affect the second claim as to which, if standing alone, venue might not be proper, the court has the venue of the action to decide both claims in the interest of efficient judicial administration, and the court therefore should overrule an exception to the venue.

Considering the mandate of C.C.P. 5051 that the rules of procedure implement substantive law and are to be liberally construed, we choose not to require a litigant in these circumstances to select a theory of his case which might deprive him of relief to which the substantive law entitles him. Comment (b), C.C.P. 862. See Castille v. Folck, 338 So.2d 328 (La.App. 3d Cir. 1976).

Whether in tort or in redhibition, plaintiff in these circumstances is entitled to damages. C.C. Arts. 2315, 2545. Attorney fees are allowable under 2545 and may be fixed by an appellate court. Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App. 4th Cir. 1977).

This case was filed in February, 1976. The minutes reflect that hearings were held on various matters on six separate days. Trial on the merits occurred on two days. Considering also the numerous pleadings and the briefs on appeal and the amount of recovery, we consider that an award of attorney’s fees of $2,000 will achieve substantial justice.

Judgment below is accordingly amended and

IT IS ORDERED AND ADJUDGED that there be judgment in favor of plaintiff for the additional amount of $2,000.00 as reasonable attorney fees'.

As thus amended, judgment is AFFIRMED at the cost of appellants.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    James Kenneth HOWARD, Plaintiff-Appellee, v. Robert Lemoine LANGEVIN et al., Defendants-Appellants.
    No. 13621.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc. Nov. 14, 1978.

      Richie & Richie, Shreveport, for defendants-appellants.
    Cryer & Harp, Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Defendant Langevin appeals from a judgment which enjoins him from using his 1.1 acre lot until the subdivision regulations contained in Caddo Parish Ordinance No. 1268 of 1970 and the zoning regulations contained in Caddo Parish Ordinance No. 798 of 1957 have been complied with. Defendant Langevin’s lot was subdivided from a larger tract owned by defendant Turk.

We affirm.

The Caddo Parish subdivision regulations prohibit any lot under five acres from being subdivided or sold without first recording a plat prepared in accordance with the regulations and approved by the Planning Commission. These regulations require each lot so subdivided to front upon a public road. The lot acquired by Langevin was by metes and bounds description and there was no prior recorded plat reflecting its relationship to the parent tract nor showing frontage on a public road. It in fact had no public road frontage.

The plaintiff owned approximately 12 acres which bordered Langevin’s lot on the north and west side. The plaintiff’s home was constructed immediately north of the Langevin lot and plaintiff’s front yard was adjacent to Langevin’s north line. The plat contained in the opinion rendered in Robert Lemoine Langevin et ux vs. James Kenneth Howard, No. 13,622, a ease consolidated with this one for trial, reflects the property owned by the plaintiff and defendants Lan-gevin and Turk.

Langevin’s only access to his lot, on which he had placed an immobilized mobile home, from the public road shown on the south end of the plat is along the 50 foot strip which is owned by the plaintiff and on which plaintiff has constructed a 10 foot private drive.

The Caddo Parish zoning regulations prohibit erection of any fence in a front yard of a height in excess, of three feet. The defendant constructed across the north line of his lot a 100 foot long, 6 foot high solid cedar board fence. This fence on the west end divided Langevin’s front yard from the front yard of the plaintiff.

On appeal Langevin assigns no error to the trial judge’s findings that there was a violation of the subdivision ordinance and the zoning regulation ordinance. His sole assignment of error is the capacity of the plaintiff to institute this cause of action. Plaintiff’s right to bring this action is based upon La.R.S. 33:140.33:

“The city council and the police jury may provide for the enforcement of any ordinance enacted under this Sub-part. A violation of any such ordinance is hereby declared a misdemeanor. In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, converted, or maintained, or any building structure, or land is or proposed to be used in violation of any ordinance enacted under this Sub-part, the building inspector, permit and zoning clerk, municipal or parish counsel, or other appropriate authority of the municipality or of the parish, or any adjacent or neighboring property owner who would be specifically damaged by such violation, may, in addition to other remedies, institute injunction, mandamus, or other appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, or use, or to correct or abate such violation, or to prevent the occupancy of such building, structure, or land.”

Langevin contends the plaintiff failed to establish he had been specifically damaged by virtue of Langevin’s violations of the ordinances and for this reason plaintiff failed to qualify as a person entitled to seek injunction against Langevin’s violations.

The absence of a public road fronting on the defendant’s lot will necessarily result in all parties seeking ingress and egress to defendant’s lot attempting to use the plaintiff’s private drive which at present provides the only access to Langevin’s lot. The harassment and inconvenience which plaintiff will endure by virtue of the interference with his property rights by persons seeking access to Langevin’s lot when no access is available by public road amply establishes that the plaintiff “would be specifically damaged” by virtue of the violations of the subdivision regulations.

The construction of the six foot high fence along the south line of plaintiff’s front yard obstructs his view and detracts from the aesthetic value of his front yard and home and in this respect specifically damages the plaintiff.

The trial judge’s failure to award the plaintiff monetary damages does not detract from the fact that violations of the ordinances have specifically damaged plaintiff.

For reasons assigned, we affirm the trial court’s judgment. All costs on appeal are assessed against defendant Langevin. The manner in which the costs were assessed in the trial court’s judgment shall remain unchanged.


author: BOLIN, Judge.

text:
    Eugene A. HARPER et al., Plaintiffs-Appellants, v. Harold O’NEAL et al., Defendants-Appellees.
    No. 13623.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc. Nov. 14, 1978.
    Writ Refused Jan. 12, 1979.

      Hamilton, Carroll & Miller by Donald K. Carroll, Oak Grove, for plaintiffs-appellants.
    Brown, Wicker & Lee by O. P. Barnes, III, Monroe, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Plaintiffs, Eugene A. Harper and Marlene O’Neal Smith, own a 196-acre farm in indivisión with the defendants, Harold and Huey O’Neal. After Harper began planting a sweet potato crop on a thirty-three acre tract on the farm, Harold O’Neal plowed up and totally destroyed the recently planted potatoes. Harper brought shit seeking damages for expenses incurred in planting the crop ($8,948) and Harper and Smith sought damages for the anticipated value of the crop upon harvest (about $120,-000). The trial court granted judgment in favor of Harper for $5,663, which covers some of the planting expenses, but denied recovery for the value of the crop upon harvest. Plaintiffs appeal and defendants answer the appeal contending plaintiffs should recover nothing. We modify the judgment and grant Harper an increase of $2,340 to cover labor costs incurred for irrigating and transplanting.

The issues are: (1) Did the trial court err in not awarding damages for the loss of the crop and in excluding evidence relevant to this issue? (2) Did the trial court err in not awarding damages for labor costs incurred for irrigation and for pulling and transplanting the potato plants?

The facts surrounding the planting and destruction of the sweet potatoes are briefly as follows. The owners of the land were unable to agree on a farm leasing arrangement for 1977. On May 20, 1977 Harper, with the consent of Smith, began preparing a 33-acre tract on the farm for a sweet potato crop. In the event the crop was successful Smith was to receive $2,500. Harper plowed the land with a tractor, irrigated, fertilized and pulled potato slips from a plant bed for transplanting. On June 24 Harper began transplanting the slips and completed 24 acres. When Harper tried to finish the transplanting operations the next morning, Harold O’Neal, with the consent of Huey O’Neal, destroyed all the potato plants by plowing them up. This litigation followed.

As a threshold issue defendants contend the plaintiffs had no right to plant the tract with sweet potatoes because they had no right to control this tract to the exclusion of the other co-owners. We find this argument to be without merit. Co-owners of property are entitled to make use of the property for its intended purpose. Stinson v. Marston, 185 La. 365, 169 So. 436 (1936); Pettus v. Atchafalaya Wildlife Protective Society, 351 So.2d 790 (La.App. 1st Cir. 1977); LeBlanc v. Scurto, 173 So.2d 322 (La.App. 1st Cir. 1965). Since the land involved in this litigation is farmland, planting sweet potatoes is a proper use of the property by the plaintiff co-owners.

Plaintiffs argue the trial court erred in not awarding damages for the loss of the sweet potato crop upon harvest and in excluding evidence pertinent to this issue. Plaintiffs correctly contend damages for lost profits may be awarded when a “growing crop” - is destroyed. Trahan v. Florida Gas Transmission Co., 208 So.2d 550 (La.App. 3rd Cir. 1968) and cases discussed therein.

The trial court did not assign written reasons for rejecting this demand. However, the record indicates the trial judge thought such damages were too speculative under the circumstances of this case because the potato plants were not a “growing crop” at the time of destruction. After making this determination, the trial court excluded evidence pertaining to the value of a harvested sweet potato crop and the manner in which sweet potatoes are grown. Such evidence, however, was introduced under an offer of proof. The trial judge erred in not admitting this evidence before making his ruling. A consideration of this type of evidence is one way of determining if the young plants were a growing crop and, if appropriate, the amount of damages.

To support the argument that a growing crop was destroyed, plaintiffs rely heavily on the fact that sweet potatoes are transplanted from potato slips which have been raised in a plant bed. None of the jurisprudence relied upon by plaintiffs establishes the stage of development at which a crop is considered “growing”. Common sense, however, tells us that a growing crop was not destroyed here. The transplanted sweet potato slips were in the soil less than twenty-four hours. Moreover, the field was still in the process of being planted. Considering all the evidence, including that introduced under the offer of proof, we find no error in the ruling rejecting the demand for lost profits.

Because Harper had no documentary proof of his claims in the form of laborer time slips and payroll records for the 33-acre tract, the trial court rejected the claim for labor costs incurred in irrigating and transplanting. Harper explained he farmed different crops on over 1,000 acres and did not keep separate records for each tract or crop. His workers usually turned in their time orally and were paid weekly. The only records plaintiff could produce were cancelled checks which covered, among other things, payments for all his workers on all of his crops. Thus, plaintiff was unable to testify with certainty how many workers labored on the sweet potato tract or the number of hours worked on that tract.

However, relying upon his twenty-two years experience as a sweet potato farmer, Harper testified it cost $25 per acre to irrigate the sweet potato field and $50 per acre to pull and transplant the potato slips. Harper’s figures were corroborated by the testimony of a witness who farms sweet potatoes on land near that involved in this litigation. This witness testified it costs approximately $25 per acre to irrigate and $45 per acre to pull and transplant the slips.

We think the trial court imposed an unreasonable burden of proof on the plaintiff in this case. It is not necessary that documentary evidence be introduced to support a claim for damages. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). Plaintiffs testimony was based upon his lengthy experience as a sweet potato farmer and was supported by a witness who had grown sweet potatoes in that area for over 38 years. Accordingly, we find Harper should receive damages for his labor expenses. He is entitled to receive $825 for irrigation labor (33 acres at $25 per acre). The record indicates the $50 per acre for pulling and transplanting the potato slips can be broken down to $35 per acre for the pulling labor and $15 per acre for transplanting labor. Plaintiff pulled the plants for all 33 acres and should receive $1,155 for this. Because 24 acres had been transplanted at the time of destruction, plaintiff should receive $360 for this labor.

For the reasons assigned the judgment in favor of plaintiff Harper is increased by $2,340. In all other respects the judgment is affirmed at defendants’ cost.


author: HALL, Judge.

text:
    Charles M. TOLAR, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 13626.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc. Nov. 14, 1978.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Baton Rouge, for defendant-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, J. Michael McDonald, Baton Rouge, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

On a previous appeal in this case this court affirmed a judgment of the district court ordering the defendant, Department of Public Safety, to return to plaintiff, To-lar, his driver’s license and license plate which were taken by the Department under a suspension order issued pursuant to LSA-R.S. 32:424 and 414(E). The reason for our decision was that the Department, after holding a hearing at plaintiff’s request, failed to give notice of the suspension by certified mail as required by Section 414(E). Tolar v. State Dept. of Public Safety, 349 So.2d 992 (La.App. 2d Cir. 1977).

Plaintiff had sued for the return of his licenses and for damages. After the previous appeal and upon trial of the damage issue, the district court awarded plaintiff damages of $2,000 for the “wrongful seizure” of his driver’s license and license plate. The defendant appealed. We reverse, holding there was no fault on the part of the Department.

The issue on this appeal is whether the State, acting through the Department of Public Safety, was at fault, rendering it responsible for plaintiff’s damages occasioned thereby under LSA-C.C. Art. 2315.

In December 1974 the truck plaintiff was driving struck a telephone pole. Investigation revealed he had no liability insurance so the Department started proceedings-under the financial responsibility law. The accident also prompted the Department to request plaintiff to submit to a medical examination which he did in January. The examination revealed a history of grand mal epilepsy and a recent seizure. In February the Department notified plaintiff by certified mail that his license was being suspended pursuant to LSA-R.S. 32:424 and. that plaintiff would be granted a hearing if one was requested. Plaintiff requested a hearing. He was notified that the hearing was set for April 29 in West Monroe and that his failure to appear at the hearing would result in the suspension of his license. Plaintiff requested a change in the place of the hearing to which no response was made. Plaintiff did not attend the hearing. It was held in spite of his absence and a decision to suspend his license was made. Other hearings were scheduled in July and in September involving the financial responsibility matter which plaintiff settled to the Department’s satisfaction. On September 2, without notice of the decision reached at the April 29 hearing, a state trooper went to plaintiff’s home and took his driver’s license and vehicle license plate. This suit was filed by plaintiff a few days later.

The Department’s actions, taken within the scope of its authority and pursuant to its duty to enforce the licensing laws, were reasonable. Reasonable efforts were made to afford plaintiff the procedural protection required by the statute, and more. Plaintiff was afforded an opportunity for a hearing which was not required by the statute. See Price v. State, Dept. of Pub. Saf., Lic. Con. & D.I., Div., 325 So.2d 759 (La.App. 1st Cir. 1976); Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir. 1971). The Department gave him two notices of the suspension prior to the hearing, which the Department deemed to comply with the statute. This was a reasonable interpretation of the notice provision of the statute which had not previously been clearly interpreted judicially. On the previous appeal this court adopted another reasonable interpretation of the statute — that notice must be given after the hearing — and ordered return of the license and license plate because such notice was not given. Although the Department did not comply with the notice provision as subsequently interpreted by this court its actions at the time they were taken were reasonable, were not substandard, and did not amount to actionable fault. There was no breach of duty owed to the plaintiff and he is not entitled to damages.

For purposes of this decision, we have assumed most favorably to the plaintiff but without so holding, that special defenses of immunity or privilege are not available to the State in this case.

The judgment of the district court is reversed and set aside and there is judgment in favor of defendant and against plaintiff dismissing plaintiff’s suit at plaintiff’s costs.

Reversed and rendered.

      . LSA-R.S. 32:424:
      “The department, having good cause to believe that a licensed driver or chauffeur is incompetent or otherwise not qualified to be licensed, may upon written notice of at least ten days to the licensee require him to submit to an examination. Upon the conclusion of such examination the department shall take action as may be appropriate and may suspend or revoke the license of such person or permit him to retain such license, or may issue a license subject to restrictions as permitted under R.S. 32:423. Refusal or neglect of the licensee to submit to examination shall be ground for suspension or revocation of his license.”
      LSA-R.S. 32:414(E) reads in part:
      “Any person whose license has been suspended, cancelled or revoked by the department shall be notified of such suspension, cancellation or revocation in writing by the department, which notice shall be sent by certified mail to the last address furnished by such person; whereupon the said person shall within five days return his or her license to the department. The failure on the part of any person to comply with this provision shall be punishable as herein provided. Any person denied license or whose license has been suspended, can-celled, or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides . . .


author: MARVIN, Judge.

text:
    A. B. HARRIS, Jr., et al., Plaintiffs-Appellants, v. ARKANSAS LOUISIANA GAS COMPANY, Defendant-Appellee.
    No. 13630.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.

      Brown, Wicker & Lee by William D. Brown, Monroe, for plaintiffs-appellants.
    Blanchard, Walker, O’Quinn & Roberts by W. Michael Adams and Randall S. Davidson, Shreveport, for defendant-appel-lee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

In Harris v. Arkansas Louisiana Gas Co., 357 So.2d 1249 (La.App.2d Cir. 1978), we affirmed a preliminary injunction that prohibited Arkla from connecting its inter state pipeline to a gas well on plaintiff’s property when it was shown that the well had been first connected by the well operator to an intra state pipeline. The preliminary injunction was upheld to avoid the lower court being divested of jurisdiction to determine under state law whether or not the second pipeline was necessary as required by the lease provisions. That appeal was by Arkla.

From a judgment on the merits rejecting plaintiffs’ demands for a permanent injunction, this appeal was taken by plaintiffs.

The result of the judgment below is to relegate plaintiffs’ remedy to a claim either for damages or for additional royalty which might be owed because the lease provides that plaintiffs shall be entitled to royalty equivalent to market value. Arkla was assigned 25 percent of the working interest in the well, the production from which it is entitled to take in kind. The original lessee or other assignees own the remaining 75 percent working interest, the production from which has been sold intrastate. These assignees have refused to allow Arkla to extract its portion of production from the intrastate pipeline to avoid exposing their production to possible interstate regulation. Intrastate gas, being unregulated, may be sold to the ultimate consumer at a higher price than interstate gas. Arkla proposes to “split stream” or to divert its share of production at the well head into its separate pipeline.

Thus the crucial issue, even though labeled as secondary to the question of the necessity of the interstate pipeline, is whether or not plaintiffs will be deprived of a remedy under state law which might compel Arkla to pay on its 25 percent of production, royalty equivalent to market value as provided by the lease, IF market value should be determined to be the higher intrastate price, and notwithstanding that Arkla contracted to sell and has legally dedicated its gas subject to federal interstate regulation. Our consideration of federal cases is imperative because these cases, interpreting federal law, determine the extent of the jurisdiction remaining in the state courts.

Factual Background

Plaintiffs leased to Bradco, original lessee, in 1975. Bradco assigned 25 percent of its working interest to Arkla Exploration in 1976. On July 25, 1977, by a gas purchase contract, Arkla Exploration sold to its parent company, Arkla Gas, its share of production from about 15 leases in the area, including plaintiffs’ lease, together with the right to lay pipelines for the delivery of gas into the Arkla interstate distribution system.

Plaintiffs’ lease covers 480 acres in Section 8. The other leases referred to cover lands in Sections 4 and 9, Township 18 North, Range 13 West, Lincoln Parish. These three sections are contiguous. Arkla eventually applied for and obtained from the Federal Energy Regulatory Commission (FERC, formerly FPC) authority to deliver in interstate commerce, gas from wells in the three sections (plaintiffs’ well — called the Heard well — in Section 8, the Sturgis-Nix well in Section 4 and the Wilder well in Section 9). This authority was granted by FERC order of December 6,1977. On February 4, 1978, Arkla began delivering gas from the Wilder well into its interstate pipeline. It was an extension of this pipeline and its proposed connection to the Heard well which provoked this lawsuit, as illustrated by this diagram:

Plaintiffs did not show that any actual or contemplated use or peculiarities of the land would have been affected by Arkla’s connecting its pipeline to the well. Plaintiffs showed that 100 percent of production from the Heard well had been devoted to an intrastate market and contended that it was unnecessary for Arkla to market its share of the gas interstate. Plaintiffs argued below and here that because federal preemption precludes a state court from ordering an interstate working interest owner from paying royalty to a lessor based on a price above the regulated interstate gas price, a second pipeline for interstate purposes would be patently unnecessary and grossly unfair to plaintiffs. This argument is based on the premise that once the gas is dedicated to interstate use under federal law, the federal courts and FERC have the exclusive authority to determine the price which may be paid for gas from the time of its capture to the time it is ultimately consumed.

A related question stems from Art. 122 of the Louisiana Mineral Code (LRS 31:122) which provides:

“A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.”

Plaintiffs argue in this respect that the lease provision requiring that the pipelines be necessary should be interpreted in light of the lessee’s statutory obligation to reasonably and prudently develop and operate the leased property for the mutual benefit of the lessee and the lessor. Plaintiffs contend the Arkla pipeline is not necessary because the sale of a portion of gas interstate at a price lower than is being paid intrastate for the total production would be a violation of the lessee’s prudent development obligation.

Federal Preemption

The regulatory power of the FERC through the Natural Gas Act (15 U.S.C.A. §§ 717 et seq.) applies only to natural gas transported in interstate commerce, its sale in interstate commerce for resale, and natural gas companies engaged in such transportation or sale. 15 U.S.C.A. § 717(b); Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972).

In Mobil Oil Corporation v. Federal Power Commission, 149 U.S.App.D.C. 310, 463 F.2d 256 (1971) cert. denied, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed. 676 (1972), the court held that FPC — FERC had no jurisdiction over royalty payments to royalty owners who have retained a percentage interest in gas sold in interstate commerce.

Finding there was no “sale” in interstate commerce within the meaning of 15 U.S. C.A. § 717(b), the court concluded:

“The FPC is limited by the provision limiting its jurisdiction, and we do not find in that provision, rooted as it is in a sale of interstate commerce, any basis for reaching out to cover the landowner’s lease or its royalty payments. We think it is too far removed from the interstate sale.” 463 F.2d at 263.

There is then a crucial distinction between federal regulation of rates charged by producers who sell gas in interstate commerce and the absence of federal regulation of royalty payments themselves.

The FERC considers the amount of the royalty payment only to the extent to which the payment affects the cost of service. Mobil succinctly explained this limited consideration:

“(T)he FPC’s jurisdiction over rates chargeable by a producer includes authority to determine the reasonableness of costs incurred, even though these are not subject to direct FPC control, and that establishes authority to review royalty payments, or drilling rig rentals, or any other element of the producer’s cost of service. Permian Basin Area Rate Cases, 390 U.S. 747, passim and at pp. 824-825, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). And we interject that this is the only approach that even the FPC has in mind for handling other elements of the total payments made by producers to landowners, e. g., the cash bonus, delay rentals.” (Emphasis added). 463 F.2d at 263.

Placid Oil Company v. Federal Power Commission, 483 F.2d 880 (5th Cir. 1973), followed Mobil. While acknowledging royalty payments were relevant as to service cost interstate rate computations, Placid specifically reserved the determination and enforcement of royalty obligations to state law:

“Of course the royalty obligations of the producers are cost components of the rate structure. Any alteration of this component would necessarily alter the departure point of the rate calculations. And under the holding of the D. C. Circuit in Mobil, this would be an Erie determination of the contract stating the royalty percentage based upon the applicable principles of state law — totally beyond the control of the federal regulatory agency charged with the responsibility of regulating natural gas rates . . .”
“If, as subsequent events develop, the producers are put in a bind by their royalty obligations, they may certainly petition FPC for individualized relief.” 483 F.2d at 911.

The Fifth Circuit recently reiterated the existence of the distinction in Pennzoil Producing Co. v. Federal Power Commission, 553 F.2d 485 (5th Cir. 1977), on rehearing, 558 F.2d 816, cert. granted,-U.S.-, 98 S.Ct. 3068, 57 L.Ed.2d 1120 (1978). There interstate gas producers, “caught in the squeeze between the regulated price of its gas, which price included royalty costs at the interstate price, and the claims of landowners for increased royalty payments based on higher intrastate rates,” petitioned the FPC for relief, as provided by the Natural Gas Act and contemplated by Placid. The court, citing Mobil, delineated the jurisdiction of the FPC:

“Although the FPC does not have jurisdiction over the amount paid royalty owners, Mobil Oil Corp. v. FPC, 149 U.S. App.D.C. 310, 463 F.2d 256 (1971) cert. denied, 406 U.S. 976, 92 S.Ct. 2409, 32 L.Ed.2d 676 (1972), it does have authority over interstate rates charged by the producers.” (Emphasis added) 553 F.2d at 487.

Pennzoil held that the FPC had the authority to allow gas producers’ interstate price to be increased by the amount of increased royalty payments the producers were required to pay to royalty owners.

Plaintiffs additionally contend that if Arkla is allowed to connect the interstate pipeline to the Heard well, the gas attributable to Arkla’s interest will be permanently dedicated to interstate commerce and permanently placed under the exclusive jurisdiction of federal authority. This threatened dedication, plaintiffs say, will cause plaintiffs irreparable injury. This argument overlaps and is corollary to plaintiffs’ argument first discussed.

The recent case of California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978) illustrates the effect of the legal dedication feared by plaintiffs. There a lessee was given the right to produce and market gas for a period of 50 years. When the lease expired in 1975, the lessee’s interest in the gas in place terminated and reverted to Southland Royalty Company and others under state law. Following Sunray Mid-Continent Oil Co. v. Federal Power Commission, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960), the court held that under 15 U.S.C.A. § 717f(b),

The Commission may therefore control both the terms on which a service is provided to the interstate market and the conditions on which it will cease:
“An initial application of an independent producer, to make movements of natural gas in interstate commerce, leads to a certificate of public convenience and necessity under which the Commission controls the basis on which ‘gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval.’ ” 98 S.Ct. at 1958.

Dedication was effected in the Southland case under the Natural Gas Act when the lessee obtained in 1956 an order from FPC (Certificate of Public Convenience) authorizing the sale in interstate commerce of gas produced from the lease to an interstate pipeline company under a gas purchase contract.

In this case, Arkla Exploration, by the gas purchase contract of July 25, 1977, contracted to sell its share of production from about 15 leases, including plaintiffs’ lease, in Sections 4, 8 and 9 as shown on the diagram reproduced above. On December 6, 1977, FERC, by a Certificate of Public Convenience, authorized the sale or introduction into interstate commerce of gas from the contract leases in the three sections. On February 4,1978, the transportation of gas from the Wilder well in Section 9, into the interstate pipeline began. We need not decide whether this had the effect of dedicating under the Natural Gas Act all of the gas owned by Arkla under the leases in the three sections, including Arkla’s gas from plaintiffs’ lease. Whatever the status of Arkla’s gas under the Natural Gas Act, we are not free to interfere with or enjoin the flow of Arkla’s gas into interstate commerce. See authorities in footnote 3.

The authorities in any event are clear in our interpretation that the determination of the amount of royalty to be paid by a lessee to a royalty owner is not subject to regulation under the Natural Gas Act even though the gas is about to enter or has entered interstate commerce.

Our holding is that plaintiffs have a remedy under state law which might compel Arkla to pay, on its interstate gas, royalty based on a higher intrastate price, if the term “market value” in the lease should be determined to mean something more than the price received at the well head by Arkla Exploration from Arkla Gas. The lower court did not err in denying the permanent injunction.

For reasons summarized here and also detailed below in an excellent written opinion, at appellants’ cost, judgment is

AFFIRMED.

      . Par. 3(b) of the lease provides in part that the royalty on gas shall be . . the market value at the well of one-eighth of the gas so sold ...”

      . The lease to Bradco gave the lessee the privilege of “. . laying pipelines which may be necessary, useful or convenient to . . . operations conducted by lessee.”

      . The comments under Art. 122, as well as Articles 137-141 of the Mineral Code, do lend some support to this contention. The logical end of this reasoning, however, would result in state law saying that a mineral lessee shall not be allowed to sell gas interstate if the interstate price is lower than the intrastate price. Such a result is clearly prohibited by the Interstate Commerce Clause of the U. S. Constitution, Art. 1, § 8. See H. P. Hood & Sons, Inc. v. Dumond, 336 U.S. 525, 535, 69 S.Ct. 657, 663, 93 L.Ed. 865, 873 (1949).

      . The leases involved in Pennzoil also required royalty payments of market value of the gas.

      . “No natural gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permits such abandonment.”


author: WATSON, Judge.

text:
    Evans JOHNSON, Sr. et ux. v. Jerry B. DAYE.
    No. 6573.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Johnson & Ritzie by Ernest L. Johnson, Baton Rouge, for plaintiffs-appellants.
    Dale, Richardson & Dale, Vidalia by Jerry B. Daye, Ferriday, for appellee.

      Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

This is an appeal of a judgment sustaining an exception of prescription in a malpractice claim against an attorney. Plaintiffs are Evans Johnson, Sr. and Florence Johnson and the defendant is Jerry B. Daye, an attorney at law.

The petition alleges that Daye was employed as counsel in a lawsuit, docket no. 17,106, 7th Judicial District, Parish of Con-cordia. Pleadings in the case were delivered to Daye and the latter undertook representation. However, the petition further alleges, a default judgment was confirmed on January 22, 1974 and, as a consequence, certain property of the Johnsons was seized and sold on July 21, 1976, to satisfy the judgment. To plaintiffs’ petition Daye filed an answer generally denying the allegations and also filed an exception urging the prescription of one year.

Certain other motions and legal actions were filed by the Johnsons but they have no bearing on the present appeal.

The matter was fixed for trial and the exceptions were referred to the merits. The case was then tried, although there is no transcript of testimony in the record.

After receiving memoranda from counsel, the trial court concluded that the exception of prescription was well taken and should be sustained. This appeal followed.

While there is a dispute between the parties as to the time prescription began running, there being no transcript of testimony, we must presume that the trial court had a reasonable evidentiary basis for the factual conclusion that the one year period had run. Vaughan v. Fair, 337 So.2d 675 (La.App. 3 Cir. 1976).

However, a malpractice action against an attorney may state a claim both ex delicto and ex contractu. Jackson v. Zito, 314 So.2d 401 (La.App. 1 Cir. 1975); writs refused, 320 So.2d 551, 553. Compare Henson v. St. Paul Fire & Marine Ins. Co., 354 So.2d 612 (La.App. 1 Cir. 1978); writ granted, 356 So.2d 1006. This is true even though the petition be couched in language asserting a claim based on the negligence of the attorney. Under the pleadings filed in the present case, a claim is stated under both actions. The damage claim is prescribed in 10 years under LSA-C.C. art. 3544. Therefore the trial court was correct in holding that any ex delicto claim plaintiffs might have has prescribed but the action ex contractu should have been maintained and considered.

We express no opinion on the merits of the litigation.

The judgment of the trial court dismissing plaintiffs’ suit is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Costs are taxed against Jerry B. Daye, appellee.

Reversed and remanded.

      . In Concordia Parish it is necessary for a litigant to request that a court reporter record the testimony and that a $25.00 appearance fee be paid. We know of no authority for this requirement. In this day and time, all court testimony should be recorded and the trial court and police jury of the individual parishes should make necessary arrangements. See Baker v. Landry, 286 So.2d 492 (La.App. 1 Cir. 1974).


author: FORET, Judge.

text:
    Michael T. TARVER, Plaintiff-Appellee, v. Leonard E. ANDERSON, Defendant-Appellant.
    No. 6609.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      James B. O’Neill, Zwolle, for defendant-appellant.
    Davis & Simmons by James L. Davis, Many, for plaintiff-appellee.
    Lowther & Boone by William R. Boone, Many, for defendant-curator.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This suit was consolidated in the trial court and on appeal with Nationwide Financial Corporation v. Anderson, 363 So.2d 943 (La.App. 3 Cir. 1978). Separate judgments were rendered in the trial court and separate judgments are rendered on this date on each ease on appeal.

The substantial issue presented on this appeal concerns the ranking of privileges on a mobile home: whether, as the trial court held, a privilege obtained through seizure of the mobile home situated in Louisiana under a writ of attachment primes a foreign conditional sales contract not recorded in Louisiana.

The facts of this case are not in dispute. On August 19, 1975, Leonard E. Anderson purchased a mobile home from Hickory Hills Homes, Inc., State of Texas. Nationwide Financial Corporation, also in Texas, purchased the contract from Hickory Hills Homes, obtaining a Texas security interest in the mobile home equivalent to a Louisiana chattel mortgage. Although the mobile home was originally intended to remain in the State of Texas, it was' moved to Louisiana shortly after its purchase. Nationwide admitted that it obtained knowledge that the mobile home was situated in Sabine Parish, Louisiana, on or about November 11, 1975, and continued to receive payments on it until November of 1976. Nationwide did not record its security interest in Louisiana. On February 1, 1977, Michael Tarver seized the mobile home under a writ of attachment in Sabine Parish. On February 28, 1977, Nationwide intervened, alleging its interest in the mobile home.

The trial court, citing GMAC v. Stoma, 241 So.2d 816 (La.App. 3 Cir. 1970) and Universal CIT Corp. v. Hulett, 151 So.2d 705 (La.App. 3 Cir. 1963), held that where the lienholder, i. e. Nationwide, had knowledge that the chattel had been removed from Texas to Louisiana, and failed to record its security interest in the chattel in Louisiana, its interest in same would be primed by the attachment of plaintiff, who acquired a privilege from the time of the seizure. Code of Civil Procedure, Article 3511.

In Universal CIT Corp. v. Hulett, supra, at page 707, we said:

“Thus, even though conditional sales and unrecorded chattel mortgages are not recognized in Louisiana, through comity the Louisiana courts will nevertheless enforce such transactions when validly con-fected in another state, even to the prejudice of innocent third persons who have dealt with the property in Louisiana— providing the property has been brought into Louisiana without the creditor’s consent. If the chattel which was the object of the foreign conditional sale or chattel mortgage is brought into Louisiana with the consent or to the knowledge of the creditor, however, the Louisiana courts will then apply the Louisiana law and policy protecting third persons who deal with the property in Louisiana (instead of enforcing the conflicting foreign-law rights of the creditor), on the theory that the creditor consented to or intended the application of Louisiana law to dealings with the movable brought to Louisiana with his consent or to his knowledge.” (Citations omitted)

By its own admission, Nationwide knew that the mobile home was in Louisiana for some fifteen months prior to its attachment, thus giving its implied consent for the mobile home to be in Louisiana. Therefore, plaintiff acquired a privilege superior to that of intervenor, Nationwide, when he effected seizure of the mobile home pursuant to a writ of attachment on February 1, 1977.

The judgment of the trial court is affirmed. All costs of this appeal are assessed against Leonard Anderson and Nationwide Financial Corporation.

AFFIRMED.


text:
    NATIONWIDE FINANCIAL CORPORATION, Plaintiff-Appellant, v. Leonard ANDERSON, Defendant-Appellee.
    No. 6610.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    James B. O’Neill, Zwolle, for defendant-appellant.
    Davis & Simmons by James L. Davis, Many, for plaintiff-appellee.
    Lowther & Boone by William R. Boone, Many, for defendant-curator.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This suit was consolidated in the trial court and on appeal with Tarver v. Anderson, 363 So.2d 941 (La.App. 3 Cir. 1978). Separate judgments are being rendered on this date in each case.

Ordinarily, the Courts of Appeal will review only issues which were submitted to the trial court and which are contained in the specifications of error in the briefs, unless the interest of justice clearly requires otherwise. Uniform Rules, Courts of Appeal, Rule IX-A. Since we find no specifications of error relative to this suit in appellant’s brief, the trial court judgment is affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    Hurley VIDRINE, Plaintiff-Appellee, v. Shirley DEMOURELLE, Defendant-Appellant.
    No. 6619.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Guy 0. Mitchell, III, Ville Platte, for defendant-appellant.
    Frugé & Vidrine, Chris B. Frugé, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

Hurley Vidrine instituted this suit against his wife, Shirley Demourelle, seeking a separation and custody of their three minor children. By answer and reconven-tional demand, Shirley Demourelle asked for a separation on the ground of cruelty and for permanent custody of the children. She also filed a rule for temporary custody and alimony and child support. The rule was tried July 5, 1977, and Hurley Vidrine was awarded temporary custody of the children.

The trial on the merits for separation and permanent custody was held on October 21, 1977. In addition to the testimony of both parties, the trial judge personally interviewed each child privately in his chambers. The children’s ages were 16, 12 and 9. Judgment was rendered in favor of Hurley Vidrine awarding him a judicial separation based on abandonment and custody of his three minor children. Shirley Demourelle was awarded alimony pendente lite in the amount of $100 per month. Shirley De-mourelle appeals from this judgment.

The sole issue presented on this appeal is whether the trial court committed manifest error in awarding custody of the three children to Hurley Vidrine.

In Morrison v. Morrison, 316 So.2d 453 (La.App. 3rd Cir. 1975), writ refused, La., 322 So.2d 772, we stated:

“The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). The general rule is that it is in the best interest of the children to grant custody to the mother, and this right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuited to be given custody of the children.”

The maternal preference rule establishes a presumption that the interest of a child will be better served by placing him in the custody of the mother. This presumption is a rebuttable one which must yield to convincing evidence that the greater advantage of the child will be served by entrusting its care to the father. Acosta v. Acosta, 334 So.2d 809 (La.App. 2nd Cir. 1976). Also, see Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976). It is also proper to give more than casual consideration to the wishes of the children in light of their feeling of insecurity which would be experienced if placed in the custody of the mother. Hebert v. Hebert, 255 So.2d 630 (La.App. 3rd Cir. 1971).

The evidence reflects that Shirley De-mourelle had had emotional problems for some time before she left her husband and three children in May of 1977. She had received treatment at the Mental Health Clinic before separation. Her testimony reflects an emotional state at time of trial. The youngest child was diagnosed as hyperactive and required treatment at the clinic also. Shirley Demourelle testified that she worked as a practical nurse on private duty. She preferred the shift which began at 11:00 P.M. and ended at 7:00 A.M. She would have to sleep during the day, which would leave her little time to look after the children. She further testified that she suffered with arthritis, asthma and allergy. She was living in a mobile home at the time of trial. The husband and children were living in the family home.

The evidence also reflects that Hurley Vidrine is at home practically all the time since he is disabled from a work-related accident. He, along with the help of the oldest daughter, is able to take care of the home and the children’s needs. The children were interviewed separately and privately by the court. The court stated in oral reasons:

“Yes, I spoke to three children, and each one of them separately, and questioned them rather extensively. Each one of them told me that they wish to remain with their daddy. That they’re satisfied there. That they go see their mother. They love their mother. He takes them whenever they want to go or the mother goes over to get them. And the eldest child told me since she’s been living with her daddy, she doesn’t have to take pills for the stomach. Her stomach is no longer troubling her. . . .”

It is well settled that the trial judge has much discretion in awarding the custody of the child whose parents have been legally separated or divorced, and his conclusions are entitled to great weight. His discretion on this issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Hebert v. Hebert, supra; Franklin v. Franklin, supra; Acosta v. Acosta, supra. In this case, we find no such error.

For the reasons assigned, the judgment is affirmed and costs are to be taxed to the defendant.

AFFIRMED.

      . Civil Code Art. 157 was amended by Act 448 of 1977, effective September 9, 1977. Since the instant suit was filed on June 2, 1977, the amendment of Civil Code Art. 157 does not apply,


author: CULPEPPER, Judge.

text:
    Dawn Miller SUIRE, Plaintiff & Appellee, v. Zeke MILLER, Defendant & Appellant.
    No. 6625.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, for defendant and appellant.
    Cline, Miller, Richard & Miller by Jack Derrick Miller, Rayne, for plaintiff and ap-pellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiff, 15-year old Dawn Miller Suire, filed suit to obtain support from her father, Zeke Miller. Although Dawn is married and lives with her spouse, her husband is totally disabled as the result of an automobile accident and is unable to support her. The trial court ordered the defendant to pay monthly child support to Dawn in the amount of $175. Defendant appealed.

Defendant presents two issues on appeal. (1) Is a 15-year old daughter, emancipated by marriage, entitled to support from her father? (2) If the father is obligated to support her, what is the extent and nature of this duty?

The trial judge assigned no written reasons for judgment. We do not know the legal basis for his award. Therefore, we must examine all of the possible child support statutes on which the trial judge could have based his decision. .

Articles 224, 227 and 229 of our Civil Code provide three different types of support which are owed by parents to their children. Each of these articles was derived directly from a separate article in the French Code Napoleon of 1804, and each differs from the other as to the nature of the obligation and as to the basis from which the amount owed is determined.

The obligations imposed on the parents under LSA-C.C. Articles 224 and 227 to support, maintain and educate their children terminate when the minor reaches the age of majority. Tolley v. Karcher, 196 La. 685, 200 So. 4 (La.1941); Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir. 1972); Pla-niol, Traite Elementaire de Droit Civil (La. Law Ins. Trans.), Vol. 1, Sec. 1682, at page 40; Works of Louisiana Appellate Courts For 1972-3 Term: Persons, by Katherine Shaw Spaht, 34 La.Law Rev. 197 at 204 (1974).

However, the obligations under these two articles are different. Article 224 is derived from Article 385 of the Code Napoleon and deals with the obligation of the parent to support, maintain and educate the child in return for the parent’s usufructuary right over the estate of the minor. LSA-C.C. Article 224 provides:

“The obligations resulting from this enjoyment (the right of usufruct over the minor’s property granted by C.C. Article 223) shall be:
“1. The same obligations to which usu-fructuaries are subjected;
“2. To support, maintain and to educate their children according to their situation in life.”

Article 227, on the other hand, defines the general obligation of the parent in his role as a parent. Its source is Article 203 of the Code Napoleon:

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

Planiol differentiates the obligations under Articles 224 and 227 on two bases. First, the obligation under Article 224, which derives from the parent’s right to the usufruct, is special to the person who has the enjoyment of the property, whereas the general obligation under Article 227 is common to both parents. Secondly, the obligation under Article 224 is established in proportion to the child’s revenue, whereas that of Article 227 is proportionate to the parent’s resources. Planiol, Vol. 1, Section 1701, at footnote 16.

Upon her marriage to Ricky Suire on January 21, 1977, Dawn was emancipated and lost her status as a minor. LSA-C.C. Article 379. The parent’s right to a usufruct over the child’s estate is terminated by emancipation. LSA-C.C. Article 223. Therefore, the parent’s corresponding duty of support under Article 224 is likewise terminated. Dawn is not entitled to child support under Article 224.

As to Article 227, it is clear, under the jurisprudence cited above, that the general obligation of the parent to support his child under that article is terminated when the child reaches the age of majority. However, our jurisprudence is not so clear as to whether the obligation under Article 227 is also terminated where the child is a minor, emancipated by marriage. In Miller v. Miller, 321 So.2d 318 (La.1975) the court held that after a child reached the age of majority, the mother had no right of action on behalf of the child to enforce a child support judgment rendered during the child’s minority, and that only the child could bring the action. In dicta, and without discussion, the court in Miller stated: “. . . our courts have held that

when a minor becomes emancipated either by having reached the age of majority, or by marrying after attaining thé necessary age, the father no longer owes the obligation of supporting this child as a minor.” (Emphasis supplied)

In Contario v. Contario, 350 So.2d 953 (La.App. 2d Cir. 1977) the court, citing Miller, held that a mother had no right of action to seek child support for her 16-year old son who was emancipated by marriage. The court stated:

“The minor’s emancipation does not relieve the parent of the obligation to support the child; however, the child must assert the right in his own name. (Emphasis supplied)

Thus, the question of whether the parent’s duty to support his child under Article 227 is terminated where the minor child is emancipated by marriage was not squarely at issue and was not discussed in either Miller or Contario.

We conclude on this res nova issue that the obligation of support under Article 227 does not apply to a minor child emancipated by marriage. Upon the marriage of a minor, the authority of the parent over the child ceases. The married child has the power of administration of his estate, limited only by the need for court authorization for the alienation or encumbrance of his immovable property. LSA-C.C. Article 382. Additionally, emancipation by marriage, unlike other types of emancipation, is irrevocable. LSA-C.C. Article 383. The child’s new personal and financial freedom created by his marriage should relieve the parent from the obligation of support under Article 227. Planiol, Vol. 1, No. 1996, page 190, discusses the social and policy reasons behind the law on emancipation by marriage:

“According to modern social customs marriage is out of harmony with the status of subordination of a minor subject to the paternal power or to tutorship. If it be the husband who is a minor he needs his independence because he becomes the head of a family. If it be the wife, and this is the more frequent case, she has in her husband a guide and a protector. She needs no other.”

The third type of support owed by a parent to a child is imposed by LSA-C.C. Article 229:

“Children are bound to maintain their father and mother and other ascendants, who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.”

This article is often referred to as the alimentary obligation. It is derived from Articles 205 and 207 of the Code Napoleon. Unlike the obligations under Articles 224 and 227, it is a reciprocal obligation and continues past the minority of the child. Additionally, it is limited to necessities— food, clothing, shelter — and it is only available to the ascendant or descendant who is in need. It does not include education or the other special expenses of a minor’s rearing, and thus it is a less onerous burden than that imposed under either Article 224 or 227. Tolley v. Karcher, supra; Planiol, Vol. 1, No. 1682, pgs. 40-41.

Dawn Suire Miller qualifies for an award of support from her father under the authority of Article 229. She is clearly in necessitous circumstances, for she has no means or income. While the jurisprudence may impose a burden on one seeking support under Article 229 to prove an inability to gain employment, Dubroc v. Dubroc, 284 So.2d 869 (La.App. 4th Cir. 1973), Dawn testified that she had sought employment at several places, but was told that no one under 18 years old was hired by them. Due to her age and her lack of education, she is almost unemployable at this time. Of course, if her condition changes so that she is no longer in necessitous circumstances, the order of support could be amended. LSA-C.C. Article 232, Mosley v. Mosley, 348 So.2d 225 (La.App. 3rd Cir. 1977).

Defendant contends he should be allowed to satisfy his obligation of support by taking the plaintiff into his own home, as provided by LSA-C.C. Article 229:

“If the person whose duty it is to furnish alimony, shall prove that he is unable to pay the same, the judge may, after examining into the case, order that such person shall receive in his house, and there support and maintain the person to whom he owes alimony.”

The first answer to this contention is that defendant has not proved this inability to pay. Furthermore, the evidence shows that Dawn and her husband are presently living with her mother. Of course, the mother is also obligated under Article 229 to provide her child in necessitous circumstances with food, clothing and shelter. Dawn’s mother subsists on a meager Social Security payment each month and is also disabled, but she can, at least partially, fulfill her duty to Dawn under Article 229 by providing shelter. The trial judge reasonably concluded that it was for the best interest of all parties concerned that Dawn remain in the home of her mother, which would satisfy Dawn’s need for shelter. We find no manifest error in his refusal to order Dawn to live with her father.

Mr. Miller’s final contention is that the award of $175 per month is excessive. Since the trial judge assigned no written reasons, we do not know how he fixed the amount of the award. As to Dawn’s needs, the evidence shows that prior to her husband’s disabling injuries they were living with her mother and paying her approximately $40 per month for shelter. The trial judge may have used this figure of $40 as that needed by Dawn for shelter. However, for the reasons stated above, we conclude that at the time of trial Dawn was not in need of shelter, because her mother was providing this necessity. Therefore, we conclude that Mr. Miller is relieved of any obligation to furnish shelter.

As to Dawn’s needs for food and clothing, her affidavit listing her monthly expenses shows $100 for food and $25 for clothing. We find these amounts reasonable under the circumstances. Thus, we conclude that Dawn has proved she is in need of $125 per month for food and clothing.

Mr. Miller is able to pay $125 per month. He testified he has a net income of $1386 per month. He has remarried and lives with his new wife, but he has no other dependents. He has other financial obligations, but these do not relieve him of his obligation under Article 229 to support Dawn.

For the reasons assigned, the judgment appealed is amended to reduce the award from $175 to the sum of $125 per month. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED, AS AMENDED.

      . This holding was later overruled in Halcomb v. Halcomb, 352 So.2d 1013 (La.1977).


text:
    John P. CHAVERS, Plaintiff-Appellee, v. KURY CONSTRUCTION COMPANY, Defendant-Appellant.
    No. 6626.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for defendant-appellant.
    Everett & Everett by Charles T. Everett, Crowley, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Plaintiff, John P. Chavers, brought this suit against defendant, Kury Construction Company, alleged to be a Louisiana corporation, seeking: cancellation of a construction contract; a mandatory injunction commanding Kury to remove a concrete slab installed on Chavers’ property; and the sum of $3,942.65 as damages.

Chavers alleged that he entered into a contract with Kury Construction Company for the construction of a residence on a lot in “Acadian Acres,” a subdivision near Crowley, Louisiana, and, because defendant Kury laid a concrete slab on the lot in violation of a building restriction requiring dwellings to be placed at least 50 feet from the front property line, Rayne Building & Loan Association denied Chavers a loan.

A default judgment was confirmed on January 3, 1978. The judgment issues a permanent injunction ordering defendant to remove the concrete slab on plaintiff’s lot; decrees that defendant be liable for “any damages” by virtue of a certain laborer’s and materialman’s lien; and nullifies “any contract between plaintiff and defendant . . .” for the construction of the residence. Defendant Kury has appealed.

The proof required for a confirmation of default is provided by LSA-C.C.P. art. 1702:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. * * *”

The record does not reveal whether the contract between the parties was oral or written. If reduced to writing, the writing itself is the required proof. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972). If oral, the proof sufficient to establish a prima facie case must meet the specific requirements for proving verbal contracts. Dodd v. Schell, 207 So.2d 807 (La.App. 4 Cir. 1968).

LSA-C.C. art. 2277 provides as follows: “All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

The only evidence presented at the confirmation hearing was plaintiff’s testimony, together with copies of a lien filed by Pauline Lumber Company, Inc., and the restrictions on the lot.

A plaintiff may fulfill the requirement of one credible witness, and the phrase “other corroborating circumstances” in Article 2277 does not require independent proof of every detail of a witness’ testimony. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La. 1977). However, in the instant case, the evidence does not furnish a basis for the trial court’s finding that a contract existed between plaintiff and defendant. Kury Construction Company was not mentioned in plaintiff’s testimony. During direct examination, plaintiff was asked:

“Q. Did you ever talk to Mr. Jack Kury about building a house?
“A. I only took a paper from the Homestead saying I could require the loan providing that he would build the house to specifications without making any changes in putting up the house.” (TR. 22).

This testimony is insufficient to establish a contractual relationship between plaintiff and Kury Construction Company, and there is no corroborating evidence to prove such a contract.

It is therefore ordered that the judgment of the trial court be annulled and set aside. This case is remanded for a new trial in accord with the views expressed herein.

Costs of the appeal are taxed against plaintiff.

JUDGMENT ANNULLED: CASE REMANDED.

      . According to Chavers’ testimony, the concrete slab was placed 38 feet from the front property line.

      . We express no opinion on the provisions of the judgment entered by the trial court since the judgment is being set aside. See LSA-C. C.P. art. 3601.

      .See footnote (2) above.


text:
    Stephen DEMENT, Plaintiff-Appellee, v. INTERNATIONAL PAPER COMPANY et al., Defendants-Appellants.
    No. 6639.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Stafford, Randow, O’Neal & Smith, Russell L. Potter, Alexandria, for third party defendant-appellant.
    Charles L. Hamaker, Monroe, for defendant-appellant.
    Brittain & Williams, Jack O. Brittain, Natchitoches, for third party defendant-ap-pellee.
    Mayer, Smith & Roberts, A. James Gregory, Jr., Shreveport, Kelly, Ware & Salim, Robert L. Salim, Natchitoches, for defendant-appellee.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a claim for workmen’s compensation. Plaintiff, Stephen Dement, was injured on June 2, 1976, while employed by Allen Coolman, a dealer in pulpwood. Cool-man had a contract wherein Coolman would cut the wood and deliver same to Odell Roberts. Odell Roberts had a supply contract with International Paper Company (hereinafter referred to as International). At the time of the accident, International had received a certificate of insurance from one Walter Hetherwick certifying that Odell Roberts was insured by Employers Reinsurance Corporation for workmen’s compensation claims. Following Dement’s accident and disability, Hetherwick paid $864.50 in compensation payments to Dement. Hetherwick then terminated compensation payments and it was later determined that Odell Roberts was not insured. When this matter came before the trial court, Hetherwick’s whereabouts were unknown. California Union Insurance Company (hereinafter referred to as California) issued a professional liability insurance policy to Hetherwick. That policy lapsed on February 19, 1976. Dement filed suit against Roberts, Coolman and International Paper Company, Fidelity and Casualty Company of New York, and American Mutual Insurance Company. Coolman and Roberts filed third party demands against California. International filed a third party demand against Roberts.

The trial judge rendered judgment in favor of plaintiff against International, Roberts and Coolman awarding workmen’s compensation for total and permanent disability. He further rendered judgment in favor of International against Roberts. International, Coolman and Roberts were given judgment against California. The suit was dismissed against Fidelity and Casualty Company of New York and American Mutual Insurance Company.

California has appealed. Plaintiff answered the appeal seeking an increase in attorney’s fees.

This suit presents three issues: I. Can judgment be awarded in favor of International against California when no third party demand was made by International against California? II. Does the California professional liability policy issued to Heth-erwick afford coverage for Roberts’ and Coolman’s claims against Hetherwick for his failure to provide workmen’s compensation insurance? III. Should attorney’s fees be increased?

I.

Concerning the first issue, the trial judge awarded judgment in favor of International against California when International had not made California a third party defendant. The trial court in rendering judgment against California gave no legal basis for such judgment. With the trial court’s position we disagree. No demand having been made on California by International through a third party action, judgment for International against California is not authorized. One who is not a party to a suit cannot have judgment rendered against him, Freeman v. McKay, 306 So.2d 420 (La. App. 3rd Cir. 1975); Hobbs v. Fireman’s Fund American Insurance Company, 339 So.2d 28 (La.App. 3rd Cir. 1976), writ refused.

II.

The second issu,e is whether the California professional liability policy issued to Hetherwick affords coverage for Roberts’ and Coolman’s third party claims against Hetherwick. Plaintiff was injured on June 2, 1976. Hetherwick’s professional liability policy issued by California lapsed on February 19, 1976, almost four months before plaintiff’s injury. The trial judge in his reasons for judgment concluded that this policy was in effect at the time of plaintiff’s injury but expired before the error was discovered by Roberts. The trial judge was in error in this conclusion. Plaintiff’s injury occurred almost four months after the policy had expired.

The policy read in part:

“This certificate applies to CLAIMS BROUGHT DURING THE CERTIFICATE PERIOD arising from acts, errors or omissibns, whenever or wherever committed or alleged to have been committed:
(A) During the certificate period . . ”

Defendant argues that such “claims made” policies are a violation of public policy. This argument is without merit for the reasons hereinafter set forth.

According to the wording in the policy, it covered only “claims brought during the certificate period.” This type of “discovery” or “claims made” policy has been held valid and not against public policy by the Louisiana Supreme Court in Livingston Parish School Board v. Fireman’s Fund American Insurance Company, 282 So.2d 478 (La.1973). The court held:

“Where a policy unambiguously and clearly limits coverage to acts discovered and reported during the policy term, such limitation of liability is not per se impermissible. J. M. Brown Const. Co. v. D & M Mechanical Contr., Inc., 222 So.2d 93 (La.App. 1st Cir. 1969); see also Home Ins. Co. v. A. J. Warehouse, Inc., 210 So.2d 544 (La.App. 4th Cir. 1968), syllabus 6. This is in accordance with the general principle that, in the absence of conflict with statute or public policy, insurers may by unambiguous and clearly noticeable provisions limit their liability and impose such reasonable conditions as they wish upon the obligations they assume by their contract. Snell v. Stein, 261 La. 358, 259 So.2d 876, 878 (1972), and decisions there cited.
“No American decision we could find holds public policy to be offended by discovery and reporting provisions similar to the present . . .”

This court has applied Livingston, supra, in the case of Breaux v. St. Paul Fire & Marine Insurance Company, 326 So.2d 891 (La. App. 3rd Cir. 1976), and held a “claims made” policy to be valid. We therefore hold that, since no claim was made during the policy period, no coverage was afforded for Roberts’ or Coolman’s claims for Heth-erwick’s failure to provide workmen’s compensation insurance.

III.

Plaintiff, in an answer to the appeal, has requested that this court increase the award of attorney’s fees by $1,500. The trial court awarded $5,000 as attorney’s fees. This is a generous award, and due to this and further that plaintiff’s attorney did not participate in the appeal other than by filing the answer, the request for an increase shall be denied.

For the foregoing reasons, the judgment of the trial court herein is reversed and set aside insofar as judgment was rendered in favor of International Paper Company, Odell Roberts and Allen Coolman and against California Union Insurance Company.

The judgment of the trial court is otherwise affirmed.

All costs at trial and appeal are assessed against defendants Odell Roberts, Allen Coolman, and International Paper Company.

REVERSED IN PART; AFFIRMED IN PART.

      . Odell Roberts died pending appeal and proper parties were substituted. These parties will be referred to as “Roberts.”


author: FORET, Judge. WATSON, J.,

text:
    Russell Wayne COURVILLE, Plaintiff-Appellant, v. Cynthia Greer COURVILLE, Defendant-Appellee.
    No. 6649.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Writ Refused Dec. 1, 1978.

      See also, La.App., 363 So.2d 958.
    Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for plaintiff-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Sr., Eunice, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

In Suit No. 6649, Russell Courville instituted suit against his wife, Cynthia Cour-ville, seeking a separation from bed and board based on alleged acts of cruel treatment. In Suit No. 6650, Cynthia Courville instituted suit against Courville seeking a separation based upon cruel treatment or, in the alternative, abandonment. These suits were consolidated for trial purposes, and are consolidated on appeal. A separate decision in Suit # 6650, 363 So.2d 958 is being rendered this date.

Judgment was rendered denying separation to both parties, awarding Mrs. Cour-ville the custody of the two minor children of the marriage, condemning Mr. Courville to pay child support and granting him visitation privileges with his minor children. Mr. Courville has perfected this devolutive appeal from said judgment, and Mrs. Cour-ville has answered his appeal seeking a separation based upon cruel treatment or abandonment.

The issues presented on this appeal are:

(1) whether Mr. Courville is guilty of abandonment or cruel treatment of a sufficient nature to warrant a separation from bed and board in favor of Mrs. Courville;

(2) whether Mrs. Courville is legally excused from fault because her actions were involuntarily induced by a pre-existing mental condition;

(3) whether the trial court had authority to award Mrs. Courville the custody of the two minor children, condemning Mr. Cour-ville to pay child support and set visitation privileges after denying both parties’ demands for separation.

Mr. and Mrs. Courville physically separated on September 26, 1976, and they have lived separate and apart without reconciliation since that time. At the time of the separation and for some time prior thereto, Mrs. Courville suffered from mental illness which has been diagnosed as schizophrenia, schizo-affective type. On the day that the parties separated, they physically struggled with one another; immediately after this, Mr. Courville moved out of the marital domicile. In its finding of fact, the trial court did not find Mr. Courville guilty of any cruel treatment towards his wife, holding that he had only struggled to protect himself; additionally, it found that he could not be guilty of abandonment as Mrs. Courville’s actions toward him were sufficient cause for him to leave the home. We affirm the judgment .of the trial court on that issue.

The trial court found that the wife’s actions toward her husband were sufficient to constitute cruel treatment. However, the trial court also held:

“Because of her mental condition at the time of the separation, I find that Mrs. Courville cannot be found at fault in causing the separation, as her condition is considered excused under our law to the extent that it was involuntarily induced by such mental condition.”

Our research shows only two Louisiana cases which touch on this issue. In Gilbert v. Hutchinson, 135 So.2d 283 (La.App. 3 Cir. 1961), the wife sued for separation on grounds of cruelty. The husband filed a reconventional demand for separation also based on cruelty. This Court, in an opinion by Judge (now Justice) Tate, reversed the trial court’s holding that a separation should be denied under the doctrine of comparative rectitude , that the degree of guilt was comparatively equal, stating:

“Not called to the attention of our learned trial brother is the general rule that cruelties or indignities committed by one spouse are not cause for a divorce or separation when such conduct is due to a physical or mental condition,' since the misconduct is considered excused to the extent that it was involuntarily induced by such mental or physical condition.” (Citations omitted.)

This Court thus held that the degrees of fault were not equal between the parties and that the wife should be granted a separation as her actions had been at least partially caused by her existing mental condition.

The case of Pearce v. Pearce, 344 So.2d 75 (La.App. 4 Cir. 1977) discussed whether the wife’s responsibility for her misbehavior would be diminished by the illness of alcoholism and possible menopause in regards to fault:

“. . . Although the lay evidence here does not suffice to establish it, we suppose it possible that a wife’s individual condition of alcoholism, especially if aggravated by other circumstances such as menopause, could so greatly diminish her responsibility that she should be deemed without fault for purposes of post-divorce alimony under C.C. 160 (as well as for purposes of C.C. 138(3), although that question is not here involved).”

The court remanded the case to the trial court for further evidence of such condition. The Louisiana Supreme Court granted writs at 348 So.2d 75 and did not consider this discussion by the court of appeals, holding instead that the trial court’s ruling on the wife’s freedom from fault was not manifestly erroneous and disposed of the case on this ground.

Factual evidence adduced at trial showed that Mrs. Courville had been ill for some time. Her condition caused her periods of depression and made her aggressive to the extent that it was difficult for her to get along with others. This conclusion is supported by both professional and lay. testimony. Shortly after the departure of her husband, Mrs. Courville was committed to Central Louisiana State Hospital at Pine-ville, where she received care for several months. After her discharge, she continued treatment as an out-patient at both Central Louisiana State Hospital and at the Crowley Mental Health Center. The trial court found that her actions toward her husband were a result of this mental condition. This Court agrees with this factual conclusion. Following the reasoning of Gilbert v. Hutchinson, supra, this Court holds that the trial court was correct in its legal holding that the actions of Mrs. Courville' which would have constituted cruelty otherwise are in fact excused by her mental condition. Thus, finding both parties legally free from fault, we affirm the trial court’s denial of separation to either party.

The third issue before the Court' is the custody of the two minor children of the marriage. In its judgment, the trial court gave custody of the two children to the wife, after finding that her mental condition had stabilized following treatment, and ordered Mr. Courville to pay $225.00 per month child support. On appeal, Mr. Cour-ville urges that the trial court was incorrect in giving custody to the wife after its denial of a separation to either party. In State ex rel. Lasserre v. Michel, 105 La. 741, 30 So. 122 (1901), the Louisiana Supreme Court stated the public policy of the State to be

“. . . against the maintenance of any civil suit between husband and wife, no matter what the cause of action, or how serious the complaint, when not within one of the exceptions of article 105, Code of Practice [now La. R.S. 9:291] ”

However, in addition to the four statutory exceptions to the prohibition against inter-spousal suits, Lasserre also held that either spouse could sue for a writ of habeas corpus against the other, during the existence of the marriage, in order to get a child back from the other. Lasserre was specifically upheld by the Supreme Court in Stelly v. Montgomery, 347 So.2d 1145 (1977).

As both suits for separation were properly dismissed by the trial court, the question of custody should have been dismissed also for the district court was not competent to pass on the question outside of the separation suit.

“The original custody of a child who has not been adjudicated neglected or delinquent can be determined only in a civil proceeding between parents when both are living, in connection with an attack upon the marital contract or after dissolution of that contract”. Griffith v. Roy, 263 La. 712, 269 So.2d 217, at 221 (1972).

Thus, as in Stelly v. Montgomery, supra, the proper method to adjudicate custody of the children between the two parents still legally married would be for that parent without physical possession to file for a writ of habeas corpus to get the children back from the physical custody of the other. Accordingly, this Court affirms the trial court’s denial of a separation to either party, and reverses the decision of the trial court granting custody of the children after dismissal of the main demand.

In accordance with the above, the judgment of the trial court which had awarded custody of the two minor children, Russell Wayne Courville, Jr. and Randall Scott Courville, to Cynthia Dean Courville and awarded child support in the amount of $225.00 per month, is reversed and vacated; in all other respects, the judgment of the trial court is affirmed.

Court costs in the trial court and in this Court are assessed against the community of acquets and gains existing between the parties.

AFFIRMED IN PART AND REVERSED IN PART.

WATSON, J.,

concurs in the result, but would prefer to remand for consideration of a separation on the basis of living separate and apart.

      . Compare Thomason v. Thomason, 355 So.2d 908 (La.1978) for the latest La. Supreme Court expression on the doctrine of recrimination and comparative rectitude.

      . § 291. Wife may not sue husband; exceptions
      As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for:
      (1) A separation of property;
      (2) The restitution and enjoyment of her paraphernal property;
      (3) A separation from bed and board; or
      (4) A divorce. Added Acts 1960, No. 31, §2.


text:
    Cynthia Dean COURVILLE, Plaintiff-Appellee, v. Russell Wayne COURVILLE, Defendant-Appellant.
    No. 6650.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for plaintiff-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Sr., Eunice, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Courville v. Courville, 363 So.2d 954 (La.App. 3 Cir. 1978—Our docket number 6649), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed in part and reversed in part. All costs in the trial court and on appeal are assessed against the community of acquets and gains existing between the parties.

AFFIRMED IN PART AND REVERSED IN PART.

WATSON, J.,

concurs in the result, La. App., 363 So.2d 954.


author: DOMENGEAUX, Judge.

text:
    Glynn W. REYNOLDS, Plaintiff-Appellant, v. R. Bruce PHILLIPS and St. Paul Fire and Marine Insurance Company, Defendants-Appellees.
    No. 6651.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Stephen E. Everett, Alexandria, for plaintiff-appellant.
    Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for defendants-áppel-lees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a medical malpractice action brought against an oral surgeon for the allegedly negligent extraction of teeth.

In April of 1973, plaintiff, Glynn W. Reynolds, consulted the defendant, R. Bruce Phillips, an oral surgeon in Alexandria, Louisiana, in order to have his third molars, commonly referred to as wisdom teeth, removed. On April 23, 1973, plaintiff was admitted to a hospital and, on the following day, Doctor Phillips removed the upper third molars on the right and left sides, and the lower third molar on the right side. Mr. Reynolds was subsequently discharged from the hospital, but consulted Doctor Phillips on April 27th and 30th, complaining of pain, and again on May 1st, in order to have the sutures removed. He subsequently consulted Doctor Phillips on May 4th, with complaints of pain and swelling. On this occasion, Doctor Phillips removed plaintiff’s second and first molars on the lower right side in an attempt to give him some relief. He returned to Doctor Phillips on May 7th and 11th with similar complaints. During the period of time from the original extraction, on April 24th, through Mr. Reynolds’ last visit on May 11th, Doctor Phillips treated him locally with a creosote and iodine solution and also prescribed pain medication.

Mr. Reynolds continued to experience pain and swelling. On May 13, 1973, he consulted another oral surgeon, Dr. Bernard Hollier, because Doctor Phillips was out of town. After an examination, including x-rays, Doctor Hollier determined that Mr. Reynolds had developed an infection at an extraction site, and he prescribed oral antibiotic medication.

Plaintiff had no further difficulties with his teeth for several months. However, in August and September of 1973, he went to Doctor John K. Texada for other problems in his mouth unrelated to the extractions. At this time, it was discovered by x-ray that a root tip was present in plaintiff’s mouth at the site of one of the extractions. Nothing was done to effectuate removal of the root tip, however.

In November or December of 1973, Mr. Reynolds began to develop “gum boils” around the site of the extracted first molar on the lower right side. He again consulted Doctor Hollier, the oral surgeon, in May of 1974 for this problem, but the condition continued. Mr. Reynolds attempted to treat himself for the problem until July of 1975, when he consulted Doctor Paul Miller. Doctor Miller removed the root tip on plaintiff’s lower right side at that time. Plaintiff has suffered no additional problems since the removal.

Suit was originally filed on April 22,1974, against Doctor Phillips and his insurer, St. Paul Fire and Marine Insurance Company, alleging negligent extraction of a “wisdom tooth” and negligent failure to prescribe antibiotic medication. An amended petition was filed on June 1, 1976, alleging, as additional grounds of liability, that Doctor Phillips was at fault in leaving the root tip to remain in plaintiff’s mouth. After trial on the merits, judgment was rendered in favor of defendants and against the plaintiff. Plaintiff appeals.

Plaintiff argues on appeal that the trial court erred in finding that he did not meet his burden of proof.

Plaintiff called as expert witnesses Doctors Hollier, Texada, and Miller. Doctor Texada stated that whether or not to leave a root tip in a patient’s mouth is a judgment question made at the time of extraction and should be left up to the discretion of the individual dentist. He also said that leaving a root tip in the patient’s mouth is not an uncommon practice in dentistry. He clearly stated that Doctor Phillips did not fall below the community standard in allowing the root tip to remain in plaintiff’s mouth. Doctor Hollier testified with regard to infections developing after an extraction. He stated that infections must be treated on a case by case basis. He further stated that there are several ways to treat infections, for example, draining, extraction of additional teeth, or use of an antibiotic. He also testified that allowing a root tip to remain in a patient’s mouth is not an unusual occurrence. Doctor Miller testified that allowing a root tip to remain would not be considered as falling below standard practice.

Considering the testimony of these witnesses specifically, and our review of the record as a whole, we can find no error on the part of the trial judge in finding that plaintiff has failed to prove his case.

Plaintiff’s second and only other specification of error is that the trial court erred in finding that no witness on behalf of plaintiff testified that defendant acted below the standard of care for the type of treatment involved.

Plaintiff is obviously referring to a statement to this effect in the trial judge’s written reasons. Actually, one of the witnesses, Doctor Miller, suggested during one phase of direct examination that defendant may have breached his standard of care. However, on cross-examination, the tenor of Doctor Miller’s testimony was clearly to the effect that defendant did not fall below the standard of care.

In any event, we fail to see the utility of the argument advanced by plaintiff. Even if we were to assume that Doctor Miller’s testimony was to the effect that, defendant had fallen below acceptable standards, the testimony of Doctors Texada and Hollier to the contrary would be sufficient to affirm the trial court’s judgment as not being manifestly erroneous.

For the above reasons the judgment of the District Court is affirmed at plaintiff’s costs.

AFFIRMED.

      . We note that plaintiff, defendants, and the trial judge all used the community standard in the trial of this case. We are mindful of the change in the law concerning the standard of care owed by medical specialists effected by La.R.S. 9:2794, as well as the recent application of that statute by the Supreme Court in Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (La.1978). In Ardoin, the Supreme Court stated that under La.R.S. 9:2794, the duty of a medical specialist is not governed by the professional standard within a particular locality or community, but by the professional standard within the specialist’s specialty, if the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved. The Supreme Court remanded Ardoin because the trial judge had disallowed the testimony of a cardiovascular surgeon who was going to testify as to the degree of skill possessed and care exercised by cardiovascular surgeons in general in the performance of a coronary bypass operation.
      In the present case, there was no attempt by either party to introduce evidence of the medical standard prevalent in the field of oral surgery at trial, and no issue is raised on appeal. At trial, the only oral surgeon called by plaintiff was Doctor Hollier, who testified as to the standards prevalent in Alexandria, which is where he, as well as defendant, practices. Plaintiff also called Doctors Texada and Miller, who are general dentists. Both of these witnesses practice in Alexandria and both testified as to the standard prevalent in Alexandria.
      We specifically point out that the issue of whether La.R.S. 9:2794 would permit the introduction of evidence concerning the standard of care prevalent in the specialty in general, for a case involving a simple tooth extraction by an oral surgeon, is not presented here. We, therefore, express no opinion with regard to this issue or the application of La.R.S. 9:2794.