author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    Georgia L. SLONE v. TRAVELERS INDEMNITY COMPANY et al.
    No. 6076.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.
    Writ Refused Nov. 11, 1977.

      E. M. Nichols, Lake Charles, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Carwile & Barsh by James E. Williams, Lake Charles, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

The only issue presented is whether there is manifest error in the trial court’s conclusion that the plaintiff assumed the risk of injury by riding in a vehicle driven by an intoxicated driver. Plaintiff, Georgia L. Slone, and her sister, Jeanelle P. Ruiz (plaintiff in a consolidated case in which a separate judgment is handed down this date), were guest passengers in a Ford automobile driven by Charles W. Slone, plaintiff’s husband, when it was involved in a single car accident in the early morning hours of July 28, 1974. Defendant is Travelers Indemnity Company, the driver’s liability insurer. The three companions had embarked on an evening of drinking and merrymaking beginning at a private home near DeQuincy, continuing at a DeQuincy bar, and concluding at the Sabine Club, a dance hall located near the Texas line. At each of these spots, the driver, as well as the passengers had consumed a number of mixed drinks.

After leaving the Sabine Club, the car being driven by Slone left the highway and followed an erratic path, finally crashing backwards into a tree. The two women passengers received serious injuries. Some two hours after the accident, the driver was given a blood alcohol test, which registered .216.

The record reflects an ample basis for the trial judge’s conclusion that under the circumstances the passengers must have adverted to the intoxicated condition of their driver, and that they therefore assumed the risk of injury. There is no manifest error,

The judgment in favor of defendant is affirmed. Costs are taxed against appellant.

Affirmed.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I concur with the majority opinion and its result. Appellant has cited the case of Ray v. Superior Iron Works and Supply Company, Inc., 284 So.2d 140 (La.App. 3rd Cir. 1973), 286 So.2d 365, writ refused December 14, 1973, in furtherance of his position. That case is readily distinguished. It was a workmen’s compensation claim and encompassed a different factual and legal situation. I make mention of Ray only because I was on the Ray panel and feel that it is propitious to suggest no inconsistency exists between it and the present case.


source: Caselaw Access Project

license: Public Domain

text:
    Jeanelle P. RUIZ v. TRAVELERS INDEMNITY COMPANY et al.
    No. 6077.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.
    Writ Refused Nov. 11, 1977.
    E. M. Nichols, Lake Charles, for plaintiff-appellant.

      Camp, Carmouche, Palmer, Carwile & Barsh by James E. Williams, Lake Charles, for defendants-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

For the reasons assigned in number 6076, Slone v. Travelers Indemnity Company et al., La.App., 349 So.2d 460, the judgment appealed from is affirmed. Costs are taxed against appellant.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I concur for the reasons set out in # 6076, Slone v. Travelers Indemnity Company et al., 349 So.2d 460, (La.App. 3rd Cir. 1977).


author: WATSON, Judge.

text:
    Mrs. Ora Cripps YOUNGBLOOD, Plaintiff-Appellee, v. ALLSTATE FIRE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6082.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.

      Stafford, Randow, O’Neal & Smith by Grove Stafford, Jr., Alexandria, for defendant-appellant, Preferred Risk.
    Gold, Hall, Hammill & Little by John F. Simon, Alexandria, for defendant-appellant, Allstate Fire.
    Neblett & Fuhrer by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Mrs. Ora Cripps Youngblood, owner of a building in Hot Wells, Louisiana, damaged by fire, filed this suit to recover her loss, stipulated to be $16,349.86. The two defendant insurers, Allstate Insurance Company and Preferred Risk Mutual Insurance Company, both had $25,000 coverage on the building when the fire occurred November 7,1975, due to a ten-day overlap in the terms of their policies.

Preferred Risk was cast in judgment for one-half of the fire damage, $8,174.68. The trial court concluded that Allstate, which paid one-half of the loss on November 23, 1976, the day before trial, was arbitrary and capricious and cast Allstate for $2,480.96 in penalties and attorney’s fees. The fees constitute $1500 of this amount.

Allstate and Preferred Risk have appealed from the trial court judgment; Allstate has answered the appeal of Preferred Risk; and Ms. Youngblood has answered both appeals.

The facts are uncontested. Ms. Young-blood, a resident of Pineville, Louisiana, who serves as pastor of the Lakeside United Pentecostal Church, purchased the Hot Wells’ property September 17, 1975, at a sheriff’s sale. The property included two buildings insured by the previous owner, Wayne D. Joiner, with Allstate. Ms. Youngblood applied for the same insurance to Mr. Melvin Bolton at a Sears’ Allstate office. Allstate issued a policy to “Ora C. Youngblood, d/b/a Hot Wells Apartments” (P-6) which provided coverage on the two buildings. One, located at 229 Alexandria Street, later caught fire. The policy took effect on October 2,1975, and was cancelled as of November 13, 1975, six days after the fire. When Ms. Youngblood received a letter in October advising her that her Allstate protection was being terminated, she contacted Brother Robert Galloway, an insurance agent for Preferred Risk, who also serves as pastor of the Wardville Baptist Church in Pineville. Ms. Youngblood told Galloway her insurance with Allstate was being cancelled and she needed other coverage by November 12. Galloway visited the premises to be insured and filled in an application for Ms. Youngblood. Although Ms. Youngblood signed the application, she testified that she had confidence in her fellow pastor and did not check the accuracy of its contents. Galloway testified that both he and Ms. Youngblood intended the coverage to be effective on November 12 or 13, 1975, at the expiration of the Allstate policy. Ms. Youngblood said she did not want double coverage on her property but did imply when she first contacted Galloway that she “. . . wanted insurance right away.” (TR. 41) Through an error Galloway attributed to his secretary, the Preferred Risk policy was issued with an effective date of November 3, 1975 and an expiration date of November 3, 1976. After the fire on November 7, Ms. Youngblood first attempted to contact Galloway, but he was out of town and she called Allstate. Subsequently, she also advised Galloway about the fire and was told she was “covered” (TR. 45). Preferred Risk advised Ms. Youngblood by letter dated December 18, 1975, that their policy had never been in effect because her insurance “. . . application misrepresented the facts with respect to prior cancellation ... of coverage. . . . ” (P-7). A check for $25 was sent with this letter which was intended as a refund of Ms. Youngblood’s premium payment. The check was not negotiated and is in evidence as Allstate Exhibit # 1.

On appeal, Allstate contends that it was not arbitrary and capricious and should not have been cast for penalties and attorney’s fees. Preferred Risk contends that its policy should be reformed to reflect the intention of the parties, since neither Galloway nor Ms. Youngblood intended the purchase of duplicate coverage. In its answer to the appeal of Preferred Risk, Allstate asks that Preferred Risk be cast for all, or, alternatively, one-half, of the penalties and attorney’s fees. Ms. Youngblood’s answers ask the full amount of the loss, $16,349.36, from each of the insurers, 12% penalties, and an increase in the attorney’s fee to $5,000.

The first issue is whether the award of penalties and attorney’s fees against Allstate is manifestly erroneous.

In Hartford Fire Insurance Co. v. Roger Wilson, Inc., 291 So.2d 852 (La.App. 3 Cir. 1974) writs denied, 294 So.2d 833, this court affirmed the trial court’s apportionment of fire damage to a bulldozer equally between two insurers. Since one insurer had had the bulldozer repaired and made the insured’s loss good prior to the filing of suit, penalties and attorney’s fees were not assessed. Here, Allstate apparently tendered a check for slightly less than 50% of Ms. Youngblood’s loss prior to November 23, 1976. The trial court concluded that it was not timely (TR. 16).

Although the record does not include precise evidence as to what occurred, there is an indication that counsel for Allstate had a check at the pretrial conference. This check was, for some reason, not acceptable and counsel undertook to obtain another check. A period in excess of the statutory delays, from the pretrial on August 11,1976 until the day before trial or November 23, 1976, elapsed before Allstate produced an acceptable check in payment, despite repeated written demands by counsel for plaintiff. Allstate’s failure to pay under the circumstances was arbitrary and capricious.

Allstate contends on appeal that formal demand for payment was never made. This is disputed by Ms. Young-blood’s counsel, who states in brief that the point was never at issue. We do not have a transcript or summary of the pretrial conference, where the question may have been settled. However, demand for payment is not necessary when an insurer is fully aware of a claim and only the amount due because of co-insurance is disputed. Arcadia Bond. Warehouse Co. v. National Un. Fire Ins. Co., 206 La. 681, 19 So.2d 514 (1944). A proof of loss need not be in writing. Artigue v. La. Farm Bureau Mut. Ins. Co., 339 So.2d 880 (La.App. 3 Cir. 1976) writ denied 341 So.2d 1132 (La.1977). Ms. Youngblood testified that she notified Allstate of her loss immediately after it occurred. Suit was filed March 16, 1976, and payment was not made by Allstate until November 23, 1976. Allstate’s failure to pay Ms. Youngblood’s loss within the statutory delay set out in LSA-R.S. 22:658 was without cause and justified the trial court’s award of 12% penalties and attorney’s fees.

The second issue. is whether there was coverage under the Preferred Risk policy.

Preferred Risk cannot claim the benefit of any misrepresentation in Ms. Youngblood’s application for insurance since the form was filled out by their agent, Galloway. Hardy v. Commercial Standard Ins. Co., 172 La. 500, 134 So. 407 (1931). There was coverage under the Preferred Risk policy, unless there was a mutual mistake which would justify reformation of the insurance contract to reflect the. actual intent of the parties. See Gaudet v. North River Ins. Co., 156 La. 719, 101 So. 118 (1924). One seeking to reform a contract to reflect a common intention has the burden of proving that there was mutual mistake. Carter Oil Company v. King, 134 So.2d 89 (La.App. 2 Cir. 1961). The trial court concluded that “There was no mistake.” (TR. 16) We agree. There was no exact understanding between Ms. Youngblood and Galloway as to the inception date of the policy with Preferred Risk. The mistake, if any, was unilateral on the part of the agent of Preferred Risk or one of his employees. Topps v. North British & Mercantile Ins. Co., 148 So. 470 (La.App. 2 Cir. 1933). Ms. Youngblood’s only concern was that she not be left with a gap in her coverage. Preferred Risk was the first company Ms. Youngblood contacted after her loss on November 7, which indicates she believed her insurance policy with Preferred Risk to be in effect at that time. The trial court correctly concluded that there was coverage under the Preferred Risk policy.

The third issue presented is whether penalties and attorney’s fees should also be assessed against Preferred Risk. The trial court’s otherwise thorough reasons for judgment do not state why this part of plaintiff’s claim was denied. The trial court did mention that the theory relied on by Preferred Risk, that its policy only took effect at the expiration of the Allstate coverage because otherwise Ms. Youngblood would have double coverage, “. . . appears to be an afterthought” (TR. 16).

LSA-R.S. 22:658 is a penal statute, which is strictly construed. However, an insurer must have a reasonable basis to refuse payment of a claim. Soniat v. State Farm Mut. Auto. Ins. Co., 340 So.2d 1097 (La.App. 4 Cir. 1976). The pretext used for non-payment by Preferred Risk was not reasonable. It is clear that Preferred Risk’s desire to reform the contract arose as an afterthought of Ms. Youngblood’s loss; it was preceded by an after-loss attempt to deny coverage on a different basis. Their agent, Galloway, told Ms. Youngblood after the fire that she had coverage, and it is provided by the clear terms of the policy. Preferred Risk is charged with knowledge of those terms. Pellets, Inc. v. Millers Mutual Fire Insurance Co., 241 So.2d 550 (La. App. 2 Cir. 1970) writ refused, 257 La. 607, 243 So.2d 274 (1971). Ms. Youngblood had a valid claim against both insurers, but, by reason of having two insurance policies in effect, was, through no fault of her own, forced to litigation. Compare Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958). Preferred Risk’s failure to comply with its policy by paying Ms. Youngblood’s loss was arbitrary and capricious and Preferred Risk, as well as Allstate, should have been cast for penalties and attorney’s fees.

The last issue presented is the amount of attorney’s fees to be awarded counsel for Ms. Youngblood. Counsel for plaintiff argues that his fee should be increased substantially from that awarded by the trial court. The record does not support the contention that the trial court abused its discretion in this particular.

It is therefore ordered that the judgment of the trial court be amended to assess 12% penalties against both Allstate Fire Insurance Company and Preferred Risk Mutual Insurance Company in favor of Ora Cripps Youngblood. The judgment is further amended to assess the attorney’s fees of $1500 against Allstate Fire Insurance Company and Preferred Risk Mutual Insurance Company, jointly, together with legal interest from date of judicial demand until paid. The judgment of the trial court is otherwise affirmed. The insurers, defendants-appellants, Allstate Fire Insurance Company and Preferred Risk Mutual Insurance Company, are cast jointly for all costs of the appeal.

AMENDED AND AFFIRMED.

HOOD, J., concurs in the result.

      . Allstate’s counsel on appeal is not the attorney who tried the case; the latter is now with another firm.


text:
    CITY OF NATCHITOCHES v. THE KEG OF NORTHWESTERN, INC.
    No. 6090.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 1977.
    Rehearing Denied Sept. 15, 1977.
    Writ Refused Nov. 4, 1977.

      Martin S. Sanders, Winnfield, Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoch-es, for defendant-appellant.
    Watson, Murchison, Crews & Arthur by Daniel T. Murchison, Natchitoches, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

The plaintiff, City of Natchitoches, petitioned successfully for a permanent injunction against defendant, The Keg of Northwestern, Inc., prohibiting the defendant from selling alcoholic beverages containing more than six per cent of alcohol by volume for consumption on the premises. Defendant has appealed from the judgment of the district court granting the injunction.

MOTION TO DISMISS

Plaintiff has moved to dismiss the appeal on the ground that the appellant failed to timely post the estimated costs of the appeal as required by LSA-C.C.P. art. 2126. When the record of appeal has been lodged timely with the appellate court, together with the filing fees, the question of appellant’s failure to pay timely the costs and fees required is moot. Succession of Nunez ex rel First Nat. B. of A. v. Pickett, 335 So.2d 778 (La.App. 3 Cir. 1976). Appeals are favored and will be maintained absent a clear showing of a legal ground for dismissal. Davidge v. Magliola, 346 So.2d 177 (La., 1977). The motion is denied.

MERITS

The facts relating to the injunction are not disputed and were stipulated by the parties. They will be quoted as follows:

“I.
The plaintiff herein is THE CITY OF NATCHITOCHES, who is seeking a writ of injunction against the defendant to prohibit the defendant from selling mixed drinks and other alcoholic beverages containing more than 6% of alcohol by volume for consumption on the premises in violation of Ordinance No. 503~y2 of April 13, 1949, of the City of Natchitoches.
“II.
It is stipulated that Ordinance No. 503V2 of April 13, 1949, was passed pursuant to the promulgation of a local option election held exclusively within the City of .Natchitoches on the 5th day of April, 1949.
“III.
It is further stipulated that the copies of the Ordinance and the proces verbal of election which are attached to the original petition are true and correct copies of same, duly certified.
“IV.
It is further stipulated that the defendant, THE KEG OF NORTHWESTERN, INC., is the owner and operator of an establishment known as ‘The Keg’, located within the city limits of Natchitoches, on Louisiana By-Pass Highway 3110.
“V.
It is further stipulated that the ‘The Keg’ commenced, on or about the 26th day of November, 1976, to sell to its customers mixed drinks and other alcoholic beverages containing more than 6% of alcohol by volume for consumption on the premises and that ‘The Keg’ has continued to make such sales through the date of this stipulation.
“VI.
It is further stipulated that THE KEG OF NORTHWESTERN, INC., has a permit from the State of Louisiana, Department of Public Safety, Commission on Alcoholic Beverage Control, to sell alcoholic beverages, high alcoholic content, on premises, Class A, retail, and that said permit was issued after November 8, 1976, and prior to November 26, 1976.
“VII.
It is further stipulated that the City of Natchitoches has no ordinance requiring a permit for the sale of alcoholic beverages containing more than 6% of alcohol by volume for consumption on the premises.” (TR. 19-20).

The issue posed is whether Ordinance 503V2 is now valid and enforceable. Stated more precisely, the issue is whether the ordinance, which prohibits sale of alcoholic beverages containing more than 6% of alcohol by volume for consumption on the premises, which was enacted lawfully pursuant to statutes in effect in 1949, is now valid and enforceable.

The resolution of the issue is controlled by LSA-R.S. 26:581-595 and the case of State v. Sissons, 292 So.2d 523 (La., 1974).

There is no contention that Ordinance no. 503V2 was not valid at the time of its enactment, and statutes and ordinances carry a presumption of validity.

However, appellant contends that no. 503V2 is not valid for two reasons: (1) the Revised Statutes of 1950 had the effect of repealing the ordinance; and (2) no. 503V2 conflicts with LSA-R.S. 26:581-595, the current local option statutes.

As to the first argument, that the adoption of the Revised Statutes of 1950 had the effect of repealing the ordinance, appellant does not cite any authority. The wording of State v. Sissons, 292 So.2d 523 (La., 1974), is quoted to the effect that the previous local option statutes were repealed by the adoption of the Revised Statutes in 1950 and that a savings clause was not included. It does not follow that all local option ordinances were repealed and Sissons does not stand for that proposition. Sissons says the following:

“The power to regulate traffic in alcoholic beverages is vested in the State and the legislature may delegate such power to political subdivisions of the State, [citations omitted] However, by so delegating the State does not surrender its power and the legislature can at any time alter or recall the delegated power, [citations omitted] Generally, a police regulation of a subdivision of the State enacted pursuant to authority delegated by the State cannot exceed the grant of authority and must fall when it conflicts with State law.” 292 So.2d 525-526

The Supreme Court in Sissons went on to examine the Winn Parish ordinance in question in that case and to compare it with the provisions of LSA-R.S. 26:581-595 to determine whether there was a conflict and whether the ordinance was, therefore, invalid. See also State v. Wright, 305 So.2d 406 (La., 1974).

The analytical technique used by the Supreme Court in Sissons demonstrates that appellant’s first argument is without merit and brings us to a consideration of the second argument.

The thrust of appellant’s argument, that no. 503V2 is in conflict with the current statutes on local option, is that the wording on the ballot used in the local option is different from the wording currently required by LSA-R.S. 26:587. Again, we find no authority for the contention that the wording in the 1949 election must have been the same as that later provided by LSA-R.S. 26:587.

However, it is appropriate to examine the Sissons ease to test Ordinance no. 503V2. Here are the tests applied in Sissons:

“The ordinance before us exceeds the legislative delegation of power in the following respects:
“(1) It is an exercise of local option on a parish-wide basis in contravention of R.S. 26:582.
“(2) It purports to prohibit beverages with an alcoholic content which by the terms of R.S. 26:588 may not be regulated by local prohibition.
“(3) The penalties under the ordinance grossly exceed those allowed under R.S. 26:595.” 292 So.2d 526

The Natchitoches ordinance is not on a parish-wide basis; it regulates beverages which may be regulated under LSA-R.S. 26:588; and it contains no penalties and is therefore not in excess of those allowed by LSA-R.S. 26:595.

Thus, the Natchitoches ordinance does not fail on any of the tests applied in Sis-sons and does not bear any of the infirmities of the ordinance declared invalid in Sissons.

There is no merit in the specifications of error and the judgment is affirmed for the reasons assigned. Costs are taxed against appellant.

AFFIRMED.

HOOD, J., concurs in the result.


author: STOKER, Judge. CULPEPPER, Judge,

text:
    Larry YOUNG, Plaintiff and Appellee, v. ALLEN PARISH SCHOOL BOARD, Defendant and Appellant.
    No. 5919.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1977.

      Ryder & Deshotels, by Errol D. Deshotels, Oberlin, for defendant and appellant.
    D. Michael Mooney, Lake Charles, for plaintiff and appellee.
    Before HOOD, CULPEPPER, WATSON, FORET and STOKER, JJ.
   STOKER, Judge.

This is one of several companion cases consolidated for trial in the trial court and for appeal here. We are rendering judgment in the companion cases on this date.

Plaintiff-appellee, Larry Young, and the plaintiffs in the companion suits were teachers in the public schools as employees of the Allen Parish School Board. They were employed for years prior to the school year 1975-76 and also for the year 1975-76. The issues in each suit are the same. Plaintiffs contend that their suits are actions in contract for the recovery of salary in amounts greater than they were paid in the school year 1975-76.

The issue in each case is whether the teachers should be given credit in the computation of their salaries for military service. The trial court gave judgment for the plaintiff-teachers and the school board has appealed.

R.S. 17:423 provides in part as follows: § 423: Persons entering- military service; right to prior service credit
any person who shall have served on active duty in the armed forces of the United States during World War II or the Korean or Viet Nam conflicts shall receive credit under the minimum salary schedule provided for in R.S. 17:419-422 for the period that he served in the armed forces of the United States. The term “person”, as used in this Section, shall mean and include only a person who was a regularly employed teacher, as that term is defined in R.S. 17:441, by a school system of this state prior to the time of induction for service in World War II or the Korean or Viet Nam conflicts. (Emphasis ours)

This statute was construed in Washington v. St. Charles Parish School Board, 288 So.2d 321 (La.Sup.Ct.1974). The case held that the credit was to be applied only in situations where a person’s teaching career was interrupted and no credit would be given where the service preceded the teaching career. Prior to the school year 1975-76 the Allen Parish School Board paid Larry Young a salary based on the schedule but giving him credit for his military time. Inasmuch as he began his teaching career after his military service, his pay was incorrectly computed for the years prior to 1975-76. The amount improperly paid is not in dispute. The dispute arises out of the fact that, after signing an agreement with the defendant school board to teach during the school year 1975-76, the Superintendent of Schools for the parish notified Larry Young that his pay for the oncoming 1975-76 session would not reflect his military service as it was not in accordance with the statute quoted above. Each of the other plaintiffs was given the same notification. Larry Young taught nevertheless, as did the plaintiffs in the companion suits, and was paid at a lesser salary. His suit is for the difference he would have been paid had he been paid at a rate which reflected his military time.

The position taken by Larry Young in this suit is that the statutory provision is immaterial in this dispute with the school board because the school board was, nevertheless, bound by contract to pay him according to a schedule that reflected the military time because that was the intention of the parties at the time the contract was entered into.

The fact of the matter is that the contract did not make any reference to salary at all. Salary was the one element of the contract which was not spelled out. The contention of Larry Young is that his contract was a contract of rehiring and that it was not necessary to make reference to salary because it was understood and intended that it would be on the basis of the existent salary schedule but with credit for military service included because it had been included in previous years.

The defendant-appellant school board takes the position that it is prohibited from paying Larry Young a salary which gives him credit for his military time. The questions to be determined are (1) was there a contract for payment of the salary at the higher pay sought and (2) does the state statute control in such a manner, that if the school board did contract to pay at the higher scale, the statute would render the contract nugatory.

WAS THERE A SALARY AGREED UPON IN THE CONTRACT?

The evidence in the consolidated cases was largely stipulated and the only testimony was given by the Superintendent of Schools, Dr. Albert Kennard. The employment contracts in three cases consisted of a form letter from Dr. Kennard to the teacher and a signed acceptance. In the case of Larry Young the letter read as follows:

ALLEN PARISH SCHOOL BOARD
P. O. DRAWER C
OBERLIN, LOUISIANA 70655
STATE OP LOUISIANA
PARISH OP ALLEN
Based on the evidence submitted by Larry Young he holds Certificate No. 25.343 type (he or she)
B issued by the Louisiana State Department of Education, he is hereby appointed to teach Social Studies
P.E.. Asst. Prin. in the Reeves High School for the 1975-76 session of nine (9) months.
Indicate below whether you accept or reject his appointment.
S/ Albert L. Kennard_ Superintendent
I hereby accept the appointment above.
May 16.1975 S/ Larrv K. Young_ Teacher’s Signature

As indicated above the letter was a form letter with appropriate blanks provided in which the information pertinent to Larry Young was typed. Mr. Young wrote in the word “accept” in a blank space left for the indication of acceptance or rejection of the appointment and signed it. It will be noted that the form as completed in the case of Larry Young made no mention of a specific salary to be paid. Plaintiffs Carlos Land and Robert Cronan, were also sent a form letter of this type and each accepted employment. The contract with Charles Nev-ils was in a different form.

Why Larry Young and the other plaintiffs were improperly paid is not explained and was no doubt inadvertent. Dr. Ken-nard became Superintendent in Allen Parish on July 1, 1973. In July, 1975, Dr. Kennard employed a teacher who was the first teacher he had hired who claimed military service. Dr. Kennard checked the law and determined that the newly hired teacher was not eligible for military credit because the service time antedated the teaching service.' Dr. Kennard’s bookkeeper then informed him that there were several other teachers who had been teaching and receiving the credit although their military service did not interrupt their teaching service. Larry Young and his companion plaintiffs were teachers in this category. It was then that Dr. Kennard wrote the plaintiffs to explain the situation and advise that no military credit would be given them in computing their 1975-76 salary.

In the case of Larry Young the latter portion of the letter, dated August 8, 1975, reads as follows:

The State Department of Education has agreed that there will be no possibility of our having to return the money which has previously been collected in violation of the statute in question; however, we may no longer report this military experience for credit.
According to our records, your salary last year, including credit for military service, was $9,821.00. This coming year your salary will be based upon the following:
Bachelor’s degree
4 years’ experience
Your yearly salary for 1975-76, according to the salary schedule, will be $9,374.00. I am truly sorry to be the bearer of this news, and it is extremely unfortunate that the error was made in the past. If it is of any consolation, the fact is that for the previous years you have been paid more than your experience scheduled. Also there are nine other men in the parish who are in the same situation, and the total overpayment for the coming year would have exceeded $10,000.00. Please contact me if I can supply you any additional or clearer information about this matter.

As the quoted portion of the letter clearly shows, the Allen Parish School Board (1) had in the past given the credit for military service, although the service was prior to teaching sendee and (2) the Board intended to do so at the time Larry Young was offered and accepted his teaching position for 1975-76. Except for the fact that Dr. Kennard was prompted to determine the law, Larry Young and his companion plaintiffs would have been paid with credit for military service. Therefore, there was a meeting of minds on the salary element of the contract and the salary intended was that provided in the salary schedule with credit for military credit included.

COULD THE DEFENDANT SCHOOL BOARD CONTRACT TO PAY SALARIES HIGHER THAN AS PROVIDED IN THE SCHEDULE

We do not regard the provisions of RS 17:423 as a statutory provision prohibiting a school from paying teachers at a schedule which would allow credit for military service prior to embarking on a teaching career. Likewise, we do not regard the minimum salary schedule set forth in RS 17:419-422 as a prohibition against paying more than the minimum. We think it is common knowledge that the various school boards of the state do, in fact, pay according to different schedules. All the statutory minimum salary schedule does is to set a minimum which each individual school board is required to pay under law. In like manner, RS 17:423 merely requires each school board to give credit for military service which interrupted a teacher’s tenure. In Washington v. St. Charles Parish School Board, supra, Chief Justice Sanders writing for the Louisiana Supreme Court said, “the legislation was designed to avoid a salary penalty for teachers whose tenure was interrupted by military service.” Chief Justice Sanders noted that in 1972 the Legislature added the second paragraph of RS 17:423 to specifically provide that the term “person” as used in the statute meant a “regularly employed teacher ... by a school system of this state prior to the time of his induction for service . . . ”

Despite the wording of the 1972 amendment of R.S. 17:423 referred to above, and the general interpretation of the statute given in the Washington case, we do not find anything in either which would prohibit a particular school board from adopting a more liberal policy and extending credit for military service performed prior to entering a teaching career. This would be true so long as the school system bore the cost itself and did not call upon the state to contribute in any way to such an emolument.

The issues in Washington v. St. Charles Parish School Board, supra, are distinguishable from the issues here. In Washington the plaintiff was contending that the statute, RS 17:423, should be interpreted to extend military credit to all teachers regardless of when the military service was performed. The Louisiana Supreme Court rejected this interpretation as noted above. Here, however, Larry Young and his companion plaintiffs are not contesting the interpretation of the statute. Their position is that Allen Parish School Board contracted with them in the Spring of 1975 to teach in the academic year 1975-1976 to pay them salaries which would reflect credit for military service performed at anytime and irrespective of whether it interrupted a teaching career. Such a contract would not be violative of RS 17:423 and would not be contrary to Washington v. St. Charles Parish School Board. We agree that the Allen Parish School Board was free to contract as it did with Larry Young and the teachers in the companion actions. The suits are contract actions and not actions for a reinterpretation of RS 17:423.

The defendant-appellant school board vigorously argues that to pay the plaintiff-appellees on the basis their contracts “would constitute a fraudulent claim by the Allen Parish School Board and possibly subject its superintendent to charges of criminal malfeasance.” We are not suggesting that any claims, presumably from the State, be made. In fact, the letter sent by Superintendent Kennard to Larry Young on August 8, 1975, carries the implication that the matter of prior claims had been candidly reported to the State authorities as he states: “The State Department of Education has agreed that there will be no possibility of our having to return the money which has previously been collected in violation of the statute in question; however, we may no longer report this military experience for credit.” (Emphasis added.) The emphasized portion of the language is a clear statement of policy that defendant-appellant school board will not claim credit from the state. We see no possibility of illegal or criminal action by the board or superintendent if the board itself shoulders the entire cost of the extra pay. We would assume that from and after the circulation of the letters to several teachers, including Larry Young, that the policy of the Allen Parish School Board was thenceforth publicly changed and no contracts made for years following the 1975-76 school year would be made except on terms clearly evincing the change in policy. The suits in question here are for specific performance of contracts of employment for the year 1975-76, not as noted, for a reinterpretation of R.S. 17:423, and only salaries for the four plaintiffs for the one year are in question.

In brief on behalf of the defendant-appellant school board it is urged that “we do contend and feel that the portion of the contract requiring the State of Louisiana to pay military tenure time is null.” We fail to see how the contracts require the State to pay the extra salaries due. This will be the obligation of the school board alone.

Defendant-appellant school board further urges that the intent of the parties in their contract was that the plaintiff-teachers be paid whatever was provided by state statutory law. We are of the view that the parties intended by their contracts to pay in accordance with previous policy. Having been given the military credit in the past, Larry Young, as well as his companion plaintiffs, could expect that his reemployment offer was extended to him on the same basis and we have no doubt that it was. Superintendent Kennard’s letter of August 8, 1975, makes that quite clear.

It is also urged on behalf of defendant-appellant that it and the teachers were laboring under an error of fact when they contracted. The error, it is said, was as to the salary to be paid. Therefore, it is contended that under Article 1823 of the Louisiana Civil Code, the error was as to the subject matter of the contract and the error vitiated the contract. The parties may have contracted in error as to what the statutory authority required, but as has been shown, payment over and beyond what is required is not prohibited. We presume that the parties dealt at arms length and the policy of paying beyond what was required appears to have been in force for some time. Moreover there is no proof that the parties contracted in error of fact or law. Conceivably, at some time in the past, prior to the time Dr. Kennard became Superintendent in 1973, the defendant board may well have adopted a considered policy of paying for military time whenever served. In any event, we are not convinced that an error of fact such as would vitiate the contract is involved.

JUDGMENT

We conclude that the trial court correctly decided these companion cases in favor of the plaintiff school teachers. The single judgment was signed on July 30, 1976, in favor of the plaintiffs. In part it read:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff, Larry Young, and against defendant the Allen Parish School Board ordering the Allen Parish School Board to pay unto Larry Young the salary of Ten Thousand Eight Hundred Eighty-Four ($10,884.00) and No/100 Dollars for the 1975 — 76 school term together with legal interest from the date of judicial demand;
* * sjc * He *
IT IS STILL FURTHER ORDERED, ADJUDGED AND DECREED that all costs of these proceedings be assessed against defendant, the Allen Parish School Board.

It was stipulated (Tr. 40) that Mr. Young’s total salary with military credit, parish supplement and pay as assistant principal would total $10,884.00 for the period in question. No stipulation or evidence established what salary he actually received. According to answers to a request for admission of facts dated December 30, 1975, the Allen Parish School Board stated (which is its contention) “that under the terms of his employment agreement and state law his salary would be $10,552.00 a year, which has been paid to him since his employment began in September, 1975.” If $10,552.00 was actually paid to him, then the difference owed is $292.00. The judgment should be recast to award $10,884.00 subject to a credit for such amounts as has been paid together with interest from date of judicial demand on the net amount due and costs. As the judgment stands, it orders the defendant to pay Larry Young $10,884.00 for the 1975-76 school term together with legal interest from the date of judicial demand. In this form it may lead to some uncertainty inasmuch as the amount actually paid is not established in evidence and the interest should be paid on the specific difference due rather than $10,-884.00.

For the reasons assigned we affirm the judgment of the trial court insofar as it renders judgment in favor of plaintiff-ap-pellee, Larry Young, against defendant-appellant, Allen Parish School Board. We amend the trial court judgment with respect to the award. Accordingly, it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Larry Young, and against the Allen Parish School Board in the full sum of Ten Thousand Eight Hundred Eighty-four ($10,884.00) and No/100 Dollars subject to a credit for all sums paid Larry Young, as a salary by defendant during the 1975-76 school term for Allen Parish, together with legal interest from date of judicial demand on the net amount due under this judgment, all costs of these proceedings in the trial court to be assessed against defendant Allen Parish School Board, insofar as defendant may be legally cast for such costs.

All costs of this appeal are assessed to defendant-appellant insofar as it may be legally cast for such costs.

AMENDED AND AFFIRMED AS AMENDED.

CULPEPPER, J., dissents and assigns written reasons.

HOOD, J., dissents for the reasons assigned by CULPEPPER, J.

CULPEPPER, Judge,

dissenting.

I respectfully dissent from this and the companion cases listed in the majority opinion. Since the amount of the salary was not expressly stated in the written contract for 1975-1976, the salary must be determined according to the intent of the parties. It is my view that both the Allen Parish School Board, represented by Superintendent Kennard, and these four teachers in question intended that the salary be the minimum amount fixed by the state schedule, plus the supplement paid by Allen Parish to all teachers under its schedule. It was clearly not intended by Dr. Kennard nor by any of the four teachers that they would receive extra compensation over and above the minimum provided by the regular state and parish schedules.

It may be that at the time they entered into the 1975-1976 contract, both Dr. Ken-nard and these four teachers thought that credit should be given for military service, as it had been for several years. However, they were in error as to this fact, as is clear from the case of Washington v. St. Charles Parish School Board, 288 So.2d 321 (La.S.Ct. 1974). This was a mutual error of fact on the part of both the School Board and the teachers. Nevertheless, despite this mutual error of fact, it was the intention of both parties that the teachers receive only the minimum pay provided by the state and parish schedules. There is no evidence to support the contention that it was the intention of either the School Board or the teachers that they would receive any extra amount in excess of that paid to all other teachers under the schedules.

For the reasons assigned, I respectfully dissent.

      . See Charles Nevils v. Allen Parish School Board, 349 So.2d 475; Carlos Land v. Allen Parish School Board, 349 So.2d 476, and R. Cronan v. Allen Parish School Board, 349 So.2d 477.

      . Act No. 585 of 1972 of the Louisiana Legislature.

      . We note that Act No. 148 of 1976 of the Louisiana Legislature made certain adjustments in the application of R.S. 17:423 with respect to persons who were being granted military credit by a parish or city school system prior to the effective date of Act No. 585 of 1972.

      . Articles 1821 and 1823 of the Louisiana Civil Code provide as follows:
      Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.
      Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.


author: STOKER, Judge.

text:
    Charles NEVILS, Plaintiff and Appellee, v. ALLEN PARISH SCHOOL BOARD, Defendant and Appellant.
    No. 5941.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1977.
    Ryder & Deshotels by Errol D. Deshotels, Oberlin, for defendant and appellant.
    D. Michael Mooney, Lake Charles, for plaintiff and appellee.
    Before HOOD, CULPEPPER, WATSON, FORET and STOKER, JJ.
   STOKER, Judge.

This case was consolidated for trial and appeal with several suits one of which is Young v. Allen Parish School Board, 349 So.2d 469, which is being decided on this date.

For the reasons which we assigned in Young v. Allen Parish School Board, supra, we take the following action in this case. We affirm the judgment of the trial court insofar as it renders judgment in favor of plaintiff-appellee, Charles Nevils, against Allen Parish School Board and assesses court costs to the latter. However, the one judgment rendered and signed for all of the plaintiffs in the consolidated case (described in Young v. Allen Parish School Board, supra) granted the same form of decree to each plaintiff and ordered the total amount of salary to be paid for the year 1975-76, rather than awarding the difference in what was actually received and what should have been paid. The portion of the judgment in favor of the plaintiff in this suit, Charles Nevils, reads: “IT IS STILL FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Charles Nevils (sic) the salary of Eleven Thousand Two Hundred Ninety-Three ($11,293.00) and No/100 Dollars for the 1975-76 school term together with legal interest from the date of judicial demand;

For the reasons given in the Young case we amend the trial court judgment with respect to the award. Accordingly, it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Charles Nevils, and against the Allen Parish School Board in the full sum of Eleven Thousand Two Hundred Ninety-Three ($11,293.00) and No/100 Dollars, subject to a credit for all sums paid Charles Nevils as salary by defendant during the 1975-76 school term for Allen Parish, together with legal interest from date of judicial demand on the net amount due under this judgment, all costs of these proceedings in the trial court to be assessed against defendant, Allen Parish School Board, insofar as defendant may be legally cast for such costs.

All costs of this appeal are assessed to defendant-appellant insofar as it may be legally cast for such costs.

AMENDED AND AFFIRMED AS AMENDED.

CULPEPPER, J., dissents and assigns written reasons in 5919.

HOOD, J., dissents for the reasons assigned by CULPEPPER, J.


text:
    Carlos LAND, Plaintiff and Appellee, v. ALLEN PARISH SCHOOL BOARD, Defendant and Appellant.
    No. 5942.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1977.
    Ryder & Deshotels by Errol D. Deshotels, Oberlin, for defendant and appellant.
    D. Michael Mooney, Lake Charles, for plaintiff and appellee.
    Before HOOD, CULPEPPER, WATSON, FORET and STOKER, JJ.
   STOKER, Judge.

This case was consolidated for trial and appeal with several suits one of which is Young v. Allen Parish School Board, 349 So.2d 469, which is being decided on this date.

For the reasons which we assigned in Young v. Allen Parish School Board, supra, we take the following action in this case. We affirm the judgment of the trial court insofar as it renders judgment in favor of plaintiff-appellee, Carlos Land, against Allen Parish School Board, and assesses court costs to the latter. However, the one judgment rendered and signed for all of the plaintiffs in the consolidated case (described in Young v. Allen Parish School Board, supra) granted the same form of decree to each plaintiff and ordered the total amount of salary to be paid for the year 1975-76, rather than awarding the difference in what was actually received and what should have been paid. The portion of the judgment in favor of the plaintiff in this suit, Carlos Land, reads: “IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Carlos Land and against Allen Parish School Board to pay unto Carlos Land the salary of Ten Thousand Nineteen ($10,-019.00) and No/100 Dollars for the 1975-76 school term together with legal interest from the date of judicial demand; . . . ”

For the reasons given in the Young case we amend the trial court judgment with respect to the award. Accordingly, it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Carlos Land, and against the Allen Parish School Board in the full sum of Ten Thousand Nineteen ($10,019.00) and No/100 Dollars, subject to a credit for all sums paid Carlos Land as salary by defendant during the 1975-76 school term for Allen Parish, together with legal interest from date of judicial demand on the net amount due under this judgment, all costs of these proceedings in the trial court to be assessed against defendant, Allen Parish School Board, insofar as defendant may be legally cast for such costs.

All costs of this appeal are assessed to defendant-appellant insofar as it may be legally cast for such costs.

AMENDED AND AFFIRMED AS AMENDED.

CULPEPPER, J., dissents and assigns written reasons in 5919.

HOOD, J., dissents for the reasons assigned by CULPEPPER, J.


author: STOKER, Judge. '

text:
    Robert CRONAN, Plaintiff and Appellee, v. ALLEN PARISH SCHOOL BOARD, Defendant and Appellant.
    No. 5943.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 16, 1977.
    Ryder & Deshotels by Errol D. Deshotels, Oberlin, for defendant and appellant.
    D. Michael Mooney, Lake Charles, for plaintiff and appellee.
    Before HOOD, CULPEPPER, WATSON, FORET and STOKER, JJ.
   STOKER, Judge. '

This case was consolidated for trial and appeal with several suits one of which is Young v. Allen Parish School Board, 349 So.2d 469, which is being decided on this date.

For the reasons which we assigned in Young v. Allen Parish School Board, supra, we take the following action in this case. We affirm the judgment of the trial court insofar as it renders judgment in favor of plaintiff-appellee, Robert Cronan, against Allen Parish School Board and assesses court costs to the latter. However, the one judgment rendered and signed for all of the plaintiffs in the consolidated case (described in Young v. Allen Parish School Board, supra) granted the same form of decree to each plaintiff and ordered the total amount of salary to be paid for the year 1975-76, rather than awarding the difference in what was actually received and what should have been paid. The portion of the judgment in favor of the plaintiff in this suit, Robert Cronan, reads: “IT IS STILL FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Robert Cronan and against the Allen Parish School Board, ordering the Allen Parish School Board to pay unto Robert Cronan the salary of Eleven Thousand Six Hundred Eighty ($11,680.00 and No/100 Dollars for the 1975-76 school term together with legal interest from the date of judicial demand; . .

For the reasons given in the Young case we amend the trial court judgment with respect to the award. Accordingly, it is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Robert Cronan, and against the Allen Parish School Board in the full sum of Eleven Thousand Six Hundred Eighty ($11,680.00) and No/100 Dollars, subject to a credit for all sums paid Robert Cronan as salary by defendant during the 1975-76 school term for Allen Parish, together with legal interest from date of judicial demand on the net amount due under this judgment, all costs of these proceedings in the trial court to be assessed against defendant, Allen Parish School Board, insofar as defendant may be legally cast for such costs.

All costs of this appeal are assessed to defendant-appellant insofar as it may be legally cast for such costs.

AMENDED AND AFFIRMED AS AMENDED.

CULPEPPER J., dissents and assigns written reasons in 5919.

HOOD, J., dissents for the reasons assigned by CULPEPPER, J.


author: PER CURIAM.

text:
    Eddie L. SAPIR v. Paul J. HARDY, Secretary of State and Harry Connick, District Attorney in and for the Parish of Orleans.
    No. 9012.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 1977.
    Rehearing Denied Aug. 26, 1977.
    Writ Refused Sept. 2, 1977.

      Sapir & Garcia, Robert H. Belknap, Donald V. Organ, New Orleans, for Eddie L. Sapir, plaintiff-appellant.
    William F. Wessel, New Orleans, for Harry Connick, defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Joseph W. Thomas, Asst. Atty. Gen., and Ronald C. Davis, Staff Atty., New Orleans, for Paul J. Hardy, Secretary of State, defendant-appel-lee.
    Before LEMMON, GULOTTA and BEER, JJ.
   PER CURIAM.

The issue in this appeal is the constitutionality of Act No. 686 of 1975, insofar as that act extends the term of office of the District Attorney for the Parish of Orleans from May, 1978 to December 31, 1978.

La.Const.1921, Art. 7, § 89 fixed the term of the District Attorney for the Parish of Orleans at four years, although § 58 fixed the term of all of the other district attorneys in the state at six years.

The term of the District Attorney for the Parish of Orleans was changed by La.Const. 1974, Art. 5, 26(A) which provides:

“In each judicial district a district attorney shall be elected for a term of six years. * * * ”

Subsequent to the effective date of the 1974 Constitution the Legislature enacted Act No. 686 of 1975, which amended and reenacted R.S. 16:1 to provide in part:

“A. In each judicial district and in the parish of Orleans a district attorney shall be elected for a term of six years, notwithstanding any provision of R.S. 16:71 to the contrary.
}ji $ * Sf! * ¡fc
“D. The term of the district attorney for the parish of Orleans in office on the effective date of this Section shall expire on December 31, 1978. His successor shall be elected at the same time as district attorneys throughout the state in 1978, and thereafter the successors to the office shall be elected at the same time as the district attorneys throughout the state.” (Emphasis supplied)

. Plaintiff first attacks Act 686 on the basis that the act conflicts with the mandate in the 1921 Constitution that this officer be elected for four years. Pointing out that the 1974 Constitution did not alter the term of the current holder of that office and did not require that all district attorneys be elected at the same time, plaintiff argues that the term of that officer could not be extended by mere legislative act.

La.Const.1921, Art. 7, § 89 was continued in existence as a statute by the 1974 Constitution. Therefore, at the time Act 686 was enacted, the provision of law under which the present district attorney was elected had been relegated to the status of a statute, subject to amendment by legislative act.

Furthermore, the act did not appoint a district attorney for the nine-month period in conflict with the election requirements of both Constitutions, but rather extended the term of the present officer. The Legislature may exercise any power not prohibited by the Constitution. Russell v. McKeithen, 257 La. 225, 242 So.2d 229 (La. 1970). Since this action by the Legislature is not prohibited by the Constitution, that body had the power to pass the act, as long as the act was within the bounds of other constitutional requirements.

Plaintiff also urges that Act 686 was local or special legislation, which was prohibited by the specific enumerations of La.Const. 1974, Art. 3, § 12(A)(1), or was at least required to be specially advertised by Art. 3, § 13.

Legislation is not local or special when the act applies to a class founded upon reasonable and proper classification. Knapp v. Jeiferson-Plaquemines Drainage Dist., 224 La. 105, 68 So.2d 774 (La.1953). Act 686 designated as a class all of the district attorneys whose terms were not six years and provided for all equal treatment to all members of the class. Furthermore, this class had been created by the 1921 Constitution, and the object of Act 686 was to eliminate, rather than create, a special class.

Moreover, one of the principal objectives of the Constitutional Convention of 1973 was to promote uniformity throughout the state. In including Art. 5, § 26, numerous delegates commented on this objective of uniformity. See 9 Verbatim Transcripts, La.Const.Conv. of 1973. Section A of Act 686 achieves the uniformity in length of terms mandated by the Constitution. Section D of Act 686, while not mandated by the Constitution, is a reasonable exercise of legislative power to achieve uniformity in the expiration date of these terms and in the time of election of district attorneys. Furthermore, but for Section D of Act 686 the term of the district attorney elected in Orleans Parish in 1978 would have expired in May, 1984, and a special election for that one office would have been required in that year, since the term of all other parish officials elected at the same time in 1978 remained at four years.

We hold that Act 686 was founded upon a reasonable classification and upon legitimate legislative purpose. The facts that only one person was included in that class and that the one person may have been incidently benefited do not make the Act a local or special law.

Plaintiff finally attacks Act 686 as an ex post facto law which violates La.Const.1974, Art. 1, § 23.

The ex post facto prohibition is one which relates exclusively to criminal or penal statutes. In re Craven, 178 La. 372,151 So. 625 (La.1933). The prohibition is therefore not applicable in this case.

The judgment is affirmed.

AFFIRMED.

      . The time of the election for District Attorney of the Parish of Orleans was also different, being at the same time as the other parish officials rather than at the time of the Congressional elections, as was the election of all other district attorneys.

      . La.Const. 1974, Art. 14, § 16(A) provides:
      “(A) PROVISIONS CONTINUED AS STATUTES. Subject to change by law or as otherwise provided in this constitution, and except as any of them conflicts with this constitution, the following provisions of the Constitution of 1921 are continued as statutes, but restricted to the same effect as on the effective date of this constitution:
      * * * * * *
      “5. Article VII, Sections ... 89


author: GUIDRY, Judge.

text:
    Earl H. JOHNS, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY et al., Defendants-Appellees.
    No. 6103.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Jerry D. Kirk, Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements and Shaddock by John S. Bradford, Lake Charles, Camp, Carmouche, Palmer, Carwile & Barsh by J. L. Cox, Jr., Lake Charles, for defendants-appellees.
    Before CULPEPPER, GUIDRY and FORET,-JJ.
   GUIDRY, Judge.

Plaintiff instituted this action to recover damages for personal injuries, medical expenses, and loss of earnings all sustained when a safety rope, one end of which was attached around plaintiff’s waist, the other end secured to an operating vehicle, broke causing plaintiff to fall some 30 feet. At the time of the accident plaintiff was attempting to remove a dead limb from a pine tree. Plaintiff alleges that the accident was caused by the negligence of Kenneth Allen, Sr., upon whose premises the accident occurred, and Kenneth Allen, Jr., son of the Senior Allen and driver of the vehicle. Made defendant is State Farm Fire and Casualty Company (hereinafter referred to as “State Farm”), which had issued to Kenneth Allen, Sr., a homeowner’s insurance policy that provided general liability coverage. State Farm answered plaintiff’s petition generally denying the allegations therein, specifically setting forth that its policy of insurance afforded no coverage of the accident and injuries because of exclusions in the policy relative to the use of any automobile or vehicle. Defendant filed a third party demand against Allstate Insurance Company (hereinafter referred to as “Allstate”), the liability insurer of the vehicle owned by Kenneth Allen, Sr., and out of which use the accident allegedly arose. State Farm prays that in the event Kenneth Allen, Sr., or his son are found to be guilty of negligence, and if it be found that State Farm is responsible for said acts of negligence, then Allstate’s policy of insurance would either afford primary coverage and/or Allstate would be considered a solidary obligor and liable to State Farm for one-half of what State Farm might be adjudged to pay plaintiff.

Subsequently State Farm filed a motion for summary judgment alleging that the homeowner’s policy issued by it to Kenneth Allen, Sr., specifically excludes the application of the policy provisions to any accident or injuries resulting from the use of an automobile. After a hearing on the motion for summary judgment the trial court determined that the exclusionary clause in State Farm’s policy was applicable and rendered judgment in favor of State Farm and against plaintiff dismissing his demand as against State Farm. Plaintiff appeals from that judgment.

The exclusionary clause in the homeowner’s policy issued by State Farm, provides as follows:

“THIS POLICY DOES NOT APPLY:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
(a) TO BODILY INJURY OR PROPERTY DAMAGE ARISING OUT OF THE OWNERSHIP, MAINTENANCE, OPERATION, USE, LOADING OR UNLOADING OF: . . .
(2) ANY MOTOR VEHICLE OWNED OR OPERATED BY, OR RENTED OR LOANED TO ANY INSURED; BUT THIS SUBDIVISION (2) DOES NOT APPLY TO BODILY INJURY OR PROPERTY DAMAGE OCCURRING ON THE RESIDENCE PREMISES IF THE MOTOR VEHICLE IS NOT SUBJECT TO MOTOR VEHICLE REGISTRATION BECAUSE IT IS USED EXCLUSIVELY ON THE RESIDENCE PREMISES OR KEPT IN DEAD STORAGE ON THE RESIDENCE PREMISES; ...”

The entire policy was attached as Exhibit “A” and made a part of defendant’s motion for summary judgment. The only other evidence in the record is the deposition of plaintiff.

From plaintiff’s deposition we glean the following facts. About mid-day on March 28, 1976, while plaintiff was visiting at the home of Kenneth Allen, Sr., in Sulphur, Louisiana, a discussion arose regarding a large dead tree limb which had broken off and was lodged in the branches of a tall pine tree in the rear yard of the Allen residence. After some discussion it was decided that the limb should be removed that afternoon. Thereupon Mr. Allen, together with his son, Kenneth, Jr., and plaintiff began to make preparations for the removal of the dead limb. Mr. Allen produced a new hemp rope which was approximately 3/4 inches in diameter and 95 feet long. A weighted fishing line attached to the rope was used to pull the rope over a lower limb of the tree. The lower limb, which was positioned just below the dead branch, was approximately 35 feet from the ground. After securing the rope across the lower limb, one end of the rope was fastened around plaintiff’s waist and the other end was tied to the bumper of Allen’s Ford pickup truck. As agreed by the parties, Kenneth Allen, Jr., upon instruction from his father, was to move the truck forward in order to keep the rope taut while plaintiff climbed the tree. It was not intended that the rope hoist plaintiff to the limb, but rather was to be used as a safety line. Plaintiff began, climbing the tree and as he moved upward Mr. Allen would give instructions to his son to take up the slack in the safety rope. As plaintiff approached the limb over which the safety rope was thrown he released his grip on the tree and shifted his weight to the rope so that he could grab the overhanging limb. The safety rope broke and plaintiff fell thirty (30) feet to the ground. The rope broke some two feet from where it was tied to the bumper of the truck. As a result of the fall plaintiff suffered several broken vertebrae, internal injuries, and a laceration of his tongue.

It is well settled in the jurisprudence of this state that the function of the courts in passing on a motion for summary judgment is not to determine the merits of the issues raised, but rather to determine whether or not there is a genuine issue of material fact. Fontenot v. Lewis, 215 So.2d 161 (La.App. 3rd Cir. 1968). As provided in LSA-C.C.P. Article 966, the motion for summary judgment,

“shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

We consider the instant motion for summary judgment based upon the pleadings, the insurance contract introduced as Exhibit “A”, and the deposition of plaintiff.

In resolving the issue herein, i. e., whether the quoted clause in State Farm’s policy excludes coverage, we note that in Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968), the Supreme Court referred to the “common sense” approach in determining whether the negligent act which caused the injury was a natural and reasonable consequence of the use of the vehicle, within the contemplation of the parties negotiating the insurance contract. As set forth in Bruno v. Hartford Accident & Indemnity Co., 337 So.2d 241 (La.App. 3rd Cir. 1976), the test to be applied for this determination is two-fold:

“(1) was the vehicle being used at the time of the accident; and
(2) was the use thereof directly connected with or a cause of the ensuing accident.”

Clearly there must not only be a use of the vehicle but there must also be some connexity between the use of the vehicle and the resulting accident. Ramsey v. Continental Insurance Company, 286 So.2d 371 (La.App. 2nd Cir. 1973), writs refused December 19, 1973, La., 287 So.2d 187.

In Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st Cir. 1974), writs refused February 7, 1975, La., 307 So.2d 630, the driver of a tractor-trailer unit was killed when his unit went out of control after striking a three foot pile of gravel in its lane of travel. The evidence established that defendant’s truck had negligently spilled the gravel on the highway some few hours before the accident. The court in Tillman, supra, found that the gravel company’s negligence did not arise out of the use of the gravel truck, but rather out of the driver’s intervening negligence in leaving the gravel where it spilled, and thus insurance coverage was provided by general comprehensive provisions of its policy rather than the automobile liability provisions. The court in so finding stated at page 609:

“The courts of this State have interpreted these policy provisions on a number of occasions. We feel it is not necessary to discuss, distinguish or analyze each case. Neither do we feel that any set of rules or tests can be applied to make the clause applicable or inapplicable. It is the best procedure to give the term “use” a reasonable common sense application to the facts of the case with which we are concerned.
We must reject the defendant’s contention for the reason that it was not the use or operation of the truck that caused the damage to plaintiff. It was the intervening act of negligence of the driver, apart from the operation and use of the truck, that set in motion the harm which came to Mr. Tillman. By the truck driver negligently leaving the spilled gravel on the highway unattended, the hazard unmarked and the motoring public not warned, a cause of action arose for recovery of damages. There is no connexity between the vehicle from which the gravel was spilled and the failure to protect the motoring public. For these reasons, we find that the negligent act which gave rise to the cause of action for the wrongful death of Mr. Tillman did not arise out of the “use” of the automobile within the terms of the comprehensive automobile liability coverage of Fireman’s Fund policy, and that coverage applicable herein is under the comprehensive general liability feature of the policy.”

Furthermore, we note that in Hurston v. Dufour, 292 So.2d 733 (La.App. 1st Cir. 1974), writs refused June 7, 1974, La., 295 So.2d 178, our brethren of the First Circuit therein recognized the soundness of the legal proposition espoused in State Farm Mutual Automobile Insurance Company v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123, to the effect that if liability arises from two sources, namely a non-auto related incident as well as an auto related occurrence, the mere fact that one source is excluded under the homeowners policy does not render the homeowners coverage ineffective if the other source of liability is included thereunder. The court in Hurston, supra, page 740, stated:

“In Partridge, above, the insured carried an automobile liability policy and a homeowners policy with his insurer, State Farm. A guest passenger in Partridge’s hunting vehicle was injured when Partridge’s hand gun, being carried therein, discharged accidentally. The weapon fired when Partridge drove his vehicle off a road in pursuit of game. The insurer brought an action to determine whether the automobile liability policy or homeowners policy covered the incident. In essence, the court found Partridge liable for the negligent handling of a firearm, which risk was within the coverage of the homeowners policy which generally protected the policy holder from non-auto related accidents. The court concluded that if liability arises from two sources, namely, a non-auto related incident as well as an auto-related occurrence, the mere fact that one source is excluded under the homeowners policy does not render the homeowner’s coverage ineffective if the other source of liability is included thereunder. So finding, the court held coverage was afforded the insured both under the automobile liability policy and the homeowners policy.
Our jurisprudence is established to the effect that decisions of other jurisdictions are persuasive and will be considered in disposing of issues res nova in our own courts, but are not controlling. Roux v. New Orleans Police Department, La. App., 223 So.2d 905. We readily acknowledge the soundness of Partridge, above, under the factual situation presented therein . . . ”

A review of plaintiff’s petition in this matter reveals that petitioner seeks recovery not only for the alleged negligent acts of Kenneth Allen, Jr. in failing to properly operate the vehicle but also for certain alleged negligent acts of Kenneth Allen, Sr. unrelated to the operation or use of the vehicle. In this latter connection the plaintiff’s petition alleges that Kenneth Allen, Sr. was negligent in the following regard:

1. In failing to observe petitioner climb the tree;
2. In failing to properly supervise the tree climbing operation;
3. In failing to properly instruct both petitioner and Kenneth Allen, Jr. as to the dangers of the tree-climbing operation; and,
4. In failing to exercise due care under the existing circumstances.

Clearly plaintiff’s petition charges Kenneth Allen, Sr. with acts of negligence which are completely independent of and totally unrelated to his ownership and use of the vehicle herein involved. Following the reasoning of Tillman, supra, and Partridge, supra, if it be determined that Kenneth Allen, Sr. was guilty of these alleged acts of negligence which are independent of and unconnected with the use of the vehicle then the insurance coverage applicable would be under Allen Sr.’s homeowner’s policy. This being so we cannot agree with the trial court’s conclusion that no genuine issue of material fact exists herein and that the defendant State Farm is entitled to judgment as a matter of law.

We are careful to point out that at this juncture we make no determination as to whether the exclusionary clause in the State Farm homeowner’s policy is applicable. Instead, we only determine that under the two-fold test as enunciated in Bruno, supra, and as applied in Tillman, supra, there is a question of material fact raised as to whether State Farm’s policy provides coverage under the circumstances. There being a genuine issue of fact summary judgment was not proper.

For the above and foregoing reasons the judgment appealed from is hereby reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Earl H. Johns and against the defendant, State Farm Fire and Casualty Company, dismissing the latter’s motion for summary judgment. Further, this matter is remanded to the trial court for further proceedings consistent with the views herein expressed. The costs of this appeal are to be borne by appellee, State Farm, however, all other costs are to await the final disposition of this matter.

REVERSED AND REMANDED.

      . There is no question but that Kenneth Allen, Jr. was a resident of his father’s household and an insured under both the State Farm and Allstate policies.

      . Thereafter plaintiff amended his petition to add Allstate as a party defendant.


author: FORET, Judge.

text:
    Robert L. JAMES, Plaintiff-Appellee, v. Dora Mae JAMES, Defendant-Appellant.
    No. 6115.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Lewis O. Lauve and Blaise L. Hill, Alexandria, for defendant-appellant.
    James D. Davis of Kramer & Davis, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

This is an appeal by a defendant-wife seeking to reverse a trial court judgment reducing alimony payable to her from $200 per month to $50 per month for the months of January, 1977 and February, 1977.

By judgment of divorce dated August 18, 1975, the trial court granted to Dora Mae James, appellant herein, the sum of Two Hundred ($200.00) Dollars per month in alimony beginning August 1, 1975, and payable monthly thereafter until further orders of the court.

On December 16, 1976, Robert L. James filed a rule for cessation of alimony payments on the grounds that he had recently had surgery and that his income was greatly diminished, while defendant was presently gainfully employed.

After a hearing on the rule, the trial court, on February 8, 1977, signed a judgment ordering that the alimony payment of plaintiff, Robert L. James, to Dora Mae James be decreased from $200 per month to $50 per month for the months of January and February, 1977, reserving the right to either party to reopen the matter and present further evidence for the month of March and following months with regard to the amount of alimony, if any, to be paid to defendant-in-rule, Dora Mae James.

The only issue before us at this time is whether or not the trial judge erred in reducing alimony payable to Dora Mae James from $200 per month to $50 per month for the months of January and February, 1977.

We find a reasonable evidentiary basis for the trial court’s reduction of alimony for the two months in question. While it is true that no medical evidence was presented, the learned trial judge had an opportunity to evaluate the testimony of the witnesses, and to observe the patent physical condition of the husband. Apparently he was convinced that the husband had some disability and loss of income during the two months in question. The reviewing court is not to reverse the findings of a trial court where a reasonable evidentiary basis exists for the holding of the trial court. Canter v. Koehring, 283 So.2d 716 (La.1973).

We affirm the judgment of the trial court, and assess all costs of this appeal against the defendant, Dora Mae James.

AFFIRMED.


text:
    Booker T. McFARLAND et al., Plaintiffs-Appellants, v. Conrad CATHY et al., Defendants-Appellees.
    No. 6117.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.

      James B. O’Neill, Zwolle, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Boden-heimer, Jones, Klotz & Simmons by C. Gary Mitchell, Shreveport, Lowther & Boone by William R. Boone, Many, for defendants-ap-pellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

As a result of an accident occurring on or about the 29th day of September, 1976, plaintiff, Booker T. McFarland, filed suit against Conrad Cathy and the Conrad Cathy Trucking Company, Inc., Aetna Casualty and Surety Co., Inc. and Edward B. Wright, and Willamette Industries, Inc. Plaintiff’s petition alleges that he is a quadriplegic as a result of the said accident.

Additionally, plaintiff, Booker T. McFarland, filed suit on behalf of his minor children, Tera Antonia McFarland, Marius Tal-iaferro McFarland, and Ryan Horatio McFarland, alleging that his three minor children, because of injuries which he has sustained, “will be deprived of the benefits of a father who is healthy of body, a father who is active in civic and community events of their community . . . [and] that his minor children will be deprived of the enhancement of their inheritance due to the cessation of his earning capacity.”

Booker T. McFarland’s wife, petitioner Zelderia, born Palmer, alleges that “she will be deprived of all of the benefits of a husband of healthy body and of all of the attending benefits which flow therefrom . [and] that she will be deprived of the benefits of the enhancement of the value of the community of acquets and gains which she would have received from of [sic] husband, Booker T. McFarland, had these injuries not have happened.”

All of the defendants filed exceptions of no cause or right of action to the demands made by plaintiff, Booker T. McFarland, on behalf of his three minor children, and to the demands of his wife, Zelderia Palmer McFarland. After oral argument on the exceptions, the trial court rendered judgment sustaining the exceptions of no cause or right of action filed by the various defendants, rejecting all the demands asserted by Zelderia Palmer McFarland, wife of Booker T. McFarland, and also those of the minor children of Booker T. McFarland, Tera Antonia McFarland, Marius Taliaferro McFarland and Ryan Horatio McFarland. We affirm.

The established rule in this State is that, except in death cases, one person may not recover damages for mental pain and anguish suffered by him merely as a result of physical injuries sustained by another person. Black v. Carrollton Railroad Company, 10 La.Ann. 33 (1855); Robertson v. Aetna Casualty & Surety Company, 232 So.2d 829 (La.App. 4 Cir. 1970); McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La. App. 1 Cir. 1974); Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1 Cir. 1975); Parker v. St. Paul Fire & Marine Insurance Co., 335 So.2d 725 (La.App. 2 Cir. 1976); Johnston v. Fidelity National Bank of Baton Rouge, 152 So.2d 327 (La. App. 1 Cir. 1963); Christofferson v. Halliburton Company, 5 Cir., 534 F.2d 1147 (1976); Bourque v. American Mutual Liability Ins. Co., 345 So.2d 237 (La.App. 3 Cir. 1977). In Bourque v. American Mutual Liability Insurance Company, supra, this Court was faced with the issue of whether or not a wife could claim damages for mental anguish, emotional distress and loss of consortium because of physical injuries sustained by her husband. The trial court had maintained an exception of no cause of action and we affirmed, relying upon and discussing the cases cited in the preceding paragraph hereof. In quoting from McKey v. Dow Chemical Company, Inc., supra, we said:

“Traditionally and historically our jurisprudence has consistently declined to allow recovery to one party for mental pain and anguish resulting from mere personal injury to another.
“The rationale of this premise is the avoidance of opening a field of litigation which will flood the courts with actions in which practical justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages.
“We hold that these considerations dictate the rule that a party to a contract has no claim under our law to recover damages from a tort-feasor predicated upon the negligent injury to a third party which results in the injured party being rendered incapable of performing contractual obligations.”

In Hickman v. Parish of East Baton Rouge, supra, a claim was asserted on behalf of minor children for damages for loss of services, for loss of love and affection of their parents, resulting from physical injuries sustained by the parents in an automobile accident. The trial court maintained an exception of no cause of action and dismissed the suit. The First Circuit Court of Appeal affirmed, basing its decision largely on McKey, supra. In Parker v. St. Paul Fire & Marine Ins. Co., supra, substantially the same rule was applied, and the demands of a husband were rejected by the Second Circuit Court of Appeal, where the husband sought to recover damages from a hospital for mental suffering and anguish brought about by injuries sustained by his wife through the fault of the hospital.

Plaintiffs cite the case of Valence v. Louisiana Power & Light Company, 50 So.2d 847 where the Orleans Court of Appeal awarded $250.00 damages for mental anguish and worry on the part of a husband over the fear that his wife’s unborn child had sustained injury and that there might be an abortion. For the reasons stated above, and as we stated in Bourque, we believe that the ruling in Valence conflicts with the established jurisprudence, and for that reason we respectfully decline to follow it.

The decision of the trial court in sustaining the exception of no cause of action filed by the various defendants is affirmed.

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Kenneth Lee BURNETT, Plaintiff and Appellee, v. Lorene Elizabeth BURNETT, Defendant and Appellant.
    No. 6120.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    See also, 349 So.2d 490.

      James B. O’Neill, Zwolle, for defendant and appellant.
    Lowther & Boone by Robert C. Lowther, Jr., Many, for plaintiff and appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is a suit for separation from bed and board. The plaintiff husband alleged in his petition that his wife “constructively abandoned” him without cause by ordering him to leave the family home. A default judgment granting the husband a separation from bed and board was confirmed on January 24, 1977. Defendant wife appealed.

The record contains no transcript of testimony taken in connection with the confirmation of the default. There is a presumption, however, that the trial judge was presented with sufficient proof of the demand to establish a prima facie case. LSA-C.C.P. Article 1702, Ascension Builders, Inc. v. Jumonville, 262 La. 591, 263 So.2d 875, 878 (1972); Broussard v. Menard, 316 So.2d 485 (La.App. 3rd Cir. 1975).

In view of the presumption that there was sufficient evidence to support the confirmation of the default, the issue is in effect whether the husband’s petition states a cause of action for separation from bed and board. The petition alleges:

“5.
“The marital relationship between petitioner and defendant has deteriorated for some time to a point when, in April, 1976, defendant told petitioner that she wanted him to leave the matrimonial domicile, but petitioner refused to do so at that time.
“6.
“Subsequently, in August, 1976, after a series of arguments, petitioner arrived home to discover that his wife had removed all of his personal belongings from the house and, further, defendant told him to leave, which he did at that time.
“7.
“In September, 1976, defendant contacted petitioner and requested that he return to the matrimonial domicile. Petitioner, desiring to make the marriage work, complied with her wishes. After one night, during which there was no resumption of the conjugal relationship, defendant again told petitioner to leave, which he did.
“8.
“Defendant’s actions in this regard amount to a constructive abandonment, and petitioner desires and is entitled to a judgment in his favor and against defendant decreeing a separation a mensa et thoro, based on abandonment.”

Plaintiff characterizes his cause of action as one based on “constructive abandonment”. Our Civil Code does not list “constructive abandonment” as one of the grounds for separation from bed and board. See LSA-C.C. Article 138. However, cases from three of our Courts of Appeal have recognized constructive abandonment as a grounds for separation from bed and board. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976); Robertson v. Robertson, 332 So.2d 896 (La.App. 2d Cir. 1976); Smith v. Smith, 300 So.2d 205 (La.App. 3rd Cir. 1974). According to these cases, “constructive abandonment” occurs when one spouse, without just cause, orders the other to leave the matrimonial domicile. The rejected party is said to be “constructively abandoned” even though the offending spouse remains in the matrimonial domicile.

A refinement of the jurisprudential doctrine of “constructive abandonment” emerged in the Robertson case. There, the court found constructive abandonment had occurred and noted: “The crucial factor is her (i. e., the rejected party’s) bona fide attempt to return and live with defendant, which was refused by him.” This refinement appears to satisfy the requirement of LSA-C.C. Article 143 that the abandoning spouse “constantly refused to return.”

If constructive abandonment is a grounds for separation from bed and board, as the above mentioned cases hold, then plaintiff’s petition sufficiently alleges “constructive abandonment.” The petition states that defendant wife removed plaintiff’s personal belongings from the home and that she ordered him to leave. The petition also states that plaintiff husband returned to the house for one night (at his wife’s suggestion) but once again she ordered him to leave on the following day, thereby remaining constant in her intention to abandon plaintiff.

Moreover, we need not rely entirely on the jurisprudential rule of constructive abandonment, since the facts of the present case also constitute grounds for separation under the terms of the Code itself. LSA-C.C. Article 138(3) provides that a separation from bed and board may be claimed, “on account of . excesses, cruel treatment or outrages . . . [if] such ill-treatment is of such a nature as to render their living together insupportable.” Clearly, when one spouse orders the other to leave the matrimonial domicile without just cause, removes his personal belongings and, after inviting him back, again orders him to leave, the rejected spouse should be entitled to a separation from bed and board on grounds of cruel treatment. Such treatment renders the spouses “living together insupportable”, within the meaning of LSA-C.C. Article 138(3). Therefore, the present case should also be affirmed because the petition states a cause of action for separation on the grounds of cruel treatment.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.


text:
    Lorene Elizabeth Self BURNETT, Plaintiff and Appellant, v. Kenneth Lee BURNETT, Defendant and Appellee.
    No. 6196.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    See also, 349 So.2d 488.
    James B. O’Neill, Zwolle, for defendant and appellant.
    Lowther & Boone by Robert C. Lowther, Jr., Many, for plaintiff and appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This case was consolidated on appeal with Kenneth Lee Burnett v. Lorene Elizabeth Burnett, 349 So.2d 488, in which a separate judgment is being rendered by us this date. In the present suit, the plaintiff-wife seeks to annul the prior judgment of separation from bed and board rendered against her as defendant in the companion suit. She contends (1) that there is no such cause of action as “constructive abandonment”, which was the alleged basis of the separation judgment and (2) that the judgment should be annulled for fraud and ill practices, because the allegations in the husband’s petition for separation are false, and he knew they were false at the time he filed the petition. From a judgment dismissing the wife’s suit to annul the prior judgment of separation, the wife appealed.

As to the wife’s argument that the judgment of separation should be annulled because there is no such cause of action as “constructive abandonment”, we conclude in our decision in the companion case that such a cause of action has been recognized in at least three decisions of courts of appeal of this state. Furthermore, we conclude that even if there is no such cause of action, the factual allegations of the husband’s petition for separation from bed and board are sufficient to allege a cause of action based on cruelty.

As to the wife’s argument that the judgment of separation should be annulled because of fraud and ill practices, LSA-C.C.P. Article 2004, we note that in the husband’s suit for separation the wife was personally served, and that she filed no answer or other pleadings urging that the allegations of the husband’s petition for separation were false, nor did she urge any other defense. It is apparent that at the time the wife was served with her husband’s petition for separation, she had full knowledge of all of the facts which she now alleges as fraud and ill practices.

In the recent case of Lyons v. Fontenot, 344 So.2d 1068 (3rd Cir. 1977), we held in a very similar suit for nullity of a judgment of divorce that, in the absence of a valid and sufficient reason for defendant’s failure to defend a suit in which a default judgment has been taken, such a defendant cannot maintain an action for nullity of the default judgment based on alleged defenses of fraud or ill practices, which could and should have been pleaded in the original suit. This rule is clearly applicable in the present case.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: STOULIG, Judge. BEER, Judge,

text:
    LOUISIANA STADIUM AND EXPOSITION DISTRICT v. HUBER, HUNT & NICHOLS, INC., et al.
    No. 8878.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 30, 1977.

      William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert E. Redmann, Asst. Atty. Gen., Jay H. Kern, Staff Atty., New Orleans, for relator.
    Monroe & Lemann, Stephen B. Lemann, New Orleans, Dutton, Kappes & Overman, C. B. Dutton, Indianapolis, Ind., for Huber, Hunt & Nichols, Inc./Blout Brothers Corp., A Joint Venture, respondent.
    Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., Moise W. Dennery, New Orleans, Eugene S. Davis, St. Louis, Mo., Marcel J. Gueniot, Victor E. Stilwell, Jr., New Orleans, for Curtis and Davis Architects and Planners, Inc., Edward B. Silverstein and Associates, Inc., Nolan, Holcombe, Apatini and Seghurs and Sverdrup and Parcel and Associates, Inc., A Joint Venture, respondents.
    Before STOULIG, SCHOTT and BEER, JJ.
   STOULIG, Judge.

Relator seeks a writ of mandamus directing the Civil District Court for the Parish of Orleans to order the American Arbitration Association (AAA) to consolidate two pending claims by the Louisiana Stadium and Exposition District (LSED) under separate contracts it executed in conjunction with construction of the Superdome in New Orleans.

By letter dated April 13,1977, LSED, the owner, advised AAA of separate demands against the architects and the contractors, enclosed copies of each demand and requested consolidation of both hearings. In both demands, the 50 complaints, couched in “and/or” language, are almost identical except in two instances.

When its request for consolidation was denied by AAA, relator filed a motion in the trial court seeking an order to compel consolidation under the Louisiana Arbitration statutes (R.S. 9:4201 et seq.). On the denial of its motion to consolidate, relator applied to this court for relief under our supervisory jurisdiction. The sole issue under consideration is relator’s right to have the two pending arbitrable claims consolidated. The merits of these claims are not involved.

LSED entered separate contracts with the architects and the contractors, each of which provided for arbitration of disputes under the Construction Industry Arbitration Rules of AAA. Neither contract requires consolidation of arbitration demands nor do the arbitration rules address the consolidation issue.

LSED now asks this court to exercise its supervisory jurisdiction it asserts is vested by the Louisiana Arbitration Law to force consolidation under a fair play/judicial economy theory.

The issue is res nova in Louisiana. The litigants have cited to us decisions from other jurisdictions that have reached divergent results in similar cases. The courts ordering consolidation of necessity either viewed the silence quoad consolidation as an implied consent to join multiple claims or imposed its supervisory jurisdiction in the name of judicial economy. While there is logic to an order that requires all complaints emanating from the same project to be heard at one time before the same forum, we are more impressed with the decisions that decline jurisdiction to interfere with the arbitration process on this level. Such intervention by the court, as a matter of substance, would have the effect of rewriting certain provisions of the contract between the parties and, as a matter of procedure, would tend to impede rather than expedite the adjudicatory process by arbitration were the courts to accept supervisory jurisdiction at every level of the administrative hearing.

Parenthetically we note one of the subscribing members of the American Arbitration Association — the American Institute of Architects — repudiated the compulsory consolidation result by changing the arbitration clause in its standard contract to provide for consolidation only where the parties had consented, either by contract or subsequent stipulation.

LSED submits consolidation is necessary to insure a just result because, it argues, if separate panels hear each claim it “could be seriously aggrieved by inconsistent findings” which would unjustly absolve one or both of the respondents from responsibility, thereby depriving the owner of redress. This position fallaciously presupposes that the LSED must collect from either one or both when the State’s right to recovery has not been conceded by either. We do not agree separate hearings would necessarily lead to an unjust result to the LSED and find no merit in this contention.

LSED further maintains separate hearings will greatly increase its cost to litigate because of duplicate expert witnesses, legal expense, filing costs, etc. The fact that it is more costly to litigate two separate demands in different forums is not a basis for rewriting a contract. As the trial judge noted, if the cases were to be consolidated it is probable that the cost of litigating to the contractors and the architects would be significantly increased.

Accordingly, our writ of certiorari is recalled and the application for supervisory relief is now denied.

WRIT RECALLED; APPLICATION DENIED.

BEER, J., dissents with written reasons.

BEER, Judge,

dissenting.

The logic and economy of requiring both sets of complaints emanating from the same project to be heard at one time before the same forum versus a reluctance to interfere with the arbitration process, absent a specific agreement to consolidate:

On a res nova call that is this close, I believe that we should acknowledge the extraordinary interrelationship clearly existent between owner, architect and contractor throughout the construction of this most unique facility. That factor, in my view, tips the scale in favor of consolidation.

I respectfully dissent.

      . Relator’s claim for $6,000,000 each from the architects and the contractors bears AAA docket Nos. 71 10 0036 77 and 71 10 0037 77 respectively.

      . See Consol. Pac. Eng. v. Greater Anchorage, Etc., 563 P.2d 252 (Alaska 1977); Stop & Shop Companies, Inc. v. Gilbane Building Co., 304 N.E.2d 429 (Mass.1973); J. Brodie & Son, Inc. v. George A. Fuller Company, 16 Mich.App. 137, 167 N.W.2d 886 (1969).


text:
    CITY OF NEW ORLEANS et al. v. Honorable Edwin W. EDWARDS, Governor of the State of Louisiana, et al.
    No. 9013.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 1977.
    Rehearing Denied Sept. 6, 1977.

      Philip S. Brooks, Salvador Anzelmo, George L. Lamarca, Jackson P. McNeely, New Orleans, for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Kendall L. Vick, New Orleans, for defendants-appellees.
    Many, Lo Coco & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for intervenor, Nat G. Kiefer.
    Before LEMMON, GULOTTA and BEER, JJ.
   PER CURIAM.

In accordance with a Joint Motion of all parties in interest seeking an expeditious hearing, we ordered the matter be submitted on briefs on August 31, 1977.

The arguments considered and for reasons assigned by the trial judge which are as follows:

“ * * * The Court will render a declaratory judgment, finding that RS 18:389(B) controlling. It does not conflict with Article 6, Section 6 of the Constitution because it has nothing to do with the structure and organization of the City, nor with the functions or powers or the distribution and redistributions thereof.
“Furthermore, I don’t have to determine whether or not Act 1 was an effort to comply with the mandate of Article XI, Section 1 of the Constitution of 1974 because, as I read that section of the new constitution, it is, on its face, a mandate to the legislature to adopt an election code.
“But, by necessary implication, it seems to me to represent an expression by the people of Louisiana that the legislature shall have preemptive powers to control all elections, so that whatever the legislature says concerning elections to be held throughout the state, that those dictates are preemptive of any other local charters.
“I think that’s the entire purpose of that section, to create uniformity, and even though the legislature may have adopted something less than the full code the first time, it still represents something to be implied [sic] throughout the state.
« * * * >>

we conclude that Act 1 of the Regular Session of 1975, amended by Act 618 of the Regular Session of 1977 (which changes the date of election of municipal and parochial officers from that set out in the Home Rule Charter of the City of New Orleans), is not in conflict with LSA-Const.1974, Art. 6, §§ 4, 5 and 6. The judgment is affirmed.

AFFIRMED.