text:
    John H. WHITE, d/b/a White Construction & Equipment Rental Company, Plaintiff-Appellee, v. MARTIN GMC TRUCKS, INC., et al., Defendants-Appellants.
    No. 6504.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearings Denied July 5, 1978.

      Raggio, Farrar, Cappel & Chozen, Thomas L. Raggio, Lake Charles, for defendant-appellant, General Motors Corp.
    Maurice L. Tynes, Lake Charles, for defendant-appellant, Martin GMC Trucks.
    W. Ellis Bond, Lake Charles, for defendants-appellants.
    Camp, Carmouche, Palmer, Carwile & Barsh, Karl E. Boellert, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, John H. White, d/b/a White Construction & Equipment Rental Company, purchased 15 new dump trucks from defendant, Martin GMC Trucks, Inc., between November 9, 1971, and June 1, 1972, at prices ranging from $16,170.50 to $16,-465.50, or a total of $244,112.50. Martin; General Motors. Corporation, the manufacturer of the trucks; and General Motors Acceptance Corporation, which financed the credit part of the purchase, were named as defendants in this suit for rescission of the sale and damages. The suit was later compromised and dismissed as to General Motors Acceptance Corporation.

Consolidated for trial and this appeal was docket # 6503, Martin GMC Trucks, Inc. v. Homer White, d/b/a White Construction & Equipment Rental, 359 So.2d 1102, a suit on open account for $4,151.65 in parts and services used to repair the trucks. It was stipulated that this amount was claimed by Martin and had not been paid by White. (Vol. 15, TR. 2454, 2455).

After a lengthy trial, the record of which is contained in 21 volumes, the trial court rendered a consolidated judgment. An award was made in docket # 6504, in favor of White, against Martin GMC Trucks, Inc. and General Motors Corporation, in solido, for $272,242.26, with legal interest from date of judicial demand. In docket # 6503 the suit by Martin GMC Trucks, Inc. was dismissed. Martin GMC Trucks, Inc. has perfected a devolutive appeal in docket # 6503. Both Martin GMC Trucks, Inc. and General Motors Corporation have appealed suspensively in docket # 6504. White has answered the appeal in docket # 6504, asking an increase in the attorney’s fees awarded and an additional fee for services on appeal.

The issues are redhibition, prescription, quantum and attorney’s fees.

Redhibition

Both defendants contend that the trial court was manifestly erroneous in finding the trucks to be defective. Martin GMC’s and General Motors’ position is that the dump trucks sold to White did not have redhibitory vices and defects but broke down because of driver abuse and lack of maintenance. The record provides a convincing evidentiary basis for the trial court’s factual conclusions that the trucks were unfit for their intended use; and that the defects must have existed at the time of the sale, because they became apparent soon after the trucks were put into use; and continued to recur frequently. The trial court accurately summarized the extensive testimony about the trucks, and we adopt his analysis, as follows:

“They [the trucks] reached Lake Charles in November and December of 1971, but because of bad weather, no extensive use was made of the fleet until the early spring of 1972. As soon as the weather permitted handling the clay and the trucks could go into the pit regularly, nearly all of the trucks began to develop trouble primarily in the driveline. The driveline consists of the mechanical components that connect the transmission box to the axles, transferring the energy from the engine to the wheels. If a coupling device in the driveline, such as a universal joint (herein frequently ‘U-joint’), the yokes, propeller shafts, etc., should break, the truck has to stop until it is repaired. This particular driveline was made more complicated by the necessity for an auxiliary transmission in addition to the main transmission because of the truck’s weight bearing capacity.

There were repeated breakdowns involving all of the trucks. A large number of these are documented by Martin GMC’s own repair orders and invoices. Repairs by Martin GMC documented on the first ten trucks are reflected in 217 invoices. Additionally, documented repairs are reflected by 34 invoices from Howell Industries, Inc., a machine shop in Lake Charles, and 11 invoices from Clark’s Spring Service of Lake Charles. Such heavy reliance on the machine shop, Howell Industries, Inc., was made necessary, according to the testimony of plaintiff and his witnesses, by the failure of Martin GMC to stock adequate replacement parts, together with the multitude of breakdowns involving identical parts, requiring the machining of these parts in order to get the trucks back in operation.

In addition to these documented instances of repairs there was testimony by White, his superintendent, his head mechanic, and his drivers of a number of instances of breakdowns where no documentation of repairs was made because the work was done in White’s shop with parts cannibalized from an already deadlined vehicle, or parts derived from other sources for which no evidence exists.

According to the invoices of Martin GMC, there were a minimum of 65 U joint failures and replacements affecting the first 10 trucks. From November of 1971 until November of 1972, during the time truck No. 1 was traveling some 28,000 miles, it suffered nine U-joint failures and required a number of yoke replacements, as well as other problems. It had four U-joint failures in the month of October 1972. This truck was modified in July of 1973 at the expense of General Motors by the installation of a heavier duty driveline assembly. Truck No. 2 had seven U-joint failures during a similar period and six yoke replacements. In addition, there were several driveshaft replacements and a rear axle replacement as well as an auxiliary transmission repair. Truck No. 3 had four U-joint failures in a three month period of time in 1972, along with several yoke failures, the failure of a rear axle and transmission problems. The driveline was modified in June of 1973 by the installation of the JV9500 Series heavier duty driveline assembly. Truck No. 4 did not suffer the number of U-joint and yoke failures as did the others. However, its rights rear axle had to be replaced and in July of 1973 the same driveline modification was performed on it as had been performed on the others. Truck No. 5 also had the same driveline modification performed in June of 1973 after several yoke and bolt failures and four U joint failures. Truck No. 6 was especially vulnerable, having 13 U-joint replacements and five yokes, along with a broken axle shaft and intermediate propeller shaft. Truck No. 7 had four U - joints replaced and six yokes replaced, along with other driveline failures, before its driveline was modified in June of 1973 with a heavier duty assembly. Truck No. 8 had six U-joint failures and eight yoke failures, with other troubles, within a relatively short time. Its driveline was modified with the heavier duty driveline in June of 1973. Truck No. 9 had seven U-joint failures and yoke and axle and shifting problems. Its driveline was modified in June of 1973. Truck No. 10 had to have eleven U -joints replaced and seven yokes. It also had multiple transmission problems.

Shortly after the weather permitted the job to get seriously underway, the remaining five trucks were delivered to White in early June of 1972. He also experienced driveline problems with these vehicles until their drivelines were modified along with the rest. Four of these latter vehicles were also beset with brake problems.

White’s witnesses testified that over 200 driveline failures stopped the trucks in 1972 and 1973. Considering the number of documented instances of driveline failures and repairs, that is a credible estimate.

Neither side offered convincing proof at the trial as to why the drivelines suffered so many failures. The most likely and reasonable explanation was that the driveline was simply not up to the job it was called upon to perform.

Until the driveline assemblies were modified in the middle of 1973, Martin GMC and General Motors’ response to White’s difficulties were not successful. Several trial and error techniques were explored to try and remedy the problems.

In September of 1972 White wrote General Motors a letter pointing out that his biggest problem continued to be the breaking of U-joints and yokes and requesting that General Motors help him to try and determine why it was that the bolts kept backing out causing the breaks. He was referring to what was by that time everybody’s conclusion that the real cause of the breaking U-joints and yokes was that the bolts that connected the U joints and the yokes to the driveline assembly kept working loose. Apparently in agreement that the working out of the bolts had something to do with the problem, Mr. Martin had earlier recommended the use of a special type of glue, but this did not do any good. As early as May of 1972 there was evidence that a General Motors official with the Technical Service Department was recommending the installation of the heavier duty driveline series. However, James D. Ingle, General Motors regional service manager located in Memphis, decided first to try the installation of heavier yokes, with some heavier yokes and U joints. This was done but the failures continued. After that, General Motors recommended the use of different bolts and the application of maximum torque. This likewise failed to cure the problems. The replacement of the heavier driveline assemblies was completed in mid-1973. No further trouble of any significance was experienced. In late 1973 White brought this action against Martin GMC and General Motors. He was behind in his payments and shortly after this action was brought GMAC foreclosed on the trucks. That foreclosure suit was later dismissed, but White lost possession of the trucks.

White contends that the trucks were not fit for the purpose intended and for the use to which he put them. He contends that these particular trucks were ‘specced’ by Mr. Martin himself on the basis of detailed information about the requirements of the job. He contends that the driveline assembly on the trucks was too weak for that job, that they were incapable of withstanding the ordinary demands made upon them by routine performance of that job and that they were therefore affected by redhibitory vices and defects and that consequently, both the seller and General Motors, the manufacturer, are liable." (TR. 176-181).

The trial court was convinced that the defense of driver abuse and lack of maintenance was not regarded as a problem when the trucks were breaking down. The evidence confirms this further factual conclusion. Compare Rey v. Cuccia, 298 So.2d 840 (La., 1974).

Defendants also contend that White is not entitled to maintain this action, because he failed to tender the trucks. White’s petition alleges and offers a tender. Prior to suit being filed, White was in the unfortunate position of trying to pay for the trucks, being billed by Martin for repair costs and paying for other repairs on his own. Return of the trucks to Martin was not financially feasible. The trucks were repeatedly tendered for repair, until Martin GMC refused to do additional repair work except on a cash basis (Vol. 15, TR. 2477). Tender then would obviously have been futile, since Martin had effectively disclaimed any further responsibility for the trucks’ defects. Martin GMC’s refusal to attempt additional repairs shows that the trucks’ tender would not have been accepted. A formal tender is not required when the vendor has indicated one would be useless. See Wiltz v. Dixie Auto Sales, Incorporated, 315 So.2d 811 (La.App. 3 Cir. 1975); Slay v. Ater, 305 So.2d 691 (La.App. 3 Cir. 1974); Peoples Fur. & G. v. Carson Hicks/Friedrichs Ref., Inc., 326 So.2d 919 (La.App. 3 Cir. 1976); and Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1 Cir. 1976).

Suit # 6503 was filed shortly after this one, and White then voluntarily surrendered the trucks, which Martin resold.

Prescription

Both General Motors and Martin GMC contend that their exceptions of prescription should have been sustained by the trial court. Plaintiff White filed suit on November 29,1973. The trial court concluded that prescription was interrupted as to both defendants because Martin GMC and GM cooperated in efforts to repair the trucks through the middle of 1973.

Edward G. Martin, president of Martin GMC Trucks, Inc., qualified as an expert in the sales, service and specifications of trucks as well as their maintenance. Martin testified that White told him about a proposed dirt hauling project on 1-210. White projected moving a million yards of dirt under a contract with Rimmer & Garrett, Inc. On the basis of Martin’s experience in writing specifications on dump trucks and a data book furnished by General Motors Corporation, Martin recommended the particular trucks that White purchased (Vol. 8, TR. 1210). Martin stated that trucks offered by Nelson Dodge, each at $2300 less than his, were unsuited for the job. Martin represented that the GM trucks were fit for White’s purpose and had the qualities needed for the work White proposed to do, which was heavy dirt hauling. Martin knew that General Motors has special equipment options available but thought trucks built to standard specifications would be suitable for White’s job. Martin was aware that dirt and clay were to be hauled and knew the weights of wet and dry clay. Martin and his sales manager, John Icklone, who actually handled the transaction, conferred and agreed about the specifications for the trucks. It is significant that Icklone testified he knew the truck bodies were too large for White’s job when the trucks were sold (Vol. 10, TR. 1469, 1493). For some unknown reason, the transmission on one truck broke down in Mississippi while the truck was enroute to Martin’s place of business for delivery to the purchaser (Vol. 9, TR. 1309). This breakdown required extensive repair work prior to the sale (Vol. 9, TR. 1373). Martin represented that the trucks had the qualities necessary for their intended use when he knew or should have known they did not. Compare Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La., 1974) and Media Pro. Consult., Inc. v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972). The action is covered by LSA-C.C. arts. 2547 and 1847.4, which define the rights of the buyer in the context of a sale such as this.

Martin GMC not only warranted that the trucks were free from hidden defects and reasonably fit for their intended use, its president and majority stockholder selected them for that use and must be presumed under these circumstances to know of their defects. LSA-C.C. art. 2545; Rey v. Cuccia, 298 So.2d 840 (La., 1974).

A manufacturer is presumed to know the defects in its product. Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App. 3 Cir. 1976).

A redhibitory action against a seller in bad faith must be instituted within a year of the buyer’s discovery of the vice. LSA-C.C. art. 2546. However, this prescriptive period is interrupted by the seller’s attempts at repair. Prescription then runs from the date on which the vendor abandons its attempts to cure the defects. Woodward-Wight & Co. v. Engel Land & Lumber Co., 123 La. 1093, 49 So. 719 (1909); Barnidge v. Cappel Motor Co., 12 La.App. 216, 125 So. 778 (1930); Brown v. Dauzat, 157 So.2d 570 (La.App. 3 Cir. 1963); Alexander v. Burroughs Corp., 350 So.2d 988 (La.App. 2 Cir. 1977).

Martin contends that the repairs on the trucks were not at its (the seller’s) expense but at the expense of the manufacturer, and prescription was not interrupted as to Martin GM Trucks. This resourceful argument overlooks the fact that a warranty agreement between GM and Martin could not affect Martin’s obligation to the purchaser. The fact that Martin looked to GM for reimbursement did not affect its duty to White. Martin GMC attempted to repair the trucks and White’s rights against Martin are unaffected by Martin GMC’s relationship with the manufacturer. See Radalec, Incorporated v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955).

According to Martin’s records, repairs on the drive trains, transmissions, U-joints, pinion gears and yokes of the trucks were as follows:

Serial No. First repair date Last repair date
1. 514247 May 18,1972 February 27,1973
2. 515579 May 1,1972 June 15,1973
3. 514225 May 1,1972 November 21,1972
4. 542375 August 7,1972 June 22, 1973
5. 542368 July 3,1972 July 20, 1973
6. 509857 June 29, 1972 July 20,1973
7. 542912 July 27,1972 November 30,1972
8. 514260 May 1,1972 June 21,1973
9. 513625 August 1,1972 June 15,1973
10. 508070 March 25,1972 November 9,1972
11. 513593 May 9,1972 June 15,1973
12. 512765 April 28,1972 June 21,1973
13. 537748 July 27,1973 July 27,1973
14. 513580 July 26,1973 July 26,1973
15. 546057 June 22, 1973 June 22,1973

Martin testified that, although the records are not complete as to three units (numbers 3, 7 and 10), all 15 trucks had a portion of the drive line replaced with heavier universal joints supplied by General Motors at its expense during the summer of 1973. Additional repair work is detailed in the trial court reasons for judgment quoted supra.

General Motors’ representatives and Martin GMC attempted to alleviate White’s problems with the trucks through 1973. Until these efforts were abandoned, White did not know the defects in the trucks could not be corrected. See Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1 Cir. 1976). This suit, filed November 29, 1973, was timely as to both the seller and the manufacturer. Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App. 3 Cir. 1972).

Quantum

The trial court itemized White’s damages as follows:

Installment payments: $142,332.20
Delivery from Tenn.: 953.18
Insurance premiums: 10,358.00
Repairs: 11,479.25
White’s mechanics’ repair time: 52,272.18
Rental of substitute trucks: 13,452.45
Loss of profits: 18,895.00
Attorney’s fees: 22,500.00
Total: $272,242.26

Defendants contend that they are entitled to a credit for White’s use of the trucks; that White’s damages were not correctly calculated; that White is not entitled to interest from date of judicial demand; and that White is not entitled to recover his insurance premiums.

Plaintiff White’s counsel acknowledges in brief that the correct award for insurance is $9,338 rather than $10,358, because the amount shown on P-43 at Vol. 4, p. 769, was subject to a refund credit. Insurance against physical damage to the trucks was required by the terms of the sale and chattel mortgage agreements executed by White in connection with the purchase. Compulsory insurance costs can be recovered in an action of redhibition. Purvis v. Statewide Trailer Sales, Inc., supra. The judgment for insurance premiums will be reduced by $1,020, the refund credit.

Appellants, Martin GMC Trucks, Inc. and General Motors, contend that they are entitled to a credit or offset for White’s use of the trucks. LSA-C.C. art. 2531 prior to its amendment in 1974 provided:

LSA-C.C. art. 2531. Liability of seller in good faith for restitution of price
“The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.”

This article applies only to a seller in good faith. A seller in bad faith does not receive credit for fruits derived from the use of the thing by the purchaser and is liable for damages under LSA-C.C. art. 2545. Here we have a seller in bad faith and constructive fraud as defined in LSA-C.C. arts. 2547 and 1847(4). Both the manufacturer and the seller are liable in solido. Media Pro. Consult., Inc. v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972). Defendants have no right to recover the fruits resulting from the combination of White’s labor and his use of the trucks. It is conceded that there is no separate proof of the value of the use of the trucks. Even if a credit for this use were appropriate, use of the thing sold and use of the price are regarded as equal in the absence of specific evidence by which to evaluate the use of the thing. Counsel for Martin GMC contends that this formula cannot be used in a credit sale, but the credit here was extended by General Motors Acceptance Corporation, a third party, rather than by the vendor. Compare Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2 Cir. 1975). No further allowance or offset is indicated. Alexander v. Burroughs Corporation, 350 So.2d 988 (La.App. 2 Cir. 1977); Wheat v. Boutte Auto Sales, 355 So.2d 611 (La.App. 4 Cir. 1978).

The trial court cast both defendants for damages and attorney’s fees and allowed recovery for loss of profits directly attributable to the redhibitory defects in the trucks. The loss of profits was not awarded on the basis of the total number of hours in which the trucks were unavailable, which was calculated at 5364.5. “Profit shrinkage” (TR. 195) of $6.03 an hour was awarded for the 2230.92 hours during which replacement vehicles were rented or $13,-452.45. Loss of profits for the 3133.58 hours of “down time” (TR. 195) when replacement vehicles were not rented was also calculated at $6.03 an hour or $18,-895.00. Lost profits is a proper item of recovery against a seller and manufacturer in bad faith. Radalec, Incorporated v. Automatic Firing Corporation, 228 La. 116, 81 So.2d 830 (1955). There is no abuse of discretion in the formula adopted by the trial court. LSA-C.C. art. 1934.3 states that damages “. are the amount of loss the creditor has sustained, or of the gain of which he has been deprived . . .

It is contended that the damages awarded should not include interest from the date of judicial demand but this is contrary to the jurisprudence on the subject which specifically allows such interest. Moreno’s, Inc. v. Lake Charles Catholic H. Schs., Inc., 315 So.2d 660 (La., 1975); Rey v. Cuccia, 298 So.2d 840 (La., 1974).

Attorney’s Fees

White has answered the appeal asking for an increase in the attorney’s fees of $22,500 awarded by the trial court and an additional award of attorney’s fees for services on appeal. The award by the trial court is within its much discretion. An additional sum of $2,000 will be awarded for services on appeal.

For the foregoing reasons, the judgment of the trial court herein is amended: (1) to award the additional sum of $2,000 in attorney’s fees to counsel for plaintiff, John H. White, d/b/a White Construction & Equipment Rental Company; and (2) to reduce the judgment for insurance premiums by the amount of $1,020; and, as amended, the judgment of the trial court herein is affirmed at the cost of defendants-appellants, Martin GMC Trucks, Inc. and General Motors Corporation.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., concurs in result.

        Some of these invoices deal with simple inspection charges and servicing charges, and are therefore not probative as to any redhibition claim. Many other invoices, however, deal with multiple repairs that do suggest redhibition and the number of invoices bears a reasonable kinship to the number of repairs that are probative of redhibition.

      . LSA-C.C. art. 2547:
      “A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations. “It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.”

      . LSA-C.C. art. 1847.4:
      “Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. From which definition are drawn the following rules:
      * * * * * *
      “4. But a false assertion of the value or cost, or quality of the object, will constitute such artifice, if the object be one that requires particular skill or habit, or any difficult or inconvenient operation to discover the truth or falsity of the assertion. * * * ’’

      .LSA-C.C. art. 2545:
      “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

      . LSA-C.C. art. 2546:
      “In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. “This discovery is not to be presumed; it must be proved by the seller.”


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    MARTIN GMC TRUCKS, INC., Plaintiff-Appellant, v. Homer WHITE, d/b/a White Construction & Equipment Rental, Defendant-Appellee.
    No. 6503.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearings Denied July 5, 1978.
    Raggio, Farrar, Cappel & Chozen, Thomas L. Raggio, Lake Charles, for defendant-appellant, General Motors Corp.
    Maurice L. Tynes, Lake Charles, for defendant-appellant, Martin G.M.C. Trucks.
    W. Ellis Bond, Lake Charles, for defendants-appellants.
    Camp, Carmouche, Palmer, Carwile & Barsh, Karl E. Boellert, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

For the reasons assigned in Docket # 6504, John H. White, d/b/a White Construction & Equipment Rental Company v. Martin GMC Trucks, Inc., et al., handed down this date, 359 So.2d 1094, the judgment of the trial court is affirmed.

Costs are taxed against plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.


author:
CULPEPPER, Judge.
      DOMENGEAUX, Judge,

text:
    Frank D. HOLMES et al., Plaintiffs and Appellants-Appellees, v. RELIANCE INSURANCE COMPANY et al., Defendants and Appellants-Appellees.
    No. 6508.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.

      Brittain & Williams by Jack O. Brittain, John G. Williams, Natchitoches, Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants and appellants-appellees.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiffs and appellants-appellees.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   CULPEPPER, Judge.

This is a suit for damages resulting from a two vehicle collision which occurred July 8,1975 on U.S. Highway 71 in Grant Parish. Plaintiffs are Kenneth Byoune, driver of one of the vehicles, and Frank D. Holmes individually and on behalf of his minor son, Dennis Wayne Holmes. Both Mr. Holmes and his minor son were passengers in the automobile driven by Byoune. Named as defendants are: (1) Titus A. Parker, driver of the other vehicle; (2) Parker’s liability insurer, Dixie Auto Insurance Company; (3) Byoune’s insurer, Kenilworth Insurance Company; and (4) Reliance Insurance Company, which issued a garage liability policy covering the vehicle driven by Byoune. Before trial, Frank and Dennis Holmes settled with Reliance for an undisclosed amount, but reserved their rights against the other defendants. The trial court found the negligence of Titus A. Parker to be the sole legal cause of the accident. Judgment was rendered in favor of Frank and Dennis Holmes against defendants Parker, Dixie and Kenilworth, and in favor of Kenneth Byoune against defendants Parker, Kenil-worth and Reliance. Kenilworth and Reliance appealed. Dixie did not appeal, since it deposited in the registry of the court the sums for which it was cast. Also, defendant Parker did not appeal. All three plaintiffs appealed.

The substantial issues on appeal are: (1) Does the decision in Deane v. McGee, 261 La. 686, 260 So.2d 669 (La.1972) invalidate the primary and excess insurance provisions of the uninsured motorist coverages by Kenilworth and Reliance? (2) Should uninsured motorist coverages be “stacked” under Reliance Insurance Company’s policy?, (3) Should there be a pro rata distribution of funds available under the Dixie policy?

There is no question of defendant Parker’s liability. He drove his 1974 Ford Pickup over the center line into the opposite lane of traffic colliding with the 1975 Chevrolet driven by Kenneth Byoune. Titus Parker’s vehicle was insured by Dixie Auto Insurance Company under a policy which provided liability coverage of $5,000 for each person and $10,000 for each accident.

Kenneth Byoune was driving a car owned by Humphrey Chevrolet Company, Inc. of Evanston, Illinois, by whom he was employed as a salesman. The car was a “demonstrator”, which Mr. Byoune was operating with the full knowledge and consent of the owner. Humphrey Chevrolet had in effect a garage liability policy issued by Reliance Insurance Company.

Answering an interrogatory propounded by the plaintiffs, Reliance stated that Humphrey Chevrolet of Evanston, Illinois, owned 160 vehicles which were covered by the policy. Reliance further stated that $3 per “dealer plate” is charged for uninsured motorist coverage. This account was audited on June 1, 1976. At that time, there were 177 dealer plates. Of the $58,362 charged the assured under the policy, $531 was for uninsured motorist protection.

In answer to interrogatories by Kenil-worth Insurance Company, Reliance stated that it had an automobile liability policy in force and effect on July 8, 1975 which covered the vehicle driven by Mr. Byoune. This was not coverage under a fleet policy. The policy did provide for uninsured motorist coverage of $15,000 per person and $30,-000 per accident. Again Reliance stated that this policy covered 160 vehicles.

Kenneth Byoune had been issued a “non-owned” vehicle policy by defendant Kenil-worth, which covered him while he was operating any non-owned vehicle. This policy had uninsured motorist limits of $10,000 per person and $20,000 per accident.

The trial judge awarded Frank Holmes $48,000 plus $12,904 for medical expenses for a total of $60,904. This award was against Parker, Dixie, and Kenilworth, in solido, limiting Dixie’s liability to $5,000 and Kenilworth’s liability to $10,000, (their per person policy limits).

As administrator of the estate of Dennis Holmes, Prank Holmes was awarded $6,000. In addition, Frank Holmes was awarded $1,231 for medical expenses incurred by Dennis. This judgment was against Parker, Dixie and Kenilworth, in solido. Treating Kenilworth as an excess insurer, Dixie was held liable to the extent of $5,000 (its per person policy limits), and Kenilworth was held liable for the remaining $2,231.

The court awarded Kenneth Byoune $11,-498.41 against Parker, Kenilworth and Reliance, in solido, with Kenilworth’s liability being limited to its remaining coverage of $7,769.

Kenilworth Insurance Company contends that provisions in its policy make its uninsured motorist coverage only excess to the uninsured motorist coverage provided by Reliance. And furthermore, that there should be “stacking” of the uninsured motorist coverages on the 160 vehicles insured by the Reliance policy, to satisfy the awards to these plaintiffs.

Reliance contends that both the Reliance and Kenilworth policies should be on equal footings with regard to the issue of primary versus excess uninsured motorist coverage. This is the result reached by the trial court.

We address first the question of whether Deane v. McGee, 261 La. 686, 260 So.2d 669 (La.1972) stands for the proposition that all “excess” insurance clauses are repugnant to the Louisiana uninsured motorist statutes, LSA-R.S. 22:620, 22:1406, and, therefore, must be deemed invalid when written as part of uninsured motorist coverage. We have carefully studied Deane and cases following it, and we do not find such a broad interpretation of those cases warranted. In Deane, the plaintiff’s damages totaled $22,-902. Two primary insurers of the host vehicle each carried uninsured motorist coverage of $5,000 per person and $10,000 per accident. A third insurer’s uninsured motorist coverage was excess only with limits of $10,000 per person. Each of the three policies involved contained a clause which made any “other insurance” primary and its coverage excess. Each policy also provided for proration in the event the total coverage exceeded the damages. The Court of Appeal held the two primary insurers could prorate, with each being liable for only $2,500 of its $5,000 coverage, but held the excess insurer liable for its full $10,000 coverage. Thus, the Court of Appeal awarded plaintiff a total of $15,000 against the three insurers. Our Supreme Court agreed the excess insurer was liable for its full $10,000 coverage but held each of the two primary insurers was also liable for its full $5,000 coverage, for a total award of $20,000 against the three insurers.

The rationale of the Supreme Court decision in Deane is that the Louisiana uninsured motorist statute, LSA-R.S. 22:1406, D, requires a minimum of $5,000 coverage, which cannot be reduced by proration clauses where the damages exceed the total coverages. However, the court did not hold that proration clauses are unenforceable where the total uninsured motorist coverages exceed the damages. Nor did the court hold that “excess insurance” clauses are unenforceable where the primary uninsured motorist coverage is sufficient to pay the entire damage.

We conclude that where the primary uninsured motorist coverage is sufficient to pay the entire damage, a clause in another policy providing that its coverage is excess only to the primary insurance is enforceable.

Counsel for Kenilworth contends its non-owned vehicle policy issued to Kenneth Byoune as named insured provides only “excess” uninsured motorist coverage, and that the Dixie and Reliance policies provide primary coverage. Reliance contends that the Kenilworth policy has no such “excess” insurance provisions as far as uninsured motorist coverage is concerned, but in the event the court finds such a provision does exist, that there is a similar provision in the Reliance policy and that they should both, therefore, be treated as unenforceable. We have carefully examined both policies and find there is a specific “excess” insurance provision under “Part IV—Protection Against Uninsured Motorists” in the Kenilworth policy. We find no such provision in the Uninsured Motorist rider made part of the policy issued by Reliance. Therefore, we find the coverage by Reliance to be primary and the coverage by Kenilworth to be excess as to the uninsured motorist coverages. Of course, the coverage by Dixie as liability insurer of the Parker vehicle, is primary to both uninsured motorist coverages.

The second issue on appeal is whether stacking should be permitted under the Reliance policy. We said in Wilkinson v. Firemen’s Fund Insurance Company, 298 So.2d 915 (La.App. 3rd Cir. 1974):

“But the clear intent of Graham, Deane, and the other cited cases is to the effect that if a plaintiff is issued insurance on two or more automobiles, pays premiums for two or more different uninsured motorist coverages, and sustains damages thereunder in excess of the mandatory minimal coverage, he can ‘stack’ coverages and recover his damages.”

Writs were denied by the Supreme Court in that case with the comment “No error of law.” The general rule stated in the above quotation applies not only to the plaintiff who is the named insured under the policy, but also to any insured as defined in the uninsured motorist part of the policy.

Defendant Reliance stated in answer to several interrogatories that 160 vehicles were covered by its policy issued to Humphrey Chevrolet, and that the assured had paid $3 per “dealer plate” for uninsured motorist coverage. Reliance contends this admission that it paid $3 per “dealer plate” is not sufficient proof of uninsured motorist coverage on any of the 160 vehicles, in the absence of further evidence that the “dealer plates” were on the vehicles. We cannot accept this. The answers to the interrogatories infer that 160 vehicles were covered by uninsured motorist protection for which $3 per vehicle was paid. We conclude plaintiffs are entitled to stack this coverage on all 160 vehicles to satisfy the damages awarded by the trial court. While we find no case providing for “stacking” of this magnitude, the possibility was favorably recognized in the concerning opinion written by Judge Guidry in Gregorie v. Hartford Accident and Indemnity Company, 348 So.2d 186 (La.App. 3rd Cir. 1977).

The third issue presented is whether all three plaintiffs should share pro rata in the funds available under the Dixie Auto policy. The trial court did not find for Kenneth Byoune as against defendant Dixie (the liability insurer of defendant Parker) since the funds available under Dixie's policy were exhausted in satisfying the awards made to plaintiffs Dennis and Frank Holmes. This was error. As we stated in Younger v. Bonin, 149 So.2d 452 (La.App. 3rd Cir. 1963), in which two plaintiffs were involved:

“. . . The total amount due by the insurer should be prorated between the claimants so that each may be entitled to receive that proportion of the amount for which the insurer is liable which his claim bears to the total sum awarded to both.”

The total of the damages awarded the three plaintiffs is $79,633.41. The Dixie policy limit is $5,000 per person and $10,000 per accident. This results in Frank Holmes receiving $60,904 -h $79,633 X $10,000, which is $7648. Since this sum is greater than the per person policy limit, Frank Holmes is limited to recovering $5,000 from Dixie. The remaining $5,000 of Dixie’s per accident coverage must be apportioned between Dennis Holmes and Kenneth Byoune. Their damages total $18,729. Dennis Holmes’ portion is $7231 -h $18,729 X $5,000, which is $1930. Kenneth Byoune recovers $11,498.41 -s- $18,729 X $5,000, which is $3,070.

We conclude the judgment of the trial court must be amended so as to (1) apportion the $5,000 and $10,000 coverages of Dixie amongst all three plaintiffs, (2) hold that Reliance is a primary insurer as to the uninsured motorist coverages, (3) hold that Reliance’s coverages on 160 vehicles can be stacked and (4) hold that Kenilworth is only an excess uninsured motorist insurer. This results in there being adequate primary uninsured motorist coverage by Reliance to pay all damages, but since the two Holmes plaintiffs settled with reliance, they can recover nothing further from Reliance. Also, it results in no liability by Kenilworth to any of the three plaintiffs. The judgment as against Kenilworth must be reversed.

We note that the settlement between the two Holmes plaintiffs and Reliance has no effect on the judgment awarded to these plaintiffs against Titus Parker and Dixie, his liability insurer. There was but one tortfeasor in this suit, Titus Parker. Parker and his insurer are bound in solido to all three plaintiffs for the damage he caused. (LSA-R.S. 22:655). This is not true of Reliance, which merely provides uninsured motorist coverage to these plaintiffs. Reliance’s liability rests solely upon its conventional contract with Humphrey’s Chevrolet.

When an insurer such as Reliance makes payments under its uninsured motorist coverage, it is entitled to recover the full amount it paid from the proceeds of any settlement or judgment obtained by the insured against any person or organization legally responsible for the bodily injury for which such payment was made. LSA-R.S. 22:1406, D(4). Dixie and its insured, Titus Parker, are without a cause of action against Reliance for contribution. They have lost none of their rights by the agreement between the Holmes and Reliance. Mullin v. Skains, 252 La. 1009, 215 So.2d 643 (1968), affirming the Court of Appeal decision at 205 So.2d 207 (La.App. 2d Cir. 1968). This would not be true if Reliance had been the insurer of another tortfeasor. In such cases the insurer stands in the shoes of its insured and is amenable to the contribution to which their insured may be liable if found to be a co-tortfeasor. Cunningham v. Hardware Mutual Casualty Company, et al., 228 So.2d 700 (La.App. 1st Cir. 1969).

For the reasons assigned, the judgment appealed is set aside and recast as follows: Judgment is rendered in favor of Frank Dennis Holmes for his personal damages in the sum of $60,904 against Titus A. Parker and Dixie Auto Insurance Company, in soli-do, the judgment as against Dixie Auto Insurance Company being limited to its coverage of $5,000.

Judgment is rendered in favor of Frank Dennis Holmes, as administrator of the estate of his minor son, Dennis Wayne Holmes, for the sum of $6,000, and in favor of Frank Dennis Holmes individually for the additional sum of $1,231 for medical expenses incurred by his minor son, Dennis, a total judgment of $7,231, against Titus A. Parker and Dixie Auto Insurance Company, in solido, the judgment as against Dixie Auto Insurance Company being limited to the sum of $1,930.

Judgment is rendered in favor of Kenneth F. Byoune for the sum of $11,498.41 against Titus A. Parker, Dixie Auto Insurance Company and Reliance Insurance Company, in solido, the judgment as against Dixie Auto Insurance Company being limited to the sum of $3,070, and as against Reliance Insurance Company being limited to the sum of $8,428.41.

The judgments in favor of the respective plaintiffs and against the respective defendants bear legal interest from date of judicial demand until paid, except that the respective insurers are liable only for interest on the amounts of their respective liabilities.

The judgment appealed is reversed and set aside insofar as it casts Kenilworth Insurance Company. Judgment is now rendered in favor of Kenilworth Insurance Company and against all plaintiffs rejecting their demands.

The fees of the expert medical witnesses as set forth in the judgment appealed are affirmed.

All costs of the trial court, as well as the costs of this appeal, are assessed against the defendants, Titus A. Parker, Reliance Insurance Company and Dixie Auto Insurance Company, in solido.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

I concur simply to comment on the Gre-gorie case which I authored. There, coverage was decided under the liability portion of the policy, hence it was not necessary to reach the uninsured motorist stacking issue. I agree with the concurring opinion in Gre-gorie that stacking could have been allowed in that 300 vehicle situation, just as we are allowing it with reference to the 160 vehicles involved in this case.


author: CULPEPPER, Judge.

text:
    Hiram DEVORE, Individually, and Annie Inez Devore, Plaintiffs and Appellants, v. HOBART MANUFACTURING COMPANY, Cleveland Manufacturing Company and Cleveland Consolidated, Inc., Defendants and Appellees.
    No. 6512.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.
    Gravel, Roy & Burnes, Dee D. Drell, Alexandria, for plaintiffs and appellants.

      Stafford, Randow, O’Neal & Smith, H. Dillon Murchison, II, Alexandria, Guz Voltz, Jr., Asst. Dist. Atty., Alexandria, for defendants and appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. The plaintiff, Mrs. Annie Inez Devore, was employed as a cook in the kitchen of a public school in Rapides Parish. On October 2,1974, she was allegedly scalded by boiling water which spewed out of a double steamer in the kitchen. Suit was originally filed by plaintiff on September 30, 1975, just prior to the expiration of the one year prescription applicable to tort suits. The first petition named three defendants, Hobart Manufacturing Company, Cleveland Manufacturing Company and Cleveland Consolidated, Inc., who were alleged to be the manufacturers, distributors or sellers of the defective double steamer. Service was never made on Cleveland Manufacturing Company, but it was made on the other two.

Counsel for plaintiff later learned that actually none of these three original defendants were the manufacturers, distributors or sellers of the steamer. On November 24, 1975, which was two months after the one-year prescriptive period had elapsed, plaintiff obtained service by registered mail on Cleveland Range Company, the actual manufacturer of the steamer. On April 13, 1976, Cleveland Range Company, filed a motion to quash the citation and service because they were not named as one of the original defendants, pursuant to which judgment was rendered on June 28, 1976 dismissing Cleveland Range Company for lack of proper service and citation.

On plaintiffs’ own motion, suit was dismissed against Cleveland Consolidated, Inc. and Hobart Manufacturing Company.

On June 18, 1976, plaintiffs amended their petition to name as defendants Cleveland Range Company, Aleo Pood Service Equipment Company, and Aleo Standard Company, Inc., and all were served pursuant to the longarm statute of the State of Louisiana. In this same petition, the plaintiffs named as defendants the Rapides Parish School Board and Mrs. Sybil T. Jones, on the basis that they had negligently represented to plaintiffs that the three originally named defendants were the manufacturers of the steamer, when in truth and in fact the steamer was manufactured by Cleveland Range Company.

On August 3, 1976, Cleveland Range Company, Aleo Food Service Equipment Company and Aleo Standard Company, Inc. filed an exception of prescription of one year. After a hearing on the exception, the trial judge rendered written reasons in which he found there was no connection between Cleveland Range Company, the actual manufacturer of the steamer, and the originally named defendants. Judgment was rendered on December 6, 1976 sustaining the exception of prescription.

This left only the Rapides Parish School Board and Mrs. Sybil Jones as defendants. On April 22, 1977, these defendants filed an exception of no cause of action on the grounds that plaintiff’s petition failed to state a cause of action against them. This exception was sustained by the trial judge. Prom the judgment dismissing their suit as against these two defendants, the plaintiffs appealed.

The issue is whether plaintiffs’ petition states a cause of action for “negligent misrepresentation” against the Rapides Parish School Board and Mrs. Sybil T. Jones. The pertinent allegations of plaintiffs’ petition are as follows:

“On July 30, 1975, counsel for petitioners wrote a letter to the Rapides Parish School Board requesting information as to the manufacturer of the equipment alleged to have caused the aforesaid injuries to petitioner, ANNIE INEZ DE-VORE; defendant Rapides Parish School Board was at that time, and still is, the owner and custodian of the aforesaid equipment, and, in response to the aforesaid request by counsel for petitioners, the said Rapides Parish School Board through Mrs. Sybil T. Jones, Director of School Food Services, on August 15, 1975, replied to counsel for petitioners, in writing, that the manufacturer of the equipment referenced above was ‘Cleveland Manufacturing Company of Cléveland, Ohio.’ Petitioners, relying on the representations made by the said Mrs. Jones filed this action against Cleveland Manufacturing Company.
8.
“Defendant, Sybil T. Jones, at all times knew or should have known that the actual manufacturer of the aforesaid equipment was the Cleveland Range Company, and, for reasons unknown to petitioners, negligently misinformed petitioner’s counsel as to the proper manufacturer of the steamer. Said representations by Mrs. Jones were negligent, and said Rap-ides Parish School Board as employer of petitioner ANNIE INEZ DEVORE, and as owner and custodian of the steamer, had a duty to petitioners to properly apprise them of the name of the proper manufacturer of the said equipment and defendants, Rapides Parish School Board and/or Sybil T. Jones breached that duty; further petitioners had a right to rely upon said representations because of defendant School Board’s position as employer of petitioner, ANNIE INEZ DE-VORE, and as owner and custodian of the steamer.”

On appeal, plaintiffs argue that they alleged a cause of action for “negligent misrepresentation”. Although they cite no Louisiana case which has recognized this doctrine by that name, they cite Restatement of Torts, 2d, Section 552 which reads as follows:

“(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.”

Counsel for defendants-appellees point out that in the 1976 Revision to the Restatement, the Comment to Subsection 1 states:

“Comment on Subsection (1):
c. Pecuniary interest in the transaction. The rule stated in Subsection (1) applies only when the defendant has a pecuniary interest in the transaction in which the information is given. If he has no pecuniary interest and the information is given purely gratuitously, he is under no duty to exercise reasonable care and competence in giving it. The situation is analogous to that of one who gratuitously lends or otherwise supplies a chattel, whose duty is only to disclose any facts he knows that may make it unsafe for use.”

It is clear from a reading of the Restatement and the Comments quoted above, that even if we were to hold these statements of the law apply in Louisiana, the plaintiffs have not stated a cause of action. The comment clearly states that the rule applies “only when the defendant has a pecuniary interest in the transaction in which the information is given. If he has no pecuniary interest and the information is given purely gratuitously, he is under no duty to exercise reasonable care and competence in giving it.” In the present case, the School Board had no pecuniary interest in furnishing to plaintiffs the correct name of the manufacturer of the steamer. Actually, an argument can be made that it would be against the pecuniary interest of the School Board to furnish the wrong information because this would affect the right of their workmen’s compensation insurer to secure reimbursement from the tort feasor. The information was given by the School Board gratuitously. Hence, even under the rule as set forth in the Restatement, plaintiffs have not alleged a cause of action.

Plaintiffs cite a number of cases from other jurisdictions which have allowed recovery for negligent misrepresentation. Without discussing these decisions in detail, it appears that the great majority dealt with situations where the defendant was a party to the transaction, or was in the business of furnishing information for a fee.

Plaintiffs also argue that the letter written by Mrs. Sybil T. Jones is similar to a stipulation pour autri. They say that the Board’s workmen’s compensation policy would place a duty on the Board to protect the interest of the insurer, in the event of an intervention for the recovery of workmen’s compensation paid. Plaintiffs argue that in this sense the entire policy is likened to a stipulation pour autri. We are unable to follow this line of reasoning. Although the giving of the correct name may ultimately have benefited the compensation insurer, this has no connection with any benefit to the injured employee. Actually, if the workmen’s compensation insurer intervenes and obtains judgment for a large portion of the damages recovered by the plaintiff, this would cause a loss to the plaintiff.

Plaintiffs also argue the good Samaritan rule. They say that even if the School Board had no duty to furnish the correct information, it undertook to do so and, therefore, should have used reasonable care. We find no merit to this argument. In the first place, good Samaritan cases deal with defendants who voluntarily performed activities of some type. We find no good Samaritan case dealing with the furnishing of information. As is inferred from the above quoted portions of the Restatement of Torts, other states have not applied the good Samaritan rule to the furnishing of information, where there was no pecuniary interest.

As a matter of public policy, we think it would be unwise to impose upon persons who gratuitously furnish erroneous information, liability for any damages which may result. It is obvious that prospective witnesses and others would be reluctant to cooperate with investigators and attorneys for fear of being held liable if the information they give is found to be incorrect. Essentially, this is the rationale of the Restatement provisions quoted above.

No Louisiana case has yet recognized a cause of action for “negligent misrepresentation” as set forth in the above quoted portions of the Restatement of the Law of Torts. We wish to make it clear that we do not in this case adopt such a rule. However, even if such a rule did exist in Louisiana jurisprudence, the plaintiffs have not alleged a cause of action.

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

AFFIRMED.


author: GUIDRY, Judge.

text:
    William SONNIER, Plaintiff-Appellee, v. GRAY TOOL COMPANY and Numa J. Matthieu, Defendants-Appellants.
    No. 6513.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.

      Davidson, Meaux, Sonnier & Roy, Edward O. Taulbee, IV, Lafayette, for defendants-kppellants.
    Lucius A. Hornsby, Jr., Albert J. Leger, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is an appeal from a judgment of the trial court sustaining plaintiff’s motion to strike defendants’ amended answer which also contained a demand for a jury trial.

The pertinent facts may be summarized as follows:

On December 3, 1975, plaintiff filed the instant suit seeking recovery for personal injuries, mental distress, property damage and medical expenses allegedly sustained as a result of a rear-end collision. Made defendants were the driver of the following vehicle, Numa J. Matthieu, his employer and owner of the vehicle, Gray Tool Company, Inc., and the latter’s insurer by use of the fictitious name, “The John Doe Insurance Company”. On January 6, 1976, defendants Gray Tool Company, Inc. and Matthieu filed answer to plaintiff’s petition consisting of fourteen numbered paragraphs denying liability for the accident and alternatively alleging contributory negligence on the part of plaintiff. The original answer also identified Highlands Insurance Company as the automobile liability insurer of Gray Tool Company, Inc. All liability under the policy of insurance was denied.

On September 13, 1976, defendants sought by way of amending and supplemental answer to amend their original answer by adding an additional paragraph to be numbered paragraph 15, which paragraph would read as follows:

“15.
Defendants further pray for jury trial on all matters herein.”

An order allowing the above amending and supplemental answer to be filed and granting defendants’ request for trial by jury was signed by the trial judge on September 13,1976. On that same day, upon motion of defendants, the case was fixed for trial on the merits on March 30, 1977. Highlands Insurance Company, on September 23,1976, executed a bond as principal to cover additional costs of a jury trial and same was filed in the record on September 27, 1976. When the matter came for trial, pursuant to the previous fixing, plaintiff orally moved to strike defendants’ amended answer and the trial court thereupon recalled its previous order allowing a jury trial and ordered the case refixed for trial without a jury.

Defendants, by way of a second supplemental and amending answer, again sought to amend their original answer in the following respects:

(1) By adding an additional paragraph 16, alleging in the alternative that plaintiff had created a sudden emergency by his actions and further that plaintiff had the last clear chance to avoid the accident;

(2) By adding an additional paragraph 17, alleging failure of plaintiff to mitigate his damages; and,

(3) By adding an additional paragraph 18 which read as follows:

“Numa J. Matthieu and Gray Tool Company, further request jury trial herein on all matters triable by civil jury.”

An order allowing the foregoing amending and supplemental answer to be filed and granting the requested trial by jury was signed by the trial judge on June 7, 1977 and filed the following day.

Plaintiff, on July 8, 1977, filed a motion to strike defendants’ demand for jury trial, alleging that defendants’ answer of June 7, 1977 added nothing new to defendants’ other defenses and was filed in an attempt to circumvent the provisions of LSA-C.C.P. Article 1732.

The trial judge, in sustaining plaintiff’s motion to strike concluded as follows:

“The court is of the opinion that defendant filed his amendment solely for the purpose of circumventing the time limitations of LSA-C.C.P. Art. 1732 and accordingly will rescind its order directing the filing of defendant’s amended answer and grant plaintiff’s motion to strike the jury trial order.”

Judgment was rendered accordingly and defendants have appealed.

Although appellee has not raised the issue we observe that serious question exists concerning whether the trial court judgment is appealable.

A judgment denying a jury trial is an interlocutory judgment. LSA-C.C.P. Article 1841. An appeal may be taken from an interlocutory judgment only when it is made to appear that it may cause irreparable injury. LSA-C.C.P. Article 2083. There has been no such showing in this case. Therefore, defendants’ right to maintain their appeal depends on whether or not the denial of a jury trial, standing alone, constitutes a prima facie showing of irreparable injury. We conclude that it does not. In Guidroz v. State Farm Fire and Casualty Co., 334 So.2d 535 (La.App. 1st Cir. 1976) the court, when confronted with a similar factual situation stated:

“Thus, we are of the opinion that the mere denial of a jury trial, without more, does not, upon its face, result in irreparable injury such that it warrants a separate appeal, thereby disrupting orderly legal process and causing a commitment to the delays inherent in normal appellate procedure. We feel appellant’s appropriate remedy in these instances is either the application for supervisory writs or appeal after a final judgment.”

However, the court in Guidroz, supra, “in order to expedite a decision on the matter and to avoid even further delays”, proceeded to a consideration of the merits of the case. See also Triche v. City of Houma, 342 So.2d 1155 (La.App. 1st Cir. 1977).

In the instant case, there being no showing that the interlocutory judgment appealed from may cause irreparable injury, we conclude that the instant appeal is subject to dismissal. An appellate court may dismiss an appeal on its own motion where there is no right to appeal. LSA-C.C.P. Article 2162; Bunkie Bank & Trust Company v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 3rd Cir. 1977). However, the record being already before us, we are of the opinion that the interests of justice would best be served if we were to consider the merits of this issue as was done in Guidroz, supra. An appellate court shall render any judgment which is just, legal and proper on appeal. LSA-C.C.P. Article 2164.

Amendment of pleadings is governed by the provisions of LSA-C.C.P. Article 1151 which provide as follows:

“A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.” (emphasis added).

The time limitation within which a party may demand a jury trial is contained in LSA-C.C.P. Article 1732:

“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

After careful consideration of the pleadings and briefs filed in the instant case, we discern no error in the trial judge’s determination that defendants’ amended answer was filed solely for the purpose of circumventing the time limitations of LSA-C.C.P. Article 1732. Arbmahla High Corporation v. North American Co., 345 So.2d 1291 (La.App. 3rd Cir. 1977).

In Barberito v. Green, 275 So.2d 407 (La.1973), our Supreme Court stated:

“There is within the provisions of the Code of Civil Procedure the necessary safeguard against any abuse of the provisions of Article 1732 by the filing of amending pleadings. The trial judge, in the exercise of discretion may not allow the filing of such amending pleadings which he finds are proffered for the purpose of circumventing the limitations in this article. See C.C.P. Article 1151.” (emphasis added).

We find no abuse of the trial judge’s discretion in the instant case. The judgment of the district court is affirmed at defendants’ costs and is remanded for further proceedings.

AFFIRMED AND REMANDED.

      . Highlands Insurance Company, the automobile liability insurer of Gray Tool Company, Inc. was never added by plaintiff as a party defendant and is not mentioned in the petition or order for appeal which was obtained by defendants.

      . This case is erroneously reported as a First Circuit opinion.


text:
    Marie Sanders HURKS, Plaintiff-Appellee, v. L. H. BOSSIER et al., Defendants-Appellants.
    No. 6519.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.

      Bolen, Halcomb & Erwin, James A. Bo-len, Jr., Alexandria, for defendants-appellants.
    Kramer & Davis, James M. Buck, Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

In this suit plaintiff, Marie Sanders Hurks, seeks recovery of workman’s compensation death benefits plus penalties and attorney’s fees from the employer of her deceased son, Lawrence Hurks. By supplemental and amending petition, Ernest Hurks, divorced husband of plaintiff and father of the deceased, joined with the original plaintiff and sought recovery of the sum of $1500.00 for burial expenses of Lawrence Hurks. Made defendants as the employers of the deceased were L. H. Bossier, Mid-State Materials, Inc. (Mid-State) and the latter’s workmen’s compensation insurer, U.S. Fire Insurance Company (U.S. Fire). Defendants filed exceptions of no right of action as well as other dilatory exceptions to the demands of both plaintiffs along with answers denying any liability for the benefits sought.

Following trial, there was judgment in favor of Marie Sanders Hurks and against Mid-State and U.S. Fire, in solido, condemning them to pay to her $25.00 per week from August 27, 1976 plus legal interest from date of judicial demand on all past due payments until paid; in favor of Ernest Hurks and against these same defendants, in solido, in the sum of $1500.00; and, in favor of all defendants rejecting plaintiffs’ claim for penalties and attorney’s fees. Defendants, Mid-State and U.S. Fire appealed. Plaintiffs neither appealed nor answered the appeal of these defendants.

The record indicates the following facts to be without genuine dispute.

Lawrence Hurks died, as a result of accidental drowning, on August 27, 1976, while in the course and scope of his employment with Mid-State. The deceased was 26 years of age. He was survived at his death by his wife, Linda Fay, and two minor children born of that marriage. Though estranged from his wife and two minor children for some time prior to his death, Lawrence Hurks and his wife were not legally separated or divorced. The deceased was also survived at his death by his father and mother, Marie Sanders Hurks and Ernest Hurks, who were divorced in the year 1966.

Some six months previous to his death Lawrence Hurks returned from Houston, Texas, where he had been employed, to live in the home of his mother, at Long Leaf, Louisiana. After his return to Louisiana he sought and obtained employment with Mid-State. At the time of his death Lawrence Hurks was living in his mother’s home together with his mother and eighty-one year old grandmother, Delcie Sanders. While living in his mother’s home the deceased was provided with lodging and meals and contributed to his mother an amount estimated at $50 to $60 weekly. During the period that Lawrence Hurks lived with his mother, and continuously for some 10lh years previous thereto, plaintiff, Marie Sanders Hurks, was regularly employed by Heritage Manor Nursing Home and earned approximately $82.50 per week. She owned the home in which she lived having inherited it from her parents. Decedent’s grandmother, Delcie Sanders, who also lived in the home had her own income through social security payments in the amount of $159.40 per month. The record contains little or no evidence as to plaintiff’s living expenses or expenses of the household during this period, although, plaintiff did admit that following her son’s death there was no change in her and her mother’s ability to provide for the household expenses.

With regard to the claim for funeral expenses by Ernest Hurks, the record reflects that Ernest Hurks was the beneficiary under a life insurance policy, with face value of $2000.00, issued by Williams Progressive insuring the life of Lawrence Hurks. Ernest Hurks made all premium payments due under this policy. The funeral expense bill of Community Funeral Home amounting to the sum of $1839.87 was paid in full from the proceeds of this policy.

On appeal defendants complain of the following errors:

(1) The Lower Court erred in not maintaining the defendant’s exception of no right of action as to the demand against them by Marie Sanders Hurks for death benefits;

(2) The Lower Court erred in not maintaining the exception of no right of action of defendants as to the demand against them by Ernest Hurks for the funeral expenses;

(3) The Lower Court erred in holding Marie Sanders Hurks was a “dependent in law” even though she did not prove she was a “dependent in fact” on decedent;

(4) The Lower Court erred in allowing the hearsay testimony, over objection, of Charles Hurks as to what the decedent told him;

(5) The Lower Court erred in failing to apply the adverse presumption against plaintiffs for the plaintiffs’ failure to have called to testify at trial Mrs. Delcie Sanders;

(6) The Lower Court erred in finding U.S. Fire Insurance Company liable for the first $35,000.00 due Marie Sanders Hurks in compensation benefits.

We will first consider appellants’ assignment of error number three as our ultimate conclusion with regard to this issue renders academic a discussion of all other assignments of error, excepting assignment of error number two.

Although the trial court specifically found the evidence disclosed that Marie Sanders Hurks was not actually dependent upon her deceased son for support, judgment was rendered in her favor because, in the trial court’s opinion, “the evidence did disclose a dependency-in-law as set forth in McDermott v. Funel, 258 La. 637, 247 So.2d 567 (1971)”. In effect, the trial court concluded that under the holding of McDer-mott, supra, a surviving mother, with whom a deceased son lived, is conclusively presumed to be dependent if it be shown that the son contributed an amount of money at regular intervals for defrayal of household expenses.

We concur in the trial court’s factual finding that Marie Sanders Hurks was not actually dependent upon her deceased son for support, the evidence in the record furnishing a reasonable basis for such conclusion, however, we disagree with the trial judge’s interpretation of the holding in McDermott, supra.

Pertinent provisions of our workmen’s compensation law provides as follows:

§ 1231. Death of employee; payment to dependents
For injury causing death within two years after the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.
Amended by Acts 1968, Ex.Sess., No. 25, § 6; Acts 1975, No. 583, § 10, eff. Sept. 1, 1975.
§ 1251. Persons conclusively presumed dependents
The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
(2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution.
Amended by Acts 1975, No. 583, § 13, eff. Sept. 1, 1975.
§ 1252. Determination of dependency in other cases
In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death; in such other cases if there are a sufficient number of persons wholly dependent to take up the maximum compensation, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof.

A casual reading of the above provisions indicate quite clearly that workmen’s compensation death benefits are payable only to the legal dependents of the employee actually dependent upon his earnings for support at the time of the accident causing death. It is also evident from a reading of LSA-R.S. 23:1251 that a conclusive presumption of actual dependency operates only in favor of a surviving spouse and child or children of the decedent under the special circumstances therein set forth. In all other cases, including a claim by a surviving mother, there must be a factual showing by a preponderance of credible evidence that the legal dependent seeking death benefits was actually dependent upon the decedent’s earnings for support. LSA-R.S. 23:1252; Brown v. New, 293 So.2d 562 (La.App. 1st Cir. 1974). In our view, our Supreme Court in McDermott, supra, did not intend to abrogate the necessity for a factual showing of actual dependency by a surviving mother as required by our statutory law nor does a proper interpretation of that decision indicate that our high court jurisprudentially created a conclusive presumption of dependency for a surviving mother upon a factual showing that the decedent lived with his surviving mother and contributed regularly for his share of household expenses, i. e., “a dependency-in-law”. Quite to the contrary, our high court in McDermott, supra, carefully pointed out that:

“The trial court’s factual finding of dependency, based upon this evidence found credible by it, is correct.” (Emphasis ours)

McDermott, supra, and the instant case are factually inapposite. In McDermott, supra, the trial court found actual dependency based on a factual showing that the deceased son lived with his mother and sisters and contributed weekly to the household and the surviving mother was a low-paid domestic, with two small children to support, subject to illness, and receiving wages only days when she worked. In the instant case the learned trial judge found no actual dependency based on a factual showing that the surviving mother was owner of her own home; in good health; had no one to support but herself; and, had been regularly employed with earnings in excess of $80.00 weekly for the past eleven years.

We ultimately conclude the trial court was eminently correct in its factual finding that plaintiff, Marie Sanders Hurks was not actually dependent upon her deceased son’s earnings for her support at the time of his death. Having so found the trial court erred in awarding plaintiff judgment for workmen’s compensation death benefits. Our decision in this regard requires reversal of the trial court judgment in favor of Marie Sanders Hurks and obviates the necessity for consideration of the other issues raised by defendants, excepting assignment of error two.

Appellants contend that the trial court erred in not maintaining their exception of no right of action as to the demand of Ernest Hurks for reimbursement of the decedent’s funeral expenses. Appellants’ contention is without merit.

LSA R.S. 23:1210 provides as follows:

In every case of death, the employer shall pay or cause to be paid, in addition to any other benefits allowable under the provisions of this Part, reasonable expenses of the burial of the employee, not to exceed fifteen hundred dollars.
Amended by Acts 1970, No. 157, § 1; Acts 1975, No. 583, § 8, eff. Sept. 1, 1975.

The record establishes that decedent’s funeral expenses were paid by his father, Ernest Hurks, albeit with proceeds derived by him from a policy of insurance carried on the life of his son. Having paid all funeral expenses plaintiff, Ernest Hurks, has a right of action to demand and recover the amount expended, not to exceed the statutory maximum. Appellants’ suggestion that the payment by the insurer inured to their benefit is without merit. In Milton v. T. J. Moss Tie Co. et al., 20 So.2d 570 (La.App. 2nd Cir. 1944), writ refused, our brethren of the second circuit in rejecting a similar contention stated:

“. . . when burial insurance is carried by the deceased workman and his funeral is conducted by the insurer, his widow and heirs are entitled to recover of the employer the amount of the policy not in excess of $100. If this were not true a workman by carrying burial insurance would be paying out his money on premium account for the protection of his employer as much as for the protection of his widow and/or dependents. This is not the law’s intention and certainly is not sanctioned by any rule of equity of which we have knowledge.”

For the above and foregoing reasons the judgment of the trial court in favor of plaintiff, Marie Sanders Hurks and against the defendants, Mid-State Materials, Inc. and U.S. Fire Insurance Company, in solido, is reversed and set aside and it is now ordered, adjudged and decreed that the suit of plaintiff, Marie Sanders Hurks against these defendants is ordered dismissed with prejudice. In all other respects the judgment appealed from is affirmed. Costs of this appeal are assessed to appellants.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . The workman’s compensation claim of the wife and minor children of decedent against the employer, if any exists, is not at issue in this lawsuit.

      . Although defendants dispute the fact of any contributions the trial judge concluded that the decedent did contribute this approximate amount weekly.

      . In his written reasons for judgment the trial court found that the deceased son’s contributions went to cover his lodging, food and a share of the household expenses.


author:
CULPEPPER, Judge. DOMENGEAUX, Judge,
      WATSON, Judge,

text:
    Cylyce Eidson CRAIG, Plaintiff and Appellant, v. Johnnie Floyd CRAIG, Jr., Defendant and Appellee.
    No. 6526.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Woodley & Fenet by Robert W. Fenet and F. Steve Landreneau, Lake Charles, for plaintiff and appellant.
    Evans & Bradley by C. Allen Bradley, Jr., DeRidder, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

Plaintiff, Cylyce Eidson Craig, sued for a judgment of separation from bed and board, child support, and alimony pendente lite. To the rule for alimony pendente lite and child support, defendant, Johnnie Floyd Craig, Jr., filed an exception of improper' venue, which was sustained by the trial court, and plaintiff’s suit was dismissed. The plaintiff wife appeals.

The sole error assigned by the wife on appeal is that LSA-C.C. Article 39, which provides that the wife can have no other domicile than that of her husband, is unconstitutional as applied to the venue requirement of LSA-C.C.P. Article 3941.

The facts are not disputed. Counsel stipulated to the following:

(1) That plaintiff and defendant were married on September 27, 1975, in Lake Charles, Louisiana, which is in Calcasieu Parish;
(2) That one child, Summer de Layne Craig, was born of the marriage on January 4, 1977;
(3) That plaintiff and defendant thereafter lived in a residence on Frusha Drive in DeRidder, Louisiana, which is in Beauregard Parish;
(4) During the month of October, 1977, plaintiff moved to Lake Charles, Louisiana, which is in Calcasieu Parish, with her child and moved in with her parents at their residence in West Lake Louisiana;
(5) That this suit was instituted by the wife, Cylyce Eidson Craig, on October 28, 1977, in Calcasieu Parish.

It is noted that the stipulated facts do not state any fault on the part of the husband or other cause for the wife moving from the matrimonial domicile to the home of her parents.

Plaintiff relies principally on the Court of Appeal decision in Welsh v. Welsh, 322 So.2d 352 (4th Cir. 1976), in which the court held that LSA-C.C. Article 39 is unconstitutional insofar as it applies to LSA C.C.P. Article 3941, because this allows a husband, but not a wife, to move at will to a new parish and there file suit for separation or divorce. The court held this violates Louisiana Constitution of 1974, Article 1, Section 3 which provides in part that “No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of . sex . . . .”

Our Supreme Court granted writs in the Welsh case, and in an opinion cited as Johnson v. Welsh, 334 So.2d 395 (La.S.Ct.1976) held that the issue of the constitutionality of LSA-C.C. Article 39 was not properly before the appellate court because it was not raised by the wife by pleadings in the trial court. The Supreme Court went on to hold on the facts that, because of the husband’s cruel treatment, the wife was entitled to move from the husband’s domicile and establish a new domicile separate from that of her husband. Thus, our Supreme Court has not held Civil Code Article 39 unconstitutional as applied to the venue question at issue here.

The defendant husband argues that Civil Code Article 39, which provides that the wife can have no other domicile than that of her husband, is part of the overall pattern of the provisions of our Civil Code designed to protect the stability of marriage and to establish the duties of the husband and wife to live with each other and to maintain a home in which the children can be cared for and educated. The husband points to Article 86, which provides that marriage is a civil contract; to Article 119 which provides that the husband and wife owe to each other mutuality, fidelity, support and assistance; to Article 120 which provides that the wife is bound to live with her husband and to follow him wherever he chooses to live, and the husband has the obligation to receive his wife and to furnish her with the necessities and conveniences of life according to his ability; and to Article 227 which provides that mothers and fathers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children.

The husband argues that these laws regarding marriage and family were adopted by our legislature for legitimate purposes, and that there is a strong presumption that duly enacted statutes are constitutional.

We recognize that there are persuasive arguments on both sides of the question at issue here. The question will probably reach our Supreme Court eventually, and they will make a determination for our guidance. However, we are loath to cast aside a statute which our legislature, in its wisdom and discretion, adopted as part of the pattern of laws designed to protect marriage, home and family.

A factor in our decision is that in recent cases our Supreme Court, although divided, has shown a tendency to uphold the constitutionality of other statutes which treat women different from men. For instance, in Williams v. Williams, 331 So.2d 438 (La.S.Ct.1976) our Supreme Court upheld the constitutionality of Civil Code Article 148 which grants to women, but not to men, alimony pendente lite. The court held this statute does not arbitrarily, capriciously and unreasonably discriminate against men on the basis of sex.

In the case of State v. Barton, 315 So.2d 289 (S.Ct.1975), the court held that R.S. 14:74, which punishes the father but not the mother for intentional nonsupport of his family, is not unconstitutional. And, in the very recent case of Loyacano v. Loyacano, 358 So.2d 304 (S.Ct.1978) the court held that Civil Code Article 160, which provides alimony after divorce to the wife but not to the husband, is not unconstitutional.

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

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

WATSON, J., dissents and assigns written reasons.

DOMENGEAUX, Judge,

concurring.

I agree with the majority opinion, but would go further. I would definitively declare C.C. Art. 39 to be constitutional. Generally, the same rationale applied by the Louisiana Supreme Court in Williams, Barton, and Loyacano concerning respectively, C.C. Art. 148, La.R.S. 14:74, and C.C. Art. 160, should apply to C.C. Art. 39.

Under Article 86 of the Louisiana Civil Code the law considers marriage in no other view than as a civil contract. Our Code provides certain obligations upon both of the parties who enter into marriage. For example, C.C. Art. 119, provides that each party owes to the other mutually, fidelity, support, and assistance. Under Article 227 both parties by contract are obliged to support, maintain, and educate their children. Under Article 120 the wife is obliged to live with her husband and to follow him wherever he chooses to live, and conversely he has the obligation to receive his wife and furnish her with the conveniences of life in proportion to his means and condition. Article 39 fits into the scheme of the above referred to Articles in that the wife’s domicile is that of her husband. However, by jurisprudence, a wife may be relieved of the obligation of living with her husband and may establish a separate domicile if he abandons her or is cruel to her. The legislature has imposed upon the wife the obligation to live with her husband, and upon the husband the obligation to accept his wife. These obligations are designed to protect the security of marriage, which is a reasonable legislative prerogative.

In Barton, our Supreme Court stated: “. . The degree of accuracy required of sex-based classifications is tested by the traditional standard of review, which requires only that there be a rational relation between the classification as drawn and the achievement of a legitimate state objective found to be the purpose of the statute. [Footnote omitted].

Article I, Section 3 of our constitution does not outlaw different classifications because of sex. Only when such classification is arbitrary, capricious, or unreasonable is it tainted with unconstitutionality.

It is my opinion that the classification of C.C. Art. 39 in fact bears a rational relation to a legitimate legislative purpose, i. e., supporting the stability of the marital relationship and providing certainty in judicial procedure. While it may be contended that the statute does not draw perfectly tailored lines, such is not the legal requirement for validity.

In the context of the total legislative theme for marital and familial stability, Civil Code Article 39 is constitutional.

WATSON, Judge,

dissenting:

Civil Code article 39, as applied in this case, is obviously a discrimination against plaintiff because she is female. Therefore, it violates Louisiana Constitution of 1974, art. 1, § 3, which provides as follows:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

The principal opinion says that Article 39 is part of the scheme of laws designed to protect marriage, home and family. In my opinion, prohibiting a woman from establishing a separate domicile and bringing suit for separation in some parish other than where her husband resides has no relationship whatsoever to accomplishing all these good things.

The Codal Article may also violate the Equal Protection Clause of the United States Constitution. However, the United States Supreme Court has not provided a precise test to apply when considering a state statute based on gender classification.

I would hold Article 39 violative of the Louisiana Constitution of 1974 as applied in the case at bar.

Therefore, I respectfully dissent.

      . For a superb analysis of this problem, see Note, 38 La.L.R. 642, by Ms. Nancy Clark Tyler.