author: DIXON, Justice. TATE, Justice

text:
    LAKE, INC. v. LOUISIANA POWER & LIGHT COMPANY.
    No. 57085.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      Lamar M. Richardson, Jr., Ponder & Richardson, Metairie, for plaintiff-applicant.
    Andrew P. Carter, Eugene G. Taggart, J. Wayne Anderson, Kenneth P. Carter, Monroe & Lemann, New Orleans, for defendant-respondent.
   DIXON, Justice.

This case puts at issue the validity of the “St. Julien” doctrine, a judicially created method of acquisition of servitudes or rights-of-way by corporations possessing the power of expropriation.

Lake, Inc. purchased the lots involved (Lots 15 and 16, Square 14, Westwego Heights Subdivision, Parish of Jefferson) at tax sale in 1961, and obtained a judgment of confirmation in May of 1971. In 1972 Lake filed this action against Louisiana Power & Light Company, alleging that defendant possessed a “power line right-of-way” across the property, for which it has never been granted a servitude or title. The prayer was for recognition of plaintiff’s ownership and fight of possession, for an order requiring defendant to remove its property or deliver it to plaintiff, or in the alternative, to purchase a servitude for a price to be fixed.

A motion for summary judgment was filed supported by affidavits establishing that the power lines had been constructed across plaintiff’s lots in 1930, when they were owned by Mrs. Lena Theriot; that Mrs. Theriot was aware of the lines, and from 1954 through 1958 had caused lawyers to write defendant, demanding compensation and damages, but that no further action had been taken by her.

The trial court granted summary judgment, dismissing plaintiff’s petition. The Court of Appeal affirmed, Lake, Inc. v. Louisiana Power & Light Co., 318 So.2d 911 (La.App.4th Cir. 1975), and on plaintiff’s application we granted writs.

St. Julien v. Morgan Louisiana & Texas Railroad Co., 35 La.Ann. 924 (1883), was one of the first of a long line of cases involving a theory of the creation of a servitude by “unopposed úse and occupancy” by a corporation with the power of expropriation. (Jefferson and Lake Pontchartrain Railroad Co. v. The City of New Orleans, 31 La.Ann. 478 (1879), had relied on some of the same authorities for the doctrine of acquiescence). In the St. Julien case the landowner (in 1852) had given a right-of-way deed under private signature to a railway company which commenced construction by throwing up a roadbed across the land. The Civil War intervened, the landowner died and the railroad became insolvent. The landowner’s son (the plaintiff) acquired the property of the insolvent. The plaintiff practically assisted the defendant in the completion of the construction, then became disenchanted with the railway running across his property, and sued for compensation and, apparently, recognition of his ownership. A trial court judgment for plaintiff was reversed. This court, relying on common law authorities, held that public policy required “that in such case the owner shall not be permitted to reclaim his property free from the servitude he has permitted to be imposed upon it, but shall be restricted to his right of compensation.” 35 La.Ann. 924, 926. (Nevertheless, plaintiff lost his subsequent suit for compensation. St. Julien v. Morgan’s L. & T. R. & S. S. Co., 39 La.Ann. 1063 (1887)).

The St. Julien doctrine of acquiescence was thereafter regularly and frequently approved by the Louisiana Supreme Court until 1937, when it was strongly assailed in Gumbel v. New Orleans Terminal Co., 186 La. 882, 173 So. 518. Gumbel brought a petitory action against the railway because it had no title to nor conventional servitude across plaintiff’s square of land in New Orleans. Defendant successfully claimed that it had acquired a servitude “by actually constructing tracks across the property and by maintaining and using the tracks for many years . . . with the consent and acquiescence of defendant (sic) and his authors in title.” 173 So. 518, 519.

The court discussed the St. Julien doctrine :

“And the application of the doctrine is not dependent upon the lapse of any specific prescriptive period and even a brief period of occupancy and use of the property by a public utility, with the knowledge, consent, or acquiescence of the landowner, will suffice to effectuate the doctrine in favor of the utility.
“Thus, in Moore Planting Company v. Morgan’s Louisiana & T. Railroad & S. S. Company, 126 La. 840, at page 872, 53 So. 22, 33, this court said:
“ ‘These decisions [holding that a railroad which has gone into possession without title, but without opposition, and is in operation cannot be ousted by the owner, but has the right to continue in possession], be it noted, are not founded upon any law of prescription. The proof of this lies in the fact that the railroad is maintained in possession even though it has been in operation less than the shortest time required for prescription. Those decisions are founded upon the combined presumed consent of the owner of the land and the public interest. The owner of the land is presumed to have yielded, without an expropriation suit having been brought against him, what an expropriation suit would have compelled him to yield.’ ” 173 So. 518, 520.

The court dismissed Gumbel’s argument that the St. Julien doctrine was contrary to the provisions of the Civil Code:

“The decisions in the St. Julien and subsequent related cases establish a method of creating a servitude not found in any article of the Civil Code covering servi-tudes. Since this method of creating a servitude (by unopposed use and occupancy) is extra-codal, plaintiff’s argument based on the codal articles creating, regulating, and extinguishing servitudes is not appropriate.” 173 So. 518, 523.

Gumbel lost, but he did not quit. The 1938 case, Gumbel v. New Orleans Terminal Co., 190 La. 904, 183 So. 212, describes Gumbel’s effort to nullify the 1937 judgment for the reason that he had been unconstitutionally deprived of his property by “pure judicial legislation,” contrary to' C.C. 766, which said, “Immemorial possession itself is not sufficient to acquire” a discontinuous servitude, whether apparent or not. The court excused its action as an effort to reconcile provisions of the Civil Code with statutes granting railroads the power of expropriation; but even if it had been wrong, said the court, the plea of res judi-cata barred Gumbel’s effort to nullify the judgment on an allegation of mere error. Gumbel also lost his third suit (for compensation) for the stated reason that the right to compensation is personal to the owner of the land at the time the servitude is taken and is not acquired by a subsequent purchaser of the land in the absence of an assignment or subrogation. (Gumbel was also denied an alternative claim in the nature of rent).

In 1974 we granted writs to reconsider the “St. Julien” doctrine, but found it inapplicable because the landowner did not acquiesce in the encroachment by the utility company. Harrison v. Louisiana Power & Light Co., La., 288 So.2d 37.

Plaintiff strongly urges in brief that the application of the “St. Julien” doctrine violates constitutional prohibitions against taking property without due process (U.S. Const., Amendments 5 and 14) and against taking private property for public use without compensation (La.Const.1974, Art. 1, § 4; La.Const.1921, Art. 1, § 2; La. Const.1913, Art. 167; La.Const.1898, Art. 167; La.Const.1899, Art. 156). The argument is persuasive, but we decline to rest our opinion on constitutional grounds when there are other reasons which lead to the same result. In re Interest of Toler, 262 La. 557, 263 So.2d 888 (1972); Tafaro’s Investment Co. v. Division of Housing Improvement, 261 La. 183, 259 So.2d 57 (1972).

Normally, only an owner has the “right of imposing a servitude permanently on an estate.” C.C. 729. “Servitudes are established by all acts by which property can be transferred, . . . ” C.C. 743. “Continuous and apparent servitudes may be acquired by title, or by a possession of ten years . . . C.C. 765, or “by possession of thirty years.” (C.C. 3504). Not so, however, for the acquisition of nonappar-ent or discontinuous servitudes. They can only be acquired by title.

“Continuous nonapparent servitudes, and discontinuous servitudes, whether apparent or not, can be established only by a title.
“Immemorial possession itself is not sufficient to acquire them.
“Immemorial possession is that of which no man living has seen the beginning, and the existence of which he has learned from his elders.” C.C. 766.

An electric power transmission line is a discontinuous apparent servitude, because it “need(s) the act of man to be exercised.” C.C. 727. In Nash v. Whitten, La., 326 So.2d 856, decided January 19, 1976, we held a natural gas pipeline to be discontinuous because the act of man was required for its exercise. The term “act of man” includes the operation of machinery necessary for the servitude’s exercise. Nash v. Whitten, supra. See also 40 Tul. L.Rev. 397, 398 (1966).

The historical development of the civil law prohibition against the acquisition of discontinuous servitudes is found in Schoenrich, Acquisition Of Rights Of Way By Prescription, 12 Tul.L.Rev. 226 (1938). This prohibition, a new development in 1804 (Art. 691 of the Code Napoleon), is now recognized in most civil law jurisdictions, but with frequent dissenters who think a servitude requiring permanent constructions of steel, concrete and the like should be subject to acquisitive prescription. (See Ogborn v. Lower Terrebonne Refining & Mfg. Co., 129 La. 379, 56 So. 323 (1911)). Only Bolivia and Brazil of all Latin American countries permit the acquisition of discontinuous servitudes by prescription.

Ancient Roman law permitted the acquisition of discontinuous servitudes by prescription, as did Las Siete Partidas and the common law. Three reasons are advanced for the adoption of the prohibition in Code Napoleon 691: (1) to establish greater certainty with respect to rights in real property; (2) in reaction to the chaotic condition of the law of servitudes in France and the large number of nonappar-ent and discontinuous servitudes, which had been claimed during the centuries; (3) the influential custom of Paris had rejected prescription as a means of acquiring these servitudes. (12 Tul.L.Rev. 226, 230).

Some of the same reasons exist for continuing to honor the positive pronouncement of the Civil Code prohibiting the acquisition of discontinuous servitudes except by title. The public records doctrine in Louisiana would suffer if the dismemberment of title is unnecessarily permitted without recordation. The cumulative experience of the civil law is that only servi-tudes which are both continuous and apparent should be susceptible of acquisition by prescription.

Consequently, St. Julien v. Morgan Louisiana & Texas Railroad Co., 35 La. Ann. 924 (1883); Gumbel v. New Orleans Terminal Co., 186 La. 882, 173 So. 518 (1937); Gumbel v. New Orleans Terminal Co., 190 La. 904, 183 So. 212 (1938); Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686 (1941) and those cases depending on the “St. Julien” doctrine are overruled, insofar as they conflict with the views here expressed.

The return to the Civil Code provisions governing the establishment of servitudes, and the abandonment of the deviant and conflicting jurisprudence, is important to the clarity and predictability of the law. Only clearly established public necessity should influence the court to perpetuate the St. Julien doctrine. Its existence at one time might have been excused by the fear that important public services might have been interrupted if a landowner were sustained in his contention that a discontinuous servitude could only be established by title. Not so today.

However, the St. Julien doctrine has become a rule of property, probably relied on by utilities since its establishment. Because the doctrine has been so entrenched and repeatedly affirmed by this court, the ruling in this case, as to property not involved in this suit, will be prospective only, affecting conduct occurring after the finality of this judgment.

For these reasons, the judgments of the courts below are reversed, the motion for summary judgment is denied, and the case is remanded to the district court for further proceedings.

TATE, J., dissents in part and assigns written reasons.

TATE, Justice

(concurring in part, dissenting in part).

The writer concurs insofar as we overrule the St. Julien doctrine as not authorized by our civil code.

The writer dissents, however, insofar as we find that Louisiana Power did not acquire a right of way by acquisitive prescription. In the writer’s opinion, the pow-erline right of way is a continuous apparent servitude which was acquired by prescriptive possession of ten years. Civil Code Art. 765.

For the reasons set forth in my dissent, Nash v. Whitten, La., 326 So.2d 856, 862, I am unable to agree that this apparent servitude is “discontinuous” simply because of an act of man away from the servitude premises is required for its exercise.

The apparent servitude was of a nature that any person who acquired the servient estate was fully on notice of its permanent nature involving the continuous subjection of the servient estate to its use. The servitude did not require its owner to exercise it by an act of man on the servient estate.

The majority permits semantical reasons to outweigh the functional purpose of Civil Code Article 727, when it holds that this apparent powerline servitude, obviously of a permanent and continuous nature, is nevertheless not subject to acquisition by prescription.

The civil code article defines a continuous servitude as one whose use “is or may be continual without the act of man.”

The code article cites “aqueduct, drain, view” as examples of continuous servi-tudes. To the writer, they are of a nature more similar to the present than the article’s examples of discontinuous servitudes: “rights of passage, of drawing water, pasture.”

The latter concern a transient type of human usage which depends on an act of the dominant owner on the servient estate to exercise the servitude, an act done at different times of the day, season, or year. The latter represent a discontinuous relationship, which may be contrasted with the continual and permanent relationship between the two estates represented by the type of servitude here at issue.

I therefore respectfully dissent.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    Willie MITCHELL, Plaintiff-Appellee-Relator, v. The EQUITABLE EQUIPMENT COMPANY, Defendant-Appellant-Respondent, and Continental Assurance Company, Defendant-Appellee-Respondent.
    No. 57081.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.
    J. Michael Cumberland, Badeaux, Dis-con, Cumberland & Barbier, New Orleans, for plaintiff-applicant.
    Francis G. Weller, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-respondent, Continental Assurance Co.
    Robert E. Winn, Walter C. Thompson, Jr., Sessions, Fishman, Rosenson, Snellings & Baisfontaine, New Orleans, for defendant-respondent, Equitable Equipment Co.
   TATE, Justice.

The plaintiff became totally disabled while working for Equitable Equipment Company. Equitable provided long-term disability income insurance protection for its employees. The plaintiff sues Equitable.

The trial court awarded the plaintiff judgment against Equitable for disability benefits. The court of appeal reversed. 319 So.2d 552 (La.App. 4th Cir. 1975). We granted certiorari, 329 So.2d 753 (1975), because we wished to examine the court of appeal’s conclusion that a disability protection furnished by an employees’ group policy did not cover a subsequent disability solely or concurrently caused by a pre-existing (but previously not manifestly-disabling) disease.

We find that the plaintiff employee’s present disability is covered. Ultimately, we rest this determination upon our factual conclusion that the disability results both from an ulcer (which did not pre-exist the coverage), as well as from a pre-existing disease, lipoid proteinosis (which did preexist the coverage).

The court of appeal found that, under the policy definitions, the causation of the disability by the pre-existing disease precluded coverage. Before discussing the policy clauses at issue, we deem it appropriate to set forth the basis for our factual conclusion.

(1)

The plaintiff Mitchell worked as a welder for the defendant Equitable from May, 1967 until February, 1971. Except for a short hernia-caused disability in July 1970, Mitchell worked continuously for Equitable without disability or loss of sicktime during those four years. His present disability commenced in February 1971, initially resulting from a stomach ulcer. He has been continuously disabled since that time.

Mitchell’s present disability also results from lipoid proteinosis, a very rare tissue disease affecting his tongue and throat. This disease had first manifested itself (undiagnosed) during his military service in 1945. In 1957, when the disease was first diagnosed, it again manifested itself, this time in a disabling state. During the next ten years, Mitchell was recurrently hospitalized, received extensive treatment, and for a time received veterans disability benefits.

However, the disability benefits were terminated. Mitchell returned to work as a welder in 1966. He entered the present defendant’s employment in 1967. The lip-oid proteinosis was in a period of remission during this entire time from 1966 through 1917, until it again manifested itself in disabling form during the period of disability initially caused by the ulcer.

As will later be seen by a summary of the medical evidence, the disability from the ulcer (stomach pains and cramps) has persisted since February 1971. From about April 1971, a concurrent cause of the plaintiff’s disability results from his lipoid proteinosis disease (tongue and throat swelling, causing shortness of breath). The ulcer disability would normally have been cured; but the steroid treatment for the lipoid proteinosis may be at least a partial cause for the prolongation of the disabling symptom resulting from the ulcer.

In any event, the medical evidence, as we read it, preponderantly shows that the present disability results both from the ulcer and from the lipoid proteinosis. The medical evidence is further uncontradicted that the disability resulting from the ulcer will persist indefinitely and is permanent, within the definition of the insurance coverage.

(2)

Equitable provided group health, accident, life and disability protection for its employees, as part of the compensation paid them for their services. During the plaintiff's employment, Equitable secured successive policies from various insurers.

On April 1, 1970, it secured such insurance from Continental, including a group long-term disability income insurance protection. This policy provided for long-term disability benefits for an employee who “becomes totally disabled solely because of injury or sickness from performing each and every duty pertaining to his occupation and remains continuously so disabled * *

On December 1, 1970, Equitable can-celled this disability coverage with Continental and contractually agreed to provide the same protection itself. The present disability commenced on February 10, 1971, during Equitable’s contractual assumption of such coverage.

The successive group coverages were provided without any requirement of medical examination, nor were Equitable’s employees required to fill out medical statements by Continental or the other insurers. As the trial court found, no issue is present of any misrepresentation or other fraudulent conduct by Mitchell, the insured employee.

(3)

On February 10, 1971, Mitchell was hospitalized for a perforated peptic (stomach) ulcer. He has been under continuous treatment for it since then. We regard the" medical evidence as uncontradicted that the peptic ulcer residual is by itself disabling:

Due to, stomach pains and cramps (which require continuous medication), Mitchell is totally disabled. He cannot perform the arduous duties expected of him as an industrial welder, which involve a great deal of climbing and physical exertion.

Following February 10, 1971, a re-manifestation occurred of a latent condition resulting from lipoid proteinosis. The latter is a rare congenital disease affecting the membranes of his mouth and throat. Its cause, or the causes for its re-manifestations and remissions, are not known to medical science.

Except for hoarseness of the throat, this disease had not manifested itself in Mitchell since 1966, or at least by any objective symptom of a disabling nature. However, commencing shortly after the ulcer hospitalization episode, the prior long recessive stage of the disease ended. Due to swelling of the throat membranes and its aggravation by irritants present in an industrial background, Mitchell is not able to perform his arduous duties by reason of this condition, if only because of the resulting shortness of breath upon exertion.

The congenital disease (lipoid proteinos-is) is of unknown causation. It is a progressive disease, but with periodic remissions and re-manifestations. It affects the skin and mucous membrance, especially (as here) the tongue, throat, and larnyx.

The medical evidence is uncontradicted that the peptic ulcer condition was not caused by the lipoid proteinosis. However, the evidence also indicates that, without this underlying disease, Mitchell’s peptic ulcer disability would not have persisted indefinitely, as it has.

The three medical witnesses who testified are in. substantial accord.

Dr. Cairns, a throat specialist, testified as to the existence and disabling nature of the lipoid proteinosis condition. He did not examine for or opine as to the disability resulting from the ulcer.

Dr. Stafford, a general practitioner, has treated Mitchell for his ulcer condition since February, 1971. He .found him disabled both because of the ulcer (stomach pain and cramps, etc.) and also because of the lipoid proteinosis (throat irritation, causing shortness of breath).

This witness concedes that the ulcer condition, without the proteinosis complications, might not continue to be permanently disabling. However, the ultimate conclusion of his testimony is that the ulcer condition, for which he is treating Mitchell, remains indefinitely disabling. His testimony as a whole, and his prior medical reports indicate his belief that the proteinosis disability is secondary to that caused by the ulcer.

Dr. Martz, an internal medicine specialist, examined the plaintiff on behalf of Equitable. The plaintiff called him as a witness. Dr. Martz’s testimony is positive to the effect that he found the plaintiff disabled both because of the ulcer (stomach pains) and of the proteinosis (throat swelling), as well as by reason of arteriosclerosis.

We do not believe that these positive findings by him of the concurrent causes of the plaintiff’s disability, (which commenced with the ulcer attack of February 10, 1971 and has persisted continuously since then) are contradicted by his reply to the last of four questions asked him on cross-examination by Equitable’s astute counsel.

The last two of these questions were as follows:

“Q. And you said in your opinion he was permanently disabled ?
“A. That’s true.
“Q. I know, Doctor, it is often very hard to draw a clearcut black and white line, but I’m going to ask you one direct question: In Mr. Mitchell’s case you have three findings; what of those three conditions renders him, in your opinion, permanently disabled and totally disabled”
“A. The lipoid proteinosis.”

In the context of the question, the medical witness was asked to express his opinion as to which one of the three disabling conditions he found rendered Mitchell “totally and permanently disabled”. In the context of his entire testimony, the reply indicates that the lipoid proteinosis condition was, of the three disabling conditions, medically the most serious and the most permanent (incurable).

In the context of the witness’s entire testimony, however, this opinion does not detract from his firmly expressed opinion that the ulcer condition was also presently producing total disability of indefinite duration. The expert’s opinion rather recognizes that the ulcer condition itself, if not inhibited from cure by the lipoid proteinos-is condition and treatment, is ordinarily of a less permanently disabling nature, as Dr. Stafford had testified.

We thus find that, commencing with February 10, 1971, the plaintiff Mitchell has been disabled both because of the ulcer residual and also, commencing shortly aft-erwards, because of the re-manifestation of his lipoid proteinosis.

(4)

We also note that, prior to the 1971 ulcer disability, the plaintiff Mitchell was free of disability or of any disabling manifestation of lipoid proteinosis. This latter pre-existing congenital disease is of unknown causation, both as to its original manifestation and to its subsequent periods of remission and recurrence.

After the ulcer disability manifested itself, the proteinosis disability again recurred. Since 1971, the disability has persisted continuously as disabling because of the ulcer (stomach) residual, in addition to the throat (proteinosis) condition also causing disability.

Under these circumstances, the legal cause of the disability has sometimes been held to be the condition initially causing the disability that continuously manifests itself thereafter, rather than some pre-ex-isting latent medical disease or predisposition which is activated by the precipitating initial condition or which aggravates the latter’s duration.

See: Moore v. Prudential Insurance Company of America, 278 So.2d 481 (La. 1973); Jordan v. Travelers Insurance Co., 231 So.2d 678 (La.App. 1st Cir. 1970), affirmed (on this issue, but without discussion of it) 257 La. 995, 245 So.2d 151 (1971); Morris v. Kaiser Aluminum and Chemical Co., 228 So.2d 261 (La.App. 1st Cir. 1969).

We do not, however, rest our decision upon this last principle. Under the present policy clauses, as will be shown, it is sufficient for coverage that the present disability is caused by a post-coverage sickness, even though a concurrent cause of the disability may be a pre-existing disease arguably excluded from coverage by the policy (that is, if it were the sole cause of the disability).

(5)

The long-term disability coverage provides for disability benefits if the insured, while covered, “becomes totally disabled solely because of injury or sickness” from performing his duties, and “if he remains continuously so disabled” for a specified period thereafter. No substantial contention is made that the plaintiff Mitchell is not covered by this clause, except insofar as his pre-existing disease (lipoid' protei-nosis) may bar recovery.

The definitions section of the contract provides: “ ‘Sickness’ wherever used in this policy means sickness or disease commencing while this policy is in force as to the Insured whose sickness is the basis of the claims.” (Italics ours.)

Relying on the italicized words, the defendant Equitable contends that disability caused by pre-existing disease is not covered by the contract.

The plaintiff Mitchell contends that, to the contrary, the only pre-existing diseases which bar recovery are those described by a limitations clause of the same contract. In essence, that clause excludes coverage for a disability commencing within the first twelve months of the policy, “if the disability is caused or contributed to by” a disease for which the insured had received medical treatment or taken medication during the three-month period before the coverage commenced.

Mitchell further argues that, at the least, this limitations clause results in an ambiguity as to what pre-existing diseases are excluded ; thus, he relies upon well-settled interpretative principles that ambiguities must be construed in favor of coverage. He urges, finally, that group health policies, commonly issued (as here) without medical examination to cover all of the employees of the group, by usual interpretation exclude only disability resulting from pre-existing disease so described by the “treatment-free” limitations clause, such as that (see footnote 3) here applicable. Meyer, Life and Health Insurance Law, Section 17.2 (1972).

Under the present facts, we do not need to resolve which of the two opposing interpretations of the sickness definitions is controlling. If arguendo we accept Equitable’s contention that a disability caused solely by a pre-existing disease is not covered, we nevertheless find that the post-coverage ulcer condition is a concurrent cause of the present total disability and thus within the coverage provided by the contract.

The limitations clause itself recognizes that a disability may result both from a pre-existing disease and from a post-coverage sickness. In the event that the disability is “contributed to” by a pre-existing disease, however, the limitations clause bars recovery (when, as here, the disability manifests itself within the first year of coverage) only where the insured received medical treatment or took medication for the pre-existing disease during the three months prior to the inception of the coverage. (See Limitations clause quoted in full in footnote 3, above).

Here, the evidence is uncontradict-ed that Mitchell did not receive medical treatment or services or take medication for his lipoid proteinosis for well more than three months prior to the time the present disability coverage was afforded to him in 1970.

Therefore, his present disability, which commenced in 1971 results from the ulcer condition which first manifested itself then; thus, it is covered by the contract. Further his recovery therefor is not barred by the circumstance that such disability is concurrently caused or aggravated by his pre-existing disease, for which he had not received treatment or taken medication during its recessive stage during the many months or years prior to commencement of the present disability coverage in 1970.

We are fortified in this interpretation by well-settled principles here applicable. As stated at 13 Appleman, Insurance Law and Practice, Section 7440, pp. 170-71:

“The meaning of disability clauses in insurance policies must be determined largely from the language of the contract itself, interpreted in the light of the particular circumstances of each case. A disability policy is to be construed as a whole, and if such construction be reasonable, to receive that construction which would give effect to every part of the policy. Such provisions should be construed reasonably and given a practical application; or, as otherwise stated, should be given a reasonable, rather than a literal, construction.

“A disability contract must be construed, if possible, so as not to defeat a claim to benefits, since the law does not favor forfeitures. The paramount consideration of the parties at the execution of the contract being insurance against total and permanent disability, any construction of the policy which nullifies such consideration should be avoided. * * * ”

Decree

Accordingly, for the reasons assigned, we vacate the judgment of the court of appeal, and we reinstate and affirm the judgment of the district court. All costs of these proceedings are assessed against Equitable, the defendant-appellant-respondent.

COURT OF APPEAL JUDGMENT SET ASIDE, AND DISTRICT COURT JUDGMENT REINSTATED.

      . He also sues the insurer (“Continental”) which had formerly provided the coverage. The trial court dismissed the plaintiff’s claim against Continental.
      The plaintiff appealed the dismissal of his claim against Continental. He did not by his application to this court urge error in that regard. However, if his claim, against Continental is before this court, we find no error in the dismissal of the disability claim against Continental for long-term disability which commenced several months after cancellation of Continental’s coverage of such loss.

      . The disease is so rare that none of the medical specialists had ever treated a patient with regard to it. Their opinions are based solely on the sparse medical literature on the subject. Only 200 eases have ever been reported in all medical history. The general practitioner witness estimated that a ease of it might not occur in a medical practice but every three hundred years. The patient himself thought it was in the nature of an allergy.

      . In full, the clause provides:
      “No insurance is afforded under the Policy
      (a) . . .
      (b) . . .
      (e) as to a disability commencing during the first twelve months that insurance is in force with respect to the Insured if the disability is caused or contributed to by, or as a consequence of, a disease or injury for which the Insured received medical treatment or services, or took prescribed drugs or medicines, during the three month period prior to the effective date of such insurance; or . . . ”

      . The evidence shows he consulted his physician about his (then non-disabling) throat condition three times during 1967, twice in 1968, and once in 1969 (on May 11). He had no disabling episodes since 1966.


author: PONDER, Judge.

text:
    Henry Paul CRUM v. Julia L. CRUM.
    No. 10656.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Keith M. Whipple, Houma, for appellant.
    Thomas A. Cenac, Houma, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Appellee, Julia L. Crum initially filed suit on July 19, 1973, for a separation from bed and board against appellant, Henry Paul Crum. She secured alimony pendente lite in the amount of $175.00 per month. On November 7, 1973, Mrs. Crum was granted a judgment of separation from bed and board which continued alimony at $175.00 per month.

Mr. Crum, after waiting more than one year and sixty days from the date his wife procured the separation, filed for divorce on January 10, 1975. On January 30, 1975, a consent divorce was obtained, wherein Mr. Crum was obliged to pay alimony in the amount of $175.00 per month, “reserving however, to each party, the right to seek a change in alimony.”

Twenty days later, on February 19, 1975, Mr. Crum filed a rule to terminate or reduce alimony, specifically alleging - - that because of increased obligations on the part of the plaintiff, that because of improved economic condition of the defendant, and a reduction in her obligations, it is plaintiff’s desire to have the sum which he has been condemned to pay monthly terminated or in the alternative reduced to a more equitable amount - - Extensive interrogatories -were attached to the rule.

Five days later, Mrs. Crum, the defendant-in-rule, propounded an identical extensive set of interrogatories .to her husband and on the next day, February 25, 197,5, only twenty-six days after the divorce, filed a counter rule praying for an increase in the alimony. Both parties answered the interrogatories in March.

On May 13, 1975, the lower court conducted a hearing on both rules and took the case under advisement. On August 21, 1975, the lower court found that “Each of the parties . . . failed to prove any appreciable changes in income, expenses, capital, wealth, or other matter of financial significance regarding either party . . . since the decree of January 30,- 1975,” and declined to change the previous alimony decree.

Mr. Crum has timely perfected this appeal of the decision of the lower court. Since Mrs. Crum has not perfected an appeal of the lower court’s denial of her rule to increase alimony, and she has not answered her husband’s appeal, she has abandoned her right to have the alimony increased. Thus, the sole issue before the court is whether or not the lower court erred in denying Mr. Crum’s prayer to terminate or reduce the alimony.

A consent alimony judgment is not subject to adjustment or modification absent proof of a substantial change in the circumstances of one or the other of the parties from the date of the rendition of the alimony judgment to the time of the trial of the rule demanding such adjustment or modification. Bernhardt v. Bernhardt, La., 283 So.2d 226 (1973); Bazzell v. Bazzell, 289 So.2d 202, (La.App. 1st Cir. 1973). The burden of proof is upon the husband to demonstrate a significant change in the financial condition of either himself or his wife so as to justify a termination or reduction in the alimony he is legally accountable for. Laiche v. Laiche, 289 So.2d 277 (La.App. 1st Cir. 1974), writ denied, 293 So.2d 182.

The interrogatories and their answers, together with the testimony taken at trial of the rules, evidence no substantial change of either party that would warrant termination or reduction of the alimony.

The only evidence regarding any change during the crucial interval of time at issue herein was introduced by way of direct testimony, when Mr. Crum testified that his net salary actually increased since the alimony decree from $726.00 per month to $751.00 per month. The rest of his testimony, like the interrogatories, concerned his income and expenditures prior to January, 1975.

Mrs. Crum testified that because of back problems she would be unable to work for an indefinite period of time. However, she admitted that she was receiving her full salary and, if necessary, she could collect on Federal Civil Service disability insurance. She further testified that she had incurred increased expenses since January, 1975, on her car, to the roof of her house, and some minor medical bills. Mrs. Crum acknowledged that she still has $4,313.88 in her savings, which she had before the alimony decree. Also, she had only $500.00 in U.S. Savings Bonds as compared with $1,000.00 worth at the time of the alimony decree.

Thus, the record affirmatively establishes that no substantial change in the circumstances of either of the parties occurred since the alimony decree until trial of the rule that would support termination or reduction of the alimony award.

Appellant, however, alternatively argues that the consent alimony decree, by the reservation of each party of “the right to seek a change in alimony,” does away with the necessity of showing changed circumstances.

Appellant’s contention is without merit.

The consent decree containing the purported waiver asserted by appellant does not derogate from the legal rights of the parties. It merely confirms or acknowledges the rights of the parties expressly granted by law. Either Mr. or Mrs. Crum has an absolute “right to seek a change in alimony.”

The language of the decree does not attempt to designate how the alimony may be changed. Absent a clearly worded, express and unequivocal clause to the effect that the husband need not prove substantial change, this court is unwilling to hold that Mrs. Crum abandoned her rights.

Secondly, it is important to note that the consent decree was prepared by counsel for appellant. Where a reasonable dispute arises as to what provisions of a written agreement mean, an interpretation against him who has prepared the agreement is required. LSA-C.C. art. 1957.

For the above and foregoing reasons, the judgment of the district court is affirmed, with all costs of this appeal to be paid by appellant.

AFFIRMED.

      . Appellant in brief argued that Mrs. Crum does not need alimony. However, what transpired prior to the January, 1975, alimony decree is irrelevant absent a showing of changed circumstances. The consent decree is a judicial admission by Mr. Crum that his wife had a right to receive alimony and he could not alter that right without showing a change in circumstances. Bernhardt v. Bernhardt, supra.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Dennis JARROW.
    No. 57189.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Dennis Jarrow, charged with armed robbery, a violation of LSA-R.S. 14:64, was tried by jury, found guilty as charged, and sentenced as a multiple offender under LSA-R.S. 15:529.1 to serve fifty-five years in the custody of the Director of the Department of Corrections. On appeal to this Court, defendant relies upon five assignments of error for reversal of his conviction. Assignment of Error No. 3, being neither briefed nor argued, is considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENTS OF ERROR NOS. 1, 4, AND 5

In these related assignments of error, defendant argues “that the entire identification procedure was so impermissibly suggestive that the subsequent in-court identifications of the defendant were not independent, but were rather based on the memory of the defendant’s photograph and that the' suggestion implanted by it was reinforced at each subsequent stage of the identification procedure.” Although defendant’s objection is vague, we assume that the objection is both to the photographs shown to the witnesses and to the lineup which the witnesses attended, since both were included in the trial court’s denial of defendant’s Motion to Suppress.

Having reviewed the transcript of the hearing, we find the trial court’s ruling to be correct. The evidence adduced at the hearing of the Motion to Suppress Identification of the accused in the instant case shows that the identifications were completely untainted and free from suggestiveness. The officer who conducted the lineup testified that eight people were in the lineup who were of the same general appearance as the defendant; that there were two attorneys present, one for a certain member of the lineup and another from the Indigent Defender’s Office to represent the remainder of the subjects; that all subjects were together on the stage; that all subjects were dressed in the same manner; and that the witnesses were told not to discuss their reactions to the lineup among themselves. Indeed, they were forbidden to sit close to each other. The witnesses confirmed the officer’s testimony. All of the witnesses testified that a few days after the robbery, policemen showed them a group of photos of six to eight people similar in physical appearance and asked them if they could identify any of the persons in the photographs. The witnesses further testified that at no time was any suggestion given to them regarding the person suspected of the crime.

Assignments of Error Nos. 1, 4, and 5 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 6

Defense counsel alleges that the trial court erred in failing to grant his motion for a continuance. His motion for a continuance is based on newly discovered evidence.

On the day of trial, defense counsel filed the motion in which he requested a continuance for the following reasons:

“Defendant has 3 witnesses as alibi witnesses who would testify that he was in Baton Rouge, La. at the time of the offense. These names and the last known addresses were supplied to the sheriff and the returns show that they had moved. Defendants attorney has attempted to contact these witnesses by phone but has been unsuccessful.
“The witnesses are defendant’s wife and two friends. Defendant is confined to the 5th floor in Parish Prison and his writing privileges have been denied him. This has made it impossible for him to attempt to contact his wife. Defendant needs time in which to locate his wife and the other two witnesses and thereby compel their appearance in Court.”

Assignment of Error No. 2 complains of the trial court’s denial of his Motion for New Trial.

Article 709 of the Louisiana Code of Criminal Procedure provides that a Motion for Continuance based upon the absence of a witness must state: (1) facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial; (2) facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and (3) facts showing due diligence used in an effort to procure attendance of the witness. It is well established that the decision of the trial court as to whether or not to grant a continuance will not be disturbed on appeal in the absence of a palpable abuse of discretion. State v. Williams, 262 La. 317, 263 So.2d 306 (1972). In State v. Douglas, 116 La. 524, 40 So. 860 (1906), this Court stated that it is within the discretion of the trial court to refuse a continuance if it should appear that the defendant’s sole object was delay.

Following his conviction, the accused filed a Motion for New Trial in which he alleged, among other things, that the trial judge erred in denying his Motion for Continuance, thus depriving him of his alibi witnesses. A hearing on the Motion for New Trial was held. At this hearing, Margaret Lucille Jarrow, wife of the defendant, testified that at the time of the instant robbery Dennis Jarrow was in Baton Rouge with her, and that if she had received a subpoena to testify at her husband’s trial, she would have appeared in court and testified as to the defendant’s presence in Baton Rouge on the date in question.

Nowhere in his Motion for Continuance does the defendant refer to any probability that the witnesses might be available at some specified future time. Further, as the trial judge pointed out in his Per Cur-iam, not only was there no credible showing made of due diligence, but the record establishes the opposite—that is, that the defendant waited approximately nine months before advising his attorney of his desire to subpoena the three witnesses.

In our opinion, the Per Curiam of the trial judge correctly disposes of the assignments of error as follows:

“A motion for continuance was made by counsel for the defendant, based upon the fact that three witnesses subpoenaed by defense .counsel were not served and, therefore, not present in court to testify on behalf of defense. The return of the subpoenas forwarded to Baton Rouge for service show that the addresses given by the defendant and placed upon the subpoenas were improper. That is, that the witnesses had moved from those addresses and their whereabouts were unknown. The record further indicates that defense counsel had attempted, by telephone, to locate the missing witnesses, but had been unsuccessful in so doing. It should further be noted that defendant had been incarcerated awaiting trial in this particular matter since January 11, 1974, and that defense counsel was retained shortly after defendant’s incarceration, that numerous pretrial hearings were held between the date of incarceration and the date of trial, that the date of trial was October 10, 1974, some nine months after the defendant’s incarceration, but that defense counsel was not supplied the names or addresses of these three witnesses until September 23, 1974. It was therefore this court’s conclusion that the defendant had had ample opportunity to furnish defense counsel with the names and addresses of all necessary defense witnesses, that the addresses given of these three witnesses by the defendant to his counsel were improper and/or wrong addresses and that the motion for a continuance was merely a delaying tactic on behalf of the defendant.”

Assignments of Error Nos. 2 and 6 are without merit. .

For the reasons assigned, the conviction and sentence are affirmed.


author: PER CURIAM. SUMMERS, Justice TATE, Justice

text:
    Michael Lee CONNELL v. Vergie Dell CONNELL.
    No. 56941.
    Supreme Court of Louisiana.
    April 13, 1976.

      William L. McLeod, Jr., McLeod & Dow, Lake Charles, for defendant-applicant.
    Philip R. Riegel, Jr., Sydney J. Parlongue, New Orleans, for plaintiff-respondent.
   PER CURIAM.

Michael L. Connell was first married to Gisela Alexander. They were divorced on May S, 1970. By the decree he was ordered to pay $1,200 monthly for the support of his wife and four minor children, issue of the marriage. This alimony and child support award was later reduced to $1,000 monthly, plus the income tax due thereon.

Connell was married a second time to Vergie Dell on June 20, 1970. By a suit filed January 24, 1972 and a decree of April 7, 1972 he was separated from bed and board from his second wife. No children were born of this union. Then, on December 21, 1973, Connell sued for a partition in kind, or, alternatively, by licitation, of all the property belonging to the community of acquets and gains theretofore existing between himself and Vergie Dell.

A partition, liquidation and accounting was ordered by the trial court, resulting in a settlement balance due in favor of Vergie Dell in the amount of $21,798.16, with costs taxed to the community. On appeal by the husband to the Third Circuit, the judgment was reversed and the case was remanded to the trial court for the receipt of additional evidence and for judgment in accordance with the views expressed by the court of appeal. 316 So.2d 421.

Writs were granted on the application of the wife. 321 So.2d 362, La.

I.

It is the wife Vergie Dell’s contention that her husband’s payments of $27,946.45, as alimony and child support to his first wife from his earnings during the second marriage, are chargeable solely to the husband’s half interest in the community of acquets and gains existing as a result of the second marriage; that is, in the partition, liquidation and settlement of the community the amounts paid as alimony and child support to the first wife during the second marriage should be charged entirely against the husband’s one-half of the community.

The answer to this question is furnished by the rationale of our decision in Fazzio v. Krieger, 226 La. 511, 76 So.2d 713 (1954). There, as the court of appeal noted, we held that the obligation of a husband to support his first family is an obligation existing during the second marriage; it is not an antenuptial debt which must under Article 2403 be acquitted from his individual effects.

Thus, the support payments are for an obligation of the husband, imposed by law (not by contract nor by alimony judgment recognizing it and fixing its amount) and which month by month arises during the second community. Therefore, they are properly dischargeable from common funds, Civil Code Article 2403, without any necessity for the husband to account to his second wife from his share of the community assets, after dissolution of the second community, for such payments made from community funds.

The payment of these obligations, which came into existence during the existence of the second community and were thus properly dischargeable from community funds, is to be contrasted with the payment of antenuptial debts, contractual or otherwise, such as are founded upon contractual obligations preexisting the second marriage. These latter, while initially payable from the community since it forms part of the husband’s patrimony, are subject to reimbursement to the wife at the termination of the second community. Creech v. Capitol Mack, 287 So.2d 497 (La.1974).

Nor is the wife entitled to an accounting or reward from the husband for one-half the value of the increase or improvement of the husband’s separate property by virtue of the alimony and support payments made with community funds, because no showing is made that these payments resulted in an increase or amelioration of the value of the husband’s separate property as required by Article 2408 of the Civil Code.

II.

Prior to his second marriage Con-nell acquired four life insurance policies insuring his life. By terms of the policies the insured was granted the right to change beneficiaries. His first wife or his children were named beneficiaries in all four policies. After his second marriage, Connell changed the beneficiaries and in some instances named Vergie Dell as beneficiary. During the existence of this second community regime, Connell paid premiums on these policies with community funds. The trial judge found that a total of $4,330.55 was paid as premiums out of funds belonging to the second community. He then decreed that Connell must reimburse the community the full amount of those payments.

The Court of Appeal reversed this ruling, holding that the community was not entitled to reimbursement for the amount paid as premiums on the policies during the existence of the community regime. It held, instead, that the measure of reimbursement to which the community was entitled from the husband’s separate estate was the enhancement in value (cash surrender value) of the policies resulting from premium payments made with community funds. Butler v. Butler, 228 So.2d 339 (La.App.1969) and Broyles v. Broyles, 215 So. 2d 526 (La.App.1968) were relied upon to support its holding.

The wife Vergie Dell contends that the holding of the Court of Appeal in the instant case should be reversed on this issue because the decision here and in the Butler and Broyles cases are contrary to decisions of this Court in Succession of Lewis, 192 La. 734, 189 So. 118 (1939); Succession of Verneuille, 120 La. 605, 45 So. 520 (1908) and In re Moseman, 38 La.Ann. 219 (1886).

Decisions of this Court, and of the Court of Appeal in Succession of McLellan, 144 So.2d 291 (La.App.1962), prior to the decision in Broyles v. Broyles in 1968, held that after dissolution the community was entitled to reimbursement from the separate estate of the husband for the amount of the premiums paid with community funds on policies belonging to the separate estate of one of the spouses.

However, recently in T. L. James & Co., Inc., et al. v. Montgomery, et al., 332 So.2d 834 (La., 1975) rehearing granted on other grounds, the rule of Butler v. Butler was recognized and approved in these words:

“As already noted, this insurance policy (a group life policy) was acquired before decedent’s marriage to his second wife, and thus was part of his separate estate. No restitution is due the community for the premiums paid by decedent. In such a case, a community claim is supportable only when the cash value of the policy has increased during the community’s existence and then only for one-half the extent of the increase in value. The policy before us is a term insurance policy, which never had a cash surrender value. Therefore, no accounting is due the community. Butler v. Butler, 228 So.2d 339 (La.App.1969).” (parentheses added)

With the jurisprudence in this state, the Court now adheres to its decision of December 8, 1975 in the T. L. James case on this issue. Accordingly, the holding of the Court of Appeal on this question is affirmed. This result is in harmony with the principle announced in Article 2408 of the Civil Code. That article recites that when the separate -property of either husband or wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or amelioration, if it be proved that the increase or amelioration be the result of the common labor, expense or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in value of property, or the chances of trade.

Although it is well-known that the law as it applies to life insurance is sui generis in this State, and the Civil Code does not purport to comprehend that subject, the Court can discern nothing incompatible with that fact when it accepts and applies a principle embodied in the Civil Code to bring about consistency in dealing with problems of community property when life insurance is involved.

Since, as the Court of Appeal found, the record does not satisfactorily establish the enhancement in value of the policies during the existence of the second community, and three of the policies appear to have cash surrender values at the time of the dissolution of the community, the case is remanded to the trial court for this determination and for judgment on this issue not inconsistent with the reasons assigned.

III.

In the application to this- Court for cer-tiorari, the third assignment of error made by the wife is based upon the allegation that the trial court and Court of Appeal both held that payment of premiums by the community for a policy of insurance which was a community asset should be charged against the wife’s separate estate. It is contended in connection with this assignment of error that a policy insuring the life of the wife, purchased during the community, is a community asset, and the community funds used to pay the premiums for this policy should have been absorbed by the community. Estate of Moseman, 38 La.Ann. 219 (1886), is cited as authority for the wife’s contention.

According to her testimony, prior to marriage Vergie Dell acquired a life insurance policy insuring her life for $10,000. At the time of its inception, the policy named her parents as beneficiaries. During the marriage the beneficiaries were changed, and when the community was dissolved her parents were again named beneficiaries. Premiums on this policy in the amount of $15.30 were paid with community funds during the community regime.

Vergie Dell acquired another life insurance policy insuring her life for $20,000. This policy had its inception in November 1970 during the community regime. Her parents and her husband were designated beneficiaries. Monthly premiums in the amount of $34.20 were paid with community funds during the existence of the community. After dissolution of the community only her parents were named as beneficiaries,

As to the first policy, acquired by Vergie Dell prior to her marriage, it became her separate property. Inasmuch as community funds were used to pay premiums while the community existed, Vergie Dell is responsible to the community for whatever enhancement in value the policy experienced from the use of community funds.

The second policy acquired during the existence of the community is a community asset, liable to the community for its value at the time of the dissolution of the community. No reimbursement is due the community for premiums paid on this policy.

The judgment is amended accordingly.

Since the three foregoing assignments of error are the only issues presented in the application for certiorari which this Court granted, the other issues presented by brief are not considered.

For the reasons assigned, the judgment of the Court of Appeal is amended in accordance with the reasons assigned. Otherwise, the case is remanded to the trial court for compliance with the decree and judgment of the Court of Appeal as herein amended. Assessment of costs is to await the final determination of this cause.

SUMMERS, J., concurs in part and .dissents in part (with reasons).

TATE, J., adds additional concurring reasons.

SUMMERS, Justice

(concurs in part and dissents in part).

Although I agree with the result reached by the majority, I do not subscribe to the reasons assigned for the disposition of Part I of the majority opinion. The question presented in Part I, in my view, is answered by the rule which prescribes that when the law itself has imposed an an-tenuptial duty or obligation on a spouse, as for alimony to a former wife and support of children of a former marriage, or for a penal sum upon sentence for a criminal delict, or the like, the duty or obligation thus created follows the spouse into a second or subsequent marriage as a valid liability of the community of acquets and gains arising from the second or subsequent marriage. Fazzio v. Krieger, 226 La. 511, 76 So.2d 713 (1954); 1 de Funiak, Principles of Community Property, Sec. 165 (1943); de Funiak, Principles of Community Property, § 165 (2d ed. 1971).

Although these alimony and child support obligations, incurred prior to the second marriage, are antenuptial in character, they form exceptions to the rule that debts of husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects as Article 2403 of the Civil Code requires. The exception is rationalized on the basis that the State occupies a status unlike other creditors. It is an exception always recognized by the Spanish law, the source of Louisiana’s community property principles. Guiterrez, Quaestio C XXIX, to Nov.Rec.Law 9.

I agree, however, that the wife is not entitled to an accounting or reward from the husband for one-half the value of the increase or improvement of the husband’s separate property by virtue of the alimony and support payments made with community funds, because no showing is made that these payments resulted in an increase or amelioration of the value of the husband’s separate property as required by Article 2408 of the Civil Code. Although the Spanish sources would hold otherwise, by enacting Article 2408 Louisiana requires a different result.

And I do not agree that Creech v. Capitol Mack, 287 So.2d 497 (La.1974) cited by the majority, is correct. That decision flies in the face of the plain language of Article 2403 which makes debts of both husband and wife, anterior to the marriage, payable only out of the personal and individual effects of the spouse incurring the antenuptial obligation. See my dissent to Creech v. Capitol Mack, supra.

Again I must dissent from the use of a per curiam opinion in a decision of this character. See State v. Andry, 260 La. 79, 255 So.2d 81 (1971). In this decision, declaring a principle of law not heretofore decided by this Court, to adopt such a departure from established procedure requires an explanation. None is forthcoming from those who have subscribed to the “Per Curiam” opinion. In my view, adopting the practice represents a watering down of the Court’s standards. It dilutes the responsibility properly imposed upon the author of the opinion.

TATE, Justice

(concurring).

The issue of importance before us is: Is a community resulting from a second marriage ultimately responsible for the husband’s payment during it of family support obligations arising as a result of a first marriage? Or, instead, must the husband account to the second community after its dissolution for such payments made from its assets?

By our majority opinion, we answered “yes” to the first question and “no” to the second. By this concurring opinion, the writer wishes to amplify the reasons why he subscribes to the conclusion of the majority’s per curiam opinion of multiple authorship expressing the court’s consensus.

In my opinion, the present is not an antenuptial obligation pre-existing the second marriage (insofar as involving the support payments which become due during, and for periods co-existing, with this marriage). It is, rather, a continuing obligation which the husband must acquit as it arises during the marriage—for instance, month by month, in the amount of the support obligation fixed by the alimony judgment in connection with the termination of the first marriage.

As we shall note, this being an obligation of the husband arising during the existence of the second community, it is properly dischargeable from community funds. It is thus not considered a payment from community funds of an antenuptial debt of the husband, for which, at the dissolution of the community, he must account to his wife.

(1)

During this second marriage, the plaintiff husband paid a total of $27,946.45 in alimony payments, child support, and medical expenses for his children of his first marriage. This first marriage had terminated by divorce on May 5, 1970, and the present (or second) marriage took place on June 20, 1970. All of the payments were for monthly alimony and child support payments which became due after the second marriage, and for medical expenses of the husband’s children which were incurred during the second marriage.

Our majority holds that, upon dissolution of the second community, the second wife has no claim based upon the expenditure of community funds to satisfy these obligations of the husband, which resulted from his legal obligation to support his children as well as to support the wife of his first marriage, dissolved without fault on her part.

(2)

The following additional reasons support the rationale of our majority opinion:

Civil Code Article 2403 provides that “debts contracted during the marriage . . . must be acquitted out of common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.”

The primary legal issue is whether the husband’s obligation for current alimony and support payments for his children and wife of the first marriage should be characterized as one which arose during the second marriage which must be acquitted from community funds; or whether, instead, it should be characterized as his prenuptial debt.

In either event, of course, the obligation may initially be enforceable against community funds. See Creech v. Capitol Mack, 287 So.2d 497 (La.1974). Nevertheless, in the first case, it is characterized as an obligation for which community funds are ultimately liable; while in the second case, it is characterized as the payment of the husband’s antenuptial debt (for which payments the husband must account, at the dissolution of the community, to 'his wife, since it was the expenditure of community funds to pay his separate debt).

The issue of legal characterization was answered by us in Fazzio v. Krieger, 226 La. 511, 76 So.2d 713 (1954). There, the question was whether the income of the second community was liable for child support payments owed by the husband to the children of a first marriage. We were there concerned with whether the question of alimony liability arising from a former marriage was to be considered a “debt” contracted by the husband prior to the second marriage or whether, instead, the obligation should be considered as one which may be acquitted from community funds.

In resolving the issue, in Fazzio, this court analyzed prior decisions and applicable jurisprudential principles, including those derived from the Spanish law upon which our community property system is based. We concluded that alimony liability for family support, either of a child or of a former wife, arises from an obligation imposed by law, an obligation not founded upon contract or alimony judgment but essentially based upon a legal duty of support founded upon civil code articles so providing.

We rested our decision that the second community was liable “on the principle of law that the obligation of the father to support his children by a former marriage is not a debt but an obligation or duty imposed by law for which his undivided interest in the second community is responsible.” 76 So.2d 717.

Fazzio did not specifically rule upon the issue of the husband’s liability, if any, at the dissolution of the second community to account (or not) to his wife for the use of community funds to satisfy this liability. Nevertheless, determinative for the present decision is Fazzio’s express holding that the support payments for the spouse and children of a first marriage satisfy a legal obligation of the husband which exists and month by month arises during the second community and which cannot be characterized as an antenuptial debt.

Thus, the payment of the support and alimony payments during the second marriage were to satisfy a legal obligation of the husband which became due month by month during the second marriage. Therefore, they were payable from community funds. However, not being the payment of an antenuptial debt payable from the husband’s individual effects, the wife was not entitled under Civil Code Article 2403 to have him account to- her at the dissolution of the community for these payments made from community funds.

The payment of these obligations, which came into existence during the existence of the second community and were thus properly dischargeable from community funds, is to be contrasted with the payment of antenuptial debts, contractual or otherwise, such as are founded upon contractual obligations pre-existing the marriage or upon liability for support during a period pre-existing the second marriage. These latter, while initially payable from the community since it forms part of the husband’s patrimony, are subject to reimbursement to the wife at the termination of the second community. Creech v. Capitol Mack, 287 So.2d 497 (La.1974).

The decisions of the intermediate court cited to us all concern the issue of the liability of the second community for payment of the husband’s support obligations owed to the family of a first marriage: White v. Klein, 263 So.2d 496 (La.App. 1st Cir.) cert. denied, 262 La. 1097, 266 So.2d 223 (1972); Morace v. Morace, 220 So.2d 775 (La.App. 1st Cir.) cert. denied, 254 La. 287, 223 So.2d 410 (1969); Lytell v. Lytell, 144 So.2d 925 (La.App. 4th Cir. 1962), cert. denied. They do not reach the issue here posed, although their refusal to characterize the support obligation as the husband’s antenuptial debt is consistent with the rationale by which we have decided the present issue.

For these reasons, I respectfully concur.

      . See Black’s Law Dictionary, verbo “per curiam”, page 1293 (4th ed., 1951) :
      “By the court. A phrase used in the reports to distinguish an opinion of the whole court from, an opinion written by any one judge. * * * ”

      . As in Fazzio, in the present case the husband’s payment of support obligations for his first family did not exceed the value of his share of the earnings of the second community. We do not reach, nor express any opinion thereasto, the issue of accountability which might arise to the extent that the payment for such support obligations exceeded the value of the partner’s share of the earnings of the second marriage.


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Harry ROBERTS, Appellant.
    No. 56952.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      Garland R. Rolling, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of first degree murder, La.R.S. 14:30 (1973), and sentenced to death. Upon his appeal, he relies upon seventeen assignments of error.

The most arguable contentions are raised by assignments 13, 15, and 17 (adopting the enumeration in the appellant’s brief). These relate respectively to: the denial of a mistrial based upon the prosecutor’s reference to a juvenile offense of the defendant; the denial of pre-trial oyer of a revolver and bullets used in the killing for purposes of ballistic testing; and the excusing, upon the prosecutor’s challenger for cause, of twenty-five jurors on the basis of their views relating to imposition of the death penalty.

Context Facts

The evidence of the state’s witnesses proved:

At about 6:30 p.m. on Mardi Gras, 1974, the defendant Roberts became involved in a qugrrel with his neighbors. Drawing a pistol, he fired blindly at them, striking a 13-year-old boy.

Responding to a radio call, Police Officers Tobin and Mclnerney arrived at the scene within minutes. Roberts was still in sight, about a block away. He was walking swiftly. The police officers followed him in their vehicle through the crowded carnival streets.

The police vehicle caught up with Roberts within three blocks. When the officers called to him, Roberts approached, pulled out a pistol and shot the driver To-bin as he was opening his door, and shot at officer Mclnerney as he was descending from the passenger side. When Mc-lnerney fired back (hitting Roberts in the left leg), Roberts shot and killed the police officer.

Roberts left a trail of blood. He was located within a block of the shooting. He had broken into a home and had telephoned his mother to come for him.

The gun used in the killing was found at the rear of an alleyway by which Roberts had approached the home into which he had broken. His fingerprints were found on the weapon. Blood drippings were near the pistol, as they were at the entrance to the alleyway.

Roberts fought the arresting police desperately when they arrived at the house.

Roberts took the stand in his own defense. He admitted the neighborhood quarrel, but denied that he had used a gun (or that he had ever possessed one). He stated that, while leaving the scene, he had been shot in his leg by a party unknown.

Roberts admitted that he had gone down the alley to the house in which he was found. He indicated that his use of the telephone was with the consent of the home’s inhabitants, in order to locate his mother and to inform the police of the shooting. (The inhabitants testified that Roberts had broken into their home through a side-door.)

The essence of the accused’s defense was that some other man had shot the policeman a block or so away from the shooting of himself by a party unknown.

We do not find his assignments of error to have merit, for the following reasons:

Assignment 13: The prosecutors reference to a juvenile offense

The accused took the stand in his own defense. Upon cross-examination, the prosecutor asked him if in 1970 he had pleaded guilty in juvenile court to theft and shoplifting. The district court sustained a defense objection to the question and admonished the jury to disregard the question.

As the defendant points out, by express statutory provision, an adjudication that a juvenile has committed an offense is not a determination that the child was a criminal, “nor shall such adjudication be deemed a conviction.” La.R.S. 13:1580(5) (1974). It was thus improper impeachment of the appellant’s credibility, since only a conviction of a crime may be used for such purpose. La.R.S. 15:495. (Furthermore, juvenile records are ordinarily privileged information. La.R.S. 13:1586 (1950).)

The defendant contends that the admonition to the jury to disregard the prosecutor’s question was insufficient to cure the prejudice resulting from the prosecutor’s reference to the inadmissible juvenile offense. He contends that La.C.Cr.P. art. 770 mandatorily requires a mistrial when the prosecutor “refers directly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.”

The mandatory mistrial required by the code article within its literal terms includes only improper references to “crimes”, not to juvenile adjudications. While, as the trial court held, the prosecutor’s reference to the inadmissible juvenile offense was improper, it is not governed by Article 770 (requiring mistrial) but rather by Article 771. The latter provision permits an admonition to the jury to cure the prejudice, providing that the trial court is satisfied that an admonition rather than mistrial is sufficient to assure the defendant a fair trial.

We find no abuse of the trial court’s discretion in denying a mistrial:

As noted, the trial court sustained the objection to the question and promptly admonished the jury to disregard it. The question concerned a single non-violent petty offense of a juvenile. As permitted by La.R.S. IS :495, the jury additionally received evidence of the defendant’s conviction of two post-juvenile crimes, for purposes limited to impeaching credibility.

The admonition of the trial court to disregard the question cured, in our opinion, whatever additional prejudice the accused might otherwise have sustained by the question’s inference that he had also been convicted of a petty offense while still a juvenile.

Assignment 15: Denial of pre-trial oyer of pistol and bullet

At the trial, the pistol found in the vicinity was, by ballistic tests, identified as the weapon which fired the bullet which killed Officer Mclnerney and which was found in his body.

By pre-trial motion, the accused had sought oyer of the pistol and bullet for the purpose of making ballistic tests. The trial court denied the motion on the authority of State v. Barnard, 287 So.2d 770 (La.1973). However, subsequent to the trial, the federal courts have set aside the Barnard conviction. The federal Fifth Circuit held that the denial of pre-trial ballistic tests, under the circumstances there shown, was a denial of the right to a fair trial and adequate preparation of a defense required by federal due process. Barnard v. Henderson, 514 F.2d 744 (CA 5,1975).

In Barnard, a pistol was used in the murder. The unknown killer left the scene with the weapon. Subsequently, a pistol was located in Illinois which had there been sold by the defendant. Ballistic tests identified the slug found in the victim as having been fired by that pistol.

In Barnard, the issue thus was whether a pistol, identified as the defendant’s and in his possession after the shooting, had fired the fatal bullet. Due process fair-trial requirements were held to have been violated by the denial, upon request, of pre-trial access for purpose of completing difficult ballistic testing.

In the present case, however, the ballistic testing is not shown to have been useful for the accused’s defense. The accused’s defense did not deny that the pistol found in the alley nearby the shooting had fired the fatal shot. His contention, rather, was that he himself had no connection with the pistol which had been so used.

We are unwilling to reverse a conviction because of the denial of opportunity for pre-trial ballistic testing where, under the circumstances of the actual case, such ballistic testing is not shown to have been relevant to any issue of the accused’s defense. Even if it were error to have denied the pre-trial testing to the defendant, the denial is not claimed nor shown to have caused him any prejudice in the preparation of his defense under the particular issues of the present prosecution.

Assignment 17: Voir dire examination of prospective jurors as to their attitudes on the death penalty

La.C.Cr.P. art. 798(2) (1968) provides that the State may challenge for cause any prospective juror in a capital case who “makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt.”

Before the 1968 amendment so limiting the state’s right to challenge for cause, the State had been entitled to challenge for cause additionally any prospective juror in a capital case who merely had “conscientious scruples against the infliction of capital punishment.” La.C.Cr.P. art. 798(2) (1966). The United States Supreme Court had previously held that exclusion of jurors with merely conscientious scruples against capital punishment deprived an accused in a capital case of the jury representative of the community to which he is constitutionally entitled. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d776 (1968).

In the instant case, the trial court sustained the State’s challenges for cause as against twenty-five veniremen who expressed fixed opposition to imposition of the death penalty under any circumstances.

The defendant contends that two of them (Halphen and Blazio) did not make their opposition to the death penalty unmistakably clear, so as to entitle the State to challenge them for cause. However, we have reviewed their voir dire examinations and find no error in the trial court’s determination that, despite some initial ambiguity, the ultimate firm conclusion of the respective veniremen was that they would not impose the death penalty in the instant case under any circumstances.

Additionally, the defendant argues that the removal from a jury service of twenty-five veniremen opposed to the death penalty deprived him of the jury representative of the people to which an accused is constitutionally entitled. He points out that, under rulings of this court, a jury is not concerned with the penalty imposed for a conviction but only with whether the facts it finds proved to fit the statutory definition of the crime for which convicted. State v. Selman, 300 So.2d 467 (La.1974); State v. Blackwell, 298 So.2d 798 (La.1974). Thus, he contends, to permit challenge for cause of a venireman because of his views about a statutory penalty is arbitrarily to exclude him from the trial jury for no reason related to his function as a juror.

Nevertheless, despite these persuasively-urged contentions, by La.C.Cr.P. art. 798(2) our legislature has permitted exclusion for cause of those prospective jurors who will under no circumstances impose a death penalty mandatorily required when an accused is found guilty of the criminal conduct with which charged.

In Witherspoon, the United States Supreme Court recognized that there is no consitutional bar to excluding from jury service those who will in no circumstances concur in a verdict of guilt because of their refusal to apply the extreme penalty required by statute upon conviction.

We do not find error presented by this assignment.

Other Errors Assigned

The other assignments of error are clearly without merit.

For the most part, they concern eviden-tiary rulings patently correct: Assignment 1 (question at pre-trial motion properly held irrelevant); Assignment 3 (question at pre-trial hearing properly held not to call for a legal conclusion) ; Assignment 6 (qualified medical expert properly held competent to testify concerning the path of the bullet through the victim’s body); Assignments 7, 8, 9 (blood, firearms, and fingerprint witnesses properly held qualified as experts); Assignment 10 (coroner’s report and proces verbal properly held admissible); Assignment 11 (physical evidence and photographs admitted after proper foundation; defendant assigns no reason to the contrary); and Assignment 14 (miscellaneous rulings sustaining or overruling objections to four minor eviden-tiary matters correctly admitted or denied admissibility).

The motion for a directed verdict also was properly denied (Assignment 12). Among other reasons, the state’s eyewitness testimony identified the defendant as the killer of the police officer.

Likewise, no merit is possessed by the assignments attacking certain trial court’s rulings on constitutional grounds:

Assignments 2 and 5 (Motion to suppress identification): Officer Tobin, who was shot at almost pointblank range, identified the defendant as the man who had shot both him and the decedent. The police witness is shown to have had full opportunity to observe and identify h's attacker.

The motion to suppress his identification as tainted is based upon the chance passing at Charity Hospital emergency room of the two wounded men, Officer Tobin and the defendant Roberts. When the policeman saw the other, he at once remarked, “That’s the man who shot me. I’ll never forget his face.”

No showing whatsoever is made that the face-to-face encounter at the hospital was pre-arranged or that it in any way was intended or did influence the officer’s ability to identify Roberts as his assailant, which was independently based on their actual encounter at the time of the shooting.

Assignment 4 (Motion to suppress revolver): The revolver used in the shooting was found in an alley. It was just outside the house in which the defendant had taken refuge after the shooting incident.

The motion to suppress the weapon is based on the contention that it was seized as the product of a warrantless search in the absence of probable cause. For many reasons, the motion is without merit, including: The police officers looking for the wounded perpetrator of a murder committed minutes before, were entitled to follow a bloody residue into an alley within a block of the murder and to pick up an abandoned pistol in plain view in the alley. See, e. g., State v. Nine, 315 So.2d 667 (La.1975).

Assignment 16 (Motion to quash on grounds of unconstitutionality): We have rejected similar attacks upon the constitutionality of the death penalty provided for first degree murder, La.R.S. 14:30, as enacted by Act 109 of 1973. See, e. g., State v. Hill, 297 So.2d 660 (La.1974).

Decree

AFFIRMED.

SUMMERS, J., concurs and assigns reasons.

CALOGERO, J., concurs, having reservations as to the majority’s treatment of bill No. 13.

DIXON, J., dissents from the ruling on the constitutionality of the death penalty under United States Supreme Court standards, but otherwise subscribes fully to the opinion.

SUMMERS, Justice

(concurring).

I concur in the result of this opinion because I cannot approve the rejection of a number of contentions by the Court when no reasons are assigned therefor in this death penalty case.

      . Further, as perhaps recognized by this statute, in capital cases the jury has been charged as to the capital consequences of its verdict, and counsel have been permitted to argue this extreme penalty. No decision of this court has intimated that this is not appropriate.